A. CLIENT PORTAL SYSTEM ("SYSTEM") USE AGREEMENT
This System Use Agreement ("Agreement") is made between the legal entity and/or person ("Client" and "User") who accesses or on whose behalf has been given access to this System ("System") and StratValue LLC ("StratValue").StratValue' is a registered trademark
System as defined in clause 1.2 below is provided by StratValue.
The Agreement and the Client Portal Disclaimer (see section B, "Client Portal Disclaimer") are legally binding. By clicking the <LOGIN> button or any of the Tools and Services links in this website, or by signing this Agreement, you warrant and represent that you are duly authorized yourself or by Client to enter into this Agreement on your or on Client's behalf and to use System and the Tools and Services provided through System, and that your accepting these terms and conditions in this manner shall give rise to a binding agreement between Client and StratValue upon the terms in this Agreement.
1. License to use System and provision of research, analysis and management tools and services ("Tools and Services")
1.1. StratValue has developed certain extranet websites and software for the purpose of providing to Client certain Tools and Services.
1.2. StratValue grants to Client and Client accepts, a non-exclusive, non-transferable license to access and use such extranet websites, software and/or Tools and Services as StratValue may offer to Client and Client may accept from time to time for Client's internal business purposes and not for any other purpose, and StratValue agrees to provide through System such research, analysis and management tools and services as StratValue may offer to Client and Client may accept from time to time, on the terms and subject to the conditions set out in this Agreement.
2. Tools and Services
2.1. The Tools and Services may comprise any or all of the following elements (all below listed terms linked with StratValue ® are registered trademarks as well):
- Links to Research, Market Information, Compliance, Education, Custody and Banking Systems
- Tools for analysis (StratValue Scoring, StratValue Value Scoring and StratValue Growth Scoring)
-Tools for information and data processing (StratValue Asset Allocator, StratValue Calculator and StratValue Finance Concepts)
- Management Tools (StratValue Client Relationship Management System or StratValue CRM)
-Information Services (StratValue Encyclopedia)
2.2. The functionality of System and each Tool and Service may be added to, amended or with-drawn and new Tools and Services introduced by StratValue in its complete discretion from time to time. Prior to any change, StratValue may, in its complete discretion, notify Client of such change. Client will not be entitled to continue to receive any Tool and/or Service which has been with-drawn by StratValue. Following any change, Client's continued use of System and Tools and Services will be deemed to constitute deemed acceptance of such change.
2.3. StratValue will not notify Client of any amendment to the Agreement it deems necessary. StratValue will post any amended version on the System. Client must accept the amended version of the Agreement prior to using System. If Client does not agree with such amendments, it should not accept the amended version of the Agreement and must discontinue the use of System.
3. Clients and Users, Privacy and Confidentiality
3.1. Client has notified StratValue of the Client name and number of Client's persons ("Users") that Client has selected to have access to the System. Client hereby represents and warrants to StratValue that
- such Users shall be authorized to access and use System on behalf of Client
- such Users are experienced and knowledgeable regarding Tools and Services they access
-Client shall be bound by and accountable for each User's acts and omissions in using System
- in using System, Users will at all times be acting within the scope of their authority
Client agrees to promptly notify StratValue of any change to the authority or status of Users and acknowledges that StratValue may rely exclusively on the number of the Users notified by Client to StratValue in granting access to System on behalf of Client.
Upon receipt of Client's web based subscription form StratValue shall allow Client to administer usernames and passwords within the range of the paid subscription. Notwithstanding the foregoing, StratValue retains the right, in its complete discretion, to deny any user access to System. Passwords will continue in force until terminated by StratValue, changed by User or expire automatically after the paid subscription expires. StratValue may provide replacement username(s) and password(s) at any time as it thinks fit. Client shall take, and procure that Users take all reasonable steps to protect the security of such username(s) and password(s) and prevent any person who is not a User from accessing and/or using System. For the avoidance of doubt, each username and password is strictly confidential to and shall only be used by the User to whom it is issued and is not transferable. Unauthorized persons cannot be Client and/or Users.
