IMPORTANT-READ CAREFULLY. This End User License Agreement ("Agreement") is a legal agreement between you (either an individual or a single entity) (“you”) and Trading Technologies International, Inc., a Delaware corporation with its principal place of business at 222 South Riverside Plaza, Chicago, Illinois, Suite 1100, Chicago, Illinois 60606 ("TT") for the use of X_TRADER® API, FIX Adapter, X_TRADER®, TT SIM Gateway, TT Trainer™ and associated media, printed materials, and any "online" or electronic documentation you may install by accessing this website ("http://devnet.tradingtechnologies.com") or as authorized in writing by TT (collectively, the "Software"). The parties agree (i) that the individual executing this Agreement is authorized to bind the party he or she represents; and (ii) to be bound by the terms of this Agreement.
The Software is protected by United States copyright laws and international copyright treaties, as well as other intellectual property laws, treaties and other laws. The Software is licensed, not sold, to you. The Software and your ability to use the Software are subject to the terms and conditions stated herein.
In the event TT and you have a separate written agreement that licenses to you the Software, which has been accepted in writing by an authorized executive of TT and which conflicts with the terms below, such conflicting terms of the separate written agreement shall prevail.
1. DEFINITIONS. For purposes of this Agreement, the following terms are defined as set forth below (certain terms are also defined above and elsewhere within the Agreement):
"Add-On" means software developed by you or your agents and contractors on behalf of you and any modifications or derivatives of such software that utilizes the Software, or any portion thereof, to supplement or enhance the functionality of TT’s trading software.
"Conformance Testing" means the procedure(s) and test(s) designed by TT, as described in Section 5 below.
"Effective Date" means the date when you first assent to the terms of this Agreement or otherwise accessing, using or installing the Software (or any portion thereof).
"End User" means a Person authorized by TT to use TT’s Front End software.
"Exchange" means any exchange or market that you have the authority, as granted by such Exchange, to access, electronically or otherwise, to view or use such Exchange’s software, services and market data.
"FIX" or "Financial Information eXchange" means a public-domain specification owned and maintained by FIX Protocol, Ltd.
"FIX Adapter" means programming interface software designed to facilitate the use of FIX protocol software with other software developed by TT and licensed under separate agreements for the purpose of receiving fill and order data and establishing connectivity to TT Software. FIX Adapter shall be considered TT Software, subject to the applicable restrictions set forth herein.
"FIX Protocol" means a messaging standard developed for the real-time electronic exchange of securities transactions. FIX Protocol is a public-domain specification developed, owned and maintained by a third party.
"Front End" means graphical user interface generated by software for the purpose of viewing trade data and entering orders.
"License" means the license to use or access the Software as set forth herein.
"Object Code" means software expressed in a machine-level language intended to be executed by a digital processor and is generally unintelligible to humans.
"Person" means an individual, partnership, corporation, limited liability company, trust, joint venture, joint stock company, association, unincorporated organization, government agency or political subdivision thereof, or other entity.
"Software" is defined in the Recitals above.
2. GRANT OF LICENSE. Subject to the terms and conditions herein, you are granted a non-exclusive and non-transferable right to download and use the Software (in Object Code form only) solely for the purpose of development and use of Add-Ons. You may use the Software only during the term of the Agreement.
No other right to the Software is granted to you.
3. LICENSE LIMITATIONS. In connection with the License granted to you pursuant to Section 2 hereof, you agree to the following:
3.1 You may use the Software only to develop, test and use Add-Ons and you may not license, sell, distribute, lease or otherwise transfer in any way such Add-Ons to any third party unless each Add-On has passed TT’s Conformance Testing, which shall be determined in TT’s sole discretion.
3.2 After passing TT’s Conformance Testing, you may use the Software and any Add-On only on Exchanges to which the Software provides direct electronic access or as otherwise authorized in writing by TT.
3.3 You may not resell, rent, lease, lend or otherwise transfer, any portion of the Software.
3.4 You may not reverse engineer, decompile, or disassemble any portion of the Software or create any derivative products thereof.
3.5 You may not make any copies of any portion of the Software, except for one copy for backup or archival purposes.
3.6 Each Software product is licensed as a single product. Its component parts may not be separated for use on more than one computer.
