MAXIMUS TERMS OF SERVICE AGREEMENT AND LICENSE

 

 

MAXIMUS TERMS OF SERVICE AGREEMENT AND LICENSE

THIS TERMS OF SERVICE AGREEMENT AND LICENSE (“Agreement”) is
made between Maximus Automated Trading Systems, Inc. (“Company”) and
any person (“User”) who installs the Software and/or completes the
registration process to use Company's Add-On software (“Software/Service”)
for the NinjaTrader or similar trading platform.
BY CLICKING THE ACCEPTANCE BUTTON OR ACCESSING, USING OR
INSTALLING ANY PART OF THE SOFTWARE/SERVICE, USER EXPRESSLY
AGREES TO AND CONSENTS TO BE BOUND BY ALL OF THE TERMS OF THIS
AGREEMENT. IF USER DOES NOT AGREE TO ALL OF THE TERMS OF THIS
AGREEMENT, THE BUTTON INDICATING NON-ACCEPTANCE MUST BE
SELECTED AND COMPANY SHALL PROMPTLY CANCEL THIS TRANSACTION
AND USER MAY NOT ACCESS, USE OR INSTALL ANY PART OF THE
SOFTWARE/SERVICE. THIS AGREEMENT IS APPLICABLE FOR ALL RELEASED
VERSIONS OF THE SOFTWARE/SERVICE INCLUDING, BUT NOT LIMITED TO

BETA VERSIONS. THIS AGREEMENT MAY BE AMENDED FROM TIME- TO-
TIME AT THE SOLE DISCRETION OF COMPANY. COMPANY SHALL PROVIDE

NOTICE TO USER OF AMENDMENTS BY POSTING THE UPDATED TERMS OF
SERVICE ON COMPANY’S WEBSITE. USER SHALL HAVE THE OPPORTUNITY TO
REFUSE SAID AMENDMENTS SOLELY BY REQUESTING TERMINATION OF
ACCESS TO THE SOFTWARE/SERVICE.

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1. Software/Service Terms
a. Description. The Software/Service is proprietary to Company and is
protected by intellectual property laws and international intellectual
property treaties. User’s access to the Software/Service is licensed and not
sold. Software/Service is an add-on application to assist with trading and
transactions involving, but not limited to, stocks, futures, exchange traded
funds, mutual funds, single stock futures, options, and currency orders
(collectively “Orders”) that interfaces through an Application Protocol
Interface (“API”) or Software Development Kit (“SDK”). These systems may
be based on software platforms developed by various other third party
brokers and/or software developers (collectively “Broker Platforms”).
Orders may be executed by brokers via Broker Platforms.
b. Use of Third Party Vendors/Brokers. User is aware that the
Software/Service relies on various third party software, platforms, and
equipment (collectively “Vendors”) and Broker Platforms. User shall abide
by all Vendors’/Brokers’ individual terms of service agreements, if applicable.
COMPANY MAKES ABSOLUTELY NO WARRANTIES WITH REFERENCE TO
THIRD PARTY VENDOR/BROKER SOFTWARE AND/OR SERVICES.
c. Accessibility and Function. User agrees that from time to time, the
Software/ Service may be inaccessible or inoperable for any reason,
including, without limitation: (i) equipment (hardware) malfunctions, (ii)
software malfunctions, (iii) periodic maintenance procedures or repairs
which Company may undertake from time to time, or (iv) causes beyond the

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reasonable control of Company or which causes are not reasonably
foreseeable by Company. Company is not responsible, directly or indirectly,
for the performance and/or reliability of third party or Broker Platforms,
system, equipment or otherwise, or User’s Internet Service Provider (“ISP”).
e. Equipment. User shall be solely responsible for providing,
maintaining and ensuring compatibility with the Software/Service, all
hardware, software, electrical and other physical requirements for User’s
use of the Software/Service including, without limitation,
telecommunications and Internet connection(s), ISP, web browsers and/or
other equipment, programs and services required to access and use the
Software/Service.
f. Grant of License. Company grants User, pursuant to the terms and
conditions of this Agreement, an exclusive and nontransferable license to
use the Software/Service on a single computer at any one time.

