GENERAL TERMS AND CONDITIONS
Access to Acello Services
These General Terms and Conditions (the “CONDITIONS”) supplement the Trader Terms under which Acello has granted you access to the Platform and together with the Trader Terms constitute a binding contract between you and Acello Limited and govern your use of the Services. In the event of any inconsistency between the Trader Terms and Conditions, the Trader Terms shall govern.
The Services are only intended for persons over the age of 18. By registering on the Website, you confirm that you are over 18 years of age. If you are under 18 years of age, you may not use the Services. You undertake to access the Services solely from one of the countries for which the Services are available.
You acknowledge that your access to and use of the Services may be restricted or prohibited by law in some countries, and you undertake to only access and use the Services in accordance with applicable laws.
The Services consist of the provision of tools for simulated foreign exchange trading, including simulated trades in Contracts for Differences, Spot FX and FX Derivatives.
The Services include, among other things, the Free Trial, FX Challenge and Verification products; these products may differ in the scope of the Services provided (e.g., by analytical tools available to the Trader). With the Free Trial, you may use some of the Services within a limited scope and for a limited period of time free of charge. Completing the Free Trial does not entitle you to access any other Services.
You can order the Services through the Website by completing the appropriate registration or order form. After registration, we will e-mail you the login details for the Client Section and/or Trading Platform and allow you to access them
Acello may terminate provision of the Services to the Trader in its discretion.
DEFINITIONS & INTERPRETATION
Definitions:
In the Trader Terms and these Conditions, the following terms shall have the meanings ascribed below:
Authorised Users: if the Trader is a corporate entity, those employees, agents and independent contractors of the Trader who are authorised by the Trader to use the Services and the Documentation; or (ii) if the Trader is a person, the Trader himself who shall be authorised to use the Services and the Documentation.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Commercial Partners: any third-party entity, including but not limited to regulated firms and execution venues, connected to Acello.
Trader Terms: any Trader Terms entered into between Acello and the Trader relating to User Subscriptions and associated terms.
“Client Money” means, in accordance with the Client Money Rules, money of any currency that the Company receives or holds for the Client, or on the Client’s behalf, in the course of or in connection with, the business contemplated by the Agreement other than money which is due
Conditions: these terms and conditions as amended from time to time at: https://so-funding.com/terms-and-conditions.
“Confidential Information” means any and all information that one party to this Agreement (“the Recipient”) receives or acquires from the other party (“Disclosing Party”) relating to the Disclosing Party, its group entities or its Traders, whether disclosed or made available in writing, electronically, orally, visually or otherwise, including but not limited to information relating to the business, affairs, Traders, clients, plans, technology or trading strategies of the Disclosing Party. Confidential Information shall exclude information that:
is or becomes publicly available other than as a result of a breach of this Agreement by the Recipient;
is lawfully received from a third party which is, to the reasonable knowledge and belief of the Recipient, not under any obligation of confidentiality for the benefit of the Disclosing Party;
was either in the possession of or known to the Recipient at the time of disclosure without any limitation on use or disclosure for the benefit of the Recipient; or
is independently developed by the Recipient without the use, reference to or benefit of the Disclosing Party’s Confidential Information.
Contract: the agreement between Acello and the Trader for the supply of Services, comprising these Conditions and the Trader Terms.
Data: the data input by either Acello or any Trader for the purpose of using the Services or facilitating use of the Services.
Documentation: the document made available to the Customer by Acello which sets out a description of the Services and the user instructions for the Services. The Documentation can be found at: sofunding.io
Free Trial: as defined on the website and in the Trader Terms.
Funded Trader: a Trader that has passed the FX Challenge and Verification phases, has been accepted by Acello as a funded trader, whose performance may be replicated and rewarded by Acello.
FX Challenge: as defined on the website and in the Trader Terms
Mandatory Policies: Acello’s business policies, user policies and codes made available to the Trader by upon request.
Normal Business Hours: 8.00 am to 6.00 pm local UK time, each Business Day.
Platform: The SoFunding Trading Platform, operated by Acello LTD;
Services: the services provided by Acello to the Trader under these Conditions and/or the Trader Terms, or as described in the Documentation.
Software: the online software applications provided by Acello as part of the relevant Services.
User Subscriptions: the user subscriptions which entitle Authorised Users to access and use the Services and the Documentation in accordance with these Conditions and/or the Trader Terms.
Verification: as defined in the Trader Terms
Virtual Funded Account: An account operated by a Funded Trader
Virus: anything or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
Website: sofunding.io
Interpretation:
A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
Any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
A reference to writing or written includes fax and email.