In order for Client to access certain Tools and Services, StratValue may recommend or require, or the parties may agree between them, that Client notifies StratValue of Client's IP address (es). Client agrees to notify StratValue immediately if any such IP address is changed during the subscription period. StratValue is entitled to rely upon IP addresses notified to StratValue by Client are correct at all times in order for StratValue to arrange and supply access to Client to selected Tools and Services. Client acknowledges that if Client has provided an incorrect IP address or declines to provide one, StratValue is not responsible for any loss or damage, whether direct, indirect or consequential, resulting to Client giving to StratValue an incorrect IP address or, if StratValue has recommended that Client gives its IP address, not giving it, and/or StratValue's reliance thereon.
3.2. Each User may be required to obtain a digital certificate from a certification authority in order to access the System. Client is responsible to pay for a digital certificate and for maintaining the security and integrity of its digital certificate. Client is responsible for familiarizing itself with and evaluating all terms and conditions, limitations and risks in the use of digital certificates. Client and StratValue may each revoke any of Client's digital certificates at any time.
3.3. Client will ensure that each User complies at all times with all applicable laws, rules and regulations.
3.4. In the event that any User ceases to be employed by client or authorized by Client to access and use System, Client will take all necessary steps to disable the User (username, password and digital certificate) without delay and by doing so deny that the User accesses System.
3.5. Client acknowledges that, subject to customary confidentiality obligations, StratValue may collect and maintain personal data (for example names, job titles and details concerning their access to and use of System). StratValue protects these data in System with the same rigor Clients protect their clients' data. The System, where such personal data are maintained may not afford the same level of protection to personal data that would apply in Client's specific jurisdiction. This privacy and confidentiality notice is strictly limited to the data provided in the Client's web based subscription form and does not include data collected by the Clients and/or Users of Tools and Services. Client agrees to procure that each User has consented to such collection, transfer and processing of his/her data. It is Client's duty to ensure that each User notifies Client of any changes to his/her personal data and Client will, where relevant, notify StratValue of the same without delay.
3.6. Client acknowledges that, subject to confidentiality obligations in clause 9.3. of the Agreement,
StratValue may collect and maintain data regarding each User's access and use of System, and Client consents and agrees to procure that Users consent to the use of such data for communication, administering access controls, providing assistance, monitoring the usage and performance of System only. The locations where such personal data are maintained may not afford the same level of protection to personal data that would apply in Client's specific jurisdiction. Client agrees to procure that each User has consented to such collection, transfer and processing oh his/her data. It is Client's duty to ensure that each User notifies Client of any changes to his/her personal data and Client will, where relevant, notify StratValue of the same without delay. Without all data required to subscribe to Tools and Services StratValue is unable to provide Tools and Services. The data collected serve the sole purpose of providing Tools and Services including but not limited to
- Client on-boarding processes, including to verify Client's regulatory status
- managing StratValue?s relationship with Clients, including communicating with Clients in relation to the use of Tools and Services
- taking steps to improve Tools and Services and StratValue's use of technology, including testing and upgrading of Tools and Services, and conducting market research to understand how to improve and/or expand Tools and Services
- contacting Clients for direct marketing purposes about products that may be interesting to Clients
- meeting StratValue?s regulatory and compliance obligations
- any other purposes StratValue may notify Clients from time to time
3.7. StratValue will maintain absolute privacy and will not disclose personal data or data regarding the usage of System to third parties other than to subcontractors involved in administering, maintaining and/or expanding System's capabilities. Such subcontractors are subject to the same confidentiality obligations as stipulated in clauses 3.5., 3.6., 3.7. and 9.3. of the Agreement. Hosting of data referred to in this section may be located outside of the Client's jurisdiction in Switzerland. In those cases Swiss data protection provisions apply to the Client's data.
3.8. StratValue will retain Client's data for as long as necessary to fulfil the purpose for which it was collected or to comply with legal, regulatory or internal policy requirements. In general, StratValue will retain Client data for the period of Client's subscription plus 10 years, reflecting the length of time for which legal claims may be made following termination of such subscription. A Client has the right to ask StratValue for a copy of all data collected about the Client and on the Client's behalf.
