Effective Date: February 14 2022
PLEASE BE AWARE THAT, IF YOU SUBSCRIBE TO THE SERVICES FOR A MONTHLY TERM, THEN THE TERM WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL MONHTLY PERIODS OF THE SAME DURATION AT COMPANY’S THEN-CURRENT FEE FOR SUCH SERVICES UNLESS YOU OPT OUT OF THE AUTO-RENEWAL OR DECLINE TO RENEW YOUR SUBSCRIPTION IN ACCORDANCE WITH THE FEES AND PAYMENT TERMS (DEFINED IN SECTION 6 BELOW AND AVAILABLE AT HTTPS://ABOUT.FINARY.IO/POLICIES).
PLEASE BE AWARE THAT SECTION 15 (DISPUTE RESOLUTION) OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY DISPUTES THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
PLEASE BE AWARE THAT SECTION 1.4 (FINARY COMMUNICATIONS) OF THIS AGREEMENT, BELOW, CONTAINS YOUR OPT-IN CONSENT TO RECEIVE COMMUNICATIONS FROM US, INCLUDING VIA E-MAIL, TEXT MESSAGE, CALLS AND PUSH NOTIFICATION.
PLEASE BE AWARE THAT FINARY IS A SOCIAL INVESTING PLATFORM HELPING TO CREATE MORE ENGAGED AND INFORMED INVESTORS AND IS PROVIDED FOR INFORMATIONAL AND ENTERTAINMENT PURPOSES ONLY. FINARY DOES NOT COLLECT ANY FUNDS, EXECUTE ANY TRANSACTIONS, PROVIDE ANY INVESTMENT ADVICE, OR OTHERWISE ACT AS A BROKER-DEALER, INVESTMENT ADVISER, MONEY TRANSMITTER, MONEY SERVICES BUSINESS, BANK ACCOUNT, BROKERAGE ACCOUNT, OR OTHER FINANCIAL ACCOUNT. FINARY IS IN NO WAY YOUR AGENT,
ADVISOR, OR CUSTODIAN, AND WE DO NOT HAVE A FIDUCIARY RELATIONSHIP OR OBLIGATION TO YOU REGARDING ANY OTHER DECISIONS OR ACTIVITIES THAT YOU EFFECT WHEN USING OUR SERVICES. FINARY MERELY PROVIDES A SOCIAL COMMUNICATION PLATFORM AND, IF APPLICABLE, PROVIDES A FACILITY FOR YOU TO COMMUNICATE WITH THIRD-PARTY BROKER-DEALERS THAT COMPLETE TRANSACTIONS (DEFINED BELOW) ON YOUR BEHALF. WE ARE NOT RESPONSIBLE FOR ANY ACTIVITIES THAT YOU ENGAGE IN WHEN USING YOUR BROKERAGE ACCOUNT, AND YOU SHOULD UNDERSTAND THE RISKS ASSOCIATED WITH ONLINE INVESTING AND TRADING. UNLESS EXPLICITLY PROVIDED IN WRITING, WE DO NOT RECOMMEND, ENDORSE, OR OTHERWISE TAKE A POSITION ON YOUR USE OF THESE SERVICES.
The Services allow you to chat with friends about your portfolio, build group chats, discover new investing communities, and communicate with your third-party broker-dealers. The purpose of the Platform is to allow Registered Users (defined below) to share their Investment activity with other Registered Users in direct messages, groups, and channels. As a Registered User of the Finary Services, you will be able to (i) create and join groups and channels for exchanging investment ideas with other Registered Users, (ii) communicate with third-party broker-dealers at which you maintain your Brokerage Accounts (defined below), (iii) track and manage your purchases and sales of securities, commodities, and futures (collectively, “Investments”), (iv) sign up for and receive alerts when other Registered Users post User Content (as defined below) or make Investments, and (v) share your Investment information and post commentary and other Content (as defined below).
Finary may require you to provide consent to the updated Agreement in a specified manner before further use of the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Services. Otherwise, your continued use of the Services constitutes your acceptance of such change(s).
1. USE OF THE SERVICES. The Services, including Finary’s content, innovations or its other proprietary elements made available on and through them are protected by copyright, trademark and other intellectual property laws throughout the world.
1.1 Application License. Subject to your compliance with the Agreement, Finary grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Application on a single computing device that you own or control and to run such copy of the Application solely for your own personal purposes. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (a) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (b) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. Notwithstanding the first sentence in this section, with respect to any Application accessed through or downloaded from the Google Play store (a “Google Play Sourced Application”), you may have additional license rights with respect to use of the Application on a shared basis within your designated family group.
1.2 Updates. You understand that the Services are evolving. As a result, Finary may require you to accept updates to the Services that you have installed on your device. You acknowledge and agree that Finary may update the Services with or without notifying you. You may need to update third-party software from time to time in order to use Services. In addition, you acknowledge and agree that Finary may offer additional Services and product features, or add, change, or discontinue Finary’s existing Services and product features at any time and in any region, with or without notice to you. If you are dissatisfied, your sole remedy is to stop using the Services or the affected feature.
