USER AGREEMENT AND DISCLAIMER
Please read the following carefully.
All terms and conditions must be agreed to prior to use of this software.
Kievanos (“Kievanos”) reserves the right to modify the terms and conditions contained herein. Your use of the Kievanos website and software (“Kievanos Services”) constitutes YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF USE, as modified. IF YOU DO NOT UNDERSTAND AND/OR WISH TO ACCEPT THE TERMS AND CONDITIONS OF USE CONTAINED HEREIN, DO NOT USE THE Kievanos SERVICES.
I. Accepting the Terms
User must first agree to the Terms. Users may not use the Kievanos Services if they do not accept the Terms.
1. A User can accept the Terms by:
a. clicking to accept or agree to the Terms, where this option is made available by Kievanos in the user interface for any Kievanos Service; or
b. by actually using Kievanos Services. In this case, User understands and agrees that Kievanos will treat the use of Kievanos Services as acceptance of the Terms from that point onwards.
2. A User may not use Kievanos Services and may not accept the Terms if
a. User is not of legal age or in any other way lack capacity to form a binding contract with Kievanos
b. User is a person barred from receiving Kievanos Services under the laws of the United States or other countries including the country in which User resides or from which User accesses Kievanos Services.
3. Before continuing, User should print off or save a local copy of the User Agreement’s Terms and Conditions for personal records.
II. Provision of Kievanos Services
Kievanos is constantly innovating in order to provide the best possible experience for its users. User acknowledges and agrees that the form and nature of Kievanos Services may change from time to time without prior notice to User.
1. As part of this continuing innovation, User acknowledges and agrees that Kievanos may stop (permanently or temporarily) providing Kievanos Services (or any features within Kievanos Services) to User or to users generally at Kievanos’s sole discretion, without prior notice. User may stop using Kievanos Services at any time. A User does not need to specifically inform Kievanos when he/she stops using Kievanos Services.
2. User acknowledges and agrees that if Kievanos disables access to the account, User may be prevented from accessing Kievanos Services, User account details or any files or other content which is contained in the User’s account
3. User acknowledges and agrees that while Kievanos may not currently have set a fixed upper limit on the number of transmissions a User may send or receive through Kievanos Services or on the amount of server activity used for the provision of any Kievanos Service, such fixed upper limits may be set by Kievanos at any time, at Kievanos’s discretion.
4. User acknowledges that Kievanos analyzes the behavior of all Kievanos users. Kievanos may from time to time use 3rd party research and technology to help analyze the customer behavior data.
III. Security Disclaimers
Nothing herein constitutes an offer or a solicitation for the purchase or sale of any security to any person in any jurisdiction in which such an offer or solicitation is not authorized. All purchases and sales of securities must and are made through a registered securities broker or dealer of the User’s choosing with whom the User has a contractual relationship and have agreed to and accepted such broker’s or dealer’s terms and conditions.
IV. Limitations of Liabilities & Warranty Disclaimers
1. Kievanos shall not be liable for any errors or delays in the information, data, content, quotes, transactions, advertisements, and/or other material contained in, gathered by, used in, relied upon, and/or presented by Kievanos (hereinafter collectively “Information and/or Services”)..
2. THE INFORMATION AND/OR SERVICES PROVIDED BY Kievanos IN RELATION TO THE INFORMATION AND/OR SERVICES ARE PROVIDED ON AN “AS IS” BASIS. Kievanos EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE INFORMATION OR SERVICE, IN NO EVENT WILL Kievanos BE LIABLE TO ANY OTHER PARTY, INCLUDING ANY USER, FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF Kievanos HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR INDEMNIFICATION OBLIGATIONS, THE CUMULATIVE LIABILITY OF Kievanos TO ANY OTHER PARTY, INCLUDING ANY USER, FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE FEES RECEIVED BY LICENSOR FROM SUCH PARTY UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM AROSE.
V. Use of Kievanos Services
In order to access certain Kievanos Services, Users may be required to provide information about themselves (such as identification or contact details) as part of the registration process for Kievanos Service, or as part of the continued use of Kievanos Services. A User agrees that any registration information given to Kievanos will always be accurate, correct and up to date.
1. Each User agrees to use Kievanos Services only for purposes that are permitted by (a) the Terms and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from the United States or other relevant countries).
2. User agrees not to access (or attempt to access) any of Kievanos Services by any means other than through the interface that is provided by Kievanos, unless specifically allowed to do so in a separate agreement with Kievanos. User specifically agrees not to access (or attempt to access) any of Kievanos Services through any automated means.
3. User agrees to not engage in any activity that interferes with or disrupts Kievanos Services (or the servers and networks which are connected to Kievanos Services).
4. Unless User is specifically permitted to do so in a separate agreement with Kievanos, User agrees not to reproduce, duplicate, copy, sell, trade or resell Kievanos Services for any purpose.
5. User agrees to be solely responsible (and that Kievanos has no responsibility to User or to any third party) for any breach of obligations under the Terms and for the consequences (including any loss or damage which Kievanos may suffer) of any such breach.
VI. Passwords, Account Security and Privacy
1. User agrees and understands to be responsible for maintaining the confidentiality of passwords associated with any account used to access Kievanos Services.
