Advanced Time And Sales (ATAS) Software License Agreement
ESTERANEX DEVELOPMENT LTD (« VENDOR ») IS WILLING TO LICENSE THE SOFTWARE IDENTIFIED BELOW TO YOU IF YOU ACCEPT THE TERMS OF THIS AGREEMENT.
PLEASE READ THE AGREEMENT CAREFULLY. BY DOWNLOADING OR INSTALLING THE SOFTWARE, OR CLICKING THE “ACCEPT”, “I AGREE”, “YES” BUTTON OR BY OTHERWISE INDICATING YOUR ASSENT, YOU ACCEPT THE TERMS OF THE AGREEMENT.
IF YOU ARE NOT WILLING TO BE BOUND BY ALL THE TERMS OF THIS AGREEMENT, DO NOT DOWNLOAD OR INSTALL THE SOFTWARE, OR CLICK ON THE BUTTON THAT INDICATES THAT YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT.
If you are an individual, then you must be at least 18 years old or have attained the age of majority in the state, province or country where you live to enter into this Agreement. If you are accepting this Agreement on behalf of another person or a company or other legal entity, you represent and warrant that you have full authority to act for and to bind that person, company, or legal entity to these terms.
- “Software” means system and method for analyzing trade information, Advanced Time and Sales (ATAS)
- Software that you obtain from Vendor or its authorized reseller in binary form and all other machine readable materials that are included with such software or are provided for use with it, including (a) any upgrades, modified or subsequent versions, updates, or error corrections provided by Vendor and (b) any user manuals and other documentation provided by Vendor in electronic or online form.
- “Agreement” refers to this License Agreement.
- “Access Credentials” means the unique sequence of login name and password, which is provided to you by Vendor and is used by you to access the Software.
2. Trial period
Vendor may provide evaluation copy of the Software for you to assess the Software during the trial period. If the Software is provided for evaluation purposes it will only operate for a limited trial period of time (15 days).
There is no license fee for the trial period.
Pricing details and terms of the license are set out at Vendor’s webpage, which is currently located at http://orderflowtrading.net/pricing/ and are subject to change.
All fees payable to Vendor are due in advance. Except for the trial version, the Software shall not be delivered to you unless and until Vendor has received full, non-conditional payment of all applicable fees, including credit card or other payment verification, approval and clearance.
You are responsible for any applicable taxes, duties, bank or payment provider fees or surcharges that may occur regarding the transaction.
You agree to completely and accurately provide the required information upon checkout, and to be responsible for ensuring your billing information is current, complete, and accurate.
All payments for the Software are handled by third-party payment gateways. We are not responsible for the processing of payments and shall not be liable for any matter in connection therewith.
EU VAT. All prices at Vendor’s web page are exclusive of VAT.
If you are outside the EU no EU VAT will be added and charged.
If you are a business located in the EU country, VAT will not be added and charged in case you supply us with your valid VAT tax number prior to making a payment.
If you are an EU-based consumer (non-business user) or a business that has not supplied us with your VAT number, VAT will be added to the price of the license and charged using the rate of the EU country where you belong. Current VAT rates can be found here.
Refunds. You may terminate the use of the Software and contact Vendor for a refund of your payment during the fourteen (14) day period following your payment to Vendor. Your license will be terminated effective the day the refund is issued.
Otherwise all payments are final and all license or other fees are non-refundable.
4. Software Use. License Grant
Ownership. Vendor or its licensors own all right, title and interest, including all worldwide intellectual property rights in the Software and the trademarks, service marks and logos contained therein.
License Grant. Subject to the terms and conditions of this Agreement and provided you have paid the applicable license fee (except for the trial period), you are granted a non-exclusive, non-transferable, non-assignable, revocable license to do the following:
- Download the Software;
- Install and use copy(ies) of the Software on your computer(s).
You may install the Software to as many computers as you wish to the extent Software is available for and compatible with your devices, but you are limited to only one simultaneous login.
No right, title or interest is granted except as expressly stated in this Agreement.
The Software is licensed, not sold.
You shall comply with all applicable to you rules, laws, codes, and regulations related to trading, securities, investing, and otherwise, including but not limited to any reporting requirements to all applicable government and regulatory agencies and authorities.
