Live Trading Alerts End-User License And Subscription Agreement
The customer is buying a 30-day, renewable subscription to use the Live Trading Alerts software and related data, documentation and usage educational services and support services.
Nothing found in Live Trading Alerts software, services or materials should be considered advice for or a recommendation of any specific investment or trading action. Customer must assume total responsibility for all investment or trading decisions made. Trading Tools LLC product offerings are not intended to provide investment, tax, or legal advice. Trading Tools LLC will not be responsible for your personal trading results.
Other than the right to use the software during the subscription period, the customer has no other rights to the software. The software as well as its functions, features and design remain the property of Trading Tools LLC at all times and may not be reverse engineered, duplicated or approximated by the customer or through access to the software granted by the customer for use in any other software product or service.
Trading Tools LLC cannot warrant or guarantee either the timeliness or accuracy of the data provided. All data provided is believed to be both timely and accurate. However, third-party data sources and even markets themselves will have data errors at times. This includes the timing of merged tickers, delistings, “bad ticks,” as well as temporary data feed losses, network outages, etc. As such, Trading Tools LLC does not warrant the timeliness or accuracy of data.
READ CAREFULLY THESE TERMS AND CONDITIONS, AS THEY, TOGETHER WITH THE TRADING TOOLS LLC ORDER FORM ON WHICH THEY ARE REFERENCED, CONSTITUTE A LEGALLY BINDING AGREEMENT AND GOVERN YOUR USE OF LIVE TRADING ALERTS SOFTWARE AND THE PROVISION BY TRADING TOOLS LLC OF ASSOCIATED SERVICES.
BY DOWNLOADING, INSTALLING AND/OR USING THE LIVE TRADING ALERTS SOFTWARE, OR BY RECEIVING LIVE TRADING ALERTS SOFTWARE SERVICES, OR BY ACCESSING OR USING THE TRADING TOOLS LLC RELATED CLOUD SERVICES, YOU ARE INDICATING THAT YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.
IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT DOWNLOAD OR INSTALL THE LIVE TRADING ALERTS SOFTWARE OR RECEIVE LIVE TRADING ALERTS SOFTWARE SERVICES OR ACCESS AND USE THE TRADING TOOLS LLC RELATED CLOUD SERVICES.
This End User Software Subscription Agreement (this “Agreement“) is entered into by and between the Trading Tools LLC entity identified in Section 10 (“Trading Tools LLC”) and the customer (“You” or “Customer”), identified on the Order Form, that is purchasing a Software Subscription and/or Services, and is effective as of the date you receive the Live Trading Alerts Software, receive the related Trading Tools LLC Services, access the related Trading Tools LLC Cloud Services or complete the Order Form, whichever comes first (the “Effective Date“). Trading Tools LLC and Customer are collectively referred to herein as the “Parties” and individually as a “Party”. If you are entering into this Agreement on behalf of a company or legal entity, you represent that you have the authority to bind such entity to these terms and conditions, in which case the terms “You” and “Your” shall refer to such entity.
This Agreement permits Customer to order the Live Trading Alerts Software Subscription and/or Services or the Live Trading Alerts Software Cloud Services (as applicable) from Trading Tools LLC pursuant to the terms and conditions contained herein. The terms and conditions of this Agreement shall govern Customer’s use of the Live Trading Alerts Software and/or Services. If Customer is ordering the Live Trading Alerts Cloud Services, then the additional terms and conditions of Exhibit B to this Agreement shall govern Customer’s access to and use of the Live Trading Alerts Cloud Services.
The following capitalized terms shall have the meaning set forth below. Other defined terms shall have the meanings set forth where they are first underlined.
1.1 “Affiliate” means an entity that controls, is controlled by, or is under common control with Customer, where “control” means an ownership, voting or similar interest representing fifty percent (50%) or more of the total interests then outstanding of the relevant entity.
1.2 “Documentation” means the documentation provided with the Live Trading Alerts Software to Customer hereunder, together with any and all new documentation releases, corrections and updates furnished by Trading Tools LLC to Customer under this Agreement.
1.3 “Generated Code” means an independently executable program generated by the Trading Tools LLC Live Trading Alerts Software.
1.4 “Order Form” means (i) a Trading Tools LLC order form or web page accepted by both Parties, pursuant to which Customer may order Live Trading Alerts Software and Services from Trading Tools LLC, or (ii) any document accepted by and between an authorized reseller of Live Trading Alerts Software pursuant to which Customer may order Live Trading Alerts Software and Services from Trading Tools LLC.
1.5 “Services” means collectively the Consulting Services and/or Training Services.
1.6 “Software Subscription” means Customer’s right to use the applicable Live Trading Alerts Software, subject to the License Type restrictions for which such right has been purchased.
1.7 “Software Subscription API Key” (of “Software Subscription License Key”) means a logical code that activates and controls a Software Subscription based on (i) the applicable License Type, (ii) the Live Trading Alerts Software edition for which a Software Subscription has been purchased, and (iii) the Subscription Term. A Software Subscription Key is “attached” to a specific hardware machine identified by a MAC address or other hardware identification means, and may be installed on only one machine at a time.
1.8 “Subscription Term” means the period of time for which; (i) a Software Subscription is valid; or (ii) a Cloud Subscription is valid, as set forth in the applicable Order Form. Notwithstanding the foregoing, the Subscription Term for any Generated Code is always perpetual.