3.7 Notwithstanding anything herein to the contrary, TT is not obligated to provide you with any support services related to the Software (including but not limited to any telephone assistance, upgrades or enhancements); however, in the event that TT provides you, either directly or indirectly, with any supplemental software code to the Software or additional media or printed materials, such supplemental code, additional media or printed materials shall be considered part of the Software and subject to the terms and conditions of this Agreement.
3.8 You may not transfer any right under this Agreement.
3.9 You shall only use the Software in accordance with its then current documentation.
3.10 You understand and acknowledge that TT may change or alter the Software and its functionality at any time without prior notice; provided however if such changes or alterations will require the Add-Ons to be re-submitted for Conformance Testing, as described in Section 5, TT will use its reasonable efforts to provide you with prior notice of such changes.
4. DEVELOPMENT SUPPORT.
4.1 TT may, in its discretion, provide development support to you or your agents and contractors to aid in your development of Add-Ons.
4.2 You must follow TT’s procedures related to development support as such may be amended and changed from time to time, including without limitation, utilizing on-line forums to communicate with support personnel (rather than phones, e-mail or other personal consultation).
4.3 You understand, acknowledge and agree that TT may, at its sole discretion, expand, discontinue or otherwise change the terms of any features or benefits related to development support and any terms and conditions related to development support.
5. TT CONFORMANCE TESTING
5.1 Prior to being permitted to utilize the Software with any Add-On, You must complete TT’s Conformance Testing process, which is designed to safeguard the integrity of TT’s software by verifying that (a) you demonstrate an appropriate level of technical and operational readiness to participate with TT’s software; and (b) each Add-On conforms to a series of criteria to ensure it will not cause degradation of the TT Software or in any way hinder your ability to execute trades. You shall undertake the testing process designed by TT and communicated to you from time to time. If TT determines, in its sole discretion, that you have not met all of these TT Conformance Testing requirements, TT will so notify you and you will then be provided a subsequent opportunity to undertake TT Conformance Testing during the time period specified by TT.
5.2 In the event any Add-On which has passed the TT Conformance Testing process is materially modified, you must, prior to releasing such Add-On to any of your customers: (a) notify TT in writing of such modification, and (b) undertake TT Conformance Testing of the modified Add-On.
5.3 Each Add-On may be subject to further TT Conformance Testing periodically throughout the term of the Agreement which may result in you being required to alter Add-On(s). TT, in TT’s sole discretion, will notify you if further TT Conformance Testing is necessary. Reasons for further TT Conformance Testing include, without limitation, changes, fixes or updates to: the Software, TT’s other software or Exchange software.
5.4 You understand, acknowledge and agree that TT may, at its sole discretion, expand, discontinue or otherwise change the terms of any features or benefits of the Conformance Testing and any terms and conditions that govern the Conformance Testing.
6. LICENSE FEES
6.1 Software shall be free of charge during the time that you are developing, testing or maintaining Add-On(s) and are using the Software only in a simulated trading environment that does not allow for live trading for a profit or loss. Thereafter, you shall pay TT’s standard license fees for the software licensed hereunder.
6.2 Each invoice shall be paid in accordance with the terms of the invoice.
7. TERMINATION OF LICENSE.
7.1 This Agreement shall be effective as of the Effective Date and shall continue in effect until it is terminated pursuant to Section 7.2
7.2. The parties shall have the following rights to terminate this Agreement:
7.2.1 Termination for a Material Breach. If either party materially breaches any material provision of this Agreement and fails to completely cure that breach within thirty (30) calendar days after receiving written notice of such, the non-breaching party may terminate this Agreement.
7.2.2 Termination for Convenience. Either party may otherwise terminate this Agreement without cause at its convenience upon sixty (60) days prior written notice.
7.2.3 Termination Because of a Change in Law. TT may terminate this Agreement immediately if necessary to comply with any applicable law, federal or state regulation, or any court order that materially impairs TT’s ability to provide the licenses or services described in this Agreement.
7.3 Upon termination of this Agreement, the license granted in Section 2 shall immediately terminate. You must immediately cease all use of the Software and destroy or return to TT all copies of the Software and all of its component parts. You shall certify, in writing and at no charge to TT, that all of the Software has been destroyed or returned to TT and that no portion of the Software remains in your possession or control.
8. OWNERSHIP OF THE SOFTWARE. You acknowledge and agree that all right, title and interest in the Software is owned by TT. Other than the licenses granted in Sections 2 and 3, no right, title or interest in or to the Software is transferred to you, and you shall not make any claim of any ownership in the patents, copyrights or other intellectual property or proprietary rights in the Software.
