Linn Software, Inc. SOFTWARE LICENSE AGREEMENT This Software License Agreement (this "License") is a legal agreement between you (the "Customer") and Linn Software, Inc. ("LinnSoft") regarding Customer’s use of the software product Investor/RT and its accompanying instructional materials (individually or together, as applicable, the "Software"). LINNSOFT PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS LICENSE AND ON THE CONDITION THAT CUSTOMER ACCEPTS AND COMPLIES WITH THEM. BY OBTAINING A LICENSE CODE FOR THE SOFTWARE FROM LINNSOFT, YOU (A) ACCEPT THIS LICENSE AND AGREE THAT CUSTOMER IS LEGALLY BOUND BY ITS TERMS AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE 18 YEARS OF AGE OR OLDER AND (II) IF CUSTOMER IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS LICENSE ON BEHALF OF CUSTOMER AND BIND CUSTOMER TO ITS TERMS. IF CUSTOMER DOES NOT AGREE TO THE TERMS OF THIS LICENSE, LINNSOFT WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO CUSTOMER AND YOU MUST NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE OR DOCUMENTATION. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS LICENSE OR YOUR OR CUSTOMER’S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS LICENSE, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS LICENSE, AND THIS LICENSE EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY SOFTWARE THAT CUSTOMER DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF THE SOFTWARE.
- Definitions.
For purposes of this License, the following terms have the following meanings: “Authorized Users” means individuals using a single computer system, at a single physical location, owned or leased, and controlled by, Customer, as further specified herein. “Customer” has the meaning set forth in the preamble. “Documentation” means user manuals, technical manuals, and any other materials provided by LinnSoft, in printed, electronic, or other form, that describe the installation, operation, use, or technical specifications of the Software. “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world. “License Fees” means the license fees, including all taxes thereon, paid or required to be paid by Customer for the license granted under this License. “LinnSoft” has the meaning set forth in the preamble. “Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity. “Software” has the meaning set forth in the preamble. “Support Fees” means the fees, including all taxes thereon, paid or required to be paid by Customer for premium support services as described herein. “Term” has the meaning set forth in Section 11. “Third Party” means any Person other than Customer or LinnSoft. “Update” has the meaning set forth in Section 7(b).
- License Grant and Scope.
Subject to and conditioned upon Customer’s strict compliance with all terms and conditions set forth in this License and any accompanying end user license agreements, LinnSoft hereby grants to Customer a non-exclusive, non-perpetual, non-transferable, non-assignable, non-sublicensable, limited license during the Term to use, solely by and through its Authorized Users, the Software and Documentation, solely as set forth in this Section 2 and subject to all conditions and limitations set forth in Section 4 or elsewhere in this License. This license grants Customer the right, exercisable solely by and through Customer’s Authorized Users, to: (a) Download and install in accordance with the Documentation one (1) copy of the Software on one (1) computer system, at a single physical location, owned or leased, and controlled by, Customer. If the single computer system is a multi-user system, then the foregoing license covers all Authorized Users on that single multi-user computer system; provided, however, that no right to download to, install on, and/or use the Software over a network, even if the Software is downloaded to, installed on, and/or used over a single computer system on the network at a time, is granted hereunder. In addition to the foregoing, Customer has the right to make one copy of the Software solely for archival purposes and one copy of the Software solely for backup purposes, provided that Customer shall not, and shall not allow any Person to, install or use any such copy other than if and for so long as any copy installed in accordance with the preceding sentence is inoperable and, provided, further, that Customer uninstalls and otherwise deletes such inoperable copy(ies). All copies of the Software made by the Customer: (i) will be the exclusive property of the LinnSoft; (ii) will be subject to the terms and conditions of this License; and (iii) must include all trademark, copyright, patent, and other Intellectual Property Rights notices contained in the original. (b) Use and run the Software as properly installed in accordance with this License and the Documentation, solely as set forth in the Documentation and solely for Customer’s internal business purposes. Such use is permitted only on the computer on which the Software is installed, at the physical location thereof, and not via any remote access or other network, as further specified above. (c) Download or otherwise make one (1) copy of the Documentation per copy of the Software permitted to be downloaded and installed in accordance with this License and use such Documentation, solely in support of its licensed use of the Software in accordance herewith. All copies of the Documentation made by Customer: (i) will be the exclusive property of LinnSoft; (ii) will be subject to the terms and conditions of this License; and (iii) must include all trademark, copyright, patent, and other Intellectual Property Rights notices contained in the original.
