Posted/Revised: 6/15/2021 (Version V105)
PLEASE READ THESE TERMS CAREFULLY. BY CLICKING “I ACCEPT THIS AGREEMENT,” THE CUSTOMER AGREES TO THESE TERMS AND CONDITIONS.
This End-User License Agreement constitutes an agreement (this “Agreement”) by and between eDeltaPro Corp., a Republic of Panama corporation (“eDP”) and the corporation, LLC, partnership, sole proprietorship, Individual, or other business entity executing this Agreement (“Licensee” or “You”). This Agreement is effective as of the date Licensee clicks “I accept this agreement” (the “Effective Date”). Licensee’s use of and eDP’s provision of eDP’s Software (as defined below) are governed by this Agreement.
Licensee desires to use software to trade assets at one or more brokers. Licensee has entered into a customer agreement with one or more brokers to carry one or more accounts of Licensee and to provide services to Licensee in connection with the purchase and sale of equities, equity options, cash commodities (including financial instruments), commodities futures contracts, options on cash commodities, options on futures contracts, forex, digital assets including cryptocurrencies, or forward or leverage contracts, and any similar instruments which may be purchased or sold by or through the broker(s) for Licensee's account(s).
eDP provides a web-application software application known as eDeltaPro Trading Platform (the “Software”), and the parties have agreed that eDP will provide the Software to Licensee and also provide maintenance services related to the Software. The parties desire that this Agreement govern all orders placed by Licensee through the Software, as well as all communications regarding reports or confirmations of such orders.
The following capitalized terms will have the following meanings whenever used in this Agreement.
“Documentation” means the Software’s standard user manual, help content, explanatory videos or other material intended to help Licensee’s use of the Software.
“Licensee Data” means data in electronic form input or collected through the Software by or from Licensee, including without limitation by any user.
“Software” means eDeltaPro Trading Platform including any add-ons or components supplied by eDP or independent third parties.
“Specifications” means eDP’s standard specifications for the Software set forth in its then-current Documentation.
“Term” is defined in Section 12.1 below.
“Update” means a new version of the Software in object code format and related Documentation.
License. eDP hereby grants Licensee a nonexclusive, revocable, personal, non-transferable license for one individual to use the Software during the Term, provided Licensee complies with the restrictions set forth in Section 2.2 below.
Restrictions on Software Rights. Copies of the Software created or transferred pursuant to this Agreement are licensed, not sold, and Licensee receives no title to or ownership of any copy or of the Software itself. Furthermore, Licensee receives no rights to the Software other than those specifically granted in Section 2.1 above. Without limiting the generality of the foregoing, Licensee will not: (a) modify, create derivative works from, distribute, publicly display, publicly perform, or sublicense the Software; (b) use the Software for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Software; or (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive any of the Software’s source code.
Documentation. Licensee may reproduce the Documentation as reasonably necessary to support internal use of the Software.
Delivery. eDP will provide the Software and Documentation to Licensee, through a reasonable system of electronic download, within a reasonable time of the Effective Date.
Revisions. eDP may revise Software features and functions at any time, with or without notice, including without limitation by removing features and functions or reducing service levels.
Provision of Maintenance. During the Term, eDP will maintain the Software according to its standard maintenance plan.
Updates. eDP will provide Licensee with copies of all Updates, without additional charge, promptly after commercial release. Upon delivery to Licensee, each Update will constitute an element of the Software and will thereafter be subject to this Agreement’s terms regarding Software, including without limitation license, warranty, and indemnity terms.
Use of Licensee Data. Unless it receives Licensee’s prior written consent, eDP: (a) will not access, process, or otherwise use Licensee Data other than as necessary to facilitate the Software; and (b) will not intentionally grant any third party access to Licensee Data, including without limitation eDP’s other customers, except subcontractors that are subject to a reasonable nondisclosure agreement. Notwithstanding the foregoing, eDP may disclose Licensee Data as required by applicable law or by proper legal or governmental authority. eDP will give Licensee prompt notice of any such legal or governmental demand to the extent legally allowed and reasonably cooperate with Licensee in any effort to seek a protective order or otherwise to contest such required disclosure, at Licensee’s expense. As between the parties, Licensee retains ownership of Licensee Data.
