End-user license agreement for FOREXTrader for Windows© SOFTWARE
1. SCOPE OF THIS AGREEMENT. This End-User License Agreement is made between GAIN Capital Group, LLC ("Company") and you ("User") governing your installation and use of the ForexTrader ("Software") by completing the registration process to open and hold a foreign currency trading account with Company. This Agreement protects both the installation and usage of the Software and any and all associated software components, media, user guides, and training or education materials, whether in electronic or paper form (collectively the "Software Product") entered into when you complete the registration process to open said account with Company.
2. RELATIONSHIP TO GAIN CAPITAL AND GAIN CAPITAL SERVICES.
If you have a foreign currency trading account with GAIN Capital, you are a GAIN Capital customer and ForexTrader is an "electronic service" within the meaning of GAIN Capital's Customer Agreement. Your use of ForexTrader is subject to the provisions of the Customer Agreement you executed with the Company in order to open a trading account with Company. You acknowledge and attest that ForexTrader, as an electronic advice, is not intended to provide investment, tax or legal advice. ForexTrader is proprietary to Company and is protected by intellectual property laws and international intellectual property treaties. User's access to ForexTrader is licensed and not sold.
In the event a conflict arises between the rights and obligations conferred by this License Agreement and the Customer Agreement, the Customer Agreement will prevail. If you do not have a foreign currency trading account with Company, you are not a Company customer, and you acknowledge and agree that GAIN Capital owes you no duties and has made no representations of any kind whatsoever to you other than as may be set forth expressly in this Agreement. You also acknowledge and agree to the following terms and conditions:
* By making ForexTrader available to you, Company is not providing you with any investment, tax or other form of advice, and ForexTrader's sole purpose.
* Should you open a foreign currency trading account with Company in the future, your use of ForexTrader will be governed by the Customer Agreement and this License Agreement.
* Your use of ForexTrader will be in a manner not inconsistent with applicable laws and regulations;
* ForexTrader incorporates market data and other information (collectively "Market Data") that GAIN Capital receives from our agents, vendors or partners ("Third Party Providers"). GAIN Capital does not endorse or approve the Market Information and makes it available to you only as a service and convenience. GAIN Capital and our Third Party Providers do not (1) guarantee the accuracy, timeliness, completeness or correct sequencing of the Market Information, or (2) warrant any results from your use or reliance on the Market Information. Market Information may quickly become unreliable for various reasons including, for example, changes in market conditions or economic circumstances. Neither GAIN Capital nor the Third Party Providers are obligated to update any information or opinions contained in any Market Information, and we may discontinue offering Market Information at any time without notice. You agree that neither GAIN Capital nor the Third Party Providers will be liable in any way for the termination, interruption, delay or inaccuracy of any Market Information. You will not redistribute or facilitate the redistribution of Market Information, nor will you provide access to Market Information to anyone who is not authorized by GAIN Capital to receive Market Information.
* User agrees that from time to time, ForexTrader may be inaccessible or inoperable for any reason, including, without limitation: (a) equipment (hardware) malfunctions, (b) software malfunctions, (c) periodic maintenance procedures or repairs which Company may undertake from time to time, or (d) causes beyond the reasonable control of Company or which causes are not reasonably foreseeable by Company. Company is not responsible, directly or indirectly, for the performance and/or reliability of the Third Party Providers or User's Internet Service Provider ("ISP").
* User shall be solely responsible for providing, maintaining and ensuring compatibility with the Software, all hardware, electrical and other physical requirements for 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. ELECTRONIC SIGNATURE AND DELIVERY. ForexTrader includes important disclosures and information that are associated with ForexTrader's electronic content and services. When you click "I agree" below you will be signing and consenting to signing ForexTrader License Agreement electronically and to electronic delivery of the disclosures and information contained in ForexTrader.
4. OTHER EFFECTS OF YOUR SIGNATURE BELOW. By clicking "I agree" below, you will also confirm your understanding, acceptance and receipt of ForexTrader License Agreement and its terms and conditions and you will acknowledge and demonstrate that you can access ForexTrader and the other electronic disclosures and information associated with the Software Product. This is required in order to install ForexTrader. We will be creating an electronic record that you have downloaded ForexTrader, are using it, and that you have agreed to the terms of the ForexTrader License Agreement. If you do not agree to the terms of this Agreement, do not install or use ForexTrader and select "Cancel" below.
