TERMS & CONDITIONS
Last Updated December 6, 2010
Please read the following general website Terms and Conditions (these “T&Cs” or “Agreement”) carefully before accessing the www.tradingsim.com website whether online or though any mobile device or application (collectively referred to as the “Site”), before you register as a member, access any data on our Site, subscribe to our Services, as defined below, or interact with other users, members, customers or visitors (“Users”) of the Site so that you are aware of your legal rights and obligations with respect to the Site or MYSMP, LLC. and any of its affiliates, parents and subsidiaries (individually and collectively, “we,” “us,” “our” or “TSM”).
IMPORTANT INFORMATION TO NOTE:
o YOU AFFIRM THAT YOU ARE EITHER AT LEAST 18 YEARS OF AGE, AN EMANCIPATED MINOR, OR POSSESS LEGAL PARENTAL OR GUARDIAN CONSENT, AND ARE FULLY ABLE AND COMPETENT TO ENTER INTO THE TERMS, CONDITIONS, OBLIGATIONS, AFFIRMATIONS, REPRESENTATIONS, AND WARRANTIES SET FORTH IN THESE T&Cs, AND TO ABIDE BY AND COMPLY WITH THESE T&Cs. IN ANY CASE, YOU AFFIRM THAT YOU ARE OVER THE AGE OF 13, AS THE SITE IS NOT INTENDED FOR CHILDREN 13 YEARS OF AGE OR UNDER. IF YOU ARE 13 YEARS OF AGE OR UNDER , YOU ARE NOT ALLOWED TO USE OR EVEN ACCESS THE SITE AND/OR THE SERVICES OR TO CREATE AN ACCOUNT.
o ANY CONTROVERSY, CLAIM, DEMAND OR DISPUTE ARISING OUT OF OR IN RELATION TO ANY PORTION OF THIS AGREEMENT, OR THE BREACH THEREOF, MUST BE RESOLVED BY A COURT LOCATED IN NEW CASTLE COUNTY, DELAWARE EXCEPT AS OTHERWISE DESCRIBED IN THE ARBITRATION OPTION SECTION (SEE SECTION BELOW AND WWW.ADR.ORG FOR FURTHER DETAILS).
o BY REGISTERING WITH THE SITE OR SUBSCRIBING TO OUR SERVICES, YOU AGREE TO RECEIVE FREE CONTENT AND/OR PROMOTIONAL OFFERS FROM US.
o THERE ARE MONTHLY, ANNUAL AND LIFETIME SUBSCRIPTION FEES ASSOCIATED WITH SOME PREMIUM SERVICES PROVIDED ON THIS SITE. ONCE YOU HAVE SIGNED UP FOR THE PREMIUM SERVICES, YOUR CREDIT CARD BILL WILL BE AUTOMATICALLY CHARGED BASED ON A PERIODIC (MONTHLY OR ANNUAL) SCHEDULE OR A ONE TIME LIFETIME FOR THE PREMIUM SERVICES.
o PLEASE BE AWARE THAT THE WORD “LIFETIME” IS A DEFINED TERM UNDER THIS AGREEMENT AND IS SUBJECT TO RESTRICTIONS, OBLIGATIONS AND CONDITIONS THAT MAY LIMIT THE SERVICES PROVIDED THEREIN UNDER. PLEASE REVIEW ALL TERMS BELOW TO FULLY UNDERSTAND THE TERM “LIFETIME”.
o IN THE EVENT THAT YOU SIGNED UP, FIRST ACCESSED OR CREATED AN ACCOUNT ON THE SITE SUBJECT TO OR IN ACCORDANCE WITH ANY FREE, LIMITED OR OTHER TRIAL SUBSCRIPTION PERIOD, PLEASE BE AWARE THAT AFTER THAT TRIAL PERIOD EXPIRES, WE MAY BEGIN TO BILL YOUR CREDIT CARD ACCOUNT ON A PERIODIC (MONTHLY OR ANNUAL) SCHEDULE OR A ONE TIME LIFETIME FOR THE PREMIUM SERVICES, UNLESS YOU CANCEL YOUR SUBSCRIPTION PRIOR TO THE END OF THE TRIAL OR FREE PERIOD. PLEASE VERIFY ALL TERMS ASSOCIATED WITH SUCH SUBSCRIPTION TO VERIFY YOUR OBLIGATIONS. YOU CAN ALWAYS CANCEL YOUR SUBSCRIPTION BY FOLLOWING INSTRUCTIONS ON THE SITE OR BY SENDING AN E-MAIL TO [email protected] SEE BELOW FOR FURTHER DETAILS.
o THE LICENSE, SALE OR SUBSCRIPTION TO ANY OF OUR SERVICES IS FINAL. NO REFUNDS OR CREDITS SHALL BE ISSUED BY TSM FOR ANY REASON.
o USER ACCESS TO THE SITE IS VOID AND UNAUTHORIZED WHERE PROHIBITED BY APPLICABLE LAW OR REGULATION.
