TickerLog 1.1 End user license agreement

END USER LICENSE AGREEMENT
PLEASE READ THE FOLLOWING TERMS OF SERVICE (THE "AGREEMENT") CAREFULLY BEFORE INSTALLING, ACCESSING, OR OTHERWISE USING THE SOFTWARE OR SERVICES. YOU MAY NOT USE THE SOFTWARE UNTIL YOU ACCEPT THE TERMS OF THIS AGREEMENT. YOU AGREE TO BE BOUND BY THESE TERMS OF SERVICE BY INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE, OR ACCESSING OR USING THE SERVICES. PLEASE MAINTAIN A COPY FOR YOUR RECORDS.
This Agreement is by and between KS&G, LLC (“KS&G,” "We," or "Us"), the individual or entity that purchased and is using the software ("Customer" "End Users" or "You"). This Agreement describes Customer`s right to access and use of the KS&G software (the "Software"). The Software is provided to Customer under the terms and conditions of this Agreement and any rules or policies that may be published on KS&G`s Web site.
1) License Grant. Subject to the terms and conditions of this Agreement, KS&G grants to Customer a limited, non-exclusive, non-transferable license to use the Software (as well as any related documentation, instructions, evaluations, or other written materials). The license granted hereunder shall permit the Customer to install the Software on only one computer per license purchased.
2) Limited Trial Use License. In the event that Customer downloads and installs the Software without first purchasing said Software, Customer is hereby granted a limited use license for the purpose of evaluating the Software. This Limited Trial Use License shall be subject to all of the terms of the this Agreement, but will permit the Customer or End User only use of the software for 30 days, the number of days is calculated from the time the software is installed. Following the 30 trial days use of the Software, the Customer must then either purchase fully paid license or remove the software from the computer on which it is installed.
3) Limitations on Reverse Engineering, Decompilation, and Disassembly. You may not reverse engineer, decompile, reverse compile, reverse assemble, disassemble, or otherwise translate the Software Product or any part thereof, including but not limited to the Software’s source code. You many not: (a) use, copy, display, perform, or distribute the Software except as provided in this Agreement; (b), sublicense, rent, or lease the Software; or (c) modify the Software.
4) Customer and Technical Support. KS&G has no obligation under the terms of this Agreement to provide support or maintenance services in connection with the Software. Notwithstanding, KS&G may elect to provide certain support to its customers from time to time, as it deems appropriate. Any such provision of support services shall not create any obligation of continued support or represent a waiver of this Paragraph. 4 of the End User License Agreement.
5) Ownership. Customer acknowledges and agrees that the Software and all related items provided to it hereunder, as well as any and all copies thereof, contain valuable copyrighted material, trademarks, trade dress, service marks, trade secrets and proprietary and confidential information of KS&G and/or its licensors, and that KS&G and/or its licensors shall own and retain all applicable copyrights, trademarks, service marks, trade dress, trade secrets, and other intellectual and property rights in the Software and all related items provided hereunder, including any enhancements thereto or derivative works thereof, whether or not authorized. It is expressly understood and agreed that no title to, or ownership of, any part of the Software or any related items provided hereunder, including any enhancements thereto or derivative works thereof, is hereby transferred to Customer. All graphics, logos, service marks, and trade names, including third-party names, product names, and brand names (collectively, the "Marks") relating to the Software and Services are the trademarks of KS&G or its affiliated entities. You are prohibited from using any Marks without the prior written permission of KS&G. KS&G reserves all rights related to the Marks not expressly granted in this Agreement. Customer further acknowledges that KS&G’s copyrights in all graphics and illustrations contained in the Software as well as in the Software’s user interface and all elements of its look and feel.
6) Use of Java. The Software makes use of Sun Microsystems’ Java platform. Nothing in this Agreement is intended to or shall supersede the rights of Sun Microsystems in the Java platform and associated runtime environments. Customer making use of the Software hereby acknowledges that it is likewise subject to the limitations on usage and/or licensing conditions associated with Sun Microsystems Java technology used in or in conjunction with the Software.
