Terms and Conditions
of INCLUDE Information Technologies Gmbh, AUSTRIA (“Include Gmbh”)
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 https://agenatrader.com/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.
You are agreeing to be legally bound by the Terms. We may change the Terms from time to time without notice, so be sure to check this page regularly. Whenever you are installing AgenaTrader by the first time or a new release of AgenaTrader, you will be prompted to accept the Terms and Conditions, which might contain changes.
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.
Definition of ‘Contractual Partner’ in terms of lifetime license and version update authorization:
The person who has purchased a license to the AgenaTrader trading platform through the AgenaTrader/TradersYard E-Shop or through a manually issued invoice.
3) Warranty, Liability, Disclaimer
3) Warranty, liability, exclusion of liability, limitation of liability
a) In the case of defects, the client has the right to demand that such defects be remedied by subsequent performance. In the event that the subsequent performance fails, the client may reduce the remuneration or, in the case of serious defects, withdraw from the contract.
b) YOU ACKNOWLEDGE AND AGREE THAT Include Information Technologies (AgenaTrader), ITS BRANCHES AND SUBSIDIARIES, LICENSORS, BOARD MEMBERS, EMPLOYEES AND REPRESENTATIVES ASSUME A MAXIMUM LIABILITY LIMIT OF 100.– EUROS FOR DAMAGES, BE THESE PUNITIVE, INDIRECT, SPECIAL, CONSEQUENTIAL OR EXEMPLARY, INCLUDING BUT NOT LIMITED TO DAMAGE COMPENSATION DUE TO LOSSES OR LOST PROFITS (DIRECT OR INDIRECT), THE REPUTATION OF THE COMPANY OR THE PERSON, DATA, COMPANY VALUE, SUBSTITUTION OF GOODS OR SERVICES OR OTHER INTANGIBLE LOSSES THAT ARISE AS A RESULT OF THE USE OR INABILITY TO USE THE SERVICES OR THE SOFTWARE; UNAUTHORIZED ACCESS OR THE MANIPULATION OF YOUR DATA; ALL CHANGES THAT Include Information Technologies GmbH MAKES TO THE SERVICES OR THE SOFTWARE; OR ALL OTHER POSSIBLE DAMAGE ARISING IN CONNECTION WITH THE SERVICE OR THE SOFTWARE. SOME COUNTRIES DO NOW ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR TERMS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, NEGLIGENCE, BREACH OF CONTRACT OR VIOLATION OF THE IMPLIED TERMS, THUS THE LIABILITY IS LIMITED TO THE EXTENT PRESCRIBED BY THE LAW UNLESS OPPOSED BY MANDATORY STATUTORY PROVISIONS.
c) For damages or losses arising due to malfunction on the part of AgenaTrader, e.g. in connection with the use of AgenaTrader (Mercury, Neptune) or AgenaTrader++ (Andromeda, Discovery, Galaxy, Universe) or due to the use of a free or additionally purchased Add-On i.e. package (erroneous order sizes, misrouted trades, mistakenly opened positions, orders that are not deleted, deviating display of order/position between the broker and AgenaTrader… to name just a few), INCLUDE Information Technologies GmbH again assumes a maximum liability of 100.– euros.
The fully automated trading via AgenaTrader++ and related risk/order size calculations, entry, stop and target placements are also at the risk and peril of the user and are therefore outside the responsibility of the manufacturer and is hereby explicitly mentioned again.
The client is obliged to permanently synchronize his or her positions, trades, orders, order executions with his or her broker so as to be able to correct any potential malfunction of the software in the running positions or open orders.
The user also recognizes that in particular with the use of AgenaTrader++, running orders and positions are automatically synchronized when AgenaTrader is restarted and that this can lead to inconsistencies due to transmission problems on the part of the broker, which have to be manually corrected.
- aa) When using synthetic orders, the behavior of the respective data feed depends on which price quotes are delivered.
- bb) If the data provider delivers so-called bad ticks that result in trades being opened or closed or orders placed in the market being executed, this is the responsibility of the user, since AgenaTrader cannot interpret this kind of bad ticks as such.
