Terms and Conditions of
INCLUDE Information Technologies Gmbh, AUSTRIA
The following provisions regulate – in combination with the conditions contained in the order form – the contractual relationship between INCLUDE Information Technologies Gmbh and the user of AgenaTrader Software, hereinafter referred to as the customer.
Include Gmbh generally only enters into a contract on their own terms and conditions; deviating conditions of the contractual partner are only valid if Include Gmbh expressly consents to these in written form.
These terms and conditions are available for inspection in their respective valid version and can be viewed on the internet under http://www.tradeescort.com/en/terms-and-conditions/. With the conclusion of the contract according to point II, the following terms and conditions are deemed as agreed between Include Gmbh and the respective customer.
2) Conclusion of Contract
Only a natural person or legal entity as well as a company entered in the company register and without legal personality can be a customer of Include Gmbh. Include Gmbh is entitled to demand and collect all necessary information about the identity and creditworthiness as well as the legal and contractual capability of the customer as well as the proof of the existence of power of signature or of representation.
Furthermore, upon the request of Include Gmbh, the customer must declare an inland mailing address as well as an inland paying agent.
The offers of INCLUDE Information Technologies Gmbh are without obligation or commitment. The customer’s order is obligatory as soon as INCLUDE Information Technologies Gmbh receives it. If INCLUDE Information Technologies Gmbh accepts the offer, an order confirmation will be sent. As soon as the customer receives the order confirmation, the contract becomes valid.
3) Warranty, Liability, Disclaimer
a) In the case of product defects it is the customer’s right to request supplementary performance. If the supplementary performance fails, the customer may decrease the compensation or choose to resign from the contract.
b) You acknowledge and agree that Include Information Technologies (TradeEscort), its branches and subsidiaries, licensors, board members, employees and representatives assume no liability for damages, whether punitive, indirect, specific, consequential or exemplary damages, including but not limited to compensation due to losses or lost profits (direct or indirect), reputation of the company or the person, data, goodwill, replacement of goods or services or other intangible losses that arise from the use or the impossibility of use of the services or the software; unauthorized access or the manipulation of its data; all changes that Include Information Technologies makes to the services or to the software; or all other possibilities of damage that arise in connection with the service or the software.
In some countries, the exclusion of certain warranties or conditions or the limitation or the exclusion of liability for incidental or consequential damages, negligence, breach of contract or violation of the implied terms is not provided for, therefore the liability, provided there are NO mandatory statutory regulations that dictate otherwise, is limited to the extent provided by the law.
c) INCLUDE Information Technologies Gmbh is – not – liable for damages or losses that occur due to an AgenaTrader malfunction (wrong order sizes, wrongly routed trades, incorrectly opened positions, orders not deleted, order discrepancies between the broker and AgenaTrader… to name a few), e.g. in connection with the use of AgenaTrader (Lite, Base) or AgenaTrader++ (Andromeda, Discovery, Galaxy, Universe) or through the use of a free or purchased Add-On (package). The customer is obligated to permanently compare his or her positions, trades, orders, and order executions in AgenaTrader with the broker in order to be able to correct potential software malfunctions in the running positions or open orders.
The user also acknowledges that, especially when using AgenaTrader++, running positions and orders are automatically synchronized upon restarting AgenaTrader, and that transmission problems on the part of the broker can occur. This can lead to inconsistencies that have to be corrected manually.
By using synthetic Orders the behavior of orders depends on the specific data feed. If the data provider sends so called false ticks and thereby trades will be opened or closed or orders pending orders are executed, it’s in the responsibility of the user, since AgenaTrader is not able interpret such ticks as faulty ticks.
d) Furthermore, the AgenaTrader user acknowledges that potential software malfunctions should be reported only to the INCLUDE Information Technologies Gmbh support service and that it is forbidden to publish these in any public forum.
f) Should it occur that, due to errors in technical processing, orders placed by the customer are not carried out in a timely manner, then the customer is obliged to observe the following practices:
aa.) First of all, Include Gmbh must be informed immediately upon awareness or recognition of the defective processing. In any event, the customer must comply with any instructions issued by Include Gmbh that serve to repair or reduce damage.
bb.) If the customer is in a position to avert or minimize damages through his or her own actions from the point of awareness or recognition, then he or she is obliged to undertake these actions of his or her own initiative. This includes, for instance, the renewal of orders deleted by technical errors or the placement of new orders through which damages can be averted or reduced. These obligations of the customer form the customer’s duty to mitigate damages, the non-observance of which leads to Include Gmbh being released from liability.