1.3 Certain Restrictions. The rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit Services; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other content, images, text, page layout or form of Finary; (c) you shall not use any metatags or other “hidden text” using Finary’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of elements of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from the Services (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Services for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; (g) you shall comply with all applicable laws and regulations in relation to this Agreement and any Transaction, and you shall not use the Services for the purposes of insider trading, market manipulation, front-running or any other form of fraud or market abuse; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Services. Any future release, update or other addition to the Services shall be subject to the Agreement. Finary, its suppliers and service providers reserve all rights not granted in the Agreement. Any unauthorized use of any Services terminates the licenses granted by Finary pursuant to the Agreement.
1.4 Finary Communications. By entering into this Agreement or using the Services, you agree to receive communications from us, including via e-mail, text message, calls, and push notifications. You agree that texts, calls or prerecorded messages may be generated by automatic telephone dialing systems. Communications from us and our affiliated companies may include but are not limited to: operational communications concerning your Account or the use of the Services, updates concerning new and existing features on the Services, communications concerning promotions run by us or our third-party partners, and news concerning the Finary and industry developments.
Standard text messaging charges applied by your cell phone carrier will apply to text messages that we send. IF YOU WISH TO OPT OUT OF PROMOTIONAL EMAILS, YOU CAN UNSUBSCRIBE FROM OUR PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL ITSELF. IF YOU WISH TO OPT OUT OF ALL TEXTS OR CALLS FROM US (INCLUDING OPERATIONAL OR
TRANSACTIONAL TEXTS OR CALLS), YOU CAN TEXT THE WORD “STOPALL” FROM THE MOBILE DEVICE RECEIVING THE MESSAGES. YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE PROMOTIONAL TEXTS OR CALLS AS A CONDITION OF USING THE SERVICES. HOWEVER, YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL TEXTS MAY IMPACT YOUR USE OF THE SERVICES.
2.1 Registering Your Account. In order to access certain features of the Services you are required to become a Registered User. For purposes of the Agreement, a “Registered User” is a user who registered for an account on the Services (“Account”) or has a valid account on the social networking service (“SNS”) through which the user has connected to the Services (each such account, a “Third-Party Account”). Finary is under no obligation to accept any individual as a Registered User and may accept or reject any registration in our sole and complete discretion.
2.3 Access Through a SNS. If you access the Services through a SNS as part, you may link your Account with Third-Party Accounts, by allowing Finary to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to disclose your Third-Party Account login information to Finary and/or grant Finary access to your Third-Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating Finary to pay any fees or making Finary subject to any usage limitations imposed by such third-party service providers. By granting Finary access to any Third-Party Accounts, you understand that Finary may access, make available and store (if applicable) any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through the Services (collectively, “Content”) that you have provided to and stored in your Third-Party Account (“SNS Content”) so that it is available on and through the Services via your Account. Unless otherwise specified in the Agreement, all SNS Content shall be considered to be Your Content (as defined in Section 3.1 (Types of Content)) for all purposes of the Agreement. Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your Account on the Services. Please note that if a Third-Party Account or associated service becomes unavailable, or Finary’s access to such Third-Party Account is terminated by the third-party service provider, then SNS Content will no longer be available on and through the Services. You have the ability to disable the connection between your Account and your Third-Party Accounts at any time by accessing the “Settings” section of the Website. PLEASE NOTE
THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND FINARY DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS. Finary makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and Finary is not responsible for any SNS Content.
2.4 Registration Data. In registering an account on the Services, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the Services by minors. You may not share your Account information (including your password) with anyone, and you agree to (y) notify Finary immediately of any unauthorized use of your password or any other breach of security; and (z) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Finary has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Finary has the right to suspend or terminate your Account and refuse any and all current or future use of the Services (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account per platform or SNS at any given time. Finary reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use the Services if you have been previously removed by Finary, or if you have been previously banned from any of the Services.
2.5 Your Finary Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Finary.
2.6 Brokerage Account. The Platform allows Registered Users to communicate with participating third-party broker-dealers, including regarding instructions to purchase and sell certain Investments (each, a “Transaction”). In order to access and use these features of the Services, including communicating regarding Transactions, Registered Users must open and maintain an account with a participating third-party broker-dealer (a “Brokerage Account”). Your Brokerage Account is subject to a separate agreement directly between you and the applicable third-party broker-dealer. For important disclosures about Brokerage Accounts, see about.finary.io/policies. The Services may also be used to collect and transmit new account information to a third-party broker-dealer in connection with opening a Brokerage Account. If you elect to use our Services in connection with your Brokerage Account, you will be authorizing Finary to receive and/or access any and all information from your Brokerage Account necessary for Finary to provide the functionality of the Services. The decision to accept your application to open a Brokerage Account, and acceptance and execution of any Transaction, is in the sole control and discretion of the third-party broker-dealer. We are not a party to any Transaction, nor do we have any authority to act for any third-party broker-dealer. All orders are executed by your third-party broker-dealer in your Brokerage Account, and Finary is not responsible for the pricing, order routing or execution of any Transaction. Any official confirmations of such Transactions will be issued solely by the user’s broker-dealer, and the third-party broker-dealer will be solely responsible for maintaining all legally mandated records with respect to your Brokerage Account. You represent that you are entitled to grant Finary access to your Brokerage Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the Brokerage Account. By granting Finary access to your Brokerage Account, you understand that Finary may access and make available and store (if applicable) Content or personal financial data that you have provided to and stored in your Brokerage Account, as applicable (collectively, the “Brokerage Account Content”), so that it is available on and through the Services via your Brokerage Account. Please note that if a Brokerage Account or associated service becomes unavailable, or Finary’s access to such Brokerage Account is terminated by the third-party service provider, then Brokerage Account Content will no longer be available on and through the Services, and the applicable functionality of the Services may cease. Unless otherwise specified in this Agreement, all Brokerage Account Content shall be considered to be Your Content for all purposes of this Agreement. You acknowledge that personally identifiable information and financial data that you post to your Brokerage Accounts may be available on and through the Services. You have the ability to disable the connection between the Services and your Brokerage Account at any time by disconnecting your Brokerage Account through the Services. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR BROKERAGE ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND FINARY DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE OR PERSONAL FINANCIAL INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH BROKERAGE ACCOUNTS. Finary makes no effort to review any Brokerage Account Content for any purpose, including but not limited to, for accuracy, legality or non-infringement, and Finary is not responsible for any Brokerage Account Content.