3.9. Clients have the right and obligation to rectify inaccurate Client data. StratValue processes Client data on the basis of Client's consent to this Agreement and Clients have the right to withdraw that consent at any time. Please note that the withdrawal of consent shall not affect the lawfulness of data processing based on consent before its withdrawal. When Client's data are processed for direct marketing purposes, the Client's right to object extends to direct marketing.
3.10. Data security is of highest priority; StratValue has in place appropriate technical and organizational measures to prevent unauthorized or unlawful access to Client's data provided to StratValue. Complete data security cannot be guaranteed for communication via e-mails, instant messaging, and similar means of communication. StratValue recommends sending confidential information by alternative secure means.
3.11. Complaints regarding any aspect of processing Client's data by StratValue can be directed to
StratValue LLC
111 Washington Street, # 703
Albany, New York 12210
USA
and, for shorter response, acknowledgement or quicker action by StratValue by e-mail to ?management@stratvalue.com?. If not satisfied by StratValue's response and or action Clients have the right to make a complaint to the data protection authority in Luxembourg.
4. Conditions of access
4.1. Client is responsible for and provides at its own cost, all equipment, connectivity and software necessary to access and use System and obtain any relevant licenses and/or consents.
4.2. Client agrees to comply with all laws, rules and regulations relating to Client's use of encryption technology applicable in any jurisdiction in which Client does business, and not to cross borders with, export or re-export, such technology in violation of any such laws, rules or regulations. StratValue shall not be responsible for any breakdown of any technology used for encryption or electronic transmission of information.
4.3. Client agrees not to upload onto System any software, file, information, data or other content
- which infringes any StratValue or third party intellectual property rights
- which affects System's performance and/or availability and/or StratValue's operating systems
- which contains any advertising, promotion or solicitation other than for Client's own offerings
- which is defamatory and/or offensive in any manner
- which misrepresents facts and/or may be damaging and/or injurious to StratValue, Clients, Users
- which would result in the breach of any obligation of confidentiality, or, regarding personal data without having obtained the consent to whom such data relates
Client is responsible for the accuracy and maintenance of any information Client uploads onto System. StratValue shall have no liability to Clients in respect of any information uploaded onto System by anyone other than StratValue.
4.4.StratValue may provide processed market data through System and may terminate the provision of any such data to Client at any time without any notice. Certain market data may be obtained by StratValue from third parties ("Vendors"). Client agrees that
- StratValue may notify Vendors that Client is recipient of Vendor's data processed by StratValue
- neither StratValue nor any Vendor shall be liable for accuracy, completeness, delay, loss of data
- StratValue nor any Vendor is liable for any loss or damage caused in relation with using such data whether direct, indirect or consequential
- all property rights in or relating to any market data shall remain in StratValue and/or the Vendor
- use of data is for internal purposes in the ordinary course of its business and that
- redistribution of such data requires the written authorization of StratValue and the Vendor
- it shall not use the data for any illegal purposes and that
- it shall not use the data for any purpose that is competitive with StratValue and/or the Vendor
- it shall comply with any conditions, restrictions on distribution contained in such data
Client agrees to indemnify StratValue on demand against any liabilities, costs, claims, losses, whether direct, indirect or consequential, expense and damages (including but not limited to legal fees) arising out of or relating to the provision to and/or use by Client of any market data.
4.5. Client agrees that, when using the Internet or other media provided by third parties to connect to System, Client is using media not controlled, maintained or provided by StratValue. Client acknowledges that any such link is beyond StratValue's control and neither endorsed, neither warranted nor supported by StratValue. Client assumes all risk and liability of any such use of the Internet or any other media.
4.6. The parties agree that regulations 9(1), 9(2) and 11(1) of the Electronic Commerce (EC Directive) Regulations 2002 shall not apply to System and Tools and Services.
4.7. Client shall not use System for any illegal or unlawful purposes, or access or attempt to access any part of System access to which would be denied to Client and its Users.
4.8. Tools and Services free of charge are available to the public at large. StratValue is not responsible for any loss or damage, whether direct, indirect or consequential, resulting to subscription paying Clients or to Users free of charge by using any System's Tool and Service.