LIMITATION OF LIABILITY:
IN NO EVENT SHALL Include-IT Gmbh/AgenaTrader, ITS LICENSORS, OR ANYONE ELSE WHO HELPED CREATE, PRODUCE OR DELIVER THIS SITE, BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA) ARISING OUT OF OR RELATED TO THE USE OF OR INABILITY TO USE THIS SITE, WHETHER IN AN ACTION UNDER CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF MultiInclude-IT Gmbh/AgenaTrader Charts HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Include-IT Gmbh/AgenaTrader’S TOTAL LIABILITY FOR ALL CLAIMS ARISING FROM OR RELATING TO THESE TERMS OR USE OF THIS SITE SHALL NOT EXCEED ONE HUNDRED DOLLARS (US$100). SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
INCLUDE Information Technologies Gmbh provides the AgenaTrader software and documentation as a download available on www.TradeEscort.com. After receipt of payment, the customer will be provided with the corresponding access authorization codes, password and license key for activating the AgenaTrader software in the functionalities ordered by the customer.
5) Access authorization
The customer is responsible for protecting the authorization codes, passwords and license key sent to him or her. In particular, the customer is not authorized to provide third parties with access to AgenaTrader software by passing on personal authorization codes, passwords or license keys. The customer commits to store his or her data securely and to take all necessary precautions to prevent this data from falling into the hands of a third person. In the case of loss of authorization codes and/or password or suspicion of third party user access or knowledge of data, the customer is obligated to inform INCLUDE Information Technologies Gmbh immediately. This information can be sent by email, fax or ordinary mail, according to the customer’s wishes.
The customer is liable without limitation for damages resulting from delivery or publication of the authorization codes/password to third party users.
6) Use by the customer
One AgenaTrader software license authorizes the customer to run the license on one workspace. Using one license key on multiple workspaces or on various virtual machines at the same time is not permitted.
If you have purchased a broker-sponsored AgenaTrader version that allows trading only with the sponsor, and you then purchase an upgrade to a higher version of AgenaTrader or if you buy an Add-On to AgenaTrader, this does not mean that you also acquire the functionalities of the sponsored version. If for some reason the version sponsored by the broker is cancelled, you must purchase the functionalities of the sponsored version to continue using AgenaTrader. Above all, the purchase of an upgrade version based on a sponsored broker version does – not – include the right to the MultiBrokerage functionality.
Please be sure to read the terms and conditions of the respective broker in detail. By confirming these terms and conditions, you also accept the broker’s AgenaTrader-specific terms and conditions.
7) Quality agreement
AgenaTrader is a software application that offers a general frame for various possibilities of stock analysis. With the software it is possible to combine and evaluate different analysis techniques in a standardized form. With AgenaTrader it is also possible to identify trend signals for stocks as well as purchase or sale signals. INCLUDE Information Technologies Gmbh is not responsible or liable for the accuracy of these signals and does not provide any guarantee of success. Similarly, INCLUDE Information Technologies Gmbh is not liable for the accuracy of strategies, signals, stop and target components provided on www.TradeEscort.com by INCLUDE Information Technologies Gmbh or any other third party tool provider in the web shop.
If the customer uses stock analyses created with the help of the software or other named components to aid his or her decision to buy or sell, he or she assumes full responsibility for this. The results of the AgenaTrader software are in no way a replacement for the customer’s independent decisions about the purchase and sale of stocks.
a) INCLUDE Information Technologies Gmbh (license provider) provides the customer (license user) with the non-exclusive, non-conferrable right to use the software and documentation during the purchased time of use.
b) The authentication of the authorization of use is controlled by a license component that is part of the INCLUDE Information Technologies Gmbh system control. The license user must be able to connect to this server. If AgenaTrader cannot connect with the server over a time period of two weeks, starting from the first failed attempt to connect, the license provider handles this as an intentional blocking of the license check and deactivates the software to the functionality of the free version. However, the license user has the possibility to correct this problem with Include Information Technologies Gmbh, after which the software is reactivated.
c) The customer is permitted to make copies of the provided software for backup purposes only. INCLUDE Information Technologies Gmbh receives all rights to each copy as long as these are not transferred to the customer. The customer is permitted to use the software for the supported and appropriate purposes on his or her DV workspace.
d) An AgenaTrader software license authorizes the customer to use the software on one workspace. Operating this software on multiple workspaces at the same time is not permitted.
e) INCLUDE Information Technologies Gmbh retains all ownership rights to the software, even if the customer alters it or creates a connection with his or her own or any other third party software.
f) Upon termination of contract, the customer is obligated to irretrievably delete or destroy all copies of the software in his or her possession including the documentation.