- cc) Similarly, bad ticks can have an effect on the behavior of AT++ stop methods and can lead to stop calculations that do not correspond to the real market behavior.
d) Furthermore, the user of AgenaTrader recognizes that potential malfunction of the software shall be reported exclusively to the support section of INCLUDE Information Technologies GmbH and may not be posted in public forums. Massive failure to comply and permanently damaging behavior may result in recission or discontinuation of the license.
e) If, due to errors in the technical processing, orders placed by the client cannot be executed in a timely manner, the client is obliged to comply with the following practices:
- First of all, Include GmbH must immediately be informed of the erroneous processing as soon as the client becomes aware of it or detects it. Any instructions from Include GmbH that serve to repair or minimize the damage must also be followed by the client
- If the client is able to avert or minimize a damage through his or her own actions from the point in time of becoming aware of or detecting it, then he or she is obliged to take these actions of his or her own initiative. This includes, for example, the renewing of orders deleted due to technical errors or the placing of new orders by which a damage is averted or reduced. This obligation of the client is a duty to mitigate damages, and failure to comply leads to the lapse of liability on the part of Include GmbH.
f) Furthermore, the user of AgenaTrader or the visitor of AgenaTrader.com recognizes that for damages that are caused by one of our partners (broker, sales, education partner…) in any form (erroneous signals from the Add-Ons, damages due to a lack of educational knowledge being passed on, damages arising in the partner’s asset management, …), Include Information Technologies can in no way be held liable for this.
g) The use of cloud services such as GoogleDrive, SkyDrive, DropBox can lead to synchronization problems that are not within AgenaTrader’s area of responsibility. Installation problems or erroneous behavior of the software are frequently caused by this circumstance and are therefore outside the scope of any liability.
The use of cloud services such as SkyDrive, GoogleDrive, DropBox or similar cloudware can lead to massive problems in the data synchronization of the various computers. Support efforts concerning cloudware, e.g. detection of the cause, removal of the fault and so on, are always subject to a fee.
INCLUDE Information Technologies Gmbh provides the AgenaTrader software and documentation as a download available on www.agenatrader.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) LifeTime License Version Update
A LifeTime license includes a free version update, i.e. if security updates, improvements and functional enhancements are carried out within a version, the contractual partner only has the right to update to the next higher version (see point 2 Conclusion of contract). E.g. a user has the Mercury version and functions are changed and/or improved within the Mercury version, then the user has the possibility on this new version an update to accomplish. If completely new functions are developed, it is the responsibility of INCLUDE Information Technologies GmbH to include these functions in a version, or to make them available as AddOn, AddIn or upgrade version (higher version, e.g. Mercury based). The update to this new release is controlled via the license server by means of an activation code (either directly on the platform or if not available, by e-mail), which is delivered to the contract partner.
8) 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.agenatrader.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.
9) Use of function-specific information
You agree that INCLUDE Information Technologies GmbH and its directly affiliated companies save information about your use of the service and use this for the purposes of an internal function-tracking analysis. No personal or trading-related data is used in this process, but exclusively function-specific data that serves the purpose of evaluation with regards to the frequency of these functions in order to be able to make deductions about the importance of maintenance costs and further developments.
- 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.
11) Tools and features with external data sources
In some features and tools that are integrated into AgenaTrader, EOD screener, futures calendar, business calendar, COT report and so on (incomplete sample from features list), AgenaTrader makes use of external data sources from the freely accessible internet.
With external data sources, it may occur that the data format or the interface changes, or that the interface or the entire service is actually completely shut down by the respective operator; this is not within the control of Include IT/AgenaTrader.
These features/tools offer added value; however, there is no entitlement on the part of the user that, in the event of a massive change or a complete shutdown of the supplier of the data, the respective service is maintained in AgenaTrader.
In the event of a change to the interface, Include IT/AgenaTrader guarantees to –insofar as possible – adapt the software to the altered circumstances as quickly as possible and to provide the users with a new release. However, if the data supply sources are no longer accessible from within the trading platform, this may lead to the affected feature/tool having only limited availability or being completely removed from the platform.
12) Termination of contract
a) Rental license: A rental license runs as long as the user meets his monthly or quarterly payments in time. If the user no longer requires the rental license, the rental licensee shall 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, INCLUDE Information Technologies GmbH reserves the right to reimburse the user for the purchase costs of the software and to discontinue the license in the event of any conduct damaging the reputation of the software or INCLUDE Information Technologies GmbH. This is done by including a monthly discount of 2% of the license costs – Trader Packages/AddOn remain excluded. The Contractor, however, has the right to have a lifetime license shut down/deactivated, without the right of a refund of license fees/license costs. The Contractor hereby releases himself from all rights and obligations in connection with the licence.
