TradersOnly Data Center Software License Agreement
This TradersOnly Data Center Software License Agreement (the "Agreement" or the "License Agreement") is a legal agreement between you ("Licensee" or "You") and TradersOnly.com, LLC, a Florida limited liability company, (referred to as "TradersOnly"). Carefully read this Agreement before installing the TradersOnly Data Center Software (hereinafter "TradersOnly Software") on your computer.
By clicking the "I accept the terms in the License Agreement" button when presented on the screen with the TradersOnly License Agreement, Licensee indicates its understanding and acceptance of the terms of this Agreement, is intending to create an electronic signature affirming its full understanding and agreement to be legally bound by all of the terms and conditions of this Agreement, agrees to execute this Agreement electronically and agrees that this Agreement is enforceable like any written agreement signed by Licensee, and is entering into a binding legal contract
TradersOnly Software electronically receives market exchange data for multiple markets throughout the world, and distributes the data to the Licensee's computer (hereinafter "Distributed Data"). The TradersOnly Software and Distributed Data and all related materials that are provided to You by TradersOnly under this Agreement by any means, including: (i) on a CD-ROM shipped by common carrier or the United States Postal Service, (ii) over the Internet, or (iii) by any other means of distribution are collectively referred to in this Agreement as the "Licensed Package", which Licensee agrees to license ("License").
YOU AGREE THAT TRADERSONLY AND THEIR SUCCESSORS, AFFILIATES AND ASSIGNS, AND EACH OF THEIR RESPECTIVE OFFICERS, MEMBERS, MANAGERS, DIRECTORS, EMPLOYEES, CONTRACTORS, INSURERS AND AGENTS (COLLECTIVELY, "ITS RELATED RELEASEES"), DO NOT PROMISE OR WARRANT THE ACCURACY, COMPLETENESS, OR CORRECTNESS OF THE LICENSED PACKAGE. TRADERSONLY AND ITS RELATED RELEASEES (HEREINAFTER COLLECTIVELY THE "RELEASEES") DO NOT PROMISE OR WARRANT THAT THE LICENSED PACKAGE WILL MEET YOUR REQUIREMENTS. THE LICENSED PACKAGE IS PROVIDED TO YOU "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OF IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL THE RELEASEES BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY CLAIM BY ANY THIRD PARTY, ANY LOSS OF DATA, ANY LOSS OF PROFITS, OR ANY LOST SAVINGS, ARISING OUT OF THE USE OF OR INABILITY TO USE THE LICENSED PACKAGE, EVEN IF TRADERSONLY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Under the terms of this Agreement TradersOnly will provide Licensee the rights to use the TradersOnly Software to download the Distributed Data for a fixed amount of time (hereinafter known as "Subscription Term") in exchange for a fee payment from the Licensee to TradersOnly (hereinafter "Subscription Fee").
This Agreement governs and relates to Licensee's License of the Licensed Package for Licensee's personal use on Licensee's single computer.
Licensee acknowledges that competing products and services are readily available and that Licensee is free to return the Licensed Package within the timeframe and under the conditions set forth in this Agreement. Therefore, Licensee waives any right to assert that this Agreement is an unconscionable, improper or illegal contract of adhesion.
1. Non-exclusive License. TradersOnly hereby grants to Licensee a non-exclusive, non-assignable and non-transferable limited License to use Licensed Package subject to the terms and conditions set forth in this Agreement and subject to the payment by Licensee to TradersOnly of the necessary fees as specified by TradersOnly.
2. Use of Product. Licensee's use of TradersOnly Software will be activated following the Licensee's acceptance of this Agreement and payment of the necessary Subscription Fees (hereinafter "Initial Receipt"). Licensee shall not modify, copy, duplicate, reproduce, rent, re-engineer, decompile, disassemble, or create derivative works based on the Licensed Package, license or sublicense the Distributed Data, or transfer or convey the Distributed Data or any rights in the Distributed Data to any other individual or entity without the prior written consent of TradersOnly. Licensee is permitted to make one copy of the TradersOnly Software and Distributed Data for backup or archival purposes. The TradersOnly Software will only be used on one computer owned by Licensee unless otherwise agreed to in writing by TradersOnly.