5. GRANT OF LICENSE. GAIN Capital grants you a non-exclusive, non-transferable license to install and use a copy of ForexTrader in multiple computers running a validly licensed copy of Windows© for which GAIN developed and designed ForexTrader. You acknowledge that GAIN Capital has granted this license to you for mutual consideration. This license is restricted to your personal use or if user is a corporate entity for the use of its employees in the course of each individual's employment for the limited purposes described in the user's guide and any training materials. This license permits you to make one copy of ForexTrader for backup or archival purposes only. Any copying and/or redistribution or alternatively facilitating in redistribution of ForexTrader is strictly prohibited without the prior express written consent by Company. You are acquiring no right to use, and shall not use, without GAIN Capital's prior written consent, the terms or existence of this Agreement, the names, characters, artwork, designs, trade names, copyrighted materials, trademarks or service markets of GAIN Capital, its affiliates, agents, vendors and licensors. ForexTrader is provided in object code form only.
6. RESTRICTIONS ON USE. You shall not (a) use, copy, merge, make derivative works of or transfer copies of the Software Product, except as specifically authorized in this Agreement; (b) use the backup or archival copy of the Software Product (or permit any third party to use such copy) for any purpose other than to replace the original copy in the event that it is destroyed or becomes defective; (c) rent, lease, sublicense, distribute, transfer, copy, modify or timeshare the Software Product or any of your rights under this Agreement, except as expressly authorized in this Agreement; (d) provide unauthorized third parties with access to or use of the Software Product; (e) reverse engineer, disassemble, decompile or otherwise attempt to access the source code of the Software Product, except and only to the extent that such activity is expressly permitted by applicable law; or (f) use the Software Product after any expiration, termination or cancellation of this Agreement or the license granted in Grant of License Section set herein.
7. OWNERSHIP. The Software Product is licensed, not sold, to you for use only upon the terms of this Agreement, and GAIN Capital and its vendors, licensors or suppliers reserve all rights not expressly granted to you. GAIN Capital retains ownership of all copies of the Software Product. The Software Product is protected by U.S. copyright laws and international treaties, and the unauthorized reproduction or distribution thereof is subject to civil and criminal penalties. All title and intellectual property rights in and to the content which may be accessed through use of the Software Product is the property of the respective content owner(s) and may be subject to their terms and conditions.
8. SUPPORT SERVICES. GAIN Capital or its agents may provide you with support services related to the Software Product ("Support Services"). Any supplemental software code or other materials provided to you as part of the Support Services shall be considered part of the Software Product and subject to the terms and conditions of this Agreement. With respect to technical information you provide to GAIN Capital as part of the Support Services, you agree and acknowledge that GAIN Capital may use such information for its business purposes, including for product support and development for which you will make no claim. GAIN Capital will not utilize such technical information in a form that personally identifies you.
9. GENERAL DISCLAIMERS. Foreign Exchange and other leveraged products involves significant risk of loss and is not suitable for all investors. You should make sure that you understand the risks involved, seeking independent advice if necessary. Increasing leverage increases risk. Contracts for Difference (CFDs) and spot commodities are not available for US residents. Before deciding to participate in the Forex market, you should carefully consider your investment objectives, level of experience and risk appetite. Most importantly, do not invest money you cannot afford to lose. There is considerable exposure to risk in any off-exchange foreign exchange transaction, including, but not limited to, leverage, creditworthiness, limited regulatory protection and market volatility that may substantially affect the price, or liquidity of a currency or currency pair. Moreover, the leveraged nature of forex trading means that any market movement will have an equally proportional effect on your deposited funds. This may work against you as well as for you. The possibility exists that you could sustain a total loss of initial margin funds and be required to deposit additional funds to maintain your position. If you fail to meet any margin requirement, your position may be liquidated and you will be responsible for any resulting losses. To manage exposure, employ risk-reducing strategies such as 'stop-loss' or 'limit' orders. There are risks associated with using an Internet-based trading system including, but not limited to, the failure of hardware, software, and Internet connection. FOREX.com is not responsible for communication failures or delays when trading via the Internet. FOREX.com employs backup systems and contingency plans to minimize the possibility of system failure, and trading via telephone is always available.
Any opinions, news, research, analysis, prices, or other information are provided as general market commentary, and do not constitute investment advice. FOREX.com is not liable for any loss or damage, including without limitation, any loss of profit, which may arise directly or indirectly from use of or reliance on such information. FOREX.com has taken reasonable measures to ensure the accuracy of the information. The content is subject to change at any time without notice.
The charts, data, information, reference to any events or trends and opinions in this report are for general information use or illustrative purposes only and are not intended as an offer or solicitation to any product offered. There is no guarantee that any event or trend is likely to be repeated or that profits will be or are likely to be achieved. FOREX.com is not rendering investment, legal, or tax advice. You should consult with appropriate counsel or other advisors on all these matters.
