Algo Futures Trader
(AFT)
END-USER LICENSE AGREEMENT (EULA) for:
Algo Futures Trader 7
IMPORTANT-READ CAREFULLY: This End-User
License Agreement is a legal Agreement between you and Algo Trading Systems LLC
(“ATS”) for the applicable Software Products of ATS. Do not copy, install, or
use the Software Products provided under this license agreement
("Agreement"), until you have carefully read the following terms and
conditions.
Any reproduction or redistribution of Software
Products or any of its components not in accordance with the End-User License
Agreement is expressly prohibited by law and may result in severe civil and
criminal penalties.
Section 1. Delivery and
Acceptance
The Software is deemed to be delivered and accepted
by You on the earlier of the date of download or installation. You
agree to be bound by the terms of this EULA from the acceptance date. If You do
not have the authority to enter into this EULA or You
do not agree to with its terms, do not Use the Software.
Subject to Your purchase of a license to the
Software from an Approved Source and compliance with this EULA, ATS grants You
a non-exclusive and non-transferable license. to use the Software and
related Documentation for Your internal use in accordance with and for the term
(if any) specified in any applicable Order.
The Software is licensed on a per computer basis.
Each non-exclusive and non-transferable license purchased is bound to one particular computer and allows using ALGO FUTURES TRADER 7
Software on that single computer. If you install and use or reinstall ALGO
FUTURES TRADER 7 Software on any other computer you will have to pay an additional fee
for each computer. If you change a
computer, you will have to pay an additional fee . All updates for ALGO
FUTURES TRADER 7 Software are free for a user throughout the term of ALGO FUTURES TRADER 7 license
Section 3. Ownership
ATS and its licensors retain ownership
in all intellectual property rights in and to the ATS Content and Software and
all underlying technology and associated Documentation related thereto. You
authorize ATS to use any feedback and ideas You provide in connection with Your
use of the Software for any purpose.
Section 4.
Limitations, Restrictions and Liquidated Damages
Unless expressly authorized by
ATS in writing or otherwise permitted under applicable law, You will not: (i) sell, resell, transfer, sublicense, or assign Your
rights under this license (except as expressly provided herein); (ii) modify,
adapt or create derivative works; (iii) reverse engineer, decompile, decrypt,
disassemble or otherwise attempt to derive the source code; (iv) make the
functionality available to third parties, whether as an application service
provider, or on an outsourcing, membership or subscription, rental, service
bureau, cloud service, managed or hosted service, or other similar basis; (v)
Use Software that is licensed for a specific device, whether physical or
virtual, on another device; (vi) remove, modify, or conceal any product
identification, copyright, proprietary, intellectual property notices or other
marks; (vii) Use the Software on secondhand or refurbished ATS equipment not
authorized by ATS; or (viii) Use the ATS Content with third-party products or
service offerings that ATS has not identified as compatible with the Software,
extract ATS Content or provide ATS Content to a third party.
Liquidated Damages. You
understand that in the event of a breach of Sections 4(ii), 4(iii), 4(iv),
4(vi), or 4(viii) of this Agreement, the monetary damages
which ATS will sustain may be difficult to ascertain. You hereby agree that in the event of any such breach
by You, Your Authorized Users, or
your
officers,
employees and consultants, that You will be liable
to ATS for liquidated damages in the amount
of $175,000.00 for each such breach. You hereby acknowledge that
given the fact that ATS has invested over 3500 hours creating the Software and
Software Products, said damages
are reasonable, do not constitute a penalty, and You further agree
that you will not contest the reasonableness of said liquidated damages in any
such action commenced by ATS with respect to
this Agreement.
Section 5.
Upgrades and Additional Copies
You may not Use Upgrades or
additional copies of the Software beyond Your Entitlement unless You:
a. have and comply with a valid license to the Software and
have paid any fee applicable to the Upgrade or copy; and
b. have a valid support agreement covering Software either as
part of a subscription or purchased separately) or purchase the Upgrades or
copies separately, where You do not have a support agreement.
Section 6.
