THE ALGOLAB SOFTWARE LICENSE
This Software License Agreement (“Agreement”) is made effective as of date provided in form submission (“Effective Date”) between:
theALgoLab.com and / or Greg Kolodziejzyk
Name provided in form submission
A. Licensor has developed the Software and Documentation or is otherwise permitted to license the Software and Documentation pursuant to the terms of this Agreement; and
B. Licensee wishes to license the Use of the Software and Documentation, and Licensor has agreed to license such Use, pursuant to the terms of this Agreement.
Now Therefore, in consideration of the foregoing and of the mutual covenants and promises hereinafter contained, and in further consideration from each Party to the other given, the receipt and sufficiency of which are hereby acknowledged, and other good and valuable consideration, the parties hereto agree and understand as follows:
Unless specified otherwise, all capitalized terms used in this Agreement will have the meaning set out below:
“Business Day” means any day other than a day which is a Saturday, Sunday or a statutory or civic holiday observed in the Province of Ontario.
“Confidential Information” has the meaning set out in section 6.2 below.
“Documentation” means all documents (regardless of how embodied) that Licensor may provide to Licensee that are related to or that are reasonably required to enable Licensee to use or to obtain the benefit of the Software.
“Feedback” has the meaning set out in section 9.1 below.
“Marks” has the meaning set out in section 13.1 below.
“Modifications” means any enhancements, changes, corrections, improvements, translations, adaptations, revisions, developments, upgrades or updates thereto, and “Modify” means the creation of any of the foregoing.
“Notice” has the meaning set out in section 14.1 below.
“Object Code” means the machine readable executable form of a computer software program.
“Parties” means both Licensor and Licensee, and “Party” means either one of them as the context requires.
“Representatives” means, in the case of Licensor, Licensee or any other person, any directors, officers, appointees, employees, agents, consultants or subcontractors, as well as the subcontractor’s directors, officers, employees, agents, consultants or subcontractors.
“Software” means the Object Code version of Licensor’s proprietary software product identified in Schedule A hereto.
“Source Code” means the human readable form of a computer software program, and all tools and documentation reasonably necessary for a computer programmer to understand, maintain and Modify the Software.
“Support Services” means the support services specifically described in Schedule B to this Agreement, as such Schedule B may be amended from time to time pursuant to section 2.5 below.
“Translate” means adapt, modify, translate, disassemble, decompile or reverse engineer.
“Use” means to execute, run, or use.
2. GRANT OF SOFTWARE LICENSE
Subject to the terms of this Agreement, Licensor hereby licenses to Licensee, for the personal use of Licensee only, a revocable, world-wide, non-exclusive, non-transferable right to Use the Software and Documentation.
This Agreement is not for the sale of the rights and interests in and to the Software or Documentation. This Agreement is also not for a license to the Source Code version of the Software or the Documentation. All rights and interests in and to the Software or Documentation are expressly reserved by Licensor.
Licensee may not:
(a) use the Software or Documentation for any commercial purposes;
(b) copy, transfer or otherwise distribute or disseminate the Software or the Documentation;
(c) access the Software or Documentation using an interface other than the one made available by Licensor;
(d) Translate any aspect of: (i) the Software; (ii) the Documentation; or (iii) any software or technology used in connection with the Software or the Documentation; or
(e) violate any applicable local, provincial, state, national or international law or regulation.
2.4 Software Modifications
Licensor is under no obligation to provide any Modifications to the Software or Documentation. Should Licensor provide Licensee with any Modifications to the Software or Documentation, any such Modifications shall be provided to Licensee on the license terms set out in sections 2.1, 2.2 and 2.3 above.
2.5 Support and Maintenance
Except as expressly set out in Schedule B this Agreement, Licensor will not provide any support or maintenance in respect of the Software or Documentation. Licensee will be responsible for any and all maintenance and operating expenses incurred to ensure that the Software operates in accordance with expectations. Upon Notice to Licensee, Licensor may amend, in Licensor’s sole discretion and without the consent of Licensee, Schedule B to this Agreement. Licensee’s continued Use of the Software following receipt of an amended Schedule B shall be deemed to mean that Licensee agrees to comply with an amended Schedule B. If Licensee does not agree to comply with an amended Schedule B, Licensee’s sole and exclusive remedy is to terminate this Agreement pursuant to section 5.5 below.
