END USER SOFTWARE LICENSE AGREEMENT
IMPORTANT! PLEASE READ CAREFULLY: BY DOWNLOADING OR INSTALLING THE SOFTWARE (AS DEFINED BELOW), COPYING THE SOFTWARE AND/OR CLICKING ON THE CHECK BOX IN INSTRUCTRADE WEB SITE "I AGREE TO THE AGREEMENT TERMS", YOU (EITHER ON BEHALF OF YOURSELF AS AN INDIVIDUAL OR ON BEHALF OF AN ENTITY AS ITS AUTHORIZED REPRESENTATIVE) AGREE TO ALL OF THE TERMS OF THIS END USER LICENSE AGREEMENT ("AGREEMENT") REGARDING YOUR USE OF THE SOFTWARE. IF YOU DO NOT AGREE WITH ALL OF THE TERMS OF THIS AGREEMENT, DO NOT INSTALL, COPY OR OTHERWISE USE THE SOFTWARE.
THE CURRENT SOFTWARE VERSION SUPPORTS ONLY THE US STOCK MARKET! : NASDAQ, AMEX, NYSE ONLY!
THIS SOFTWARE LICENSE AGREEMENT ("Agreement") is made and entered into effective (the "Effective Date") by the end user (the "Licensee") acknowledgment of this agreement terms at InstrucTrade web site (www.instructrade.com), before the user starts downloading the software application "InstrucTrade" by and between:
T.Segal Technologies Development Ltd. ("The company"),
and , the End User ("The Licensee").
The Licensee understands and agrees to this agreement terms that are bounds together and in additional with the Licensee agreement terms with the Barchart Inc., the data feed provider for InstrcuTrade software licensees.
RECITALS
A. The company is the owner of InstrucTrade Software application and Documentation (as defined below).
B. The company desires to grant to Licensee and Licensee desires to obtain from company a nonexclusive license to use the Software and Documentation solely in accordance with the terms and on the conditions set forth in this Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1. DEFINITIONS.
1.1 "Documentation" shall mean all user documentation if and when supplied, and other related materials pertaining to the Software which are furnished to Licensee by the company in connection with the Software.
1.2 "License Fee" shall mean the monthly fee that the Licensee is being charged directly by Barchart Inc. with accordance to the agreement between the licensee and Barchart Inc.
1.3 "Software" shall mean the InstrucTrade computer programs in machine readable object code form and any subsequent error corrections or updates supplied to Licensee by the company from time to time pursuant to this Agreement.
2. GRANT OF RIGHTS.
The License granted for Software under this Agreement authorizes Licensee on a nonexclusive basis to use the Software on a single primary system at the time - personal computer (PC). The Software shall be used only on such primary systems if it is operating properly. The Software may be used on a backup system for that primary system.
3. DELIVERY.
3.1 Software. The licensee shall download the Software licensed hereunder in object code form from the company web site and install the software on the primary system with accordance to the company instruction.The company may release from time to time updates and new software revisions.The company is not necessarily required to notify for any new software revisions or updates. It is the licensee responsibility to review the company web site in order to keep his software version up to date.
3.2 Documentation. The company may release from time to time electronically documentation, downloadable and accessible from the company web site. The company is not necessarily required to notify for any documentation, new documentation, updates or upgrades new release. It is the licensee responsibility to review the company web site in order to locate the documentation, new documentation or updates in order to keep his system updated with the last documentation version..
4. MODIFICATIONS.
4.1 Error Corrections and Updates. The company may provide the Licensee from time to time with error corrections, bug fixes, patches or other updates to the Software licensed hereunder in object code form to the extent available in accordance with the company's release schedule. However, the company supplies the software "as is" without any commitment to correct any errors, bugs or features.
4.2 Other Modifications. The Licensee may, from time to time, request that The Company incorporate certain features, enhancements or modifications into the Software. The Company may, in its sole discretion, undertake to incorporate such changes and distribute the Software so modified to all or any of The Company's licensees.
4.3 Title to Modifications. All such error corrections, bug fixes, patches, updates or other modifications shall be the sole property of The Company.
5. COPIES.
5.1 Printed Matter. Except as specifically set forth herein, no Software or Documentation which is provided by The Company pursuant to this Agreement in human readable form, such as written or printed documents, shall be copied in whole or in part by the Licensee without The Company's prior written agreement. Additional copies of printed materials may be obtained from The Company at the charges then in effect.
5.2 Machine Readable Matter. Except as specifically set forth herein, any Software provided in machine readable form may not be copied the Licensee in whole or in part, except for Licensee's backup or archive purposes. Licensee agrees to maintain appropriate records of the number and location of all copies of the Software and make such records available upon The Company's request. Licensee further agrees to reproduce all copyright and other proprietary notices on all copies of the Software in the same form and manner that such copyright and other proprietary notices are originally included on the Software.
