End User Terms of Service
END USER TERMS OF SERVICE
Last Updated: February 1, 2023
This End User Terms of Service (this “Agreement”) is a binding agreement between you (“you” or “your”) and Barchart.com, Inc. (“BARCHART”).
BY SELECTING “I AGREE” YOU (A) AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT AS IT RELATES TO THE APPLICABLE SERVICES; AND (B) REPRESENT AND WARRANT THAT (I) YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF ENTERING INTO THIS AGREEMENT ON BEHALF OF A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND BIND THE ENTITY TO ITS TERMS. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT USE THE SERVICES.
(a) “Derivative Works” means any new data products, indices, valuation methodologies, lending models, forward contracts, derivatives, or original work created, whether by BARCHART or you, from the processing of Information (as defined below) and/or the Services (as defined below).
(b) “End User Data” means all non‐public data related to or originating from you that BARCHART collects from you to enable the provision of certain Services.
(c) “Information” means Trade Information (as defined below) and all other prices, news, weather, statistics, balances, account information, and other data created by BARCHART, or obtained by BARCHART from sources including but not limited to: (i) securities, commodities, futures, options and/or currency dealers and exchanges; (ii) providers of proprietary databases, software or other services; (iii) news services; and (iv) federal, state and local governmental agencies.
(d) “Physical Commodities Trading Agreement” has the meaning set forth in Section 8(a)(ii).
(e) “Services” means: (i) the BARCHART proprietary products provided to you under this Agreement, which may include without limitation, BARCHART’s Trading Functionality (as defined below); (ii) any updates and/or modifications such as enhanced features, software updates, or other functionalities, and related documentation to BARCHART’s proprietary products; and (iii) Information made available through the Services provided to you pursuant to this Agreement.
(f) “Trade Information” means the information concerning futures trading and account activity available through the Services.
(g) “Trading Functionality” means BARCHART’s services that allow you to access, use, and view your trading accounts with third-party brokerage firms or futures commission merchants and physical commodity trading functionality.
2. License Grant and Restrictions.
(a) Subject to your compliance with all terms and conditions of this Agreement, BARCHART hereby grants to you a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to use the Services on devices owned and operated by you. You may not share, transfer, assign, sell, sub-license, publish, post, convey or distribute the Services to any other computer system, third party or otherwise make the Services available through means where it could be used by multiple users or devices at the same time. Your use of any Derivative Works will be subject to a separate agreement with BARCHART.
(b) BARCHART has the right to limit, alter or discontinue available Services of certain features of the Services, or terminate or suspend the Services, at any time and at BARCHART’s sole discretion without prior notice.
(c) You represent and warrant that you are not currently engaged, nor will you engage, in the operation of any unlawful transactions or business and that you will not use or permit anyone to use the Services for any unlawful purposes.
(d) You agree to hold and use the proprietary aspects of the Services and Information in the same manner as you treat your own proprietary information and trade secrets and you will not divulge, directly or indirectly, in whole or in part, to any firm, individual (other than your employees and representatives), or third parties, any proprietary data relating to the Services or Information, or the technology embodied therein, except as required by law.
3. Prohibited Uses. In connection with your use of the Services, you will not violate any applicable law, contract, or intellectual property right of a third party, and you are solely responsible for your conduct while using the Services. You will not:
(a) Engage in any harassing, threatening, intimidating, predatory or stalking conduct;
(b) Use or attempt to use another user’s account;
(c) Impersonate or post on behalf of any person or entity or otherwise misrepresent your affiliation with a person or entity;
(d) Copy, reverse engineer, decompile, reproduce, distribute, publicly perform or publicly display all or portions of the Services or any features or functionalities provided by or within the Services or any part thereof, except as expressly permitted by BARCHART;
(e) Modify the Services, remove any proprietary rights notices or markings, or otherwise use the Services or Information to make any Derivative Works.
(f) Use the Services other than for their intended purpose and in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the BARCHART Services or that could damage, disable, overburden or impair the functioning of the Services in any manner;
(g) Develop or use any applications that interact with the Services without BARCHART’s prior written consent;
(h) Use the Services for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates this Agreement.