SYSTEMS ACCESS – USER RIGHTS & OBLIGATIONS – FREE SUBSCRIPTION & PAID TERMS
Subject to the Trader complying with these Conditions, the Trader Terms, the Documentation and any Mandatory Policies, Acello hereby grants to the Trader a non-exclusive and non-transferable right to permit its Authorised Users to use the Services and Documentation during the Initial Term, and as subsequently agreed by Acello, for any Subsequent Term and any Renewal Term for the Authorised User’s internal business operations.
A Trader shall only be entitled to access the Services via the Platform. A Trader shall be entitled to request access to the Services by directly contacting Acello. Acello reserves the right to decline any request or to set any terms, relating to pricing or other matters, in its absolute discretion.
At any time during the Initial Term, Acello shall be entitled to request that the Trader agrees to Trader Terms, which may vary these Conditions. In the event that the Trader refuses to accept the Trader Terms, then all rights granted to the Trader and the Services and Contract shall terminate immediately and the Trader shall not be entitled to continue to use the Services from that date.
In relation to Authorised Users, the Trader undertakes that:
the maximum number of Authorised Users that it authorises to access and use the relevant Services and the relevant Documentation shall not exceed the number of User Subscriptions it has been granted and/or purchased from time to time under the Trader Terms;
it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the relevant Services and/or relevant Documentation;
each Authorised User shall keep a secure password for his use of the relevant Services and relevant Documentation, that such password shall be changed no less frequently than biannually and that each Authorised User shall keep his password confidential;
that immediately upon request by Acello, each Authorised User shall change their password at any time, and shall also comply with any request by Acello to change any complexity criteria in relation to their password;
it shall maintain a written, up to date list of current Authorised Users and provide such list to Acello within 5 Business Days of Acello’s written request at any time or times.
The Trader shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the relevant Services that:
is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
facilitates illegal activity;
depicts sexually explicit images;
promotes unlawful violence;
is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
in a manner that is otherwise illegal or causes damage or injury to any person or property;
You acknowledge that in order to use our Services, you must obtain the appropriate technical equipment and software, including adequate third-party software to access the Trading Platform, at your own risk and expense.
The Website is accessible from the most commonly used web browsers. The internet access, purchase of the equipment, and purchase of the web browser and its updates are at your own risk and expense.
Acello does not warrant or guarantee that the Services will be compatible with any specific equipment or software.
The internet access, purchase of the equipment, and purchase of the web browser and its updates are at your own risk and expense. Acello does not warrant or guarantee that the Services will be compatible with any specific equipment or software. Acello does not charge any additional fees for the internet connection.
Legal & Regulatory
You acknowledge and accept that when trading in our phases you are not trading in real money and have no rights to receive actual profits and that save where Acello has in its discretion accepted you as a Virtual Funded Trader (in accordance with the Trader Terms) youwill not be paid any remuneration or profit share based on the results of your simulated trading, nor will you be required to pay for any losses.
The Services do not constitute FCA regulated investment services and you are not entitled to any regulatory protections, nor are you receiving any investment advice or recommendations.
For the avoidance of doubt any monies which the Trader sends to Acello shall be in respect of payment for Services and will not be held by Acello as Client Money under the rules set out in the CASS Client Assets sub-section of the Business Standards in the Handbook of Rules and Guidance of the FCA as amended from time to time, and in particular (but without limitation) section 7 “Client Money Rules” thereof.
The Trader understands and accepts that whilst Acello is not regulated, the Service connects with other parties, who are regulated to arrange or execute transactions in regulated financial instruments. The Trader may only use the Service, provided that it has appointed an arranger or executing broker, licensed by the Financial Conduct Authority and provided that any such regulated Trader has classified the Trader as an Eligible Counterparty.
The Trader shall maintain accurate records necessary for legal and regulatory compliance, including but not limited to reporting requirements, back office systems, data recovery and any license or regulatory authorisations required for participating in the any activities related to the Service.
If the Trader places an unusually large number or pattern of orders for the Services within an unreasonably short period of time, Acello reserves the right to suspend any further orders of the Services by the Trader and to report such behaviours to the appropriate legal and regulatory authorities.
You acknowledge that the operators of trading platforms are persons or entities different from Acello and that their own terms and conditions and privacy policies will apply when you use their services and products.