6. LICENSE FEES AND PAYMENT.
6.1 License Monthly Fee. In consideration of the license rights granted in Article 2 above, Licensee shall pay the License Monthly Fees or other consideration for the Software as set forth in the licensee agreement with Barchart Inc. and as it appears in the company web site. All amounts payable hereunder by Licensee shall be payable in United States funds without deductions for taxes, assessments, fees, or charges of any kind.
6.2 Taxes and Other Charges. Licensee shall be responsible for paying all (i) sales, use, excise, value-added, or other tax or governmental charges imposed on the licensing or use of the Software hereunder, (ii) freight, insurance and installation charges, and (iii) import or export duties or like charges.
7. PROTECTION OF SOFTWARE.
7.1 Proprietary Notices. Licensee agrees to respect and not to remove, obliterate, or cancel from view any copyright, trademark, confidentiality or other proprietary notice, mark, or legend appearing on any of the Software or output generated by the Software, and to reproduce and include same on each copy of the Software.
7.2 No Reverse Engineering. Licensee agrees not to modify, reverse engineer, disassemble, or decompile the Software, or any portion thereof.
7.3 Ownership. Licensee further acknowledges that all copies of the Software in any form provided by The Company or made by Licensee are the sole property of The Company. Licensee shall not have any right, title, or interest to any such Software or copies thereof except as provided in this Agreement, and further shall secure and protect all Software and Documentation consistent with maintenance of The Company's proprietary rights therein.
7.4 Patent Pending Software. The licensee knows that InstrucTrade software application is subject to patent pending application in the US patent and trademark office.
8. CONFIDENTIALITY.
8.1 Acknowledgement. Licensee hereby acknowledges and agrees that the Software and Documentation constitute and contain valuable proprietary products and trade secrets of The Company and/or its suppliers, embodying substantial creative efforts and confidential information, ideas, and expressions. Accordingly, Licensee agrees to treat (and take precautions to ensure that its employees treat if any) the Software and Documentation as confidential in accordance with the confidentiality requirements and conditions set forth below.
8.2 Maintenance of Confidential Information. Each party agrees to keep confidential all confidential information disclosed to it by the other party in accordance herewith, and to protect the confidentiality thereof in the same manner it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of confidential information); provided, however, that neither party shall have any such obligation with respect to use of disclosure to others not parties to this Agreement of such confidential information as can be established to: (a) have been known publicly; (b) have been known generally in the industry before communication by the disclosing party to the recipient; (c) have become know publicly, without fault on the part of the recipient, subsequent to disclosure by the disclosing party; (d) have been known otherwise by the recipient before communication by the disclosing party; or (e) have been received by the recipient without any obligation of confidentiality from a source (other than the disclosing party) lawfully having possession of such information.
8.3 Injunctive Relief. Licensee acknowledges that the unauthorized use, transfer or disclosure of the Software and Documentation or copies thereof will (i) substantially diminish the value to The Company of the trade secrets and other proprietary interests that are the subject of this Agreement; (ii) render The Company's remedy at law for such unauthorized use, disclosure or transfer inadequate; and (iii) cause irreparable injury in a short period of time. If Licensee breaches any of its obligations with respect to the use or confidentiality of the Software or Documentation, The Company shall be entitled to equitable relief to protect its interests therein, including, but not limited to, preliminary and permanent injunctive relief.
8.4 Survival. Licensee's obligations under this Article 8 will survive the termination of this Agreement or of any license granted under this Agreement for whatever reason.
9. WARRANTIES; SUPERIOR RIGHTS.
9.1 Ownership. Except for the rights, The Company represents its belief that it is the owner of the entire right, title, and interest in and to Software, and that it has the sole right to grant licenses thereunder, and that it has not knowingly granted licenses thereunder to any other entity that would restrict rights granted hereunder except as stated herein.
9.2 Limitations. The Company's obligations with respect shall be contingent on Licensee's use of the Software in accordance with this Agreement and in accordance with The Company's instructions as if and when provided by The Company in the Documentation, as such instructions may be amended, supplemented, or modified by The Company from time to time. The Company shall have no warranty obligations with respect to any failures of the Software which are the result of internet communication, data stream failure, data stream overload, personal computer, operating system, improperly installtion, accident, abuse, misapplication, extreme power surge or extreme electromagnetic field.
9.3 Third Party, Real-Time Application Warranty Limitation. The Software real-time application may contains bugs and errors that will cause in some conditions software failure. Furthermore, the software makes use of third party components and platforms such as in general: operating system, software platform, computing hardware, communication hardware, fast internet communication network, data feed streaming and more. The Licensee understands and agrees that the overall results of the above mention and more may cause partial or complete software failure that are not subject to the company warranty coverage.
9.5 Licensee's Sole Remedy. The Company's entire liability and Licensee's exclusive remedy shall be, at The Company's option, either (a) return of the price paid of one month or (b) repair or replacement of the Software upon its return to The Company; provided The Company receives written notice from Licensee during the warranty period of a breach of warranty. Any replacement Software will be warranted for the remainder of the original warranty period or thirty (30) days. This article is valid for a period of 30 days from the "effective day".
