Terms of Use

These Terms of Use govern the terms of your access and use of tradeWinger.com website and content, and constitute your legal agreement with us.

You should read these Terms carefully before you use the Website.

BY USING THE WEBSITE YOU AGREE TO THESE TERMS OF USE.

These Terms do not apply to any software distributed through the Website. Please, refer to a license agreement that accompanies such software.

1. Definitions

  • “Terms”, “Terms of Use” mean these Terms of Use.
  • “User”, “you” means a person or a business entity using the Website, Content and User Content.
  • “We”, “us”, “Website” means the websites accessible at https://tradeWinger.com, including sub-domains, programming code, related technologies, know-hows, databases and design.
  • “Content” means video files, texts, graphics, works of art, images, data or other intellectual property, content or information, made available to you by us, excluding User Content. Content is located at, is a part of or is distributed through the Website.
  • “User Content” means texts, images, data or other intellectual property, content or information, which you post, upload and otherwise submit to the Website, including without limitation comments, communications via our support center, message board posts and User profile pages.

2. Registration

Registration. No registration is required to use the Website.

Privacy Policy. We respect your privacy. Please refer to our Privacy Policy, which is incorporated by reference into these Terms, and which explains how we collect, use, and disclose information that pertains to your privacy.

3. Intellectual Property Rights and Content

Our Intellectual Property Rights. We own and protect from illegal use the exclusive rights in Our Intellectual Property, in particular:

  • Programming code of the Website;
  • Design and elements of the Website;
  • Website databases;
  • Software distributed through the Website;
  • Other Content, which is not Third Parties Intellectual Property.

No rights in Our Intellectual Property are granted to you, except for the rights explicitly indicated in these Terms.

We reserve the right to prosecute any infringers in court and/or through other authorities in order to protect Our Intellectual Property.

Third Parties Intellectual Property Rights. NinjaTrader and other designations are trademarks or service marks of their respective owners.

Third-party trademarks are used:

  • With their owners consent, or
  • To describe and/or refer to the particular product, company or service underlying the trademark. In this case we are not affiliated with, endorsed by or sponsored by any of the trademark owners.

4. User Content

You are not required to include any information in any User Content that identifies you. If you choose to provide personal identifying information, you do so at your own risk.

We may limit the length of User Content.

License Grant. By posting, publishing, uploading, submitting, emailing, or otherwise transmitting any User Content to us on the Website, you hereby grant:

  • To us a non-exclusive, worldwide, royalty-free, sublicensable, perpetual and irrevocable right and license to use, reproduce, modify, adapt, prepare derivative works based on, perform, display, publish, distribute, transmit and otherwise exploit such User Content in any form, medium, device or technology now known or later developed, including without limitation on third party websites and platforms.
  • To each User of the Website a non-exclusive license to access your User Content as permitted through the functionality of the Website.

We do not claim ownership rights in User Content.

We reserve the right to moderate any User Content or remove any User Content for any reason

YOU REPRESENT AND WARRANT THAT YOU OWN OR HAVE THE NECESSARY LICENSES, RIGHTS, CONSENTS AND PERMISSIONS TO GRANT THE FOREGOING LICENSES TO US. You agree to execute and deliver such documents and provide all assistance reasonably requested by us, if that becomes necessary.

YOU REPRESENT AND WARRANT THAT NEITHER USER CONTENT OR YOUR POSTING, UPLOADING, PUBLICATION, SUBMISSION OR TRANSMITTAL OF USER CONTENT OR EXERCISING THE RIGHTS TO USER CONTENT BY US IN ACCORDANCE WITH THESE TERMS OF USE ON, THROUGH OR BY MEANS OF THE WEBSITE WILL INFRINGE, MISAPPROPRIATE OR VIOLATE A THIRD PARTY’S PATENT, COPYRIGHT, TRADEMARK, TRADE SECRET, MORAL RIGHTS OR OTHER INTELLECTUAL PROPERTY RIGHTS, OR RIGHTS OF PUBLICITY OR PRIVACY, OR RESULT IN THE VIOLATION OF ANY APPLICABLE LAW OR REGULATION.