- Third-Party Materials.
The Software may include software, content, data, or other materials, including related documentation, that are owned by Persons other than LinnSoft (“Third-Party Materials”) and that are provided to Customer on license terms that are in addition to and/or different from those contained in this License (“Third-Party Licenses”). Customer is bound by and shall comply with all Third-Party Licenses. Any breach by Customer or any of its Authorized Users of any Third-Party License is also a breach of this License.
- Use Restrictions.
Customer shall not, and shall require its Authorized Users not to, directly or indirectly: (a) use (including make any copies of) the Software or Documentation beyond the scope of the license granted under Section 2; (b) provide any other Person, including any subcontractor, independent contractor, affiliate, or service provider of Customer, with access to or use of the Software or Documentation; (c) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Software or Documentation or any part thereof; (d) combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs; (e) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Software or any part thereof; (f) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the Software or Documentation, including any copy thereof; (g) except as expressly set forth in Section 2(a) and Section 2(c), copy the Software or Documentation, in whole or in part; (h) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software, or any features or functionality of the Software, to any Third Party for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud, or other technology or service; (i) use the Software or Documentation in violation of any law, regulation, or rule; or (j) use the Software or Documentation for purposes of competitive analysis of the Software, the development of a competing software product or service, or any other purpose that is to LinnSoft’s commercial disadvantage.
- Responsibility for Use of Software
Customer is responsible and liable for all uses of the Software and Documentation through access thereto provided by Customer, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Customer is responsible and liable for all actions and failures to take required actions with respect to the Software and Documentation by its Authorized Users or by any other Person to whom Customer or an Authorized User may provide access to or use of the Software and/or Documentation, whether such access or use is permitted by or in violation of this License.
- Compliance Measures.
(a) The Software may contain technological copy protection or other security features designed to prevent unauthorized use of the Software, including features to protect against any use of the Software that is prohibited under Section 4. Customer shall not, and shall not attempt to, remove, disable, circumvent, or otherwise create or implement any workaround to, any such copy protection or security features. (b) On an annual basis, and otherwise on LinnSoft’s written request, Customer shall conduct a review of its and its Authorized Users’ use the Software and certify to LinnSoft in a written instrument signed by an officer of Customer that it is in full compliance with this License or, if Customer discovers any noncompliance: (i) Customer shall immediately remedy such noncompliance and provide LinnSoft with written notice thereof. Customer shall provide LinnSoft with all access and assistance as LinnSoft requests to further evaluate and remedy such noncompliance. (ii) If Customer’s use of the Software exceeds the number of copies or Authorized Users permitted under the license, LinnSoft shall have the remedies set forth in Section 6(d). (c) During the Term, LinnSoft may, in LinnSoft’s sole discretion, audit Customer’s use of the Software to ensure Customer’s compliance with this License, provided that (i) any such audit shall be conducted on not less than 15 days’ prior notice to Customer, and (ii) no more than 1 audit may be conducted in any 12 month period except for good cause shown. LinnSoft also may, in its sole discretion, audit Customer’s systems within 12 months after the end of the Term to ensure Customer has ceased use of the Software and removed the all copies of the Software from such systems as required hereunder. The Customer shall fully cooperate with LinnSoft’s personnel conducting such audits and provide all reasonable access requested by the LinnSoft to records, systems, equipment, information, and personnel, including machine IDs, serial numbers, and related information. LinnSoft may conduct audits only during Customer’s normal business hours and in a manner that does not unreasonably interfere with the Customer’s business operations. (d) If any of the measures taken or implemented under this Section 6 determines that the Customer’s use of the Software exceeds or exceeded the use permitted by this License then: (i) Customer shall, within 15 days following the date of LinnSoft’s written notification thereof, pay to LinnSoft the retroactive License Fees for such excess use and, unless LinnSoft terminates this License pursuant to Section 6.1(d)(iii), obtain and pay for a valid license to bring Customer’s use into compliance with this License. In determining the License Fees payable pursuant to the foregoing, (x) unless Customer can demonstrate otherwise by documentary evidence, all excess use of the Software shall be deemed to have commenced on the commencement date of this License or, if later, the completion date of any audit previously conducted by LinnSoft hereunder, and continued uninterrupted thereafter, and (y) the rates for such licenses shall be determined without regard to any discount to which Customer may have been entitled had such use been properly licensed prior to its commencement (or deemed commencement). (ii) If the use exceeds or exceeded the use permitted by this License by more than 10%, Customer shall also pay to LinnSoft, within 15 days following the date of LinnSoft’s written request therefor, LinnSoft’s reasonable costs incurred in conducting the audit. (iii) If the use exceeds or exceeded the use permitted by this License by more than 10%, LinnSoft shall also have the right to terminate this License and the license granted hereunder, effective immediately upon written notice to Customer. LinnSoft’s remedies set forth in this Section 6(d) are cumulative and are in addition to, and not in lieu of, all other remedies LinnSoft may have at law or in equity, whether under this License or otherwise.