Use by Authorized Users
You may allow Authorized Users to
use the Software solely on Your behalf for Your internal operations. You are
responsible for ensuring that Authorized Users comply with the terms of this
EULA and You are liable for any breach of the same by such Authorized Users. If
You have purchased the Software under a particular ATS
buying program, further restrictions may apply. To the extent permitted by
applicable law, You must ensure that third parties
using the Software on Your behalf bring all claims related to the Software to
through You and waive all claims directly against ATS related to those claims.
Section 7.
Third Party Products
If You use the Software in
conjunction with third party products, You are
responsible for complying with the third-party providers’ terms and conditions
and privacy policies, and all such use is at Your risk. ATS does not provide
support or guarantee ongoing integration support for products that are not a
native part of the Software.
Section 8. Warranty Disclaimer
You may be entitled to
warranties, conditions and terms that may not be excluded or limited by ATS
under law. EXCEPT FOR THOSE NON-EXCLUDABLE WARRANTIES, CONDITIONS AND TERMS,
THE SOFTWARE, DOCUMENTATION, ATS ONLINE SERVICES AND THIRD PARTY
ONLINE SERVICES ARE MADE AVAILABLE “AS IS.” EXCEPT FOR THOSE NON-EXCLUDABLE
WARRANTIES, CONDITIONS AND TERMS, ATS AND ITS RESELLERS MAKE NO WARRANTIES,
CONDITIONS, REPRESENTATIONS, GUARANTEES OR TERMS (EXPRESS OR IMPLIED, WHETHER
BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE) AS TO ANY MATTER INCLUDING
PERFORMANCE, RESULTS, SECURITY, NONINFRINGEMENT, MERCHANTABILITY, INTEGRATION,
QUIET ENJOYMENT, SATISFACTORY QUALITY, AND FITNESS FOR ANY PARTICULAR PURPOSE.
THIS DISCLAIMER OF WARRANTY MAY NOT BE VALID IN SOME STATES. YOU MAY HAVE
WARRANTY RIGHTS UNDER LAW WHICH MAY NOT BE WAIVED OR DISCLAIMED. ATS DOES NOT
SEEK TO LIMIT YOUR WARRANTY RIGHTS TO ANY EXTENT NOT PERMITTED BY LAW.
These exclusions and
limitations will apply to the maximum extent permitted by applicable law, even
if any remedy fails its essential purpose.
YOU ACKNOWLEDGE AND AGREE
THAT: ATS HAS NO EXPRESS OR IMPLIED OBLIGATION TO CONTINUE TO MAKE THE SOFTWARE
OR ANY FEATURE THEREOF AVAILABLE NOR INTRODUCE ANY PRODUCTS OR SERVICES
COMPATIBLE WITH THE SOFTWARE.
Section 9.
Limitations and Exclusions of Liability
In no event will ATS or its licensors
be liable for the following, regardless of the theory of liability or whether
relating to or arising out of this EULA, Your Order, the Software or otherwise,
even if a party has been advised of the possibility of such damages: (i) indirect, incidental, exemplary, special or
consequential damages; (ii) loss or corruption of data or interrupted or loss
of business; or (iii) loss of revenue, profits, goodwill or anticipated sales
or savings. All liability of ATS, its affiliates, officers, directors, employees,
agents, suppliers and licensors collectively, to You, whether based in
warranty, contract, tort (including negligence), or otherwise, shall not
exceed, the minimum permissible under the applicable law This limitation of
liability for Software is cumulative and not per incident. Nothing in this EULA
limits or excludes any liability that cannot be limited or excluded under
applicable law.
During the license term for the
Software and for a period of three (3) years after its expiration or
termination, You will take reasonable steps to
maintain complete and accurate records of Your use of the Software sufficient
to verify compliance with this EULA. No more than once per twelve (12) month
period, You will allow ATS and its auditors the right to examine such records
and any applicable books, systems (including ATS product(s) or other
equipment), and accounts, upon reasonable advanced notice, during Your normal
business hours. If the audit discloses underpayment of license fees, You or Your
Approved Source will pay such fees plus the reasonable cost of the audit within
thirty (30) days of receipt of written notice.