7) Limitations on Use. Users may not use the Software except as expressly permitted under this License Agreement or the terms of the Order Form, including the requirements provided by applicable U.S. intellectual property laws and U.S. copyright laws. Any routine and/or systematic redistribution of any portion of the Software or the copyright or trademark material contained therein is expressly prohibited. Furthermore, Customer shall not, nor shall they permit others to do any of the following: (a) sell, distribute, transmit, or otherwise provide access or use to any person not authorized by this License; (b) store any Software in any information storage and retrieval system which provides access to persons not authorized by this License or provides concurrent usage by any individual or entity other than those authorized by this License; (c) rent, sublicense, lease, or assign any License to the Software to any person other than Customer; (d) copy, reproduce, create derivative works from, de-compile, disassemble, or otherwise reverse-engineer the Software or its source code, or in any other way alter, translate, modify, or adapt the Software; or (e) make use of the Internet or an Intranet to provide access to the Software through any local or wide area networks, timesharing services, multiple site arrangements, or other forums which permit multiple simultaneous access or distribution other than provided by this Agreement. Any access to or use of the Software (or any part thereof) by persons or other users who are not authorized by Customer and this Agreement is specifically prohibited.
8) Term and Termination. The term ("Term") means the duration of this Agreement commencing with the earliest of: (i) the date that KS&G accepts your order for use of the Software or Services, or (ii) the date that you sign the agreement for Services, or (iii) the date that you access the Software, and continuing until the end of the applicable period as designated by KS&G, subject to earlier termination in accordance with this Agreement.. Upon expiration of the initial Term, this Agreement shall automatically renew for like terms until otherwise terminated as provided herein. Either party may terminate this Agreement at the end of any Term (initial or renewal) by providing the other party written notice of termination at least 30 days prior to the end of such Term. The following provisions will survive the expiration or termination of this Agreement: Sections 5, 6, 7, and 9. Customer may terminate this Agreement if KS&G fails to provide the Software and Service to Customer and such breach is not cured within five (5) days after receipt of written notice of the breach. KS&G may terminate this Agreement if Customer breaches any term or condition of this Agreement, including the failure to make timely payment of any fees due to KS&G if such breach is not cured within five (5) days after receipt of written notice of Customer`s breach. Upon termination, all payment obligations of Customer due through the date of termination shall be then due and payable, KS&G may revoke the License granted to Customer and KS&G may immediately prohibit Customer`s use and access to the Software.
9) Limited Warranty and Disclaimer; Limit of Liability; Indemnity.
a. KS&G warrants to Customer that the Software will operate substantially in accordance with the documentation provided to Customer online (the "Documentation"). This limited warranty shall apply only during the first sixty (60) days from the first day that the Software is available to Customer (the "Warranty Period"). Should the Software not function in accordance with the Documentation, (a "Warranty Claim") then Customer shall upon written notice to KS&G be entitled to a refund of the fees collected by KS&G during the Warranty Period. The foregoing refund shall be Customer`s exclusive remedy for a breach of the foregoing limited warranty. All Warranty Claims not made in writing or not received by KS&G within the Warranty Period shall be deemed to have been waived by Customer. OTHER THAN THE FOREGOING LIMITED WARRANTY, KS&G MAKES NO REPRESENTATIONS ABOUT THE SOFTWARE OR SERVICES AND IS PROVIDING THE SOFTWARE AND SERVICES TO CUSTOMER "AS IS" AND WITHOUT WARRANTY OF ANY KIND. KS&G EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ANY WARRANTIES ALLEGED TO HAVE ARISEN FROM CUSTOM, USAGE, OR A COURSE OF DEALINGS BETWEEN THE PARTIES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, KS&G SHALL NOT BE LIABLE TO CUSTOMER OR ANY END USER FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, OR SPECIAL DAMAGES, INCLUDING (WITHOUT LIMITATION) DAMAGES ARISING OUT OF OR IN CONNECTION WITH ANY LOSS OF PROFIT, INTERRUPTION OF SERVICE OR LOSS OF BUSINESS OR ANTICIPATORY PROFITS, EVEN IF KS&G HAS BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES. IN NO EVENT WILL KS&G`S AGGREGATE LIABILITY UNDER THIS AGREEMENT EVER EXCEED THE TOTAL AMOUNT OF ANY FEES PAID BY CUSTOMER DURING THE TERM HEREOF.
