Research & Informational Services Agreement
THIS RESEARCH & INFORMATIONAL SERVICES AGREEMENT (this “Agreement”) is made on the date of initial login or payment for services, whichever is earlier. This is the Commencement Date. Option Research & Technology Services, LLC, an Illinois limited liability company (“ORATS”), located at 36 Maplewood Ave., Portsmouth, New Hampshire 03801;
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement the following expressions shall have the following meanings: “Subscription Fees” mean the fees to be paid by the Client to ORATS in accordance with clause 4 for the provision of the Service as set out herein.
“Business Days” means any day on which banks are generally open for business in the U.S.
“Commencement Date” means the date on which this Agreement shall come into effect.
“Intellectual Property Rights” means all intellectual property and all rights therein including all research reports, commentary and/or inventions (whether patentable or not, and whether or not patent protection has been applied for or granted), proprietary information, trademarks, service marks, trade names, logos, artwork, slogans, know-how, technical information, trade secrets, processes, utility models, computer models, works in which copyright subsists or may subsist (including computer software and preparatory and design materials therefor and any user manuals or related material) and all works protected by rights or forms of protection of a similar nature or having equivalent effect anywhere in the world.
“Materials” means all materials (including but not limited to documents, reports, voice communication, data and software) which are created by ORATS and delivered to the Client in the course of providing the Service.
“Service” means the Service to be provided by ORATS to the Client as set out herein and incorporated herein by this reference as if set forth.
“Service User” means those individuals, if any, agreed in writing between ORATS and the Client who may receive the Service.
1.2 References to persons include individuals, bodies corporate (wherever incorporated) unincorporated associations and/or partnerships.
1.3 Headings are inserted for convenience only and shall not affect the construction or interpretation of this Agreement.
2. PROVISION OF THE SERVICE
2.1 In consideration of the payment by the Client of the Fees in clause 4.0, ORATS will supply the Service to the Client. The Client agrees to use the Service solely in accordance with the terms of this Agreement (including without limitation, clause 5).
2.2 ORATS undertakes and warrants that it will:
2.2.1 apply reasonable skill and care in the provision of the Service and
2.2.2 provide the Service in a timely and efficient manner, and subject to the terms in Schedule 1.
2.3 Nothing in this Agreement shall prevent ORATS from providing services, even the same or similar services to the Service to any third party regardless if such third party conducts similar business activities to the Client.
2.4 In providing the Service and/or the Materials to the Client, ORATS gives no guarantee as to the accuracy of the information provided. The Client accepts the Services “as is” and for “informational purposes only” and represents that it is sophisticated and capable of making its own investment decisions. The Services and/or Materials are not investment advice and the Client shall not rely on the Services and/or Materials in connection with investment decisions. ORATS, or its employees, may buy or sell securities that are listed in research reports provided to the Client, at any time without prior notice.
2.5 ORATS does not make discretionary recommendations as to particular securities or derivative instruments, and does not advocate the purchase or sale of any security or investment by you or any other individuals based on your investment objectives. ORATS does not guarantee the accuracy, completeness or timeliness of the Information. As set forth in greater detail below, ORATS offers no warranty of any kind or nature relative to the Information provided.
2.6 The Service and features of the Service are provided for informational purposes only and should not be construed as tailored investment advice. You should not rely solely on the information provided by ORATS in making any investment. Rather, you are advised to use such information only as supplemental information, or a starting point for doing additional independent research in order to allow you to form your own informed opinion regarding investments and trading strategies and/or choices.
2.7 Service provided by ORATS does not constitute a solicitation for the purchase or sale of securities. By using the Service you assume full responsibility for any and all gains and losses, financial, emotional or otherwise, experienced, suffered or incurred by you. The Service is not intended to provide tax, legal or investment advice, which you should obtain from your professional advisor prior to making any investment of the type discussed in the Information.
2.8 You acknowledge and agree that you must: (a) provide for your own access to the World Wide Web and pay any service fees associated with such access, and (b) provide all equipment necessary for you to make such connection to the World Wide Web, including a computer, software, a modem and a working telephone line.
In consideration of your use of the Service, you agree: (a) to provide true, accurate, current and complete information in all material respects, as requested by ORATS and (b) to update such information to keep it true, accurate, current and complete in all material respects. If any information provided by you is untrue, inaccurate, not current or incomplete in any material respect, ORATS has the right to terminate your account and refuse any and all current or future use of the Service. You agree not to resell or transfer the Service or use of or access to the Service.
