END-USER LICENSE AGREEMENT
PLEASE READ THIS END-USER LICENSE AGREEMENT ("EULA") CAREFULLY BEFORE DOWNLOADING OR USING THE SOFTWARE.
Effective Date: 5/9/2017
This EULA is between you ("Customer" or "You"), Market Traders Institute, Inc. ("MTI”) for services provided to you through MTI’s websites, services, and softwares (“SOFTWARE”) including SmartTrader.com.
IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS EULA, DO NOT ACCESS THE PRODUCT.
1. SINGLE USER LICENSE GRANT
MTI, SmartTrader.com,and its suppliers grant to Customer ("Customer," "You") a nonexclusive, personal, nontransferable and revocable limited license to use the MTI or SmartTrader.com software ("Software") in object code form solely on a single central processing unit owned or leased by Customer.
EXCEPT AS EXPRESSLY AUTHORIZED BY MTI OR SMARTTRADER.COM, CUSTOMER SHALL NOT: COPY, IN WHOLE OR IN PART, SOFTWARE OR DOCUMENTATION; MODIFY THE SOFTWARE; REVERSE COMPILE OR REVERSE ASSEMBLE ALL OR ANY PORTION OF THE SOFTWARE; OR RENT, LEASE, DISTRIBUTE, SELL, OR CREATE DERIVATIVE WORKS OF THE SOFTWARE.2. OWNERSHIP; INTELLECTUAL PROPERTY; REDISTRIBUTION OF DATA
(i) Customer agrees that aspects of the licensed materials, including the specific design and structure of individual programs, are property of MTI and SmartTrader.com and are protected by copyrights, trademarks, service marks, international treaties, and/or other proprietary rights and laws of the United States and other countries. MTI owns all right, title and interest in and to the SmartTrader.com Software package, portions thereof and all subsequent copies thereof regardless of the form or media, and of the software and services provide through or in conjunction with the SmartTrader.com Software, including without limitation all Intellectual Property Rights. "Intellectual Property Rights" means any and all rights existing from time to time under patent law, copyright law, trade secret law, trademark law, unfair competition law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force or effect.
(ii) This EULA grants you no right, title or interest in any intellectual property owned or licensed by MTI, SmartTrader.com, or their affiliates, including (but not limited to) the MTI or SmartTrader.com Software or trademarks, and creates no direct relationship between you and MTI or SmartTrader.com other than that of licensor to licensee under this EULA. You agree to abide by all applicable laws and other laws, as well as any additional copyright notices or restrictions contained in this EULA and in the MTI or SmartTrader.com Software source files.
(iii) You agree that title to Software and documentation shall remain solely with MTI and SmartTrader.com. The Software is owned by MTI or an MTI supplier, and is copyrighted and licensed, not sold. Any rights not explicitly granted under this EULA are hereby reserved.
This EULA is effective until terminated.
MTI may terminate Customer’s license if Customer fails to comply with the terms of this EULA. If the EULA is terminated for any reason by either party, Customer agrees to promptly discontinue use of the Software. Any terms of this EULA that by their nature extend beyond termination of this EULA remain in effect until fulfilled, and apply to both parties’ respective successors and assignees.
This EULA will terminate immediately without notice from MTI or SmartTrader.com if Customer fails to comply with any provision of this EULA. Upon termination, MTI or SmartTrader.com may terminate any or all services rendered under this EULA at any time and for any reason.5. FIXED TERM LICENSES
If MTI or SmartTrader.com licenses the Software for a fixed term, Customer’s license is terminated at the end of the fixed term, unless Customer and MTI agree to renew it.6. LIMITATION OF LIABILITY
MTI AND SMARTTRADER.COM, ITS PROGRAM DEVELOPERS, OR ITS SUPPLIERS SHALL IN NO EVENT BE RESPONSIBLE OR LIABLE TO YOU OR ANY THIRD PARTY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY LOSS OR DAMAGE (INCLUDING LOSS OR DAMAGE INCURRED FROM THIRD PARTIES), ARISING OUT OF OR RELATED TO THE SOFTWARE OR ANY DATA ACCESSED THROUGH THE SOFTWARE. INCLUDING, BUT NOT LIMITED TO, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, DIRECT, INDIRECT OR CONSEQUENTIAL DAMAGES, DAMAGES FOR ANY LOSS OF PROFIT OR REVENUE, INJURY TO PERSON OR PROPERTY, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS OR PERSONAL INFORMATION, EVEN IF MTI, ITS PROGRAM DEVELOPERS OR ITS SUPPLIERS ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SUCH LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW. SOME JURISDICTIONS DO NOT ALLOW RESTRICTIONS ON IMPLIED WARRANTIES, SO SOME OF THESE LIMITATIONS MAY NOT APPLY TO YOU.