2.7 Necessary Equipment and Software. You must provide all equipment and software necessary to access the Services. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Services. You will be responsible for keeping your hardware devices, including your phone, secure and for any activity associated with such devices and your Brokerage Account when using our Services. Finary will not be responsible if someone else accesses your devices and authorizes a Transaction upon receipt of a valid transfer initiated from the Services.
3. RESPONSIBILITY FOR CONTENT.
3.1 Types of Content. You acknowledge that all Content is the sole responsibility of the party from whom such Content originated. This means that you, and not Finary, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) to, on or through the Services (“Your Content”), and that you and other Registered Users of the Services, and not Finary, are similarly responsible for all Content that you and they Make Available to, on or through the Services (“User Content”).
3.2 No Obligation to Pre-Screen Content. You acknowledge that Finary has no obligation to pre-screen Content (including, but not limited to, User Content), although Finary reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Agreement, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that Finary pre-screens, refuses or removes any Content, you acknowledge that Finary will do so for Finary’s benefit, not yours. Without limiting the foregoing, Finary shall have the right, without prior notice to you, to change, alter remove any Content, including Your Content, in whole or in part, that violates the Agreement or any applicable law or is otherwise objectionable. Further, Finary reserves the right to investigate such violations, and Finary may, at its sole discretion, immediately terminate your license to use the Services.
3.3 Storage. Unless expressly agreed to by Finary in writing elsewhere, Finary has no obligation to store any of Your Content that you Make Available on the Services. Finary has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Services. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you do not choose, the system may default to its most permissive setting. You agree that Finary retains the right to create reasonable limits on Finary’s use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described on the Website and as otherwise determined by Finary in its sole discretion.
4.1 Services. Except with respect to Your Content and User Content, you agree that Finary and its suppliers own all rights, title and interest in the Services (including but not limited to, any computer code, themes, objects, characters, character names, stories, dialogue, concepts, artwork, animations, sounds, musical compositions, audiovisual effects, methods of operation, moral rights, documentation, and Finary software. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any of the Services.
4.2 Trademarks. All related graphics, logos, service marks and trade names used on or in connection with any Services or in connection with the Services are the trademarks of Finary and may not be used without permission in connection with your, or any third-party, products or services. Other trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners.
4.3 Your Content. Finary does not claim ownership of Your Content. However, when you as a Registered User post or publish Your Content on or in the Services, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.
4.4 License to Your Content. Subject to any applicable account settings that you select on the Services, you grant Finary a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, prepare derivative works, adapt, publicly perform, and publicly display Your Content (in whole or in part) for the purposes of operating and providing the Services to you and to our other Registered Users. Please remember that other Registered Users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of the Services. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not Finary, are responsible for all of Your Content that you Make Available on or in the Services. Any Content posted by you in your profile may not contain nudity, violence, sexually explicit, or offensive subject matter as determined by Finary in its sole discretion. You may not post or submit for print services a photograph of another person without that person’s permission.
4.5 Username. Notwithstanding anything contained herein to the contrary, by submitting Your Content to any chats, groups, forums, comments, or any other area on the Services, you hereby expressly permit Finary to identify you by your username (which may be a pseudonym) as the contributor of Your Content in any publication in any form, media or technology now known or later developed in connection with Your Content.
4.6 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Finary through its suggestion, feedback, wiki, forum, similar pages, or any other aspect of the Services (“Feedback”) is at your own risk and that Finary has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Finary a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Services and/or Finary’s business.