- Maintenance and Support.
(a) Subject to Section 7(c), the license granted hereunder entitles Customer to the basic software maintenance and support services described from time to time on LinnSoft’s website located at https://www.linnsoft.com. Alternatively, Customer may elect to obtain Premium support services as described from time to time under “Premium Support Services” on LinnSoft’s website for an additional monthly fee (“Support Fees”). LinnSoft shall only be required to provide Premium support services if Customer has paid for such services. (b) Maintenance and support services will include provision of such updates, upgrades, bug fixes, patches, and other error corrections (collectively, “Updates”) as LinnSoft makes generally available free of charge to all Customers of the Software then entitled to maintenance and support services. LinnSoft may develop and provide Updates in its sole discretion, and Customer agrees that LinnSoft has no obligation to develop any Updates at all or for particular issues. Customer further agrees that all Updates will be deemed Software, and related documentation will be deemed Documentation, all subject to all terms and conditions of this License. Customer acknowledges that LinnSoft may provide all Updates via download from a website designated by LinnSoft and that Customer’s receipt thereof will require an internet connection, which connection is Customer’s sole responsibility. LinnSoft has no obligation to provide Updates via any other media. Maintenance and support services do not include any new version or new release of the Software that LinnSoft may issue as a separate or new product, and LinnSoft may determine whether any issuance qualifies as a new version, new release, or Update in its sole discretion. (c) LinnSoft reserves the right to condition the provision of maintenance and support services, including all or any Updates, on Customer’s registration of the copy of Software for which support is requested. LinnSoft has no obligation to provide maintenance and support services, including Updates: (i) for any but the most current version or release of the Software; (ii) for any copy of Software for which all previously issued Updates have not been installed; (iii) if Customer is in breach under this License; or (iv) for any Software that has been modified other than by or with the authorization of LinnSoft, or that is being used with any hardware, software, configuration, or operating system not specified in the Documentation or expressly authorized by LinnSoft in writing.
- Collection and Use of Information.
(a) Customer acknowledges that LinnSoft may, directly or indirectly through the services of Third Parties, collect and store information regarding use of the Software and about equipment on which the Software is installed or through which it otherwise is accessed and used, through: (i) the provision of maintenance and support services; and (ii) security measures included in the Software as described in Section 6. (b) Customer agrees that the LinnSoft may use such information for any purpose related to any use of the Software by Customer or on Customer’s equipment, including but not limited to: (i) improving the performance of the Software or developing Updates; and (ii) verifying Customer’s compliance with the terms of this License and enforcing the LinnSoft’s rights, including all Intellectual Property Rights in and to the Software.
- Intellectual Property Rights.
Customer acknowledges and agrees that the Software and Documentation are provided under license, and not sold, to Customer. Customer does not acquire any ownership interest in the Software or Documentation under this License, or any other rights thereto, other than to use the same in accordance with the license granted and subject to all terms, conditions, and restrictions under this License. LinnSoft reserves and shall retain entire right, title, and interest in and to the Software and all Intellectual Property Rights arising out of or relating to the Software, except as expressly granted to the Customer in this License. Customer shall use commercially reasonable efforts to safeguard all Software (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access. Customer shall promptly notify LinnSoft if Customer becomes aware of any infringement of the LinnSoft’s Intellectual Property Rights in the Software and fully cooperate with LinnSoft, at LinnSoft’s sole expense, in any legal action taken by LinnSoft to enforce its Intellectual Property Rights.