5. Prices
Client acknowledges that all market prices and other information provided to Client by System and Tools and Services are to be regarded as indicative only and do not constitute terms on which Client may enter into transactions. StratValue is not responsible for any loss or damage, whether direct, indirect or consequential, resulting to Client by entering into transactions based on prices provided by Tools and Services.
6. Charges
StratValue charges a subscription fee for the use of certain Tools and Services. Client agrees to and accepts these charges upon clicking the <LOGIN> button to access System. Fees may change from time to time and according to the type, number of Tools and Services and number of Users of Client. StratValue may, in its complete discretion, notify Client of such change.
7. Intellectual Property Rights
7.1. All title, ownership and intellectual property rights in or relating to System and Tools and Services, any information transmitted by, to or over System and Tools and Services and information regarding Client's use of System and Tools and Services shall remain in StratValue or its licensors. Nothing on System shall be construed as conferring on Client any license, save as expressly set out herein, of any of StratValue's or any third party's intellectual property rights, whether by estoppel, implication or otherwise.
7.2. Subject to clauses 4.4., 7.3. and 8.5. Client may use data derived from and relating to its use of System and Tools and Services in accordance with this Agreement for its normal business purposes (as determined by StratValue from time to time in its sole discretion), provided that such use shall at all time comply with the applicable laws, rules and regulations and respect the trademarks and copyrights applicable for Tools and Services. Reports and/or printouts from Tools and Services may not be altered by Client (with the exception of logo or other Client information provided in designated website areas) and must at all times show StratValue's trademarks and copyrights as shown on the original Reports and/or printouts (see clause 2.1.).
7.3. Client shall not (and shall procure that each of its Users shall not) transfer to any third party, copy or amend or in any way commercially exploit any StratValue research or analysis provided to Client via the Tools and Services or otherwise.
7.4. Except as permitted in clause 7.2. Client shall not (and shall procure that each of its Users shall not) reproduce, distribute, transmit, publish or otherwise transfer, commercially exploit, reverse engineer or decompile or make any derivative product from System or Tools and Services or any software, file data, information, know-how, idea, communication or other content received or accessed through or in connection with System or Tools and Services.
7.5.The licenses granted to Client under clause 1.2. may include the right for Client to use certain software, calculators, tools and/or other content which are proprietary to third party licensors of StratValue, provided that in respect of such software, calculators, tools and/or content, Client may be required to enter into a license agreement with such third party ("Third Party License") as a precondition to any such use.
7.6. Client agrees to notify StratValue forthwith on becoming aware of any claim by any third party that any element of System and/or Tools and Services infringes any intellectual property right of any third party.
7.7. If StratValue customizes any part of System or Tools and Services specifically for Client, Client consents to the use by StratValue of its trademarks and other intellectual property rights to the extent necessary for such customization.
8. Warranty and liability
8.1. Subject to clause 8.2. below, StratValue warrants that it has the right to grant licenses as set out in this Agreement. Subject only to this express warranty, System and Tools and Services including, without limitation, their content, features and any related services, are provided to Client on a "AS IS" and "AS AVAILABLE" basis at Client"s sole risk and without representations or warranties of any kind. StratValue does not guarantee that System, Tools and Services or any part of them will be available to or accessible by Client. All warranties, conditions or terms (expressed or implied, statutory or otherwise including without limitation any warranty, condition or term as to satisfactory quality, merchantability, fitness for a particular purpose and any warranties or commitments that access or use will be uninterrupted or error free), other than those expressly set out in this Agreement, are expressly excluded to the fullest extent permitted by law.
8.2. Notwithstanding any other provision of this Agreement, nothing in this Agreement shall exclude or limit any liability to the extent such liability cannot be excluded or limited by applicable law (including, without limitation, death or personal injury resulting from StratValue's negligence or the consequences of fraud by StratValue). This does not in any way confer greater rights than client would otherwise have at law.
