“This Customer Agreement (“Agreement”) applies between Amakitu ApS, operating as Tradeworks ApS, Amagerfaelledvej 56, DK-2300 Copenhagen S, Denmark, (+45) 36 997 993, registration number/CVR# 35031227 (“Company”) regarding the software programme Tradeworks (“Product”).
If the Customer have objections to the terms and conditions stipulated hereto, the Customer shall not use the Product in any way. Downloading, installing and accessing to and use of the Product constitutes the Customer’s acceptance of these terms and conditions and any other legal notices and statements contained on the Company’s website or in the Operative Agreements.
This Agreement together with the End User License Agreement constitutes the Operative Agreements (“Operative Agreements”) as amended from time to time and set out the terms upon which the Company delivers the Product and Services to the Customer.
1.1. This Agreement is entered by and between the Company and the Customer.
1.2. The Company is registered in Denmark.
1.3. The Company offers a Product in which the Customer can create trading strategies which will be executed by the Customer’s own Broker/Bank according to the strategies created in the Product by the Customer.
1.4. The Operative Agreements shall govern all trading strategies created in the Product and shall be read carefully by the Customer. All actual trading will be executed by the Customer’s own Broker/Bank.
1.5. The Operative Agreements will commence on the date on which the Customer receives notice from the Company and will continue unless or until terminated by either party.
2. Interpretation of terms
2.1. In this Agreement:
(a) “Broker/Bank” shall mean the Broker or the Bank, which the Customer has chosen as the subject to execute the actual trading according to the strategies created by the Customer in the Product.
(b) “Dispute” shall mean either:
i. the conflict situation when the Customer reasonably believes that the Company as a result of any action or failure to act breaches one or more terms of the Operative Agreements; or
ii. the conflict situation when the Company reasonably believes that the Customer as a result of any action or failure to act breaches one or more terms of the Operative Agreements.
(c) “Instruction” shall mean an instruction given from the Product to the Customer’s Bank/Broker to execute an order.
(d) “Profile” shall mean the information regarding the Customer, which the Customer provides to the Company when registering a subscription for a license to the Product.
(e) “Product” shall mean the Product provided by the Company to the Customer as set out in clause 5.
(f) “Server” shall mean the Software program facilitating the Product. The program is used to send the Customer’s Instructions or requests.
(g) “Services” shall mean any of the Company’s webpages, Product, content, database and data.
(h) “Website” shall mean the Company’s website at www.tradeworks.io or such other website as the Company may maintain from time to time for access by customers.
2.2. All references to a statutory provision include references to:
(a) any statutory modification, consolidation or re?enactment of it, whether before or after the date of this Agreement, for the time being in force;
(b) all statutory instruments or orders made pursuant to it; and
(c) any statutory provision of which that statutory provision is a re?enactment or modification.
2.3. Words denoting the singular include the plural and vice versa; words denoting any gender include all genders; and words denoting persons include corporations, partnerships, other unincorporated bodies and all other legal entities and vice versa.
2.4. Unless otherwise stated, a reference to a clause, party or a schedule is a reference to respectively a clause in or a party or schedule to this Agreement.
2.5. The clause headings are inserted for ease of reference only and do not affect the construction of this Agreement.
3. Risk disclosure
3.1. The Company does not provide investment or trading advice.
3.2. Investments are not suitable for all investors and the Customer shall ensure that the Customer understands all the risks with regard to the chosen trading strategy and seek independent advice if necessary.
3.3. The Company is not under an obligation to assess the suitability of the strategy created and chosen by the Customer.
3.4. Any investment decision the Customer makes are solely at his or her own risk.
3.5. Foreign markets will involve different risks from the Customer’s home market. In some cases the risks will be greater. The Customer accepts this risk.
3.6. While using the Product to create trading strategies the Customer shall be responsible for the risks of financial losses caused by:
(a) Customer’s or Company’s hardware or software failure, malfunction or misuse;
(b) poor internet connection either on the side of the Customer or the Company or both;
(c) wrong settings in the Product;
(d) delayed updates;
3.7. In case of a force majeure event the Customer shall accept the risk of financial losses.
3.8. This paragraph do not disclose all the risks and other significant aspects of trading in financial markets. The Customer shall not deal using the Product unless the Customer understands the nature and extent of the Customer’s exposure to risk.
4. Profile activation
4.1. The Customer’s Profile and subscription will be activated by the Company giving notice to the Customer as soon as the Company has received all relevant information about the Customer.
5. The Product
5.1. The Company provides the Customer with a Product in which the Customer is able to create strategies for trading in the financial market. There will not be any actual trading with regard to the Product as the actual trading is executed by the Customer’s Broker/Bank.