COMPANY MAKES NO WARRANTIES OF ANY KIND WITH REGARD TO
TECHNICAL SUPPORT SERVICES AND HEREBY DISCLAIMS ALL WARRANTIES
AND CONDITIONS OF ANY KIND RELATED TO TECHNICAL SUPPORT SERVICE,
INCLUDING BUT NOT LIMITED TO ALL IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO
EVENT SHALL COMPANY BE LIABLE FOR ANY DAMAGES, INCLUDING SPECIAL,
DIRECT, INDIRECT OR CONSEQUENTIAL DAMAGES RESULTING FROM LOSS
OF USE, DATA OR PROFITS REGARDLESS OF THE LEGAL THEORY UNDER
WHICH SUCH CLAIMS ARE ASSERTED, INCLUDING WITHOUT LIMITATION,

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ACTIONS BASED ON CONTRACT, NEGLIGENCE OR OTHER TORTIOUS
CONDUCT, ARISING OUT OF OR IN CONNECTION WITH THE PROVISION OF
TECHNICAL SUPPORT SERVICES. IN NO EVENT SHALL COMPANY’S TOTAL
LIABILITY FOR ANY DAMAGES EXCEED THE TOTAL FEES PAID BY USER TO
COMPANY HEREUNDER.

2. Security of User’s System
User shall be solely responsible for the security, confidentiality and
integrity of all messages and the content that User receives, transmits
through or stores via the Software/Service or on any computer or related
equipment that is used to access the Software/Service. User shall be solely
responsible for any authorized or unauthorized access to User’s account by
any person, entity, partnership, organization, association or otherwise.

3. Fees/Licenses
a. Term/Automatic renewal. The term of this agreement shall begin
upon User’s commencement of the Software/Service and shall be for one
year and automatically renew on a yearly basis, unless user opts-out of
automatic renewal. Termination by User or Company prior to automatic
renewal of term must be supplied prior to the expiration of the current term
and must comply with the termination procedures set forth in Section 6 of
this Agreement. User may also terminate this agreement at the end of the
license term by opting not to pay the renewal fee. Should the subscription be
terminated prior the current subscription period expiration date and

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pursuant to Section 6 of this Agreement, NO refund shall be issued to User
by Company.
b. Upgrades. During the term of the license User shall be entitled to
Software/Service upgrades as provided in the sole discretion of Company.
User’s entitlement to upgrades shall be limited to the specific edition of the
Software/Service for which the User is licensed. For instance, if User
subscribes to Edition A of the Software/Service, User shall be entitled only to
Edition A upgrades and so forth. Software/Service editions relate to the
service level of Software/Service and shall not be confused with release
version number(s).
c. License Authentication: To protect our software from illegal copying
and unauthorized use, we perform a license authentication using the “Ninja
Trader vendor licensing”, and/or using our own license manager on our
server. This means that checking our license server may be performed each
time you use our software. Personal information provided during this audit
are your “Ninja Trader Machine ID” and your IP address. This means that an
Internet connection is required to use our software. However, be aware that
the fact of not having an Internet connection can not constitute a valid
reason for a refund.
d. Change of Machine ID: Each software is sold for a single end user,
the use of which must be on a single PC. The Machine ID used formed when
buying software is the basis for the protection of our software, and is an
effective way to limit unauthorized duplication of the software. However,
Machine ID is based on the hardware configuration, and given the fact that

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the hardware may change, we allow a single change Machine ID per user,

per calendar year. This is to prevent the resale of our software to a third-
party or any other use not in accordance with this Agreement. Beyond one

change by calendar year, Company may exceptionally authorize an
additional change. In such case, Company reserves the right to request a
processing fee given the degree of customization of the protection of our
software, the time spent, and the risk of seeing our product counterfeiting.

4. User Representations
User represents and warrants to Company that: (a) User is over the
age of eighteen (18) and has the power and authority to enter into and
perform User’s obligations under this Agreement, (b) all information
provided by User to Company is truthful, accurate and complete, (c) User is
the authorized signatory of the credit or charge card provided to Company to
pay the Fees, (d) User shall comply with all terms and conditions of this
Agreement including, without limitation, the provisions set forth in section 5,
(e) User, and not the Company, is solely responsible for the security and use
of User’s password, (f) User has provided and shall provide accurate and
complete registration information including, without limitation, User’s legal
name, address and telephone number, (g) User acknowledges that all right,
title, and interest to the Software/Service belongs to Company. Company
reserves all rights not expressly granted to User in this Agreement and that
the User may not sublicense, transfer, or assign the Software/Service,

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directly or indirectly, to any person, entity, partnership, organization,
association or otherwise, for any reason.

