DERIVITEC LIMITED, terms and conditions for access to and use of Derivitec Risk Portal
Derivitec Limited (“We”/”Our”/”Us”) provides access to and certain services accessible via the Derivitec Risk Portal (“Portal”), a cloud-based service for, amongst other things, analysing trading risk (“Services”). These terms and conditions (“T&Cs”) govern an order for the Services that has been placed by an entity (“You”/”Your”) and accepted by Us (“Order”) and Your use of the Services. All Orders and use of the Services are exclusively governed by these terms and conditions (“T&Cs”) and any of Our additional or special terms, that may apply to specific parts of the Services and any other requirements, rules, conditions and other information that We publish as being applicable to use of the Services (collectively “Agreement”).
1. Binding Terms.
The Services may be accessed and used only with Our express permission. Nobody else is authorised to give such permission on Our behalf. Our permission is given only in the form of the Agreement. The Agreement is a contractual agreement by which You and We are legally bound in Your access to and use of the Services. By placing an Order that We accept (which may or may not involve clicking an “Agree” button), You confirm Your understanding that You are bound by the Agreement. If You do not unequivocally accept and agree to all of the Agreement as the same may be amended in future by Us, then You must not use the Services. Your use of the Services shall be deemed unconditional acceptance by You of the Agreement. You may not authorise any other person or entity to access the Services except as We may expressly agree in writing. Your access to and use of the Services is lawful only if it is, at all times, strictly in accordance with the Agreement.
We hereby grant You a licence, to: (a) connect to the Portal in order to access and use the Services (“Authorised Purpose”
); (b) access and use the Services in accordance with Your Order; (c) download and read the applicable user documentation, if any, (“Documentation”
) for such purposes without any other right to copy or distribute it; and (d) share Your portfolios and/or reports with other users (but not Your login credentials), at a permission level You deem appropriate (for example, in order to share views of risk aggregated over component trades as opposed to internal book composition) provided those other users have registered or do register with Us for use of the Portal and the Services. They are conditions of the licence granted under the Agreement that:
- any person placing an Order, accessing or using the Services shall be over 18 years of age; and
- the information You have provided to Us in order to access and use the Services is accurate and true.
3. Licence Restrictions.
The licence granted to You under clause 2 above shall be personal, revocable, non-exclusive, non-transferable, non-sub-licensable, and shall subsist only for the period for which You subscribe to the Services pursuant to Your Order (“Subscription”
). You shall not reverse-engineer, decompile or disassemble or otherwise create or try to create works that are derivative of any software of Ours except to the extent permitted under applicable law.
4. Payment of Fees.
Any trial offer shall be without charge for the period specified in it unless stated otherwise. You shall pay to Us on time all sums due for Your Subscription (“Fees”
) as set out in Your Order at the times agreed for which purpose time shall be of the essence. Paid-for Subscriptions are charged and payable in U.S. Dollars. Automatic Subscription renewal and re-billing is turned on by default, in which case Your Subscription will automatically renew unless You notify Us of its non-renewal by 30 days prior written notice expiring at the end of any month. You can change this to a pay-as-you-go Subscription either before Your subscription commences or, during Your subscription, by 30 days prior written notice expiring at the end of any month. Pay-as-you-go Subscriptions must be renewed each month by payment in advance. Payment shall always be due in advance of the commencement, extension or renewal of Your Subscription. All payments in advance are due on the first business day of each month of Your Subscription, (Subscriptions started part way through a month will be charged pro rata for that month). In the event that You fail to pay any Fees when due We shall be entitled to charge and You shall pay to Us late payment interest at a rate of one per cent (1%) per month from the date that payment was due until it is paid.