Risk of Exposure. Licensee recognizes and agrees that hosting data involves risks of unauthorized disclosure or exposure and that, in accessing and using the Software, Licensee assumes such risks. eDP offers no representation, warranty, or guarantee that Licensee Data will not be exposed or disclosed through errors or the actions of third parties.
Data Accuracy. eDP will have no responsibility or liability for the accuracy of data uploaded to the Software by Licensee or third parties, including without limitation Licensee Data and any other data uploaded by a user of the Software.
Data Deletion. eDP may permanently erase, to the extent legally allowed, Licensee configuration and settings Data if Licensee’s account is delinquent, suspended, or terminated for 30 days or more. eDP has no access to Licensee’s data at Licensee’s Broker.
Aggregate & Anonymized Data. Notwithstanding the provisions above of this Article 4, eDP may use, reproduce, sell, publicize, or otherwise exploit Aggregate Data in any way, in its sole discretion. eDP has no access to and cannot use any trade-related data coming from your relationship with any broker. (“Aggregate Data” refers to Licensee Data with the following removed: personally identifiable information and the names and addresses of Licensee and any of its users.)
Acceptable Use. Licensee will not: (a) use the Software for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Software; (b) provide Software passwords or other log-in information to any third party; (c) share non-public Software features or content with any third party; (d) access the Software in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the Software, or to copy any ideas, features, functions or graphics of the Software; or (e) engage in web scraping or data scraping on or related to the Software, including without limitation collection of information through any software that simulates human activity or any bot or web crawler. In the event that it suspects any breach of the requirements of this Section 5.1, including without limitation by any user associated with Licensee, eDP may suspend Licensee’s access to the Software without advanced notice, in addition to such other remedies as eDP may have. This Agreement does not require that eDP take any action against Licensee or any user or other third party for violating this Section 5.1 or this Agreement, but eDP is free to take any such action it sees fit.
Unauthorized Access. Licensee will take reasonable steps to prevent unauthorized access to the Software, including without limitation by protecting its passwords and other log-in information. Licensee will notify eDP immediately of any known or suspected unauthorized use of the Software or breach of its security and will use best efforts to stop said breach.
Compliance with Laws. In its use of the Software, Licensee will comply with all applicable laws, including without limitation laws governing the protection of personally identifiable information and other laws applicable to the protection of Licensee Data.
Users & Software Access. Licensee is responsible and liable for: (a) Licensee’s use of the Software, including without limitation unauthorized User conduct and any User conduct that would violate the requirements of this Agreement applicable to Licensee; and (b) any use of the Software through Licensee’s account, whether authorized or unauthorized. Sharing of any Software login credentials is not allowed and is cause for immediate termination of your license to use the Software.
Principal Risk Factors Associated with Electronic Order Entry Systems. The Software is an electronic order entry system that leverages the Internet. Although numerous features have been designed into the Software to prevent or alert the user to system failure, as with all electronic systems, service could be interrupted. Your Internet connection, your broker’s API portal, your personal computer or workstation, or the quotes provider to your system could experience a service interruption. Should the system be interrupted, depending on the type of failure, it may not be possible for Licensee to access the system to enter new orders or modify or cancel orders previously entered.
Orders Received and Communication Delays. eDP does not guarantee that any order placed through the Software will be filled or acted on by your broker. Licensee is solely responsible for confirming Licensee's own orders. Should Licensee fail to electronically receive confirmation as to the placement of an order, Licensee agrees to verify the status of such independently by contacting their broker by telephone or other means that your broker specifies to confirm whether an order has been received. eDP will not be responsible for delays in transmission of orders due to breakdown, excessive broker call volume or failure of transmission or communication systems or facilities, or for any other cause or causes beyond eDP’s reasonable control or anticipation.
Information Available Through the Software. Licensee acknowledges that the accuracy, completeness, timeliness, and correct sequencing of the real-time information concerning Licensee's trading and account activity at their broker, the quotes, market news, charts, trading analysis, and strategies are not guaranteed by eDP or eDP's third-party information providers. Licensee understands that some of the information available through the Software may be supplied by various independent sources. While eDP believes that these independent sources are reliable, it does not guarantee the accuracy, completeness, timeliness, non-interruption, or sequencing of any information supplied. Further, the information provided may be the property of a third party and may be protected by copyright or other laws and therefore any reproduction, transmittal, dissemination, or distribution of the information in any form or manner is prohibited without the express written consent of eDP.