Licensor shall deliver the Software and Documentation being licensed under this Agreement to Licensee on the Effective Date or on another date agreed to by the Parties.
Licensee is not required under this Agreement to pay a one-time fee for the Use of the Software and the Documentation. Fees payable by Licensee to Licensor for Use of the Software and the Documentation shall be as set out in Schedule C attached hereto.
4.2 Payment of Fees
Following the completion of a given month, Licensee shall promptly pay to Licensor the fee payable.
5. TERM AND TERMINATION
The term of this Agreement and Licensee’s right to Use the Software and Documentation, pursuant to this Agreement, shall commence on the Effective Date, and shall continue unless terminated in accordance with the terms of this Agreement.
5.2 Termination by Licensor
Licensor may terminate this Agreement immediately on written Notice to Licensee.
5.3 Termination by Licensee
Licensee may terminate this Agreement immediately on written Notice to Licensor.
5.4 Termination for Convenience by Licensor
Notwithstanding section 5.2 above, Licensor, in its sole and unfettered discretion, may terminate this Agreement effective on any date without liability, cost or penalty, and without prejudice to any other rights or remedies under this Agreement or at law or in equity, upon written Notice of the effective date of the termination.
5.5 Termination for Convenience by Licensee
Notwithstanding section 5.3 above, Licensee, in its sole and unfettered discretion, may terminate this Agreement effective on any date without liability, cost or penalty, and without prejudice to any other rights or remedies under this Agreement or at law or in equity, upon written Notice of the effective date of the termination.
5.6 Termination and Licenses
If Licensor exercises its termination rights pursuant to section 5.2 or section 5.4 of this Agreement or if Licensee exercises its termination rights pursuant to section 5.3 or section 5.5 of this Agreement, all licenses granted under section 2 are terminated immediately and Licensee will cease all Use of the affected Software and Documentation. Fees, pursuant to section 4 of this Agreement, remain payable up and including the date of termination.
5.7 Rights Reserved
Should Licensee violate this Agreement or any of Licensor’s other rights, Licensor reserves the right to pursue any and all legal and equitable remedies against Licensee, including, without limitation, terminating Licensee’s Use of the Software and the Documentation.
Those sections which by their nature should survive the termination or expiration of this Agreement will survive termination or expiration, including sections 1, 2.2, 2.3, 4, 5.7, 5.8, 5.9, 6, 7, 8, 9, 10, 11, 12, 13, 14, and 15.
The Parties acknowledge that each Party may be exposed to or acquire communication or data of the other Party that is confidential, privileged communication not intended to be disclosed to third parties.
6.2 Meaning of Confidential Information
For the purposes of this Agreement, the term “Confidential Information” shall mean all information and documentation of a Party that: (a) has been marked “confidential” or with words of similar meaning, at the time of disclosure by such Party; (b) if disclosed orally or not marked “confidential” or with words of similar meaning, was subsequently summarized in writing by the disclosing Party and marked “confidential” or with words of similar meaning; (c) with respect to information and documentation of Licensee, whether marked “confidential” or not, consists of Licensee’s personal information as well as Licensee’s financial and investment information and documentation; (d) with respect to information and documentation of Licensor, whether marked “confidential” or not, consists of the Software and the Documentation; (e) any Confidential Information derived from information of a Party.
The term “Confidential Information” does not include any information or documentation that was: (a) already in the possession of the receiving Party without an obligation of confidentiality; (b) developed independently by the receiving Party, as demonstrated by the receiving Party, without violating the disclosing Party’s proprietary rights; (c) obtained from a source other than the disclosing Party without an obligation of confidentiality; or (d) publicly available when received, or thereafter became publicly available (other than through any unauthorized disclosure by, through or on behalf of, the receiving Party).