3. Restrictions on Use. Licensee shall not copy, reprint, reproduce, duplicate or modify any part of Licensed Package (electronically or otherwise) or assist any other party in doing so either during or after the term of this Agreement. Licensee agrees, during the term of this Agreement, not to create or attempt to create, by reverse engineering, reverse assembling, reverse compiling, decompiling or otherwise, source programs or materials that simulate or perform similar functions to those in Licensed Package or information made available to Licensee under this Agreement, or to enable or attempt to enable the Licensed Package without TradersOnly's permission and payment of prescribed fees to TradersOnly as it may specify. Licensee further agrees not to create derivative works based upon Licensed Package, or any part thereof, or allow or authorize others to do so. Licensee shall not rent, lease, or lend Licensed Package, provide commercial hosting services with Licensed Package or use Licensed Package in any form or by any means to provide trading advice or information to any third party for a fee, or post or distribute information based upon or derived from the output of the Licensed Package in any public or private forum including, but not limited to, print, the Internet, online chat, instant message, video, online forums, any form of newsletter (whether electronic or otherwise), radio or television, for any purpose, including any commercial venture or purpose in which the Licensee seeks to receive a fee for service. Licensee represents and warrants that Licensee will not participate in any commercial or business venture whatsoever, wherein the use of and reliance on Licensed Package is in any way a part of said commercial business venture. Notwithstanding all of the above, Licensee may make one copy of any software programs or data contained in Licensed Package for purposes of backup only and may only transfer such copy to one of Licensee's hard disks. Any such copy made must include the appropriate copyright notice as contained on the copy in TradersOnly Software originally provided to Licensee.
4. Restrictions on Disclosure. Licensee shall not, at any time, lease, license, transfer, publish, disseminate, or disclose Licensed Package or any part thereof or any output derived from the use of Licensed Package, in whole or in part, in any form or by any means (including, but not limited to, any form of newsletter whether electronic or printed, public trading forum or website) to any third party for financial gain, except to execute trades in Licensee's own brokerage account. Licensee shall not use Licensed Package or any part thereof on more than one computer at any time whether on a network or otherwise. If Licensee intends to use Licensed Package in the furtherance of Licensee's business enterprise or for any commercial business venture, Licensee shall not use Licensed Package without first agreeing to the Commercial Business Addendum to this Agreement and payment of the fees prescribed by TradersOnly for such use.
5. Exchange Restrictions on use of Data.
a) TERMS AND CONDITIONS OF USE OF S&P DOW JONES INDICES (THE "S&P INDICES") BY ACCESSING AND USING THE DATA RELATED TO THE INDICES PUBLISHED BY S&P DOW JONES INDICES LLC AND/OR ITS AFFILIATES INCLUDING, WITHOUT LIMITATION, THE INDEX VALUES, YOU ARE AGREEING TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS, INCLUDING ALL AMENDMENTS MADE AFTER JULY 2012 FOR THE S&P INDICIES LOCATED AT http://www.djindexes.com/mdsidx/downloads/crc/DJ_Indexes_Terms_Conditions.pdf. IF ANY OF THESE TERMS AND CONDITIONS ARE UNACCEPTABLE TO YOU, YOU MAY NOT ACCESS OR USE THE S&P INDICIES DATA.
6. Liability for Unauthorized Use or Disclosure. Licensee acknowledges that any unauthorized use or disclosure of Licensed Package will diminish the value of TradersOnly and will cause irreparable and continuing damage to TradersOnly for which an adequate legal remedy will not exist. Accordingly, Licensee stipulates that, if it breaches any of its covenants in this Agreement, TradersOnly will be entitled to an entry of a court order granting specific performance or injunctive relief, without requirement of a bond or proof of monetary damage or an inadequate remedy at law, in addition to all other remedies available at law or equity.