1.9 “Support Services” means the technical support services related to the use of the Live Trading Alerts Software and/or Live Trading Alerts Cloud Services that are purchased by Customer, as set forth on an applicable Order Form, and as further described in Live Trading Alerts Software “Support Services Policy” located at https://livetradingalerts.com/lta-support-policy/. The Support Services Policy is hereby incorporated into and made part of this Agreement.
1.10 “Live Trading Alerts Cloud Services” and “Cloud Subscription” shall be as defined in Exhibit B.
1.11 “Live Trading Alerts Software” means the object code version of the Live Trading Alerts proprietary software for which Customer has purchased a Software Subscription hereunder, as indicated on the applicable Order Form, along with any Updates thereto provided by Trading Tools LLC to Customer hereunder and including, without limitation, any Generated Code.
1.12 “Update” means any Major Release, Minor Release, Service Pack and/or Patch (all as defined in the Support Services Policy) of or for the Live Trading Alerts Software that is made generally available by Trading Tools LLC to its customers during the term of this Agreement.
- Software Subscription, Delivery, Restrictions
2.1 License Grants. Subject to the terms and conditions of this Agreement, including the payment of all applicable fees, Trading Tools LLC hereby grants to Customer, solely for Customer’s personal internal business operations, a limited, non-exclusive, non-transferable right and license to:
(a) Use the Live Trading Alerts Software during the Subscription Term, subject to the applicable License Type restrictions (as specified on an Order Form);
(b) Use any Generated Code in perpetuity subject to the restrictions set forth below in Section 2.2;
(c) Permit Affiliates or third-party contractors performing services on Customer’s behalf to use the Live Trading Alerts Software and Documentation in accordance with the terms and conditions of this Agreement provided that (i) such use must be solely for the benefit of Customer; and (ii) Customer shall be responsible for all acts and omissions of such third parties and;
(d) Make a reasonable number of copies of the Live Trading Alerts Software for backup and/or archival purposes, excluding Hot and Warm Backup purposes as such terms are defined in Exhibit A.
2.2 Reservation of Rights; Restrictions. Trading Tools LLC owns all rights, title and interest in and to the Live Trading Alerts Software and any derivative works thereof, and no other license to the Live Trading Alerts Software is granted to Customer by implication, estoppel or otherwise. Customer understands and agrees that Customer’s ability to use the Live Trading Alerts Software is determined by the Software Subscription Key provided to Customer.
Customer agrees not to:
- prepare derivative works from, modify, copy or use the Live Trading Alerts Software in any manner except as expressly permitted in this Agreement;
- attempt to circumvent, disable or defeat the limitations on Customer’s use of the Live Trading Alerts Software encoded into the Software or Software Subscription Key;
- transfer, sell, rent, lease, distribute, sublicense, loan or otherwise transfer Live Trading Alerts Software or the Generated Code in whole or in part to any third party;
- use the Live Trading Alerts Software or the Generated Code for providing time-sharing services, any software-as-a-service offering (“SaaS”), service bureau services or as part of an application services provider or as a service offering;
- alter or remove any proprietary notices in the Live Trading Alerts Software or the Generated Code; and
- make available to any third party any analysis of the results of operation of the Live Trading Alerts Software, including benchmarking results, without the prior written consent of Trading Tools LLC.
Trading Tools LLC hereby agrees, subject to payment of the applicable fees and the terms of this Agreement, to permit such use of the Live Trading Alerts Software.
2.3 Delivery; Software Subscription Keys and Use Manager. The Trading Tools LLC Software is only available electronically via download and will not be available in any other format. Trading Tools LLC Software shall be deemed delivered to Customer upon Trading Tools LLC making available to Customer the Software Subscription Key. Customer understands and agrees that a Software Subscription Key provided by Trading Tools LLC is required to enable the Trading Tools LLC Software and that Software Subscription Keys are valid only during the Subscription Term.
Customer further understands and agrees that:
- in case of breach by Customer of the payment terms stipulated in this Agreement, Trading Tools LLC will have the right to suspend the Software Subscription and such suspension will not give rise to any modification of the amount of the Software Subscription fee or to any extension of the Subscription Term;
- the Trading Tools LLC Software will, in the absence of any renewal of the Subscription Term, be disabled automatically upon the expiration of the Subscription Term and
- the Software Subscription Key will automatically prevent the use of the Trading Tools LLC Software in violation of the applicable License Type restrictions, as set forth in the Order Form.
- Finally, Customer understands and agrees that upon activation of the Trading Tools LLC Software, a software module (“Use Manager”) will provide certain information to Trading Tools LLC regarding the system environment in which the Trading Tools LLC Software is operating, and will monitor the use and security of the Trading Tools LLC Software. For example, the Use Manager uses HTTP protocol and encryption to provide information about the Operating System, amount of RAM, type and number of CPUs and MAC address, as well as the Customer name, license type, version of the Trading Tools LLC Software being used, start and end date of the Software Subscription, and number of active users, provided, however, that under no circumstances does the Use Manager capture or transmit to Trading Tools LLC any Customer data being processed by the Trading Tools LLC Software.
3.1 Support Services. Subject to the payment by Customer to Trading Tools LLC of applicable fees, Trading Tools LLC will provide Customer with the Support Services specified in the Order Form. Support Services are provided to Customer solely for Customer’s internal use and Customer may not use the Support Services to supply any consulting, support or training services to any third party. Trading Tools LLC reserves the right to modify reasonably its Support Services Policy from time to time. Trading Tools LLC shall have no obligation to support versions of the Trading Tools LLC Software that have been modified by Customer. No Support Services will be supplied after the term of the subscription has ended.