Our Disclaimer. We have no ability to control User Content that is posted, uploaded or otherwise published using the Website, and do not have any obligation to monitor such User Content for any purpose and, as a result, are not responsible for the accuracy, completeness, appropriateness, legality or applicability of any User Content or anything said, depicted or written by Users.

We do not endorse any User Content or any opinion, recommendation, or advice expressed therein and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against us with respect thereto.

5. Use of Website

Ownership. We, our licensors or other third parties own all right, title and interest, including all worldwide intellectual property rights in the Website and Content and the trademarks, service marks and logos contained therein, other than User Content.

License Grant. Permitted Use. Subject to your compliance with these Terms, we give you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to access and use the Website or Content for your own personal non-commercial use. This license is for the sole purpose of enabling you to use and enjoy the benefits of the Website or Content in the manner permitted by these Terms.

Any other use (including commercial use) of the Website, Content or User Content requires our prior written consent.

The Website, Content and User Content may be used and accessed for lawful purposes only. You agree to abide by all applicable local, state, national and foreign laws and regulations in connection with your use of the Website, Content and User Content.

Restrictions and User Obligations. You agree that you will not do any of the following while using or accessing the Website, Content and User Content:

  • Post, upload, or otherwise transmit through the Website any User Content:

– that is unlawful, obscene, harmful, threatening, harassing, defamatory or hateful or that contain objects or symbols of hate, invade the privacy of any third party, contain nudity (including without limitation any pornography), is deceptive, threatening, abusive, inciting of unlawful action, defamatory, libelous, vulgar or violent or constitute hate speech or is otherwise objectionable in our opinion;

– that infringes the intellectual property rights or violates the privacy rights of any third party (including without limitation copyright, trademark, patent, trade secret, or other intellectual property right, or moral right or right of publicity), or otherwise violates or promotes the violation of the rights of any third party;

– to which you do not have the lawful right to copy, transmit and display (including any User Content that would violate any confidentiality or fiduciary obligations that you might have with respect to the User Content);

– for which you do not have the consent or permission of each identifiable person in the User Content to use the name, voice, signature, photograph, or likeness of each such person (to the extent each is implicated by the User Content) and such consent or permission is necessary;

– that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy or limit the functionality of any computer software, or interferes with the access of any user, host or network, including without limitation sending a virus, overloading, flooding or spamming the Website.

  • Reproduce, modify, adapt, prepare derivative works based on, perform, display, publish, distribute, transmit, broadcast, sell, license or otherwise exploit the Website, Content or User Content (other than your own User Content).
  • Use the Website, Content or User Content in a commercial manner.
  • Post, upload, or otherwise transmit through the Website any unsolicited or unauthorized advertising, promotional materials, junk, spam, chain letters, “pyramid schemes” or any other form of solicitation.
  • Circumvent, disable or otherwise interfere with security related features of the Website or features that prevent or restrict use or copying of any Content or User Content.
  • Forge any TCP/IP packet header or any part of the header information in any posting or in any way use the Website to send altered, deceptive or false source-identifying information.
  • Interfere with or disrupt (or attempt to interfere with or disrupt) any web pages available on the Website, servers or networks connected to the Website, or the technical delivery systems of our providers or disobey any requirements, procedures, policies or regulations of networks connected to the Website.
  • Attempt to probe, scan or test the vulnerability of any our system or network or breach or impair or circumvent any security or authentication measures protecting the Website, Content or User Content.
  • Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Website.
  • Attempt to access, search or meta-search the Website, Content or User Content with any engine, software, tool, agent, device or mechanism other than software and/or search agents provided by us or other generally available third party web browsers, including without limitation any software that sends queries to the Website to determine how a website or web page ranks.
  • Collect or store personal data about other Users without their express permission.
  • Impersonate or misrepresent your affiliation with any person or entity, through pretexting or some other form of social engineering or otherwise commit fraud.
  • Use the Website, Content or User Content in any manner not permitted by these Terms.
  • Encourage or instruct any other individual to do any of the foregoing or to violate any these Terms.

