The following End-User License Agreement (“EULA”) constitute an agreement between you and Smart Trader, LLC, a Florida Limited Liability Company with a principal address of 3900 Millenia Blvd., Orlando, FL 32839, Market Traders Institute, Inc, a Florida Corporation and its affiliates, collectively referred to as (ST).
“Software" means all software programs distributed, published or otherwise made available by ST or its affiliates including, but not limited to mobile applications, downloadable/installable applications, browser-based applications, or applications based on other online communication method. Software also includes updates, upgrades, and any and all changes as well as accompanying manual, packaging, written instruments and other written, files, electronic or online materials or documentation, and any and all copies of such software and its materials.
“Services” means all services made available by ST, including but not limited to services accessed through mobile devices or apps, by means of a browser or by any other method now existing or as may exist in the future.
Software and Services are collectively referred to as “ST Services”.
YOUR USE OF THE SOFTWARE IS SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THIS EULA AND ALL DOCUMENTS INCORPORATED BY REFERENCE. THE SOFTWARE IS LICENSED, NOT SOLD.
BY INSTALLING, USING, OR ACCESSING THE ST SERVICES OR ANY MATERIALS RELATED TO THE ST SERVICES, YOU HEREBY ACCEPT THE TERMS OF THIS EULA.
If you do not accept the terms of this EULA, do not install, use, or access the ST Services.
SOFTWARE: Subject to this EULA, ST hereby grants you a non-exclusive, non-transferable, non-assignable, non-sublicensable, limited right to use the maximum number of copies under your subscription plan of the Software for your personal non-commercial use on a single computer, unless otherwise specified in the Software documentation and subject to your compliance with this EULA. You hereby acknowledge and agree that no title or ownership in the Software is being sold, assigned, or otherwise transferred and this EULA is not to be construed as a sale of any rights in the Software or any derivative works. All intellectual property derived from or in connection with the use of the Software shall be promptly assigned to ST where necessary or otherwise automatically licensed to ST with an irrevocable, royalty-free, worldwide, assignable, transferable, sublicensable, and otherwise unrestricted license with no additional fees due.
SERVICE: Subject to this EULA, ST hereby grants you a non-exclusive, non-transferable, non-sublicensable, limited right to use the Services as provided by ST, for your personal non-commercial use and only in accordance with this EULA. Any and all rights granted herein are subject to your compliance with this EULA. All intellectual property derived from or in connection with the use of the Services shall be promptly assigned to ST where necessary or otherwise automatically licensed to ST. with an irrevocable, royalty-free, worldwide, assignable, transferable, sublicensable, and otherwise unrestricted license with no additional fees due.
TERM: The term of your licenses under this EULA shall commence on the date that you accept this EULA or otherwise use the Software and/or Services and ends on the earlier date of either your cancellation of your use of the Software and/or Services, ST’s termination of your use of the Software and/or Services, or ST's termination of this EULA. Your license terminates immediately if you attempt to circumvent any protection measures used in connection with the Software and/or Services or you otherwise use the Software and/or Services in breach of the terms of this EULA.
OWNERSHIP: ST retains all right, title and interest in and to the ST Services, including, but not limited to, all copyrights, trademarks, trade secrets, trade names, proprietary rights, patents, titles, computer codes, audiovisual effects, tools, or any other content whether registered or not and all applications thereof. The ST Services are protected by applicable state, federal, local, or international law. Unless explicitly permitted by law in contravention of the terms of this EULA, ST Services may not be copied, reproduced or distributed in any manner or medium, in whole or in part, without prior written consent from ST.
NON-ST SERVICES: ST Services may include links to third party services and/or the third party services may be made available to you through ST Services. These services may include, but are not limited to sharing, social medial features, and communication services. These services are subject to respective third party terms and conditions. Please study these third party terms and conditions carefully as they constitute an agreement between you and the applicable third party service provider.
GENERAL: You agree not to: (i) commercially exploit the ST Services except as expressly permitted by ST in writing; (ii) distribute, license, sell, rent, or otherwise transfer or assign the ST Services, any copies thereof, or any passwords, usernames, or other security access tools of ST Services, without the express prior written consent of ST or as set forth in this EULA; (iii) make a copy of the ST Services or any part thereof, including but not limited to Software (other than as set forth herein); (iv) make the ST Services publicly available or available on a network for use or download by multiple users; (v) use or install the ST Services (or permit others to do same) on a network, for on-line use, or on more than one computer simultaneously, except as otherwise specifically provided by the ST Services or this EULA,; (vi) use or copy the ST Services at a computer center or any other location-based site; provided, that ST may offer you a separate license agreement in a separate written instrument which may expressly make ST Services available for commercial use; (vii) reverse engineer, decompile, disassemble, or otherwise modify the ST Services, in whole or in part; (viii) remove or modify any copyright, trademark or other notices, marks or labels contained on or within the ST Services, falsify or delete any author attributions, legal agreements and notices or other labels of the origin of the ST Services; (ix) misrepresent the source of ownership of the ST Services; (x) transport, export or re-export (directly or indirectly) into any country forbidden to receive such ST Services by any export laws or accompanying regulations or otherwise violate applicable laws or regulations; or (xi) scrape, build databases, or otherwise create permanent copies of content sourced from the ST Services except as expressly permitted by ST.