5. USER CONDUCT. As a condition of use, you agree not to use the Services for any purpose that is prohibited by this Agreement or by applicable law. You shall not (and shall not permit any third party) either (a) take any action or (b) Make Available any Content on or through the Services that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales, such as contests, sweepstakes, barter, advertising, or pyramid schemes without Finary’s prior written consent; (v) impersonates any person or entity, including any employee or representative of Finary; (vi) interferes with or attempt to interfere with the proper functioning of the Services or uses the Services in any way not expressly permitted by this Agreement; or (vii) jeopardizes the security of your Account or Brokerage Account or anyone else’s Account or Brokerage Account (such as allowing someone else to log in to the Services as you); (viii) attempts, in any manner, to obtain the password, Account, or other security information from any other user; (ix) attempts to access another user’s Brokerage Account or other security information on any third-party site or services that provide access to such user’s Brokerage Account on our Services; or (x) attempts to engage in any potentially harmful acts that are directed against the Services, including but not limited to violating or attempting to violate any security features of the Services, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in the Services, introducing viruses, worms, or similar harmful code into the Services, or interfering or attempting to interfere with use of the Services by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Services. IN ADDITION TO THE FOREGOING PROHIBITED USES, BY OPENING AN ACCOUNT, YOU CONFIRM THAT YOU WILL NOT USE YOUR ACCOUNT TO DO ANY OF THE FOLLOWING: (A) PROVIDE ANY INVESTMENT ADVICE, PORTFOLIO MANAGEMENT OR OTHER SERVICES OR ACTIVITIES, OR MAKE ANY STATEMENTS AS TO YOUR ELIGIBILITY TO PROVIDE INVESTMENT ADVICE, PORTFOLIO MANAGEMENT OR ANY OTHER SERVICES OR ACTIVITIES, WHICH MAY REQUIRE REGISTRATION WITH THE SEC OR ONE OR MORE STATES AS AN INVESTMENT ADVISER; (B) MAKE ANY STATEMENTS THAT FINARY OR ITS AFFILIATES ENDORSE, MAINTAIN ANY CONTROL OR GUARANTEE THE ACCURACY OR COMPLETENESS OF ANY CONTENT PUBLISHED, POSTED OR SHARED BY YOU WITH OTHER USERS; (C) ENGAGE IN ANY ACTIVITY WHICH WOULD VIOLATE, OR ASSIST IN VIOLATION OF, ANY LAW, STATUTE, ORDINANCE, OR REGULATION, IN THE LOCATIONS WHERE FINARY CONDUCTS BUSINESS, OR WHICH WOULD INVOLVE PROCEEDS OF ANY UNLAWFUL ACTIVITY OR PUBLISH, DISTRIBUTE OR DISSEMINATE ANY UNLAWFUL MATERIAL OR INFORMATION; (D) DISCLOSE, BUY OR SELL ANY SECURITY, IN BREACH OF A FIDUCIARY DUTY OR OTHER RELATIONSHIP OF TRUST AND CONFIDENCE, WHILE IN POSSESSION OF MATERIAL, NONPUBLIC INFORMATION ABOUT THE SECURITY; OR (E) ENGAGE IN ANY ACTIVITY WHICH OPERATES TO DEFRAUD FINARY, REGISTERED USERS, OR ANY OTHER PERSON OR PROVIDE ANY FALSE, INACCURATE, OR MISLEADING INFORMATION TO FINARY OR REGISTERED USERS.
6. INTERACTIONS WITH OTHER USERS. You are solely responsible for your interactions with other Registered Users and any other parties with whom you interact; provided, however, that Finary reserves the right, but has no obligation, to intercede in such disputes. You agree that Finary will not be responsible for any liability incurred as the result of such interactions.
7. FEES AND PAYMENT TERMS. Certain features of the Services may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. Finary reserves the right to determine pricing for the Services. Finary will make reasonable efforts to keep pricing information published on the Website up to date. We encourage you to check the Website periodically for current pricing information. Finary may change the fees for any feature of the Services, including additional fees or charges, if Finary gives you advance notice of changes before they apply. You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms described in the Finary Fees and Payment Terms and Conditions (“Fees and Payment Terms”), available at https://about.finary.io/policies, which is hereby incorporated into these Terms by reference.
8. INDEMNIFICATION. You agree to indemnify and hold Finary, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “Finary Party” and collectively, the “Finary Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Your Content; (b) your use of, or inability to use, any aspect of the Services; (c) your violation of the Agreement; (d) your violation of any rights of another party, including any Registered Users; or (e) your violation of any applicable laws, rules or regulations. Finary reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Finary in asserting any available defenses. This provision does not require you to indemnify any of the Finary Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with the Website or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to the Services.
9. ASSUMPTION OF RISK. You accept and acknowledge that you take full responsibility for all activities that occur through your Brokerage Account and accept all risks of loss or any authorized or unauthorized access to your Brokerage Account, to the maximum extent permitted by law. You further accept and acknowledge that:
9.1 NEITHER FINARY NOR THE SERVICES IS INTENDED TO PROVIDE LEGAL, TAX, INVESTMENT OR FINANCIAL ADVICE. FINARY IS NOT (A) A REGISTERED EXCHANGE UNDER THE SECURITIES EXCHANGE ACT OF 1934, (B) A REGISTERED INVESTMENT ADVISER UNDER THE INVESTMENT ADVISERS ACT OF 1940, (C) A REGISTERED BROKER-DEALER UNDER THE SECURITIES EXCHANGE ACT IF 1934 OR (D) A FINANCIAL OR TAX PLANNER, AND DOES NOT OFFER LEGAL ADVICE TO ANY USER OF THE SERVICES. ALTHOUGH THE SERVICES MAY PROVIDE DATA, INFORMATION, OR CONTENT RELATING TO INVESTMENT STRATEGIES, AND COMMUNICATIONS FACILITIES USED TO HELP FACILITATE TRANSACTIONS IN SECURITIES THROUGH THIRD-PARTY BROKER-DEALERS, YOU SHOULD NOT CONSTRUE ANY SUCH CONTENT AS TAX, LEGAL, FINANCIAL, OR INVESTMENT ADVICE.