7. Title. Licensee acknowledges that all title to and ownership rights in Licensed Package and any part thereof, including, without limitation, all derivative works, customizations, enhancements, modifications, improvements, derivations or other changes thereto (herein collectively referred to as the "Licensed Package & All Derivations"), all Updates (as defined below), and all underlying patent, copyright, trade secret, trademark and other intellectual property rights, are owned and/or licensed by TradersOnly. Licensee shall not acquire any rights in Licensed Package & All Derivations, or any part thereof, or in any Update by virtue of this Agreement. TradersOnly shall retain all title to and rights in physical materials included in Licensed Package and licensed under this Agreement.
8. Disclaimer of Warranties. TRADERSONLY'S SOLE AND EXCLUSIVE WARRANTY IS THAT THE CD-ROM DISK, IF FURNISHED TO LICENSEE, IS FREE FROM DEFECTS IN MATERIALS AND WORKMANSHIP UNDER NORMAL USE FOR A PERIOD OF NINETY (90) DAYS FROM THE DATE OF INITIAL RECEIPT BY LICENSEE. IF, UNDER NORMAL USE, THE CD-ROM DISK(S) HAS SUCH A DEFECT WITHIN THE FIRST NINETY (90) DAYS FROM THE DATE OF INITIAL RECEIPT, LICENSEE IS ENTITLED TO REPLACEMENT OF THE DEFECTIVE DISK(S) IN ACCORDANCE WITH SECTION 8 OF THIS AGREEMENT. LICENSEE ACKNOWLEDGES THAT THE RELEASEES HAVE NOT REPRESENTED OR WARRANTED THAT THE USE OF, OR ACCESS TO, THE LICENSED PACKAGE (INCLUDING BUT NOT LIMITED TO THE DISTRIBUTED DATA) WILL BE UNINTERUPTED, ERROR FREE OR WITHOUT INACCURACIES OR DELAY DUE TO ANY NUMBER OF FACTORS INCLUDING WITHOUT LIMITATION NATURAL CATASTROPHIES; GOVERNMENTAL ACTS; POWER FAILURE, BREAKDOWNS OR FAILURE OF COMMUNICATIONS SYSTEMS OR THE INTERNET; PERIODIC SYSTEM MAINTENANCE, SCHEDULED OR UNSCHEDULED; TECHNICAL FAILURE OF THE LICENSED PACKAGE, TELECOMMUNICATIONS INFRASTRUCTURE, OR DELAY OR DISRUPTION ATTRIBUTABLE TO VIRUSES, DENIAL OF SERVICE ATTACKS, INCREASED OR FLUCTUATING DEMAND, AND ACTIONS OR OMISSIONS OF THIRD PARTIES. LICENSEE ACKNOWLEDGES THAT TRADERSONLY MAKES NO REPRESENTATIONS CONCERNING THE SUITABILITY OF LICENSED PACKAGE FOR USE BY LICENSEE, AND THAT LICENSEE SHOULD DETERMINE FOR HIMSELF OR ITSELF WHETHER, AND TO WHAT EXTENT, THE USE OF LICENSED PACKAGE IS SUITABLE FOR LICENSEE. LICENSEE FURTHER ACKNOWLEDGES AND UNDERSTANDS THAT THE RELEASEES MAKE NO CLAIMS, GUARANTEES, PROMISES OR WARRANTIES TO LICENSEE, EITHER EXPRESS OR IMPLIED, OF ANY NATURE WITH RESPECT TO LICENSED PACKAGE, OR ANY PART THEREOF; OR TO THE USE THEREOF OR AS TO THE RESULTS OR OUTPUT OF THE USE OF LICENSED PACKAGE; OR AS TO ANY CONDITION, QUALITY, COMPLETENESS PERFORMANCE, CORRECTNESS, ACCURACY, PROFITABILITY, TIMELINESS, OPERATION, OR RELIABILITY THEREOF; OR TO THE INTERACTION (OR FAILURE TO INTERACT PROPERLY) WITH ANY OTHER HARDWARE OR SOFTWARE WHETHER PROVIDED BY TRADERSONLY OR A THIRD PARTY AFFILIATE; OR AS TO THE MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO ANY PROPOSED USE BY LICENSEE. THE RELEASEES MAKE NO CLAIMS, GUARANTEES, PROMISES OR WARRANTIES TO LICENSEE WITH RESPECT TO ANY PROFITS FROM TRADING ON THE BASIS OF, OR IN RELIANCE ON, LICENSED PACKAGE OR THE USE THEREOF.