5. Prohibited Uses
a. Dissemination. User may not disseminate software, username(s)
and/or password(s) to any other person, entity, partnership, organization,
association or otherwise.
b. Disclosure. Company's charts and related algorithms and data ("IP")
are the propriety and the exclusive intellectual property and trade secrets of
Company. User is being provided access to the IP via the software/service for
a limited time period under the terms of this Agreement. User is prohibited
from extracting, modifying, disclosing, disseminating, or reverse engineering
Company's IP. User's right to use and access Company's IP and the
Software/Service is conditioned on compliance with this Agreement,
including periodic payment. If User's subscription expires, User no longer has
the right to continue use of the Software/Service and Company's IP, and
Company may take reasonable steps to prevent continued access to the
Software/Service and Company's IP.

6. Termination
This Agreement is effective upon User’s acceptance as set forth herein
and shall continue in full force until terminated. User may terminate this
Agreement for any reason upon thirty (30) days prior written notice to
Company. User may also terminate this agreement at the end of the license

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term by opting not to pay the renewal fee. Company reserves the right, in its
sole discretion and without prior notice to User, at any time and for any
reason, to: (a) remove or disable access to all or any portion of the
Software/Service, (b) suspend User’s access to or use of all or any portion of
the Software/Service, and (c) terminate this Agreement.

7. Disclaimer of Warranties
THE SOFTWARE/SERVICE IS PROVIDED “AS IS” AND WITHOUT
WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. USE OF THE
SOFTWARE/SERVICE IS AT USER’S SOLE RISK. COMPANY DOES NOT MAKE
ANY WARRANTY AS TO RESULTS THAT MAY BE OBTAINED THOUGH USE OF
THE SOFTWARE/SERVICE. TRADING STOCKS AND OTHER ASSET CLASSES
INVOLVES INHERENT RISKS AND PAST PERFORMANCE IS NO GUARANTEE OF
FUTURE RESULTS. EVEN THE BEST TRADING STRATEGIES WILL NOT WORK
UNDER ALL CONDITIONS AND ASSETS MAY BE LOST. COMPANY IS
ABSOLUTELY NOT RESPONSIBLE, DIRECTLY OR INDIRECTLY, FOR USERS’
STOCK AND ASSET ORDERS, PURCHASE, AND SALE ACTIONS. COMPANY
MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING,
WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE, IN RELATION TO THE
SOFTWARE/SERVICE, NOR THAT THE SOFTWARE/SERVICE WILL BE
UNINTERRUPTED OR ERROR FREE. COMPANY MAKES ABSOLUTELY NO

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WARRANTIES WITH REFERENCE TO THIRD PARTY VENDOR/BROKER
SOFTWARE AND/OR SERVICES.

8. Limitation of Liability
UNDER NO CIRCUMSTANCES SHALL COMPANY, DIRECTLY OR
INDIRECTLY, BE LIABLE TO USER OR ANY OTHER PERSON, ENTITY,
PARTNERSHIP, ORGANIZATION, ASSOCIATION OR OTHERWISE FOR ANY
DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE
DAMAGES FOR ANY MATTER ARISING FROM OR RELATING TO THIS
AGREEMENT, THE SOFTWARE/SERVICE OR THE INTERNET IN GENERAL,
INCLUDING, WITHOUT LIMITATION, USER’S USE OR INABILITY TO USE THE
SOFTWARE/SERVICE, ANY CHANGES TO OR INACCESSIBILITY OF THE
SOFTWARE/SERVICE, DELAY, FAILURE, UNAUTHORIZED ACCESS TO OR
ALTERATION OF ANY TRANSMISSION OR DATA, ANY MATERIAL OR DATA
SENT OR RECEIVED OR NOT SENT OR RECEIVED, ANY TRANSACTION OR
AGREEMENT ENTERED INTO THROUGH THE SOFTWARE/SERVICE, ANY DATA
LOSS, OR ANY DATA OR MATERIAL FROM A THIRD PARTY ACCESSED ON OR
THROUGH THE SOFTWARE/SERVICE, WHETHER SUCH LIABILITY IS ASSERTED
ON THE BASIS OF CONTRACT, TORT OR OTHERWISE. IN NO EVENT SHALL
COMPANY’S TOTAL LIABILITY FOR ANY DAMAGES EXCEED THE TOTAL FEES
PAID BY USER TO COMPANY HEREUNDER. SOME STATES PROHIBIT THE
EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES,
THUS THIS LIMITATION OF LIABILITY MAY NOT APPLY TO USER. IF USER IS
DISSATISFIED WITH THE SOFTWARE/SERVICE, USER’S SOLE AND EXCLUSIVE