9.2 YOU (A) HAVE THE NECESSARY TECHNICAL EXPERTISE AND ABILITY TO REVIEW AND EVALUATE THE SECURITY, INTEGRITY AND OPERATION OF YOUR BROKERAGE ACCOUNT; (B) HAVE THE KNOWLEDGE, EXPERIENCE, UNDERSTANDING, INFORMATION AND/OR PROFESSIONAL ADVICE TO MAKE YOUR OWN EVALUATION OF THE MERITS, RISKS AND APPLICABLE COMPLIANCE REQUIREMENTS UNDER APPLICABLE LAWS OF ANY USE OF YOUR BROKERAGE ACCOUNT; (C) KNOW, UNDERSTAND AND ACCEPT THE RISKS ASSOCIATED WITH YOUR BROKERAGE ACCOUNT; AND (D) ACCEPT THE RISKS ASSOCIATED WITH INVESTING AND TRADING GENERALLY, AND ARE RESPONSIBLE FOR CONDUCTING YOUR OWN INDEPENDENT ANALYSIS OF THE RISKS SPECIFIC TO EACH INVESTMENT OR TRADE OPPORTUNITY. YOU FURTHER AGREE THAT FINARY WILL HAVE NO RESPONSIBILITY OR LIABILITY FOR, SUCH RISKS. YOU HEREBY IRREVOCABLY WAIVE, RELEASE AND DISCHARGE ALL CLAIMS, WHETHER KNOWN OR UNKNOWN TO YOU, AGAINST THE FINARY PARTIES RELATED TO ANY OF THE RISKS SET FORTH HEREIN. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.” THE FOREGOING RELEASE DOES NOT APPLY TO ANY CLAIMS, DEMANDS, OR ANY LOSSES, DAMAGES, RIGHTS AND ACTIONS OF ANY KIND, INCLUDING PERSONAL INJURIES, DEATH OR PROPERTY DAMAGE FOR ANY UNCONSCIONABLE COMMERCIAL PRACTICE BY A FINARY PARTY OR FOR SUCH PARTY’S FRAUD, DECEPTION, FALSE, PROMISE, MISREPRESENTATION OR CONCEALMENT, SUPPRESSION OR OMISSION OF ANY MATERIAL FACT IN CONNECTION WITH THE WEBSITE OR ANY SERVICES PROVIDED HEREUNDER.
9.3 YOU ACKNOWLEDGE THAT FINARY DOES NOT PARTICIPATE IN THE EXECUTION OF ANY TRANSACTIONS THROUGH YOUR BROKERAGE ACCOUNT, OTHER THAN BY TRANSMITTING COMMUNICATIONS BETWEEN YOU AND THE THIRD-PARTY BROKER-DEALER. FINARY DOES NOT WARRANT OR REPRESENT THAT ANY TRANSACTION WILL BE EXECUTED, OR THAT TRANSACTIONS WILL BE EXECUTED WITHOUT DELAY OR AT THE BEST PRICE.
9.4 TO THE FULLEST EXTENT PERMITTED BY LAW, FINARY DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES OR OTHER GUARANTEES AS TO (1) THE ACCURACY OR TIMELINESS OF ANY MARKET OR PRICE DATA YOU MAY OBTAIN THROUGH FINARY; OR (2) THE ACCURACY, TIMELINESS, COMPLETENESS OR USEFULNESS OF ANY CONTENT MADE AVAILABLE ON THE SERVICES. ANY AND ALL CONTENT PROVIDED TO YOU IS EXCLUSIVELY FOR INFORMATIONAL, PERSONAL AND NONCOMMERCIAL ACCESS AND USE. YOU AGREE THAT ANY RELIANCE BY YOU ON ANY MARKET OR PRICE DATA, CONTENT OR USE OF THE SERVICES IS AT YOUR OWN RISK. YOU ASSUME ALL RISKS IN TRADES AND TRANSACTIONS MADE THROUGH YOUR BROKERAGE ACCOUNT.
9.5 FINARY’S SOCIAL COMMUNICATION AND INVESTMENT FEATURES ARE PROVIDED BY FINARY SOLELY FOR INFORMATIONAL AND ENTERTAINMENT PURPOSES AND DO NOT CONSTITUTE INVESTMENT ADVICE. THE FINARY PARTIES ARE NOT INVESTMENT OR FINANCIAL ADVISERS, NOR ARE THE SERVICES INTENDED TO PROVIDE YOU WITH SUFFICIENT INFORMATION TO MAKE INVESTMENT DECISIONS. THE INFORMATION AVAILABLE THROUGH FINARY IS NOT TAILORED TO MEET YOUR SPECIFIC INVESTMENT NEEDS OR OBJECTIVES. FINARY DOES NOT EVALUATE THE SUITABILITY OF ANY INVESTMENT OPPORTUNITY OR INVESTMENT STRATEGY TO MEET YOUR OBJECTIVES. IF YOU MAKE DECISIONS IN RELIANCE ON INFORMATION WHICH IS AVAILABLE ON THE PLATFORM OR AS A RESULT OF THE USE OF THE SERVICES OR ANY SOCIAL FEATURE PROVIDED IN THE SERVICES, YOU DO SO AT YOUR OWN RISK, AND THE FINARY PARTIES WILL NOT BE LIABLE FOR ANY LOSSES THAT YOU MAY SUSTAIN. YOU SHOULD NOT MAKE ANY INVESTMENT DECISION WITHOUT FIRST CONDUCTING YOUR OWN RESEARCH AND/lOR CONSULTING WITH AN INVESTMENT ADVISER. YOU ARE SOLELY AND EXCLUSIVELY RESPONSIBLE FOR DETERMINING WHETHER ANY TRANSACTION, STRATEGY OR ANY OTHER PRODUCT OR SERVICE IS APPROPRIATE OR SUITABLE FOR YOU BASED ON YOUR OWN OBJECTIVES AND PERSONAL AND FINANCIAL SITUATION.