- Payment.
All License Fees and, if applicable, Support Fees are payable in advance for the entire Term (including renewals thereof as specified below) and are non-refundable, in whole or in part. Customer shall submit billing information at the time it registers for the license to the Software and shall promptly update its billing information in the event of any changes to it.
- Term and Termination.
(a) Customer may acquire a review term (trial), monthly term, quarterly term, or annual term license to the Software (respectively, the “Term”) and must elect the Term at the time it registers for the license to the Software. A review term license is limited to a single, fourteen (14) day trial period and is limited to one per Customer. Customer shall submit billing information at the time it registers for a review term license, and a review term will automatically convert to a monthly, paid license term unless Customer provides notice of cancellation as provided herein or registers for a quarterly term or annual term license prior to the expiration of the review term license. Except for review term licenses, all licenses will automatically renew for additional Terms of equal length unless and until cancelled or terminated as provided below. (b) Customer may not terminate this License during the applicable Term but may cancel the automated renewal of the Term by submitting a cancellation notice via its account at https://www.linnsoft.com. Email or telephone notices of cancellation are not acceptable. Notice of cancellation must be submitted as specified herein no less than 48 hours (US Eastern Time) prior to the expiration of the then-current Term. Notices of cancellation received less than 48 hours (US Eastern Time) prior to the expiration of the then-current Term will not become effective until the end of the next Term. (c) LinnSoft may terminate this License, effective upon written notice to Customer, if Customer, materially breaches this License and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after LinnSoft provides written notice thereof. (d) LinnSoft may terminate this License, effective immediately, if Customer files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property. (e) Upon cancellation or earlier termination of this License, the license granted hereunder shall terminate, and Customer shall cease using and destroy all copies of the Software and Documentation. No cancellation or termination shall affect Customer’s obligation to pay all License Fees and, if applicable, Support Fees that may have become due before the effective date of such cancellation or termination, or entitle Customer to any refund, in each case except as set forth in Section 12.1(c)(ii).
- Limited Warranty, Exclusive Remedy, and Disclaimers.
(a) Solely with respect to Software for which LinnSoft receives a License Fee, LinnSoft warrants that, for a period of ninety (90) days following Customer’s initial receipt of the Software (excluding Updates): (i) any media on which the Software is provided will be free of material damage and defects in materials and workmanship under normal use; and (ii) the Software will substantially contain the functionality described in the Documentation, and when properly installed on a computer meeting the specifications set forth in, and operated in accordance with, the Documentation, will substantially perform in accordance therewith. THE FOREGOING WARRANTIES DO NOT APPLY, AND LINNSOFT STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT, TO ANY THIRD-PARTY MATERIALS. (b) The warranties set forth in Section 12(a)(i) and Section 12(a)(ii) will not apply and will become null and void if Customer materially breaches any provision of this License, or if Customer, any Authorized User, or any other Person provided access to the Software by Customer or any Authorized User, whether or not in violation of this License: (i) installs or uses the Software on or in connection with any hardware or software not specified in the Documentation; (ii) modifies or damages the Software, or the media on which it is provided, including abnormal physical or electrical stress; or (iii) misuses the Software, including any use of the Software other than as specified in the Documentation. (c) If, during the period specified in Section 12(a), any Software covered by the warranty set forth in such Section fails to perform substantially in accordance with the Documentation, and such failure is not excluded from warranty pursuant to the Section 12(b), LinnSoft will, subject to Customer’s promptly notifying LinnSoft in writing of such failure, at its sole option, either: (i) repair or replace the Software, provided that Customer provides LinnSoft with all information LinnSoft requests to resolve the reported failure, including sufficient information to enable the LinnSoft to recreate such failure; or (ii) refund the License Fees paid for such Software, subject to Customer’s ceasing all use of and, if requested by LinnSoft, returning to LinnSoft all copies of the Software. If LinnSoft repairs or replaces the Software, the warranty will continue to run from the initial date specified above, and not from Customer’s receipt of the repair or replacement. The remedies set forth in this Section 12(c) are Customer’s sole remedies and LinnSoft’s sole liability under this License. (d) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 12(a), THE SOFTWARE AND DOCUMENTATION ARE PROVIDED TO CUSTOMER “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, LINNSOFT, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, LINNSOFT PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE LICENSED SOFTWARE WILL MEET THE CUSTOMER’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. (e) LINNSOFT DOES NOT AND IS NOT PROVIDING ANY ADVICE OR RECOMMENDATIONS REGARDING THE PURCHASE OF SECURITIES AND NO INFORMATION PROVIDED BY LINNSOFT OR THE SOFTWARE, INCLUDING ITS ACCOMPANYING DOCUMENTATION, SHOULD BE CONSTRUED AS ANY SUCH ADVICE OR RECOMMENDATION. (f) TRADING IN SECURITY AND DERIVATIVE INSTRUMENTS INVOLVES SUBSTANTIAL RISK OF LOSS AND IS NOT SUITABLE FOR ALL INVESTORS. CUSTOMER MAY LOSE ALL OF CUSTOMER’S INITIAL INVESTMENT OR MORE. INDICATORS PROVIDED BY LINNSOFT OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, INCLUDING THIRD PARTIES, ARE NOT TO BE USED AS INVESTMENT ADVICE AND ARE USED BY CUSTOMER AT ITS OWN RISK. AS IT RELATES TO TRADING PERFORMANCE, CUSTOMER UNDERSTANDS THAT PAST PERFORMANCE IS NOT INDICATIVE OF FUTURE RESULTS.
