This service agreement (Agreement) is made between Key to Markets Limited (the Company) and any person (User) who installs MARKET CYCLE ANALYST (Software) and/or completes the registration process to open and maintain an account using the Software.

BY CLICKING THE ACCEPTANCE BUTTON OR ACCESSING, USING OR INSTALLING ANY PART OF THE SOFTWARE, THE USER EXPRESSLY AGREES TO AND CONSENTS TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT. IF THE USER DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THE BUTTON INDICATING NON-ACCEPTANCE MUST BE SELECTED AND THE COMPANY SHALL PROMPTLY CANCEL THIS TRANSACTION AND THE USER MAY NOT ACCESS, USE OR INSTALL ANY PART OF THE SOFTWARE. THIS AGREEMENT IS APPLICABLE FOR ALL RELEASED VERSIONS OF THE SOFTWARE INCLUDING, BUT NOT LIMITED TO BETA VERSIONS. THIS AGREEMENT MAY BE AMENDED FROM TIME-TO-TIME AT THE SOLE DISCRETION OF THE COMPANY. THE COMPANY SHALL PROVIDE NOTICE TO USER OF AMENDMENTS BY POSTING THE UPDATED TERMS OF SERVICE ON THE COMPANY’S WEBSITE. THE USER SHALL HAVE THE OPPORTUNITY TO REFUSE SAID AMENDMENTS SOLELY BY REQUESTING TERMINATION OF ACCESS TO THE SOFTWARE.

AGREED TERMS
  1. Definitions

    1. The definitions in this clause apply in this License.

      Business Day a day other than a Saturday or Sunday when banks in London are open for business.
      Intellectual Property Rights patents, utility models, rights to inventions, copyright and related rights, trade marks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.
      Maintenance Release release of the Software that corrects faults, adds functionality or otherwise amends or upgrades the Software, but which does not constitute a New Version.
      New Version any new version of the Software which from time to time is publicly marketed and offered for purchase by the Company in the course of its normal business, being a version which contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product.
      Software the computer program called Market Cycle Analyst and any Maintenance Release.
  2. License & USE

    1. In consideration of the Fees paid by the User to the Company, the Company grants to the User a non-exclusive non-transferable License to use the Software.

    2. The Software is a charting tool and a market analysis application involving, but not limited to, stocks, futures, exchange traded funds, mutual funds, single stock futures, options, foreign exchange, forex, and currencies.

    3. In relation to scope of use:

      1. the User has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Software in whole or in part.

      2. the User acknowledges that the Company provides no warranties in respect of Vendor and/or Broker Platform software and/or service and the User shall indemnify and hold the Company harmless against any loss or damage which it may suffer or incur as a result of the User’s breach of any such software and/or services howsoever arising.

      3. the User is solely responsible for any and all errors, acts and omissions that occur under the User’s account or password, and the User, directly or indirectly, agrees not to engage in, facilitate, or encourage any unacceptable use of the Software which unacceptable, including without limitation,:

        1. disseminate, store or transmit unsolicited messages, chain letters or unsolicited commercial e-mail;
        2. disseminate or transmit material that, to a reasonable person may be considered abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening or malicious;
        3. disseminate, store or transmit files, graphics, software or other material that actually, impliedly, or potentially infringes the Intellectual Property Rights of any third party;
        4. create a false identity or to otherwise attempt to mislead any third party as to the identity or origin of any communication;
        5. distribute, re-distribute or permit transfer of content in violation of any export or import law and/or regulation or restriction of the United Kingdom and its agencies or authorities, or without all required approvals, licenses or exemptions;
        6. interfere, disrupt or attempt to gain unauthorised access to other accounts using the Software or any other computer network;
        7. disseminate, store or transmit viruses or any other malicious code or program; or
        8. engage in any other activity deemed by the Company, in its sole discretion, to be in conflict with the spirit or intent of this License.
      4. the Company may treat the User’s breach of any Vendor and/or Broker Platform terms as a breach of this License.

    4. The Company may record the Users internet protocol address to prevent any misuse of the Software.

    5. The User shall not:

      1. sub-license, assign or novate the benefit or burden of this License in whole or in part;

      2. allow the Software to become the subject of any charge, lien or encumbrance; and

      3. deal in any other manner with any or all of its rights and obligations under this agreement.

    6. Each party confirms it is acting on its own behalf and not for the benefit of any other person.

    7. The User shall:

      1. ensure that the number of persons using the Software does not exceed 1.

      2. notify the Company as soon as it becomes aware of any unauthorized use of the Software by any person.

    8. The User agrees that from time to time, the Software may be inaccessible or inoperable for any reason, including, without limitation: (i) equipment (hardware) malfunctions, (ii) software malfunctions, (iii) periodic maintenance procedures or repairs which the Company may undertake from time to time, or (iv) causes beyond the reasonable control of the Company or which causes are not reasonably foreseeable by the Company. The Company is not responsible, directly or indirectly, for the performance and/or reliability of Broker Platforms, system, equipment or otherwise, or the User’s internet service provider (ISP”). The Company does not guarantee that the Software will always be available or be uninterrupted and that all internet transmissions sent using the Software will be received.

