END USER LICENSE AGREEMENT

Transcription

1 END USER LICENSE AGREEMENT 1. SCOPE OF THIS AGREEMENT. This END USER LICENSE AGREEMENT ("EULA") is a legal agreement between you (either an individual or a single entity) and TradeStation ("TS") governing your use of the Tradestation Futures 4.0 software product which may include associated software components, media, user manuals, or guides, and training or educational materials (collectively, the "Software Product"). The Software Product is licensed, not sold. TS licenses the Software Product pursuant to a license agreement between TS and R.J. O'Brien & Associates Inc. ("RJO"). RJO shall be a third party beneficiary to this EULA. By installing, copying, or otherwise using the Software Product, you agree to be bound by the terms of this EULA. If you do not agree to the terms of this EULA, you are prohibited from installing or using the Software Product. 2. INCORPORATION OF CUSTOMER AGREEMENT. This Software Product is offered to you as a TS account holder under the Customer Agreement between you and TS dated. Your use of the Software Product is subject to the provisions of the Customer Agreement, the terms and conditions to which you have already agreed. To the extent the terms of this EULA are inconsistent with the terms of the Customer Agreement, the terms of this EULA shall apply. 3. ELECTRONIC SIGNATURE AND DELIVERY. The EULA and the Software Product include important disclosures and information that are associated with TradeStation Futures 4.0's electronic content and services. When you click "I agree" below you will be signing, and consenting to signing, the EULA electronically, and to electronic delivery of the disclosures and information contained in the EULA. To enable you to access, retain, and/or print the EULA for your records, the installation process will place the EULA in an ASCII plain text file labeled "TradeStation Futures 4.0 Software Product Readme" in the TradeStation Futures folder located in the Programs/TS folder on your hard drive. If you do not have a printer or are unable to open the text file, you may call us for a free paper copy of the EULA. 4. OTHER EFFECTS OF YOUR SIGNATURE BELOW. By clicking "I agree" below, you will also confirm your understanding, acceptance, and receipt of the EULA and its terms and conditions, and you will acknowledge and demonstrate that you can access the EULA and the other electronic disclosures and information associated with the Software Product. This is required in order to install Tradestation Futures 4.0. We will be creating an electronic record that you have downloaded Tradestation Futures 4.0, are using it, and that you have agreed to the terms of the EULA. If you do not agree to the terms of the EULA, do not install or use the Software Product and select "Cancel" below. 5. GRANT OF LICENSE. TS grants you a non-exclusive, non-transferable license to install and use a copy of the Software Product on a single computer running a validly licensed copy of Windows 2000 Professional or higher operating system, for which the Software Product has been designed. You acknowledge that TS has granted this license to you for mutual consideration arising out of your relationship with TS. This license is restricted to your personal use as a TS account holder for the limited purposes described in the user's manual and any training materials. This license permits you to make one copy of the Software Product for

2 backup or archival purposes only. You are acquiring no right to use, and shall not use without TS's prior written consent, the terms or existence of this EULA, the names, characters, artwork, designs, trade names, copyrighted materials, trademarks or service marks of TS or its affiliates, agents, or licensors. The Software Product is provided in object code form only. You shall be responsible for maintaining adequate security measures to ensure that your password and username are kept confidential. 6. SPECIFICATIONS. The preferred operating system for the Software Product is Windows 2000 Professional or higher. It is recommended that you use Broadband (DSL or Cable Modem) in order to attain optimum performance when operating the Software Product. The minimum hardware requirements are 1 GB RAM, a processor of 1.4 GHz or larger, and a Super VGA monitor or LCD display with at least 1024 x 768 color display resolution. These specifications may change from time to time as documented on the TS website. By consenting to this EULA, you agree to monitor the TS website and implement necessary upgrades as the requirements change. 7. RESTRICTIONS ON USE. You shall not: (a) use, copy, merge, make derivative works of, or transfer copies of the Software Product, except as specifically authorized in this EULA; (b) use the Software Product on more than one computer; (c) use the backup or archival copy of the Software Product (or permit any third party to use such copy) for any purpose other than to replace the original copy in the event that it is destroyed or becomes defective; (d) rent, lease, sublicense, distribute, transfer, copy, modify or timeshare the Software Product or any of your rights under this EULA, except as expressly authorized in this EULA; (e) provide unauthorized third parties with access to or use of the Software Product; (f) reverse engineer, disassemble, decompile, or otherwise attempt to access the source code of the Software Product, except and only to the extent that such activity is expressly permitted by applicable law; or (g) use the Software Product after any expiration, termination, or cancellation of this EULA or the license granted in Section OWNERSHIP. The Software Product is licensed, not sold, to you for use only upon the terms of this EULA, and TS and its licensors reserve all rights, including without limitation intellectual property rights, not expressly granted to you. TS and its licensors retain ownership of all copies of the Software Product. You must reproduce the copyright and all other proprietary notices displayed on all copies of the Software Product. The Software Product is protected by U.S. copyright laws and international treaties, and the unauthorized reproduction or distribution thereof is subject to civil and criminal penalties. All title and intellectual property rights in and to the content which may be accessed through use of the Software Product is the property of the respective content owner(s) and may be subject to their license agreements. This EULA grants you no rights to use such content. To the extent you acquire any right to the Software Product or derivative works or improvements of the Software Product, you hereby assign to TS and its licensors all right, title, and interest in and to the Software Product and derivative works and improvements of the Software Product. 9. SUPPORT SERVICES. TS or its agents may provide you with support services related to the Software Product ("Support Services"). Such Support Services will be provided by TS or its agents at no charge during the term of this EULA. Use of Support Services is governed by 2