9.6 FINARY IS NOT RESPONSIBLE FOR CONFIRMING ANY REGISTERED USER’S PURPORTED IDENTITY. YOU ARE SOLELY RESPONSIBLE FOR DETERMINING THE IDENTITY AND SUITABILITY OF OTHER REGISTERED USERS WHOM YOU MAY CONTACT BY MEANS OF THE PLATFORM. WE MAKE NO REPRESENTATIONS, OFFER NO ASSURANCES, AND MAY NOT INVESTIGATE ANY OF OUR REGISTERED USERS’ BACKGROUND, HISTORY, COURSE OF DEALING, LICENSES, MORALITY, OR CHARACTER, AND YOU HEREBY ACKNOWLEDGE THAT YOU ASSUME THE RISK OF ANY ENCOUNTER OR INTERACTION WITH SUCH PERSONS AND COMPANIES.
9.7 FINARY ALLOWS ITS USERS TO HAVE OTHER USERS ‘FOLLOW’ THEIR TRADE ACTIVITY. YOU AND OTHER USERS HAVE THE OPTION TO ALLOW YOUR TRANSACTIONS TO BE SEEN ON THE PUBLIC SERVICE BY OTHER USERS WHO HAVE FOLLOWED YOU. FINARY DOES NOT RECOMMEND OR ENDORSE THESE SHARED TRANSACTIONS. YOU AND OTHER USERS ARE FREE TO DISCLOSE OR NOT DISCLOSE TO YOUR FOLLOWERS YOUR TRADING INFORMATION AND DO SO AT YOUR OWN DISCRETION AND RISK.
10. DISCLAIMER OF WARRANTIES AND CONDITIONS.
10.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. FINARY PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE WEBSITE.
(a) FINARY PARTIES MAKE NO, AND HEREBY DISCLAIM ALL, REPRESENTATIONS, WARRANTIES, CLAIMS, AND ASSURANCES AS TO ANY INVESTMENT OR TRANSACTION. WE DO NOT ENDORSE ANY REGISTERED USERS OR INVESTMENTS. TO THE FULLEST EXTENT PERMITTED BY LAW, FINARY IS NOT RESPONSIBLE FOR AND DISCLAIMS ANY AND ALL LIABILITIES FOR REFERENCES TO OR INCLUSION OF SECURITIES OR INVESTMENT OPPORTUNITIES WITHIN CONTENT. CONTENT MADE IN ASSOCIATION WITH ANY TRADE OR SECURITY DOES NOT REPRESENT A SOLICITATION OR RECOMMENDATION BY FINARY TO BUY OR SELL ANY SECURITY OR ADOPT ANY INVESTMENT STRATEGY.
(b) FINARY PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SERVICES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE.
(c) ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
(d) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. FINARY MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
(e) IF YOU HAVE OPENED A BROKERAGE ACCOUNT, YOU MAY NOT HAVE READY ACCESS TO THAT ACCOUNT SHOULD THE SERVICES BECOME UNAVAILABLE. IN ADDITION, YOU MAY NOT HAVE ACCESS TO OR RECEIVE CUSTOMER SUPPORT FOR THE BROKERAGE ACCOUNT SHOULD THE SERVICES NOT BE AVAILABLE, OR YOU MAY RECEIVE CUSTOMER SUPPORT THAT IS NOT ACCURATE, COMPLETE, TIMELY, OR HELPFUL.
(f) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM FINARY OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
10.2 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT FINARY PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD FINARY PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. FINARY MAKES NO WARRANTY THAT THE INFORMATION, GOODS OR SERVICES PROVIDED BY THIRD PARTIES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS.
10.3 No Liability for Conduct of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICES. FINARY IS NOT RESPONSIBLE FOR AND DOES NOT CONTROL USER CONTENT. YOU UNDERSTAND THAT FINARY DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SERVICES AND THAT FINARY HAS NO OBLIGATION TO REVIEW OR MONITOR, AND DOES NOT APPROVE, ENDORSE OR MAKE ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO, USER CONTENT. YOU USE ALL USER CONTENT AND INTERACT WITH OTHER REGISTERED USERS AT YOUR OWN RISK.
10.4 Third-Party Materials. As a part of the Services, you may have access to materials that are hosted by another party. You agree that Finary is not responsible for evaluating such materials and that you access these materials at your own risk.