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 event of extraordinary or ordinary termination of the contract, the customer undertakes in any case to immediately delete all purchased software products of INCLUDE Information Technologies GmbH and no longer to use them. In this case, the activation key will be deactivated by INCLUDE Information Technologies GmbH.
d) A possible transfer of software licenses to another user was prejudiced by the ECJ judgement of 3.7.2012, C-128/11 and is equipped with all legal consequences of a private selling/transfer between the new licensee (license user) and the original licensee (license seller). Should an activation key (license key) nevertheless be passed on, this will happen outside of the General Terms and Conditions guidelines (see 10.1.a). For INCLUDE Information Technologies, the original buyer remains the contractual owner and thus the contractual relationship between the license seller and INCLUDE Information Technologies is maintained. For the new licensee, the right to server-side license changes, free ticket and e-mail support, free software updates, possible liability claims expires. This means that all rights and obligations associated with the license and software according to the General Terms and Conditions remain with the contractual license holder. The contractual licensee can only release himself from the contract with consideration of paragraph 12. b) of the General Terms and Conditions.
ATTENTION: In any case, the legal contractual owner, i.e. the license seller, remains liable to INCLUDE Information Technologies GmbH, even in the event of a transfer and a possible misuse by a subsequent new licensee.
Please inform yourself about this judgement (see here…) in order to avoid legal missteps
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.
14) Right of revocation
Every purchase made via the online shop under www.AgenaTrader.com is subject to Austrian i.e. EU law.
In Austria, the consumer rights directive was implemented in particular in the form of the non face-to-face and distance selling law (FAGG). Several provisions were included directly into the Austrian consumer protection law (KSchG).
Based on (§ 11 FAGG), you have the right to revoke a contract concluded via our online shop without stating reasons within fourteen days. The revocation period is fourteen days from the day on which you or a third party other than the carrier and indicated by you have/has received the goods by means of email receipt of the activation key or of the invoice. In the case of a purchase contract of several goods that you have ordered within one single order, and that we have delivered to you separately, the revocation period is fourteen days from the day on which you or a third party other than the carrier and indicated by you have/has taken the last product into your possession.
The customer confirms that he/she has been instructed of the content, the requirements and the consequences of the legal right of revocation for consumers based on the consumer rights directive of the EU (abbr. “FAGG”). In order to exercise the right of revocation (§ 13 FAGG), you acknowledge that you must inform us (Include Information Technologies GmbH, Schottenring 16/2, 1010 Wien, Austria, email: email@example.com) of your decision to revoke this contract by means of an explicit declaration (e.g. a letter sent by post or an email). The customer is aware that he/she can use the attached standard withdrawal form, but that this is not mandatory.
Please use the withdrawal form further down. To keep the revocation period, it is sufficient for you to send your notification of your exertion of the right of revocation before the expiry of the revocation period. For mailings, the day of the postmark will be used.
The directive does not apply to B2B business. Therefore, there is no similar legal right of withdrawal of this kind in the B2B area.
Consequences of the revocation
If you revoke a contract concluded via our online shop under www.AgenaTrader.com within the revocation period, we are obliged to pay back to you all payments that we have received from you, including the delivery costs (with the exception of the additional costs that result from you selecting a different kind of delivery other than the cheapest standard delivery offered by us), immediately and at the latest within fourteen days from the day on which we received the notification of your revocation of this contract. For this reimbursement, we use the same means of payment that you used for the original transaction, unless something else was explicitly agreed upon with you; under no circumstances will you be charged a fee due to this reimbursement. As soon as we receive the declaration of revocation from you within the legal 14-day period of revocation, we immobilize the license immediately.
When you observe the time periods, you receive the confirmation of the revocation within 3 days. In the case of a violation of the revocation criteria, you will also be informed by us in writing with the reason for the rejection of the revocation.
The period is granted when you send off the goods before the expiry of the period of fourteen days.