4. Proprietary Rights. You acknowledge and agree that as between you and BARCHART, BARCHART holds all right, title and interest in and to the intellectual property rights in: (i) the Information and the format by which BARCHART transmits Information for BARCHART proprietary datasets; (ii) the Services provided to you hereunder; and (iii) any Derivative Works.
5. Term, Termination and Fees. This Agreement is effective until terminated. Your rights under this Agreement will terminate automatically, or otherwise cease to be effective, without notice from BARCHART, if you fail to comply with any term of this Agreement. BARCHART may terminate this Agreement at any time without notice if it ceases to support the Services, which BARCHART may do in its sole discretion. You may terminate this Agreement under your account settings or by contacting BARCHART at firstname.lastname@example.org and receiving cancellation confirmation back from BARCHART via email. Upon termination of this Agreement, all rights granted to you under this Agreement will also terminate and you shall cease all use of the BARCHART Services. Fees are due through the end of any month in which this Agreement is terminated. BARCHART may increase the recurring fees for the Services on an annual basis relative to the Effective Date of the Agreement. Any right or obligation set forth in this Agreement which, by its express terms or nature and context, is intended to survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement.
6. Consent to Collection and Use of End User Data.
(b) By uploading, submitting, storing, sending or receiving content or information to or through the Services, you give BARCHART a perpetual, irrevocable, fully paid-up, worldwide, non-exclusive, and royalty-free right and license to: (i) use, host, store, reproduce, modify, create derivative works, communicate, publish, and distribute End User Data; (ii) provide End User Data to third parties designated by you, including BARCHART clients and partners; (iii) collect, store, and analyze End User Data and data derived therefrom and other information relating to use of various aspects of the Services and related systems and technologies; and (iv) use End User Data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other BARCHART offerings, whether offered currently or in the future. The rights granted to BARCHART in this Section are solely for the purpose of building, operating, promoting, and improving our Services, and to facilitate the development of new Services which may include the creation of BARCHART products. The rights granted under this Section continue even if you stop using the Services.
(c) Certain BARCHART Services may integrate with and permit you to link accounts with third-party services. By electing to link your account with a third-party service, you expressly acknowledge and agree that: (i) BARCHART may exchange End User Data with such third parties, either directly or through a third-party data aggregator, for the purpose of providing the Services; and (ii)all rules, policies (including privacy policies) and operating procedures of the third-party service provider will apply to you while using the integrated services.
(d) During the term of this Agreement, BARCHART may display your End User Data in our Services, including using your End User Data in directories public to the users of the Services.
(e) Except as authorized in this Section 6, or as otherwise authorized by you in writing, BARCHART shall only share your personal information for purposes of providing services to you or any other legitimate business purpose relating to our business activities. BARCHART may use and disclose all data and other information relating to the provision, use and performance of various aspects of the services and related systems and technologies (including, without limitation, End User Data and data derived therefrom) in connection with any legal business purpose, including without limitation creating Derivative Works, during and after the term of this Agreement, provided that BARCHART aggregates, de‐personalizes and anonymizes the data and makes no direct reference to you, and provided BARCHART complies with all applicable laws and regulations.
7. Accessing the Services.
(b) If you choose, or are provided with, a username, password, or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to the Services or portions of it using your username, password, or other security information. You agree to notify BARCHART immediately of any unauthorized access to or use of your username or password or any other breach of security.
(c) BARCHART has the right to disable any username, password, or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any reason, including if, in our opinion, you have violated any provision of this Agreement.
8. Trading Functionality.
(a) Some of the BARCHART Services may allow you to engage in: (i) futures commodity trading; and (ii) physical commodity transactions with BARCHART customers as part of the BARCHART Services.