Section 11. Term and Termination
a. Your
license begins on the date the Software is shipped or made available for download
or installation and continues until terminated or until the end of the term
specified in the Order or Entitlement. This is also the start date of Your
subscription, if the Software is licensed on a subscription basis.
b. If a
party materially breaches this EULA and does not cure that breach within thirty
(30) days after receipt of written notice of the breach, the non-breaching
party may terminate this EULA for cause. ATS also has the right to immediately
suspend or terminate Your use of the Software if You breach Sections 2, 4 . Upon termination of the EULA,
You must cease any further use of the Software, and destroy any copies of
Software within Your control. Upon Your termination for ATS’s material breach
of the EULA, if there are any outstanding Subscriptions ATS will refund to You or Your Approved
Source any prepaid fees covering the period from the effective date of
termination to the end of the Term. Upon ATS’s termination for Your material
breach of the EULA, if there are any outstanding Subscriptions You will pay ATS
or Your Approved Source any unpaid fees covering the period from the effective
date of termination to the end of the Term.
Section 12.
Confidential Information and Data
a. Confidential Information. Recipient
will hold in confidence and use no less than reasonable care to avoid
disclosure of any Confidential Information to any third party, except for its
employees, affiliates and contractors who have a need to know such information
in connection with this EULA, and are under written confidentiality obligations
no less restrictive than the terms set forth in this Section. Recipient will be
liable for any breach of this Section by its employees, affiliates, Authorized
Users and contractors. Recipient’s nondisclosure obligation will not apply to
information which: (i) is known by Recipient without
confidentiality obligations; (ii) is or has become public knowledge through no
fault of Recipient; or (iii) is independently developed by Recipient. Recipient
may disclose Discloser’s Confidential Information if required pursuant to a
regulation, law or court order; provided that, Recipient provides prior notice
to Discloser (to the extent legally permissible) and reasonably cooperates, at
Discloser’s expense, regarding protective actions pursued by Discloser. Upon
reasonable request of Discloser, Recipient will either return, delete or
destroy all Confidential Information of Discloser and certify the same.
b. How ATS Uses Your Data. ATS processes and
uses Personal Data and Customer Data to deliver, analyze, support and improve
the Software and as otherwise permitted in this EULA..
ATS will maintain appropriate administrative, physical and technical
safeguards, which are designed to protect the security, confidentiality and
integrity of Personal Data and Customer Data processed by ATS. ATS contracts
only with third party service providers that can provide the same level of data
protection and information security that ATS provides
c. Telemetry Data. ATS processes Telemetry
Data to deliver, enhance, improve, customize, support, and/or analyze the
Software and other ATS offerings and otherwise may freely use Telemetry Data
that does not identify You or any of Your Authorized Users. You have the
ability to configure the Software to limit the Telemetry Data collected, but in
some cases, You can only opt out of the Telemetry Data
collection by uninstalling or disabling the Software.
Sections 3, 4,, 9, 10, 11, and13-20 shall survive termination
or expiration of this EULA.
Section 14. No Third Party
Beneficiaries
The provisions of this Agreement are for the
sole benefit of the Parties and their successors and permitted assigns, and
they will not be construed as conferring any rights to any Third Party
(including any third party beneficiary rights).
Section 15.
Binding Arbitration and Equitable Relief
You and ATS agree to
binding individual arbitration before BY JUDICIAL ARBITRATION
& MEDIATION SERVICES, INC. ("JAMS")
under the NY CPLR
ARTICLE 75 and the Federal Arbitration Act (“FAA”), and not to sue in court in
front of a judge or jury. Instead, a neutral arbitrator will decide
and the arbitrator’s decision will be final except for a limited right of
appeal under the FAA. Class action lawsuits, class-wide arbitrations, private
attorney-general actions, and any other proceeding where someone acts in a
representative capacity aren’t allowed. Nor is combining individual proceedings
without the consent of all parties.
a. Disputes covered by Binding Arbitration— everything except IP. The
term “dispute” is any claim or controversy between you and ATS arising under or
related to this EULA, under any legal theory including contract, warranty,
tort, statute, or regulation, except disputes relating to the enforcement or
validity of our, or our licensors’ intellectual property rights.