5.2. The Product will, in accordance with the strategies created by the Customer, send Instructions to the Customer’s Broker/Bank who will execute the actual trading of the financial instrument requested by the strategy created by the Customer.
5.3. The Company shall send all Instructions on behalf of the Customer on an execution only basis. The Company is entitled to send Instructions notwithstanding that an Instruction may not be suitable for the Customer. The Company is under no obligation, unless otherwise agreed in the Operative Agreements, to monitor or advise the Customer.
5.4. With regard to the actual trading the Customer is responsible according to the agreement entered into by the Customer and the Customer’s Broker/Bank. The Company is under no circumstances responsible for actions with regard to actual trades, which is made by the Customer’s Broker/Bank.
5.5. The Company is never responsible for any actions with regard to the actual trading, the Customer’s strategy or any situations arising from here.
5.6. The Customer shall not be entitled to ask the Company to provide investment advice or to make any statements of opinion to encourage the Customer to create any particular strategy.
5.7. The Company may from time to time and at its discretion provide information in newsletters which it may post on its Website or provide to subscribers via its Website or otherwise. The Company will not be responsible for such information and the Company gives no representation, warranty or guarantee as to the accuracy, correctness or completeness, suitability or effect or consequences upon the Customer of such information. The information on the Company’s Website or newsletter is provided solely to assist the Customer to create the Customer’s own strategies and does not amount to investment advice or unsolicited financial promotions to the Customer.
6.1. In relation to any Instruction given from the Product to the Customer’s Broker/Bank the Company acts solely on behalf of the Customer and not as an agent on the Customer’s behalf.
6.2. If the Customer acts in relation to or on behalf of someone else, whether or not the Customer identifies that person, the Company shall not accept that person as an indirect customer and shall accept no obligation to that person, unless otherwise specifically agreed to in writing.
6.3. Any person or agent notified to the Company as being authorized by the Customer may request to the Company concerning the Product.
7. Personal data
7.1. The Company may use, store or otherwise process personal data provided by the Customer in connection with the provision of the Product.
7.2. If the Customer is an individual, the Company is obliged to supply the Customer, on request, with a copy of personal data which it holds about the Customer (if any).
7.3. The Customer agrees that the Company may pass data about the Customer, which the Customer has provided, to other companies in the Company’s group and to external companies in order for the Company to process and/or analyse the data as part of the provision of the Product to the Customer. If the Customer does not wish the Customer’s personal data to be used for such purposes, the Customer shall notify the Company in writing.
7.4. Such personal data may also be used for marketing purposes, or to conduct market research for the Company or other companies in its group that may use the personal data to bring to the attention of the Customer similar or supplementary products and services that may be of interest to the Customer and also to assist in the efficient provision of the Product. If the Customer does not wish the Customer’s personal data to be held for such purposes, the Customer shall notify the Company in writing.
7.5. Telephone conversations between the Customer and the Company may be recorded. All requests received by telephone will be binding as if received in writing. Any recordings shall be and remain the sole property of the Company and will be accepted by the Customer as conclusive evidence of the requests or conversations so recorded. The Customer agrees that the Company may deliver copies of transcripts of such recordings to any court, regulatory or government authority.
7.6. The Company protects the Customers personal data by using data security technology and using tools such as firewalls and data encryption. The Company restrict access to the Customers personal data at the Company offices so that only officers and/or employees who need to know the data have access to it.
8.1. The data, which the Company holds about the Customer, is confidential and will not be used for any purpose other than in connection with the provision of the Product.
8.2. Data of a confidential nature will be treated as such provided that such data is not already in the public domain. Data of a confidential nature will only be disclosed to any person other than an affiliate of the Company, in the following circumstances:
(a) where required by law or if requested by any regulatory authority or exchange having control or jurisdiction over the Company (or any respective associate);
(b) to investigate or prevent fraud or other illegal activity;
(c) to any third party in connection with the provision of the Product to the Customer by the Company;
(d) if it is in the public interest to disclose such information; or
(e) at the Customer’s request or with the Customer’s consent.
9. Consent to direct contact
9.1. The Customer expressly invites the Company, for the purpose of administering the terms of the Operative Agreements or otherwise marketing financial services and products, from time to time, to make direct contact with the Customer by telephone, fax, or otherwise.
9.2. The Customer consents to such communication and acknowledges that such communication would not be considered by the Customer as being a breach of any of the Customer’s rights under any relevant data protection and/or privacy regulations.
10. Complaints and Disputes
10.1. If any conflict situation arises when the Customer reasonably believes that the Company as a result of any action or failure to act breaches one or more of the Operative Agreements, the Customer has the right to lodge a complaint with the Company as soon as reasonably practicable after the situation has arisen.