Specifically, but not exhaustively, the ST Services are for private, non-commercial use only.
The ST Services may include measures to control access to the ST Services, prevent unauthorized use, or otherwise attempt to prevent anyone from exceeding the rights as limited or granted under this EULA. Only ST Services licensed to a user with a valid license can be used to access online services and download updates and patches. You may not interfere with any access control measures or attempt to disable or circumvent such security features. If you disable or otherwise tamper with the any such protection measures, the ST Services may not function properly.
The ST Services may allow you to create content, including but not limited to charts, predictions, screenshots or videos of your trades, and reports on trade movement. In exchange for use of the ST Services, and to the extent that your contributions through use of the ST Services give rise to any copyright, design right, or any other intellectual property right you hereby grant ST an exclusive, royalty-free, perpetual, irrevocable, fully transferable, fully assignable, and sub-licensable worldwide right and license to use your contributions in any way and for any purpose including, but not limited to the rights to reproduce, copy, modify, display, transmit, or otherwise communicate to the public by any means whether now known or otherwise and distribute your contributions without any further notice or compensation to you of any kind for the whole duration of protection granted to such intellectual property rights by applicable laws and international conventions. If not expressly prohibited by applicable law, you hereby waive any moral rights or attribution with respect to ST's and others' use of such intellectual property in connection with the ST Services and related goods and services under applicable law. This grant to ST, and the above waiver of any applicable moral rights, survives any termination of this EULA.
The ST Services may require an internet connection to access the ST Services or its internet-based features or perform other functions. In order for certain features of the ST Services to operate properly, you may be required to have and maintain an adequate internet connection and/or a valid and active account with an online service as set forth in the documentation related to ST Services. If you do not maintain these accounts, then the ST Services or features of the ST Services may not operate or may cease to function properly, either in whole or in part. You may not use the Service to submit or link to any content which is defamatory, abusive, hateful, threatening, libelous, spam or spam-like, likely to offend, contains adult, nudity or objectionable content, contains personal information of others, or is racially, sexually, religiously, or otherwise objectionable or offensive, risks copyright infringement, encourages unlawful activity, or otherwise violates any laws. You may not use any third-party software designed to modify or interfere with the Service, unless expressly authorized herein. You may not use the Service to harm anyone, cause offence, harass any person, or disrupt the Service in a way that may negatively affect others' ability to fully use the Service.
NO WARRANTIES, LIMITATIONS ON LIABILITY: O THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE ST SERVICES ARE PROVIDED TO YOU “AS IS,” WITH ALL FAULTS, WITHOUT WARRANTY OF ANY KIND, WITHOUT PERFORMANCE ASSURANCES OR GUARANTEES OF ANY KIND, AND YOUR USE IS AT YOUR SOLE RISK. THE ENTIRE RISK OF SATISFACTORY QUALITY AND PERFORMANCE RESIDES WITH YOU. ST, ST’S LICENSORS, VENDORS, AND THIRD-PARTY AFFILIATES DO NOT MAKE, AND HEREBY DISCLAIM, ANY AND ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING IMPLIED WARRANTIES OF CONDITION, UNINTERRUPTED USE, ACCURACY OF DATA, MERCHANTABILITY, ATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD PARTY RIGHTS, AND WARRANTIES (IF ANY) ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. ST, ST’S LICENSORS AND AFFILIATES DO NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE; THAT THE ST SERVICES WILL MEET YOUR REQUIREMENTS; THAT OPERATION OF THE ST SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE ST SERVICES WILL BE COMPATIBLE WITH ANY OTHER ST SERVICES OR THAT ANY ERRORS IN THE ST SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN ADVICE PROVIDED BY ST, ST’S LICENSORS AND CHANNEL PARTNERS OR ANY AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS APPLY ONLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
IN NO EVENT WILL ST, ST’S AFFILIATES, ST’S LICENSORS OR AFFILIATES BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES RESULTING FROM POSSESSION, ACCESS, USE OR MALFUNCTION OF THE ST SERVICES, INCLUDING BUT NOT LIMITED TO, DAMAGES TO PROPERTY, LOSS OF GOODWILL, COMPUTER FAILURE OR MALFUNCTION AND, TO THE EXTENT PERMITTED BY LAW, DAMAGES FOR PERSONAL INJURIES, PROPERTY DAMAGE, LOST PROFITS OR PUNITIVE DAMAGES FROM ANY CAUSES OF ACTION ARISING OUT OF OR RELATED TO THIS EULA OR THE SOFTWARE, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT, STRICT LIABILITY OR OTHERWISE AND WHETHER OR NOT ST, ST’S LICENSORS OR AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THIS LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. THIS LIMITATION OF LIABILITY SHALL NOT BE APPLICABLE SOLELY TO THE EXTENT THAT ANY SPECIFIC PROVISION OF THIS LIMITATION OF LIABILITY IS PROHIBITED BY ANY FEDERAL, STATE, OR MUNICIPAL LAW, WHICH CANNOT BE PRE-EMPTED. THIS EULA GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
IN NO EVENT SHALL ST’S, ST’S AFFILIATES’, ST’S LICENSORS’ OR AFFILIATES’ LIABILITY FOR DAMAGES WHICH EXCEED THE LESSER OF THE ACTUAL PRICE PAID BY YOU FOR USE OF THE ST SERVICES OR TEN US DOLLARS ($10), EXCEPT AS REQUIRED BY APPLICABLE LAW.