9. Damages. TradersOnly's entire and maximum liability shall be for replacement of any defective disk. THE RELEASEES SHALL NOT BE LIABLE FOR ANY DAMAGES OR CLAIMS ARISING OUT OF, RELATED TO, OR IN CONNECTION WITH, THE USE OR PERFORMANCE OF LICENSED PACKAGE, INCLUDING, BUT NOT LIMITED TO, SPECIAL, DIRECT, INCIDENTAL, LOST PROFITS, DIMINUTION IN VALUE, PROPERTY DAMAGE, CONSEQUENTIAL OR OTHER DAMAGES FOR ANY TYPE OF DAMAGE, INJURY OR LOSS, INVASION OR LOSS OF PRIVACY, OR FOR BREACH OF ANY DUTY (INCLUDING BUT NOT LIMITED TO ANY DUTY OF GOOD FAITH, NEGLIGENCE OR OF WORKMANLIKE EFFORT), HOWEVER CAUSED, OR UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PATENT INFRINGEMENT, TRADEMARK INFRINGEMENT, COPYRIGHT INFRINGEMENT, OR OTHERWISE AND REGARDLESS OF WHETHER EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THIS EXCLUSION SHALL APPLY DESPITE ANY DEFECT, ERROR, INCOMPLETENESS, INCORRECT SEQUENCING OF DATA, OMISSIONS OR INACCURACIES IN DISTRIBUTED DATA AND/OR TRADERSONLY SOFTWARE, DOCUMENTATION OR OTHER MATERIALS CONTAINED IN LICENSED PACKAGE OR IN ANY PRODUCT OR SERVICE FURNISHED TO LICENSEE BY TRADERSONLY IN CONNECTION THEREWITH, AND THIS EXCLUSION SHALL LIKEWISE APPLY EVEN IF TRADERSONLY HAS BEEN ADVISED OF THE EXISTENCE OR A POSSIBILITY OF ANY DEFECT, ERROR, INCOMPLETENESS, INCORRECT SEQUENCING OF DATA, OMISSIONS, INACCURACIES OR SUCH DAMAGES OR CLAIM. LICENSEE ACKNOWLEDGES THAT LICENSEE BEARS ALL RISK FROM ANY USE BY LICENSEE OF THE LICENSED PACKAGE AND THAT THE RELEASEES ARE NOT RESPONSIBLE FOR ANY DAMAGES OR LOSSES SUSTAINED BY LICENSEE, INCLUDING BUT NOT LIMITED TO ANY DAMAGES TO LICENSEE'S COMPUTER, SOFTWARE, INTERNET CONNECTION, TELEPHONE, DATA FILES OR OTHER PROPERTY RESULTING FROM LICENSEE'S USE OF LICENSED PACKAGE.
10. Updates. TradersOnly agrees, but is not obligated, to advise Licensee of any modifications, enhancements and updates to TradersOnly Software (herein referred to collectively as "Updates") as they are released by TradersOnly provided that Licensee has kept TradersOnly current with updated contact information including email address, mailing address, cell and daytime telephone number. Licensee agrees to put TradersOnly's email address into his email application whitelist to avoid having spam filters block emails sent by TradersOnly to Licensee. Upon payment of an update fee ("Update Subscription Fee") if any to TradersOnly, as TradersOnly may specify from time to time for such Updates, Licensee will be entitled to receive and use such Updates in accordance with Section 26 of this Agreement. If Licensee chooses not to pay for such Updates as they become available, Licensee will still be entitled to continue to use previous versions of TradersOnly Software that Licensee had paid for until such time as Licensee's Subscription Term expires. However, it is understood that such previous versions may no longer undergo any further modifications, improvements or enhancements by TradersOnly in its sole discretion. Upon receipt of any Updates, if requested by TradersOnly to do so, Licensee agrees immediately to return to TradersOnly all previous versions of TradersOnly Software then in his or its possession or to delete and remove them from Licensee's computer.