Customer understands and agrees that:
- Trading Tools LLC will make reasonable effort to provide quick, thorough and efficient support service;
- Software Support is often a very technical and detailed process involving finding problems that may be buried inside any of thousands of lines of software code, which means it takes some time to resolve problems;
- Support personnel are human, subject to occasional error, time restraints and work limitations. They cannotbe reasonably expected to be available 24x7x365, to drop everything to immediately work on customer’s issue, to solve problems instantaneously or to work without rest until a given problem is resolved.
3.2 Training Services. Subject to the payment by Customer to Trading Tools LLC of applicable fees, Trading Tools LLC agrees to provide Customer with the training services (“Training Services”), if any, set forth on an applicable Order Form, or as may be further described in an applicable Statement of Work.
3.3 Cancellation and Rescheduling. Cancelling or rescheduling of Support or Training Services must be done in writing. Consulting or Training Services scheduled by joint agreement between the Parties and cancelled or postponed by Customer less than two (2) business days prior to the engagement commencing shall be subject to a cancellation/rescheduling fee of $1,500 per Trading Tools LLC Consultant. In addition, Customer shall reimburse Trading Tools LLC for any non-refundable travel expenses that have been incurred by Trading Tools LLC prior to such cancellation or postponement of the Consulting and/or Training Services by Customer.
3.4 Subcontractors. Trading Tools LLC reserves the right to use subcontractors to perform Support or Training Services on Trading Tools LLC’s behalf.
3.5 Customer Policies. The Customer agrees to provide the use of third-party remote support software if needed and as requested by Trading Tools LLC support or training representatives. Customer agrees to install this software and grant remote access to their computer for the purposes of determining and solving support problems or for the delivering of Training Services. Neither Trading Tools LLC or their representatives assume any obligation related to or responsibility for this third-party software or issues it may cause.
3.6 Ownership of Work Product and Other Materials. In the course of performing the Services, Trading Tools LLC may create derivative works of the Trading Tools LLC Software or other works of authorship (collectively “Work Product”). Trading Tools LLC shall own all right title and interest in and to all Work Product, including all intellectual property rights therein and thereto. Trading Tools LLC hereby grants to Customer a license to such Work Product under the same terms and conditions as Customer’s subscription license to the Trading Tools LLC Software set forth in Section 2.1 above. Notwithstanding the foregoing, and for the avoidance of doubt, in the case of Work Product that are Generated Code, Trading Tools LLC shall retain ownership of the Generated Code. Nothing in this Agreement shall be deemed to prohibit Trading Tools LLC from using for any purpose any general knowledge, skills, techniques or methods it learns in the course of performing Services.
3.7 Customer Obligations. Customer agrees to provide Trading Tools LLC with such cooperation, materials, information, access and support which Trading Tools LLC deems to be reasonably required to allow Trading Tools LLC to successfully provide the Services. Customer understands and agrees that Trading Tools LLC’s obligations to provide Services are expressly conditioned upon Customer providing such cooperation, materials, information, access and support.
- Fees, Payment and Taxes
4.1 Fees. Customer agrees to pay Trading Tools LLC the applicable Software Subscription, Services and Cloud Subscription fees stated on the Order Form website and are subject to change at the discretion of Trading Tools LLC.
4.2 Invoicing. Unless otherwise specified on an Order Form, the fees for the Services, Software Subscription and/or Cloud Subscription shall be invoiced upon execution of the applicable Order Form by both Parties. If no Order Form is executed, then upon receipt and acceptance of a valid Purchase Order by Trading Tools LLC.
4.3 Payment. Unless otherwise specified on an Order Form, all invoices will be paid in the official currency of the country in which the Trading Tools LLC entity is identified under Section 10 below, and are due upon receipt and will be paid within thirty (30) days of the date of the invoice. Payments will be made without right of set-off or chargeback. All monetary amounts are specified and shall be paid in the lawful currency stipulated in the Order Form. Customer shall pay all amounts due under this Agreement to Trading Tools LLC at the address set forth herein or such other location as Trading Tools LLC designates in writing. Any amount not paid when due may be subject to interest at the rate of one-and-one-half percent (1.5%) per month or, the maximum rate permitted by law, whichever is greater, determined and compounded on a daily basis from the date due until the date paid.
4.4 Pre-Packaged Services & Expenses. Training Services, and any Consulting Services that are not provided on a Time & Material basis, are sold as “Pre-packaged Services” with fixed prices, as set forth on an applicable Order Form. Fees for Pre-packaged Services shall be as stated on the applicable Order Form. Any Pre-packaged Services for which the applicable fees are pre-paid must be consumed by Customer within one (1) year from the time of purchase, and such fees are non-refundable. Customer shall reimburse Trading Tools LLC for all reasonable travel, accommodation, communications, and out-of-pocket expenses incurred in conjunction with provision of the Services (“Expenses”).
4.5 Taxes. All amounts payable by Customer to Trading Tools LLC under this Agreement are exclusive of any tax, levy, VAT or other relevant governmental charge that may be assessed by any jurisdiction (Taxes) and Customer agree to pay all such Taxes, except for taxes based on Trading Tools LLC’s income, whether based on gross revenue, the delivery, possession or use of the Trading Tools LLC Software, the provision of Services, the execution or performance of this Agreement or otherwise, and including without limitation all goods and services tax, sales tax, excise duty, import or export levy, value added tax, governmental permit fees, license fees, and customs. If, as a result of any tax or levy, Customer is required to withhold any amount on any payment to Trading Tools LLC, then the amount of the payment to Trading Tools LLC shall be automatically increased to totally offset such tax, so that the amount actually remitted to Trading Tools LLC, net of all taxes, equals the amount invoiced or otherwise due. Customer will promptly furnish Trading Tools LLC with the official receipt of payment of these taxes to the appropriate taxing authority. If Customer is tax exempt, Customer shall provide Trading Tools LLC with a certificate of exemption acceptable to the taxing authority.
