These Terms and Conditions ("T&C") are a contract between
You, a person or legal entity who uses one or more Finery Markets products and services under these T&C, including through Finery Markets software, websites, or applications (hereinafter referred to as "User") and
Finery Markets (BVI) Limited, registered number 2079689, with a registered office in Trinity Chambers, PO Box 4301, Road Town, Tortola, British Virgin Islands (hereinafter referred to as "Finery Markets"), and
(each a “Party” and together the “Parties”).
Finery Markets gives a User access to its software application (“Finery Markets software”) that is described in the Operating rules. By accessing and using the Finery Markets software, the User agrees to be bound by the T&C set out herein. If the User does not agree to these T&C, it must discontinue the use and may not access, display, use, download, and/or otherwise copy or distribute from Finery.
1. GENERAL PROVISIONS
- 1.1. Finery Markets agrees to provide the User with access to and User agrees to use Finery Markets software in strict accordance with the Operating rules.
- 1.2. "Users will be notified of updates to these T&C at the email address associated with their account.
- 1.4. Use of Finery Markets software is subject to the License fee as described in Section 4.
2. LIMITATION OF LIABILITIES
- 2.1. FINERY MARKETS, OUR OWNERS, OFFICERS, DIRECTORS, EMPLOYEES AND CONSULTANTS SHALL NOT BE LIABLE TO USER OR ANYONE CLAIMING THROUGH USER FOR ANY INCIDENTAL, DIRECT OR INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR LOSSES WHATSOEVER INCURRED IN RELATION TO THESE T&C INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS OR ANTICIPATED SAVINGS, LOSS OF REVENUE OR INCOME, LOSS OF USE OF PRODUCTION, LOSS OF BUSINESS, CONTRACTS AND OPPORTUNITIES, OR ANY OTHER SPECIAL, INDIRECT, OR CONSEQUENTIAL LOSS OR DAMAGE UNLESS SUCH DAMAGE IS CAUSED BY OUR (OR ANY OF OUR EMPLOYEES, AGENTS OR REPRESENTATIVES) WILLFUL MISCONDUCT, GROSS NEGLIGENCE, OR VIOLATION OF APPLICABLE LAW.
- 2.2. USER IS SOLELY RESPONSIBLE FOR MAINTAINING THE ACCURACY AND INTEGRITY OF ITS OWN DATA OR LOSS OF ANY DATA, ANY UNAUTHORIZED ACCESS TO, ALTERATION OF ITS DATA, PROGRAMS OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, FOR LOST OR CORRUPT TRANSACTION OR DATA BY WHATEVER MEANS IN WHATEVER FORMS. FINERY MARKETS, OUR OWNERS, OFFICERS, DIRECTORS, EMPLOYEES AND CONSULTANTS SHALL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER DUE TO ITS ACTS OR OMISSIONS.
- 2.3. TO THE EXTENT PERMITTED BY APPLICABLE LAW, FINERY MARKETS ARE NOT RESPONSIBLE FOR ANY DECISIONS MADE UPON CONFIRMATIONS OR ANY OTHER DATA PROVIDED BY FINERY MARKETS TO USER.
- 2.4. NEITHER PARTY SHALL BE LIABLE FOR ANY PERSONAL INJURY OR LOSS OF PROFITS.
- 2.5. Notwithstanding anything to the contrary in Sections above, neither Party excludes or limits its liability which cannot be excluded or limited by applicable law.
- 2.6. The Parties agree that the terms in this limitation of liability represent a reasonable allocation of risk. In no event shall the one Party’s liability to the other Party exceed 50 000 EUR (fifty thousand euros).
- 2.7. Finery Markets’ liability is strictly limited to Finery Markets’ own activities. Finery Markets is in no way liable for any actions, including those of gross negligence, willful misconduct or violation of applicable law, which are the responsibility of any counterparties or any other users including but not limited to those of Finery Markets software.
- 2.8. No action or claim relating to these T&C may be instituted more than one (1) year after the event giving rise to such action or claim.
3. CONFIDENTIAL INFORMATION AND NON-CIRCUMVENTION
- 3.1. Confidential Information for the purposes of these T&C shall mean the information such as characteristics and functionality of Finery Markets software applications, Finery Markets’ trading and order execution methods and their software implementations, operational and settlement processes, designs, product information and other know-how related to Finery Markets software applications, API and other technical information.
- 3.2. Each Party shall at all times keep confidential and shall not disclose to any third party any confidential information acquired in connection with these T&C, any means of communication, business processes or an API specification, except:
- 3.2.1. as required by Applicable Regulation or under the compulsion of law or by request of any regulatory, government or law enforcement agencies in any jurisdiction; or
- 3.2.2. to the extent that the confidential information is in or lawfully comes into the public domain other than by breach of this Clause; or
- 3.2.3. the cases where such disclosure is necessary in order to facilitate the fulfilment of the obligations under these T&C and is required by a third party such as an intermediary.
- 3.3. the cases where such disclosure is necessary in order to facilitate the fulfilment of the obligations under these T&C and is required by a third party such as an intermediary.
- 3.4. Users of Finery Markets software agree that themselves, their officers, directors, agents, associates and any related parties, will not directly or indirectly contact, deal with, transact, or otherwise be involved for the period of 24 months from the date of introduction with any corporation, partnership, proprietorship, trust, or other entities who are Users of Finery Markets software if the initial contact between the parties (introduction) was through the Finery Markets software or officers, directors, agents or other Finery Markets’ representatives, unless (i) the parties use Finery Markets software to deal or transact with one another to the extent allowed by the functionality of Finery Markets software or (ii) the approval to do so is granted by Finery Markets in writing on a case by case basis.