3. COMMENCEMENT AND DURATION
3.1 This Agreement, including the provision of the Service, shall commence on the Commencement Date and shall continue unless and until terminated by either party in accordance with the terms of this Agreement.
3.2 Lifetime subscriptions shall commence on the Commencement Date and will last for as long as the applicable online service is available. For avoidance of doubt, the duration may be less than your actual lifetime and ORATS makes no representations or guaranties as to how long any service will be available. ORATS reserves the right to modify or discontinue, temporarily or permanently, all or any part of the services with or without notice, and/or to establish general guidelines and limitations on their use.
4.1 The Client shall pay ORATS a Subscription Fee with the initial installment due on the Commencement Date, as described further below in clause 4.2. Lifetime Subscription Fees will be paid one time and such subscriptions shall be subject to the terms and conditions of Section 3.2. Sections 4.2, 4.3 and 4.4 shall not apply to Lifetime Subscriptions.
4.2 The Subscription Fee (together with any applicable VAT or any other relevant tax) shall be paid monthly, quarterly or annually in advance, on a pro rata basis, due on the Commencement Date and thereafter on a monthly, quarterly or annual basis, due and payable no later than the fifth (5th) business day after each new calendar period.
4.3. The Subscription Fee will be automatically renewed on the day after the termination date.
4.4 The Subscription Fee will not include the penalty payments referenced in clause 5.1 below, which represent liquated damages for unauthorized distributions by the Client. The Client agrees to pay ORATS such penalty amounts within five (5) business days upon written notice by ORATS.
4.5 Payment should be made to ORATS in accordance with the payment instructions which are communicated to the Client.
5. USE OF THE SERVICE
5.1 ORATS will provide the Service to the Client solely to the Client’s designated Service User (which shall be the sole Service User of the Client entitled to access to the Service and the Materials). The Client undertakes to ensure that the Service User agrees to use the Service and the Materials solely for his/her own purposes, and not to distribute/redistribute the Service or the Materials, including the publications, to third parties, including other employees or agents of the Client. The Client acknowledges that ORATS may employ technology for the distribution of materials that informs ORATS of any distribution of its related materials, including any such publications, that is not in accordance with this clause 5.1.
5.2 Upon ORATS’ written consent, the Client may replace a designated Service User acceptable to ORATS, with another Service User of the Client, by notifying ORATS by email (or other method of communication) of the replacement Service User’s electronic address.
5.4 It is understood and agreed that the Client will use the information and data generated by ORATS for informational purposes only. ORATS does not provide the Service as advice for the purchases or sales of securities, or classes or types of securities; the timing or other planning of transactions in securities; or movements, trends, or patterns in or affecting securities markets.
5.5 Upon ORATS’ written consent, the Client may communicate to another Service User of the client that the research was generated using software and data provided by ORATS, by notifying ORATS by email (or other method of communication) of the other Service User’s electronic address.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 ORATS is the exclusive owner and retains all intellectual property and proprietary rights subsisting in the Service and/or the Materials (in all forms and mediums regardless of the manner of transmission) created by ORATS during the term of this Agreement shall be and shall remain ORATS’s exclusive property.
6.2 ORATS grants to the Client a non-transferable, non-exclusive, revocable limited license to use the Service and Materials for its own internal business purposes only, during the term of, in strict accordance with, this Agreement. The Client shall have no rights to such Service and Materials other than expressly set out in this Agreement.
6.3 Upon termination of this Agreement for any reason, the license granted herein to Client shall immediately terminate; provided, however, that Client is permitted to retain the Materials provided by ORATS pursuant to this Agreement for use in Client's own internal business after termination of this Agreement.
7.1 The Client agrees to keep confidential all information concerning the business affairs and practices of ORATS (“Confidential Information”) regardless if such information is marked as "confidential." The Client hereby agrees not to disclose such Confidential Information, including research reports, to any third party without the prior written consent of ORATS.
7.2 The Client may disclose Confidential Information if required to do so by law or any applicable regulatory authority, provided that the Client gives immediate notice to ORATS that such Confidential Information is so required to be disclosed and before doing so the Client gives ORATS an opportunity to challenge that requirement unless the giving of that notice or of that opportunity would place the Client in breach of an order of a court or other authority of competent jurisdiction.
7.3 The obligation of confidentiality contained in clause 7.1 shall not apply to Confidential Information which:
7.3.1 was already in the possession of the Client prior to the date on which the Client first entered into any discussion or arrangements (which includes the subscription trial period of the Service) with the Client;
7.3.2 was in the public domain at the time of receipt by the Client or has subsequently entered the public domain other than as a result of a breach of this Agreement or any other duty of confidence.