4.6 Purchases through Resellers. In the event Customer purchases licenses to the Trading Tools LLC Software and/or purchases the Services (including the Trading Tools LLC Cloud Services and any renewals thereof) through an authorized reseller of Trading Tools LLC, the terms and conditions of this Agreement shall apply and supersede any other agreement except for any terms and conditions related to pricing, payment or taxes. Such terms and conditions shall be negotiated solely by and between Customer and such authorized reseller. In the event Customer ceases to pay the Reseller, or terminates its agreement with the Reseller, Trading Tools LLC shall have the right to terminate Customer’s access to the Trading Tools LLC Software and/or Cloud Services at any time upon notice to Customer unless Customer and Trading Tools LLC have agreed otherwise in writing. Trading Tools LLC shall not be liable for any disputes arising from or in connection with the transaction between the Customer and such Reseller, and shall not and are not required to mediate or resolve any such disputes or disagreements.
- Term and Termination
5.1 Term. This Agreement shall commence on the Effective Date and shall, unless earlier terminated under Section 5.2 below, continue in force until the expiration of the applicable Subscription Term.
5.2 Termination; Post Termination. Either Party may, upon written notice to the other Party, terminate this Agreement for material breach by the other Party if such Party has failed to cure such material breach within thirty (30) days of receiving written notice of such material breach from the non-breaching Party. Notwithstanding the foregoing, this Agreement shall automatically terminate in the event that Customer intentionally breaches the scope of the license granted in Section 2.1 of this Agreement. Upon termination of this Agreement, for any reason, Customer shall promptly cease the use of the Trading Tools LLC Software and Documentation and destroy (and certify to Trading Tools LLC in writing the fact of such destruction), or return to Trading Tools LLC, all copies of the Trading Tools LLC Software and Documentation then in Customer’s possession or under Customer’s control.
5.3 Survival. All payment obligations under Section 4, plus Sections 1, 2.2, 5.2, 5.3, and 6 – 11 shall survive any termination or expiration of this Agreement.
6.1 Confidential Information. Each party (“Receiving Party”) agrees to retain in confidence any information provided to it by the other party (“Disclosing Party”) that is marked, labeled or otherwise designed as confidential or proprietary or that Receiving Party knew, or should have known, was confidential due to the circumstances surrounding the disclosure by Disclosing Party (“Confidential Information”). The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document:
- was rightfully in its possession or known to it prior to receipt of the Confidential Information;
- is or has become public knowledge through no fault of the Receiving Party;
- is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation;
- is independently developed by the Receiving Party without reference to the other party’s Confidential Information; or
- is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party).
Each party will only disclose Confidential Information to its employees, agents, representatives and authorized contractors (collectively “Representatives”) having a need to know for the purposes of this Agreement. Each party will notify and inform such Representatives of each party’s limitations, duties, and obligations regarding use, access to, and nondisclosure of Confidential Information and will obtain or have obtained its Representatives’ agreements to comply with such limitations, duties, and obligations with regard to such Confidential Information no less restrictive than those contained herein. Each party is liable for all acts and omissions of the Representatives related to the other party’s Confidential Information. Each party agrees to give notice to the other party immediately after learning of or having reason to suspect a breach of any of the proprietary restrictions set forth in this Section. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law and the Receiving Party shall provide all reasonable assistance to the Disclosing Party in connection with any proceedings which it may seek to institute against any person for such breach of confidence.
- Warranties and Remedies
7.1 Software Performance Warranty and Remedy. Trading Tools LLC warrants to Customer that for a period of thirty (30) days from the Effective Date (“Warranty Period”), the Trading Tools LLC Software will perform in all material respects in accordance with the Documentation unless a longer warranty period is foreseen by local applicable laws. Customer’s exclusive remedy and Trading Tools LLC’s sole obligation for any failure of the Trading Tools LLC Software to perform in all material respects in accordance with its Documentation will be for Trading Tools LLC to use its commercially reasonable efforts to correct such non-conformance. Such warranties do not apply to any defect resulting from:
- casualty loss,
- use or combination of the Trading Tools LLC Software with any products, goods, services or other items furnished by anyone other than Trading Tools LLC (unless recommended by Trading Tools LLC in writing),
- any modification not made by or for Trading Tools LLC, or any use of the Trading Tools LLC Software by Customer in violation of the terms of this Agreement.