5. Our Obligations.
Our obligations are limited to using reasonable endeavours to: make the Portal available for the Authorised Purposes; analyse the data You provide via the Portal and to provide reports to You via the Portal substantially in accordance with the technical and functional specification of the Services You Order; and permit You to access the Services in accordance with the Agreement subject to intervening events including (by way of non-exhaustive example): telecommunications, systems, equipment and software failures and interruptions whether or not within Our control, Your control or that of third parties acting on Our behalf; unplanned inaccessibility of the Portal or other unexpected interruption to the Services; and downtime for support or maintenance whether planned or unplanned. We may, but need not, provide support and/or maintenance for the Services or have it provided on Our behalf. In any event, We shall not provide support or maintenance for versions of the Services other than the then current one. We may, at any time and in Our sole discretion, and with or without notice, modify or withdraw completely, temporarily or permanently the Services and/or support and maintenance for the then current version of it. We or our third party service providers or licensors may from time to time modify the provision of Our Services, including without limitation the content and data available and/or our methods or speeds of delivering the same, which modifications may require corresponding changes to the methods or means You use to access Our Services and/or may adversely affect Your access to or use of such Services and related content and data. Neither We nor any of our third party service providers or licensors shall be liable for any such consequences.
6. Risk Awareness.
For the purpose of providing the Services, it is not currently legally necessary for Us to acquire information about Your relevant investment knowledge and experience in order to assess whether the Services are appropriate for You and so We do not. Therefore please treat this as a suitable warning that the Services may only be suitable for experienced traders. We do not make any recommendation or assessment as to their suitability. You should not place trades based on the information We provide as part of the Services. You must satisfy yourself that the Services provide what You want as We do not guarantee any results. We have not advised You of the merits or otherwise of using the Services and You have not relied on any communication (written or oral) from us in deciding to use them. You have undertaken Your own analysis of the Services and are satisfied that You understand how they work and understand that they do not guarantee trading profits or the avoidance of trading losses. You understand that using the Services carries risks associated with erroneous data, including the risk that trades may be reported or analysed incorrectly. When accessing Our Services You may find that, compared to other Services, the information or results available to You are different. For example and without limitation, access via the Services may present reduced or different data. Therefore We recommend that You independently check sample data from Your results to determine their accuracy and You agree to do so. You understand and acknowledge that access to and use of Our Services is not a replacement for Your responsibility to use due care in assessing Your trading risk or to check by independent means that any information or results obtained via the Services is complete and accurate which, You agree to do. Market data described as live may in fact be delayed or not be live and You will take this into account in Your activity. You should always check with a third party the accuracy of any market data because We are not in the business of providing it and take no responsibility for it even if it is accessible via the Services. You acknowledge that it is Your obligation to ensure that Your Connection/access to the Services is consistent with the then prevailing version of the Services. You understand that no testing can be performed by us to determine the interoperability of our Services with Your systems. Non-operation of Services or Your systems due to updates/new release implementations may impact on Your ability to use the Services. You acknowledge and accept that the Services involve transmissions over the internet and that such transmissions are therefore subject to the internet’s inherent risks. You acknowledge and accept that, as with any network, You may be exposed to: (i) unauthorised invasions of privacy during, or as a result of, using the Services; (ii) system-threatening viruses and other unauthorised and invasive programs transmitted by third parties; (iii) unauthorised dissemination and publication to others of information and material originally sent only to selected recipients on or through the Services; (iv) eavesdropping and electronic trespassing; (v) fraud and forgery; and/or (vi) the failure of information and data to reach their intended destinations and/or erroneous receipt or misdirection of such information. We cannot and do not represent, warrant or guarantee the reduction or elimination of these risks. Market information appearing in the Service may be provided by third parties over whom We have no control and for whom You accept We have no responsibility.