2. User agrees to be solely responsible to Kievanos for all activities that occur under User’s account.
3. If User becomes aware of any unauthorized use of their password or of their account, User agrees to:
a. notify Kievanos immediately at Contact Us and
b. change their password
5. User agrees to the use of User data in accordance with Kievanos’s Privacy Statement.
VII. Proprietary Rights
Kievanos Services, including all contents, are protected as a collective work and/or a compilation, as the case may be, to the maximum extent permitted by copyright and/or any other applicable law and/or international treaty (“Intellectual Property Protection Laws”). User acknowledges and agrees that Kievanos (or Kievanos’s Licensors) own all legal right, title and interest in and to Kievanos Services, including any intellectual property rights which subsist in Kievanos Services (whether those rights happen to be registered or not, and wherever in the world those rights may exist).
1. Unless agreed otherwise in writing with Kievanos, nothing in the Terms gives a User a right to use any of Kievanos’s trade names, trademarks, service marks, logos, domain names, or any other distinctive brand features.
2. User agrees not to remove, obscure, or alter any proprietary rights notices (including copyright and trade mark notices) which may be affixed to or contained within Kievanos Services.
3. Unless expressly authorized to do so in writing by Kievanos, User agrees that in using Kievanos Services, User will not use any trade mark, service mark, trade name, logo of any company or organization in a way that is likely or intended to cause confusion about the owner or authorized user of such marks, names or logos.
4. User agrees not to use the Information and/or Kievanos Services in any manner that could compete with Kievanos.
VIII. License from Kievanos
1. Kievanos gives the User a limited, non-assignable and non-exclusive license to use the software provided by Kievanos as part of Kievanos Services. This license is for the sole purpose of enabling the User to use and enjoy the benefit of Kievanos Services as provided by Kievanos, in the manner permitted by the Terms.
2. User may not (and may not permit anyone else to) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Software or any part thereof, unless this is expressly permitted or required by law, or unless given prior written permission to do so by Kievanos.
3. Unless Kievanos has given User specific prior written permission to do so, User may not assign (or grant a sub-license of) rights to use the Software, grant a security interest in or over rights to use the Software, or otherwise transfer or encumber any part of rights to use the Software.
4. Kievanos owns and retains all proprietary rights in Kievanos Services. Data as part of Kievanos Services may contain copyrighted material and other proprietary information of Kievanos and its Licensors. The provision of Kievanos Services does not transfer to User or any third party any rights, title or interest in or to such intellectual property, including, without limitation, any intellectual property rights in any Kievanos or third-party content.
IX. Data Subscriptions and Payment
1. Subscription Fees. The Subscription Fee will remain fixed during the Subscription Term unless User:
a. upgrades products or base packages, or
b. subscribes to additional services or products.
2. Payment by credit card. If User pays by credit card, User authorizes Kievanos to charge User’s credit card or bank account for all fees payable during the Subscription Term. You further authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party.
3. Payment against invoice. If User pays by invoice, Kievanos will invoice User no more than forty-five (45) days before the beginning of the Subscription Term and each subsequent Billing Period, and other times during the Subscription Term when additional fees are payable. All amounts invoiced are due and payable within thirty (30) days from the date of the invoice, unless otherwise specified.
4. Payment Information. User will keep contact information, billing information and credit card information (where applicable) up to date. All payment obligations are non- cancelable and all amounts paid are non-refundable, except as specifically provided for in this Agreement. All fees are due and payable in advance for the entire Subscription Term, uncles otherwise agreed in writing.
5. Exchange Fees and Sales Tax. All Subscriptions are exclusive of Exchange Fees and taxes, which Kievanos will charge as applicable, or include in its invoices, as the case may be. User agrees to pay any Exchange Fee applicable to the use of Kievanos Services. User agrees to pay any taxes applicable to the use of Kievanos Services and any additional services of products if applicable. User shall have no liability for any taxes based upon Kievanos gross revenues or net income. If User is located in the European Union, all fees are exclusive of any VAT and User represents that s/he is registered for VAT purposes in their member state. At Kievanos’s request, User will provide Kievanos with the VAT registration number under which User is registered in their member state. If User is subject to GST, all fees are exclusive of GST. If User is required to deduct or withhold any tax, User must pay the amount deducted or withheld as required by law and pay Kievanos the full amount of payment due as if there were no deduction or withholding.
X. Limitations and Prohibited Use of Kievanos
AAs an expressed condition of using Kievanos, User agrees to not use the website and/or software and/or the Information and/or Kievanos Services for any purpose that is unlawful or that is prohibited by these conditions and terms. Further, User agrees to determine that the use of Kievanos to connect to and/or utilize information and/or services of User’s securities broker or dealer is not prohibited by User’s securities broker or dealer. Kievanos may only be used by a User located in a jurisdiction, state, county, province, territory, and/or country where such Information and/or Kievanos Services are allowed by (a) the jurisdiction, state, country, province, territory, and/or country, and (b) the United States.