7.2 Warranty Disclaimer and Limitations. EXCEPT AS SET FORTH IN SECTION 7.1 ABOVE OR EXHIBIT B, THE TRADING TOOLS LLC SOFTWARE, THE SERVICES AND THE TRADING TOOLS LLC CLOUD SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND TRADING TOOLS LLC AND ITS LICENSORS MAKE NO WARRANTIES WHETHER EXPRESSED, IMPLIED OR STATUTORY REGARDING OR RELATING TO THE TRADING TOOLS LLC SOFTWARE, DOCUMENTATION, MATERIALS, SERVICES OR TRADING TOOLS LLC CLOUD SERVICES FURNISHED OR PROVIDED TO CUSTOMER UNDER THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, TRADING TOOLS LLC AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGMENT WITH RESPECT TO THE TRADING TOOLS LLC SOFTWARE, DOCUMENTATION, SERVICES AND TRADING TOOLS LLC CLOUD SERVICES PROVIDED BY TRADING TOOLS LLC HEREUNDER, AND WITH RESPECT TO THE USE OF THE FOREGOING. FURTHER, TRADING TOOLS LLC DOES NOT WARRANT RESULTS OF USE OR THAT THE TRADING TOOLS LLC SOFTWARE AND/OR TRADING TOOLS LLC CLOUD SERVICES WILL BE ERROR FREE OR THAT THE CUSTOMER’S USE OF THE TRADING TOOLS LLC SOFTWARE, DELIVERABLES AND/OR TRADING TOOLS LLC CLOUD SERVICES WILL BE UNINTERRUPTED. TRADING TOOLS LLC USES A THIRD-PARTY DATA CENTER TO HOST THE TRADING TOOLS LLC CLOUD SERVICES. CUSTOMER ACKNOWLEDGES THAT TRADING TOOLS LLC DOES NOT CONTROL THE TRANSFER OF DATA OVER SUCH THIRD-PARTY FACILITIES, INCLUDING THE INTERNET, AND THAT THE TRADING TOOLS LLC CLOUD SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH THIRD PARTY FACILITIES. TRADING TOOLS LLC IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
7.3 Data and Calculation Warranty and Remedy. Trading Tools LLC will make every reasonable effort to assure that the data sources used and calculations made by Live Trading Alerts Software are correct. However, both parties to this agreement acknowledge that much of this data is sourced from third-parties and the calculations may be incorrect. Therefore, Trading Tools LLC sole obligation for any data or calculation failure will be for Trading Tools LLC to use its commercially reasonable efforts to correct such error.
- Intellectual Property Infringement Claims
8.1 Obligation. Subject to the applicable conditions and limitations set forth in this Section 8, Trading Tools LLC will, at its expense (i) defend, or at its option settle, a claim brought against Customer by an unaffiliated third party alleging that the Trading Tools LLC Software and/or Trading Tools LLC Cloud Services infringes such party’s patent registered in the United States, or any copyright or trademark of such party registered in the jurisdiction of Customer’s use of the Trading Tools LLC Software and/or Trading Tools LLC Cloud Services, or makes intentional, unlawful use of such party’s trade secret (each an “Infringement Claim”) and (ii) pay any settlement of such Infringement Claim consented to by Trading Tools LLC or pay any damages finally awarded to such third party by a court of competent jurisdiction as the result of such Infringement Claim.
8.2 Remedies. If during the Term the Trading Tools LLC Software and/or Trading Tools LLC Cloud Services are, or in Trading Tools LLC’s reasonable opinion is likely to become, the subject of an Infringement Claim, Trading Tools LLC may, at its expense and option: (i) obtain the right for Customer to continue to use the Trading Tools LLC Software and/or Trading Tools LLC Cloud Services; (ii) modify the Trading Tools LLC Software and/or Trading Tools LLC Cloud Services so that it becomes non-infringing but is substantially functionally equivalent; or (iii) in the event that neither (i) or (ii) are commercially reasonable options, terminate Customer’s license to use the Trading Tools LLC Software and/or Trading Tools LLC Cloud Services and promptly refund to Customer any pre-paid, but unused fees paid by Customer to Trading Tools LLC for the Software Subscription or Cloud Subscription that was fulfilled prior to such termination.
8.3 Exclusions. Trading Tools LLC will have no obligation to Customer to the extent any Infringement Claim is based upon or results from: (i) Customer’s use of any version of the Trading Tools LLC Software and/or Trading Tools LLC Cloud Services not made available directly through Trading Tools LLC or an authorized Trading Tools LLC reseller; (ii) the failure of Customer to use an Update of the Trading Tools LLC Software and/or Trading Tools LLC Cloud Services that would avoid the infringement; (iii) a modification of the Trading Tools LLC Software that is not performed by Trading Tools LLC; (iv) the combination, operation, or use of the Trading Tools LLC Software and/or Trading Tools LLC Cloud Services with any other products, services or equipment not provided by Trading Tools LLC; (v) any intellectual property right owned or licensed by Customer, excluding the Software or Trading Tools LLC Cloud Services or (vi) any third party Open Source Software.
8.4 Conditions. The obligations of Trading Tools LLC in Section 8.1 are conditioned upon Customer (i) notifying Trading Tools LLC promptly of any threatened or pending Infringement Claim, (ii) giving Trading Tools LLC, reasonable assistance and information requested by Trading Tools LLC in connection with the defense or settlement of the Infringement Claim and (iii) tendering to Trading Tools LLC sole control over the defense and settlement of the Infringement Claim. Customer’s counsel will have the right to participate in the defense of the Infringement Claim, at Customer’s own expense. Customer will not, without the prior written consent of Trading Tools LLC, settle, compromise or consent to the entry of any judgment with respect to any pending or threatened Infringement Claim.
8.5 THE FOREGOING PROVISIONS OF THIS SECTION 8 STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF TRADING TOOLS LLC, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET, TRADEMARK OR OTHER INTELLECTUAL PROPERTY RIGHT BY THE TRADING TOOLS LLC SOFTWARE AND/OR THE TRADING TOOLS LLC CLOUD SERVICES.