7. Your Obligations.
You shall be responsible for the computing and communications equipment, systems and other infrastructure necessary to access the Portal and enjoy the Services and We shall have no responsibility for their adequacy. It shall be Your responsibility to allocate to the user base passwords and other identifiers in accordance with the requirements of the Services. Any passwords or other security identifiers that are issued to You shall be and remain Our property and We may replace or alter them at any time with notice to You. All passwords and other identifiers issued for Your use are for Your use only and are not transferable, and shall be kept strictly confidential and secure and You shall immediately notify Us on becoming aware of any breach of such confidentiality or security. You shall not enable any unauthorised third party to access the Services, whether or not on Your behalf You shall comply with communications protocols reasonably notified by Us in writing from time to time in Connection with access to and use of the Services and promptly upon notice from Us implement any updates or modifications required for use of the Services. Without limiting the foregoing, You understand that changes to the Services may adversely impact on interoperability. For the avoidance of doubt, it shall be Your obligation and not Ours to determine whether any modifications are required to Your systems. equipment or infrastructure in order to maintain interoperability and to implement such changes where You consider it necessary or desirable. From time to time We may inform You in writing of certain activities that are prohibited following which You will not perform nor authorise others to perform them. In addition, at all times You shall not:
- modify the Services or Documentation;
- authorise, enable nor permit any other person or entity to access the Services except with Our express prior written consent;
- publish, reproduce, distribute, lend, rent, otherwise transfer or display any part of the Services or Documentation or any other information necessary to or useful for access to Our Services (by way of non-exhaustive example, User IDs or passwords) nor use them to do any of the foregoing in respect of Our Services except with Our express prior written consent;
- use the Services or Documentation to:
- engage in fraudulent behaviour including fraudulent modification of records;
- engage in any conduct that is contrary to Your Agreement and/or applicable regulations, rules, orders or codes of conduct;
- transmit personal, defamatory, obscene, racist, sexist or pornographic messages;
- modify, retransmit, distribute, publish, rent, loan, licence or display any of the Services other than as expressly permitted by Your Agreement and any other applicable terms or conditions (which, for the avoidance of doubt, does not apply to Your right to modify, retransmit, distribute, publish, rent, loan, licence or display any of Your data or analysis results derived from or in Connection with accessing Our Services);
- generate excessive traffic unnecessary for the Authorised Purpose;
- commit any illegal or unauthorised act;
- imply any endorsement by Us of You or Your products/services;
- transmit any time bomb, Trojan horse, malware, spyware, virus, or other code or routine designed to permit unauthorised access to or use of computer software, equipment or systems or to disable, erase, disrupt, impair, or damage their normal operation;
- use the Services to collect personal data (as defined in the Data Protection Act 1998);
- provide use of any part of the Services or Documentation in any SaaS-type, cloud-type or service bureau offering except with Our express prior written consent;
- use the Services or Documentation to create other software or documentation useful for accessing Our Services;
- xii. use the Services to transmit communications that are not: decent honest legal and truthful; lawful under applicable laws; compliant with applicable regulations; free from content that would adversely impact on Our IPRs (as defined below) including trade marks, trade names, reputation and goodwill.
- remove, modify, dilute or damage Our trade marks, names, get-up, logos or proprietary notices;
- authorise nor give permission for any other person or entity to do something on their own or on Your behalf which is beyond the Authorised Purpose or which the Agreement otherwise prohibits or restricts.
8. Your Indemnity.
You hereby indemnify and shall defend and hold Us, Our third party service providers and licensors and the officers, directors, employees and agents of the foregoing (“Indemnified Parties”
) harmless from any damages, costs or expenses (and in the case of the professional advisors their reasonable fees) and any and all other liabilities, penalties, fines claims and actions (“Loss”
) suffered by the Indemnified Parties directly or indirectly caused by any of the following when such Loss would not have been suffered but for it:
- Your use of the Services and/or Documentation;
- in an unauthorised manner, or
- for unauthorised purposes in breach of the licence granted to You under the Agreement, or
- in combination with other products or services; or
- recklessly, with wilful misconduct or negligently; and/or
- Your breach of the Agreement.
We warrant for ourselves and You warrant for yourself that:
each of You and We have the full legal right, power and authority to enter into the Agreement;
the performance of the Agreement shall not violate any other agreement to which You or We are otherwise bound;
the Agreement will constitute the legal, valid and binding obligation of each of You and Us, enforceable against the other in accordance with its terms;
You warrant that all of the information provided by You to Us to obtain or in the receipt of the Services is accurate, complete and truthful.
You warrant that You own all right title and interest in all IPRs assigned to Us under the Agreement.