11. LIMITATION OF LIABILITY.
11.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL FINARY PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE, SECURITY, OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT FINARY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS THE SERVICES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (a) THE USE OR INABILITY TO USE THE SERVICES; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED, OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO, THROUGH THE SERVICES; (c) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (d) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; OR (e) ANY OTHER MATTER RELATED TO THE SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY OF A FINARY PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A FINARY PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A FINARY PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
11.2 Cap on Liability. TO THE FULLEST EXTENT PROVIDED BY LAW, FINARY PARTIES WILL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (a) $100; OR (b) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A FINARY PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A FINARY PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A FINARY PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
11.4 Exclusion of Damages. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
11.5 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN FINARY AND YOU.
12. MONITORING AND ENFORCEMENT. Finary reserves the right (but has no obligation) to: (a) remove or refuse to post any of your Content for any or no reason in our sole discretion; (b) take any action with respect to any of your Content that we deem necessary or appropriate in our sole discretion, including if we believe that such Content violates this Agreement, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Services or the public, or could create liability for the Finary; (c) disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy; (d) take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Services; and/or (e) terminate or suspend your access to all or part of the Services for any or no reason, including without limitation, any violation of this Agreement.
If Finary becomes aware of any possible violations by you of the Agreement, Finary reserves the right to investigate such violations. If, as a result of the investigation, Finary believes that unlawful activity has occurred, Finary reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Finary is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Services, including Your Content, in Finary’s possession in connection with your use of the Services, to (i) comply with applicable laws, legal process or governmental request; (ii) enforce the Agreement, (iii) respond to any claims that Your Content violates the rights of third parties, (iv) respond to your requests for customer service, or (v) protect the rights, property or personal safety of Finary, its Registered Users or the public, and all enforcement or other government officials, as Finary in its sole discretion believes to be necessary or appropriate.
13. TERM AND TERMINATION.
13.1 Term. The Agreement commences on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the Services, unless terminated earlier in accordance with the Agreement. Termination under this Section 13 will be subject to the termination provisions related to fees and payment terms found in the Fees and Payment Terms.
13.2 Prior Use. Notwithstanding the foregoing, you hereby acknowledge and agree that the Agreement commenced on the earlier to occur of (a) the date you first used the Services or (b) the date you accepted the Agreement, and will remain in full force and effect while you use any of the Services, unless earlier terminated in accordance with the Agreement.
13.3 Termination of Services by Finary. Finary is free to terminate (or suspend access to) your use of the Services for any reason in our discretion, including your breach of this Agreement. Finary has the sole right to decide whether you are in violation of any of the restrictions set forth in this Agreement. If we suspend your use of the Services, you may continue to access your Brokerage Account directly or through other services not hosted by us. Finary will not have any liability whatsoever to you for any suspension or termination.
13.4 Termination of Services by You. If you want to terminate the Services provided by Finary, you may do so by (a) notifying Finary at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to Finary’s address set forth below.
13.5 Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. Finary will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
13.6 No Subsequent Registration. If your registration(s) with, or ability to access, the Services, is discontinued by Finary due to your violation of any portion of the Agreement or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access the Services through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Services to which your access has been terminated. In the event that you violate the immediately preceding sentence, Finary reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
14. INTERNATIONAL USERS. The Services can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that Finary intends to introduce such Services or Content in your country. The Services are controlled and offered by Finary from its facilities in the United States of America. Finary makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.
15. DISPUTE RESOLUTION. Please read the following arbitration agreement in this section (“Arbitration Agreement”) carefully. It requires users to arbitrate disputes with Finary and limits the manner in which you can seek relief from us.
15.1 Applicability of Arbitration Agreement. You agree that any dispute, claim, or request for relief relating in any way to your access or use of the Website, to any products sold or distributed through the Website, or to any aspect of your relationship with Finary, will be resolved by binding arbitration, rather than in court, except that (a) you may assert claims or seek relief in small claims court if your claims qualify; and (b) you or Finary may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all disputes or claims and requests for relief that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.
15.2 Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your dispute or claim or request for relief to our registered agent Legalinc Corporate Services Inc., 651 N Broad Street, Suite 206, Middletown, DE 19709. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or request for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Finary will pay them for you. In addition, Finary will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for disputes, claims, or requests for relief totaling less than $10,000 unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
15.3 Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Finary. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
15.4 Waiver of Jury Trial. YOU AND FINARY HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Finary are instead electing that all disputes, claims, or requests for relief shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 15.1 (Application of Arbitration Agreement) above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
15.5 Waiver of Class or Other Non-Individualized Relief. ALL DISPUTES, CLAIMS, AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this section’s limitations as to a given dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the State or Federal Courts located in the State of Delaware. All other disputes, claims, or requests for relief shall be arbitrated.
15.6 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: [insert email address], within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Finary username (if any), the email address you used to set up your Finary account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
15.7 Severability. Except as provided in Section 15.5 (Waiver of Class or Other Non-Individualized Relief), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
15.8 Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Finary.
15.9 Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Finary makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Finary at the following address: 245 8th Ave #1053 New York, NY 10011.