Orders and Broker Statements. Licensee further acknowledges that all orders placed through the Software are placed at Licensee's sole risk. Licensee agrees that written statements from your broker will supersede all electronic information and the broker’s written statements will be controlling.
Software Operation. Licensee further acknowledges that from time to time, and for any reason the Software may not be operational or otherwise available for Licensee's use due to servicing, hardware malfunction, software defect, service or transmission interruption, or other cause. Licensee agrees to release and hold eDP and its agents harmless from liability or any damage which results from the unavailability of Software. Licensee acknowledges that Licensee has alternative arrangements which will remain in place for the transmission and execution of Licensee's orders, by telephone, facsimile-transmission or otherwise, in the event, for any reason, circumstances prevent the transmission and execution of all, or any portion of, Licensee’s orders through the Software. In the event that the Software is not operational, Licensee agrees to contact Licensee’s broker to make alternative order entry arrangements.
Accuracy of Information. Licensee agrees that in no event will eDP nor its agents be liable to Licensee for the accuracy, interruption, delay, completeness, timeliness, or correct sequencing of the information received or transmitted through Licensee’s use of the Software or for any interruption of any data, information, or accessibility to the Software. Further, eDP will not be held responsible for any delay or failure to provide the Software, including the execution of any order.
Restrictions on Account. eDP reserves, in its sole discretion, the right to restrict Licensee’s access to the Software. Licensee acknowledges that if eDP places a restriction on Licensee’s account, Licensee will not be able to use the Software’s online trading function. Licensee agrees to hold eDP harmless for any and all claims, losses, liability, costs, and expenses (including but not limited to attorney's fees) arising from eDP's restriction of Licensee’s access to the Software. eDP reserves, in its sole discretion, the right to terminate Licensee’s access to the Software without notice for any reason, including but not limited to the unauthorized use of Licensee’s broker access number(s), or account number(s), or breach of the Licensee’s Broker Licensee Agreement or this Agreement. eDP will restrict any Licensee from using the Software who is more than 14 days in arrears on payments.
System Failure. Trading through an electronic trading or order routing system exposes you to risks associated with system or component failure. In the event of system or component failure, it is possible that, for a certain time period, you may not be able to enter new orders, execute existing orders, or modify or cancel orders that were previously entered. Software or component failure may also result in loss of orders or order priority.
No Advice Provided. Any symbols, layouts, charts, lists, or analytics displayed as a default upon launching the Software are for example only and are in no way a recommendation to buy or sell any security. Any systems included with the Software are for example only and are not a recommendation of any type of trading strategy. eDP does not provide any investment advice. If you need investment advice, please contact your investment professional.
Risks of Options. Trading Options involve substantial risk. Before trading equity Options, make sure you have read and understood the Characteristics & Risks of Standardized Options provided by the Options Clearinghouse (OCC). Please be aware that brokers impose restrictions and limitations on their customers’ ability to trade options. Make sure you are aware of your broker’s limitations. eDP is not responsible for any restrictions or limitations on Options trading imposed by your broker.
Risks of Futures Trading. Trading in futures products entails significant risks of loss which must be understood prior to trading and may not be appropriate for all investors. Please contact your futures brokerage account representative for more information on these risks. Past performance of actual trades or strategies cited herein is not necessarily indicative of future performance.
Special Risks of Synthetic Orders
The Software offers several features that enable users to create orders that can be sent to the Licensee’s broker at a later time. These orders differ from orders that are sent to your broker for execution at a later time where the broker has taken responsibility for managing your order.
For example, the Software enables users to set up “synthetic” trailing stop orders.“A trailing stop is a stop order that can be set at a defined percentage or dollar amount away from a security's current market price. For a long position, an investor places a trailing stop loss below the current market price. For a short position, an investor places the trailing stop above the current market price. A trailing stop is designed to protect gains by enabling a trade to [remain open and continue to profit as long as the price is moving in the investor’s favor. The order closes the trade if the price changes direction by a specified percentage or dollar amount.”Source: Investopedia - https://www.investopedia.com/terms/t/trailingstop.asp.](http://www.investopedia.com/terms/t/trailingstop.asp)
These orders are managed by the Software on the Licensee’s computer. If the software on the computer is shut down, no order will be transmitted to your broker. If market data is not received by your computer, no order will be transmitted to your broker. If you receive incorrect market data, your trailing stop order may be triggered in error. Licensee agrees that any use of these features is at their own risk and that eDP Systems is not liable for these orders.