10. NON-EXCLUSIONS OF LIABLITY.
Nothing in these T&Cs shall exclude or limit the liability of either You or Us for acts of fraud (including fraudulent misrepresentation) or for death or personal injury caused by negligence.
11. EXCLUSIONS AND LIMITATIONS OF LIABILITY.
SUBJECT TO THE IMMEDIATELY PRECEDING CLAUSE, AND EXCEPT IN RESPECT OF THE INDEMNITY GIVEN UNDER CLAUSE 8, NEITHER OF YOU NOR WE SHALL BE LIABLE, IN CONTRACT, TORT OR NEGLIGENCE OR FOR PRE-CONTRACT OR OTHER REPRESENTATIONS OR FOR BREACH OF STATUTORY DUTY OR IN ANY OTHER WAY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE LOSS OR DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, CONTRACTS, BUSINESS, OPPORTUNITIES OR ANTICIPATED SAVINGS OR FOR ANY LOSS OF DATA, GOODWILL OR REPUTATION.
OUR LIABILITY SHALL BE LIMITED TO DIRECT LOSS AND DAMAGE SUFFERED BY YOU CAUSED DIRECTLY AND SOLELY BY OUR MATERIAL BREACH OF OUR EXPRESS WARRANTIES SET OUT IN THE AGREEMENT. OUR MAXIMUM AGGREGATE LIABILITY TO YOU ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, WHETHER OR NOT UNDER AN INDEMNITY, IF ANY, SHALL IN NO EVENT EXCEED THE TOTAL AMOUNT OF FEES PAID BY YOU DURING THE PERIOD OF 12 MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
WE DO NOT WARRANT THAT ACCESS TO OR USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-OR VIRUS FREE. ACCESS TO AND USE OF THE SERVICES AND DOCUMENTATION IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITH THEIR FAULTS AND WITHOUT WARRANTY OF ANY KIND INCULDING AS TO TITLE. WE MAKE NO WARRANTY AS TO THE ACCURACY, COMPLETENESS, CURRENCY OR RELIABILITY OF ANY THIRD PARTY INFORMATION AVAILABLE THROUGH THE SERVICES, OR AS TO THE QUALITY OR OTHER ATTRIBUTES OF THE SERVICS OR ANY PRODUCTS OR RESULTS AVAILABLE VIA THE SERVICES. WE AND OUR LICENSORS AND THIRD-PARTY SUPPLIERS OF PRODUCTS, INFORMATION OR SERVICES SHALL HAVE NO LIABILITY FOR ERRORS OR OMISSIONS IN ANY DATA, INFORMATION, RESULTS OR INSTRUCTIONS PROVIDED BY US OR ON OUR BEHALF. WE EXPRESSLY DISCLAIM ANY AND ALL IMPLIED WARRANTIES WITH RESPECT TO THE SERVICES AND DOCUMENTATION INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
BECAUSE THE SERVICES ARE PROVIDED BY MEANS OF WEBSITE AND TELECOMMUNICATION SYSTEMS (INCLUDING LOCAL LOOP NETWORK PROVIDERS AND OTHER CONNECTIVITY ARRANGEMENTS OVER WHICH WE HAVE NO CONTROL) YOU ACKNOWLEDGE THAT: THE SERVICES CANNOT BE OPERATED IN ALL CIRCUMSTANCES WITHOUT ERROR (INCLUDING WITHOUT LIMITATION ERRORS IN ANY INFORMATION OR SOFTWARE PROVIDED), WE SHALL BE UNDER NO LIABILITY FOR THE CONSEQUENCES ARISING FROM ANY SUCH ERROR OR YOUR RELIANCE ON THE RESULTS OR OTHER INFORMATION PROVIDED BY THE SERVICES; AND TIME SHALL NOT BE OF THE ESSENCE IN RELATION TO OUR PERFORMANCE OF THE SERVICES.WE SHALL NOT BE LIABLE FOR ANY INTERRUPTIONS OF, FAULTS IN OR INACCURACIES PRODUCED IN THE PROVISION OF ANY SERVICES HOWEVER ARISING OR FOR ANY LOSS OR DAMAGE ARISING FROM SUCH INTERRUPTIONS, FAULTS OR INACCURACIES. WE MAY USE THIRD PARTY SOURCES OF DATA IN THE PROVISION OF THE SERVICES WHICH MAY NOT ALWAYS BE ACCURATE OR UP TO DATE AND YOU ACCEPT THAT SHALL NOT BE A BREACH OF OUR OBLIGATIONS OR DUTIES TO YOU.