Restrictions. You may not:
- Use or copy the Software or any data or information provided by, with or through the Software, in whole or in part, except as provided in subsection “License Grant” above;
- Reverse engineer, decompile or disassemble the Software;
- Adapt, alter, modify, translate, make any attempt to create derivative works from the Software;
- Defeat, bypass, disable or otherwise circumvent any license or copy management technology or software protection mechanisms in the Software;
- Attempt to access or use the features of the Software if you have not paid the applicable license fee (except for the trial period) or other than by using the Access Credentials;
- Remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Software;
- Redistribute, encumber, sell, rent, lease, sublicense, assign, or otherwise transfer the Software;
- Use the Software as part of a facility management, timesharing, service provider, software-as-a-service, display, perform, or publish or otherwise permit third parties to benefit from the use or functionality of the Software or any data or information provided by, with or through the Software;
- Use the Software in any manner not authorized by this Agreement.
Access and Security. You accept responsibility for the confidentiality and use of Access Credentials that you may receive for your access to and use of the Software. You accept responsibility for all time used and all activity that occurs through or under your Access Credentials. You agree to notify Vendor immediately if you become aware of any loss, theft or unauthorized use of your Access Credentials.
You may not convey, transfer or otherwise disseminate Access Credentials or their parts to any other person, entity or organization.
5. Third Party Software, Services and Information
The Software may be connected to or utilize software or software platforms developed by various third-party brokers, market data providers and/or software developers.
Various data and information available through or used in conjunction with the Software may be provided by third parties (e.g., data distribution, market data delivery and/or broker/trading providers/platforms connected to the Software).
Third parties may develop utilities indicators or other plug-ins that interact and/or work within the Software.
You recognize and acknowledge that:
- Use of any such third party software, services, plug-ins, applications components (“Third-Party Services”) and information will be governed by the applicable license agreements or terms of services, if any, with such third party. You shall abide by the terms of these agreements. VENDOR IS NOT RESPONSIBLE FOR PERFORMANCE AND/OR RELIABILITY OF ANY THIRD PARTY SERVICES AND WILL HAVE NO LIABILITY OF ANY KIND FOR YOUR USE OF SUCH THIRD PARTY SERVICES AND MAKES NO WARRANTY OF ANY KIND WITH RESPECT TO SUCH THIRD PARTY SERVICES.
- Vendor conducts no investigation or review of any of such Third-Party SERVICES, and does not recommend, endorse, approve or disapprove of any of them.
- Installation and use of indicators or other plug-ins are at your sole risk.
- The accuracy of any third-party information available through or used in conjunction with the Software should be checked before you rely on it.
- The accuracy, completeness, timeliness, results obtained from use, and correct sequencing of information of third-party services or from third-party sources made available through the Software are not and cannot be guaranteed by Vendor.
6. Updates and Support
At its discretion Vendor may make updates or upgrades available for the Software.
Support for the Software may consist of online FAQ, online documentation (user manual), Skype live chat and support over email. Support is available in English and in Russian. At Vendor’s discretion, it may make available support in other languages.
The support services will be provided only if the Software has been properly installed, updated to the latest version and used at all times and in accordance with the instructions for use and this Agreement; and/or no modification, alteration or addition has been made to the Software by anyone other than Vendor.
The support services are not offered for the trial period.
7. Promotional Materials
You grant Vendor the right to mention you as Vendor’s customer in promotional materials or at Vendor’s website. You can terminate this license at any time sending an email request to Vendor.
8. Your Feedback
If you choose to communicate to Vendor any feedback, ideas or suggestions for improvement of the Software, you grant Vendor free-of-charge, irrevocable, non-exclusive, transferable right to use, modify, share, distribute and communicate such feedback for any and all commercial or non-commercial purposes, without charge and free of any obligation of attribution. You warrant that any such feedback you communicated to Vendor is not subject to any license or any other third party right.
Disclaimer of Warranties. THE SOFTWARE IS PROVIDED « AS IS » AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED.
ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, ARE DISCLAIMED, EXCEPT TO THE EXTENT THAT THESE DISCLAIMERS ARE HELD TO BE LEGALLY INVALID. YOU ASSUME RESPONSIBILITY FOR SELECTING THE SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE SOFTWARE OR INFORMATION MADE AVAILABLE VIA THE SOFTWARE. WITHOUT LIMITING THE FOREGOING PROVISIONS, VENDOR MAKES NO WARRANTY THAT THE SOFTWARE WILL BE ERROR-FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES OR THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS.
