TENTEN CAPITAL, LLC D/B/A SPOTGAMMA (“SPOTGAMMA”) PROVIDES ACCESS TO ITS PROPRIETARY, OPTIONS RESEARCH SOFTWARE (THE “SERVICE”) SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THIS SUBSCRIPTION AGREEMENT (THE “AGREEMENT”). PLEASE READ THE TERMS OF THIS AGREEMENT CAREFULLY. AS USED IN THIS AGREEMENT, “YOU” AND “YOUR” REFER TO THE PERSON OR ENTITY USING THE SERVICE. SPOTGAMMA AND YOU ARE COLLECTIVELY REFERRED TO AS THE “PARTIES” AND INDIVIDUALLY AS A “PARTY.”
BY CLICKING THE “AGREE” BUTTON, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT CLICK “AGREE.” NOTWITHSTANDING THE FOREGOING, USING THE SERVICE INDICATES YOUR ACCEPTANCE OF THIS AGREEMENT.
- Authorized Use. SpotGamma authorizes You to access and use the Service during the Term of this Agreement through a username and password. You may only use the Service for Your internal business purpose and are not allowed to resell, share or otherwise commercialize the Service, Data or Insights. The preceding sentence notwithstanding, if you are a lawyer or work for a marketing firm, You may use the Service to counsel Your clients. You are responsible for maintaining the confidentiality of the passwords assigned to You, and that the passwords will not be shared with anyone. You agree to immediately notify SpotGamma if a password is lost, stolen, disclosed to an unauthorized third party, or has otherwise been compromised. You shall be solely responsible for all activities made under Your account.
- Subscription. We will make one or more Services available to You on a trial basis free of charge until the earlier of the end of the free trial period (the “Free Trial”). At the end of the Free Trial, You agree to pay SpotGamma for the Service according to the price and term of the subscription plan You selected on the www.spotgamma.com website. SpotGamma may change the subscription plans including the prices at any time without notice to You. All sales are final and You hereby waive any right to a refund.
- Payment Terms. By using Your credit card as the method of payment, You agree that You are authorized to use the credit card presented as a method of payment and that SpotGamma is hereby authorized to charge Your credit card for the subscription plan You chose. You must provide SpotGamma with a valid credit card number and associated payment information including all the following: (i) Your name as it appears on the card; (ii) Your credit card number; (iii) the credit card type; (iv) the date of expiration; and (v) any activation numbers or codes needed to charge Your card. If SpotGamma does not receive payment from Your credit card issuer or its agent, You will be responsible for an alternate payment arrangement and any resulting fees.
- Taxes. You are responsible for paying all taxes associated with Your use of the Services. If SpotGamma has the legal obligation to pay or collect taxes for which You are responsible under this Section, SpotGamma will invoice You and You will pay that amount unless You provide SpotGamma with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, SpotGamma is solely responsible for taxes assessable against it based on its income, property, and employees.
- Use Restrictions. By using the Service, You agree not to do any of the following: (i) intentionally or unintentionally violate any local, state, or federal law; (ii) upload any files that contain software viruses or other harmful computer code; or (iii) interfere with the operation of SpotGamma’s Web servers or other computers or Internet or network connections.
- Equipment. You are solely responsible for providing, maintaining, and ensuring, and Your sole expense, all hardware, software, electrical and other physical requirements for Your use of the Service, including, without limitation, telecommunications, Internet access connections, Web browsers or other equipment, programs and services required to access and use the Service. SpotGamma may, in its sole discretion, change the applicable technical requirements to use the Service from time to time.
- Accessibility. You acknowledge and agree that at times the Service may be inaccessible or inoperable for any reason whatsoever, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs that SpotGamma or the CBOE or OPRA may undertake from time to time; or (iii) causes that are beyond the control of SpotGamma or that are not reasonably foreseeable.
- No Representations. SpotGamma is not in the business of rendering personalized or individualized investment advice. SpotGamma does not and cannot know Your financial situation, risk tolerances, or investing objectives. Accordingly, the information provided by the Service do not constitute a recommendation that a particular security, strategy or action taken is suitable for You or any specific person for that matter. SpotGamma is not liable for any investment decision You make, or action You take based upon Your use of the Service.
- Disclaimer of Warranties. SPOTGAMMA AND ITS AGENTS, OFFICERS, DIRECTORS, EMPLOYEES, SUCCESSORS, ASSIGNS, AND AFFILIATES PROVIDE THE SERVICE “AS IS WITH ALL FAULTS” WITHOUT WARRANTY OF ANY KIND, AND SPOTGAMMA HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SERVICE WHETHER EXPRESS OR IMPLIED AND EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, AND NON-INFRINGEMENT. SPOTGAMMA DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SERVICE, THE AVAILABILITY OF THE USER CONTENT, THAT THE FUNCTIONS CONTAINED IN THE SERVICE WILL MEET YOUR REQUIREMENTS, THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS IN THE SERVICE WILL BE CORRECTED, OR THAT THE FUNCTIONS CONTAINED IN THE SERVICE WILL FUNCTION WITH OTHER SOFTWARE OR HARDWARE, OR WITHIN A SYSTEM. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SPOTGAMMA OR A SPOTGAMMA AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION MAY NOT APPLY.
- Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT SHALL SPOTGAMMA OR ITS AGENTS, OFFICERS, DIRECTORS, EMPLOYEES, SUCCESSORS, ASSIGNS, OR AFFILIATES BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES, WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOST TIME, LOST SAVINGS, LOSS OF DATA, DAMAGED DATA, INACCURATE DATA, FAILURE OF TELECOMMUNICATION SERVICES, LOST CONFIDENTIAL OR OTHER INFORMATION, OR FOR BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SERVICE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (TORT, CONTRACT OR OTHERWISE) AND EVEN IF SPOTGAMMA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY. IN NO EVENT SHALL SPOTGAMMA’S TOTAL LIABILITY FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT OF MONIES PAID FOR YOUR USE OF THE SERVICE. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- Indemnification. You agree to indemnify, hold harmless and defend SPOTGAMMA, its agents, officers, directors, employees, successors, assigns, and affiliates, from and against any action, cause, claim, damage, debt, demand or liability, including reasonable costs and attorneys’ fees, asserted by any person, arising out of or relating to the breach of this Agreement or the unauthorized use of the Service.
- Termination. For Monthly Subscriptions, you may terminate this Agreement at any time either through your member portal or by contacting customer service, which will process your request within 7 days. There will be no refunds for the current calendar month subscription. For Annual Subscriptions, you may cancel prior to your annual renewal date; however, there are no refunds for cancelled Annual Subscriptions. SPOTGAMMA may terminate this Agreement for any reason by providing you with three days’ prior notice.
- Effect of Termination. UPON TERMINATION OF THIS AGREEMENT FOR ANY REASON, THE ACCESS GRANTED TO YOU IN SECTION 1 CEASES AND YOU ARE NO LONGER AUTHORIZED TO USE THE SERVICE FOR ANY PURPOSE. YOU FURTHER AGREE THAT SPOTGAMMA’S SERVERS AND COMPUTER NETWORK CONSTITUTE A “PROTECTED COMPUTER” AS DEFINED BY THE COMPUTER FRAUD AND ABUSE ACT (18 U.S.C § 1030 ET SEQ.) AND THAT YOUR ACCESS OF SPOTGAMMA’S SERVERS AND COMPUTER NETWORK FOLLOWING THE EFFECTIVE DATE OF TERMINATION OF THIS AGREEMENT IS WITHOUT AUTHORIZATION.
YOU FORFEIT ANY UNUSED SEARCH CREDITS UPON YOUR TERMINATION OF THIS AGREEMENT. TERMINATION OF THIS AGREEMENT DOES NOT RELIEVE YOU OF YOUR OBLIGATION TO PAY ANY AMOUNTS OWED TO SPOTGAMMA.
- Equitable Remedies and Enforcement. You acknowledge and agree that breach of any of the obligations under this Agreement shall cause irreparable injury and shall entitle SpotGamma to equitable relief or remedy. The pursuit or securing of any such equitable relief shall not prohibit or limit SpotGamma to seek or obtain any other remedy provided under this Agreement or by law. If any or all of the above covenants or agreements are held to be unenforceable because of the scope or duration of such covenant or agreement or the area covered thereby, You agree that the court making such determination shall have the power to reduce the scope, duration and area of such covenant or agreement to the extent that allows the maximum scope, duration and area permitted by applicable law. The covenants, agreements and remedies provided herein are in addition to, and are not to be construed as a replacement for or limited by, the rights and remedies otherwise available to SpotGamma including, but not limited to, those rights and remedies contained in the Defend Trade Secrets Act of 2016 and Uniform Trade Secrets Act.
- Force Majeure. SpotGamma shall not be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed, restricted, or prevented because of any act of God, act of terrorism, fire, natural disaster, pandemic, act of government, strikes or labor disputes, inability to provide raw materials, power or supplies, or any other act or condition beyond SpotGamma’s reasonable commercial control.
- Modification. This Agreement cannot be modified except by the written consent of the Parties. The preceding sentence notwithstanding, SpotGamma may modify the prices without Your consent, and the modified price will apply to any future packages purchased by You.
- Third-Party Beneficiaries. There are no intended third-party beneficiaries of this Agreement.
- Waiver. No waiver of any term, provision, or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other term, provision or condition hereof, whether similar, nor shall such waiver constitute a continuing waiver of any such term, provision or condition hereof. No waiver shall be binding unless executed in writing by the party making the waiver
- Severability. If any provision or clause of this Agreement as applied to either Party or to any circumstances, shall be adjudged by a court of competent jurisdiction to be invalid or unenforceable, said adjudication shall in no way affect any other provision of this Agreement, the application of such provision in any other circumstances, or the validity or enforceability of this Agreement.
- Assignment. You may not assign Your rights or delegate Your duties under this Agreement without SpotGamma’s written consent. Any attempted assignment or delegation by You without the required consent is void. SpotGamma may assign this Agreement without Your prior consent.
- Survival. Notwithstanding the termination of this Agreement, the Parties shall be required to carry out any provision hereof that contemplates performance after such termination, and such termination shall not affect any liability or other obligation that have accrued prior to such termination, including, but not limited to, any liability for loss or damage because a prior breach. Without limiting the generality of the foregoing, the Parties specifically agree that the rights and duties contemplated in Sections 2, 4, 6, 9-13, 15-16 shall survive termination of this Agreement for any reason.
- Electronic Signatures. The Parties agree that this Agreement may be signed electronically pursuant to the ESIGN Act. The Parties agree that the electronic signatures appearing on this Agreement are the same as handwritten signatures for the purpose of validity, enforceability, and admissibility.