15. Confidential Information.
As used in the Agreement "Confidential Information" shall mean the Services and Documentation and any related specifications and technical documentation and the terms (but not the existence) of the Agreement and all information disclosed by You to Us and by Us to You which is of a confidential or proprietary nature whether or not marked ‘confidential’. Each of You and We shall keep in strictest confidence all Confidential Information of the other, and shall not disclose or make use of any such information (save for the sole purpose of performing obligations under the Agreement) and shall only permit access to Confidential Information of the other to those of Our or Your employees, officers, contractors or agents having a need to know, who are bound by obligations of confidentiality at least as restrictive as those set out in the Agreement. The obligations of confidence contained in the Agreement shall continue notwithstanding termination of it but shall not apply to information that:
is or becomes part of the public domain through no act or omission of the recipient;
was in the recipient’s lawful possession prior to the disclosure and had not been obtained either directly or indirectly from the discloser; or
is lawfully disclosed to the recipient by a third party without restriction on disclosure; or
is required to be disclosed pursuant to law or the order of a court, governmental, other regulatory or competent authority.
The provisions of clause 5 shall apply to each item of Confidential Information for a period of seven (7) years from the date of its first disclosure.
17. Intellectual Property Rights.
As used in the Agreement, “IPR”s means without limitation, all present and future rights title and interest (as the same may be extended or amended) throughout the world in all forms of intellectual property including all, trade marks, service marks, trade and business names, domain names, goodwill, registered and unregistered designs, patents, copyrights, database rights, topography rights and rights in know how and trade secrets, whether registered or unregistered and including applications for the grant of any of the foregoing and all rights or forms of protection having equivalent or similar effect to any of the foregoing together with the right to bring legal proceedings to enforce any such rights and all rights of registration, extension and renewal thereof. You shall not own nor acquire any right title or interest in to or under the whole or any part of Our IPRs including the Services and Documentation (other than the strictly limited licence granted to You) all of which are hereby reserved to and shall remain wholly vested in Us or Our licensors. We shall not own nor acquire any right title or interest in to or under the whole or any part of Your IPRs all of which are hereby reserved to and shall remain wholly vested in You. You shall own all IPRs in the data and collections of data You provide to Us and the results of analysis of Your data that We deliver to You via the Services. Subject to the foregoing We shall own all IPRs in the data and aggregations of data that We create and/or hold and to the extent necessary You hereby grant to Us a perpetual, irrevocable, non-exclusive, transferable, sub-licenseable, full paid up, royalty free licence to store, copy and distribute Your data to You for the purposes of providing the Services. You may provide Us (whether or not formally requested to do so) with suggestions, comments and/or feedback (in any form and however recorded) regarding the Services and Documentation (including but not limited to usability, bug reports, roadmap improvements or test reports) (“Feedback”
). You hereby irrevocably assign to Us, royalty-free and fully paid up, all IPRs of whatever nature in such Feedback and the products thereof and, to the extent legally permitted under applicable law, irrevocably waive all and agree not to assert against Us any moral rights in respect of it.