Customer is responsible for the results obtained from the use of the Software and website and uses it at his/her own risk.
Except as otherwise required by law, MTI and SmartTrader.com will not be liable to you or anyone else for any loss for any reason. This includes but not limited to human error, failure of electronic or mechanical equipment or communications lines (including telephone, cable and internet), unauthorized access, viruses, third party systems failure, theft, operator errors, severe or extraordinary weather (including flood, earthquake, or other act of God), fire, war, insurrection, terrorist act, riot, labor dispute and other labor problems, accident, emergency, periods of market volatility, peak demand, systems upgrades, maintenance ,or for other reasons or action of government.
If you live in a state, country, or jurisdiction that does not allow the limitation or exclusion of liability or incidental or consequential damages, do not use MTI’s software or services.7. EXCLUSION OF WARRANTIES
THE SOFTWARE AND ANY RELATED DATA OR SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE," WITH NO WARRANTIES WHATSOEVER. MTI AND SMARTTRADER.COM EXPRESSLY DISCLAIM TO THE FULLEST EXTENT PERMITTED BY LAW ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO AND WITHOUT LIMITATION, THE SECURITY, RELIABILITY, TIMELINESS, PERFORMANCE, ACCURACY, COMPLETENESS, OR ADEQUACY OF THE SOFTWARE OR ANY DATA ACCESSED THEREFROM, INCLUDING THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, SATISFACTORY QUALITY, QUIET PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. MTI AND SMARTTRADER.COM MAKE NO PROMISES, REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE, INCLUDING ITS CONDITION, ITS CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, OR THE EXISTENCE OF ANY LATENT OR PATENT DEFECTS. MTI DOES NOT REPRESENT THAT THE SOFTWARE OR ANY DATA ACCESSED THEREFROM IS APPROPRIATE OR AVAILABLE FOR USE OUTSIDE THE UNITED STATES. YOU EXPRESSLY ACKNOWLEDGE AND AGREE TO AT YOUR USE OF THE SOFTWARE IS AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS OF DATA THAT RESULTS FROM THE USE OF THE SOFTWARE AND ANY RELATED DATA OR SERVICE. THE ENTIRE RISK AS TO THE QUALITY, USE AND PERFORMANCE OF THE SOFTWARE IS WITH YOU. MTI AND SMARTTRADER.COM MAKE NO REPRESENTATION, WARRANTY OR GUARANTEE THAT THE SOFTWARE IS FREE OF INFECTION FROM ANY VIRUSES, WORMS, TROJAN HORSES, TRAP DOORS, BACK DOORS, EASTER EGGS, TIME BOMBS, CANCELBOTS OR OTHER CODE OR COMPUTER PROGRAMMING ROUTINES THAT CONTAIN CONTAMINATING OR DESTRUCTIVE PROPERTIES OR THAT ARE INTENDED TO DAMAGE, DETRIMENTALLY INTERFERE WITH, SURREPTITIOUSLY INTERCEPT OR EXPROPRIATE ANY SYSTEM, DATA OR PERSONAL INFORMATION.
