SOFTWARE LICENSE AGREEMENT
IMPORTANT: PLEASE READ THIS SOFTWARE LICENSE CAREFULLY BEFORE DOWNLOADING, INSTALLING OR OTHERWISE USING THE SOFTWARE (THE "SOFTWARE"). THE SOFTWARE PERMITS END-USERS TO ANALYZE AND DISPLAY REAL-TIME STOCK-MARKET DATA (“SERVICE”) AS PROVIDED BY AN ON-LINE SERVICE PROVIDER (“SERVICE PROVIDER”). BY CLICKING ON THE "OK" OR "ACCEPT" BUTTON YOU (“YOU”) AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, CLICK THE "DO NOT ACCEPT" BUTTON TO TERMINATE THE INSTALLATION PROCESS.
1. License. Phil Erlanger Research Co., Inc, a Massachusetts company (“PER”), hereby grants You a non-exclusive right and license to use the Software and the related documentation (the "Documentation") as set forth in this Agreement, provided that such use is only in conjunction with a Service (provided by an authorized Service Provider, which Service Provider may or may not be PER) in connection with which You have obtained the Software. For an individual who has obtained the Software for personal use, “User” refers to You. For corporate or other entities (“Enterprises”) who have purchased a license for multiple users, “User” refers to each named user assigned by the Enterprises to use the Software who is registered to use the Service and the Software. Each User may install the Software on multiple personal computers, hand-held devices, and lap-top computers, so long as only one copy is used at a time by the User, and so long as the User does not let other persons use the Software and/or the User's log-in ID and password. You shall not attempt to disable or otherwise circumvent any software mechanism that limits the permitted number of users, or that disables the Software for failure to supply an appropriate User log-in ID and password. Each User may use the Documentation (which is provided in electronic format) to assist in the User's use of the Software, but neither You nor any User may make hard copies of the Documentation. You own the media on which the Software and Documentation is recorded, but not the Software or Documentation itself, or any copy of it. This license is not a sale of the original or any copy of the Software.
2. Copies. You may make copies of the Software and Documentation by installing the Software and Documentation on the machines permitted by Section 1. You may also make a single copy of the Software for backup and archival purposes only. Additionally, Enterprises may make copies of the Software and Documentation for each authorized User, and such Users may make copies of the Software and Documentation by installing the Software and Documentation on the User machines permitted by Section 1. All copies made must contain all proprietary notices included in the original.
3. Named User Log-In Verification. Each User will be assigned a unique log-in ID and password to be used only by the User when accessing a Service from a Service Provider using the Software. The log-in ID and password may not be transferred to or otherwise used by anyone other than the named User. A User's log-in ID and password may be verified by both PER and the Service Provider before the User will be provided access to and use of the Service and/or the Software. It is Your and each User's responsibility to keep and maintain the confidential nature of the assigned unique User log-in ID and password, and to ensure that PER' records are continuously up-to-date and accurate. Prior to each use of the Software, a User will be required to provide the User's unique log-in ID and password. IF THE USER LOG-IN ID AND PASSWORD ENTERED BY THE USER DOES NOT MATCH PER' OR THE SERVICE PROVIDER'S RECORDS, THE USER MAY BE DENIED ACCESS TO THE SERVICE, AND THE SOFTWARE MAY BE DISABLED SO THAT IT WILL NOT FUNCTION FURTHER.
4. Copying, Transferring or Modifying Software. The Software contains copyrighted material, trade secrets and other proprietary intellectual property of PER. You may not permit other individuals to use the Software, or the unique assigned user log-in ID or password. You may not decompile, disassemble, reverse-engineer or otherwise display the Software in human-readable form. You may not modify, translate, make derivative works, rent, lease, distribute or lend the Software, and You may not sell to others the right to use the Software on Your computer(s). You may not remove any proprietary notices or labels on the Software. You may not copy, transfer, transmit, sublicense or assign this license or the Software except as expressly permitted in this Agreement. You agree that the terms of this paragraph apply to the Software or any portion thereof, whether owned by PER or PER' licensors. For Enterprises, the provisions of this Section apply to each User, and Enterprises shall ensure that each User adheres to them.
5. Term and Termination. You may terminate this Agreement at any time by destroying all copies of the Software and Documentation. All obligations of confidentiality and restrictions on use, and all other provisions that may reasonably be interpreted to survive termination of this Agreement, will survive termination of this Agreement for any reason. Either party may terminate this agreement upon the other party's material breach, effective immediately upon dispatch of notice of such material breach. This Agreement will automatically terminate upon termination or expiration of the Service. Upon termination of this Agreement, You shall immediately cease all further use of the Software and Documentation, and immediately return or destroy all copies of the Software and Documentation in Your possession or control.
6. Warranty Disclaimers. THE SOFTWARE, DOCUMENTATION AND ANY SERVICES PROVIDED BY PER ARE PROVIDED "AS IS," WITH ALL FAULTS, AND WITHOUT WARRANTIES OF ANY KIND, EXPRESS, STATUTORY, IMPLIED OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. The entire risk as to the quality, accuracy, timeliness and performance of the Software, Documentation and Services is with You. Should the Software, Documentation or Services prove defective, You (and not PER or its distributors, licensors or dealers) assume the entire cost of all necessary servicing or repair.