1. Description of the Site: The Site provides its Users with access to a simulated stock-trading platform based on historical prices from the NYSE, NASDAQ and AMEX (“Data Products”). The Site is designed for educational and entertainment purposes. The Site’s trading platform is based on delayed, historical data only. The Site may offer free limited time and trial access packages. The foregoing not withstanding, the Site shall predominantly offer its Users with one or more premium access packages, as described below. All activities and capabilities offered by or through the Site and any mobile devise or application shall individually and collectively be referred to as “Services”.
We reserve the right to add, change, modify, suspend or discontinue any portion of the Site or the Service(s) offered at any time. We may also impose limits on certain Services or features and/or restrict your access to parts of the Site or to the entire Site in our sole and absolute discretion and without notice or liability to anyone.
2. Services: The Site offers may both free and premium access Services to Users.
(a) Free Access: The Site may now or in the future offer its Users with free limited time or trial access to Data Products free of charge to Users. The scope, access and data available under such free limited time or trial access, shall be subject to change from time to time in TSM’s sole and absolute discretion.
In the event that you signed up, first accessed or created an account on the Site subject to or in accordance with any free, limited or other trial subscription period, please be aware that after that trial period expires, we may begin to bill your credit card account on a periodic (monthly or annual) schedule or a one time lifetime for the premium services (based on your registration), unless you cancel your subscription prior to the end of the trial or free period. Please verify all terms associated with such subscription to verify your obligations. You can always cancel your subscription by following instructions on the Site or by sending an e-mail to [email protected].
(b) Premium Access: The Site shall offer premium access to its Data Products. Premium access may now or in the future be available via a monthly, annual or lifetime subscriptions. The Site’s subscription fees are explained to Users during the registration process and are subject to change from time to time at our absolute and sole discretion. Please note that any subscriptions or fees that are disclosed to you in the registration process are deemed part of this Agreement. You agree to pay TSM for all usage and/or subscription fees charged to your account, as per this Agreement. All charges will appear on your credit card bill.
(i) Subscription plans to the Services may consist of an initial period, for which there is a one time charge, followed by recurring period charges, as agreed to by you. By entering into this Agreement, you acknowledge that your subscription may have an initial and recurring payment feature and you accept responsibility for all recurring charges prior to cancellation.
(ii) You may terminate your Account or premium access subscription at any time. TSM may submit periodic monthly charges to your credit card provider without further authorization from you, until you provide prior notice to us that you have terminated this authorization. Such notice will not affect charges submitted before TSM could reasonably take action in response to your notice.
(iii) Your non-termination or continued use of the Services reaffirms that TSM is authorized to charge your account. TSM may submit those charges for payment and you will be responsible for such charges. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you initially subscribed to the Services.
(iv) Any changes are effective upon Notice to You. Notice may be provided to You by posting such changes on the Site or by delivering such changes via electronic mail, TXT/SMS messages or any other means that we deem reasonable, in our sole and absolute discretion (“Notice”).
(v) Credit Policy: You may terminate your premium access subscription at any time. Upon termination, you will no longer be billed for future premium access subscription fees, as applicable. TSM, HOWEVER, WILL NOT REFUND ANY SUBSCRIPTION FEES TO YOU FOR ANY REASON WHATSOEVER. If you terminate your subscription, your subscription will remain active until the end of your then-current subscription period (that is, the subscription period through which you had paid prior to your cancellation).
(vi) Lifetime Subscriptions: TSM may now or in the future, offer its Users with access to its Data Products under a Lifetime subscription access package. A Lifetime subscription package shall permit Users access based on a single, onetime, non-recurring payment to TSM, as provided during registration.