9. DISCLAIMER OF WARRANTIES. THE SOFTWARE IS PROVIDED "AS IS" AND "AS-AVAILABLE" WITHOUT WARRANTIES OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TT DISCLAIMS ALL WARRANTIES CONCERNING THE SOFTWARE AND ANY SERVICES PROVIDED BY TT, EXPRESS AND IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, QUALITY OF INFORMATION, TITLE, AND NON-INFRINGEMENT. TT DOES NOT WARRANT THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS, OR THAT OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. YOU AGREE AND ACKNOWLEDGE THAT USE OF SOFTWARE IS AT YOUR SOLE RISK. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY TT SHALL CREATE ANY WARRANTIES OR IN ANY WAY INCREASE THE SCOPE OF TT’S OBLIGATIONS HEREUNDER. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT MAY VARY FROM STATE TO STATE.
YOU AGREE THAT (I) THE SOFTWARE IS NOT INTENDED TO REPLACE YOUR PROFESSIONAL SKILL AND JUDGMENT; AND (II) THE SOFTWARE DOES NOT AND IS NOT INTENDED TO SUPPLY TAX, INVESTMENT, OR LEGAL ADVICE.
TO THE EXTENT YOU UTILIZE AN ADD-ON, DIRECTLY OR INDIRECTLY, WITH ANY TT SOFTWARE, WHETHER LICENSED HEREIN OR THROUGH ANOTHER AGREEMENT, TT DISCLAIMS ANY OBLIGATION THAT MAY EXIST UNDER THE AGREEMENT OR OTHERWISE TO PROVIDE SOFTWARE SUPPORT OR ANY OTHER SUPPORT SERVICES FOR THE TT SOFTWARE UTILIZED DIRECTLY OR INDIRECTLY WITH SUCH ADD-ON.
10. LIMITATION OF LIABILITY.
10.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY, its OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, SUPPLIERS, AND LICENSORS OR THEIR AFFILIATES BE LIABLE FOR ANY SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT EVEN IF TT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EITHER PARTY, IT’S OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, SUPPLIERS, AND LICENSORS OR THEIR AFFILIATES CUMULATIVE LIABILITY TO YOU UNDER THIS AGREEMENT EXCEED TEN THOUSAND DOLLARS ($10,000.00).
10.2 Where the liability of TT (including, without limitation, any liability of its officers, employees, agents, representatives, suppliers, and licensors) has been excluded or restricted hereunder, You shall not bring any claim against any officers, employees, agents, representatives, suppliers, or licensors of TT or join such officers, employees, agents, representatives, suppliers, or licensors in any claim against TT.
10.3 Notwithstanding the foregoing, no limitation or exclusion of either party’s liability shall apply with respect to any claims based on (a) malicious or criminal acts, gross negligence or willful misconduct, (b) personal injury or property damage, (c) breach of confidentiality as set forth herein or (d) Customer’s obligations under Sections 2, 3, 5 and 11.3.
11. YOUR OBLIGATIONS.
11.1 You will be responsible for preserving and making adequate backups of your data and will not rely on TT or its directors, officers, employees, agents, affiliates, licensors or suppliers to preserve or make adequate backups of data used in connection with the Software or to maintain a record of your usage of any part or all of the Software. TT expressly disclaims, and you acknowledge and agree that TT and its directors, officers, employees, agents, affiliates, licensors and suppliers shall not have any responsibility for maintenance of your books and records, as may be required under Applicable Law, as defined below. You shall be solely responsible for your compliance with all applicable foreign, federal, state and local laws, rules and regulations, and the rules and regulations of any self-regulatory organization of which you are a member (collectively, "Applicable Law") in your use of the Software. As a result of the foregoing, you hereby waive any
and all claims that you may have against TT or any of the foregoing parties arising out of the foregoing. If, after passing Conformance Testing, you elect to license or distribute an Add-On to any third party, you shall have a written agreement with the third party that, at minimum, absolves TT of all liability.
11.2 EXPORT LAW ASSURANCES. You expressly acknowledge that you shall comply with all Applicable Laws which may impose any restriction upon the import or export of the Software or the dissemination of information about any of the Software, including without limitation any such laws, regulations or other restrictions which may be imposed following the execution hereof. Without limiting the generality of the foregoing, you covenant and agree that you shall not import or export, either directly or indirectly, any Software or information pertaining thereto without the prior written approval of TT.