While the information contained herein was obtained from sources believed to be reliable, author does not guarantee its accuracy or completeness, nor does author assume any liability for any direct, indirect or consequential loss that may result from the reliance by any person upon any such information or opinions. All information and opinions contained in this report are subject to change without notice.
10. TERM AND TERMINATION. The term of this Agreement and the license granted to you will continue until it is terminated as provided in this Section. Without prejudice to any other rights GAIN Capital may have, the license granted under this Agreement will terminate automatically in the event you violate any provision of this Agreement or if you or Company terminates your relationship with GAIN Capital by closing your trading account. You may terminate or cancel the license granted by discontinuing use of the Software Product and providing GAIN Capital with written notice. In the event of termination, for any reason, you shall delete the Software Product from your computer(s) and either destroy any tangible media containing the Software Product or return it to GAIN Capital. You understand that GAIN Capital may discontinue technical and customer support for this Software Product at any time without any recourse by you.
11. DISCLAIMER OF WARRANTIES. THE SOFTWARE PRODUCT IS PROVIDED "AS IS" WITHOUT ANY WARRANTY OF ANY KIND. ALL WARRANTIES ARE DISCLAIMED, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT THE SOFTWARE PRODUCT'S FUNCTIONS WILL MEET YOUR REQUIREMENTS OR THAT ITS OPERATION WILL BE UNINTERRUPTED OR ERROR FREE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE PRODUCT IS WITH YOU. THIS DISCLAIMER APPLIES TO AND IS FOR THE BENEFIT OF GAIN Capital Group, LLC, ITS AFFILIATES, AGENTS, VENDORS AND LICENSORS.
12. LIMITATION OF LIABILITY. To the maximum extent permitted by applicable law, in no event shall GAIN Capital, its affiliates, agents, vendors or licensors be liable to you or any third party for any damages of any kind, including but not limited to punitive, exemplary, special, incidental, indirect or consequential damages (for example, loss of personal or business profits, business interruption, loss of business information or any other pecuniary loss) arising out of the use of or inability to use the Software Product or the provision of or failure to provide Support Services. This limitation applies even if GAIN Capital has been advised of the possibility of such damages and regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise.
13. GENERAL. You acknowledge and agree that each provision of this Agreement
that provides for a disclaimer of warranties or an exclusion or limitation of damages represents an express allocation of risk, and is part of the consideration of this Agreement.
a. Amendment. Company shall have the right, at any time and without prior written notice to or consent from User, to add to or modify the terms of this Agreement, simply by delivering such amended terms to User by e-mail at the address provided to Company by User or by requiring the User to accept an updated Agreement upon accessing the Software/Service. User's access to or use of the Software/Service after the date such amended terms are delivered to User shall be deemed to constitute acceptance of such amended terms.
b. Waiver. No waiver of any term, provision or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other term, provision or condition hereof, whether or not similar, nor shall such waiver constitute a continuing waiver of any such term, provision or condition hereof. No waiver shall be binding unless executed in writing by the party making the waiver.
c. Severability. If any provision of this Agreement is determined to be illegal or unenforceable, then such provision shall be enforced to the maximum extent possible and the other provisions shall remain fully effective and enforceable.
d. Notice. All notices shall be in writing and shall be deemed to be delivered when sent by first-class mail or when sent by facsimile or e-mail to either parties' last known post office, facsimile or e-mail address, respectively. User hereby consents to notice by e-mail. All notices shall be directed to the parties at the respective addresses given above or to such other address as either party may, from time to time, provide to the other party.
e. Governing Law. This Agreement is made in and shall be governed by the laws of the State of New York without reference to any conflicts of laws. You agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated exclusively in the state and federal courts located in New York, New York. GAIN Capital's affiliates, agents, vendors and licensors are intended third party beneficiaries of this Agreement.
f. Dispute Resolution. Any and all disputes relating to or arising out of this Agreement including, but not limited to, the arbitrability and the validity of this Agreement shall be resolved by binding arbitration in New York, New York.
g. Force Majeure. If the performance of any part of this Agreement by either party is prevented, hindered, delayed or otherwise made impracticable by causes beyond the reasonable control of either party, that party shall be excused from such performance to the extent that it is prevented, hindered or delayed by such causes.
h. Entire Agreement. This Agreement constitutes the complete and exclusive statement of the agreement between the parties with respect to the Software/Service and supersedes any and all prior or contemporaneous communications, representations, statements and understandings, whether oral or written, between the parties concerning the Software/Service.