6.4 Permitted Disclosure
A receiving Party shall not be liable for the disclosure of Confidential Information of the disclosing Party, if disclosure is required by applicable law, provided that the receiving Party, to the extent permitted by such law, notifies the disclosing Party as soon as it becomes aware that any such requirement has been or may be imposed so that the disclosing Party may seek a protective order or other relief.
6.5 Obligation of Confidentiality
The Parties agree to hold all Confidential Information in strict confidence and not to copy, reproduce, sell, transfer, or otherwise dispose of, give or disclose such Confidential Information to third parties other than employees, agents, or subcontractors of a Party who have a need to know in connection with this Agreement or to use such Confidential Information for any purposes whatsoever other than the performance of this Agreement. The parties agree to advise and require their respective employees, agents, and subcontractors of their obligations to keep such information confidential.
6.6 Cooperation to Prevent Disclosure of Confidential Information
Each Party shall assist the other Party in identifying and preventing any unauthorized use or disclosure of any Confidential Information, Without limitation of the foregoing, each Party shall advise the other Party immediately in the event either Party learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms of this Agreement and each Party will cooperate with the other Party in seeking injunctive or other equitable relief against any such person.
6.7 Remedies for Breach of Obligation of Confidentiality
The Parties acknowledge that Confidential Information (including but not limited to the copyright, proprietary rights, and/or trade secret interests that are embodied in the Confidential Information) of the disclosing Party is of value to the disclosing Party or to its suppliers and that any unauthorized copying, use, disclosure, access or disposition of that Confidential Information by the receiving Party will cause irreparable injury to the disclosing Party. Consequently, the receiving Party agrees that in addition to any other remedies that the disclosing Party may have, the disclosing Party will be entitled to seek injunctive and other equitable relief, as a matter of right, to prevent the breach or the further breach of this Agreement.
6.8 Aggregate Data
Licensor gathers and compiles information and data about all of its licensees and their usage of the Software on a collective basis, in a manner which does not disclose or reveal any personally identifiable information about individual licensees. Licensee understands, acknowledges, and agrees that Licensor is the sole owner of all such aggregated, anonymous data for all purposes, and that Licensor has the unrestricted right to use such data and to disclose or distribute such data to third parties as Licensor sees fit, throughout the world, in any media or form.
7. FINANCIAL/INVESTMENT DISCLAIMER
7.1 Not Financial/Investment Advice
The Software, the Documentation and the Support Services do not create a financial, investment, financial advisory, investment advisory and/or brokerage relationship of any kind between Licensor and Licensee, and the Software, the Documentation and the Support Services are not intended in any way to be a substitute for professional financial or investment advice. If you are a financial or investment professional, you should exercise your own professional judgement before deciding to rely on the Software, the Documentation or the Support Services. If you are not a financial or investment professional, the Software, the Documentation and the Support Services cannot and should not replace the professional judgement of financial and investment professionals. If you choose to rely on the Software, the Documentation or the Support Services, you do so solely at your own risk.
7.2 No Recommendation
Licensor does not recommend or endorse any specific products, services, organizations, opinions or other information that may be described on or through the Software, the Documentation, the Support Services, or any third party web site or resources.
8. THIRD PARTY SERVICES
8.1 Use of Third Parties
In order to Use the Software, Licensee will be required to enter into contractual relationships with third parties. The third parties are identified in Schedule B to this Agreement. Licensor has no control over such third parties. Licensee’s correspondence or business dealings with any third parties, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between Licensee and such third parties. Licensee acknowledges and agrees that Licensor is not responsible or liable in any way for the availability of any goods or services offered or provided by third parties. Licensee further acknowledges and agrees that Licensor will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any goods or services available by or through any third parties.