XI. Restriction on and/or Termination of Access
1. Term. This License commences on the date User first licensed Kievanos Services and will continue for the Subscription Term, as selected by User in the payment process. It will be automatically renewed for an additional Subscription Term unless and until terminated pursuant to this Section XI. Kievanos may notify User that a License will not be renewed for an additional Subscription Term at any time.
2. Termination. There is no Early Termination; No Refunds. The Subscription Term will end on the expiration date and User cannot cancel it before its expiration. Kievanos does not provide refunds if User decides to stop using Kievanos Services during the Subscription Term. If User wishes to terminate this License, notify Kievanos in writing. Upon Kievanos’s receipt of User’s request, the subscription to Kievanos Services will no longer automatically renew and will expire at the end of the then-current Subscription Term.
3. Termination for Breach. Either party may terminate this Agreement for cause, as to any or all Kievanos Services:
a. upon a thirty (30) days notice to the party that committed a material breach if such a breach remains uncured at the expiration of such period, or
b. immediately, if the breaching party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation or assignment for the benefit of creditors. Kievanos may also terminate this Agreement for cause upon a thirty (30) days notice if Kievanos, in its sole discretion, determines that User directly or indirectly caused or may cause any kind of damages to Kievanos, its prospects, or its customers. This Agreement may not be terminated otherwise prior to the end of the Subscription Term.
4. Suspension. Kievanos may suspend User’s access to the data if User is in breach of this License. Kievanos reserves the right, in its sole discretion, to restrict, suspend or terminate User’s access to any and/or all of the Information and/or Kievanos Services at any time without prior or subsequent notice to User.
5. Survival. Sections 4, 8.4, 11.5 will survive the expiration or termination of this License. Upon termination, User will delete all copies of Kievanos Services and its data in User’s possession.
XII. Simulated Performance Disclaimer for A.I. System
1. In addition to the Limitations of Liabilities described in Section 4, User understands that the A.I. System, (referred to as “Daily List”), Allocation tools, and results shown herein are for informational purposes only. All the information included herein should not be considered as a recommendation to buy, sell or hold any security or use any trading system.
2. User understands that Kievanos is not responsible for any losses that may result from whatever action you elect to take based on your use of Kievanos Services including the Daily List & Allocation software. The Daily List & Allocation software may highlight different types of systems or algorithms from which User may choose to execute trades. Any type of system or algorithm User elects bears certain risks, along with the inherent financial risks related to investing in the stock market.
3. When trades are executed in real market conditions using market orders, User may suffer financial losses due to market instability and/or volatility which may cause the market to move against User’s position. Therefore, a decision to trade in the stock market is made at User’s own risk and responsibility. It is strongly recommended that User does their own research prior to commencing trading.
4. Daily List & Allocation systems assume trades occur with at least one share with no consideration for partial fills, nor increased market order slippage. Therefore, User’s actual trading results may not match the results displayed in the Daily List or Allocation panel.
5. Hypothetical or simulated performance results have certain inherent limitations. Unlike an actual performance record, simulated results do not represent actual trading. Also, since the trades have not actually been executed, the results may have under- or over-compensated for the impact, if any, of certain market factors, such as lack of liquidity. Simulated trading programs in general are also subject to the fact that they are designed with the benefit of hindsight. No representation is being made that any account will or is likely to achieve profits or losses similar to those shown.
XIII. Jurisdiction and Law that Applies to Agreement
This Agreement shall be governed and construed in accordance with the law of the State of Texas and the United States User agrees to submit itself to the jurisdiction of the state courts located in Brazos County, Texas, United States (or, if there is exclusive federal jurisdiction, the United States District Court for the Southern District of Texas, Houston Division) with respect to any legal proceedings that may arise in connection with Kievanos, the Information and/or Kievanos Services, and/or any dispute regarding this Agreement.
Any controversy, claim or dispute arising out of or relating to this Agreement, shall be settled solely and exclusively by binding arbitration in College Station, Texas. Such arbitration shall be conducted in accordance with the then prevailing commercial arbitration rules of JAMS/Endispute (“JAMS”), with the following exceptions if in conflict:
a. one arbitrator shall be chosen by JAMS;
b. each party to the arbitration will pay its pro rata share of the expenses and fees of the arbitrator, together with other expenses of the arbitration incurred or approved by the arbitrator; and
c. arbitration may proceed in the absence of any party if written notice (pursuant to the JAMS’ rules and regulations) of the proceedings has been given to such party.
Each party shall bear its own attorney’s fees and expenses. The parties agree to abide by all decisions and awards rendered in such proceedings. Such decisions and awards rendered by the arbitrator shall be final and conclusive. All such controversies, claims or disputes shall be settled in this manner in lieu of any action at law or equity; provided however, that nothing in this subsection shall be construed as precluding the bringing an action for injunctive relief or other equitable relief. The arbitrator shall not have the right to award punitive damages or speculative damages to either party and shall not have the power to amend this Agreement. The arbitrator shall be required to follow applicable law. IF FOR ANY REASON THIS ARBITRATION CLAUSE BECOMES NOT APPLICABLE, THEN EACH PARTY, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY AS TO ANY ISSUE RELATING HERETO IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER MATTER INVOLVING THE PARTIES HERETO.