9) Termination of contract
a) Rental license: a rental license will be active as long as the customer fulfills his or her monthly or quarterly payments within the agreed time. If the rental license is no longer needed by the user, then the rental licensee must ensure that the license subscription is cancelled. If the subscription is cancelled or payment is not received from the user, the license will be deactivated once the purchased period ends. If the rental licensee later on decides to obtain a purchased lifetime license, then rent amounts already paid are – not – credited towards the purchase price.
b) Lifetime licenses: In principle, with the purchase of an AgenaTrader lifetime license, the customer receives the right to use this license for life. However, in the case of reputation-damaging behavior towards the software or towards INCLUDE Information Technologies Gmbh, then INCLUDE Information Technologies Gmbh retains the right to refund the purchase costs of the software to the user (excl. trader packages) and to deactivate the license.
c) INCLUDE Information Technologies Gmbh reserves the right to premature termination without previous notice of the user relationship with the customer for significant reasons for which the customer is responsible, in this case the customer shall have no claim to reimbursement for fees already paid.
Extraordinary reasons for termination are, in particular, the violation of obligations according to point V by the customer as well as other significant reasons under the control of INCLUDE Information Technologies Gmbh or the customer.
Furthermore, INCLUDE Information Technologies also reserves the right to revoke any contract with three months’ notice without stating reasons. In this case, however, INCLUDE Information Technologies Gmbh is obliged to reimburse the customer for fees paid thus far. The customer is excluded from any claim to compensation beyond this.
In the case of extraordinary or ordinary termination of the contract, the customer is obliged by all means to immediately delete all acquired software products of INCLUDE Information Technologies Gmbh and to no longer use these.
d) According to legal regulations, LifeTime licenses are transferable to other users, i.e. can be passed on, with all legal consequences between the new licensee (licensee) and the original licensee (license seller), since the contractual relationship between the license seller and INCLUDE Information Technologies Gmbh does not change as a result and the contractual partner for the licensee is the license seller. Therefore the right to free ticket and email support and potential liability claims remains with the license seller. By means of a fee-based full transfer of the license to the new licensee by INCLUDE Information Technologies Gmbh, the licensee obtains the right to complete LifeTime ticket and email support. Please send inquiries about the costs of the transfer to info@TradeEscort.com. Regarding licenses, rental licenses cannot be transferred to another user, but must be terminated and subscribed to by the other user..
The customer is informed that INCLUDE Information Technologies Gmbh saves customer-specific data in electronic form for contract administration, accounting and statistical evaluation purposes.
11) Right of rescission
If the customer is also the user, he or she has the right of rescission of his or her order within two weeks. The rescission must be declared to INCLUDE Information Technologies Gmbh Markersdorf 91, 3040 Neulengbach, AUSTRIA.
The right of rescission expires once INCLUDE Information Technologies Gmbh, with the consent of the customer, has begun implementation of installation of the AgenaTrader software or has begun by starting the corresponding data retrieval, or if the customer has arranged for this implementation himself or herself.
12) Claims/customer support
Claims by the customer must be sent to INCLUDE Information Technologies Gmbh Markersdorf 91, 3040 Neulengbach, AUSTRIA. The customer support is also available at the address provided in sentence 1.
13) Severability clause
If parts of this contract are not in correspondence with existing law, the contract is still applicable and the remaining provisions are still valid.
14) Concluding provisions
a) For contracts with retailers, legal entities of public law and publicly legal special property, the place of execution for delivery and payment as well as the place of jurisdiction is agreed upon as Vienna. The place of jurisdiction for all legal disputes with Include Gmbh is the locally competent court for commercial matters with jurisdiction in the dispute amount according to the respective registered office of Include Gmbh at the time of the respective underlying contractual agreement.
b) For all legal relationships of entities, Austrian law is applicable with exclusion of the UN commercial law (CISG). As long as there are no opposing mandatory statutory regulations according to the residency status of the customer, then Austrian law is valid.