7.4 This clause 7 shall survive termination of this Agreement.
8.1 The Client acknowledges that ORATS has no contractual relationship with the Service Users and accordingly, the Client indemnifies ORATS against any losses, claims, damages, proceedings or actions suffered by ORATS as a result of claims by Service Users.
8.2 The Client acknowledges that ORATS shall not be liable for any loss, including the loss of profits, (whether actual or anticipated, or direct or indirect), special, indirect, economic or consequential losses (including, without limitation, loss of sales, contracts, customers savings or goodwill).
8.3 ORATS’s entire liability to the Client, howsoever incurred arising out of or in connection with this Agreement and the Service, including without limit, for breach of contract, misrepresentation (except that fraudulently made) and tort (including negligence) is limited to $1,000. Nothing herein shall preclude the Client from seeking remedies under federal or state securities laws.
9.1 This Agreement shall remain in force and effect for an initial term communicated to the client. ORATS or The Client may, however, terminate this Agreement at any time by giving to ORATS not less than thirty (30) days’ notice in writing provided that the Client shall not be entitled to terminate this Agreement pursuant to this clause 9.1 before the first anniversary of the Commencement Date. Lifetime Subscriptions shall terminate as set forth in Section 3.2 above, or as set forth in this Section 9, as applicable.
9.2 Either party may at any time by notice in writing terminate this Agreement if:
9.2.1 the other party is in breach of any provision of this Agreement which, if the breach is capable of remedy, has not been remedied within thirty (30) days of the notice from the non-defaulting party specifying the breach and the steps required to remedy it; or
9.2.2 the other party becomes insolvent or is unable to pay its debts, or enters into a compulsory or voluntary liquidation (other than a voluntary liquidation for the purposes of reorganization) or compounds with or convenes a meeting of its creditors or has a receiver or manager or an administrative receiver or an administrator appointed over all or part of its assets, or ceases for any reason to carry on business or takes or suffers any similar or analogous action in any other jurisdiction.
9.3 ORATS may terminate this Agreement at any time without notice, provided that unearned fees are returned to the Client, if;
9.3.1 any third party supplier of information or services to ORATS notifies ORATS that it has infringed another third party’s Intellectual Property Rights and is unable to supply the necessary information or services to ORATS; or
9.3.2 regulatory, legal or other circumstances make it not possible to continue providing the Service.
10. NON-PUBLIC INFORMATION
10.1 From time to time ORATS and its officers and employees may become aware of non-public information about investments or investment opportunities which could reasonably be expected to affect investment decisions (“Inside Information”). Various procedures are used to isolate Inside Information from ORATS Services. However, to comply with applicable law, from time to time ORATS may be required to abstain from actions, for itself and for the Client, based on the ORATS’ possession of Inside Information. Under no circumstances is ORATS obligated to give the Client, or use for the benefit of the Client, any Inside Information in the Adviser’s possession.
11.1 Force Majeure
If either party is unable to perform its obligations under this Agreement (except the Client’s obligation to pay the Subscription Fees) due to significant events or circumstances beyond the party’s control, then that party will not be in breach of the Agreement. If the events or circumstances causing the delay, interruption or inability to perform obligations under this Agreement persist for more than sixty days, either party may terminate this agreement with immediate effect, by giving the other party notice in writing.
11.2 Dispute Resolution
11.2.1 The parties agree to attempt to settle any dispute between them within ten (10) Business Days from the date on which either party brings the dispute to the attention of the other.
11.2.2 If the dispute has not been resolved within ten (10) Business Days the parties agree to submit the dispute to mediation for resolution. The parties agree to attempt to settle the dispute through mediation for a period of twenty (20) Business Days or such longer period as may be agreed in writing between the parties.
11.2.3 If the parties fail to resolve the dispute after thirty (30) Business Days, (or such longer period as may have been agreed between the parties under clause 10.2.2), either party may submit the dispute to a court or other appropriate body or tribunal for determination.
11.2.4 Nothing in this clause 10.2 shall prevent either party from seeking urgent or equitable injunction relief in any appropriate court.
Any notice required or permitted to be given by either party under this Agreement to the other must be in writing at the address listed above or a current address know by the parties, including email current email addresses. All notices must be delivered by recorded delivery, by hand, email or by courier, to the attention of the signatories to this Agreement (which may be amended from time to time by notice served in accordance with this clause 11.3).