    9. The User shall be solely responsible for providing, maintaining and ensuring compatibility with the Software, all hardware, software, electrical and other physical requirements for the User’s use of the Software including, without limitation, telecommunications and internet connection(s), ISP, web browsers and/or other equipment, programs and services required to access and use the Software.

  3. security of user’s system

    1. The User shall be solely responsible for the security, confidentiality and integrity of all messages and the content that the User receives, transmits through or stores via the Software or on any computer or related equipment that is used to access the Software. The User shall be solely responsible for any authorised or unauthorised access to the User’s account by any person, entity, partnership, organization, association or otherwise.

    2. The User must treat all user identification code, password or other piece of information as part of our security procedures as confidential and must not be disclosed to any third party.

    3. The Company has the right to disable any user identification code or password, whether chosen by the User or allocated by the Company, at any time, if in the Company’s reasonable opinion the User has failed to comply with any of the provisions of these License.

  4. Maintenance releases

    1. The Company will provide the User with appropriate Maintenance Releases generally made available to its customers subscribing to the same edition of the Software as the User The User shall install all Maintenance Releases as soon as reasonably practicable after receipt.

    2. The User’s entitlement to upgrades shall be limited to the specific edition of the Software for which the User is licensed.

  5. Fees

    1. All sums payable under this License are exclusive of VAT or any relevant local sales taxes, for which the User shall be responsible.

    2. In the event that the User is provided with use of Software through a third-party reseller , the User shall pay the appropriate fees to the Company.

    3. If the User fails to make any payment due to the Company under this agreement by the due date for payment, then, without limiting the Company’s remedies under clause 10, the User shall pay interest on the overdue amount at the rate of 2% per month. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The User shall pay the interest together with the overdue amount.

    4. If the User fails to pay any amount due as set out in this License, the Company may, at its sole discretion, immediately suspend or terminate this License and the User’s access to the Software.

  6. Company’s warranties

    1. The Company does not warrant that the use of the Software will be uninterrupted or error-free.

    2. The User accepts responsibility for the selection of the Software to achieve its intended results and acknowledges that the Software has not been developed to meet the individual requirements of the User. The User acknowledges that there is a risk in trading financial products and that assets may be lost and are not insured.

    3. All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this License or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.

  7. user warranties

    1. The User represent and warrants to the Company that:

      1. The User is over the age of eighteen (18) and has the power and authority to enter into and perform the User’s obligations under this License;

      2. all information provided by the User to the Company is truthful, accurate and complete; and

      3. the User is the authorised signatory of the credit/debit card provided to the Company to pay all fees due pursuant to this License.

  8. Limits of liability

    1. Except as expressly stated in clause 8.2:

      1. the Company shall not in any circumstances have any liability for any losses or damages which may be suffered by the User (or any person claiming under or through the User), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:

        1. special damage even if the Company was aware of the circumstances in which such special damage could arise;
        2. loss of profits;
        3. loss of anticipated savings;
        4. loss of business opportunity;
        5. loss of goodwill;
        6. loss or corruption of data,

provided that this clause

a shall not prevent claims for loss of or damage to the User’s tangible property that fall within the terms of clause

b or any other claims for direct financial loss that are not excluded by any of categories (i) to (vi) inclusive of this clause a;

      1. the total liability of the Company, whether in contract, tort (including negligence) or otherwise and whether in connection with this License or any collateral contract, shall in no circumstances exceed a sum equal to the fees paid by the User in a 12 month period; and

      2. the User agrees that, in entering into this License, either it did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in this License or (if it did rely on any representations, whether written or oral, not expressly set out in this License) that it shall have no remedy in respect of such representations and (in either case) the Company shall have no liability in any circumstances otherwise than in accordance with the express terms of this License.

    1. The exclusions in clause 6.3 and clause 8.1 shall apply to the fullest extent permissible at law, but the Company does not exclude liability for:

      1. death or personal injury caused by the negligence of the Company, its officers, employees, contractors or agents;

      2. fraud or fraudulent misrepresentation;

      3. any other liability which may not be excluded by law.

    2. The Company shall under no circumstances be liable to the User for any losses or damages which may be suffered by the User (or any person claiming under or through the User), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) for any matter arising from or related to the User’s inability to use the Software due to the User’s ISP.

    3. The Company shall not be obliged to take any steps to prevent or correct any illegal, abusive or otherwise inappropriate activity performed by any user of the Software nor is the Company obliged to archive or otherwise maintain other reproduction of the content that appears or is transmitted on the software for future reference.

    4. The Company shall not be liable for any action or inactions in respect of any content displayed on the Software. The Company is not responsible for compliance, or lack thereof, by any user with respect to any applicable laws and regulations applying to such user and the User shall indemnify and hold the Company harmless against any loss or damage which it may suffer or incur as a result of the User’s breach of any such laws and regulations.

  1. Intellectual property rights

    1. The User acknowledges that all Intellectual Property Rights in the Software and any Maintenance Releases belong and shall belong to the Company or the relevant third-party owners (as the case may be), and the User shall have no rights in or to the Software other than the right to use it in accordance with the terms of this License.