8.3. Subject only to clause 8.2. and to the extent permissible by law, StratValue will have no liability for any loss or damage however caused arising under or in connection with this Agreement, including, without limitation, Client's use of or inability to access System and/or Tools and Services, any market data or other product or service provided by any third party (either through links or System directly and/or indirectly) and any failure by StratValue to act on any information notifies to it in any system user list, whether in contract, tort (including negligence) or otherwise, unless client pays any fees to StratValue for the use of System and/or Tools and Services, in which case StratValue's liability for any loss or damage however caused arising under or in connection with this Agreement shall be limited to the amount of fees received by StratValue from Client in the subscription period during which the date on which the cause of action giving rise to the loss or da-mage first arose. Client will not, under any circumstances, bring any claims of any nature (whether in tort, including negligence, or contract or otherwise) against any of StratValue's directors, officers, employees, contractors, subcontractors or agents where such claims arise out of or in relation to the subject matter of this Agreement.
8.4. StratValue shall not be considered in breach of this Agreement in the event of any failure or delay for reasons not within StratValue's reasonable control, including, without limitation, war, disaster, acts of nature, power failure, failure of communication services or networks, labor stoppage, sabotage, computer virus/worm, hacking, unrest, or disputes, act or omissions of Client or any third party including national and/or supranational government agencies or bodies and courts of law.
8.5. StratValue may at any time and without giving any notice suspend the provision of all or part of System and/or Tools and Services to Client in whole or part with immediate effect in the event of any of the force majeure circumstances described above, planned or unplanned maintenance and upgrading of System or related systems, any breach of this Agreement by Client or its Users and/or action by Client or its Users which is prejudicial or potentially prejudicial to System, StratValue or other Clients.
8.6.System and Tools and Services are provided to Client solely for Client's benefit and use in accordance with the terms of this Agreement. StratValue accepts no liability or responsibility to any third party who gains access to System and/or Tools and Services as a result of any act or omission by Client or any User or otherwise. Client agrees to indemnify StratValue and its directors, officers and employees on demand against any liabilities, losses, costs, claims, expenses (including legal fees) and damages in connection with any claims against StratValue and its directors, officers and employees by any such third party, including but not limited to any claim by any third party which has access to data derived from System and/or Tools and Services pursuant to clause 7.2.
8.7. Client agrees to indemnify StratValue and its directors, officers and employees on demand against any liabilities, costs, claims, losses, expenses, and damages (including but not limited to legal fees) arising out of or relating to any breach of this Agreement by Client or any User.
9. Termination
9.1. Each of StratValue and Client is entitled to terminate Client's access to and use of System and/or Tools and Services at any time without cause by written notice to the other or by interrupting or discontinuing electronically a still valid subscription to System with immediate effect. In particular but not exclusively has StratValue the right to terminate Client's access upon
- any violation of this agreement,
- non-payment of subscription and
- noticing any discrepancy to StratValue's disadvantage between number of Client's Users and subscribed for licenses.
9.2.If Client's access to and use of System and Tools and Services is terminated by either party, StratValue shall be entitled to disable Client's usernames, passwords and digital certificates and the license granted under clause 1.2. and the provision of System and Tools and Services shall terminate with immediate effect.
9.3. Clauses 3.5., 3.6., 3.7., 4.4., 7., 8., 9., 10., 12., and 13., shall survive termination of Client's access to System and Tools and Services.
10. Entire Agreement
10.1. The entire Agreement between StratValue and Client with regard to client's access to and use of System and Tools and Services is comprised by the following:
- this Agreement, as amended by StratValue from time to time
- the Disclaimer, as amended by StratValue from time to time
- the System user list, if any
- any additional terms and conditions governing access to specific areas of System and/or specific Tools and Services which StratValue may post on any part of System from time to time, as amended by StratValue from time to time
- any limitation imposed by StratValue on Client from time to time
- any Third Party Licenses
10.2. If there is any conflict between this Agreement and any additional terms and conditions, this Agreement shall prevail.
10.3. This Agreement replaces all preceding versions of this Agreement, whether in electronic or tangible form, accepted and/or executed prior to the date of acceptance of this Agreement.
11. Notices
11.1. Any notice to be given by Client to StratValue under or in connection with this Agreement shall be in writing to the following below address and, for shorter response, acknowledgement or quicker action by StratValue, shall be sent under electronic advice and with attached copy of the notice's full content by e-mail to "management@stratvalue.com":
StratValue LLC
111 Washington Street, #703
Albany, New York 12210
USA
For the avoidance of doubt only legal notice sent to above address legally commits StratValue.