b. KS&G agrees to defend Customer and to pay any judgments, costs and expenses, or amounts paid in settlement to which KS&G agrees, which Customer may sustain as the result of any claim by a third party that the Software by itself and in unmodified form infringes or misappropriates such third party`s United States copyright, trade secrets, or patent, provided that Customer provides KS&G with prompt written notice of such claims or threat of such claims and that KS&G is given full control and authority to investigate, defend and/or settle such claim. In the event of any claim that KS&G`s Software infringes a third party`s intellectual property rights, KS&G may, at its option, procure the rights to allow Customer to continue to use the Software, modify the Software so it is not infringing in which case Customer shall immediately cease using the infringing Software or Service, or terminate this Agreement and refund pro-rata portion of any unused Customer fees actually paid.
c. Customer agrees to defend, indemnify and hold harmless KS&G , (and its subsidiaries, affiliates, officers, employees, and directors) from any and all third party claims, liabilities, damages and/or costs (including attorney fees) due to or arising directly out of Customer`s (or any end user`s): use of the Software or Service; violation of this Agreement; unauthorized use or known breach of security; or infringement or violation, of any intellectual property or other right of any person or entity related to the Customer`s Content.
d. In addition to the foregoing disclaimers and limitations, KS&G hereby additionally disclaims any liability to Customer and Customer hereby releases KS&G from any liability arising as follows:
i) From any loss of money incurred by the Customer in trading or other activities where the customer used the Software either directly or indirectly.
ii) From any loss of data that the customer had stored using the Software.
iii) From failure of the Software to store or report the data stored by the Customer accurately, including but not limited to such occurrences arising from any bug or other defect in the Software or due to the Customer failing to store the data in the correct format or due to other reasons.
iv) From any erroneous or otherwise wrong conclusion or interpretation reached by Customer when the reviewing any log of stock trades recorded or otherwise stored or displayed in or using the Software.
v) Any corruption to the Software or the data collected and stored therein and/or any damage to the Customer`s computer resulting therefrom.
vi) From any failure of the Software to function correctly when used with hardware, software or operating systems not explicitly supported by the Software, or any damage to the Customers’ computer or data resulting from use of the Software on unsupported hardware of operating system.
10) Updates; Applicable Terms and Authorization for Auto Updates. KS&G may, in its sole discretion, provide, and this Agreement applies to, all updates, features, or other functionality, including without limitation alterations of functionality, features, storage, security, availability, content, and other information relating to the Software or Services (collectively, "Updates"). KS&G may provide such Updates to its customer after the date that such Updates are made available, subject to any additional terms and conditions provided by KS&G applicable to such Updates. You hereby authorize KS&G to, and agree that, KS&G may automatically and in good faith transmit, access, install, and otherwise provide Updates without further notice or need for your prior consent. You also agree that KS&G may obtain information reasonably necessary to provide the Services. KS&G has no obligation to, and nothing in this Agreement may be construed to require KS&G to create, provide, or install Updates.
11) Miscellaneous Provisions.
(a) Governing Law. This Agreement is made under and will be governed by and construed in accordance with the laws of the State of Georgia (except that body of law controlling conflicts of law) and specifically excluding from application to this Agreement that law known as the United Nations Convention on the International Sale of Goods. The prevailing party in any litigation between the parties shall recover its reasonable attorneys` fees and costs from the non-prevailing party.