- Limitation of Liability.
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: (a) IN NO EVENT WILL LINNSOFT OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO CUSTOMER, ANY AUTHORIZED USER, OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SOFTWARE; LOST REVENUES OR PROFITS; DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; LOSS OR CORRUPTION OF DATA; LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION; FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; OR BREACHES IN SYSTEM SECURITY; OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS LICENSE, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT LINNSOFT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. (b) IN NO EVENT WILL LINNSOFT’S AND ITS AFFILIATES’, INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS’ AND SERVICE PROVIDERS’, COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS LICENSE OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO LINNSOFT PURSUANT TO THIS LICENSE FOR THE SOFTWARE THAT IS THE SUBJECT OF THE CLAIM FOR THE THEN-CURRENT TERM. (c) THE LIMITATIONS SET FORTH IN SECTION 13(a) AND SECTION 13(b) SHALL APPLY EVEN IF THE CUSTOMER’S REMEDIES UNDER THIS LICENSE FAIL OF THEIR ESSENTIAL PURPOSE.
- Order Routing Service.
The terms in this Section 14 apply if LinnSoft provides Customer with access to LinnSoft’s electronic trading order routing service (“TORS”). (a) License. If Customer has subscribed to TORS, subject to and conditioned upon Customer’s strict compliance with all terms and conditions set forth in this License and any accompanying end user license agreements, LinnSoft hereby grants to Customer a non-exclusive, non-perpetual, non-transferable, non-assignable, non-sublicensable, limited license during the Term to use, solely by and through its Authorized Users, TORS solely for purposes of routing orders, trades, and related information among Customer, exchanges, and brokers or dealers with whom Customer has an account and who have entered into an TORS agreement with LinnSoft (“Broker"). Customer must notify LinnSoft of the identity of the Broker(s), and Customer may access TORS after Broker has authorized Customer to use TORS. LinnSoft may be compensated by Broker for transactions made through TORS. (b) Order Acceptance by Broker. Customer acknowledges and agrees: (i) use of TORS, and all orders and information placed through TORS, are at Customer’s sole risk, and orders, trades and other information may not be received by Broker, Customer, or the exchanges due to technical problems; (ii) all orders are subject to acceptance by Broker and the limitations and parameters established by the Broker and the applicable exchanges; and (iii) Broker may be responsible for routing orders/trades and confirmations between TORS and the appropriate trading exchanges. (c) No Advice. Customer represents that it is financially sophisticated and experienced in the type of trading to be routed through TORS. Customer understands that LinnSoft, in granting Customer access to TORS, is offering order/trade routing services and an information conduit only, and LinnSoft does not offer any advice regarding the nature, potential value, or suitability of any particular transaction or investment strategy. NOTHING IN THIS LICENSE OR IN LINNSOFT’S PERFORMANCE SHALL BE CONSTRUED AS A SOLICITATION OR RECOMMENDATION TO USE ANY BROKER OR DEALER, BUY OR SELL ANY SECURITY OR INSTRUMENT, OR ENGAGE IN ANY TRANSACTION. (d) Technical Problems. Customer understands that technical problems or other conditions may delay or prevent persons from entering or canceling an order or receiving information through TORS. Customer agrees LinnSoft shall not be liable for, and Customer will not hold or seek to hold LinnSoft liable for, any loss, cost, or damage (including trading losses or data losses) suffered or incurred by Customer or any Third Party arising out of (1) any use or reliance on TORS or its content or (2) any interruptions, failures (including access and security failures and unauthorized use or access by Third Parties), faults, or delays in or related to TORS or out of any errors, omissions, or inaccuracies in the information transmitted through TORS to or by any Person, however such interruptions, failures, faults, delays, errors, omissions, or inaccuracies arise, unless due to LinnSoft’s gross negligence or willful misconduct. LinnSoft DOES NOT WARRANT, REPRESENT, OR GUARANTY THAT (A) Customer OR BROKER WILL BE ABLE TO ACCESS OR USE TORS AT TIMES OR LOCATIONS OF THEIR CHOOSING, (B) LINNSOFT WILL HAVE ADEQUATE CAPACITY FOR TORS AS A WHOLE OR IN ANY GEOGRAPHIC LOCATION, OR (C) TORS OR ANY SOFTWARE RELATED THERETO IS VIRUS-FREE OR WILL PROVIDE UNINTERRUPTED AND ERROR FREE SERVICE. LINNSOFT RESERVES THE