You may terminate this Agreement on thirty (30) days written notice if We: (1) are in material breach of Our obligations under this Agreement and fail to remedy such breach within thirty days of written notice from You specifying such breach with particularity and requiring that it be so remedied; or (2) materially alter or stop a Service during Your subsisting Subscription for it other than for reasons beyond our control; or (3) increase our Fees for a Subscription during its subsistence other than as part of any renewal or agreed modification to that Subscription. In the case of Your termination on any of the foregoing grounds (1), (2) or (3) set out in this clause 18, You shall be entitled to receive and We shall pay within sixty (60) days of Your written request a refund of all pre-paid unused Fees received by Us in consideration for the terminated Subscription subject to any counter-claim or set-off that We may have. Acting in Our sole discretion We may suspend or terminate the Agreement and the rights granted under it at any time without notice or reason and without liability to You or any third party claiming through or under You in Connection with such suspension or termination as a result of: (i) Your breach of any of its provisions; (ii) regulatory requirements; (iii) third party claims. Without limiting the foregoing We may suspend Your ability to access Our Services and make use of them if:
We believe You are in breach of or threaten to breach these T&C’s;
Your actions or, the actions of others authorised by You, cause any degradation to Our Services or degradation of access to them or limits use of Our Services by others, or may place Us in potential or actual breach of agreements with other parties;
The number of requests to process data that are transmitted and generated by You, exceeds a reasonable level, in Our sole discretion; or
We consider it necessary for any other reasons whatsoever judged in Our reasonable discretion.
19. Consequences of Suspension and Termination.
Upon suspension of the Agreement You shall cease using the Services for the period of such suspension. Upon termination of the Agreement You shall cease using the Services permanently.
You shall not make any public comment or disclosure about the Agreement.
The Agreement represents the entire understanding and agreement between You and Us with respect to the subject matter hereof, and supersedes all prior negotiations between You and Us. We may amend or replace any clause or part of the Agreement in whole or part by giving You written notice of the changes. If You object to any change You must tell us within 7 days of the date the notice is deemed received by You in accordance with clause 15(j) below). If You do not do so or if You continue to use or exercise the rights granted to You under the Agreement You will be deemed to have accepted the change(s). If You give Us notice that You object, then Your rights under the Agreement shall terminate immediately upon the giving of such notice by You and You shall immediately cease using the Services and Documentation permanently and acknowledge any subsequent use by You of them will be unauthorised.
Nothing contained in the Agreement shall be construed to make either of You or Us an agent, partner, joint venturer, or representative of the other for any purpose.
No failure or delay by either You or Us in exercising any right, power or remedy under the Agreement, except as specifically provided, shall be deemed as a waiver of any such right, power, or remedy.
You shall not assign, sub-contract, delegate or otherwise transfer any of Your rights and/or obligations under the Agreement in whole or in part to any third party without Our express written consent. Any attempted assignment shall be void and of no effect. You acknowledge that We may sub-contract the provision of Our Services and the creation development and modifications of the Services and Documentation.
You agree that in the event of any actual or threatened breach of the Agreement, We and any of our licensors, if any, shall have the right to obtain injunctive relief or other equitable relief, without the necessity of proving monetary damages or posting a bond or other security, and without prejudice to any other rights or remedies to which We or they may be entitled.
If any provision of the Agreement shall be held void or unenforceable by any competent court or other authority then the remaining provisions of it shall remain in full force and effect.
The Agreement sets out the full extent of Our and Your rights, obligations and liabilities. In particular, there are no other conditions, warranties, representations or terms, express or implied, that are binding on You or Us except as specifically stated in the Agreement. Any condition, warranty, representation or other term concerning its subject matter which might otherwise be implied into or incorporated in the Agreement, or any collateral contract, whether by statute, common law or otherwise, is hereby excluded.
You and We intend that no term of the contract made by the Agreement may be enforced by any person who is not a party to it and agree that the provisions of the Contracts (Rights of Third Parties) Act 1999 shall be and hereby are excluded.
Except as expressly stated herein to the contrary, all notices and other communications required or permitted to be given under the Agreement may be given by Us to You by email to such account for which We then hold details and must be given by You to Us by post to Our then registered office address with contemporaneous copy to Level 39, One Canada Square, London E14 5AB or such other address as We may subsequently notify via our website, the Portal or otherwise.
The Agreement shall be governed by and construed in accordance with the laws of England whose courts shall have exclusive jurisdiction over any and all disputes arising out of or in Connection with them.
v1.2 Effective 30.10.2014