6. Disclaimer of Warranties

Your use of the Website, Content or User Content and any other information, products or software made available through the Website is at your sole risk and discretion and we hereby disclaim all liability to you or any third party relating thereto.

The Website, Content and User Content, and all materials, information, products and services included therein, are provided on an “AS IS” and “AS AVAILABLE” basis without warranties of any kind. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, RELATING TO THE WEBSITE, CONTENT AND USER CONTENT, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF PROPRIETARY RIGHTS, COURSE OF DEALING OR COURSE OF PERFORMANCE.

We disclaim any warranties:

  • Regarding the security, accuracy, reliability, timeliness and performance of the Website.
  • That the Website, Content and User Content will be error-free or that any errors will be corrected.
  • That the Website, Content or User Content will be of any particular quality, meet any standards or requirements, or conform to any of your expectations in this regard.

No advice or information, whether oral or written, obtained by you from us, will create any warranty not expressly stated in these Terms. Some states or jurisdictions do not allow the exclusion of certain warranties. Accordingly, some of the above exclusions may not apply to you.

Compatibility. We do not warrant that Website will be compatible with all hardware and software which you may use or which may exist or will exist in the future.

Third Parties Software and Content. We are not responsible for:

  • The content, services, applications or availability of third parties’ websites that you access using the Website.
  • The availability, performance, functionality or any consequences of your use of any third parties’ components, software, modules built into or otherwise integrated and available through the Website.

7. Limitation of Liability

IN NO EVENT WILL WE, OUR OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE WEBSITE, CONTENT AND USER CONTENT WHETHER THE DAMAGES ARE FORESEEABLE AND WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8. Indemnification

You agree to defend, indemnify, and hold us, our parents, subsidiaries, affiliates, customers, vendors, and their respective officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including without limitation reasonable attorney’s fees and costs, arising out of or in any way connected with:

  • Your access to or use of the Website, Content and User Content.
  • Your violation of these Terms.
  • Your violation of any third party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right.
  • Any claim that your User Content caused damage to a third party, including without limitation claims that your User Content are infringing.

9. External Links and Third Party Advertisements

The Website may contain external links or advertisements that provide links to third party websites or resources. You acknowledge and agree that we are not responsible or liable for the availability or accuracy of, and we do not endorse, such websites or resources or the content, products, or services on or available from such websites or resources. When you click on an ad, follow a link, or engage with a third party service, website, resource you are interacting with the third party, not with us. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites, products, content, promotions services or resources. Your access, purchase or use of any website, product or service, and any information provided by you or collected as a result of such interaction, shall be governed by the applicable third party privacy policy, data gathering practices, terms of use or other agreements.

You are advised not to provide any personally identifiable information to any third party service unless you know and are comfortable with the party with whom you are interacting.

Without limiting other rights we will have the right to insert, place or include advertisements of any type on the Website and within or around Content or any User Content. We are not responsible for such advertisements and their content.

10. Your Feedback

If you choose to communicate to us any feedback, ideas or suggestions for improvement of the Website, you grant us free-of-charge, irrevocable, non-exclusive, transferable right to use, modify, share, distribute and communicate such feedback for any and all commercial or non-commercial purposes, without charge and free of any obligation of attribution. You warrant that any such feedback you communicated to us is not subject to any license or any other third party right.

11. Modifications

We reserve the right, at our sole discretion:

  • To modify or revise these Terms at any time by posting the amended Terms on the Website. Please check the most current Terms to ensure that you are aware of all the terms governing your use of the Website.
  • To make changes, update or discontinue the Website, Content, User Content or any format, feature or functionality thereof at any time with or without notifying you.
  • To terminate or restrict access to the Website for any reason whatsoever.

Your continued use of the Website after a change or update has been made will constitute your acceptance to the revised Terms of Use. If you do not agree with the modifications, please discontinue use of the Website immediately, and cancel the account you have opened with us.