3 the TS policies and programs described in the then current user manual, in "on line" documentation, and/or other TS-provided materials. Any supplemental software code or other materials provided to you as part of the Support Services shall be considered part of the Software Product and subject to the terms and conditions of this EULA. With respect to technical information you provide to TS or its agents as part of the Support Services, you agree and acknowledge that TS or its agents may use such information for its business purposes, including for product support and development for which you will make no claim. Neither TS nor its agents will use such technical information in a form that personally identifies you. 10. POTENTIAL RISKS OF USE. The Software Product provides access to sophisticated commodities market data and commodities trade order entry and routing functionality. User guides and training and education materials are intended to assist you in the proper use of this Software Product. You agree to read any such materials carefully, to follow all instructions, and to call TS for assistance if you have any questions or if you do not understand how to use the Software Product or any of its features. You acknowledge that you should not, and will not, use the Software Product if you do not understand how to use it properly. You also agree that you have sole and complete responsibility for any decisions that you make or actions that you take in reliance upon the Software Product and any results, orders, or data that you receive or transmit using the Software Product. You understand that, by making the Software Product available to you, TS is not recommending, promoting, or endorsing any particular investment, market data, or trading strategies. 11. USAGE INFORMATION. You agree that TS may hold and process by computer or otherwise information obtained as a result of your use of the Software Product which may be accessed and used by TS for any purpose. 12. TERM AND TERMINATION. TS reserves the right to terminate the license granted to you under the EULA in its sole discretion, without notice and without limitation, for any reason whatsoever. The license will terminate automatically in the event you violate any provision of this EULA or your Customer Agreement. You may terminate or cancel the license granted by discontinuing use of the Software Product and providing TS written notice. In the event of termination for any reason, you shall delete the Software Product from your computer and either destroy any tangible media containing the Software Product or return it to TS. You understand that TS may discontinue technical and customer support for this Software Product at any time without any recourse by you. 13. DISCLAIMER OF WARRANTIES. THE SOFTWARE PRODUCT IS PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND. ALL WARRANTIES ARE DISCLAIMED, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITSESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS, OR THAT THE SOFTWARE PRODUCT'S FUNCTIONS WILL MEET YOUR REQUIREMENTS, THAT ITS OPERATION WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT THE SOFTWARE PRODUCT WILL BE VIRUS FREE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE 3

4 SOFTWARE PRODUCT IS WITH YOU. THIS DISCLAIMER APPLIES TO AND IS FOR THE BENEFIT OF TS AND RJO. 14. LIMITATION OF LIABILITY. To the maximum extent permitted by applicable law, in no event shall TS or its affiliates, agents, employees, or licensors be liable to you or any third party for any damages of any kind, including but not limited to punitive, exemplary, special, incidental, direct, indirect, or consequential damages (for example, loss of personal or business profits, business interruption, loss of business information, or any other pecuniary loss) arising out of the use of or inability to use the Software Product or the provision of or failure to provide Support Services. This limitation applies even if TS or its affiliates, agents, employees, or licensors have been advised of the possibility of such damages and regardless of the form of action, whether in contract, tort (including negligence), strict liability, or otherwise. In no event shall liability for any damages, regardless of kind or type, to you or any other person exceed US $ INDEMNIFICATION. You agree to indemnify and hold TS and its affiliates, agents, employees, and licensors harmless from and against any and all claims, losses, liabilities, costs, and expenses (including but not limited to attorneys' fees) arising from or relating to your breach of this Agreement or your use of the Software Product. 16. ENTIRE AGREEMENT. This Agreement supplements and forms a part of Customer Agreement with the Customer and shall be incorporated into such Customer Agreement from and after the date hereof. Except with respect to the Customer Agreement, this EULA constitutes the entire agreement between you and TS. You understand and agree that TS may revise the terms and conditions of this EULA at any time, and you agree to be bound by future revisions. Use of the Software Product after the effective date of the changes will constitute your consent to the changes. No failure on the part of any party to exercise and no delay in exercising any right, power, or remedy under this EULA will operate as a waiver thereof, nor will any single or partial exercise of any right under this EULA preclude any other or further exercise thereof or the exercise of any other right. No vendor, distributor, dealer, retailer, or other person is authorized to modify this EULA or to make any representation or warranty concerning the SOFTWARE PRODUCT other than those specifically set forth in this EULA. 17. GENERAL. You acknowledge and agree that each provision of this EULA that provides for a disclaimer of warranties or an exclusion or limitation of damages represents an express allocation of risk, and is part of the consideration of this Agreement. This EULA shall not be assignable by you but shall be assignable by TS to RJO. If any provisions of this EULA are invalid under applicable law, they shall be enforced to the maximum permissible extent to effect the intent of the parties, and the remaining provisions will remain in full force and effect. This EULA and performance hereunder will be governed by and construed in accordance with the laws of the State of Colorado without reference to choice or conflict of law principles. You agree that all actions or proceedings arising in connection with this EULA shall be governed by your Customer Agreement with TS. The following provisions shall survive termination or expiration of this EULA: Sections 8 (Ownership), 12 (Term and Termination), 13 (Disclaimer of Warranties), 14 (Limitation of Liability), 15 (Indemnification), 16 (Entire Agreement), and 17 (General). RJO is an intended third party beneficiary of this EULA. 4

5 Click "I agree" for Your Signature As noted above in Section 3 (Electronic Signature and Delivery), by clicking "I agree" you will be signing this EULA with a binding electronic signature, and you acknowledge that you have read and understood this EULA's terms and conditions _4 5