11.4 Assignment Neither party may assign his or its rights under this Agreement without the prior written consent of the other. Assignment shall be defined in accordance with the Investment Advisers Act of 1940, as amended.
11.5 Variation This Agreement may not be varied, amended or modified in any manner except by an instrument in writing signed by a duly authorized representative of each of the parties to this Agreement.
11.6 Waiver No delay of failure on the part of either party to exercise or to enforce any right given to it by this Agreement or at law, or any custom or practice of either party at variance with the terms of this Agreement shall constitute a waiver of such party’s rights under this Agreement or operate so as to prevent the exercise or enforcement of any such right at a time.
11.7 Severability If any provision of this Agreement is held to be invalid or unenforceable, in whole or in part, that provision or part shall to that extent be deemed not to form part of this Agreement. However, the validity and enforceability of the remainder of this Agreement shall not be affected.
11.8 Entire Agreement This Agreement constitutes the entire agreement between the parties, and supersedes any previous agreement or understanding between the parties in relation to the subject matter hereof. All other terms and conditions express or implied by statute or otherwise, are excluded to the fullest extent permitted by law. This Agreement may not be varied except in writing signed on behalf of the parties.
11.9 Governing Law The validity, construction, interpretation and administration of this Agreement shall be governed by the substantive laws of the State of New Hampshire.
11.10 Agreement Acceptance This offer of the Agreement by ORATS to the Client will be open to acceptance by the Client for thirty (30) Business Days from Commencement Date above, and will come into force when ORATS receives the Agreement, without amendment, signed and dated by the Client.
11.11 Backtesting Disclaimers
HYPOTHETICAL PERFORMANCE RESULTS HAVE MANY INHERENT LIMITATIONS, SOME OF WHICH ARE DESCRIBED BELOW. NO REPRESENTATION IS BEING MADE THAT ANY ACCOUNT WILL OR IS LIKELY TO ACHIEVE PROFITS OR LOSSES SIMILAR TO THOSE SHOWN. IN FACT, THERE ARE FREQUENTLY SHARP DIFFERENCES BETWEEN HYPOTHETICAL PERFORMANCE RESULTS AND THE ACTUAL RESULTS SUBSEQUENTLY ACHIEVED BY ANY PARTICULAR TRADING PROGRAM. ONE OF THE LIMITATIONS OF HYPOTHETICAL PERFORMANCE RESULTS IS THAT THEY ARE GENERALLY PREPARED WITH THE BENEFIT OF HINDSIGHT. IN ADDITION, HYPOTHETICAL TRADING DOES NOT INVOLVE FINANCIAL RISK, AND NO HYPOTHETICAL TRADING RECORD CAN COMPLETELY ACCOUNT FOR THE IMPACT OF FINANCIAL RISK IN ACTUAL TRADING. FOR EXAMPLE, THE ABILITY TO WITHSTAND LOSSES OR ADHERE TO A PARTICULAR TRADING PROGRAM IN SPITE OF TRADING LOSSES ARE MATERIAL POINTS WHICH CAN ALSO ADVERSELY AFFECT ACTUAL TRADING RESULTS. THERE ARE NUMEROUS OTHER FACTORS RELATED TO THE MARKETS IN GENERAL OR TO THE IMPLEMENTATION OF ANY SPECIFIC TRADING PROGRAM WHICH CANNOT BE FULLY ACCOUNTED FOR IN THE PREPARATION OF HYPOTHETICAL PERFORMANCE RESULTS AND ALL OF WHICH CAN ADVERSELY AFFECT ACTUAL TRADING RESULTS.
WE HAVE LITTLE OR NO EXPERIENCE IN TRADING ACTUAL ACCOUNTS FOR CUSTOMERS. BECAUSE THERE ARE NO ACTUAL TRADING RESULTS TO COMPARE TO THE HYPOTHETICAL RESULTS, CUSTOMERS SHOULD BE PARTICULARLY WARY OF PLACING UNDUE RELIANCE ON THESE HYPOTHETICAL PERFORMANCE RESULTS. CONTACT YOUR INVESTMENT PROFESSIONAL AND ACCOUNTANT PRIOR TO EXECUTING ACTUAL TRADES.
11.12 Receipt of Parts 2A and 2B of Form ADV The Client hereby acknowledges receipt of Parts 2A and 2B of Form ADV (the “Brochure”), which contains information concerning the full range of the ORATS services and fees. Annual updates of the Brochure will either be sent to the Client or are made available upon written request, if applicable. The latest Parts 2A and 2B are available for download at the following links: