1.1 Description. The Software are software plugins that User may cause to merge, interface with, and integrate into certain third-party stock trading platforms, including but not limited to TradeStations, thinkorswim, NinjaTrader, SierraChart/Infinity AT, eSignal, and MultiCharts, which charting and displaying market pricing in the relevant trading platform. The Software is owned by Company and is protected by intellectual property laws and international intellectual property treaties, and Users’ access to and use of the Software is licensed, not sold. The Software is accompanied by manuals, instructions and other documents and materials made available to User by Company in any form or medium which describe the functionality, components, features or requirements of the Software, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.
1.2 License Grant. Subject to User’s strict compliance with the terms and conditions of this Agreement, including the payment of all fees due hereunder, Company hereby grants to User a paid-up, perpetual, revocable, non-exclusive, non-sublicensable and non-transferable, worldwide, limited license to install, use, and run one instance of the Software on the local hard disk(s) or other permanent storage media of one computer, use the Software on a single computer or terminal at a time, and merge it into such other programs as are delineated in the Documentation (any portion of the Software merged into another program will continue to be subject to the terms and conditions of this Agreement) and to use the Documentation (the “License”). The License is limited to your personal use or for the internal business use of your company. User may physically transfer the Program between computers provided that it is used on only one computer at any given time. Company retains all right, title, and interest in and to the Software, and any rights not granted to User herein are reserved by Company.
2. Use Restrictions. Except as this Agreement expressly permits User shall not, and shall not permit any other individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity (“Person”) to engage in, facilitate or encourage unacceptable use of the Software, which such unacceptable uses include, but are not limited to:
(a) use, or permit the use of, the Software except for User’s internal purposes;
(b) copy the Software, in whole or in part;
(c) modify, correct, adapt, translate, enhance or otherwise prepare derivative works or improvements of any Software or any part thereof;
(d) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, market, commercially exploit or otherwise make available the Software, or any component thereof, or any features or functionality of the Software to any Person in any manner (including but not limited to further distribution of charts resulting from use of the Software), and any attempt to do so shall be void;
(e) disclose or grant access to an access code to the Software or any component thereof to any third party;
(f) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Software or any component thereof;
(g) bypass or breach any security device or protection used for or contained in the Software or Documentation;
(h) remove, delete, alter, obscure, or supplement any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Software or the Documentation, including any copy thereof;
(i) use the Software in any manner or for any purpose that infringes, misappropriates or otherwise violates any intellectual property rights of any Person, or that violates any federal, state, or local law, regulation or rule;
(j) use the Software for purposes of: (i) benchmarking or competitive analysis of the Software; (ii) developing, using or providing a competing software product or service; or (iii) any other purpose that is to Licensor's detriment or commercial disadvantage; or
3. Responsibility for Use of Software. User is responsible and liable for all uses of the Software through access thereto provided by User, directly or indirectly. Without limiting the generality of the foregoing, User is responsible and liable for all actions and failures to take required actions with respect to the Software by itself or by any other person to whom User may provide access to or use of the Software, whether such access or use is permitted by or in violation of this Agreement. User is responsible for obtaining all the hardware, software and services which are necessary to connect to the Software, including, without limitation, all computers, web browsers, and services provided by an Internet service provider.
4. Support and Updates. From time to time, at Company’s sole discretion, Company may provide you with support services related to the Software. Company reserves the right to alter, suspend, and terminate such support services at any time for any reason. Maintenance and support services will include provision of such updates, upgrades, bug fixes, patches and other error corrections (collectively, “Updates”) as Company makes generally available to all licensees of the Software then entitled to maintenance and support services. User agrees that all Updates will be deemed Software, all subject to all terms and conditions of this Agreement. Maintenance and support services do not include any new version or new release of the Software, and Company may determine whether any issuance qualifies as a new version, new release or Update in its sole discretion. Company has no obligation to provide maintenance and support services, including Updates and reserves the right to charge for such continued support and maintenance. Please report any support issues to: email@example.com.
5. Fees and Payment. All fees and support fees, if any, are payable in advance to Company and are non-refundable. In the event that User is provided with use of the Software through a 3rd party reseller (“Reseller”), User shall pay the Reseller who in turn shall submit the appropriate fee to Company. User shall be solely responsible for and shall pay Company or Reseller, if applicable, all sales, use, value-added, personal property or other tax, duty or levy of any kind, including interest and penalties thereon (collectively, “Taxes”), whether imposed now or hereinafter by any governmental authority. User shall promptly pay Company in the event of any refusal by User’s credit card issuer to pay any amount to Company for any reason. User agrees to pay interest at the rate of two percent (2.0%) per month on any outstanding balance, together with costs of collection, including attorney's fees and costs, and any applicable bank fees. In the event User fails to pay any amount due as set forth herein, Company may, at its sole discretion, immediately suspend or terminate this Agreement and User’s access to the Software. Company reserves the right to report delinquent accounts to appropriate credit agencies.
7. Intellectual Property Rights. User acknowledges and agrees that the Software and Documentation are licensed, not sold, to User and User does not have and will not acquire under or in connection with this Agreement any ownership interest in the Software, Documentation, any component thereof, all content, features, and functionality of the same, and any related intellectual property rights other than use of the same in accordance with the License granted, and subject to all terms, conditions and restrictions, under this Agreement. Company and its licensor(s) are and will remain the sole and exclusive owner(s) of all right, title and interest in and to the Software and Documentation, including all intellectual property rights relating thereto. User agrees that Company shall retain and User hereby transfers to Company all ownership, title, copyright, patent, trademark, and other proprietary rights arising out of the performance of this Agreement in and to enhancements or modifications to the Software or Documentation, regardless of which party invented, authored, performed or paid for such enhancements or modifications. User shall not, at any time during or after the Term, dispute or contest, directly or indirectly, Company’s exclusive right and title to the Software and Documentation or the validity thereof.
User shall safeguard all Software from infringement, misappropriation, theft, misuse or unauthorized access and shall promptly notify Company if User becomes aware of any infringement of the Company’s intellectual property rights in the Software, the Documentation and any Updates and fully cooperate with Company in any legal action taken by Company to enforce its intellectual property rights.
8. Term and Termination. This Agreement and the License is effective until terminated. User may terminate this Agreement and the License at any time by destroying the Software with all copies, full or partial, merged portions in any form, and removing all of its component parts. Your rights under this Agreement and the License will terminate automatically without notice from Company if you fail to comply with any term(s) or condition(s) of this Agreement. Upon termination of this Agreement, you shall cease all use of the Software and destroy all copies, full or partial, together with all backup copies, modifications, printed or written materials, and merged portions in any form and remove all component parts of the Software.
9. User Representations and Warranties. User represents and warrants that: (a) it has the full right, power and authority to enter into and perform its obligations under this Agreement; (b) when accepted and agreed to by User in accordance with the Preamble to this Agreement, this Agreement will constitute the legal, valid and binding obligation of User, enforceable against User in accordance with its terms; (c) User will comply with all laws and regulations applicable to the delivery and use of the Software, including but not limited to securities laws (d) all right and title to the Software, Documentation, and any Update(s) are owned by Company; and (e) User is an authorized signatory of the credit or charge card used to pay the fees pursuant to Section 5.
10. Investment Risk Disclosure. There are risks associated with investing in securities which may not be suitable for everyone. Investing in stocks, bonds, exchange traded funds, mutual funds, futures, options, currency markets and money market funds involve large potential for reward, but also a risk of loss or part or all of your principal. If you are trading futures, there is a chance that your account can go negative, and that you will end up owing money to your broker. Past investment performance is not a guarantee or predictor of future investment performance. Company does not make any guarantee or other promise as to any results that may be obtained from using the Software. No one should make any investment decision without first consulting his or her own financial advisor and conducting his or her own research and due diligence.
Options involve risk and are not suitable for all investors. Prior to buying or selling an option, investors must read a copy of the Characteristics & Risks of Standardized Options, also known as the options disclosure document (“ODD”). Go to http://www.optionsclearing.com/about/publications/character-risks.jsp for an explanation of the characteristics and risks of exchange traded options. Copies of the ODD are available from your broker, from any exchange on which options are traded, by placing an order online, or by calling 1-888-OPTIONS (1-888-678-4667), or from The Options Clearing Corporation, One North Wacker Drive, Suite 500, Chicago, Illinois 60606.
Any hypothetical example is not intended to be indicative of any specific investment. Hypothetical results are for illustrative purposes only and are not intended to represent the past or future performance of any specific investment. Past performance is no guarantee of future success.
By accessing, visiting, or using the Software in any way, you acknowledge the risks involved in trading stocks, bonds, exchange traded funds, mutual funds, futures, options, currency markets and money market funds and that you, not Company, are solely responsible for any losses, financial or otherwise, as a result of using the Software. To the maximum extent permitted by law, Company disclaims any and all liability in the event any information, commentary, analysis, opinions, advice and/or recommendations prove to be inaccurate, incomplete or unreliable, or result in any investment or other losses.
11. DISCLAIMER OF WARRANTIES. ALL SOFTWARE, DOCUMENTATION, UPDATES AND OTHER PRODUCTS, INFORMATION, MATERIALS AND SERVICES PROVIDED BY COMPANY ARE PROVIDED ON AN "AS IS" BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS, INDEPENDENT CONTRACTORS, AND SERVICE PROVIDERS, HEREBY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER (INCLUDING ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE), AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE SOFTWARE, DOCUMENTATION, UPDATES, OR ANY OTHER COMPANY OR THIRD-PARTY GOODS, SERVICES, TECHNOLOGIES OR MATERIALS (INCLUDING ANY SOFTWARE OR HARDWARE), OR ANY PRODUCTS OR RESULTS OF THE USE OF ANY OF THEM, WILL MEET USER’S OR ANY OTHER PERSONS' REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OTHER GOODS, SERVICES, TECHNOLOGIES OR MATERIALS (INCLUDING ANY SOFTWARE, HARDWARE, SYSTEM OR NETWORK) EXCEPT IF AND TO THE EXTENT EXPRESSLY SET FORTH IN THE DOCUMENTATION, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. USER ASSUMES THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE.
SHOULD THE SOFTWARE PROVE DEFECTIVE, YOU ASSUME THE ENTIRE RISK OR COST ASSOCIATED WITH SUCH DEFECT AND ANY SERVICE AND REPAIR. USER REALIZES THAT THERE IS RISK IN TRADING STOCKS AND THAT ASSETS MAY BE LOST AND ARE NOT INSURED. COMPANY IS ABSOLUTELY NOT RESPONSIBLE, DIRECTLY OR INDIRECTLY, FOR USERS’ STOCK ORDER, PURCHASE AND SALE ACTIONS.
ALL OPEN-SOURCE COMPONENTS AND OTHER THIRD-PARTY MATERIALS ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY OF THEM IS STRICTLY BETWEEN USER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF SUCH OPEN-SOURCE COMPONENTS AND THIRD-PARTY MATERIALS.
12. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICEABLE LAW, USER EXPRESSLY AGREES THAT IN NO EVENT SHALL COMPANY, OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, SUPPLIERS, OR INDEPENDENT CONTRACTORS, HAVE ANY LIABILITY WHATSOEVER TO USER OR ANY OTHER PERSON FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES FOR ANY MATTER ARISING FROM OR RELATING TO THIS AGREEMENT, THE SOFTWARE, THE DOCUMENTATION OR ANY UPDATE(S), INCLUDING, WITHOUT LIMITATION USER’S ABILITY TO USE THE SOFTWARE; INTERRUPTION; DELAY; DIMUNITION IN VALUE; LOST DATA; LOST PROFITS; LOSS OF GOODWILL; LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA; BREACH OF DATA OR SYSTEM SECURITY; OR ANY OTHER LIABILITY INCURRED BY OR IMPOSED UPON USER OR ANY OTHER PERSON, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, IN TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, UNDER ANY WARRANTY, OR OTHERWISE, IN EACH CASE REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. THE PURCHASE PRICE FOR THE SOFTWARE IS A CONSIDERATION IN LIMITING COMPANY’S LIABILITY. NO ACTION, REGARDLESS OF FORM ARISING OUT OF THE TRANSACTIONS UNDER THIS AGREEMENT MAY BE BROUGHT BY USER MORE THAN TWELVE (12) MONTHS AFTER THE CAUSE OF ACTION HAS ACCRUED.
COMPANY IS NOT LIABLE FOR ANY ITEMS VIEWED OR TRANSMITTED VIA THE SOFTWARE. COMPANY IS NOT OBLIGATED, DIRECTLY OR INDIRECTLY, TO (A) TAKE ANY STEPS TO PREVENT OR CORRECT ANY ILLEGAL, ABUSIVE OR OTHERWISE INAPPROPRIATE ACTIVITY PERFORMED BY USER, (B) TO ARCHIVE OR OTHERWISE MAINTAIN OTHER REPRODUCTION OF THE CONTENT THAT APPEARS ON THE SOFTWARE FOR FUTURE REFERENCE, (C) FOR ANY ACTION OR INACTION WITH RESPECT TO ANY CONTENT ON THE SOFTWARE, OR (D) FOR COMPLIANCE OR LACK THEREOF BY ANY BROKER(S) WITH RESPECT TO ANY APPLICABLE LAWS AND REGULATIONS INCLUDING, BUT NOT LIMITED TO, THOSE LAWS REGARDING OR PERTAINING TO THE TRADING OF SECURITIES.
13. LIMITATION OF DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY’S TOTAL LIABILITY FOR DAMGES EXCEED THE TOTAL FEES PAID BY USER TO COMPANY AS PAYMENT FOR THE PARTICULAR SOFTWARE GIVING RISE TO THE CAUSE OF ACTION. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
14. EXCLUSIVE REMEDY. IF USER IS DISSATISFIED WITH THE SOFTWARE, USER’S SOLE AND EXCLUSIVE REMEDY SHALL BE FOR USER TO DISCONTINUE USE OF THE SOFWATER AND TERMINATE THIS AGREEMENT IN ACCORDANCE WITH SECTION 8.
15. Indemnification. User agrees to indemnify, defend and hold harmless Company and its subsidiaries and affiliates, licensors and service providers, and each of its and their respective officers, directors, employees, agents, contractors, licensors, suppliers, successors and assigns from and against loss, damage, expense, liability or cost (including reasonable attorneys’ fees) arising out of or relating to: (a) this Agreement; (b) User’s use of the Software; and (c) any unacceptable use of the Software, including, without limitation, any action which is prohibited under Section 2.
16. Export Regulation. The Software may not be exported, re-exported, released, or made accessible from any country, jurisdiction or Person to which the export, re-export or release of the Software is prohibited by law, rule or regulation, including but not limited to the U.S. Export Administration Act and its associated regulations. By accepting this Agreement (including by installed or using any component of the Software), User represents, warrants and covenants that User: (a) is not located in, under control of, or a national or resident of any such country or jurisdiction, and (b) shall not itself, or permit any other Person to, export, re-export or release, directly or indirectly, the Software to any such country or jurisdiction.
17. Force Majeure. Company shall not be liable for any failure to perform its obligations in connection with any action described in this agreement, if such failure results from any act of God, riot, war, civil unrest, flood, earthquake, or other cause beyond Company's reasonable control (including any mechanical, electronic, or communications failure, but excluding failure caused by a party's financial condition or negligence).
18.2 Further Assurances. On a Company's reasonable request, User shall execute and deliver all documents and instruments, and take all such further actions, as may be necessary to give full effect to this Agreement.
18.3 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
18.4 Public Announcements. User shall not shall issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement or otherwise use Company's trademarks, service marks, trade names, logos, domain names or other indicia of source, association or sponsorship, in each case, without the prior written consent of Company.
18.5 Notices. All feedback, comments, requests for technical support and other communications relating to the MQ Services should be directed to: firstname.lastname@example.org.
18.6 Interpretation. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
18.8 Assignment. User shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement without Licensor's prior written consent. Any purported assignment, delegation or transfer in violation of this Section 17.8 is void. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
18.9 Amendment and Modification; Waiver. We reserve the right to revise, amend, remove, add to or otherwise update this Agreement at any time in our sole discretion. All changes are effective immediately when we post them, and apply to all access to and use of the Software thereafter. Your continued use of the Software following the posting of revisions to this Agreement constitutes your acceptance to such changes. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
18.10 Severability. If any term or provision of this Agreement is determined to be illegal, unenforceable, or invalid in whole or in part for any reason, such illegal, unenforceable, or invalid provisions or part thereof shall be stricken from this Agreement, and such provision shall not affect the legality, enforceability, or validity of the remainder of this Agreement. If any provision or part thereof of this Agreement is stricken in accordance with the provisions of this section, then this stricken provision shall be replaced, to the extent possible, with a legal, enforceable, and valid provision that is as similar in tenor to the stricken provision as is legally possible.
18.12 Arbitration. In Company’s sole discretion, Company may require User to submit any disputes arising from your use of the Software, including disputes arising from or concerning their interpretation, violation, invalidity, non-performance, or termination, to final and binding arbitration under the Rules of Arbitration of the American Arbitration Association applying Texas law.
18.13 Equitable Remedies. User acknowledges and agrees that a breach or threatened breach by User of this Agreement would cause Company irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, Company will be entitled to equitable relief, including in a restraining order, an injunction, specific performance and any other relief that may be available from any court of competent jurisdiction, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
USER HAS READ, UNDERSTANDS AND AGREES TO THE TERMS & CONDITIONS OF THIS AGREEMENT.