Disclaimer Regarding Investment Decisions and Trading. Decisions to buy, sell, hold or trade in securities, derivatives, foreign currencies and other investments involve risk and are best made based on the advice of qualified financial professionals. Any trading in investments involves a risk of substantial losses. YOU AGREE THERE ARE RISKS INVOLVED IN IMPLEMENTING INVESTMENT STRATEGIES AND IN INVESTMENTS IN GENERAL.
The use of any trading system or strategy, including any system or strategy included as a sample in, or that is or was developed using, the Software or any data, information, products or services provided by or through the Software, does not and cannot guarantee that you will make profits, increase profits or minimize losses.
Any popular or other tools, strategies or systems included in the Software are intended merely as examples of technical ideas that can be incorporated into a personally-designed trading strategy or system. None is recommended. You must use your own judgment or consult a professional for advice on such matters.
Additionally, trading results based upon hypothetical or historically-tested trading strategies or systems do not necessarily compare to results of actual trading. No hypothetical or historical trading record can account for the level of risk present in actual trading. Numerous factors relating to market conditions, the existence or nonexistence of specific events or circumstances, human error, human/emotional reaction to losses during actual trading, inherent limitations of certain hypothetical or historically tested models, particularly ones that do not operate at the « tick » (as opposed to open, high, low, close) level, volume of trade and liquidity differences between hypothetical models and actual trades, and other supply/demand differences that may not be addressed by hypothetical models, and other conditions and circumstances, can account for these differences. There is no guarantee that your hypothetical trading results, even if tested against historical data, will produce comparable actual trading results. In fact, there are frequently sharp differences between hypothetical or historically tested performance results and the actual results subsequently achieved by any particular trading system or strategy. The possible reasons for this include the likelihood that no trading strategy or system can, even with automated trading, be precisely executed as designed. YOU AGREE THAT FUTURE RESULTS MAY NOT BE PROFITABLE OR EQUAL TO REPRESENTATIONS OF PAST PERFORMANCE; REAL, INDICATED OR IMPLIED.
The practice of « Day Trading » involves particularly high risks and can cause you to lose substantial sums of money. Before undertaking any trading program, you should consult a qualified financial professional. Please consider carefully whether such trading is suitable for you in light of your financial condition and ability to bear financial risks.
YOU ALONE ASSUME SOLE RESPONSIBILITY FOR ANY INVESTMENT DECISIONS YOU MAKE BASED ON THE SOFTWARE OR ANY DATA, INFORMATION, PRODUCTS OR SERVICES PROVIDED BY OR THROUGH THE SOFTWARE.
UNDER NO CIRCUMSTANCES SHALL VENDOR BE LIABLE FOR ANY LOSS OR DAMAGE YOU OR ANYONE ELSE INCURS AS A RESULT OF ANY TRADING OR INVESTMENT ACTIVITY THAT YOU OR ANYONE ELSE ENGAGES IN BASED ON ANY INFORMATION OR MATERIAL YOU RECEIVE THROUGH THE SOFTWARE OR AS A RESULT OF USE OF THE SOFTWARE.
No Advice or Solicitation. The Software is for informational purposes only. You acknowledge and agree that the Software is not intended to supply investment or financial advice. Vendor offers no advice regarding the nature, potential value, or suitability or any particular security, transaction, investment or investment strategy. You should not construe any data or information provided by Vendor as legal, tax, investment, financial or other advice.
Nothing in the Software is a solicitation to buy, sell or hold securities, futures or other investments or financial instruments
11. Limitation of Liability
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL VENDOR BE LIABLE FOR ANY LOST REVENUE, PROFIT OR DATA, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED REGARDLESS OF THE THEORY OF LIABILITY, ARISING OUT OF OR RELATED TO THE USE OF OR INABILITY TO USE SOFTWARE, EVEN IF VENDOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION AND IN NO EVENT WILL VENDOR’S CUMULATIVE LIABILITY TO YOU EXCEED AMOUNT OF FEES RECEIVED BY VENDOR FROM YOU.
Vendor shall not be liable for any loss resulting from a cause over which it does not have direct control, including but not limited to, the failure of electronic or mechanical equipment or communication lines, Internet, telephone or other interconnect problems, unauthorized access, theft, your errors, or events of force majeure.