If you received the software not via the online route, but in the form of a package sent by us, you bear the direct costs of sending back the goods. If the goods cannot be sent back normally with the post due to their nature and the delivery was made to the home of the customer at the time of the conclusion of the contract, we will pick up the goods at our expense. You only have to pay for a potential loss in value of the goods if this loss of value can be traced back to a result of handling other than what is necessary to ascertain the nature, properties and functioning of the goods.
Exclusion of the right of revocation
The right of revocation does not exist or expires for distance contracts.
- Upon delivery of audio or video recordings or computer software in a sealed package, if the seal was removed after the delivery,
- For a contract concerning digital content not located on a data carrier, if we have made this available to use, and if you acknowledged and explicitly consented that we can carry out the provision and that you lose your right of revocation upon complete provision.
You can find the form for the revocation according to § 13 FAGG here.
15) Complaints/customer service/support
Complaints by the customer are to be directed to INCLUDE Information Technologies GmbH, Schottenring 16/2, 1010 Wien, AUSTRIA. The customer service can also be reached under the address given in sentence 1.
Inquiries regarding the software or application problems can be sent by post, by means of a letter, and via our email and forum support.
With the purchase of a license, there is a free support option via the previously mentioned media, as long as the licensee is in lawful possession of the AgenaTrader or AddOn license.
The free forum and email support rendered takes place solely on a technical basis. Within the first month after purchase of the license, the licensor is obliged to make the support available. After that, it is a voluntary commitment on our part toward the licensee – but there is no legal claim to this. Support that is subjectively perceived by the customer as inadequate can never be challenged as non-fulfillment of the contract.
The use of cloud services such as SkyDrive, GoogleDrive, DropBox or similar cloudware can lead to massive problems in the data synchronization of the various computers. Support efforts concerning cloudware, e.g. detection of the cause, removal of the fault and so on, are always subject to a fee.
In its own interest, however, Include Information Technologies GmbH will implement the respective customer support to our best knowledge and possibilities, and endeavors to provide the support based on the service times of the following website:
The support expires in the case that www.AgenaTrader.com is taken down from the internet, or if the license is no longer in the possession of the licensee due to revocation, termination or transfer of the license.
TraderPackages / AddOns from 3rdParty providers:
If the TraderPackages / Addons come from the IT-Department of Include-IT / AgenaTrader, the conditions mentioned in 14) apply. However, if the intellectual property of the components is not the responsibility of the IT department of INCLUDE Information Technologies GmbH, then the respective publisher of the software is responsible for the functionality of the package / add-on.
Among all others, this includes all add-ons of these manufacturers that are listed under the following link and the following pages of this link:
In case of problems with components of these manufacturers, it can happen that the user is forwarded to the respective partner.
To clarify: In such a case the AgenaTrader store is only the sales channel and is to be seen as e.g. the Amazon Store, Google Play, etc., where products are offered, but in are the manufacturer responsibility (in terms of function, liability and support) of the respective producer. Due to the inexperience of the function and the source code, INCLUDE Information Technologies GmbH is not able to analyze these products and to pass on information about them. The contracting party for these products is not INCLUDE Information Technologies GmbH, but the partner who distributes this product via the AgenaTrader / TradersYard-Shop through us.
Include IT can understandably not assume any responsibility for the use of packages/add-ons that do not appear in this list due to the impossibility of quality controls, and full responsibility for the correctness and functioning of these third-party components passes to the user.
16) Information from third-party websites/events/technologies:
These are components and information events created by independent vendors that are not members of Include IT GmbH’s staff. To the extent such third parties or their technologies provide opinions, recommendations, or signals regarding the purchase or sale of securities, you understand that such opinions, recommendations, and signals are expressed by the third party and are not the opinions or recommendations of Include IT GmbH/AgenaTrader. The third-party information or technology and/or website and/or add-ons does not constitute a recommendation by Include IT GmbH/AgenaTrader to invest in securities or to pursue an investment strategy. The presence of these aforementioned technologies and our consent to a connection through our technology, website or trading platform does not constitute any representation, warranty or other guarantee by us as to the present or future value or suitability of any sale, trade or other transaction involving any particular security or other investment. The existence of such information, tools and services provided by the third party and/or its technologies does not constitute an endorsement by the third party and/or its technologies.
17) 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.
18) 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.