11. Mandatory On-Line Activation.
a) Licensee acknowledges that Licensee, at Licensee's sole expense, is responsible for and must provide all computer hardware, Internet connection, telephone and other equipment, and operating system software necessary to comply with the requirements needed for Initial Activation, Registration, and Reactivation of Licensee's License of TradersOnly Software and that such Initial Activation, Registration, and Reactivation are based on the exchange of information between Licensee's computer and TradersOnly through an Internet connection. Licensee acknowledges that there are technological measures in TradersOnly Software that are designed to prevent unlicensed or illegal use of TradersOnly Software, and that TradersOnly may use such measures, which may include installing them on Licensee's computer to verify Licensee's compliance with the terms of this Agreement. Licensee agrees to adhere to any requirements regarding such measures.
b) Licensee agrees that it will not take any action that imposes an unreasonable or disproportionately large load on TradersOnly's on-line activation infrastructure. If it is determined that Licensee took action with the malicious intent of disrupting, destroying, or overloading TradersOnly's on-line activation infrastructure, Licensee will be liable to TradersOnly for any and all available legal and equitable remedies. Such remedies would include but not be limited to reimbursing TradersOnly for all costs associated with returning the infrastructure to its normal operating level and reimbursing TradersOnly for any lost profits resulting from the disruption, destruction, or overload of its infrastructure.
12. Customer Support. TradersOnly agrees to provide Licensee with reasonable telephone support (hereinafter "Customer Support") of Licensed Package. TradersOnly can be contacted by Email at Support@TradersOnly.com or calling (813)-907-0688. Neither TradersOnly, nor its affiliates, in the performance of providing Customer Support provides or offers trading advice, strategies or systems of any kind. The sole purpose of support services is to assist Licensee in the use of the Licensed Package.
13. Exchanges, Status Changes, Reactivation and Deactivation. Licensee is entitled to deactivate TradersOnly Software from one computer and install and register it on another computer, at the then-prevailing prescribed fees set by TradersOnly. If Licensee fails to download Distributed Data using TradersOnly Software for fifteen (15) consecutive days TradersOnly may change the status of Licensee's License of TradersOnly Software to inactive ("Inactive") to protect the Licensee. Thereafter Licensee may request that TradersOnly reactivate the Licensee's License by contacting TradersOnly during its normal business hours Monday through Friday by Email at Support@TradersOnly.com or calling (813)-907-0688. Upon receiving a Reactivation request from Licensee, TradersOnly will change the Licensee's License to active ("Active") status unless the Subscription Term has expired or Licensee is in violation of this Agreement. Periods of Inactive status during a Subscription Term will NOT extend the Licensee's Subscription Term or entitle the Licensee to a partial or full refund of the Subscription Fee paid.
14. Speculative Nature. Licensee acknowledges and understands the speculative nature of the commodities futures and financial markets and recognizes the high degree of risk involved in participating in such markets, with or without the use of Licensed Package. Licensee acknowledges and understands that Licensed Package does not provide specific trade recommendations including buy and sell signals, and that Licensee bears the sole risk for all orders for trades placed by Licensee. Licensee also acknowledges that the Licensed Package is not intended to replace Licensee's individual research or receipt of professional investment advice, and that neither the Licensed Package nor the Customer Support related to the Licensee's use of the Licensed Package constitute the provision of trading advice or an endorsement or recommendation by TradersOnly of any trading methods, programs, systems, or routines, based on, or