9.1 Licensee Feedback
Licensor welcomes Licensee’s feedback, ideas, proposals, recommendations, comments and suggestions for improving the Software, the Documentation or the Support Services (collectively, “Feedback”). By sending Licensor any Feedback, Licensee agrees that: (i) Licensee’s Feedback does not contain the confidential or proprietary information of third parties; (ii) Licensor is under no obligation of confidentiality, expressed or implied, with respect to Licensee’s Feedback; (iii) Licensor may have something similar to the Feedback already under consideration or in development; (iv) Licensor owns all right, title and interest in and to Licensee Feedback, even if Licensee has designated it as confidential; and (v) Licensor is free to use the Feedback for any purpose (commercial or otherwise), without any restriction or compensation to Licensee. Licensee agrees to irrevocably assign all right, title and interest in and to the Feedback to Licensor, and to waive, in Licensor’s favour, any and all moral rights in and to the Feedback, which waivers may be relied upon by Licensor and its successors and assigns.
10. REPRESENTATIONS AND WARRANTIES
10.1 As Is
EXCEPT AS EXPRESSLY NOTED OTHERWISE IN THIS AGREEMENT, THE SOFTWARE, THE DOCUMENTATION AND THE SUPPORT SERVICES ARE PROVIDED TO LICENSEE ''AS IS,” WITHOUT ANY WARRANTY OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED.
WITHOUT LIMITING SECTION 10.1 ABOVE, LICENSOR SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, COVENANTS AND CONDITIONS WITH RESPECT TO THE SOFTWARE, THE DOCUMENTATION AND THE SUPPORT SERVICES INCLUDING, BUT NOT LIMITED TO: (i) ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, APPROPRIATENESS, RELIABILITY, TIMELINESS, USEFULNESS, OR OTHERWISE OF THE SOFTWARE OR DOCUMENTATION; AND (ii) ANY WARRANTIES OF TITLE, WARRANTY OF NON-INFRINGEMENT, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
10.3 Additional Disclaimer
WITHOUT LIMITING SECTION 10.1 AND SECTION 10.2 ABOVE, LICENSOR DOES NOT WARRANT THAT: (i) THE SOFTWARE, THE DOCUMENTATION OR THE SUPPORT SERVICES WILL BE AVAILABLE AT ALL TIMES; (ii) THE SOFTWARE OR THE DOCUMENTATION WILL OPERATE WITHOUT ERRORS; (iii) DEFECTS OR ERRORS IN THE SOFTWARE OR DOCUMENTATION WILL BE CORRECTED; (iv) THE SOFTWARE OR THE DOCUMENTATION WILL BE ACCESSIBLE REGARDLESS OF THE HARDWARE OR SOFTWARE THAT YOU WISH TO EMPLOY TO ACCESS IT; (v) THE SOFTWARE OR THE DOCUMENTATION IS ABSOLUTELY SECURE, NOTWITHSTANDING OUR USE OF COMMERCIALLY REASONABLE EFFORTS TO SECURE IT; OR (vi) THE SOFTWARE OR THE DOCUMENTATION IS FREE FROM VIRUSES OR OTHER HARMFUL CODE, NOTWITHSTANDING THE LICENSOR’S USE OF COMMERCIALLY REASONABLE EFFORTS TO IDENTIFY AND ELIMINATE SUCH CODE.
10.4 Fullest Extent Permitted By Law
All exclusions of responsibility or liability set out in this Agreement are made to the fullest extent permitted by law. Some jurisdictions do not allow the exclusion of certain implied warranties or limitations on how long an implied warranty may last. If any jurisdiction having applicability to this Agreement does not permit any such exclusion or limitation, Licensor’s total liability to Licensee in connection with any breach of such a warranty will be subject to section 11.
11. LIMITATION OF LIABILITY
PLEASE READ THIS SECTION CAREFULLY AS IT LIMITS LICENSOR’S LIABILITY.
11.1 Indirect Damages
IN NO EVENT WILL LICENSOR OR ITS REPRESENTATIVES BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR INDIRECT DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT, THE SOFTWARE OR THE DOCUMENTATION, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUES, LOSS OF PROFITS, BUSINESS INTERRUPTION OR LOSS DATA, EVEN IF LICENSOR OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES BY LICENSEE OR ANY OTHER PERSON.