MTI AND SMARTTRADER.COM DO NOT WARRANT THAT THE SOFTWARE WILL MEET YOUR NEEDS, OR THAT IT WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE. MTI AND SMARTTRADER.COM ALSO MAKE NO WARRANTY THAT THE RESULTS OBTAINED FROM THE USE OF THE SOFTWARE WILL BE ACCURATE OR RELIABLE, OR THAT THE QUALITY OF THE SOFTWARE, SERVICES, INFORMATION, OR OTHER MATERIAL OBTAINED BY YOU WILL MEET YOUR EXPECTATIONS. IN NO EVENT DOES MTI NOR SMARTTRADER.COM WARRANT THAT THE SOFTWARE IS ERROR FREE OR THAT CUSTOMER WILL BE ABLE TO OPERATE THE SOFTWARE WITHOUT PROBLEMS OR INTERRUPTIONS. CARELESS USE OF THE SOFTWARE MAY CAUSE THE SIGNIFICANT LOSS OF YOUR CAPITAL. PLEASE USE SOUND JUDGMENT WHEN OPERATING SOFTWARE WHETHER ON A DEMO ACCOUNT OR A LIVE ACCOUNT.8. THIRD PARTY DISCLOSURE
The Software may include third party code that MTI or SmartTrader.com, not the third party, licenses to Customer under this EULA.9. DISTRIBUTION
This information is not intended for distribution, or use by, any person in any country where such distribution or use would be contrary to local law or regulation. None of the services or investments referred to herein is available to persons residing in any country where the provision of such services or investments would be contrary to local law or regulation. It is your responsibility as the users of this information to ascertain the terms of and comply with any local law or regulation to which you are subject.10. REMEDIES FOR BREACH
It is understood and agreed by the parties that no amount of money would adequately compensate MTI or SmartTrader.com for damages which the parties acknowledge would be suffered as a result of a violation by the Customer of the covenants contained in this EULA, and that, therefore, MTI and/or SmartTrader.com shall be entitled, upon application to a court of competent jurisdiction, to obtain injunctive relief to enforce the provisions of this EULA, which injunctive relief shall be in addition to any other rights or remedies available to MTI and/or SmartTrader.com. If such a violation occurs, Customer shall be responsible for the payment of reasonable attorneys’ fees and other costs and expenses incurred by MTI and/or SmartTrader.com in enforcing the covenants contained in this EULA, whether incurred at or before the trial level or in any appellate or bankruptcy proceeding. The provisions of this Paragraph 10 shall survive the termination of this EULA.11. MEDIATION AND ARBITRATION
Any controversy between the parties to this EULA involving the construction or application of any of the terms, provisions, or conditions of this EULA, shall on written request of either party served on the other, be submitted first to mediation and then if still unresolved to binding arbitration. Said mediation or binding arbitration shall comply with and be governed by the provisions of the Laws of the State of Florida unless the Parties stipulate otherwise. The attorneys’ fees and costs of arbitration shall be borne by the losing party, as set forth in Paragraph 10, unless the Parties stipulate otherwise, or in such proportions as the arbitrator shall decide.12. INDEMNIFICATION
Customer agrees to indemnify MTI and SmartTrader.com and hold harmless from and against any and all lawsuits, damages, claims, actions or causes of actions caused to or suffered by MTI and/or SmartTrader.com, resulting from or arising out of, any negligence or misconduct on Customer’s part, or from any breach or default of this EULA which is caused or occasioned by the acts of Customer, including court costs and reasonable attorneys’ fees, paralegal fees and law clerk fees, whether incurred before or at the trial level or any appellate or equitable proceeding. The provisions of this Paragraph 11 shall survive the termination of this EULA.13. SEVERABILITY
If any provision of this EULA shall be declared invalid or unenforceable by a court of competent jurisdiction, the invalidity or unenforceability of such provision shall not affect the other provisions hereof, and this EULA shall be construed and enforced in all respects as if such invalid or unenforceable provision was omitted.14. ATTORNEYS’ FEES AND COSTS
In the event that it becomes necessary for either party to enforce the terms of this EULA, the prevailing party shall be entitled, in addition to such damages or other relief as may be granted, to recover reasonable attorneys’ fees and costs incurred by the prevailing party both before and during trial and in any appeal thereof, and shall also include such fees and costs incurred in connection with the mediation or arbitration of any such disputes as well as any such fees and costs incurred in connection with a proceeding in bankruptcy.15. ENTIRE AGREEMENT
This EULA constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior EULAs, understandings, negotiations and discussions, both written and oral, between the parties hereto with respect to such subject matter. The parties hereto have not relied on any statement, representation or warranty not expressly set forth herein.16. GOVERNING LAW/VENUE
This EULA shall be governed by and construed in accordance with the laws of the State of Florida without regard to principles of conflicts of laws. Venue for any legal proceeding or equitable action arising out of or construing this EULA shall lie in the State Courts of Orange County, Florida, or in the United States District Court for the Middle District of Florida, Orlando Division and the parties hereto specifically waive any other jurisdiction or venue.17. ASSIGNMENT
This EULA shall inure to the benefit of the parties, their respective legal representatives, successors and permitted assigns.18. FOREX RISK DISCLOSURE
Trading foreign exchange on margin carries a high level of risk, and may not be suitable for all investors. The high degree of leverage can work against you as well as for you. Before deciding to trade foreign exchange, you should carefully consider your investment objectives, level of experience, and risk appetite. The possibility exists that you could sustain a loss of some or all of your initial investment and therefore you should not invest money that you cannot afford to lose. You should be aware of all the risks associated with foreign exchange trading, and seek advice from an independent financial advisor if you have any doubts.19. LIMITATIONS ON PROFESSIONAL ADVICE AND INVESTMENT GUIDANCE
MTI and SmartTrader.com do not hold itself out to be a Commodity Trading Advisor ("CTA") or a Brokerage firm and as such this Software is not intended to provide investment advice. You are solely responsible for determining whether any investment, investment strategy, or related transaction is appropriate for you based on your personal investment objectives, financial circumstances and risk tolerance. You should consult a legal or tax professional regarding your specific situation.
