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Our Disclaimers and Limitations on Liability
All trades, trade reports, charts, text/audio trade OR market
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results, of any kind, should be viewed as hypothetical and
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to make specific trading recommendations, and no claims are
being made that we are initiating the signals posted. Your
attempt to duplicate these posted trades may be hindered by
the inherent delay in receiving a post AND executing that
post, market liquidity, AND your own trading issues --
slippage, commissions, trading software/internet outages,
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will OR is likely to achieve profits or losses similar to
those shown.
All subscribers OR anyone viewing the Day-Traders.com updates
or services information acknowledge and agree that they are
aware of the risk parameters involved in trading, and that the
leveraged nature of futures trading can cause losses greater
then your account balance. You further agree to accept full,
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This statement is furnished to you because rule 1.55 and
4.41 of the Commodity Futures Trading Commission requires it.
The risk of loss in trading commodity futures and options
contracts can be substantial. You should therefore carefully
consider whether such trading is suitable for you in light of
your financial condition. In considering whether to trade, you
should be aware of the following:
You may sustain a total loss of the initial margin funds and
any additional funds that you deposit with your broker to
establish or maintain a position in the commodity futures
market. If the market moves against your position, you may be
called upon by your broker to deposit a substantial amount of
additional margin funds, on short notice, in order to maintain
your position. If you do not provide the required funds within
the prescribed time, your position may be liquidated at a
loss, and you will be liable for any resulting deficit in your
account.
This brief statement cannot, of course, disclose all the risks
and other significant aspects of the commodity markets. You
should therefore carefully study futures trading before you
trade.
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Business Transfers
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Other Terms, Conditions and Provisions
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enforce such provision or any other provision of the
Subscription Agreement or Terms of Use.
ABOUT DAY-TRADERS.COM
What is Day-Traders.com?
Day-Traders.com, which operates a website, Day-Traders.com,
that provide its subscribers with opinions and commentaries on
trading markets and trading market indicators. Our views are
based solely on the independent judgment of Day-Traders.com's
employees and its agents. Day-Traders.com also provides its
subscribers with public information regarding analyses of
market indicators.
What Day-Traders.com is Not
Neither Day-Traders.com nor any of its employees or agents is
registered or licensed as an investment advisor, securities or
commodities broker-dealer, agent or representative with the
U.S. Securities and Exchange Commission, or with any similar
authority or agency of any other country or with any such
authority or agency of any of the United States.
We do not provide promotional materials relating to
specific securities or commodities.
Day-Traders.com also does not advise its subscribers or any
other person whether to buy or sell or take any other position
in securities or commodities. Further, Day-Traders.com does
not receive any form of payment or other compensation for
publishing information, news, research or any other material
concerning any securities or commodities on our site, or
publish any information on our site that is intended to affect
or influence the value of securities or commodities.
A Word of Caution
Many of the instruments discussed on the site may be mentioned
in the context of so-called day trading or momentum trading,
both of which present a number of unique and specific risks in
addition to market risks involved in investing or trading in
securities or commodities generally. Accordingly, you are
cautioned that day trading and momentum trading are not
suitable activities for all investors and any subscriber or
visitor to the Day-Traders.com site who resorts to those
trading methods does so at his own risk and fully mindful of
these special risks as well as the other risks of trading and
investing in securities or commodities.
What Subscription Means
If you decide to become a subscriber of the Day-Traders.com
site, you will be able to monitor our Live Calls Room, and you
may be afforded posting privileges, by text, on that Channel
from time to time.. You also will receive periodic e-mail
messages from us about certain activities in the securities or
commodities markets. Certain portions of our site and services
available at the site are limited to registered Subscribers.
If you want access to the entire Day-Traders.com site, you
must register for Subscription. Day-Traders.com reserves the
right to impose fees for posting, submitting or obtaining
certain information or services related to the site.
How to Become a Subscriber
To become a subscriber, you must be at least 18 years of age
and will have to complete the Subscription Registration Form
on our website. If you register, you will be required to pay a
subscription fee, payable by month in advance, and will be
making certain promises and agreements and will be legally
obligated to observe the terms and conditions of our
Subscription Agreement and the Terms of Use of the
Day-Traders.com site, which follow. Please read them before
completing the Subscription Registration Form.
Interest in securities or commodities
From time to time, Day-Traders.com moderators may take
positions and/or buy or sell securities or commodities that
are discussed in the trade alerts.
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NON-DISCLOSURE AND NON-COMPETE AGREEMENT
This
Agreement is for the online training session to be held December 13th
2003, between PBSP-Bernie Mitchell, Day-Traders.com-Steve Matrix (“Company”)
and enrolling student (“Student”)
into the Fibonacci Wave Impulse Training Seminar..
WHEREAS,
Company offers a training course and support services with regard to the
trading method known as “Fibonacci Impulse Wave System” (“FIWS”) designed
to educate students regarding the trading techniques to be utilized in
trading equities and futures.
WHEREAS,
Student desires to enroll in Company’s training course; and
NOW,
THEREFORE, in consideration of the mutual covenants and agreements set
forth below, Company and Student agree as follows:
1.
Training Course.
a.
Upon the Company’s acceptance of this Agreement, the Company agrees
to provide to the Student with instruction with regard to METS at an
online workshop scheduled December 13th 2003. The Company
shall provide the Student with such materials as the Company deems
necessary to instruct and inform the Student as to Fibonacci Impulse Wave
System (“course materials”).
b.
Upon completion of the workshop set forth in paragraph 1a above,
the Company shall provide the Student with materials to allow the Student
to participate in trading simulations in order to utilize METS. The
Company will provide the Student with access to instructor(s) who will
respond to questions regarding the course materials and/or FIWS. It is
understood that such instructor(s) will not provide advice or counsel in
the form of trading recommendations based on the Student’s particular
circumstances.
2.
Payment.
a.
In consideration for receiving the materials and services set forth
in paragraph 1, the Student agrees to pay the sum of $495 to the Company.
No refund will be given for any reason after student accepts the course
materials either by e-mail or by taking the class.
3.
Non-Disclosure of Proprietary Information.
Student acknowledges and understands that Company has devoted a
substantial amount of time and effort, and has incurred substantial costs,
in developing the Fibonacci Impulse Wave System, the support services, and
all information developed in connection with FIWS (“Proprietary
Information”).
Company’s Proprietary Information includes, without limitation, the FIWS
training presentation, all indicators, marketing and advertising materials
and methods, trading methods developed by Bernie Mitchell and Steve
Matrix, methods of operations, publications, and business practices.
Company derives economic value, both actual and potential, from not having
its Proprietary Information generally known or ascertainable by other
persons who can obtain economic value from its disclosure or use.
Additionally, Company has made substantial efforts to ensure that its
Proprietary Information remains secret.
The
Student understands that during the training course he/she will gain
access to Company’s Proprietary Information. While the Student is
certainly entitled, and in fact encouraged, to utilize all of the
information obtained through the training course in pursuing his/her goal
of learning successfully to equities or futures contracts utilizing the
Fibonacci Wave Impulse System, the Student covenants that he/she will not
use said Proprietary Information for any purpose inconsistent with the
terms and spirit of this Agreement. Specifically, Student agrees that
he/she shall not for any reason, at any time, without the written consent
of Company, disclose to any person or entity any of Company’s Proprietary
Information.
4.
Covenant Not to Utilize Proprietary Information to Compete with
Company.
Student covenants that he/she is enrolling in the training course for the
sole purpose of becoming educated with regard to FIWS with the personal
goal of learning to optimally trade equities and future contracts.
Student covenants that he/she is not enrolling in the training course for
reasons associated with competing with Company’s business enterprise or
otherwise obtaining Company’s Proprietary Information for any use
inconsistent with the teachings of this training course.
Student acknowledges and agrees that Company has a valid and protectable
interest in preserving its business enterprise of offering training
courses that teach trading methodologies. Consistent with the foregoing,
Student agrees, that for a period of three (3) years after Student enrolls
in Company’s training course, he/she will not to utilize Company’s
Proprietary Information, directly or indirectly, on behalf of himself or
on behalf of or in conjunction with others, as principal, agent, servant,
or otherwise, to engage in, or have an interest in, the same or
competitive line of business, or similar business enterprise, now carried
on by Bernie Mitchell, Steve Matrix and Company anywhere in the world.
5.
Reasonableness and Enforceability.
The
parties hereto have attempted to limit the restrictive covenants set forth
in this Agreement to the extent necessary reasonably to protect Company’s
legitimate business interests. The Student acknowledges that the scope of
paragraph 3, restricting the disclosure of Company’s Proprietary
Information, is reasonable. Student also acknowledges that the scope of
paragraph 4, restricting the use of Company’s Proprietary Information to
compete against the Company, is also reasonable. Notwithstanding the
foregoing, the parties recognize that reasonable people may differ in
making such a determination. Consequently, the parties hereby agree that
if the scope or enforceability of the covenants set forth in this
Agreement is in any way disputed at any time, a court or other trier-of-fact
may modify and enforce the covenants to the extent that it believes the
covenants to be reasonable under the circumstances existing at that time.
6.
Representation.