PER does not warrant that the functions contained in the Software will meet Your requirements or operate in the combination that You may select for use, that the operation of the Software and/or Services will be uninterrupted or error free, or that defects in the Software and/or Services will be corrected. Furthermore, PER does make any representations or warranties regarding the use of the Software or the Services, or the results of using the Software, Documentation or Services in terms of correctness, accuracy, reliability, or otherwise. No oral or written statement by PER or by a representative of PER shall create a warranty or increase the scope of this warranty.
PER DOES NOT WARRANT THE SOFTWARE, DOCUMENTATION, OR THE SERVICES AGAINST INFRINGEMENT OR THE LIKE WITH RESPECT TO ANY UNITED STATES OR INTERNATIONAL COPYRIGHT, PATENT, TRADE SECRET, TRADEMARK OR OTHER PROPRIETARY RIGHT OF ANY THIRD PARTY AND DOES NOT WARRANT THAT THE SOFTWARE WILL NOT INCLUDE ANY VIRUS, SOFTWARE ROUTINE OR OTHER SOFTWARE DESIGNED TO PERMIT UNAUTHORIZED ACCESS, TO DISABLE, ERASE OR OTHERWISE HARM SOFTWARE, HARDWARE, SERVICES OR DATA, OR TO PERFORM ANY OTHER SUCH ACTIONS.
Any warranties that by law survive the foregoing disclaimers shall terminate ninety (90) days from the date You received the Software.
7. Limitation of Liability. YOUR SOLE REMEDIES AND PER'S ENTIRE LIABILITY ARE SET FORTH ABOVE. IN NO EVENT WILL PER OR ITS DISTRIBUTORS OR DEALERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES RESULTING FROM THE USE OR INABILITY TO USE THE SOFTWARE, DOCUMENTATION, OR THE SERVICES, OR ANY DEFECT THEREIN, INCLUDING ANY LOST PROFITS, EVEN IF TENLLIGHTS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
You agree that PER and its distributors and dealers will not be liable for defense or indemnity with respect to any claim against You by any third party arising from Your possession or use of the Software, Documentation, or Services.
In no event will PER's total liability to You for all damages, losses, and causes of action (whether in contract, tort, including negligence, or otherwise) exceed US$500.
SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, AND SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND USER MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURSIDICTION TO JURISDICTION.
8. U.S. Government Restricted Rights. If You are a U.S. Government user, then as applicable, the Software and accompanying materials: (i) are provided with “RESTRICTED RIGHTS” and the use, duplication or disclosure of the Software and accompanying materials is subject to the restrictions set forth in subparagraphs (c)(1) and (c)(2) of the Commercial Computer Software-Restricted Rights (June 1987) clause at FAR 52.227-19, and its successors; and (ii) are provided with “LIMITED RIGHTS” and the use, duplication and disclosure of the Software and accompanying materials is subject to the restrictions set forth in subparagraphs (a)(13) and (b)(3) of the Rights in Technical Data-Noncommercial Items (Nov 1995) clause at DFARS 252.227-7013, and its successors. Unpublished-rights reserved under the Copyright Laws of the United States. Manufacturer is Phil Erlanger Research Co., Inc, 1 Nagog Park, Acton, MA 01720.
9. Export Control Laws. You agree to comply with all laws, rules and regulations applicable to the export of the Software or the Documentation. Specifically, You shall not export, re-export or transship the Software or the Documentation, or the direct product thereof, in violation of any United States or other laws and regulations which may from time to time be applicable, nor permit others to do so. None of the Software or underlying information or technology may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Iran, Iraq, Libya, Serbia, Montenegro, North Korea, Syria or any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Order. By using the Software, You are agreeing to the foregoing and You are representing and warranting that You are not located in, under the control of, or a national or resident of any such country or on any such list. For Enterprises, the provisions of this Section apply to each User, and Enterprises shall ensure that each User adheres to them.
10. High Risk Activities. The Software is not fault-tolerant and is not designed, manufactured or intended for use or resale as online control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the Software could lead directly to death, personal injury, or severe physical or environmental damage. PER and its suppliers specifically disclaims any express or implied warranty of fitness for any high risk uses listed above.
11. Governing Law and Interpretation. This Agreement shall be interpreted under and governed by the laws of the State of Massachusetts, without regard to its rules governing the conflict of laws. Both parties hereby submit to the jurisdiction of the federal and state courts of Massachusetts. Exclusive venue for any disputes hereunder shall be located in Acton, Massachusetts. If any provision of this Agreement is held illegal or unenforceable by a court or tribunal of competent jurisdiction, the remaining provisions of this Agreement shall remain in effect and the invalid provision deemed modified to the least degree necessary to remedy such invalidity.
12. Remedies for Breach. In addition to all other rights and remedies available to PER at law or in equity, any violation of Sections 1 2, 3 and/or 4 by You or any User shall constitute a material breach of this Agreement and PER shall have the immediate right to terminate this Agreement and seek any and all appropriate remedies for patent, copyright or trademark infringement, or misappropriation of trade secrets, or any other theory, as applicable.
13. Entire Agreement. This Agreement is the complete agreement between PER and You and supersedes all prior agreements, oral or written, with respect to the subject matter hereof.