Marketing. Customer hereby consents to KS&G`s use of Customer`s name and logo for the limited purpose of identifying Customer as a KS&G Customer. From time to time, KS&G elects candidates from its customer list that it wishes to announce as a business relationship. Should Customer be selected, then KS&G will notify Customer before the press release or quote is published in the public domain.
Government Regulations. Customer shall not export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the U.S. government and any country or organization of nations within whose jurisdiction Customer operates or does business. U.S. Government rights to use, modify, reproduce, release, perform, display, or disclose these technical data and/or computer data bases and/or computer software and/or computer software documentation are subject to the limited rights restrictions of DFARS 252.227-7015(b)(2) (June 1995) and/or subject to the restrictions of DFARS 227.7202-1(a) (June 1995) and DFARS 227.7202-3(a) (June 1995), as applicable for U.S. Department of Defense procurements and the limited rights restrictions of FAR 52.227-14 (June 1987) and/or subject to the restricted rights provisions of FAR 52.227-14 (June 1987) and FAR 52.227-19 (June 1987), as applicable, and any applicable agency FAR Supplements, for non-Department of Defense Federal procurements.
Survivability. The terms of the following Sections of this Agreement shall survive any cancellation, termination, or rescission: Ownership, Limitation of Use, Warranty, Indemnity, and Limitation of Liability.
Severability and Waiver. In the event any provision of this Agreement is held to be unenforceable, the remaining provisions of this Agreement will remain in full force and effect, and the unenforceable provisions will be construed in accordance with applicable law as nearly as possible to reflect the original intention of the parties. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party. Customer may not assign or delegate its obligations under this Agreement either in whole or in part without the prior written consent of KS&G, and such consent may be unreasonably withheld.
Governmental Agencies. Use of the Software or Service by the United States Government or other governmental agencies shall be as "restricted computer software" or "limited rights data" as set forth in "Rights in Data - General" at 48 CFR 52.227-14, or as "commercial computer software" or "commercial computer software documentation" under DFARS 252.227-7015, or under such other similar applicable terms and conditions to prevent the transfer of rights in and to the technology to the government other than under normal commercial licensing terms and conditions.
Privacy Policy. The KS&G Privacy Policy can be accessed at on the KS&G Web site ("Privacy Policy") and you hereby acknowledge that you have accessed and read the Privacy Policy, that it is a part of this Agreement, and that it is incorporated herein by this reference,. The Privacy Policy explains how certain information about you may be processed and used, among many other details.
Entire Agreement and Amendments. The Agreement (including the Privacy Policy and any related consents provided by or disclosures provided to you in connection with the Software or Services) constitutes the entire agreement between KS&G and you with respect to the Software and Services and supersedes all other (prior or contemporaneous) communications and proposals, whether electronic, oral, or non-electronic, between KS&G and you regarding them. You agree that any terms or conditions contained in any document, including but not limited to a purchase order, acknowledgement, email, or other document that you may now or later provide to KS&G, will have no effect and that this Agreement is the only contract and/or license between KS&G and you regarding the Software and Services and may only be amended as set forth herein. The application of the United Nations Convention on the International Sale of Goods is hereby expressly excluded. KS&G`s performance of this Agreement (including the Privacy Policy) is subject to existing laws and legal process, and you agree that KS&G may comply with law enforcement or regulatory requests or requirements notwithstanding any contrary term of this Agreement or that policy. A printed version of this Agreement and of any notice given to you in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. KS&G may, at any time, amend the provisions of this Agreement and/or the Privacy Policy, and you may accept the amended provisions in the manner indicated in the amendment notice as communicated by KS&G. Any amendment proposed by you may only be accepted by KS&G in a non-electronic writing manually signed by authorized representatives of the parties. Notwithstanding anything to the contrary herein, if KS&G posts amended terms on the Customer`s KS&G Web site, such terms will automatically become effective ten (10) days after they are posted on the KS&G product site. By using the Software or the Services after such revised terms are posted, you agree to be bound by any such amended provisions. The Software