Under a Lifetime subscription, Users may access the simulated trading historical data for stocks traded in the NYSE, NASDAQ and AMEX. TSM may from time to time expand its Data Product offering of stocks and other securities from both NYSE, NASDAQ and AMEX as well as other securities exchanges. An expansion of the Data Product offering, even if provided at anytime to a Lifetime subscriber does not guaranty that such access to expanded Data Products shall continue for the duration of the Lifetime subscription.
When purchasing a Lifetime subscription, a User may be provided access to a certain range (dates) of historical stock data. An expansion of that date range, even if provided to a Lifetime subscriber does not guaranty that such access to an expanded range shall continue for the duration of the Lifetime subscription.
A usage of the term “Lifetime” is a reference to a one-time, non recurring payment. The Term shall not be read to mean that TSM is in any way limited or prohibited from modifying, changing or otherwise terminating access to its Data Products or Services as otherwise provided in this Agreement.
3. Registration: In order to subscribe to our premium access Services, you will be required to create an Account. You may never use someone else’s Account. You may also never grant anyone else access to your Account. When creating an Account with the Site, you agree to provide accurate, current and complete information about yourself (“Registration Data”) as prompted by our registration form. Registration Data may include your e-mail address, user name, password, billing address and credit card information. You also represent that we may rely on your Registration Data as accurate, current and complete. You agree to maintain and update your Registration Data to keep it accurate, current and complete. We reserve the right, in our sole and absolute discretion, to terminate your Account for inaccurate, untrue, deceptive and/or incomplete Registration Data.
4. Username and Password: As part of the registration process, you will be asked to select a username and password. We may refuse to grant to you any username, which in our sole and absolute discretion, is deemed to be invalid. Invalid usernames include, but are not limited to, usernames that are fashioned to impersonate another person, are protected by trademark law or other proprietary rights, are vulgar or otherwise offensive or those that may cause confusion. These are only some examples of invalid usernames and we reserve the sole right, at our own discretion, to deem any username invalid at any time both during and after registration.
YOU ARE SOLELY RESPONSIBLE FOR MAINTAINING THE CONFIDENTIALITY OF YOUR USERNAME, PASSWORD AND ANY AND ALL PURCHASES, COMMUNICATIONS AND OTHER ACTIVITIES THAT ARE CONDUCTED THROUGH YOUR ACCOUNT. YOU AGREE NOT TO TRANSFER, SELL OR RESELL YOUR USERNAME AND/OR PASSWORD, OR OTHERWISE PROVIDE ACCESS TO THE SITE, THROUGH THE USE OF YOUR USERNAME AND PASSWORD, TO ANY THIRD PARTY.
If you have reason to believe that your Account is no longer secure, you must promptly change your password by updating your Account information and immediately notify us of same by e-mailing us at [email protected] .
6. License to Use Data Products . As a User of the Site, you are granted a non-exclusive, non-transferable, revocable and limited license to access and use the Site (and its associated content) and/or Services in accordance with this Agreement. We retain the right to terminate this license, without notice, in our sole and absolute discretion, at any time for any reason whatsoever. We also reserve any rights not explicitly granted in these T&Cs.
The Data Products and Services, available through the Site, are licensed, not sold, for your viewing and simulated trading. These Data Products were developed and/or produced by us in conjunction with our partners and associates. Your license to access the Data Product through the Site is subject to the following rules:
(a) Your access of the Data Products is conditioned upon your prior acceptance of the terms of this Agreement.
(b) You are authorized to use the Data Products and Services only for personal, noncommercial use.
(c) You agree that you will not attempt to, or encourage or assist any other person to, circumvent or modify any security technology or software that is part of the Data Products or Services.
(d) The delivery of Data Products and the provision of the Services do not transfer to you any rights beyond the limited license as described above.
(e) You agree not to transfer, sell or resell your username and/or password, or otherwise provide access to the site, through the use of your username and password, to any third party.
7. Term/Termination: We may decide at any time in our sole and absolute discretion whether to remove and/or terminate a User’s access to the Site or our Services, for any reason, including but not limited to violations of these T&Cs. We may or may not provide notice to you of such termination through any reasonable means including, but not limited to, sending notice to you at the e-mail address that you provided during or subsequent to registration or purchase. Such termination is effective when executed by us or upon transmittal by us. However, your obligations of indemnification pursuant to Sections 2, 6, 9, 10, 11, 12, 13 and 16 of these T&Cs shall survive any termination or the cancellation of Account.
You may terminate your Account or premium access subscription at any time. TSM may submit periodic monthly charges to your credit card provider without further authorization from you, until you provide prior notice to us that you have terminated this authorization. Such notice will not affect charges submitted before TSM could reasonably take action in response to your notice.