You are responsible for ensuring that the information that you provide to us through the registration or order form, the Client Section, or otherwise is complete, true and up-to-date and are required to immediately notify us of any change in your data or update the data in your Client Section.
You also acknowledge that the funds provided to you for demo trading are fictitious and that you have no right to possess those fictitious funds beyond the scope of their use within the Services, and in particular that they may not be used for any actual trading and that you are not entitled to the payment of those funds. Unless expressly agreed otherwise, you will not be paid any remuneration or profits based on the results of your simulated trading, nor will you be required to pay any losses.
You will comply with our Trading Policy as updated from time to time.
Acello bears no responsibility for the information displayed on the Trading Platform, nor for any interruption or delay or inaccuracy in the market information displayed through your Client Section
We reserve the right, but are not obligated, to limit the sale of our products or Services, including termination of active accounts, to any person who misuses our systems. This includes the use of expert advisors (EAs) which take advantage and/or jeopardise the backend systems of the Company’s / its technical partners. This also includes but is not limited to any trading behaviour which aims to benefit from inefficiencies in platform, server or brokerage servers. These activities can also include, but are not limited to, latency arbitrage trading, long-short arbitrage trading, gap trading, spread arbitrage, reverse arbitrage, and opposite trading between accounts.
We reserve the right to terminate the account and limit the sales of products and Services to customers who breach these clauses. Customer accounts which get terminated will not be able to access refunds and will not receive compensation under such circumstances.
FEES
The fee payable for the FX Challenge will be set out in the Trader Terms.
Save during any Initial Term (when the Services shall be provided free of charge and may not be subject to Trader Terms) any use of the Services shall be subject to charges and payment terms as set out in the Trader Terms.
The Trader shall pay Acello any User Subscription Fees as set out in the Trader Terms from time to time for the User Subscriptions.
The Trader shall on the Commencement Date at the request of Acello, provide to Acello approved purchase order information acceptable to Acello and any other relevant valid, up-to-date and complete contact and billing information required by Acello in its absolute discretion following which Acello shall invoice the Trader in accordance with the invoicing schedule set out in the Trader Terms and the Trader shall pay each invoice within 30 days after the date of such invoice.
If Acello has not received payment within 7 days after the due date, and without prejudice to any other rights and remedies of Acello:
Acello may, without liability to the Trader, disable the Trader’s password, account and access to all or part of the Services and Acello shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of Acello’s bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment;
Acello may terminate the Contract forthwith.
All amounts and fees stated or referred to in this Agreement:
shall be payable in GB Pounds Sterling, USD or Euros, as set out in the Trader Terms.
are non-cancellable and non-refundable after 1 placed trade or 14 days or as otherwise required by applicable consumer laws;
are exclusive of value added tax, which shall be added to Acello’s invoice(s) at the appropriate rate.
Acello reserves the right to unilaterally change the fees and parameters of the Services at any time, including the parameters for their successful completion.
The Trader can pay the fee for the selected option of the FX Challenge by a payment card, via a bank transfer, or using other means of payment that Acello currently offers on the Website.
In the event of payment by a payment card or via any other express payment method, the payment shall be made immediately.
The fee is considered paid when its full amount is credited to Acello’s account. If you do not pay the amount on time, Acello is entitled to cancel your order.
The fee for the FX Challenge varies according to the option selected and depends on the amount of the initial capital, the degree of the acceptable risk, the parameters that must be fulfilled so that the conditions of the FX Challenge and the subsequent Verification are met, and possibly other configurations.
The fee is paid for allowing you to access the FX Challenge, or the Services provided under the FX Challenge. The Trader is not entitled to a refund of the fee, for example, if the Trader cancels the Trader’s Client Section or requests the cancellation by e-mail, if the Trader terminates the use of the Services prematurely (for example, fails to complete the FX Challenge or the Verification), fails to meet the conditions of the FX Challenge or the Verification, or violates these Conditions.
CLIENT SECTION
Only one Client Section is permitted per Trader and all of the Trader’s Services must be maintained in the Client Section.
The total number of FX Challenges and Verifications per one Client Section may be limited depending on the total sum of the initial capital amounts of the products ordered by the Trader or on the basis of other parameters.
Unless Acello grants an exception to the Trader, the initial capital amounts may not be transferred between the individual products or mutually combined.
You may also not transfer or combine your performance, Service parameters, data or any other information between the products.
Access to the Client Section and Trading Platform is protected by login data, which the Trader may not make available or share with any third party. If the Trader has registered as a legal entity, the Trader may allow the use of the Services through the Trader’s Client Section to the Trader’s employees or other authorised employees and representatives.