b. Arbitration procedure. YOU AND ATS (“WE”)
AGREE THAT ANY ARBITRATION WILL BE ADMINISTERED BY JUDICIAL ARBITRATION &
MEDIATION SERVICES, INC. ("JAMS"),
PURSUANT TO ITS COMMERCIAL ARBITRATION RULES & PROCEDURES (THE "JAMS RULES") IN NEW YORK COUNTY, NEW YORK. WE UNDERSTAND THAT THE PARTIES TO THE ARBITRATION
SHALL EACH PAY AN EQUAL SHARE OF THE COSTS AND EXPENSES OF SUCH ARBITRATION, EXCEPT AS PROHIBITED BY LAW. WE FURTHER UNDERSTAND THAT EACH PARTY
SHALL SEPARATELY PAY FOR ITS RESPECTIVE ATTORNEYS' FEES AND COSTS; PROVIDED, HOWEVER, THAT THE ARBITRATOR MAY, IF HE OR SHE DEEMS APPROPRIATE, AWARD
REASONABLE ATTORNEYS' FEES AND COSTS TO THE PREVAILING PARTY IN THE EVENT THE
OPPOSING PARTY'S CLAIM WAS SUBSTANTIALLY UNJUSTIFIED AND UNREASONABLE, EXCEPT
AS PROHIBITED BY LAW. WE AGREE THAT
THE ARBITRATOR SHALL HAVE THE POWER TO DECIDE ANY MOTIONS BROUGHT BY ANY PARTY
TO THE ARBITRATION, INCLUDING MOTIONS
FOR SUMMARY JUDGMENT AND/OR ADJUDICATION,
AND MOTIONS TO DISMISS, PRIOR TO ANY ARBITRATION HEARING. WE AGREE THAT THE ARBITRATOR SHALL ISSUE A WRITTEN
DECISION ON THE MERITS. WE ALSO AGREE THAT THE ARBITRATOR SHALL HAVE THE POWER
TO AWARD ANY REMEDIES AVAILABLE UNDER APPLICABLE LAW. WE AGREE THAT THE DECREE OR AWARD RENDERED BY THE ARBITRATOR
MAY BE ENTERED AS A FINAL AND BINDING JUDGMENT IN ANY COURT HAYING JURISDICTION
THEREOF. WE AGREE THAT THE ARBITRATOR SHALL ADMINISTER AND CONDUCT ANY
ARBITRATION IN A MANNER CONSISTENT WITH NEW YORK LAW, INCLUDING THE NEW YORK CIVIL PROCEDURE LAWS AND RULES, AND THAT THE ARBITRATOR SHALL APPLY
SUBSTANTIVE AND PROCEDURAL NEW YORK LAW TO ANY DISPUTE OR CLAIM, WITHOUT
REFERENCE TO RULES OF CONFLICT OF LAW.
TO THE EXTENT THAT THE JAMS RULES CONFLICT WITH NEW YORK LAW, NEW YORK LAW SHALL TAKE PRECEDENCE. We AGREE THAT THE DECISION OF
THE ARBITRATOR SHALL BE IN WRITING.
ANY ARBITRATION UNDER THIS AGREEMENT SHALL BE CONDUCTED IN NEW YORK COUNTY, NEW YORK.
c. Availability of Injunctive Relief For IP Disputes YOU AGREE THAT ATS MAY PETITION THE COURT FOR INJUNCTIVE RELIEF
WHERE ATS ALLEGES OR CLAIMS A VIOLATION OF ITS INTELLECTUAL PROPERTY RIGHTS.
YOU UNDERSTAND THAT ANY BREACH OR THREATENED BREACH OF SUCH RIGHTS WILL CAUSE
IRREPARABLE INJURY AND THAT MONEY DAMAGES WILL NOT PROVIDE AN ADEQUATE REMEDY
THEREFOR AND BOTH PARTIES HEREBY CONSENT TO THE ISSUANCE OF AN INJUNCTION. IN
THE EVENT THAT ATS SEEKS INJUNCTIVE RELIEF,
THE PREVAILING PARTY SHALL BE ENTITLED TO RECOVER REASONABLE COSTS AND ATTORNEYS'
FEES.
d. Must file within one year. You and ATS
must file in arbitration any
claim or dispute (except intellectual property disputes) within one year from
when it first could be filed. Otherwise, it’s permanently barred.