11.2 Direct Damages
WITHOUT LIMITING SECTION 11.1, THE LIMIT ON THE TOTAL CUMULATIVE LIABILITY OF LICENSOR (INCLUDING ITS REPRESENTATIVES) TO LICENSEE OR ANY PERSON, FOR ANY CLAIMS, LOSSES OR DAMAGES THAT LICENSEE OR THEY SUFFER IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR LICENSEE’S USE OF OR ACCESS TO THE SOFTWARE OR DOCUMENTATION, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE GREATER OF (I) THE AMOUNT, IF ANY, LICENSEE PAID DIRECTLY TO LICENSOR IN CONNECTION WITH THIS AGREEMENT DURING THE SIX (6) MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY, OR (ii) $100.00.
11.3 Full Application
The limitations in sections 11.1 and 11.2 will apply regardless of the causes or circumstances giving rise to the claim, even if such claim is based on breach of contract, negligence or other tort, and will survive a fundamental breach or failure of essential purpose of any limited remedy or this Agreement.
11.4 Fullest Extent Permitted By Law
Some jurisdictions do not allow the exclusion of incidental, special or consequential damages. If any jurisdiction having applicability to this Agreement does not permit any such exclusion or limitation, Licensor’s total liability to Licensee or any third party in connection with any incidental, special or consequential damages will be limited by section 11.2.
11.5 Limitation Period
Licensee acknowledges and agrees that, regardless of any statute or law to the contrary, any claim or cause of action Licensee or any third party may have arising from or relating to this Agreement, the Software or the Documentation must be filed within one year after such claim or cause of action arises or be permanently barred.
12.1 Licensee agrees to indemnify Licensor (and its Representatives) and hold Licensor and its representatives harmless from any and all claims and expenses, including attorney's fees, arising from or relating to: (i) Licensee’s use or misuse of the Software, the Documentation and/or the Support Services; (ii) any person's use of any account or password provided to Licensee in relation to or in connection with the Software, the Documentation and/or the Support Services regardless of whether such use is authorized by Licensee; (iii) any breach by Licensee of any provision of this Agreement; and (iv) any breach by Licensee of any law or regulation or any rights of any third party.
12.2 Licensor reserves the right, at Licensee’s expense, to assume the exclusive defense and control of any matter for which Licensee is required to indemnify Licensor, and Licensee agrees to cooperate with Licensor’s defense of these claims at Licensee’s expense. Licensee agrees not to settle any matter for which Licensee is required to indemnify Licensor without Licensor’s prior written consent in each case. Licensor will use reasonable efforts to notify Licensee of any such claim, action, or proceeding once Licensor becomes aware of it; however, Licensor’s failure to notify will not affect Licensee’s obligations hereunder (except to the extent that Licensor’s failure to notify Licensee materially prejudices Licensee’s ability to defend the claim).
13.1 Names, phrases, words, titles, logos, icons, graphics, images or designs, used throughout the Software and Documentation may be trade names, registered or unregistered trade-marks or services marks (the “Marks”) of Licensor, its subsidiaries, affiliates or licensors, or other entities and individuals. The Marks are protected by Canadian and international trade-mark and other laws. Any use of any of the Marks without the express of the owner of the Mark is strictly prohibited.
Any notice, direction or other communication required or contemplated by any provision of this Agreement (a "Notice") will be in writing and given by personal delivery, by registered mail, by electronic mail transmission by overnight courier or by telecopier and addressed:
in the case of a Notice to Licensor, at:
in the case of a Notice to Licensee, at Licensee's email
14.2 Notice Requirements
(a) delivered before 4:30 p.m. local time on a Business Day will be deemed to have been received on the date of delivery and any Notice delivered after 4:30 p.m. local time on a Business Day or delivered on a day other than a Business Day, will be deemed to have been received on the next Business Day.
(b) mailed will be deemed to have been received seventy two (72) hours after the date it is postmarked, provided that if the day on which the Notice is deemed to have been received is not a Business Day, then the Notice will be deemed to have been received on the next Business Day.