The Trader is responsible for all activities that are performed through the Trader’s Client Section or Trading Platform. Acello bears no responsibility, and the Trader is not entitled to any compensation, for any misuse of the Client Section, Trading Platform, or any part of the Services, nor is Acello responsible for any negative consequences thereof for the Trader, if such misuse occurs for any reasons on the part of the Trader.
The Trader acknowledges that the Services may not be available 24 hours per day, particularly with respect to maintenance, upgrades, or any other reasons. In particular, Acello bears no responsibility, and the Trader is not entitled to any compensation, for the unavailability of the Client Section or Trading Platform and for damage or loss of any data or other content that you upload, transfer or save through the Client Section or Trading Platform.
The Trader may at any time request the cancellation of the Client Section by sending an e-mail to [email protected].
The Trader has the right to cancel this contract within 14 days of entering into the Agreement without stating any reason (this period is known as the ‘cancellation period’), subject to serving cancellation within 14 days by post or email using the contact details in the Trader Terms. The notice will be treated as being served on the Company the moment it is sent.
DATA AND INTELLECTUAL PROPERTY
Your personal data is processed in accordance with the Privacy Policy.
Acello shall own all right, title and interest in and to all of the Data.
Acello shall not provide storage, back up and/or archiving facilities or services for the Data. Acello shall not be liable or responsible for retrieving any Data.
If Acello processes any personal data on the Trader’s behalf when performing its obligations under these Conditions (or any Trader Terms), the parties record their intention that the Trader shall be the data controller and Acello shall be a data processor and in any such case:
the Trader acknowledges and agrees that the personal data may be transferred or stored outside the EEA or the country where the Trader and the Authorised Users are located in order to carry out the Services and Acello’s other obligations under this Contract;
the Trader shall ensure that the Trader is entitled to transfer the relevant personal data to Acello so that Acello may lawfully use, process and transfer the personal data in accordance with this Contract on the Trader’s behalf;
the Trader shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;
Acello shall process the personal data only in accordance with the terms of this Contract and any lawful instructions reasonably given by the Trader from time to time; and
each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
You agree to share all information relating to trades you execute on the acknowledge that Acello and its affiliates have access to information about all trades that you perform on the Trading Platform. and that you are not entitled to any remuneration or revenue associated with the use of the data by Acello.
SERVICES AND INFORMATION
You can order the Services through the Website by completing the appropriate registration or order form. After registration, we will e-mail you the login details for the Client Section and/or Trading Platform and allow you to access them.
The Services provided to you shall be as set out in the Trader Terms.
Under the Free Trial, you may use some of the Services within a limited scope and for a limited period of time free of charge. Completing the Free Trial does not entitle you to access any other Services.
All data that you provide to us through the registration or order form, the Client Section or otherwise must be complete, true, and up-to-date. You must immediately notify us of any change in your data or update the data in your Client Section. Acello is not obligated to verify the data and Acello is entitled to rely on information you provide being correct.
CONFIDENTIALITY, IP PROTECTION AND COMPLIANCE WITH POLICIES
The Trader and Acello (both of which may act as Disclosing Party or Receiving Party) may receive or be given access to Confidential Information from the other party.
The Receiving Party shall hold the other party’s Confidential Information in confidence and, unless required by law, shall not make the Confidential Information available to any third party, or use the Disclosing Party’s Confidential Information for any purpose other than in connection with this Agreement.
Either Party when acting as a Recipient may disclose the Confidential Information to those of its Representatives who have a need to know such information and shall take all reasonable precautions to ensure that its Representatives comply with the provisions of this Agreement. Any action by any Representative will be treated as the action of the Recipient for the purposes of this Agreement.
The Trader shall take all reasonable steps to ensure that Acello’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Contract.
The Trader acknowledges that details of the Services, and the results of any performance tests of the Services, constitute Acello’s Confidential Information.
The Trader shall not make, or permit any person to make, any public announcement concerning these Conditions (or any Trader Terms) without the prior written consent of Acello, except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
The Trader shall not:
except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
and except to the extent expressly permitted under these Conditions (and any Trader Terms) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Data and/or relevant Documentation (as applicable) in any form or media or by any means; or
attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software;
leave a public review which is unsubstantiated, not accurate or constructive and is unnecessarily harmful against the SoFunding brand.
access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or 21.1license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to and/or provide any services to any third party except the relevant Authorised Users, or
attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 9.
The Trader shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Acello.