Withdrawal of consent or request to have your Account terminated will have no effect on the legal validity and/or enforceability of these T&Cs for the time period prior to your request and during the time period needed for us to reasonably act to comply with your request.
8. Online Content: Any Data Products and Services provided, listed, posted or made available on the Site should not necessarily be relied upon. The Site is designed to provide its Users with a simulated trading platform for educational and entertainment purposes. The Site was not designed and should not be used as a database of stock prices on which Users may rely on in actual trading. TSM does not guarantee the accuracy, completeness or usefulness of any information made available by its Data Products on the Site and/or through the Services and neither adopts, endorses, nor is responsible for the accuracy, completeness or reliability of any Data Product on the Site. You may access such information solely:
a) For your general entertainment, educational and personal use; and
b) As intended through the normal functionality of the Site.
9. Proprietary Rights of Content: The content on the Site, including without limitation, the text, software, scripts, graphics, photos, sounds, music, videos, interactive features and the like (the “Content”) and the trademarks, service marks and logos contained therein (the “Marks”), are owned by or licensed to us, subject to copyright and other intellectual property rights. The copying, redistribution or publication by you of any part of the Site, Data Products or Services is strictly prohibited. You do not acquire ownership rights to any Content, Marks, Services or other materials viewed at, on or through the Site and Services.
10. Online Conduct: You agree not to:
a) impersonate any person or entity;
b) engage in advertising to, or solicitation of, other Users to buy or sell any products or services through the Site;
c) transmit any chain letters, spam or junk e-mail to other Users;
d) express or imply, without our specific, prior, written consent that any statements you make are endorsed by TSM;
e) harvest or collect personal information about other Users, whether or not for commercial purposes, without their express consent;
f) use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, “data mine,” or in any way reproduce or circumvent the navigational structure or presentation of the Site or its contents;
g) to access the Site, its Data Products or Services through any technology or means other than through the means provided on the Site itself or other explicitly authorized means TSM may designate;
h) remove any copyright, trademark or other proprietary rights notices contained on the Site;
i) interfere with or disrupt the Site, or the servers and/or networks connected to the Site;
j) post, e-mail or otherwise transmit any material 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 hardware or telecommunications equipment;
k) forge headers or otherwise manipulate identifiers in order to disguise the origin of any information transmitted through the Site;
l) “frame” or “mirror” any part of the Site, without our specific, prior written authorization;
m) use metatags, code or other devices containing any reference to TSM or the Site in order to direct any person to any other website for any purpose; and/or modify, adapt, sublicense, translate, sell, reverse engineer, decipher, decompile or otherwise disassemble any portion of the Site or any software used on or for the Site or cause others to do so; and
n) to use the Site, including any tools or technologies made available therein, for any commercial purpose, without the prior written consent of TSM. Prohibited commercial uses include any of the following actions taken without TSM’s express consent: (i) sale of access to the Site or its related Services on another website (except as explicitly permitted to Affiliates); and/or (ii) providing use of the Site or its related Services, to third parties.
TSM reserves the right, but has no obligation, to reject any Account that does not comply, in TSM’s sole and absolute discretion, with these prohibitions. Engaging in any of the aforementioned prohibited practices shall be deemed a breach of these T&Cs and may result in the immediate termination of your Account pursuant to the terms of these T&Cs. TSM reserves the right to pursue any and all legal remedies against Users who engage in any of the aforementioned prohibited conduct.
However, in any event, TSM assumes no responsibility for the conduct of other Users on the Site.
12. Indemnification: You agree to indemnify, defend and hold us, and our subsidiaries, affiliates, officers, parent companies, agents, co-branders or other partners, and employees (each a “Covered Party”), harmless, at your expense, against any and all claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs and expenses (including, without limitation, reasonable attorneys’ fees and other dispute resolution expenses) incurred by any Covered Party or other third party and arising out of, (i) your use or misuse of the Site, Data Products or the Services, (ii) arising from your breach of this Agreement, or (iii) arising from your violation or breach of any term of these T&Cs or any policies, rules or guidelines referenced herein.
13. Warranties: You expressly agree that access and/or use of the Site, Data Products and/or Services is at your sole risk. The Site and Services are provided on an “AS IS” and “AS AVAILABLE” basis, without any express or implied warranty of any kind, including, but not limited, non-infringement of intellectual property. The Site and/or Services may contain bugs, errors, problems or other limitations.