You agree to indemnify and hold harmless Vendor, its affiliates, officers, directors, employees, agents and representatives from and against any and all claims, including, but not limited to, any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs, and attorney’s fees, of every kind and nature, arising from or relating to your use of the Software or the information made available through the Software, and/or your violation of this Agreement or any third party’s rights.
13. Injunctive Relief
You acknowledge and agree that, notwithstanding any other provisions of this Agreement, any breach or threatened breach of this Agreement by you will cause Vendor irreparable damage for which recovery of money damages would be inadequate and that Vendor therefore may obtain timely injunctive relief to protect its rights under this Agreement in addition to any and all other remedies available at law or in equity.
Vendor reserves the right, at its sole discretion:
- To modify or revise this Agreement at any time by posting the amended Agreement to its website.
- To make changes, update or discontinue the Software or any feature or functionality thereof at any time.
- To terminate or restrict access to the Software.
Your continued use of the Software after a change or update has been made will constitute your acceptance to the revised Agreement. If you do not agree with the modifications, please discontinue use of Software immediately.
15. Term and Termination
This Agreement shall commence upon first installation, download, copy, or use of the Software by you, whether the Software is provided as a trial copy, as a fully licensed version, or any other form.
Unless earlier terminated as set forth herein, this Agreement is effective for the term of license paid out by you.
You may terminate this Agreement at any time, for any reason or no reason.
Without limiting other remedies, Vendor may suspend or terminate this Agreement with you, or may terminate or suspend your use of the Software at any time if:
- You violate any term of this Agreement.
- You infringe proprietary rights, rights of privacy, or intellectual property rights of any person, business or organization.
- You engaged in other actions relating to or in the course of using the Software that may be illegal or cause liability, harm, abuse or disruption for you, other users, Vendor, any other third parties or for the Software.
- It is required by law.
- Vendor ceases offering or discontinued the Software.
Upon termination, all license grants end and you must destroy and permanently erase all copies of Software and cease all use.
Whatever the cause of termination is, you will not receive a refund for any license fees which you may have paid in advance (including fees for a lifetime license), except as provided at the subsection of this Agreement entitled “Refunds”.
Lifetime Licenses. If you purchase a lifetime (perpetual) license you pay a one-time license fee that allows continued use of the Software for as long as you comply with all terms of the Agreement and/or the Agreement is not terminated.
You acknowledge and agree that the Software or certain features of the Software may not be available, be updated or supported in perpetuity.
You will not be entitled to a refund of the lifetime license fee under any circumstances, except as provided at the subsection of this Agreement entitled “Refunds”.
Choice of Law. You agree that the laws of Cyprus govern this Agreement, its subject matter, any action related to this Agreement, and any claim or dispute that may arise, without regard to the conflict of laws rules, and that the United Nations Convention on Contracts for the International Sale of Goods shall have no applicability.
Location for Resolving Disputes. You further agree that any disputes or claims related to this Agreement will be resolved by a court located in Cyprus, and you agree and submit to the exercise of personal jurisdiction of such courts for the purpose of litigating any such claim or action. BY ENTERING THIS AGREEMENT, YOU ARE: (1) WAIVING CLAIMS THAT YOU MIGHT OTHERWISE HAVE AGAINST US BASED ON THE LAWS OF OTHER JURISDICTIONS, INCLUDING YOUR OWN; (2) IRREVOCABLY CONSENTING TO THE EXCLUSIVE JURISDICTION OF, AND VENUE IN, THE COURTS IN CYPRUS OVER ANY DISPUTES OR CLAIMS YOU HAVE WITH US; AND (3) SUBMITTING YOURSELF TO THE PERSONAL JURISDICTION OF SUCH COURTS FOR THE PURPOSE OF RESOLVING ANY SUCH DISPUTES OR CLAIMS.
Consent to Receive Communications in Electronic Form. For contractual purposes, you:
- Consent to receive communications from us in an electronic form via the email address you have submitted; and
- Agree that this Agreement and all other agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if it were in writing.
Severability. If any provision of this Agreement is held to be unenforceable, this Agreement will remain in effect with the provision omitted, unless omission would frustrate the intent of the parties, in which case this Agreement will immediately terminate.
Entire Agreement. This Agreement is the entire agreement between you and Vendor relating to its subject matter. It supersedes all prior or contemporaneous oral or written communications, proposals, representations and warranties and prevails over any conflicting or additional terms of any quote, order, acknowledgment, or other communication between the parties relating to its subject matter during the term of this Agreement.
Last updated: March 31, 2016