These Terms remain effective from the date of acceptance until terminated by you or us in accordance with these Terms.

12. Termination and Account Cancellation

You may terminate these Terms at any time by ceasing to use the Website.

Without limiting other remedies, we may suspend or terminate these Terms with you, or may terminate or suspend your use of the Website, and/or may remove any User Content at any time if:

  • You violate any term of these Terms of Use.
  • You infringe proprietary rights, rights of privacy, or intellectual property rights of any person, business or organization.
  • You engaged in other actions relating to or in the course of using the Website that may be illegal or cause liability, harm, embarrassment, harassment, abuse or disruption for you, other Users, us, any other third parties or for the Website.
  • It is required by applicable law.
  • We cease offering the services and/or discontinued the Website.

Notwithstanding the foregoing, we also reserve the right to terminate the Website or cancel your account at any time and for any reason.

Upon termination of these Terms all licenses and rights to use the Website shall immediately terminate; and you will immediately cease any and all use of the Website.

Upon any termination your account you will no longer be able to access User Content submitted by you. We will have no obligation to maintain any information and User Content stored in our database related to your account or to forward any information to you or any third party.

Any suspension or termination of these Terms will not affect your obligations to us and/or other Users under these Terms, including, without limitation, proprietary rights and ownership, indemnification and limitation of liability, confidentiality, which reasonably are intended to survive such suspension or termination.

13. Jurisdiction

Choice of Law. You agree that the laws of Cyprus govern these Terms of Use, their subject matter, the relationship between you and us, any action related these Terms, and any claim or dispute it may arise, without regard to the conflict of laws rules, and that the United Nations Convention on Contracts for the International Sale of Goods shall have no applicability.

Location for Resolving Disputes. You further agree that any disputes or claims related to these Terms of Use will be resolved by state courts located in Cyprus, and you agree and submit to the exercise of personal jurisdiction of such courts for the purpose of litigating any such claim or action. BY AGREEING TO THESE TERMS, YOU ARE:

  • WAIVING CLAIMS THAT YOU MIGHT OTHERWISE HAVE AGAINST US BASED ON THE LAWS OF OTHER JURISDICTIONS, INCLUDING YOUR OWN.
  • IRREVOCABLY CONSENTING TO THE EXCLUSIVE JURISDICTION OF, AND VENUE IN, THE STATE COURTS LOCATED IN CYPRUS OVER ANY DISPUTES OR CLAIMS YOU HAVE WITH US.
  • SUBMITTING YOURSELF TO THE PERSONAL JURISDICTION OF SUCH COURTS FOR THE PURPOSE OF RESOLVING ANY SUCH DISPUTES OR CLAIMS.

14. General

Force Majeure. We will not be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder on account of events beyond its reasonable control, which may include, without limitation, denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes, material shortages, extraordinary Internet congestion or extraordinary connectivity issues experienced by telecommunications providers and unrelated to our infrastructure or connectivity to the Internet, or failure at our co-location facility, (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, we will be excused from any further performance of our obligations effected by the Force Majeure Event for so long as the event continues.

Notices. Any notices or other communications permitted or required under these Terms will be in writing and given by us:

  • Via email (to the address that you provide during registration), or
  • By posting to the Website.

Consent to Receive Communications in Electronic Form. For contractual purposes, you:

  • Consent to receive communications from us in an electronic form via the email address you have submitted; and
  • Agree that the Terms and all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if it were in writing.

No Assignment. You will not assign these Terms or assign any rights or delegate any obligations hereunder, in whole or in part, whether voluntarily or by operation of law, without our prior written consent. Any purported assignment or delegation by you without our appropriate prior written consent will be null and void.

We may assign these Terms or any rights hereunder without your consent.

No Waiver. The failure by us to exercise, or delay in exercising, a legal right or remedy provided by these Terms or by law shall not constitute a waiver of our right or remedy.

Severability and Integration. These Terms of Use constitutes the entire agreement between you and us and supersedes all previous written or oral agreements. If any part of these Terms is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect.

 

Last updated: July 29, 2017