10.2. A complaint shall include:
(a) name and surname of the Customer (or company name if the Customer is a legal entity);
(b) Customer’s login to the Product;
(c) details of when the conflict first arose (date and time in the Customer’s time zone);
(d) description of the conflict situation.
10.3. The Server log file is the most reliable source of information in a case of any Dispute.
10.4. The Company has the right to choose the method of dispute resolution at its sole discretion.
10.5. If the Customer is dissatisfied with the outcome of the investigation or with any action taken by the Company as a result thereof, the Customer may be able to refer the complaint to the Danish courts.
10.6. The Company shall not be liable to the Customer if for any reason the Customer has received less profit that the Customer had hoped for or has incurred a loss as a result of uncompleted action which the Customer had intended to complete.
11. Force Majeure
11.1. The Company may, in its reasonable opinion, determine that a force majeure event exists, in which case the Company will, in due course, take reasonable steps to inform the Customer.
11.2. A force majeure event includes without limitation: any act, event or occurrence (including, without limitation, any strike, riot or civil commotion, terrorism, war, act of God, accident, fire, flood, storm, interruption of power supply, electronic, communication equipment or supplier failure, civil unrest, statutory provisions, lock?outs) which, in the Company’s reasonable opinion, prevents the Company from providing the Product to the Customer.
11.3. If the Company determines in its reasonable opinion that a force majeure event exists (without prejudice to any other rights under the Operative Agreements) the Company may without prior written notice and at any time take any of the following steps:
(a) suspend or modify the application of any or all terms of the Operative Agreements to the extent that the force majeure event makes it impossible or impractical for the Company to comply with them; or
(b) take or omit to take all such other actions as the Company deems to be reasonably appropriate in the circumstances with regard to the Company, the Customer and other customers.
11.4. The Company shall not be liable to the Customer in respect of any direct, indirect, consequential or non?financial damage (emotional distress etc.).
12. Limitations of liability and indemnity
12.1. Nothing in the Operative Agreements will exclude or restrict any obligation or liability which the Company may have or owe to the Customer under any rules, nor any liability which the Company may incur under any rules in respect of a breach of any such obligation, nor will anything in the Operative Agreements require the Customer to indemnify or compensate the Company to any extent prohibited by any rules.
12.2. In the event the Company may provide advice, information or recommendations to the Customer, the Company shall not be responsible for the profitability of such advice, information or recommendations. The Customer acknowledges that the Company shall not, in the absence of its fraud, willful default or gross negligence, be liable for any losses, costs, expenses or damages suffered by the Customer arising from any inaccuracy or mistake in any information given to the Customer including, without limitation, information relating to any Instructions.
12.3. The Company will not be liable for any loss or expense incurred by the Customer in connection with, or directly or indirectly arising from:
(a) any error or failure in the operation of the Product;
(b) strategies or Instructions made via the Product or by telephone;
(c) any failure by the Company to perform any of its obligations under the Operative Agreements as a result of a cause beyond its control; or
(d) the acts, omissions or negligence of any third party.
12.4. The Customer shall indemnify the Company and keep the Company indemnified on demand in respect of all liabilities, costs, claims, demands and expenses of any nature whatsoever which the Company suffers or incurs as a direct or indirect result of any failure by the Customer to perform any of the Customer’s obligations under the Operative Agreements.
12.5. The Company shall in no circumstances be liable to the Customer for any direct losses, consequential, special or indirect losses, loss of profits, loss of opportunity (including in relation to subsequent market movements), costs, expenses or damages the Customer may suffer in relation to the Operative Agreements.
13. Price, payment and right of cancellation.
13.1. All prices are stated in Euro (€) and includes VAT for Customers residing in the European Union. The VAT rate depends on the country the Customer resides in.
13.2. The Company is entitled to adjust prices for the Customer’s subscription without further notice.
13.3. Unless the Customer has terminated the Agreement according to phase 14.2, the Company will automatically at the beginning of each billing cycle transfer the fee according to the type of the Customer’s subscription from the Customer’s bank account – as informed by the Customer when creating the Customers Profile – to the Company’s bank account.
13.4. The Company will provide receipts for all subscription payment via email or available for download in the Product.
13.5 The first subscription payment is subject to a 14 days right of cancellation. Logging into the Product using the Customer’s individual username and password is considered taking the product into use and the right of cancellation is void.
13.6. Late payments shall be deemed a material breach of the Agreement justifying the Company to terminate this Agreement.
13.7. Unless specifically agreed to in writing all payments from Customer to Company are final.
13.8. If the Customer would like to change the registered payment method the Customer shall contact the Company and ask for the payment method to be reset. Customer may then choose a new payment method inside the Product.