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REMEDY SHALL BE FOR USER TO DISCONTINUE USE OF THE
SOFTWARE/SERVICE AND TERMINATE THIS AGREEMENT IN ACCORDANCE
WITH SECTION 6. COMPANY IS NOT LIABLE FOR ANY ITEMS VIEWED OR
TRANSMITTED VIA THE SOFTWARE/SERVICE. COMPANY IS NOT LIABLE,
DIRECTLY OR INDIRECTLY, FOR ANY ACTS TAKING PLACE WHICH ARE NOT
VIEWED OR TRANSMITTED VIA THE SOFTWARE/SERVICE. COMPANY IS NOT
OBLIGATED, DIRECTLY OR INDIRECTLY, TO TAKE ANY STEPS TO PREVENT OR
CORRECT ANY ILLEGAL, ABUSIVE OR OTHERWISE INAPPROPRIATE ACTIVITY
PERFORMED BY USER, NOR IS COMPANY OBLIGATED, DIRECTLY OR
INDIRECTLY, TO ARCHIVE OR OTHERWISE MAINTAIN OTHER REPRODUCTION
OF THE CONTENT THAT APPEARS OR IS TRANSMITTED ON THE
SOFTWARE/SERVICE FOR FUTURE REFERENCE. COMPANY IS NOT LIABLE,
DIRECTLY OR INDIRECTLY, FOR ANY ACTION OR INACTION WITH RESPECT TO
ANY CONTENT ON THE SOFTWARE/SERVICE. COMPANY IS NOT
RESPONSIBLE, DIRECTLY OR INDIRECTLY, FOR COMPLIANCE OR LACK
THEREOF BY ANY BROKER(S) WITH RESPECT TO ANY APPLICABLE LAWS AND
REGULATIONS INCLUDING, BUT NOT LIMITED TO, THOSE LAWS REGARDING
OR PERTAINING TO THE TRADING OF SECURITIES. COMPANY MAKES
SIGNIFICANT EFFORTS MEETING OR EXCEEDING INDUSTRY STANDARDS TO
INSURE THE SECURITY AND/OR FUNCTIONALITY OF SOFTWARE/SERVICE
RELATED INTERNET TRANSMISSIONS BUT, DUE TO THE INHERENT NATURE
OF THE INTERNET, CANNOT GUARANTEE OR WARRANT FUNCTIONALITY
AND/OR SECURITY OF INTERNET TRANSMISSIONS.

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9. Indemnification
User agrees to indemnify, hold harmless and defend Company, its
shareholders, directors, officers, employees and agents from and against any
action, cause, claim, damage, debt, demand or liability, including reasonable
costs and attorney’s fees, asserted by any person, entity, partnership,
organization, association or otherwise, arising out of or relating to: (a) this
Agreement, (b) User’s use of the Software/Service, including any data or
work transmitted or received by User, and (c) any unacceptable use of the
Software/Service, including, without limitation, any statement, data or
content made, transmitted or republished by User which is prohibited as
unacceptable in section 5.