11.2. Any notice or communication given by StratValue to Client under or in connection with this Agreement may be given through System, by e-mail to the e-mail address of any Client User. Any such notice shall be deemed to have been delivered and communicated to Client at such time as it is available for Client to view electronically.
12. Third Party Rights
Each of StratValue's Affiliates, Vendors and subcontractors may, without any liability of StratValue, enforce the Client's obligation under this agreement in its field of competence and service delivery, as if it was a party to this Agreement.
13. Governing Law, Jurisdiction and Arbitration
This Agreement shall be governed by and construed in accordance with Luxembourg law, and in the event of a dispute arising out of or in connection with this Agreement, the Luxembourg courts shall have the exclusive jurisdiction, provided that StratValue may at its option
- select another country's governing law and jurisdiction (if the governing law of the country of StratValue's registered offices demands another jurisdiction or provides for such choice)
- select arbitration under another country's governing law and jurisdiction (StratValue and Client shall each be entitled to nominate one arbitrator within 30 days after a request for arbitration was filed, the chairman to be nominated jointly by the two party-nominated arbitrators; if one of these nominations fails, the competent court will appoint an arbitrator and/or chairman of tribunal).
B. CLIENT PORTAL DISCLAIMER
Access to and use of System and Tools and Services, or any other linked website provided by StratValue or any other service provider, and any content herein, including posted documents ("Materials") is subject to the following disclaimer and any other posted restrictions. The products and information herein are not eligible for distribution and sale in the USA or to US persons and may not be eligible for sale in some other jurisdictions or to certain categories of investors.
The Materials available herein do not constitute investment advice, nor do they have relevance with regard to the specific investment objectives, financial situation or particular needs and experience of any specific recipient. All Material is published for information purposes and is not to be construed to offer to buy or sell securities or related financial instruments, nor to participate in any particular trading strategy. No representation, term, condition or warranty, either express or implied, is provided in relation to the accuracy, completeness or reliability of the Materials, nor are they a complete statement of the securities, markets or developments referred to herein. The Materials should not be regarded by recipients as a substitute for the exercise of their own judgment. Any opinions are subject to change without notice.
StratValue is not under any obligation to update or keep current the information contained herein.
StratValue, its directors, officers, employees or clients may have or have had interests in long/short positions in securities and/or related financial instruments and/or currencies referred to herein. The securities described herein may not be eligible for sale in all jurisdictions or to certain categories of investors. Options, futures and derivative products are not suitable for all investors, and trading in these products is considered risky. The value of investments may fluctuate and past per-formance is not necessarily indicative for future results. Foreign currency exchange rates may adversely affect the value, price or income of any products mentioned in the Materials. Client wishing to effect such transactions should contact properly trained and licensed professionals.
StratValue has no obligation to provide indicative valuations to Client and may cease doing so at any time in StratValue's sole discretion. Indicative values represent StratValue's and its Vendors' good faith of the value of any specific instrument listed in the Materials. StratValue makes no representation or warranty with respect to the accuracy or reliability of indicative valuations.
Indicative valuations are calculated using StratValue's proprietary models. StratValue makes no representation or warranty as to the accuracy, reliability, completeness or appropriateness of StratValue's methodology, models or the underlying data or assumptions. StratValue's indicative valuations may differ significantly from valuations of other sources.
StratValue's Materials are not providing a rating service comparable to Standard&Poor's, Moody's, etc. The rankings calculated within StratValue's methodology are based on data provided by Vendors.
Client agrees that StratValue, its directors, officers or employees accept no liability whatsoever for any loss or damage of any kind resulting from the use of all or any part of the Materials, including but not limited to data provided by Vendors or other third parties, errors (including errors of transmission), inaccuracies, omissions, changes in market factors or other circumstances, whether or not within StratValue's control. Without prejudice to the generality of the foregoing, under no circumstances shall StratValue be liable for direct, indirect or consequential losses, damages, or for any loss of profit, revenue or anticipated savings that arise from any Client's or person's use or reliance upon all or any part of these Materials, even if StratValue has been advised of the possibility of such damages.