16. THIRD-PARTY SERVICES.
16.1 Third-Party Websites, Applications and Ads. The Services may contain links to third-party websites, applications, and advertisements for third parties (“Third-Party Services”) or may, in some cases, integrate them with our Services. When you click on a link to or access or use a Third-Party Service, we will not warn you that you have left the Services and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Services are not under the control of Finary. Finary is not responsible for any Third-Party Services. Finary provides these Third-Party Services only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Services, or any product or service provided in connection therewith. You use all links in Third-Party Services at your own risk. When you leave our Services, this Agreement and our policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Services, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
16.2 App Stores. You acknowledge and agree that the availability of the Services is dependent on the third party from whom you received the Application license, e.g., the Apple App Store or Google Play (each, an “App Store”). You acknowledge that the Agreement is between you and Finary and not with the App Store. Finary, not the App Store, is solely responsible for the Services, including the Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Services, including the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with all terms of agreement imposed by the applicable App Store when using any aspect of the Services, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Agreement and will have the right to enforce it.
16.3 Accessing and Downloading the Application from iTunes. The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
(a) You acknowledge and agree that (i) the Agreement is concluded between you and Finary only, and not Apple, and (ii) Finary, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
(b) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
(c) In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Finary and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Finary.
(d) You and Finary acknowledge that, as between Finary and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(e) You and Finary acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Finary and Apple, Finary, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Agreement.
(f) You and Finary acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
(g) Without limiting any other terms of the Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
17. GENERAL PROVISIONS.
17.1 Electronic Communications. The communications between you and Finary may take place via electronic means, whether you visit the Services or send Finary e-mails, or whether Finary posts notices on the Services or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Finary in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Finary provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).
17.2 Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Finary’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
17.3 Force Majeure. Finary shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
17.4 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Services, please contact us at: email@example.com. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
17.6 Governing Law. THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF DELAWARE, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE AGREEMENT.
17.7 Notice. You must give notice to Finary at the following address: 245 8th Ave #1053 New York, NY 10011. Such notice shall be deemed given when received by Finary by letter delivered by nationally recognized overnight delivery service or first-class postage prepaid mail at the above address.
17.8 Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
17.9 Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
17.10 Export Control. You may not use, export, import, or transfer any aspect of the Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained or accessed the Services, and any other applicable laws. In particular, but without limitation, the Services may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By accessing or using the Services, you represent and warrant that (i) you 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 and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use Services for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Finary are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Finary products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
17.11 Consumer Complaints. In accordance with California Civil 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 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
17.12 Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
Important Disclosures Regarding
Finary has entered into an agreement with Alpaca Securities LLC (“Alpaca”) that enables Users of our Services to open Brokerage Accounts at Alpaca and trade securities through such accounts.
Alpaca is a registered broker-dealer based in San Mateo, California. Finary and Alpaca are independent parties. We do not have any ownership interest in Alpaca nor does Alpaca have any ownership interest in Finary. We do not receive any fees or other economic benefits from Alpaca if you choose to open a Brokerage Account with them.
Alpaca will provide execution services for trades in securities that you initiate. Alpaca does not provide investment advice or make investment recommendations. Therefore, any trading through a Brokerage Account at Alpaca will be on a self-directed basis.
You are not required to open a Brokerage Account at Alpaca. You may select any broker-dealer you wish for trading securities. However, we currently only have an agreement with Alpaca that enables use of our Services to transmit communications between you and your broker-dealer.
If you choose to open a Brokerage Account at Alpaca, you will need to submit to them information about yourself in order for Alpaca to meet its “Know Your Customer” requirements (“KYC Information”). Finary will assist you in collecting and transmitting such information. All decisions regarding whether or not to open a new Brokerage Account must be approved by Alpaca in its sole discretion. We do not participate in that decision. If Alpaca approves your application, you will enter into a separate agreement with Alpaca governing your Brokerage Account. That agreement will govern the fees and commissions you may pay to Alpaca.
Once you have opened a Brokerage Account at Alpaca, you can use our Services to communicate orders and other instructions to Alpaca, and to receive communications from Alpaca. Finary’s role will be limited to providing this communications service. Alpaca will be solely responsible for executing any trades through your Brokerage Account. In addition, Alpaca will be solely responsible for complying with various legal requirements applicable to your Brokerage Account, including without limitation, seeking best execution on your trades, segregating and protecting your assets, protecting your privacy rights as they relate to the Brokerage Account, issuing confirmations and statements, and maintaining all legally-required records regarding your Brokerage Account.
Finary is not a broker-dealer, nor are we an agent or representative of Alpaca. We have no authority to act for or bind Alpaca. Finary is not an investment adviser and we do not provide any advice or recommendations with respect to specific investments or investment strategies.
Investing in securities can entail significant risks. The value of your investments will fluctuate and in some cases you could lose all or a substantial portion of the principal you invested. Before investing through your Brokerage Account, make sure you understand the risks and costs involved with investing. When considering an investment decision or adoption of an investment strategy, carefully evaluate your objectives, your financial situation and your tolerance for the risks related to the investment or the investment strategy.
In order to use our Services to open a Brokerage Account at Alpaca and to transmit orders and instructions to Alpaca, you must authorize us to:
If you wish to open a Brokerage Account at Alpaca, please confirm that you are authorizing Finary to undertake these actions on your behalf by clicking the button below. Your authorization may be revoked at any time without penalty by contacting us at [INSERT CONTACT INFO]. However, if you revoke your authorization, you will no longer be able to use our Services to communicate with Alpaca.