11.3 INDEMNIFICATION. You shall indemnify, defend and hold TT, and its affiliates, members, directors, officers, employees, representatives, agents, subcontractors, licensors, successors and assigns (each an "Indemnified Party") harmless from and against any and all claims of third parties, and shall pay all damages, costs and expenses, including attorneys’ fees, as incurred by the Indemnified Party as a result of or arising out of your or your employees, agents or representatives’ (i) performance or failure to perform under this Agreement, including any use of the Software; (ii) actual or alleged violation of any law, regulation or exchange rule; (iii) your use, development, license or transfer of an Add-On.
12. CONFIDENTIALITY.
12.1 Both for the duration of this Agreement and for a period of five (5) years thereafter (except for trade secret information, which shall be held in confidence for so long as the information is protected by applicable trade secret law), you agree not to disclose to any third parties any confidential information relating to the business of TT, including, without limitation, the Software, any screens generated by the Software, any services provided hereunder, any related documentation, technical information, drawings, design specifications, interface information, program listings and algorithms (collectively, the "TT Proprietary Information"), without the prior written consent of TT. This obligation shall not apply to information which has entered the public domain through no fault of either party.
12.2 You further agree to use the TT Proprietary Information only in accordance with this Agreement. You acknowledge and agree that due to the unique nature of the TT Proprietary Information there can be no adequate remedy at law for any breach of your obligations hereunder, and therefore, that upon any such breach or any threat thereof, TT will be entitled to appropriate equitable relief from a court of competent jurisdiction in addition to whatever remedies TT might have at law or equity.
13. AUTHORIZATION. By signing this Agreement or by downloading, installing, accessing, or using the Software (or any portion thereof), you indicate that you have the authority to bind yourself and/or your organization to the terms of this Agreement.
14. MISCELLANEOUS.
14.1 If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, that provision shall be severed and modified to the extent necessary to make such provision enforceable, and the remainder of this Agreement shall remain valid and fully enforceable.
14.2 No delay or omission by either party to exercise any right occurring upon any non-compliance or default by the other party with respect to any of the terms of this Agreement shall impair any such right or power, or be construed to be a waiver thereof. A waiver by either of the parties hereto of any of the covenants, conditions or agreements to be performed by the other shall not be construed to be a waiver of any succeeding breach thereof or of any covenant, condition or agreement herein contained.
14.3 This Agreement shall be governed by and construed in accordance with the internal laws of the State of Illinois without regard to conflict of law principles thereof. Any dispute between the parties which arises out of or is related to this Agreement shall be instituted and prosecuted only in the appropriate state or federal court or other tribunal situated in Cook County
in the State of Illinois. The parties hereby submit to the exclusive jurisdiction of such courts and tribunals for purposes of any such action and the enforcement of any judgment or order arising therefrom. The parties hereby waive any right to a change of venue and any and all objections to the jurisdiction of the state and federal courts and other tribunals located in Cook County in the State of Illinois.
14.4 This Agreement constitutes the complete and exclusive statement of the agreement of the parties relative to the subject matter hereof and supersedes all previous oral and written proposals, negotiations, representations or understandings concerning such subject matter.
14.5 You agree that TT shall be entitled to injunctive or other equitable relief for any breach of the Sections 2, 3 and 12 of this Agreement.
14.6 You shall institute reasonable measures to ensure compliance with this Agreement. Upon the request of TT, you shall provide reports as to usage as may be necessary to verify compliance with this Agreement. TT shall have the right, upon reasonable notice, to inspect your facilities to verify compliance with this Agreement, which shall include but not be limited to the review of Add-Ons while running on workstation(s) or computer(s).
14.7 The terms and conditions of Sections 2, 3, 7, 10, 12 and 14 shall survive the termination or expiration of this Agreement for whatever reason or cause.
14.8 This Agreement is specific to you and you may not assign or otherwise transfer your rights or obligations as specified in this Agreement without the prior written consent of TT. This Agreement shall not be construed or interpreted to confer or provide any rights to any third parties.
14.9 The parties agree that TT shall perform its duties under this Agreement as an independent contractor. Nothing contained herein shall be deemed to establish a partnership, joint venture, association, or employment relationship between the parties. Personnel employed or retained by TT who perform duties related to this Agreement shall remain under the supervision, management, and control of TT.
Ver. 011409