The Trader shall not reverse engineer, copy, bug fix, correct, update, transfer, reproduce, republish, broadcast, sell, lease, loan, distribute, create derivative works based on or otherwise modify, in any manner, all or any part of the Services, Data or Documentation.
The rights provided under this clause are granted to the Trader only and shall not be considered granted to any subsidiary or holding company of the Trader.
Acello’s website or internet service Trader uses cookies to track a Trader’s session and retrieve Trader details for each visit. Cookies are used in some areas of the site to enable and/or improve the functionality of that area. By using the Services or agreeing to these terms and conditions, the Trader consents to the use of cookies in accordance with these terms
DISCLAIMER IN RESPECT OF THIRD PARTIES
Trader acknowledges that the Services may enable or assist it to correspond with, and purchase or supply products and services from or to Commercial Partners and that it does so solely at its own risk. Acello makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content (including but not limited to the veracity of any quoted prices or terms of any trades reported or any data derived from historical or current content), or use of, or correspondence with, any such third-party, or any transactions completed, and any contract entered into by the Trader, with any such third party. Any contract entered into and any transaction completed is between the Trader and the relevant Commercial Partner, and not Acello. Acello does not endorse or approve any Commercial Partner or its website or other means of communication or execution if made available via the Services.
LIMITATION OF LIABILITY
This clause sets out the entire financial liability of Acello (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Trader:
arising under or in connection with these Conditions and/or the Trader Terms;
in respect of any use made by the Trader of the Services and Documentation or any part of them; and
in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with these Conditions and/or the Trader Terms.
Except as expressly and specifically provided in this Contract:
the Trader assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Trader, and for conclusions drawn from such use. Acello shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Acello by the Trader in connection with the Services, or any actions taken by Acello at the Trader’s direction;
all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Conditions; and
the Services and the Documentation are provided to the Trader on an “as is” basis.
Nothing in this Contract excludes the liability of Acello:
for death or personal injury caused by Acello’s negligence; or
for fraud or fraudulent misrepresentation.
Subject to clause 11.2 and clause 11.3:
Acello shall not be liable whether in tort (including for negligence or breach of statutory duty), misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under these Conditions and/or the Trader Terms; and
The maximum extent of Acello’s liability for all claims made during any calendar year under this Contract shall be the amount of fees paid by the Trader during the six (6) month period leading up the event, giving rise to such Trader’s cause of action.
in relation to the provision of Services which are free of charge, Acello shall not be liable in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the provision of the Services.
INDEMNITY
The Trader shall defend, indemnify and hold harmless Acello against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of the Trader’s use of the Services and/or Documentation in breach of the Contract or applicable law, save that such indemnity shall be limited to the extent that any such losses result from the negligence or fraud of Acello.
TERM AND TERMINATION
This Agreement shall, unless otherwise terminated as provided in this clause and/ or the Conditions, commence on the Commencement Date and shall continue for the Initial Term and Subsequent Term and, thereafter, this Agreement shall be automatically renewed for successive Renewal Terms, unless:
either party notifies the other party of termination, in writing, at least 60 (sixty) days prior to the end of the current term, whether that be an Initial Term, Subsequent Term or Renewal Term, whereupon this Agreement and the Contract shall terminate upon expiry of such then current Initial Term, Subsequent Term or Renewal Term; or
otherwise terminated in accordance with the provisions of this Agreement and the Conditions;
Without affecting any other right or remedy available to it, Acello may terminate the Contract with immediate effect by giving written notice to the Trader if:
the Trader commits a material breach of any other term of this Contract, which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 28 (twenty eight) days after being notified in writing to do so;
the Trader repeatedly breaches any of the terms of this Trader Terms and/ or the Conditions in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Trader Terms and/ or the Conditions;
the Trader suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
the Trader commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of the Trader with one or more other companies or the solvent reconstruction of the Trader;
a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Trader other than for the sole purpose of a scheme for a solvent amalgamation of the Trader with one or more other companies or the solvent reconstruction of the Trader;
an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the Trader;
the holder of a qualifying floating charge over the assets of the Trader has become entitled to appoint or has appointed an administrative receiver;
a person becomes entitled to appoint a receiver over the assets of the Trader or a receiver is appointed over the assets of the Trader;
a creditor or encumbrancer of the Trader attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the Trader’s assets and such attachment or process is not discharged within 14 days;
any event occurs, or proceeding is taken, with respect to the Trader in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause to clause (inclusive);
the Trader suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
During the Initial Term, Acello can terminate the Contract for the provision of the Services immediately. Acello will use reasonable efforts but shall not be obliged to notify the Trader in such circumstances.