TERMINATION: This EULA will terminate automatically if you fail to comply with any terms contained herein, or incorporated by reference. In such event, you must immediately destroy all copies of the Software and all of its component parts and cease and desist from accessing any ST Services.
EQUITABLE REMEDIES: You hereby agree that breach of the terms of this EULA shall cause ST to be irreparably damaged, and therefore you agree that ST shall be entitled to appropriate equitable remedies with respect to your breach of any of the terms of this EULA, in addition to any other available remedies.
GENERAL LEGAL TERMS: Indemnity.You agree to indemnify, defend and hold ST, its partners, affiliates, contractors, officers, directors, employees and agents harmless from and against any and all damages, losses and expenses arising directly or indirectly from: (i) your acts and omissions to act in using the ST Services pursuant to the terms of the EULA; or (ii) your breach of this EULA. Notice. Notice shall only be proper if delivered to compliance[@]smarttrader.com. Conflict. You shall immediately notify ST if any possible action or inaction could possibly jeopardize your ability to comply with this EULA or if any person or entity threatens or files a complaint, lawsuit, or allegation against you related to this EULA. Choice of Law. This EULA shall be exclusively governed and interpreted according to the laws of the State of Florida, USA without regard to its conflict of law provisions. Parties hereby agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply. Venue. This EULA shall be deemed as signed and/or agreed upon in Orange County, Florida. The exclusive venue for disputes arising from this EULA and the surrounding circumstances shall be the state and federal courts located in Orange County, Florida. Parties waive any defense related to such jurisdiction and hereby submit themselves to the jurisdiction of said courts. PARTIES KNOWINGLY AND VOLUTARILY WAIVE ANY ALL RIGHT TO A TRIAL BY JURY AND AGREE THAT ALL DISPUTES SHALL BE HEARD BY A JUDGE IN THE AFOREMENTIONED EXCLUSIVE JURISDICTION. Headings. The headings in this EULA are merely for convenience and shall convey no legal right, obligation, or other effect. Language. Any writing, services, products, notice, communication, or other instrument or discussion shall be conducted or provided in the English language. Severability. Should any provision of this EULA be held by a court of competent jurisdiction as unenforceable, then said provision shall be modified to most closely reflect the intent of the Parties. The remaining provisions shall remain enforceable. Cumulative. The rights and remedies under this EULA are not exclusive and election of one remedy does not preclude the remaining remedies. Entire Agreement.This EULA constitutes the whole agreement between you and ST and all promises, undertakings, representations, agreements, understandings and arrangements with reference to said services are merged into this EULA. Modification. ST reserves the right, in its sole discretion, to change, modify, add or remove portions of this EULA by posting the updated EULA on ST’s website. You will be deemed to have accepted such changes by continuing to use the ST Services. Interpretation. Ambiguity shall not be construed in favor of the non-drafting party. Assignment. You agree and hereby acknowledges that you may not assign or otherwise transfer any right, title, or obligation from any part of this EULA, and any such assignment shall be null and void. Waiver. No breach of any provision of this EULA shall be deemed to be waived unless expressly waived in a writing signed by ST Attorneys’ Fees.Attorneys’ Fees shall be borne by each party and neither party, prevailing or otherwise, shall be entitled to an award of attorneys’ fees.
YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST ST ONLY IN YOUR INDIVIDUAL CAPACITY ANDNOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASSOR REPRESENTATIVE PROCEEDING. YOU KNOWINGLY AND VOLUNTARILY WAIVE ANY RIGHTS TO A CLASS ACTION PROCEEDING IN ANY FORM OR FASHION.
IF YOU HAVE ANY QUESTIONS CONCERNING THIS AGREEMENT, YOU MAY CONTACT COMPLIANCE[@]SMARTTRADER.COM