tailored to, any positions or other circumstances or characteristics of Licensee or anyone else, or otherwise. Licensee further acknowledges that individual performance in the financial markets depends upon numerous factors including individual skills and experience at performing technical analysis, knowledge of and familiarity with the markets, effectiveness of individual decision making and decisiveness, and time availability to devote to analyzing and trading the markets, among other factors. IT IS EXPRESSLY UNDERSTOOD THAT NEITHER THIS AGREEMENT, NOR ANY STATEMENT, REPRESENTATION, OR ASSERTION WITHIN THIS AGREEMENT OR ANY PROMOTIONAL MATERIALS LICENSEE HAS REVIEWED OR ANY OTHER ORAL OR WRITTEN STATEMENT OR REPRESENTATION MADE BY TRADERSONLY OR ITS AGENTS OR REPRESENTATIVES MAKES OR CONSTITUTES ANY GUARANTEE OF, OR REPRESENTATION RELATING TO, PERFORMANCE OF LICENSED PACKAGE, AND THAT TRADERSONLY ALSO MAKES NO GUARANATEE OF PERFORMANCE EITHER IN THIS AGREEMENT OR OTHERWISE. IT IS ALSO UNDERSTOOD THAT TRADERSONLY IS PROVIDING LICENSEE WITH A DATA ACCUMULATION AND DISTRIBUTION TOOL AND NOT A TRADING SYSTEM AND THAT THE RELEASEES MAKE NO REPRESENTATIONS OR GUARANTEES THAT LICENSEE WILL MAKE PROFITS AND/OR NOT SUFFER ANY LOSSES FROM TRADING BASED ON, OR IN RELIANCE ON, LICENSED PACKAGE OR THE USE THEREOF. LICENSEE ASSUMES FULL RESPONSIBILITY TO MAKE HIS OR ITS OWN TRADING DECISIONS INVOLVING ENTRIES, EXITS, AND STOP PLACEMENTS, BASED UPON HIS OR ITS OWN ASSESSMENT OF HIS OR ITS TRADING STYLE, OBJECTIVES, RISK PROPENSITY, RISK CAPITAL, EXPERTISE AND EXPERIENCE AS A TRADER ALL OF WHICH CAN INFLUENCE LICENSEE'S TRADING RESULTS SUCH THAT HIS OR ITS PERFORMANCE RESULTS MAY BE BETTER OR WORSE THAN THAT OF OTHER TRADERS INCLUDING THOSE WHO MAY ALSO BE USING LICENSED PACKAGE AT THE SAME TIME. UNDER NO CIRCUMSTANCES ARE THE RELEASEES RESPONSIBLE FOR LICENSEE'S TRADING RESULTS OR PERFORMANCE BASED UPON THE TRADING DECISIONS THAT LICENSEE MAKES.
15. Hold Harmless; Indemnification; Release; Covenant Not to Sue. Licensee acknowledges it is fully aware of the hazards and risks, including financial risks, associated with trading in commodity and financial futures, Forex, ETF and equities and the use of Licensed Package. In part consideration of the License granted herein, Licensee agrees to release, indemnify and hold harmless the Releasees, and waives with respect to each Releasee, and covenants not to sue any Releasee for, any and all liabilities, claims, demands, actions, causes of action, damages, losses and expenses (including, but not limited to, attorneys' fees and costs) of any nature whatsoever (collectively, the "Liabilities") arising out of or in connection with Licensee's use of Licensed Package or trading decisions and payment of any fees associated with the License, Updates or Customer Support. Such hold harmless, release, discharge, waiver and covenant not to sue shall include but not be limited to any Liabilities caused, in whole or in part, by the negligence (of any type) of any Releasee in connection with Licensed Package or the promotion or marketing thereof. However, such Liabilities shall not include TradersOnly's obligation, under Section 8 above, to replace a defective CD-ROM Disk.
16. Intended Use. It is agreed by the parties that commodity and financial futures, Forex, ETF and equities traders in the furtherance of their investment pursuits are the intended users of Licensed Package. Licensed Package is not designed for educational use or uses outside the commodity and financial futures, Forex, ETF and equities fields. Licensee hereby represents to TradersOnly that Licensee is aware of the risks associated with the commodity and financial futures, Forex, ETF and equities fields and any program of trading therein.
17. Export Restrictions. Licensee acknowledges that Licensed Package is subject to U.S. export jurisdiction. Licensee agrees to comply with all applicable international and national laws that apply to Licensed Package, including the U.S. Export Administration Regulations, as well as end-user, end-use, and destination restrictions issued by U.S. and other governments and shall pay all tariffs, duties and fees where applicable.