Any opinions, news, research, analysis, prices, or other information contained within this Software or the accompanying promotional material is provided as general market commentary, and does not constitute investment advice or a solicitation to buy or sell any Forex contract or securities of any type. MTI and SmartTrader.com do not take into account the investment objectives, financial situation or particular needs of any individual investor. MTI and SmartTrader.com will not accept liability for any loss or damage, including without limitation to any loss of profit, which may arise directly or indirectly from use of or reliance on such information.
All information and material provided by MTI and/or SmartTrader.com is for educational purposes only and should not be considered specific investment advice. This content is subject to change at any time without notice, and is provided for the sole purpose of education and assistance for you to make independent investment decisions.
The information as presented is based on simulated trading using systems and education developed exclusively by MTI or SmartTrader.com. Simulated results do not represent actual trading. No representation is being made that any student will or is likely to achieve profits or losses similar to those shown. Past performance is not indicative of future results. Individual results vary and no representation is made that students will or are likely to achieve profits or incur losses comparable to those shown. Please note that simulated trading results may or may not have been back-tested for accuracy.20. HYPOTHETICAL RESULTS
HYPOTHETICAL PERFORMANCE RESULTS HAVE MANY INHERENT LIMITATIONS, SOME OF WHICH ARE DESCRIBED BELOW. NO REPRESENTATION IS BEING MADE THAT ANY ACCOUNT WILL OR IS LIKELY TO ACHIEVE PROFITS OR LOSSES SIMILAR TO THOSE SHOWN. IN FACT, THERE ARE FREQUENTLY SHARP DIFFERENCES BETWEEN HYPOTHETICAL PERFORMANCE RESULTS AND THE ACTUAL RESULTS SUBSEQUENTLY ACHIEVED BY ANY PARTICULAR TRADING PROGRAM.
ONE OF THE LIMITATIONS OF HYPOTHETICAL PERFORMANCE RESULTS IS THAT THEY ARE GENERALLY PREPARED WITH THE BENEFIT OF HINDSIGHT. IN ADDITION, HYPOTHETICAL TRADING DOES NOT INVOLVE FINANCIAL RISK, AND NO HYPOTHETICAL TRADING RECORD CAN COMPLETELY ACCOUNT FOR THE IMPACT OF FINANCIAL RISK IN ACTUAL TRADING. FOR EXAMPLE, THE ABILITY TO WITHSTAND LOSSES OR TO ADHERE TO A PARTICULAR TRADING PROGRAM IN SPITE OF TRADING LOSSES ARE MATERIAL POINTS WHICH CAN ALSO ADVERSELY AFFECT ACTUAL TRADING RESULTS. THERE ARE NUMEROUS OTHER FACTORS RELATED TO THE MARKETS IN GENERAL OR TO THE IMPLEMENTATION OF ANY SPECIFIC TRADING PROGRAM WHICH CANNOT BE FULLY ACCOUNTED FOR IN THE PREPARATION OF HYPOTHETICAL PERFORMANCE RESULTS AND ALL OF WHICH CAN ADVERSELY AFFECT ACTUAL TRADING RESULTS.