9.6 Disclaimer of Warranties. THE COMPANY DOES NOT REPRESENT OR WARRANT THAT ALL ERRORS IN THE SOFTWARE AND DOCUMENTATION WILL BE CORRECTED. THE WARRANTIES STATED IN SECTION 9 ABOVE ARE THE SOLE AND THE EXCLUSIVE WARRANTIES OFFERED BY THE COMPANY. THERE ARE NO OTHER WARRANTIES RESPECTING THE SOFTWARE AND DOCUMENTATION OR SERVICES PROVIDED HEREUNDER, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF DESIGN, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, EVEN IF THE COMPANY HAS BEEN INFORMED OF SUCH PURPOSE. NO AGENT OF THE COMPANY IS AUTHORIZED TO ALTER OR EXCEED THE WARRANTY OBLIGATIONS OF THE COMPANY AS SET FORTH HEREIN.
9.7 Limitation of Liability. LICENSEE ACKNOWLEDGES AND AGREES THAT THE CONSIDERATION WHICH THE COMPANY IS CHARGING HEREUNDER DOES NOT INCLUDE ANY CONSIDERATION FOR ASSUMPTION BY THE COMPANY OF THE RISK OF LICENSEE'S CONSEQUENTIAL OR INCIDENTAL DAMAGES WHICH MAY ARISE IN CONNECTION WITH LICENSEE'S USE OF THE SOFTWARE AND DOCUMENTATION. ACCORDINGLY, LICENSEE AGREES THAT THE COMPANY SHALL NOT BE RESPONSIBLE TO LICENSEE FOR ANY LOSS-OF-PROFIT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE LICENSING OR USE OF THE SOFTWARE OR DOCUMENTATION. Any provision herein to the contrary notwithstanding, the maximum liability of The Company to any person, firm or corporation whatsoever arising out of or in the connection with any license, use or other employment of any Software delivered to Licensee hereunder, whether such liability arises from any claim based on breach or repudiation of contract, warranty, tort or otherwise, shall in no case exceed the actual price paid of one monthly fee to The Company by Licensee for the Software whose license, use, or other employment gives rise to the liability. The essential purpose of this provision is to limit the potential liability of The Company arising out of this Agreement. The parties acknowledge that the limitations set forth in this Article 9 are integral to the amount of consideration levied in connection with the license of the Software and Documentation and any services rendered hereunder and that, were The Company to assume any further liability other than as set forth herein, such consideration would of necessity be set substantially higher.
10. DEFAULT AND TERMINATION.
10.1 Events of Default. This Agreement may be terminated by the nondefaulting party if any of the following events of default occur: (1) if a party materially fails to perform or comply with this Agreement or any provision hereof; (2) if either party fails to strictly comply with the provisions of Section 9 (Confidentiality) or makes an assignment in violation of Section 12 (Nonassignability); (3) if a party becomes insolvent or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors; (4) if a petition under any foreign, state, or receivership statute, or the like, as they now exist, or as they may be amended, is filed by a party; or (5) if such a petition is filed by any third party, or an application for a receiver is made by anyone and such petition or application is not resolved favorably within ninety (90) days.
10.2 Effective Date of Termination. Termination due to a material breach of Articles 2 (Grant of Rights), 5 (Copies), 7 (Protection of Software), or 8 (Confidentiality) shall be effective on notice. In all other cases, termination shall be effective thirty (30) days after notice of termination to the defaulting party if the defaults have not been cured within such thirty (30) day period.
10.3 Obligations on Termination. Within ten (10) days after termination of this Agreement, Licensee shall cease and desist all use of the Software and Documentation and shall be removed and deleted from the Licensee computer. The company will have the full right to disable immediately the Licensee access to the data feed server by deleting its user name and password without prior notice listed hereto.
11. NOTICES. All notices, authorizations, and requests in connection with this Agreement shall be deemed given (i) five days after being deposited in via mail, postage prepaid, certified or registered, return receipt requested; or (ii) one day after being sent by overnight courier, charges prepaid, with a confirming fax; and addressed as first set forth above or to such other address as the party to receive the notice or request so designates by written notice to the other.
12. NONASSIGNABILITY. Licensee shall not assign this Agreement or its rights hereunder without the prior written consent of The Company.
13. GOVERNING LAW; JURISDICTION AND VENUE. The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of Israel. The Israeli state courts shall have exclusive jurisdiction and venue over any dispute arising out of this Agreement, and Licensee hereby consents to the jurisdiction of such courts.
14. SEVERABILITY. If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect.
16. MISCELLANEOUS. This Agreement and the agreement with Barchart Inc. contain the entire understanding and agreement between the parties respecting the subject matter hereof. This Agreement may not be supplemented, modified, amended, released or discharged except by an instrument in writing signed by each party's duly authorized representative. All captions and headings in this Agreement are for purposes of convenience only and shall not affect the construction or interpretation of any of its provisions. Any waiver by either party of any default or breach hereunder shall not constitute a waiver of any provision of this Agreement or of any subsequent default or breach of the same or a different kind.
