BY CLICKING THE ACCEPTANCE BUTTON OR USING THE SOFTWARE YOU ARE CONSENTING
TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO
NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, LICENSOR IS NOT WILLING
TO LICENSE THE SOFTWARE TO YOU, THE BUTTON INDICATING NON-ACCEPTANCE
MUST BE SELECTED, AND YOU MUST NOT USE THE SOFTWARE.
BY CLICKING THE ACCEPTANCE BUTTON AND/OR USING THIS SOFTWARE, YOU ACKNOWLEDGE
THAT YOU HAVE READ THIS LICENSE, THAT YOU UNDERSTAND IT, AND THAT YOU
AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
- GRANTS.
Markov Processes International LLC ("Licensor') grants
to the End User ("Licensee") a nonexclusive single-user license to
use the product known by the trade name "mpi Stylus.Web", a returns-based
investment style analysis tool (the "Software"). This Agreement permits
the use of the Software only by the Licensee registered by Licensor.
The license granted herein shall not be assigned or transferred to
nor shall it be sublicensed to any other party.
- DISTRIBUTION OF OUTPUT.
Licensee may employ the Software
to generate reports, charts, graphs, documents and other materials
("Output") for Licensee's internal use. Use of Output in published
research reports, presentations, speeches, and communications with
clients and their investment managers, is permitted as long as the
credit "Created with MPI Stylus" is included with the material. A
Client is a party or organization to which the Licensee is directly
and solely responsible for delivering investment advisory or consulting
services. No other party may make use of the Output for servicing
a Client of the Licensee or a client of the party without having entered
into a separate license agreement with the Licensor.
- TERM.
The term of this Agreement is one (1) year and shall
commence (a) upon its acceptance by the Licensee and (b) upon the
Notification of the Licensee by the Licensor by e-mail of the availability
of and the means by which the Software may be used by the Licensee
from the Licensor's web site. Licensee has the option to terminate
this Agreement within seven (7) days of its commencement and to receive
a full refund of the license fee, provided that written notice is
sent to the Licensor by U.S. Postal Service Express Mail or by private
courier on or before the seventh day. The term of this Agreement may
be renewed for additional successive one (1) year periods by Licensor
providing an invoice to Licensee, at least thirty (30) days prior
to the expiration of the then-current term, for the annual fee payable
for the subsequent renewal term. Licensee's payment of such invoice
shall constitute its acceptance of the renewal term. If Licensee does
not pay such invoice or otherwise accept such renewal, in writing,
prior to the expiration of the then current term, then this Agreement
shall expire at the end of that term. Should Licensor breach the terms
and conditions of this Agreement, Licensee may terminate this Agreement
and the license hereunder with ten (10) days prior notice to Licensor
and receive a pro-rata refund of any prepaid fees upon the return
or destruction of the Software as described above. Similarly, should
the Licensee breach the terms and conditions of this Agreement, Licensor
may terminate this Agreement and the license hereunder with ten (10)
days prior notice to Licensee. No refunds shall be provided if this
Agreement is terminated due to Licensee's breach.
- FEE.
Licensee agrees to pay Licensor an annual fee for the
license granted in Section 1. Licensee will not be granted any right
to use the Software or to renew such rights hereunder, until Licensor
has received the applicable payment relating to such license. Licensor
may change the annual license fee at its sole discretion on any one
(1) year anniversary date. All federal, state, municipal or other
governmental taxes now or hereafter imposed on the license (other
than taxes on the income of the Licensor) shall be paid by Licensee.
- MAINTENANCE, TRAINING AND SUPPORT.
Licensor will provide
Licensee with Software maintenance and support at no additional charge
to Licensee. Support will be rendered via e-mail, user forum on Licensor's
web site, and internet delivered training materials. Maintenance includes
updates and enhancements to the Software available during the term
of this Agreement and correction of all verifiable errors in the Software.
- TITLE.
(a) Ownership. Title to the original and any copies of the Software
is expressly retained by Licensor. Licensee has no ownership or other
proprietary rights in and to the Software. Rather, Licensee has a
license to use the Software, pursuant to the terms of this Agreement,
as long as this Agreement remains in full force and effect. Ownership
of the Software, documentation and all intellectual property rights
therein shall remain at all times with Licensor and/or any third parties
from which Licensor licenses any such rights. Any other use of the
Software by any person, business, corporation, government organization
or any other entity is strictly forbidden and is a violation of this
Agreement.
(b) Actions not Permitted. The license and right to use the Software
does not entitle the Licensee to publish, display, disclose, rent,
lease, modify, loan, distribute or create derivative works based on
the Software, or any part thereof. Licensee may not reverse engineer,
decompile, translate, adapt, or disassemble the Software, nor shall
Licensee attempt to create the source code from the object code for
the Software. The Software is supplied to Licensee by Licensor solely
in object code.
(c) Copyrights. The Software and documentation contain certain property
that is protected by United States Copyright Law and trade secret
law, and by international treaty provisions. Licensor is the owner
of or has obtained the rights to use all copyrighted materials contained
in the Software. All rights granted to Licensee herein are reserved
to Licensor.