18. Governing Law, Jurisdiction, and Venue. This Agreement shall be governed, interpreted and construed in accordance with the decisional laws of the State of Florida. This choice of law provision is intended to operate to the exclusion of (a) any choice of law or other law or provision that would result in this Agreement or any disputes arising out of or related to this Agreement being resolved by the decisional laws of any other state or country and (b) any law or convention that would otherwise apply including, but not limited to, the United Nations Convention on Contracts for the International Sale of Goods. If awarded, the total of all damages due to Licensee shall be in accordance with Section 8 above. The parties hereby both knowingly, voluntarily, intentionally and irrevocably agree to waive any right to have any issue resolved by a jury and cede to the Court all matters of law and fact for resolution. Licensee and TradersOnly each agree that the exclusive venue for bringing and maintaining any action arising out of, related to, or in connection with this Agreement shall be in Hillsborough County, Florida or federal court for the Middle District of Florida, Tampa Division. Licensee and TradersOnly agree that, if Licensee brings any action or proceeding against TradersOnly in any other venue in violation of this forum selection clause and TradersOnly is the prevailing party on a motion to dismiss for improper venue or motion to transfer venue, TradersOnly will be immediately entitled to recover its costs and attorney's fees associated with such motion. Licensee hereby irrevocably consents to personal jurisdiction in the State of Florida and hereby waives any claim or defense that such venue is not convenient or proper, and consents to service of process by any means authorized by Florida law.
19. Subscription Term. This Agreement shall remain in effect until terminated by one or more of the following occurrences:
a) Licensee's Subscription Term expires without Renewal.
b) Breach by Licensee of any term or condition of this Agreement; provided that, except as set forth below, TradersOnly shall give Licensee written notice of such termination at the last known address of Licensee. If Licensee fails to cure such breach within ten (10) days after such notice, Licensee shall immediately cease all use of Licensed Package.
c) Without notice, upon breach by Licensee of any of the conditions set forth in Section 3 or Section 4 above.
Upon termination due to any occurrence enumerated in this Section 18, Licensee shall immediately return to TradersOnly the Licensed Package & All Derivations and all Updates in Licensee's possession, including all copies, documentation, and materials, without refund or credit and without prejudice to any other rights TradersOnly may have.
20. Refund. Licensed Package may be returned at Licensee's expense for a partial refund (excluding a $50.00 refund processing fee) provided that Licensee contacts TradersOnly by Email or telephone during its normal business hours within three (3) days of purchase to facilitate the deactivation of TradersOnly Software from Licensee's computer. TradersOnly may at its discretion request Licensee provide Refund request in writing by Email. A return must include all versions, parts, & All Derivations and all Updates of the Licensed Package then within the care, custody or control of Licensee, including the user documentation and related materials, as well as any promotional offers that were made available to Licensee. It is incumbent on Licensee to call TradersOnly at (813) 907-0688, Monday through Friday, 9:00 AM to 5:00 PM Eastern Standard Time, to deactivate TradersOnly Software from Licensee's computer.
21. Renewal. Licensee consents to having TradersOnly automatically Renew Licensee's Subscription Term. Each Subscription Term shall automatically renew for subsequent periods of the same length at the end of the initial Subscription Term and on the anniversary dates of each subsequent Subscription Term thereafter. TradersOnly will notify Licensee of approaching Renewal by Email between thirty (30) and sixty (60) days prior to the expiration of Licensee's Subscription Term. TradersOnly, approximately ten (10) days prior to the expiration of the initial or subsequent Subscription Term, will automatically charge Licensee's credit card for a renewed Subscription Term at the then current Subscription Fee. It is the responsibility of the Licensee to ensure that TradersOnly has a current and valid credit card on file. If at any time the credit card company declines a credit card transaction either for monthly or annual renewals, TradersOnly may in its sole discretion discontinue providing Distributed Data to Licensee without notification. Licensee agrees that TradersOnly will charge Licensee's credit card for renewals unless, at least fifteen (15) days prior to the end of the current Subscription Term,: (i) TradersOnly notifies Licensee by Email or in writing of TradersOnly's intent not to renew the Licensee's Subscription Term; (ii) Licensee notifies TradersOnly by Email at Support@TradersOnly.com or in writing of Licensee's intent not to renew the Licensee's Subscription Term, or (iii) Licensee logs into the TradersOnly.com website and changes Licensee's Account's Subscription Information to remove the current Subscription which will prevent it from being renewed
22. Successors. It is agreed that the benefits and the burdens of this Agreement shall inure to the benefit of and be binding upon TradersOnly, its successors and assigns, and Licensee, his or its successors, heirs, and personal representatives.