Market Data. eDP is not a provider of market data. eDP displays data in a variety of formats that are received from your market data provider. eDP is in no way responsible or liable for the accuracy or completeness of the market data you receive.
IP Rights in the Software. eDP retains all rights, titles, and interests in and to the Documentation and Software, including without limitation Updates, except to the extent of the limited licenses specifically set forth in Sections 2.1(Licenses) and 2.3 (Documentation). Licensee recognizes that the Software and its components are protected by copyright and other laws.
Feedback. Licensee hereby grants eDP a perpetual, irrevocable, worldwide license to use any Feedback (as defined below) Licensee communicates to eDP during the Term, without compensation, without any obligation to report on such use, and without any other restriction. eDP’s rights granted in the previous sentence include, without limitation, the right to exploit Feedback in any and every way, as well as the right to grant sublicenses. Notwithstanding the provisions of Article 8 (Confidential Information)below, Feedback will not be considered Licensee’s Confidential Information. (“Feedback” refers to any suggestion or idea for modifying any of eDP’s products or services, including without limitation all intellectual property rights in any such suggestion or idea.)
Confidential Information Defined. “Confidential Information” refers to the following which eDP discloses to the Licensee: (a) any document eDP marks “Confidential”; (b) any information eDP orally designates as “Confidential” at the time of disclosure, provided eDP confirms such designation in writing within 30 business days; (c) the non-public features and functions of the Software; and (d) any other nonpublic, sensitive information Licensee should reasonably consider a trade secret or otherwise confidential. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Licensee’s possession at the time of disclosure; (ii) is independently developed by Licensee without the use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Licensee’s improper action or inaction; or (iv) is approved for release in writing by eDP. Licensee is on notice that the Confidential Information may include eDP’s valuable trade secrets.
Nondisclosure. Licensee will not use Confidential Information for any purpose other than to facilitate the transactions contemplated by this Agreement (the “Purpose”). Licensee: (a) will not disclose Confidential Information to any employee or contractor of Licensee unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with Licensee with terms no less restrictive than those of this Article 8; and (b) will not disclose Confidential Information to any other third party without eDP’s prior written consent. Without limiting the generality of the foregoing, Licensee will protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Licensee will promptly notify eDP of any misuse or misappropriation of Confidential Information that comes to Licensee’s attention. Notwithstanding the foregoing, Licensee may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Licensee will give eDP prompt notice of any such legal or governmental demand and reasonably cooperate with eDP in any effort to seek a protective order or otherwise to contest such required disclosure, at eDP’s expense.
Injunction. Licensee agrees that breach of this Article 8 would cause eDP irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, eDP will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.
Termination & Return. With respect to each item of Confidential Information, the obligations of Section 8.2 above (Nondisclosure) will terminate 2 years after the date of disclosure; provided that such obligations related to Confidential Information constituting eDP’s trade secrets will continue so long as such information remains subject to trade secret protection pursuant to applicable law. Upon termination of this Agreement, Licensee will return all copies of Confidential Information to eDP or certify, in writing, the destruction thereof.
Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. eDP will retain all right, title, and interest in and to all Confidential Information.
Exception & Immunity
Pursuant to the Defend Trade Secrets Act of 2016, 18 USC Section 1833(b) (the “DTSA”), Licensee is on notice and acknowledges that, notwithstanding the foregoing or any other provision of this Agreement:
IMMUNITY. An individual will not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that- (A) is made- (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and(ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
USE OF TRADE SECRET INFORMATION IN ANTI-RETALIATION LAWSUIT. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual- (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to a court order.
From Both Parties. Each party represents and warrants that it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement.
Warranty Disclaimers. Except for the express warranties in this Section, THE SOFTWARE IS PROVIDED “AS IS” AND eDP MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. eDP does not warrant that the Software will perform without error or that it will run without immaterial interruption. eDP provides no warranty regarding, and will have no responsibility for, any claim arising out of: (a) a modification of the Software made by anyone other than eDP, unless eDP approves such modification in writing; or (b) use of the Software in combination with any operating system not authorized in the Specifications or Documentation or with hardware or software specifically forbidden by the Specifications or Documentation.