If any portion of this EULA is
found to be void or unenforceable, the remaining provisions of the EULA shall
remain in full force and effect. Except as expressly stated or as expressly
amended in a signed agreement, the EULA, is the complete agreement between the
parties with respect to the Software and supersedes all prior or
contemporaneous communications, understandings or agreements (whether written
or oral) regarding this subject matter. In the event of any conflict, the order
of precedence is: (i) supplemental terms; (ii) these
license terms (excluding the supplemental terms); then (iii) any applicable
policies referenced in this EULA.
Section 17.
ATS Partner Transactions
If You purchase ATS Software from
a ATS Licensed Re-Seller: (i) the terms of this EULA
apply to Your use of the Software ; and (ii) the terms of this EULA prevail
over any inconsistent provisions in Your purchase order with the ATS Licensed Re-seller.
ATS may provide You with notice
via email, regular mail and/or postings on the ATS.com website or any other
website used with the Software. Notices to ATS should be sent to Algo Trading
Systems LLC, 1732 1st Ave, Ste 27-234, New York, NY 10128 unless
this EULA, applicable supplemental terms or an Order specifically allows other
means of notice.
Except for payment obligations,
neither party will be responsible for failure of performance due to an event
beyond the affected party’s reasonable control, including accidents, severe
weather events, acts of God, actions of any government agency, pandemic, acts
of terrorism, or the stability or availability of the Internet or portions
thereof.
Failure to enforce any right
under this EULA will not waive that right.
“Approved Source“ means
ATS or a ATS authorized reseller..
“Authorized User(s)” means the individuals You
authorize to access the Software, including Your employees or third parties
that access the Software solely on Your behalf for Your internal operations.
“ATS” “we,” “our” or “us” means Algo Trading
Systems LLC . or its applicable affiliate(s).
“ATS Content” means any ATS-provided content
or data, including, but not limited to, geographic or domain information,
rules, signatures, threat intelligence or other threat data feeds, suspicious
URLs and IP address data feeds.
“Confidential
Information” means non-public proprietary information of the disclosing
party (“Discloser”) obtained by the receiving party (“Recipient”) in connection
with this EULA, which: (i) is conspicuously marked;
or, (ii) is information which by its nature should reasonably be considered
confidential; or (iii) if verbally disclosed, is summarized in writing to the
Recipient within 14 days.
“Customer Data” means all information and data
that You or an Authorized User provides or transfers to ATS or that the
Software collects from You, Your Authorized User(s) or Your system(s), in
connection with Your use of the Software, including but not limited
to data related to those Authorized Users Customer Data does
not include Telemetry Data.
“Documentation” means the ATS user or
technical manuals, training materials, specifications, privacy data sheets or
other information applicable to the Software.
“Entitlement” means the license detail;
including license metric, duration, and quantity published on ATS.com.
“Order” means an ordering document
(including a web or other electronic form) that specifies the duration,
type/product ID (PID) and quantity of On-premise Software and/or Cloud Services
to be provided and the associated fees (if relevant).
“Personal Data” means any information that can
be used to identify an individual and may include name, address, email address,
phone number, login information (account number and password), marketing
preferences, social media account information, or payment card number.
“Software” and
“Software Products” shall mean and include ALGO FUTURES TRADER 7
Software. ALGO FUTURES TRADER 7 Software shall mean all of the contents of the
files (provided either by electronic download, on physical media or any other
method of distribution), disk(s), CD-ROM(s) or other media with which this
Agreement is provided) .
“Telemetry
Data” means all information and data that the Software generates in
connection with Your use, including but not limited to, network policy,
log and configuration information; threat intelligence data, URLs, metadata or net
flow data; origin and nature of malware; the types of software or
applications installed on a network or an endpoint; information about the
devices connected to a network; information generated by sensors, devices and
machinery; information related to the usage, origin of use, traffic patterns or behavior
of the users of a network or Software; and information relating to the
existence of cookies, web beacons, and other similar applications.
“Updates” means all updates,
, bug fixes, error corrections, enhancements and other modifications
(excluding upgrades) to the Software.
“You” and “Your” means
the individual or legal entity licensing the Software under this EULA.