i. Futures Trading. In order to trade futures (including options on futures), BARCHART, either directly or through a third-party service provider, will assign you a Futures Trading username and password. BARCHART will connect your Futures Trading account to third-party futures commissions market and brokerage accounts. All orders you initiate are your responsibility and are solely at your risk. If you do not receive affirmative notification that the order has been either accepted or rejected for placement, it is your responsibility to notify the brokerage firm carrying your trading account. You acknowledge and agree that BARCHART is entitled to assume that any order placed through the Services under your account has been transmitted by you and BARCHART has the absolute authority to effect any order made through the Services, where the requisite user name and password information in relation to your account have been provided. You acknowledge that BARCHART is entitled to decline to process any order initiated under your account if BARCHART suspects fraud or unauthorized use, or for any other reason. Notwithstanding the foregoing, acceptance of an order for placement does not constitute an agreement or representation by BARCHART that there is sufficient margin in your account to support the resulting position. You hereby acknowledge your responsibility to keep apprised of current margin requirements in connection with all trading activities.
ii. Physical Commodities Trading. You may engage in physical commodities transactions using your standard BARCHART username and password. All orders you initiate are your responsibility and are solely at your risk. The order details of any transaction you choose to enter into will be outlined in a separate agreement between you and the counterparty (each, a “Physical Commodities Trading Agreement”). As part of the Services, BARCHART may provide certain features that facilitate the execution of Physical Commodities Trading Agreements. BARCHART has no responsibility for tracking or confirming acceptance or orders or for facilitating the negotiation or execution of Physical Commodities Trading Agreements. You acknowledge and agree that you, and not BARCHART, will be responsible for performing the obligations of the Physical Commodities Trading Agreement, that BARCHART is not a party to the Physical Commodities Trading Agreement and that, except as expressly stated otherwise in this Agreement, BARCHART disclaims all liability arising from or related to any Physical Commodities Trading Agreement.
9. Security. Use of the Services involves the electronic transmission of data and information to and from you across wireless and other networks. You acknowledge and agree that BARCHART does not operate or control the wireless and other networks used to access your account and BARCHART is not responsible or liable for the privacy and security of your wireless data and information transmissions. BARCHART has implemented features to prevent system failure. However, as with any electronic system it is possible that service may, from time-to-time, be subject to delay, error, or failure, with results that include, but are not limited to: (i) an inability for you to place trade orders; (ii) delay in receipt of information by BARCHART from you or by you from BARCHART; (iii) failure of you to receive messages from BARCHART; or (iv) you erroneously believing that you have placed an order when BARCHART’s records show that it has not received an order from you. Depending on the type of failure, it may not be possible to access the Services or certain features of the Services. Due to the nature of the services provided, BARCHART does not warrant that the operation of the Services will be uninterrupted or entirely error-free. BARCHART shall not be liable for any loss resulting from systems failure, breakdown of electronic or mechanical equipment or communication lines, telephone or other interconnect problems, unauthorized access to your BARCHART account, your operating errors and any other condition over which BARCHART does not control.
10. LIMITATION OF LIABILITY. EXCEPT IN INSTANCES WHERE THERE HAS BEEN A FINDING OF WILLFUL OR GROSS MISCONDUCT, IN WHICH CASE THE PARTY FOUND TO HAVE ENGAGED IN SUCH CONDUCT CANNOT AVAIL ITSELF OF THE PROTECTIONS UNDER THIS PARAGRAPH, NEITHER BARCHART NOR ITS OFFICERS, DIRECTORS, AFFILIATES, SUBSIDIARIES, OR ANY OF THEIR EMPLOYEES SHALL BE LIABLE UNDER OR IN CONNECTION WITH THE TERMS OF THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (B) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE SYSTEM; (C) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (D) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, BARCHART’S LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO AN AMOUNT NOT TO EXCEED THE TOTAL AMOUNT OF SERVICE FEES PAID TO BARCHART UNDER THIS AGREEMENT DURING THE MONTH IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO LIABILITY.
11. DISCLAIMER OF WARRANTIES.
(a) You acknowledge that all Trade Information has been produced by independent providers unaffiliated with BARCHART, various commodity and securities markets, and by other outside sources. BARCHART and its affiliates are not responsible for the accuracy, completeness, timeliness or correct sequencing of the Information or Trade Information and BARCHART and its affiliates make no guarantees with respect to the Information or Trade Information.