We and the Covered Parties have no liability whatsoever for your use of, or inability to use, the Site, Data Products and/or Services to the fullest extent permitted by applicable law. We and the Covered Parties are not liable to you or to any third party for any indirect, special, incidental or consequential damages, whether based on breach of contract, breach of warranty, tort (including negligence), product liability or otherwise, even if advised of the possibility of such damages.
The negation of damages set forth above is a fundamental element of the basis of the bargain between us and you. The Site and Services would not be provided to you without such limitations. No advice or information, whether oral or written, obtained by you from us through the Site, Data Products and/or Services shall create any warranty, representation or guarantee not expressly stated in this Agreement. We are not responsible to you and/or any third party, without limitation, for: 1) any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to or alteration of, User communications; 2) the conduct of any User, whether online or offline; 3) any computer virus or other malicious, destructive or corrupting code, agent, program or macros; or 4) any infringement of another’s rights, including intellectual property rights.
TSM shall not be liable to you for any Services, goods and/or information available from third parties, even if obtained at or through the Site and/or Services. If you are dissatisfied with the Site and/or Services or with this Agreement, your sole and exclusive remedy is the cancellation of your membership and to discontinue use of the Site and Services.
14. Third-party Websites: The Site may contain links to other websites owned and operated by TSM, as well as links, banner advertisements, pop-ups and/or other online methods to redirect you to other third party websites not owned or controlled by TSM. TSM has no control over, and assumes no responsibility or liability for, the content, privacy policies, or practices of any third party site. By using the Site, you expressly relieve TSM from any and all liability arising from your use of any third party website. Furthermore, TSM does not endorse, and is not responsible or liable for, any content, advertising, services, products and/or other materials at or available through such third party websites or resources, or for any damages and/or losses arising there from.
Accordingly, you are encouraged to be aware when you leave the Site and to read the terms and conditions and privacy policies of each other website that you visit. You will bound by the terms and conditions, policy policies, and rules and regulations of any TSM or third party website you access through the Site.
15. Miscellaneous: Should any part of this Agreement be held invalid or unenforceable, that portion shall be construed consistent with applicable law and the remaining portions shall remain in full force and effect. To the extent that anything in, or associated with, the Site or Services is in conflict or inconsistent with this Agreement, this Agreement shall take precedence. Our failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision, or any other provisions in this Agreement.
You expressly authorize us to comply with any and all lawful notices, subpoenas, court orders and/or warrants without prior notice to you.
16. Dispute Resolution: If a dispute arises between you and us, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and us agree that we will resolve any claim or controversy at law or equity that arises out of this Agreement or our Services (a “Claim”) in accordance with one of the subsections below or as we and you otherwise agree in writing. Before resorting to these alternatives, we strongly encourage you to first contact us directly to seek a resolution by sending an email to [email protected] . We will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation.
Choice of Law and Forum – This Agreement shall be treated as though it were executed and performed in Wilmington, Delaware and shall be governed in all respects by the laws of the State of Delaware without regard to conflict of law provisions. You agree that any Claim or dispute you may have against us must be resolved by a court located in New Castle County, Delaware, except as otherwise agreed by the parties or as described in the Arbitration Option section below. You agree to submit to the personal jurisdiction of the courts located within New Castle County, Delaware for the purpose of litigating all such Claims or disputes.
Arbitration Option – For any Claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute in a cost effective manner through binding non-appearance-based arbitration. In the event a party elects arbitration, they shall initiate such arbitration through an established alternative dispute resolution (“ADR”) provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Improperly Filed Claims – All Claims you bring against us must be resolved in accordance with this Dispute Resolution Section. All Claims filed or brought contrary to this Dispute Resolution Section shall be considered improperly filed. Should you file a Claim contrary to the Dispute Resolution Section, we may recover attorneys’ fees and costs up to $1000, provided that we notified you in writing of the improperly filed Claim, and you have failed to promptly withdraw the Claim.
17. Legal Warning: Any attempt by any User to damage, destroy, tamper with, vandalize and/or otherwise interfere with the operation of the Site, Data Products and/or Services, is a violation of criminal and civil law and we will diligently pursue all remedies in this regard against any offending individual or entity to the fullest extent permissible by law and in equity.
18. Contact Us:
16192 Coastal Highway
Lewes, Delaware 19958