RIGHT TO SUSPEND SERVICE AND DENY ACCESS TO TORS WITHOUT PRIOR NOTICE DURING SCHEDULED OR UNSCHEDULED SYSTEM MAINTENANCE OR UPGRADING. FOR THE AVOIDANCE OF DOUBT, THE DISCLAIMERS AND LIMITATION OF LIABILITY IN SECTIONS 12 AND 13 APPLY TO TORS. (e) Access Termination. LinnSoft may terminate Customer’s access to TORS without notice for any reason, including but not limited to pursuant to a request from Broker, or due to Customer’s breach of this License, or a breach or termination of LinnSoft’s agreement with Broker or the applicable exchange. Customer understands that Broker also may have the right and ability to disable Customer’s access to TORS. (f) Property Rights. Any and all materials (including software) that LinnSoft provides to Customer in connection with TORS are the property of LinnSoft and are intended only for Customer’s use in connection with accessing TORS. Customer shall not copy, sell, or distribute such materials to others, nor permit access to TORS by any other Person. Customer shall not delete any copyright notices or other indications of protected intellectual property rights from such materials, including those that Customer prints or downloads from TORS.
- Export Regulation.
The Software and Documentation may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Software or Documentation to, or make the Software or Documentation accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software or Documentation available outside the US.
- US Government Rights.
The Software is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if Customer is the US Government or any contractor therefor, Customer shall receive only those rights with respect to the Software and Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government Customers and their contractors.
- Miscellaneous.
(a) All matters arising out of or relating to this License shall be governed by and construed in accordance with the internal laws of the State of Georgia without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or relating to this License or the transactions contemplated hereby shall be instituted in the federal courts of the United States of America or the courts of the State of Georgia in each case located in the County of Fulton, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such legal suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court. (b) LinnSoft will not be responsible or liable to Customer, or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning, or Customer equipment, loss and destruction of property, or any other circumstances or causes beyond LinnSoft’s reasonable control. (c) All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or email (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (iv) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. (d) This License, together with all other documents that are incorporated by reference herein, constitutes the sole and entire License between Customer and LinnSoft with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. (e) Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this License, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without LinnSoft’s prior written consent, which consent LinnSoft may give or withhold in its sole discretion. No delegation or other transfer will relieve Customer of any of its obligations or performance under this License. Any purported assignment, delegation, or transfer in violation of this Section 17(e) is void. LinnSoft may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this License without Customer’s consent. This License is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns. (f) This License is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit. (g) This License may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this License, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this License shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege. (h) If any term or provision of this License is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this License or invalidate or render unenforceable such term or provision in any other jurisdiction. (i) For purposes of this License, (a) the words “include,” “includes,” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this License as a whole. Unless the context otherwise requires, references herein: (x) to Sections, refer to the Sections of this License; (y) to an License, instrument, or other document means such License, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof, and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This License shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. (j) The headings in this License are for reference only and do not affect the interpretation of this License.