- Limitation of Liability
9.1 Disclaimer of Certain Damages. IN NO EVENT SHALL CUSTOMER OR TRADING TOOLS LLC OR ITS LICENSORS BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE USE OR INABILITY TO USE THE TRADING TOOLS LLC SOFTWARE OR THE TRADING TOOLS LLC CLOUD SERVICES OR SUPPORT SERVICES OR TRAINING SERVICES, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TRADING TOOLS LLC WILL REMAIN LIABLE FOR DEATH AND PERSONAL INJURY IN JURISDICTIONS WHERE THIS LIABILITY MAY NOT BE RESTRICTED. THE TRADING TOOLS LLC CLOUD SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, INACCESSIBILITY AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET. TRADING TOOLS LLC IS NOT RESPONSIBLE AND DISCLAIMS ALL LIABILITY FOR ANY DELAYS, FAILURES OR DAMAGES RESULTING FROM SUCH PROBLEMS. YOU ARE FULLY RESPONSIBLE FOR INTERNET ACCESS AND CONNECTIVITY ISSUES. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 9.1 SHALL NOT APPLY TO A BREACH THROUGH GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT BY CUSTOMER OF THE SCOPE OF THE LICENSE GRANTED IN SECTION 2.1 OR TO A BREACH BY EITHER PARTY OF ITS OBLIGATIONS UNDER SECTION 6 (CONFIDENTIALITY) OF THIS AGREEMENT.
9.2 Damages Cap. IN NO EVENT SHALL TRADING TOOLS LLC’S OR ITS LICENSORS’ AGGREGATE, CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNTS CUSTOMER WAS REQUIRED TO PAY TRADING TOOLS LLC UNDER THIS AGREEMENT FOR THE TRADING TOOLS LLC SOFTWARE, SERVICES AND/OR TRADING TOOLS LLC CLOUD SERVICES AND/OR SUPPORT SERVICES AND/OR TRAINING SERVICES GIVING RISE TO SUCH LIABILITY, IN THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
9.3 CUSTOMER AGREES THAT THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS ARE A REASONABLE ALLOCATION OF THE RISK BETWEEN THE PARTIES AND WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS IN ITS ESSENTIAL PURPOSE.
- Customer’s contracting Party, Governing Laws, Jurisdiction and Notices.
- Customer is contracting with Trading Tools LLC, 2627 Eckert Road, Lexington, Ohio, United States,
- this Agreement shall be governed by the laws of the state of Ohio,
- If a dispute arises under this agreement, both parties agree to first try to resolve it with the help of a mutually agreed-upon mediator in the following location: Lexington, Ohio.
- If it proves impossible to arrive at a mutually satisfactory solution through mediation, we agree to submit the dispute to binding arbitration at the following location: Lexington, Ohio, under the rules of the American Arbitration Association. Judgment upon the award rendered by the arbitration may be entered in any court with jurisdiction to do so.
- any dispute regarding the interpretation, the conclusion, the performance or the termination of this Agreement which is not resolved amicably by the Parties shall be subject to the exclusive jurisdiction of the Federal Court for the district of Ohio, or if that court lacks subject matter jurisdiction, in any Ohio State Court located in Richland county.
10.2 Governing Law and Jurisdiction. Each Party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.
10.3 Notices. Any notice or other communication under this Agreement given by either Party to the other will be deemed to be properly given if given in writing and delivered in person or facsimile, if acknowledged received by return facsimile or followed within one day by a delivered or mailed copy of such notice, or if mailed, properly addressed and stamped with the required postage to the corresponding address stated above. Either Party may from time to time change its address for notices under this Section by giving the other Party notice of the change in accordance with this Section 10.3.
11.1 Assignment. Customer may not assign this Agreement, in whole or in part, without the prior written consent of Trading Tools LLC. Any assignment in violation of this Section 11.1 shall be void and of no effect. Subject to the foregoing, this Agreement is binding upon, inures to the benefit of and is enforceable by the Parties and their respective successors and assigns.
11.2 Customer Identification. Trading Tools LLC may, upon Customer’s written approval, identify Customer as a user of the Trading Tools LLC Software and/or the Services, as applicable, on its website, through a press release issued by Trading Tools LLC and in other promotional materials. Customer also agrees to cooperate with Trading Tools LLC in writing a case study exposing how the Trading Tools LLC Software and/or the Services are being used and the benefits the Customer is deriving from this use.
11.3 Applicable laws. Customer acknowledges that the Trading Tools LLC Software is subject to U.S. export control laws and regulations. Customer warrants that it is now and will remain in the future compliant with all export control laws and regulations, and will not export, re-export, otherwise transfer or disclose any Trading Tools LLC Software to any person contrary to such laws or regulations. Trading Tools LLC and its customers adhere to the Foreign Corrupt Practices Act [15 U.S.C. § 78dd-1, 15 U.S.C. §§ 78m(b)(2)(A) and (B)of 1977 and the UK Anti-Bribery Act of 2010 and denounce any form of bribery and other unethical behavior in its business negotiations.
11.4 Fees. In any judicial proceeding between Customer and Trading Tools LLC arising out of or relating to this Agreement, the prevailing Party shall be entitled to recover all reasonable expenses incurred as a result of the proceeding, including reasonable attorneys’ fees.
11.5 Force Majeure. Neither Party will be liable for, or be considered to be in breach of or default under this Agreement, other than monetary obligations, as a result of any cause or condition beyond such Party’s reasonable control.
11.6 Non-waiver. Any failure of either Party to insist upon or enforce performance by the other Party of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement will not be interpreted or construed as a waiver or relinquishment of such Party’s right to assert or rely upon such provision, right or remedy in that or any other instance.