    2. The Company undertakes at its own expense to defend the User or, at its option, settle any claim or action brought against the User alleging that the possession or use of the Software (or any part thereof) in accordance with the terms of this License infringes the UK Intellectual Property Rights of a third party (Claim) and shall be responsible for any reasonable losses, damages, costs (including legal fees) and expenses incurred by or awarded against the User as a result of or in connection with any such Claim. For the avoidance of doubt, clause 9.2 shall not apply where the Claim in question is attributable to possession or use of the Software (or any part thereof) by the User other than in accordance with the terms of this License, use of the Software in combination with any hardware or software not specified by the Company if the infringement would have been avoided by the use of the Software not so combined, or use of a non-current release of the Software.

    3. If any third party makes a Claim, or notifies an intention to make a Claim against the User, the Company’s obligations under clause 9.2 are conditional on the User:

      1. as soon as reasonably practicable, giving written notice of the Claim to the Company, specifying the nature of the Claim in reasonable detail;

      2. not making any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of the Company (such consent not to be unreasonably conditioned, withheld or delayed);

      3. giving the Company and its professional advisers access at reasonable times (on reasonable prior notice) to any documents and records within the power or control of the User, so as to enable the Company and its professional advisers to examine them and to take copies (at the Company’s expense) for the purpose of assessing the Claim; and

      4. subject to the Company providing security to the User to the User’s reasonable satisfaction against any claim, liability, costs, expenses, damages or losses which may be incurred, taking such action as the Company may reasonably request to avoid, dispute, compromise or defend the Claim.

    4. If any Claim is made, or in the Company’s reasonable opinion is likely to be made, against the User, the Company may at its sole option and expense:

      1. procure for the User the right to continue to use the Software (or any part thereof) in accordance with the terms of this License;

      2. modify the Software so that it ceases to be infringing;

      3. replace the Software with non-infringing software; or

      4. terminate this License immediately by notice in writing to the User and refund part of any fees paid by the User as at the date of termination (less a reasonable sum in respect of the User’s use of the Software to the date of termination) on return of the Software and all copies thereof,

provided that if the Company modifies or replaces the Software, the User shall have the same rights in respect thereof as it would have had under those clauses had the references to the date of this License been references to the date on which such modification or replacement was made.

    1. Notwithstanding any other provision in this agreement, clause 9.2 shall not apply to the extent that any claim or action referred to in that clause arises directly or indirectly through the possession or use of any Broker Platform or through the breach of any Broker Platform or Vendors terms by the User.

    2. This clause 9 constitutes the User’s exclusive remedy and the Company’s only liability in respect of Claims and, for the avoidance of doubt, is subject to clause 8.1.

  1. Indemnity

    1. The User shall indemnify the Company against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Company arising out of or in connection with:

      1. any breach by the User of the terms of this License; or

      2. the enforcement of the terms of this License.

    2. This indemnity shall apply whether or not the User has been negligent or at fault.

  2. termination

    1. The User may terminate this License for any reason upon providing the Company with not less than thirty (30) days prior written notice.

    2. The Company may with immediate effect by giving written notice to the User for any reason:-

      1. terminate this License;

      2. remove or disable access to all or any part of the Software; or

      3. suspend the User’s access to or use of all or any part of the Software.

    3. Termination or expiry of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.

    4. On termination for any reason:

      1. all rights granted to the User under this License shall cease;

      2. the User shall cease all activities authorised by this License; and

      3. the User shall immediately pay to the Company any sums due to the Company under this License.

  3. Waiver

No failure or delay by the Company 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.

  1. Remedies

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.

  1. Entire agreement

    1. This License sets out the whole agreement between the parties relating to the subject matter hereof and supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter.

    2. Each party acknowledges that, in entering into this License, it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a party to this License or not) (Representation) other than as expressly set out in this License.

    3. Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract.

    4. Nothing in this clause shall limit or exclude any liability for fraud.

  2. Variation

No variation of this License shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

  1. Severance

    1. If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.

    2. If any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

  2. Third-party rights

A person who is not a party to this agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement, but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act.

  1. No partnership or agency

    1. Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.

    2. Each party confirms it is acting on its own behalf and not for the benefit of any other person.

  2. Force majeure

The Company shall not be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for 4 weeks, the User not affected may terminate this License by giving 14 days’ written notice to the Company.

  1. Notices

    1. Any notice given to a User under or in connection with this License shall be in writing and shall be:

      1. delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case);

      2. sent by fax to its main fax number; or

      3. sent by e-mail.

    2. Any notice given to the Company under or in connection with this License shall be in writing and shall be:

      1. delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case);

      2. sent by fax to its main fax number.

    3. Any notice shall be deemed to have been received:

      1. if delivered by hand, on signature of a delivery receipt;

      2. if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting;

      3. if sent by fax, at 9.00 am on the next Business Day after transmission;

      4. if sent by e-mail, at time of transmission.

    4. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

  2. Governing law and jurisdiction

    1. 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.

    2. The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).