4. FEES AND PAYMENT PROCEDURES
- 4.1. The Parties have agreed on a License fee that shall be paid on a monthly basis by User to Finery Markets.
- 4.2. The License fee rate is shown in the Tariff Policy. The License fee does not include VAT
- 4.4. Payment terms and conditions between the Licensor and the Licensee:
- 4.3.1. The Licensor issues an invoice at the beginning of the month that follows the month for which the License was provided. The License Fee invoice shall be paid within 10 working days.
- 4.3.2. If the invoice is not settled in the due time then the Licensor has the right to refuse access to Finery Markets software and/or terminate the Agreement with immediate effect.
- 4.3.3. Each Party shall be liable for its own tax obligations and shall bear responsibility for payment of its own taxes in accordance with the applicable tax rules.
- 4.3.4. The Licensor shall have the right to impose a late payment charge of 0.1% of the amount due per every day of delay. The settlement day is the day on which the appropriate amounts are credited to the Licensor’s bank account.
- 4.3.5. Payments shall be made to the payment details provided in the applicable invoice.
5. TERMINATION AND AMENDMENTS
- 5.1. These T&C shall become effective on the same date when it is signed by both Parties.
- 5.2. Each Party has the right to terminate the Agreement at any time by providing written notice to the other Party, through the agreed means of communication stated under the "Communication" section of these T&C, including fourteen (14) day notice period
- 5.3. Any Party may terminate these T&C immediately by giving written notice of termination to the other Party if the other Party commits a material breach of these T&C.
- 5.4. Any Party may terminate these T&C immediately by giving written notice of termination to the other Party if:
- 5.4.1. the other Party: is dissolved, ceases to conduct all (or substantially all) of its business, is or becomes unable to pay its debts as they fall due, is or becomes insolvent or is declared insolvent; or convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
- 5.4.2. an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other Party;
- 5.4.3. an order is made for the winding up of the other Party, or the other Party passes a resolution for its winding up (other than for the purpose of a solvent company reorganization where the resulting entity will assume all the obligations of the other Party under the Agreement);
- 5.5. Notwithstanding anything to the contrary in these T&C, the obligations contained in Sections 2, 3, 6, 7, 8, and 9 shall survive the termination of these T&C.
- 6.1. The Parties warrant that they have the legal right and authority to enter into these T&C and to perform their obligations under the Agreement.
- 6.2. All of the Parties' warranties and representations in respect of the subject matter of these T&C are expressly set out in these T&C.
- 6.3. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of these T&C will be implied into the Agreement or any related contract.
- 7.1. Each Party agrees to indemnify and hold harmless the other Party, and its respective directors, shareholders, affiliates, officers, agents, employees, and permitted successors and assigns against any and all claims, losses, damages, liabilities, penalties, punitive damages, expenses, reasonable legal fees and costs of any kind or amount whatsoever, which result from or arise out of any act or omission of the indemnifying Party, its respective directors, shareholders, affiliates, officers, agents, employees, and permitted successors and assigns that occurs in connection with these T&C.
- 7.2. This indemnification will survive the termination of these T&C.
- 8.1. Any notice or other communication required or authorized to be given under these T&C shall be done in writing.
- 8.2. Any notice or other communication may be sent by email to the Parties' addresses. Finery Market’s address for notice or communication is firstname.lastname@example.org. User’s address for notice of communication will be the address associated with their account.
- 9.1. These T&C supersedes any previous agreement(s) between the Parties and constitutes the entire agreement between the Parties relating to the subject matter of these T&C.
- 9.2. If there is any inconsistency between the provisions of these T&C and the Operating Rules, the Operating rules shall prevail.
- 9.3. To the extent that any provision of these T&C is found by any court or competent authority to be invalid, unlawful or unenforceable in any jurisdiction, that provision shall be deemed not to be a part of these T&C and shall not affect the enforceability of the remainder of these T&C nor shall it affect the validity, lawfulness or enforceability of that provision in any other jurisdiction.
- 9.4. The Parties agree that each Party has a right but not an obligation to make the information of User’s using Finery Markets software public by means of a press release or alike.
- 9.5. User’s consent to the collection, storage, and disclosure by Finery Markets and our agents of any confidential information to governmental authorities as required by law or other agreement by or between governments. Confidential information includes personal data, account details, transactional information, and any other information that a reasonable person would consider being of a confidential or proprietary nature.
- 9.6. The captions are for convenience only and in no way define, limit or enlarge the scope of these T&C or any of its Sections.
- 9.7. These T&C and the rights and obligations of the Parties hereunder shall be governed by the laws of England and Wales.
- 9.8. The Parties hereby agree that the Arbitration Service of the Cyprus Chamber of Commerce and Industry (CCCI) shall have exclusive jurisdiction over any issues regarding these T&C. The language of the arbitration shall be English. All differences of any nature that may arise in relation to this contract between the contracting Parties, shall be referred to arbitration by a single Arbitrator in accordance with the provisions of the Arbitration Law of Cyprus, Cap 4. The Arbitrator will be proposed by the Arbitration Service of the Cyprus Chamber of Commerce and Industry (CCCI) and must be approved by the contracting Parties. In case of disagreement between the contracting Parties on the proposed Arbitrator, the Arbitrator will be appointed in accordance with the provisions of the Arbitration Law of Cyprus, Cap 4.