11.7 Language. The governing language of this Agreement shall be English. Any translation of this Agreement is made for information purposes only and the English language version shall prevail.
11.8 Entire Agreement. This Agreement, Exhibit A “License Type”, Exhibit B “Trading Tools LLC Cloud Services” and any Order Form accepted by the Parties that references this Agreement (which is hereby incorporated herein by this reference), completely and exclusively state the entire agreement of the Parties regarding the subject matter herein, and it supersedes, and its terms govern, all prior proposals, agreements, or other communications between the Parties, oral or written, regarding such subject matter. In the event of conflict or inconsistency among Exhibit A “License Type”, Exhibit B “Trading Tools LLC Cloud Services” this Agreement and an applicable Order Form, the following order of precedence shall apply: (a) this Agreement, (b) Exhibit A “License Type”, (c) Exhibit B “Trading Tools LLC Cloud Services” (d) the Order Form. Without limiting the foregoing, this Agreement will supersede any conflicting terms in any “click-to-accept” end user license agreement that may be embedded within the Trading Tools LLC Software, except for terms regarding Open Source Software which are referenced under Section 1.4 (Open Source Software). The terms of this Agreement shall supersede and control over any conflicting or additional terms and conditions of any purchase order, acknowledgement, confirmation or other document issued by Customer, unless the Parties execute a written agreement expressly indicating: (i) that such document shall modify this Agreement; and (ii) that the terms of such purchase order shall supersede and control in the event of any inconsistency.
- The licenses granted in Section 2.1 of the Agreement to which this Exhibit A is attached shall be subject to the restrictions corresponding to the applicable License Type(s) set out in the table below.
Description of License Type
A license to use the Trading Tools LLC Software for up to the total number of Concurrent Users for which Customer has paid the applicable fees, as specified in an Order Form. Note: A “Concurrent User” means a nominated person identified by a valid e-mail address who is logged on at any given point in time to a single Repository. “Repository” means an individual Trading Tools LLC Administration Center server instance or Trading Tools LLC Metadata Manager server instance.
A license to use the Trading Tools LLC Software for up to the total number of Named Users for which Customer has paid the applicable fees, as specified in an Order Form. Note: A “Named User” means a specific individual identified by a valid e-mail address who can access to the Trading Tools LLC Software irrespective as to whether any such Named User is actively logged on to a Trading Tools LLC Administration Center server instance at any point in time.
Per Node Limitation
A license to use the Trading Tools LLC Software for up to the total number of Nodes for which Customer has paid the applicable fees, as specified in an Order Form (“Per Node Limitation”). Note: A “Node” means a Physical Machine or Virtual Machine capable of running the Trading Tools LLC Software.
- Trading Tools LLC Software. The following table sets forth the Trading Tools LLC Software and applicable License Types. Customer may License the then current version of the Trading Tools LLC Software made generally available by Trading Tools LLC.
Trading Tools LLC Software
Live Trading Alerts
Named User; Concurrent User
Live Trading Alerts Cloud Services
Named User; Concurrent User
Trading Tools LLC Cloud Services
The following capitalized terms shall have the meaning set forth below. Other defined terms shall have the meanings set forth where they are first underlined.
- “Cloud Subscription” means the Customer’s right to access and use the Trading Tools LLC Cloud Services on a subscription basis, as specified in the applicable Trading Tools LLC Order Form and subject to the applicable License Type restrictions.
- “Content” or “Customer Data” means all applications, data, data files and software (other than the Trading Tools LLC Software) provided by Customer or any End User of Customer that reside on, or runs on or through, the Trading Tools LLC Cloud Services environment. Customer agrees not to include any production data in its Content while running in the trial environment of the Trading Tools LLC Cloud Services.
- “End Users” means collectively those individuals authorized by Customer or on Customer’s behalf to use the Trading Tools LLC Cloud Services, as more fully described in Exhibit A (i.e. Web User/Studio User).
- “Metadata” means technical information about the services in the cloud, including logs, metrics, and audit trail events used by Trading Tools LLC to analyze the performance of the Trading Tools LLC Software and/or the Trading Tools LLC Cloud Services.
- “Trading Tools LLC Cloud Services” means the online services operated by Trading Tools LLC that is powered by Trading Tools LLC technology which provides a web-based interface through which a person may access data, features and functions of the Trading Tools LLC Software to design, manage and monitor security data.
- Subscription Grant. Subject to the terms and conditions of this Agreement and this Exhibit B, Trading Tools LLC hereby grants Customer a non-exclusive, non-transferable, non-assignable, limited right to use the Trading Tools LLC Cloud Services during the applicable Subscription Term, solely for Customer’s own internal business purposes. Customer may not, and may not cause or permit others to:
- remove or modify any program or services markings or any notice of Trading Tools LLC’s or its licensors’ proprietary rights;
- make the Trading Tools LLC Cloud Services, including any Trading Tools LLC programs or materials to which Customer is provided access, available in any manner to any third party;
- modify, make derivative works of, disassemble, reverse compile, reverse engineer, reproduce, distribute, republish or download any part of the Trading Tools LLC Cloud Services,
- disclose results of any benchmark tests or performance tests of the Trading Tools LLC Cloud Services without Trading Tools LLC’s prior written consent; and
- sublicense, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the Trading Tools LLC Cloud Services or materials available, to any third party, except as expressly provided under this Agreement. If Customer has downloaded any Trading Tools LLC Software as part of the Trading Tools LLC Cloud Services, such Trading Tools LLC Software shall be licensed in accordance with the terms of this Agreement.