On termination of the provision of the Services and/or the Trader Terms for any reason:
all licences granted under this Contract shall immediately terminate;
each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
Acello may destroy or otherwise dispose of any of the Data in its possession; and
any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of this Contract which existed at or before the date of termination shall not be affected or prejudiced.
FORCE MAJEURE
Acello shall have no liability to the Trader if it is prevented from or delayed in performing its obligations, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Acello or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Trader is notified of such an event and its expected duration.
ACELLO’S OBLIGATIONS
Acello undertakes that the relevant Services will be performed substantially in accordance with the relevant Documentation and with reasonable skill and care.
The undertaking at clause 15.1 shall not apply to the extent of any non-conformance, which is caused by use of the Services contrary to Acello’s instructions, or modification or alteration of the Services by any party other than Acello or Acello’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Acello will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Trader with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Trader’s sole and exclusive remedy for any breach of the undertaking set out in clause 15.1. Notwithstanding the foregoing, Acello:
does not warrant that the Trader’s use of the Services will be uninterrupted or error-free; or that the Services, Documentation and/or the information obtained by the Trader through the Services will meet the Trader’s requirements; and
is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Trader acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
These Conditions (and any Trader Terms) shall not prevent Acello from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under these Conditions (or any Trader Terms).
Acello warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under these Conditions.
TRADER’S OBLIGATIONS
The Trader shall provide Acello with:
all necessary co-operation in relation to these Conditions (or any Trader Terms) and
all necessary access to such information as may be required by Acello;
in order to provide the Services, including but not limited to Data, security access information and configuration services;
comply with all applicable laws and regulations with respect to its activities under this Contract;
carry out all other Trader responsibilities set out in this Contract in a timely and efficient manner. In the event of any delays in the Trader’s provision of such assistance as agreed by the parties, Acello may adjust any agreed timetable or delivery schedule as reasonably necessary;
ensure that the Authorised Users use the relevant Services and Documentation in accordance with the terms and conditions of this Contract and/or the Trader Terms and shall be responsible for any Authorised User’s breach of this Contract;
obtain and shall maintain all necessary licences, consents, and permissions necessary for Acello, its contractors and agents to perform their obligations under this Contract, including without limitation the Services;
ensure that its network and systems comply with the relevant specifications provided by Acello from time to time; and
be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Acello’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Trader’s network connections or telecommunications links or caused by the internet.
VARIATION
Acello shall in its absolute discretion be entitled to make reasonable variations to these Conditions which shall be in writing and shall be effective, valid and enforceable, immediately upon notification, acceptance or further use of the Services by the Trader or when posted at sofunding.io/terms-and-conditions.
ENTIRE AGREEMENT
These Conditions and any Trader Terms together with any documents referred to therein, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreements between them relating to the subject matter they cover.
Each of the parties acknowledges and agrees that in entering into a Contract it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to a Contract or not) relating to the subject matter of this Contract, other than as expressly set out in this Contract.
ASSIGNMENT
The Trader shall not, without the prior written consent of Acello, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Contract.
Acello may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Contract.
THIRD PARTY RIGHTS
This Contract does not confer any rights on any person or party (other than the parties to this Contract and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
NOTICES
Any notice required to be given under these Conditions and/or the Trader Terms shall be in writing and shall be delivered by hand or sent by pre-paid first-class post, electronic mail (subject to proof of delivery and read receipt) or recorded delivery post to the other party at its address as notified to that party, or such other address as may have been notified by that party for such purposes, or sent by fax to the other party’s fax number.
A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).
GOVERNING LAW & JURISDICTION
This Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).
ADDITIONAL USER SUBSCRIPTIONS
Provided that Trader Terms are agreed, a Trader may during any Initial Term, Subsequent Term and/or any Renewal Term, request in writing that Acello make available to that Trader additional User Subscriptions, which request Acello may accept or reject in its absolute discretion.
If Acello accepts such request, the Trader shall, within 30 days of the date of Acello’s invoice, pay to Acello the relevant fees for such additional User Subscriptions, provided that the fees for any User Subscriptions purchased part way through the Initial Term, Subsequent Term or any Renewal Term (as applicable), shall be pro-rated for the remainder of the Initial Term, Subsequent Term or then current Renewal Term (as applicable). In such event, the Parties shall agree in good faith to amend the Trader Terms (if any).