10. Privacy
a. General. When reasonably practicable, Company shall attempt to
respect and maintain User’s privacy. Company shall not monitor, edit, or
disclose any personal information about User or User’s account, including its
contents or User’s use of the Software/Service, without User’s prior written
consent unless Company has a good faith belief that such action is necessary
to: (i) comply with any legal process or other legal requirements of any
governmental authority, (ii) protect and defend the rights, interests, or
property of Company, (iii) enforce this Agreement, (iv) protect the interests
of users of the Software/Service other than User or any other person, entity,
partnership, organization, association or otherwise, or (v) operate or conduct

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maintenance and repair of Company’s services or equipment, including the
Software/Service as authorized by law. User has no expectation of privacy
with respect to the Internet in general. User’s IP address and
Software/Service generated GUID is transmitted and recorded with each
User session.
b. Cookies. The Software/Service may use cookies. A cookie is a small
data file that a website stores on the User’s computer when the
Software/Service is accessed via the Internet. A cookie allows Company to
monitor activity on its website and remember user preferences. Company
uses information contained in cookies to improve the User’s experience, as
well as track usage and tailor service options and content to usage patterns.
Company does not use cookies to retrieve information from the User’s
computer not related to the Software/Service.
c. Billing/Credit or Charge Card Information. Company shall not share
billing/credit or charge card information provided by the User with third
parties unless written or electronic permission is expressly received from
User.
d. Use of Aggregate Information. Company may, at its sole discretion,
share aggregate information (e.g. number of website visits, demographic
breakdown, etc.) to third parties by combining aspects of personal
information into an anonymous pool.
e. Security of Personal Information. Information security is of the
utmost importance to Company, however, no transmission of data over the
Internet is guaranteed to be completely secure. Company shall not

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guarantee or warrant the security of any personal information transmitted
to or from it. Any such transmission is made solely at User’s risk.
f. Links. Company’s Software/Service website may contain links to
other Internet websites. These websites are not under the control of
Company and Company does not control linked websites’ privacy and/or
user agreements. Company does not grant any warranties (express or
implied) nor does Company have any liability for information transferred and
conferred to or from linked websites.

11. Miscellaneous
a. Amendment. Company shall have the right, at any time and
without prior written notice to or consent from User, to add to or modify the
terms of this Agreement, simply by delivering such amended terms to User
by e-mail at the address provided to Company by User or by requiring the
User to accept an updated Agreement upon accessing the Software/Service.
User’s access to or use of the Software/Service after the date such amended
terms are delivered to User shall be deemed to constitute acceptance of
such amended terms.
b. Waiver. No waiver of any term, provision or condition of this
Agreement, whether by conduct or otherwise, in any one or more instances,
shall be deemed to be, or shall constitute, a waiver of any other term,
provision or condition hereof, whether or not similar, nor shall such waiver
constitute a continuing waiver of any such term, provision or condition

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hereof. No waiver shall be binding unless executed in writing by the party
making the waiver.
c. Severability. If any provision of this Agreement is determined to be
illegal or unenforceable, then such provision shall be enforced to the
maximum extent possible and the other provisions shall remain fully
effective and enforceable.
d. Notice. All notices shall be in writing and shall be deemed to be
delivered when sent by first-class mail or when sent by facsimile or e-mail to
either parties' last known post office, facsimile or e-mail address,
respectively. User hereby consents to notice by e-mail. All notices shall be
directed to the parties at the respective addresses given above or to such
other address as either party may, from time to time, provide to the other
party.
e. Governing Law. This Agreement is made in and shall be governed
by the laws of the State of California without reference to any conflicts of
laws.
f. Dispute Resolution. Any and all disputes relating to or arising out of
this Agreement including, but not limited to, the arbitrability and the validity
of this Agreement shall be resolved by binding arbitration in San Diego,
California using a single arbitrator.
g. Force Majeure. If the performance of any part of this Agreement
by either party is prevented, hindered, delayed or otherwise made
impracticable by causes beyond the reasonable control of either party, that

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party shall be excused from such performance to the extent that it is
prevented, hindered or delayed by such causes.
h. Survival. The terms and provisions of sections 2, 3, 4, 5, 7, 8, 9, 10
and 11 shall survive any termination or expiration of this Agreement.
i. Entire Agreement. This Agreement constitutes the complete and
exclusive statement of the agreement between the parties with respect to
the Software/Service and supersedes any and all prior or contemporaneous
communications, representations, statements and understandings, whether
oral or written, between the parties concerning the Software/Service.
USER HAS READ, UNDERSTANDS AND AGREES TO THE TERMS &
CONDITIONS OF THIS AGREEMENT.