Licensee will defend and indemnify eDP and eDP’s Associates (as defined below) against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of or related to: (a) Licensee’s breach of this Agreement; (b) revisions to the Software made without eDP’s written consent; (c) Licensee’s failure to incorporate Updates; (d) eDP’s modification of Software in compliance with specifications provided by Licensee; or (e) use of the Software in combination with hardware or software not permitted by eDP. (As used in this Article 10, eDP’s “Associates” are its officers, directors, shareholders, subsidiaries, agents, successors, and assigns.)
Dollar Cap. eDP’S CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT PAID BY CUSTOMER TO eDP DURING THE 12-MONTHS PRIOR TO THE DATE ON WHICH THE RELEVANT CLAIM ARISES.
Excluded Damages. IN NO EVENT WILL eDP BE LIABLE FOR LOST PROFITS OR LOSS OF BUSINESS OR FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS ARTICLE 11APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF eDP IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Article 11, eDP’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, eDP’s liability limits and other rights set forth in this Article 11 apply likewise to eDP’s affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.
Term. This Agreement will remain in effect for 1 month from the Effective Date (the “Term”). Thereafter, the Term will renew for successive 1 month periods, unless either party refuses such renewal by written notice 30 or more days before the end of the current Term
Termination for Cause. Either party may terminate this Agreement for the other’s material breach by written notice specifying in detail the nature of the breach, effective in 30 days unless the other party first cures such breach, or effective immediately if the breach is not subject to cure.
Termination by eDP. eDP may terminate this Agreement at any time: (a) to protect its interests, (b) to comply with an agreement with a broker, (c) to protect a relationship with a broker, and (d) for any reason, in its sole discretion.
Effects of Termination. Upon termination of this Agreement, Licensee will cease all use of the Software and delete, destroy, or return all copies of the Documentation in its possession or control. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Licensee to pay fees incurred before termination; (b) Articles and Sections 2.2 (Restrictions on Software Rights) 7 (IP & Feedback),8 (Confidential Information), 9.2 (Warranty Disclaimers), 10 (Indemnification), and 11 (Limitation of Liability); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.
If the parties are unable to negotiate in good faith a resolution to any dispute arising out of or in connection with this Agreement, the parties will resolve such dispute in the manner set forth below:
Mediation. Except for any situation involving a request for injunctive or similar relief, before instituting any other dispute mechanism, the parties will conduct at least one mediation session using a mutually acceptable neutral mediator qualified under Michigan Court Rule 2.411. The mediation may be conducted by phone, web conference, or any similar means by agreement of the parties.
Arbitration. If the parties are unable to resolve the dispute through mediation, either party may elect for the dispute to be decided by final and binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) but will not be administered by the AAA. The arbitration will be conducted by private party administration consisting of a one (1) person panel that the parties jointly select, who will be responsible for setting hearing dates and administration of the arbitration. In the event the parties cannot agree on a single arbitrator, each party will select one (1) arbitrator, and the two arbitrators so selected will select one (1) arbitrator who will be responsible for setting hearing dates and administration of the arbitration. The arbitrator will issue a final and binding award, which will be in the form a standard award consistent with the AAA’s rules then in effect. The parties agree that no awards of punitive damages may be made. Any counterclaims must be brought in the first filing by a party or will be barred. The Arbitrator should have no authority to change or modify the Agreement. The costs of such arbitration will be paid equally by the parties and each party will be responsible for its own attorneys’ fees, costs and expenses, except as otherwise provided in this Agreement. The arbitration award may be entered as a final judgment in any court having jurisdiction thereon. The arbitration will be held in Lansing, Michigan, or a location mutually agreeable to the parties within the United States. Any dispute as to whether a controversy or claim is subject to arbitration will be submitted as part of the arbitration proceeding. Notwithstanding anything contained in this Agreement to the contrary, nothing in this Agreement will preclude, prevent or delay either party from commencing a lawsuit in any court of competent jurisdiction, which seeks a temporary restraining order, preliminary injunctive relief and/or a possession order compelling claim and delivery.
Notice. Written notice of a claim will be given to the other party not later than 90 days after the occurrence giving rise to the dispute becomes known or should have become known. Negotiations and mediation will occur within 60 days after such notice. Unless a longer time is agreed upon, arbitration must be demanded within 120 days after such notice and, if not, the claim is deemed waived. Arbitration must be demanded within this time limit even if negotiation or mediation has not occurred, but the arbitrator must direct the parties to mediation before issuing an award.
Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf.
Notices. All notices and other communications required or permitted under this Agreement must be in writing and must be sent to the party at that party’s address at whatever address the party specifies in writing. Licensee consents to electronic notice for notices which may be delivered electronically, including but not limited to by email at the email address provided by the Licensee.
Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes, or other labor disputes, states of emergency, pandemics, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.
Assignment & Successors. Licensee may not assign this Agreement or any of its rights or obligations hereunder without eDP’s express written consent. Except to the extent forbidden in this Section 14.4, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.
Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
U.S. Government Restricted Rights. The Software and Documentation are commercial items, as that term is defined in 48 CFR 2.101, consisting of commercial computer software and commercial computer software documentation, as those terms are used in 48 CFR 12.212. If the Software or Documentation is acquired by or on behalf of the U.S. government or by a U.S. government contractor (including without limitation prime contractors and subcontractors at any tier), then in accordance with 48 CFR 227.7202-4 (for Department of Defense licenses only) and 48 CFR 12.212 (for licenses with all federal government agencies), the government’s rights to the Software and Documentation are limited to the commercial rights specifically granted in this Agreement, as restricted by this Agreement. The rights limited by the preceding sentence include, without limitation, any rights to reproduce, modify, perform, display, disclose, release, or otherwise use the Software or Documentation. This Section 14.7 does not grant Licensee any rights not specifically set forth in this Agreement.
Bankruptcy Rights. The rights and licenses granted to Licensee in Sections 2.1 (License) and 2.3 (Documentation) above (collectively, the “License Provisions”) are licenses to “intellectual property” rights, as defined in Section 365(n) of the United States Bankruptcy Code (11 U.S.C. Sections 101, et seq.). If eDP is subject to any proceeding under the United States Bankruptcy Code, and eDP as debtor in possession or its trustee in bankruptcy rejects this Agreement, Licensee may, pursuant to 11 U.S.C. Section 365(n)(1) and (2), retain any and all rights granted to it under the License Provisions to the maximum extent permitted by law. This Section 14.8 will not be construed to limit or restrict any right or remedy not set forth in this Section 14.8, including without limitation the right to retain any license or authority this Agreement grants pursuant to any provision other than the License Provisions.
Choice of Law & Jurisdiction: This Agreement will be governed solely by the internal laws of the State of Michigan, including without limitation applicable federal law, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of the city of Lansing, Michigan, and Ingham County. This Section 14.9 governs all claims arising out of or related to this Agreement, including without limitation tort claims.
Conflicts. Licensee acknowledges that if access to the Software has been provided by their broker, this Agreement does not supersede any of the terms and conditions which may be set forth in the Licensee’s broker customer account agreement and that Licensee is still bound by such. In the event of any conflict between the terms of this Agreement and those of the broker customer account agreement, the broker customer account agreement will control.
Technology Export. Licensee will not: (a) permit any third party to access or use the Software in violation of any U.S. law or regulation; or (b) export the Software or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Licensee will not permit any third party to access or use the Software in, or export it to, a country subject to a United States embargo (as of the Effective Date, Cuba, Iran, North Korea, Sudan, and Syria). If the Software is used by Licensee outside of the United States, Licensee will not export the Software nor any other technical data received from eDP, nor the direct product thereof, except as permitted by the laws and regulations of the United States and the laws and regulations of the jurisdiction in which Licensee obtained the Software.
Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.
eDP may update or amend this Agreement at any time through its standard update processes. In such case, the effective date will be immediate and disclosed in the update.
eDP may also amend this Agreement from time to time by posting an amended version at its website and sending Licensee written notice of the amendment. Such amendment will be deemed accepted and become effective 30 days after such notice (the “Proposed Amendment Date”) unless Licensee first gives eDP written notice of rejection of the amendment. In the event of such rejection, this Agreement will continue under its original provisions, and the amendment will become effective at the start of Licensee’s next Term following the Proposed Amendment Date (unless Licensee first terminates this Agreement pursuant toArticle 12, Term & Termination).
Licensee’s continued use of the Software following the effective date of an amendment will confirm Licensee’s consent to the amendment.
This Agreement may not be amended in any other way except through a written agreement by authorized representatives of each party.