(c) sent by telecopier before 4:30 p.m. local time on a Business Day will be deemed to have been received when the sender receives the answer back confirming receipt by the recipient, provided that any telecopy received after 4:30 p.m. local time on a Business Day or received on a day other than a Business Day will be deemed to have been received on the next Business Day.
(d) transmitted by electronic mail will be deemed to have been received upon the sender's receipt of acknowledgement from the intended recipient.
14.3 Alternative Notice Arrangements
If the Party sending the Notice knows or might reasonably be expected to know that, at the time of sending or within 72 hours thereafter, normal mail service has been disrupted, then the Notice may only be sent (or re-sent) by delivery, overnight courier, electronic mail transmission or telecopier.
14.4 Changing Address for Service
Any Party may change its address for service, its fax number, [its e-mail address], the name of the individual to the attention of whom a Notice is to be sent or the person to whom a copy of the Notice is to be sent, by written notice given to the other Parties in accordance with this Section 14.
15.1 Entire Agreement
This Agreement constitutes the entire agreement between the Parties relating to the subject matter hereof and supersede all prior agreements, understandings, negotiations and discussions, whether oral or written. There are no representations, warranties, conditions, covenants or other agreements, express or implied, collateral, statutory or otherwise, between the Parties in connection with the subject matter of this Agreement, except as specifically set forth herein and therein.
15.2 Amendment and Waiver
This Agreement may only be amended by written agreement signed by each Party hereto. Any waiver of any provision of this Agreement will be effective only if it is in writing and signed by the Party to be bound thereby, and only in the specific instance and for the specific purpose for which it has been given. No failure on the part of any Party to exercise, and no delay in exercising, any right under this Agreement will operate as a waiver of such right. No single or partial exercise of any such right will preclude any further or other exercise of such right.
If any provision of this Agreement is determined to be invalid, illegal or unenforceable by an arbitrator or any court of competent jurisdiction, that provision will be severed from this Agreement, and the remaining provisions will remain in full force and effect.
Except as otherwise provided in this Agreement, all costs and expenses (including, without limitation, the fees and disbursements of legal counsel) incurred in connection with this Agreement and the transactions contemplated by this Agreement will be paid by the Party incurring those expenses.
15.5 Assignment and Benefit of the Agreement
Licensor may assign this Agreement, in whole or in part, at any time with or without Notice to Licensee. Licensee may not resell, assign, sublicense or otherwise transfer its rights or delegate its duties under this Agreement, either in whole or in part, without Licensor’s prior written consent. Subject to those conditions, this Agreement will enure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns.
15.6 Governing Law and Attornment
This Agreement will be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein, without reference to the conflict of laws provisions. Licensee agrees to attorn to the jurisdiction of the courts of the Province of Ontario for the conduct of any legal proceedings under, or related to, this Agreement. The Parties expressly exclude the application of the United Nations Convention for the International Sale of Goods to this Agreement. Notwithstanding anything to the contrary in this Agreement, Licensor may seek injunctive or other relief in any provincial, state, federal, or national court of competent jurisdiction for any actual or alleged infringement of its or any third party’s intellectual property and/or proprietary rights.
15.7 Counterparts and Electronic Execution
This Agreement may be executed in any number of counterparts each of which will be deemed to be an original, and all of which taken together will be deemed to constitute one and the same instrument. This Agreement may be executed and delivered by electronic means and each of the Parties may rely on such electronic execution as though it were an original hand-written signature.
15.8 Independent Contractors
The Parties are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between the Parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent, except as otherwise expressly provided in this Agreement.
15.9 Force Majeure
Except as expressly provided otherwise in this Agreement, Licensor will not be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control.
(a) The headings used in this Agreement are for convenience of reference only, and are not intended to be full or accurate descriptions of the content of the paragraphs.
(b) No provision of this Agreement will be interpreted against any party merely because that party or its legal representative drafted the provision.
(c) All remedies are cumulative.
(d) Throughout this Agreement, the term “including” or the phrases “e.g.,” or “for example” have been used to mean “including, without limitation”. The examples provided should not be considered to be all-inclusive.