(d) Trademarks. Licensee acknowledges Licensor's proprietary interest
in the trademark "MPI Stylus.Web" and all other trademarks and logos
used in connection with the Software. Licensee acknowledges that such
trademarks and any related goodwill are the property of Licensor and
Licensee agrees not to (and not to cause any third party to) infringe
upon or harm the rights of Licensor in its trademarks or to use similar
marks, works or symbols, except as expressly permitted under the terms
of this Agreement. Licensee may use the trademarks only in a manner
that is consistent with Licensor's ownership thereof. Licensee will
not seek or obtain trademark registration for any of Licensor's trademarks,
or product names, or any confusingly similar marks or names, without
Licensor's prior written consent, which may be withheld for any reason.
- WARRANTIES AND DISCLAIMER, LIMITATION OF LIABILITY.
EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT THE SOFTWARE AND DOCUMENTATION
ARE PROVIDED ON AN "AS IS" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND,
INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRRANTIES OF MERCHANTABILITY
OR FITNESS FOR ANY PARTICULAR PURPOSE. EXCEPT AS OTHERWISE PROVIDED
IN THIS AGREEMENT LICENSOR DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED
IN THE SOFTWARE WILL MEET ANY REQUIREMENTS OR NEEDS LICENSEE MAY HAVE,
OR THAT THE SOFTWARE WILL OPERATE ERROR FREE, OR IN AN UNINTERRUPTED
FASHION, OR THAT ANY DEFECTS OR ERRORS IN THE SOFTWARE WILL BE CORRECTED,
OR THAT THE SOFTWARE IS COMPATIBLE WITH ANY PARTICULAR PLATFORM. EXCEPT
AS OTHERWISE PROVIDED IN THIS AGREEMENT, LICENSOR IS NOT OBLIGATED
TO PROVIDE ANY UPDATES TO THE SOFTWARE.
IN NO EVENT WILL LICENSOR BE LIABLE TO LICENSEE OR ANY THIRD PARTY
FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION,
INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES FOR LOSS OF BUSINESS,
LOSS OF PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION)
ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, OR FOR
ANY CLAIM BY ANY OTHER PARTY, EVEN IF LICENSOR HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS OTHERWISE PROVIDED IN THIS
AGREEMENT LICENSOR'S LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER
THIS LICENSE OR OTHERWISE WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION
OR OTHERWISE SHALL NOT EXCEED THE AMOUNT OF THE FEES PAID BY LICENSEE
TO LICENSOR DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE
DATE OF SUCH LIABILITY.
- CONFIDENTIALITY.
For the duration of this Agreement and thereafter,
neither party will reveal, divulge or make known to any person, firm,
corporation or other business organization, and shall not directly
or indirectly use for its own benefit, or for the benefit of anyone
else, any secret or confidential information of the other party, including,
without limitation: any trade secrets; business plans; accounting
and financial information; customer information and lists; internal
business procedures; patents, trademarks, copyrights and other intellectual
property rights; and marketing information. Confidential information
shall not include any information which (a) is or becomes generally
available or known to the public, other than as a result of any disclosure
by the receiving party or its directors, officers, employees, agents,
representatives, partners, and affiliates (each, a "Representative")
in violation hereof; (b) is or becomes available to the receiving
party on a non-confidential basis from any source other than the disclosing
party or a Representative thereof, other than any such source that
the receiving party or any of its Representatives knows or should
know is prohibited by a legal, contractual, or fiduciary obligation
to the disclosing party from disclosing such information; or (c) is
independently developed by without any of the confidential information
of a disclosing party.
Licensee shall not provide or disclose the Software in any manner
to any other developer or vendor of software products.
Without intending to limit the remedies available to Licensor, Licensee
agrees that damages at law will be an insufficient remedy to Licensor
in the event that Licensee violates the terms of this Section 8, and
that Licensor may apply for and obtain immediate injunctive relief
in any court of competent jurisdiction to restrain the breach or threatened
breach of, or otherwise to specifically enforce, any of the agreements
and covenants contained herein.
The obligations of Licensee hereunder will survive the termination
of this Agreement.
- INDEMNIFICATION.
Licensee represents and warrants that (a)
he or she is not a minor and has the requisite authority to enter
into this License; and (b) he or she will not use the Software or
documentation in any manner other than as authorized pursuant to the
terms and conditions of this Agreement. Licensee shall indemnify and
hold harmless Licensor, its directors, officers, employees and agents
from and against any and all claims, demands, damages, losses, liabilities,
suits and expenses (including reasonable attorneys' fees) arising
out of or by reason of (i) any breach or alleged breach by Licensee
of any of his or her representations, warranties or agreements made
by him or her in this Agreement or (ii) any errors or omissions made
by Licensee in utilizing the Software and/or providing services to
Licensee's clients and other third parties.
- MISCELLANEOUS.
This Agreement shall be governed by the laws
of the State of New Jersey. This Agreement may not be altered or modified
except by written instrument duly executed by both parties. Each party
agrees that this Agreement is the complete and exclusive statement
between the parties which supersedes and merges all prior proposals,
understandings and other agreements, oral or written, between the
parties relating to this Agreement.
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