(b) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. BARCHART SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, BARCHART MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, OR ANY RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION OR ERROR, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. THE INFORMATION, TRADE INFORMATION, AND ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
12. Indemnification. You shall indemnify, defend, and hold harmless BARCHART and its officers, directors, employees, agents, successors, and assigns from and against any and all liability, costs or damages of any kind, including legal fees, arising out of or resulting from: (a) any unauthorized use of your user name and password; (b) any Physical Commodities Trading Agreement entered into by you; (c) any information provided by or on behalf of you to BARCHART; (d) allegation of facts that, if true, would constitute your breach of any of your representations, warranties, covenants, or obligations under this Agreement or your infringement or misappropriation of the patent, copyright, trade secret or other intellectual property right of any third party; or (e) gross negligence or more culpable act or omission (including recklessness or gross misconduct) by you in connection with this Agreement.
13. Notification of Changes to the Agreement. BARCHART reserves the right to make changes to this Agreement from time to time in its sole discretion. BARCHART will provide notice of such changes, including the date the Agreement was updated and the date the updates take effect. You can review the most current version of the Agreement at legal.barchart.com. Your continued use of the Services after the effective date of the updated Agreement constitutes your agreement to the changes.
(a) Neither party shall be held liable to the other party or be deemed to have defaulted under or breached this Agreement for failure or delay in performing any term of this Agreement when such failure is caused by or results from causes beyond the reasonable control of the non-performing party, including without limitation, acts of the government, fire, flood, strikes, power failures, pandemic or epidemic, or communications line or network failures. The non-performing party shall notify the other party of such force majeure with a seasonable manner after such occurrence by giving written notice to the other party stating the nature of the event, its anticipated duration, and any action being taken to avoid or minimize its effect.
(b) This Agreement contains the entire agreement of the parties with respect to the subject matter hereof. The provisions and terms of any purchase order or other instrument issued by you shall be of no effect, and the acceptance of any such order or instrument by BARCHART shall not in any way extend or alter the terms of this Agreement. Failure of either party to insist at any time upon strict compliance with the terms of this Agreement or to seek remedy for any breach thereof shall not constitute or be construed as a waiver of any rights or remedies under the Agreement or of any such breach.
(c) ALL DISPUTES (EXCEPT ACTIONS FOR INJUNCTIVE RELIEF BROUGHT BY BARCHART) ARISING UNDER THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF ILLINOIS AND RESOLVED EXCLUSIVELY THROUGH BINDING ARBITRATION BEFORE A FORUM LOCATED IN CHICAGO, ILLINOIS. YOU AGREE THAT IN ANY SUCH DISPUTE OR ARBITRATION, YOU WILL ONLY ASSERT CLAIMS IN AN INDIVIDUAL (NON-CLASS, NONREPRESENTATIVE) BASIS, AND THAT YOU WILL NOT SEEK OR AGREE TO SERVE AS A NAMED REPRESENTATIVE IN A CLASS ACTION OR SEEK RELIEF ON BEHALF OF THOSE OTHER THAN YOURSELF. YOU UNDERSTAND THAT BY AGREEING TO THIS SECTION, YOU ARE GIVING UP THE RIGHT TO LITIGATE (OR PARTICIPATE AS A PARTY OR CLASS MEMBER) IN COURT. YOU ALSO AGREE THAT ANY DISPUTE RESOLUTION PROCEEDING WILL ONLY CONSIDER YOUR INDIVIDUAL CLAIMS AND YOU AGREE THAT NO DISPUTE WILL BE HEARD AS A CLASS ACTION, REPRESENTATIVE ACTION OR CONSOLIDATED ACTION. ANY ACTION, PROCEEDING, OR ARBITRATION BROUGHT BY A PARTY PURSUANT TO THIS AGREEMENT OR ANY BREACH THEREOF MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CLAIM OR CAUSE OF ACTION AROSE, WHETHER OR NOT THE PARTY HAD ANY KNOWLEDGE OR NOTICE THEREOF.
(d) All notices to BARCHART relating to this Agreement shall be in writing addressed to BARCHART at its business address. If BARCHART needs to contact you about your account, or the Services licensed from BARCHART, you consent to receive the notices by email. You agree that any such notices sent to you electronically will satisfy any relevant legal communication requirements.
(e) You may not assign or transfer any license granted hereunder without the prior express written consent of BARCHART.