(e) Words denoting the singular include the plural and vice versa, and words denoting any gender include all genders.
(f) Except as otherwise provided, the terms “hereunder”, “herein”, “hereby”, “hereof”, “hereto”, “hereinafter” and any other similar expression when used in this Agreement usually refer to this Agreement as a whole rather than to any particular section thereof.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date first written above.
DESCRIPTION OF THE SOFTWARE
The Software means a software program known as the “AlgoLab automated trading software”. This software utilizes technical algorithms to identify trading opportunities, and actually places orders and manages trades for licensed users.
The Software is an automated trading system. Consequently, the rules of the trading system are not disclosed. Every licensed user uses the same basic rules in the automated trading system.
Each user of the Software is required to set/customize his or her risk setting and other various trading parameters within the automated trading system. A user is solely responsible for determining his or her own risk setting within the automated trading system based on his or her own risk tolerance. A user is also solely responsible for determining his or her own trading system parameter settings within the automated trading system based on his or her own risk tolerance and return requirements. After the settings are set by a user, the Software will make the same trading decisions as it does for every other user who has set his or her settings to the same setting as a user. There is nothing unique about the trades being made for any particular user aside from the level of risk tolerated, which level of risk is set directly by each user, and other trading system parameter settings which are set directly by each user.
Licensor will provide to Licensee a reasonable level of support for the Software, as described in this Schedule B. This support involves the following:
1. Licensor may assist Licensee in getting Licensee an online brokerage account set up with compatible brokers. Licensee has complete control over its brokerage account. As between Licensor and Licensee, Licensee is responsible for depositing money into his or her brokerage account.
2. Licensor will assist Licensee with setting up a remote virtual computer to run the Software on. Licensee is required to use this, and only this, remote virtual computer to run the Software on.
3. Licensor will install the Software onto Licensee’s remote virtual computer.
4. Licensor will install any Brokers’ connection software onto Licensee’s remote virtual computer.
5. Following the installation of the Software onto Licensee’s remote virtual computer, Licensor will perform tests to ensure that the Software is communicating with Broker software and that the Software is placing trades correctly through Broker Software.
6. From time to time, Licensor may need to monitor Licensee’s remote virtual computer to ensure that the Software is functioning. Licensee agrees to provide Licensor with Licensee’s login credentials for Licensee’s remote virtual computer, and, if Licensee changes his or her login credential, Licensee agrees to promptly provide Licensor with the most current login credentials.
7. From time to time, Licensor may suspend or interrupt the operation of the Software due to deal with malfunctions, to perform maintenance and to install upgrades. All such suspensions or interruptions would take place only with notice to and the consent of the Licensee. Under extraordinary market conditions, including unusual volatility or volume of transactions, the operation of the Software may be suspended at the discretion of the Licensor in order to protect the Licensor and the Licensee.
Licensor will never make any trading decisions on Licensee’s behalf that the Software would not make for other users who have a similar risk tolerance level and trading parameter settings as Licensee. The Licensor is not a registered market participant and bears no responsibility for compiling or producing client account statements or performance reporting.
Licensee remains in sole control of his or her brokerage account with Broker and his or her capital contained within such brokerage account.
Licensor does not have permissions to withdraw funds from Licensee’s brokerage account. Licensee may, at any time, log into his or her brokerage account to suspend trading, close his or her account, or change his or her password.
Licensee agrees not to upload to the remote virtual computer, or otherwise permit to be uploaded to the remote virtual computer, any software or any other computer code, files or programs.
Licensee will pay fees to the Licensor as shown on the fee schedule at the AlgoLab.com web site,
Fixed monthly fees as shown on the fee schedule are calculated based an approximation of the volume of work that the AlgoLab Software performs on behalf of the Licensor and are based on the total capital being traded, along with the risk value being used. An algorithm defining this calculation estimates the total numbers of transactions that are required to be transmitted to Licensor’s broker, and the number of transactions that require management until trades have been exited.