- Account Access & Data. Customer will be assigned a unique user name and password to access the Trading Tools LLC Cloud Services. The Trading Tools LLC Cloud Services may be accessed by no more than the total number of End Users for which Customer has purchased a license to use such Trading Tools LLC Cloud Services, as set forth in the applicable Trading Tools LLC Order Form. Customer shall be responsible for identifying and authenticating all End User, for approving access by such End Users to the Trading Tools LLC Cloud Services, for controlling against unauthorized access by such End Users, and for maintaining the confidentiality of user names, passwords and account information. Trading Tools LLC is not liable for any harm caused by Customer End Users, including individuals who were not authorized to have access to the Trading Tools LLC Cloud Services. Customer shall be responsible for all activities that occur under Customer’s and Customer’s End Users passwords or accounts or as a result of Customers or Customer’s End Users access to the Trading Tools LLC Cloud Services. Furthermore, Customer agrees not to transmit or store infringing, obscene, threating, libelous, or otherwise unlawful or offensive Content, materials or information that violates the privacy rights of any person or to transmit or store material containing software virus, worms, trojan horses or other harmful computer code when using the Trading Tools LLC Cloud Services. Customer agree that Customer shall abide by all applicable local, state, national and international laws and regulations in connection with Customer’s use of the Trading Tools LLC Cloud Services, including those related to taxes, data privacy and the transmission of technical or personal data. Trading Tools LLC does not own or accept any responsibility for any Content, data or material that Customer processes or submits to the Trading Tools LLC Cloud Services in the course of Customer’s use of such services. Trading Tools LLC will have no access to any Customer Data until Customer transmits such data through its firewall to the Trading Tools LLC Cloud Services. TRADING TOOLS LLC WILL NOT STORE OR PERMANENTLY MAINTAIN ANY CUSTOMER DATA OR CONTENT ON ITS SYSTEMS OR THROUGH ITS TRADING TOOLS LLC CLOUD SERVICES EXCEPT FOR METADATA. Trading Tools LLC shall not be liable or responsible for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. Customer shall be fully responsible for all internet access and connectivity issues to the Trading Tools LLC Cloud Services.
- Ownership. Customer retains ownership of all Content/Customer Data, materials or information used or processed through the Trading Tools LLC Cloud Services. Trading Tools LLC and its licensors retain all ownership and intellectual property rights to the Trading Tools LLC Cloud Services, including derivative works thereof.
- Service Availability. Trading Tools LLC will use commercially reasonable efforts to make the Trading Tools LLC Cloud Services available 24 hours a day, 7 days a week, except for:
- scheduled downtime or
- any unavailability caused by circumstances beyond Trading Tools LLC’s reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems, or internet service provider failures or delays.
- Services Warranty. Trading Tools LLC represents and warrants that it will provide the Trading Tools LLC Cloud Services in a manner consistent with general industry standards and that the Trading Tools LLC Cloud Services will perform substantially in accordance with the applicable Documentation for such Trading Tools LLC Cloud Services, under normal use and circumstances.
- Customer Indemnification. Customer shall indemnify and hold Trading Tools LLC, its licensors and its subsidiaries, affiliates, officers, directors, employees, and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with the claim of a third party or data subject alleging that the Customer Data or its use has infringed the rights of, defamed or otherwise caused harm to, a data subject or third party, or violated applicable law; provided in any such case that Trading Tools LLC
- gives written notice of the Claim promptly to You or the appropriate Customer representative;
- gives Customer sole control of the defense and settlement of the Claim (provided that any settlement releases Trading Tools LLC of all liability and such settlement does not affect Trading Tools LLC’s business);
- provides to Customer all available information and assistance reasonably requested; and
- has not compromised or settled such Claim.
- Privacy; Security; Disclosures. Trading Tools LLC’s privacy and security policies may be viewed at http://www.Trading Tools LLC.com. Trading Tools LLC reserves the right to modify its privacy and security policies from time to time or as required by applicable law. The Trading Tools LLC Cloud Services follows best practices for data security, using a third-party data center that is independently audited and certified as its host. Trading Tools LLC occasionally may need to notify all users of the Trading Tools LLC Cloud Services of important announcements regarding the operation of the Trading Tools LLC Cloud Services, and may do this online or via email.
- Termination. Unless earlier terminated in accordance with Section 5.2, upon the expiration of the Subscription Term, Customer’s Cloud Subscription will cease, unless Customer and Trading Tools LLC have agreed to extend the applicable Subscription Term under this Agreement. In such case, the terms and conditions of this Agreement shall remain in full force and effect throughout the duration of the extended Subscription Term.
- Suspension of the Trading Tools LLC Cloud Services. In addition to its other rights under this Agreement, Trading Tools LLC may suspend Customer’s access to the Trading Tools LLC Cloud Services upon written notice to:
- comply with any law, regulation, court order, or other governmental request or order which requires immediate action; or
- for Customer’s non-payment of the applicable fees or for
- any unauthorized use of the Trading Tools LLC Cloud Services by Customer or any of its End Users. If suspended, Trading Tools LLC will promptly restore use of the Trading Tools LLC Cloud Services to Customer as soon as the event giving rise to the suspension has been resolved to Trading Tools LLC’s satisfaction.
- Survival. Section 2 and 4 plus Sections 7-11 of this Exhibit B shall survive any termination or expiration of this Agreement.