14. Amendment and termination
14.1. The Customer acknowledges that the Company has the right to modify the terms of the Operative Agreements at any time.
14.2 The Customer may terminate this Agreement with immediate effect at the end of the Customer’s current billing cycle by giving the Company written notice.
14.3. The Company may terminate this Agreement with immediate effect by giving the Customer written notice.
14.4. Any such termination will not affect any obligation which has already been incurred by either the Customer or the Company in respect of any Instructions to the Customers Broker/Bank.
15. Governing law and jurisdiction
15.1. This Agreement and other legal matters shall be governed by, and construed in accordance with the laws of Denmark.
15.2. With respect to any proceedings, the Customer irrevocably:
(a) agrees that the courts of Denmark shall have exclusive jurisdiction to determine any proceedings,
(b) submits to the jurisdiction of Danish courts,
(c) waives any objection which the Customer may have at any time to the bringing of any proceedings in any such court, and
(d) where the Operative Agreements are issued in a language other than English, the English language version shall take precedence in the event of any conflict.
16.1. The Company has the right to suspend the Customer’s Profile at any time for any good reason with or without notifying the Customer in writing.
16.2. The Company has the right to at any time to upgrade or/and change/delete or modify the Product.
16.3. The Company has the right to use any information given by the Customer with regard to making statistics, rapports etc. regarding performance, strategies etc.
16.4. In the event that a situation arises that is not covered under the Operative Agreements, the Company will resolve the matter on the basis of good faith and fairness and, where appropriate, by taking such action as is consistent with market practice.
16.5. No single or partial exercise of, or failure or delay in exercising any right, power or remedy (under these terms or at law) by the Company shall constitute a waiver by the Company of, or impair or preclude any exercise or further exercise of, that or any other right, power or remedy arising under the Operative Agreements or at law.
16.6. Any liability of the Customer to the Company under the Operative Agreements may in whole or in part be released, compounded, compromised or postponed by the Company in its absolute discretion without affecting any rights in respect of that or any liability not so waived, released, compounded, compromised or postponed. A waiver by the Company of a breach of any of the terms of the Operative Agreements or of a default under these terms does not constitute a waiver of any other breach or default and shall not affect the other terms. A waiver by the Company of a breach of any of the terms of the Operative Agreements or a default under these terms will not prevent the Company from subsequently requiring compliance with the waived obligation.
16.7. The rights and remedies provided to the Company under the Operative Agreements are cumulative and are not exclusive of any rights or remedies provided by law.
16.8. The Company may assign the rights and obligations of the Operative Agreements to a third party completely or in part provided that such assignee agrees to abide by the terms of the Operative Agreements. Such assignment shall come into effect ten business days following the day the Customer is deemed to have received notice of the assignment.
16.9. If any term of the Operative Agreements (or any part of any term) shall be held by a court of competent jurisdiction to be unenforceable for any reason then such term shall, to that extent, be deemed severable and not form part of the operative Agreements, but the enforcability of the remainder of Operative Agreements shall not be affected.
16.10. The Customer may not assign, charge or otherwise transfer or purport to assign, charge or otherwise transfer the Customer’s rights or obligations under the Operative Agreements without prior written consent of the Company and any purported assignment, charge or transfer in violation of this term shall be void.
17. Representations and warranties
17.1. The Customer represents and warrants to the Company, and agrees that each such representation and warranty is deemed repeated each time the Customer gives an Instruction or Request by reference to the circumstances prevailing at such time, that:
(a) the information provided by the Customer to the Company regarding opening a personal Profile and in regard to the Operative Agreements and at any time thereafter is true, accurate and complete in all material respects;
(b) the Customer has read and fully understood the terms of the Operative Agreements;
(c) the Customer is duly authorised to enter into the Operative Agreements, to give Instructions and requests and to perform its obligations thereunder;
(d) the Customer acts as principal;
(e) the Customer is an individual who has completed an application to open a Profile or, if the Customer is a company, the person who has completed the application to open the Profile on the Customer’s behalf is duly authorized to; and
(f) all actions performed under the Operative Agreements will not violate any regulations applicable to the Customer or to the jurisdiction in which the Customer is resident, or any agreement by which the Customer is bound or by which any of the Customer’s assets are affected.
18.1. The Customer acknowledge reading this Agreement, understanding it, and agree to be bound by its terms and conditions.
18.2. The Company reserves the right to amend, revise, modify, and/or change the Operative Agreements at any time. Should the Company decide to make any changes, such changes shall be incorporated into the Company revised Operative Agreements and communicated to the Customer.