By
executing this Agreement, the Student represents that:
a.
no one affiliated with the Company has guaranteed that utilizing
FIWS will result in profits, or avoid losses;
b.
the Student is aware that equities and futures trading involves
substantial risk of loss;
c.
if the Student decides to open a trading account, the Student will
fund such an account exclusively with risk capital;
d.
the Student is aware that Company is not registered with the
Securities Exchange Commission, Commodity Futures Trading Commission and
is not a member of the National Futures Association, and thus the Student
will not be afforded certain additional regulatory protections;
e.
any reliance on information provided by the Company is at the sole
risk of the Student, that if the Student participates in transactions
based on such information, the Student does so at his or her own risk, and
that the Company is in no way responsible for any losses incurred by
virtue of the Student’s participation in such transactions; and
f.
the Student understands that the Company is not in any way
affiliated with or the agent of any futures commission merchant,
introducing broker, commodity trading advisor, and/or commodity pool
operator, and thus the Student agrees to indemnify and hold the Company
harmless for the acts of such entities or individuals.
g.
The student understands, if the student opens a trading account,
that the company is not responsible for losses incurred by the Student as
the result of adverse market conditions, poor order execution, data feed
problems, technical difficulties, market disruptions or suspensions, or
any other circumstances which may occur which may have the effect of
hindering the student’s use of the FIWS system.
h.
the Student understands that, if the student opens a trading
account, the student will be charged brokerage commissions for each
position taken which will limit the student’s ability to profit from the
FIWS system.
i.
the student understands that, if the student opens a trading
account, market conditions may make it difficult or impossible for the
Student to effect trades at desired prices which will limit the Student’s
ability to profit from the FIWS system.
j. the student understand that, the Company only provides the
indicators and chart set up instruction based on TradeStation. If student
is going to use any other vendor for real time data, it will be student’s
responsibility to set up the charts and indicators.
k. if the Student participation in the FIWS program was solicited as
the result of the Student’s review the Company’s web site,
www.day-traders.com, the Student has read and understood all of risk
disclosures set forth in the web site with regard to the FIWS programs and
commodity futures trading and/or equities day trading.
l. the
Student understands that the Student’s representations set forth in this
paragraph and in this Agreement are conditions precedent without which the
Company will not enter into this Agreement.
7. Dispute Resolution.
a. Generally, any controversy which touches or concerns this
Agreement or Student's enrollment in Company's training course to any
degree, however slight, whether it be between Student and Company or any
of its shareholders, directors, officers, employees, agents, or
affiliates, shall be resolved exclusively by binding arbitration
administered by the American Arbitration Association under its rules for
commercial disputes. Any arbitration shall take place in Las Vegas,
Nevada, or as otherwise agreed by the parties.
b. Relief. In any such controversy, the arbitrator may grant any
relief, legal or equitable, interim or final, which could be granted by a
court of competent jurisdiction. Further, the parties shall have the
right to enforce this Agreement and to recover their respective costs and
attorney fees incurred in enforcement, including any confirmation,
modification, or vacatur proceeding or appeal from such proceeding.
Moreover, this clause shall not preclude either party from seeking
preliminary injunctive relief from any state or federal court in Clark
County, Texas, the parties consenting to the jurisdiction of such court.
c. Authority. This Agreement shall be governed by and interpreted
according to the laws of the United States of America and to the laws of
the State of Nevada. Additionally, this arbitration provision shall
survive the termination of this Agreement and is governed by the Federal
Arbitration Act. The Student waives any objections, which he/she may have
based on improper venue or forum non-conveniens.
- Term.
The
term of the Agreement shall commence on the date set forth above and
continue in full force and effect consistent with the terms and the scope
of the restrictive covenants set forth in paragraphs 3 and 4, above.
- Liquidated
Damages – Disclosure to Third Parties
It is
agreed that in the event of a breach of this Agreement by Student, it
would be impracticable or extremely difficult to fix the actual damage
and, therefore, Student will pay to Company as liquidated damages and not
as a penalty the sum of One Million Dollars ($1,000,000), which represents
a reasonable compensation for the loss incurred because of the breach.
- Waiver.
The failure of either party to exercise any right or remedy available to
it under this Agreement or at law shall not constitute a waiver of the
later exercise thereof.
- Severability.
Any
invalid or unenforceable provision of this Agreement shall not affect any
other provision hereunder and the remainder of the Agreement shall be
valid and enforceable to the fullest extent permitted by law. If any
provision of this Agreement is held to be over broad, invalid or
unenforceable by a court of competent jurisdiction, Company and Student
agree that the court may modify or amend such provision to allow for
enforcement to the maximum extent permitted under the law.
- Entire
Agreement.
This
Agreement contains the entire understanding of the parties and may only be
modified by a written instrument signed by both parties. Further, this
Agreement shall be binding upon and inure to the benefit of the parties,
their heirs, successors, and assigns.
- Counterparts.
This
Agreement may be executed in two or more counterparts, any one of which
shall be deemed the original without reference to the others.
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