23. Attorney's Fees. In the event TradersOnly should be required to take legal action to enforce any of the provisions of this Agreement, TradersOnly may recover its reasonable Attorney's fees (up to and including any appellate proceedings) and costs from the Licensee whether or not litigation results. This Section shall be construed as an agreement, independent of any other provision in this Agreement, and the existence of any claim or cause of action on the part of Licensee against TradersOnly, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by TradersOnly of the provisions of this Section.
24. Construction. Section headings and pronouns are included solely for convenient reference and shall not control the meaning or the interpretation of any of the provisions of this Agreement.
25. Entire Agreement. The parties agree that this Agreement is the entire License Agreement between them governing the use of Licensed Package by the Licensee and supersedes any proposal or prior agreement, oral or written, or any other communications between them relating to the subject matter hereof.
26. Modifications. The parties agree that this Agreement cannot be changed by any oral statements, but only by a license agreement modification prepared by TradersOnly ("License Agreement Modification"). The Licensee must execute and return a License Agreement Modification and TradersOnly must receive the License Agreement Modification executed by Licensee, postmarked within ten (10) days from the date that TradersOnly sent the License Agreement Modification to Licensee. The License Agreement Modification shall become effective (the "Effective Date") upon receipt by TradersOnly. Licensee will be responsible for all fees, if any, for the processing of the License Agreement Modification.
Agreement Modification to Licensee. The License Agreement Modification shall become effective (the "Effective Date") upon receipt by TradersOnly. Licensee will be responsible for all fees, if any, for the processing of the License Agreement Modification.
27. Changes to Licensed Package. The parties agree that this Agreement shall govern and control all obligations of Licensee with respect to the current version of the Licensed Package licensed to the Licensee and that any updated and subsequent versions of the TradersOnly Software provided to the Licensee by TradersOnly in accordance with Section 9 of this Agreement shall be governed by the version of the License Agreement accepted by the Licensee when installing such updated and subsequent versions of TradersOnly Software on Licensee's single computer; provided, however, that, this version of the License Agreement shall control if the installation and/or use of such updated and subsequent versions of TradersOnly Software are not supported by consideration. Obligations of the Licensee with respect to the licensing of TradersOnly Software on a Licensee's second computer, shall be governed and controlled by the applicable License at the time the new TradersOnly Software is installed on the Licensee's second computer under a new License.
28. No Fraud or Reliance on TradersOnly Representations. Licensee further acknowledges and agrees that Licensee entered into this Agreement based solely upon the terms contained within this Agreement and without relying upon any oral or written inducements, statements or representations by TradersOnly or its agents or representatives that are not set forth in this Agreement.
29. Severability. If any provision of this Agreement is held for any reason to be unenforceable by a court of competent jurisdiction, the remainder of this Agreement will, nevertheless, remain in full force and effect in that jurisdiction.
30. Additional Acknowledgements. LICENSEE FURTHER ACKNOWLEDGES THAT LICENSEE HAS CAREFULLY READ THIS AGREEMENT, HAD SUFFICIENT OPPORTUNITY TO CONSULT WITH LEGAL COUNSEL OF LICENSEE'S CHOICE BEFORE ENTERING INTO THIS AGREEMENT AND/OR CONTINUING WITH THE INSTALLATION OF TRADERSONLY SOFTWARE , UNDERSTANDS LICENSEE'S RIGHTS AND OBLIGATIONS UNDER THE AGREEMENT, AND THAT THE INSTALLATION BY LICENSEE OF TRADERSONLY SOFTWARE ON THE LICENSEE'S COMPUTER IS AN ACCEPTANCE BY THE LICENSEE OF ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.