***Please be advised that spreads/commissions are not taken into account when preparing hypothetical results and/or alerts.21. PROPRIETARY INFORMATION
The Customer acknowledges and understands that MTI and SmartTrader.com has devoted a substantial amount of time and effort, and has incurred substantial costs, in developing its Proprietary Information. MTI’s and SmartTrader.com's Proprietary Information is not in the public domain and reasonable steps are continuously taken to ensure that this Proprietary Information remains secret. The term "Proprietary Information" shall mean trade secrets, confidential knowledge, data or any other proprietary information of MTI and/or SmartTrader.com.
This Proprietary Information is protected under the Uniform Trade Secrets Act of Florida (688 Fla. Stat.), copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. By way of illustration but not limitation, "Proprietary Information" includes trade secrets, inventions, ideas, patterns, processes, formulas, trading methods, source and object codes, data, programs, compilations, written training course materials, know-how, improvements, discoveries, publications, developments, education courses, designs and techniques, information regarding plans for research, development, new products, marketing and selling materials and methods, business plans, budgets and unpublished financial statements, licenses, methods of operations, prices and costs, business practices, customer sources and lists, and suppliers. MTI and SmartTrader.com derive economic value, both actual and potential, from not having its Proprietary Information generally known or ascertainable by other persons who can obtain economic value from its unauthorized disclosure or use. Such Proprietary Information may not be used, reproduced, or disclosed to any other parties for any other purpose without the expressed written permission of MTI and/or SmartTrader.com. Specifically, the undersigned Student agrees that he/she shall not for any reason, at any time, without the written consent of MTI and/or SmartTrader.com, disclose to any person or entity any of MTI’s or SmartTrader.com's Proprietary Information.22. ELECTRONIC COMMUNICATIONS
You agree and consent to receive electronically all communications, agreements, documents, notices and disclosures (collectively, "Communications") that MTI and/or SmartTrader.com provide in connection with your License and your use of their services. Communications include but are not limited to:
- agreements and policies you agree to, including updates to these agreements or policies;
- annual disclosures; and
- any other information pertaining to MTI’s or SmartTrader's relationship with you.
MTI and SmartTrader.com are not, and make no representation of being a Brokerage firm. MTI and SmartTrader.com will never be the custodian of client assets or the counterparty to your transaction. All trading is done between the user and the users brokerage firm directly. MTI and SmartTrader.com only provides a platform to potential enhance the user’s analysis of the markets. MTI and SmartTrader.com takes no responsibility to gains or losses if a user links their trading accounts to the software. Delays in execution may occur using MTI’s or SmartTrader.com's Software for various reasons, such as technical issues with the trader's internet connection. Due to inherent volatility in the markets, it is imperative that traders have a working and reliable internet connection. There are circumstances when the trader's personal internet connection may not be maintaining a constant connection with the servers due to a lack of signal strength from a wireless or dialup connection. A disturbance in the connection path can sometimes interrupt the signal, causing delays in the transmission of data between the software and the user’s broker server. There are risks associated with utilizing an internet-based deal-execution trading system including, but not limited to, the failure of hardware, software, and internet connection, and MTI and SmartTrader.com take no responsibility for any potential losses.24. CONSENT TO COLLECT AND USE OF DATA
You agree that MTI and SmartTrader.com may collect, use, store and transmit technical and related information that identifies you and/or your computer (including the Internet Protocol Address), operating system, Application usage (including but not limited to successful installation and/or removal), software, software usage and peripheral hardware, trading account details and activities (including but not limited to balance, equity, open position, and/or closed positions), that may be gathered periodically and/or real-time to facilitate the provision of software updates, dynamically served content, product support and other services to you, including online services. MTI and SmartTrader.com may also use this information combined with personal information for marketing purposes and to improve our products and services. We may also share that data with our third party service providers. IF YOU DO NOT WANT MTI OR SMARTTRADER.COM TO COLLECT, USE, STORE, TRANSMIT OR DISPLAY THE DATA DESCRIBED IN THIS SECTION, PLEASE DO NOT USE MTI’S OR SMARTTRADER.COM'S SOFTWARE OR SERVICES.25. COOKIES
Each time your visit our website our servers automatically record your activity and information such as your IP address and/or the domain from which you are visiting. We also record which links on our webpage you click on or visit and any search terms you use. We use this data for website maintenance and technical administration.
I HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS AS SET FORTH IN THIS END USER LICENSE AGREEMENT.