This Member Agreement (this “Agreement”) contains the terms and conditions that govern your access to and use of the Service (as defined below) and is an agreement between StocksToTrade.Com, Inc. (“we,” “us,” “our,” “StocksToTrade,” or the “Company”, or “Vendor”) and you or the entity you represent (“Licensee” or “you”). This Agreement takes effect when you sign a Subscription Order and choose to download any Pre-Release (“Beta”, “Alpha” or “Testing”) software or, if earlier, when you use the Service (the “Effective Date“). You represent to us that you are lawfully able to enter into contracts (e.g., you are age of 18 or older). This agreement is an extension of the Terms of Service & User Agreement.
1. BETA DISCLAIMER
THE PRE-RELEASE SOFTWARE LICENSED HEREUNDER IS BELIEVED TO CONTAIN DEFECTS AND A PRIMARY PURPOSE OF THIS BETA TESTER LICENSE AGREEMENT IS TO OBTAIN FEEDBACK ON THE PRE-RELEASE SOFTWARE PERFORMANCE AND THE IDENTIFICATION OF DEFECTS. LICENSEE IS ADVISED TO SAFEGUARD IMPORTANT DATA, TO USE CAUTION, AND NOT TO RELY IN ANY WAY ON THE CORRECT FUNCTIONING OR PERFORMANCE OF THE PRE-RELEASE SOFTWARE AND/OR ACCOMPANYING MATERIALS.
- Vendor is in the process of developing the Pre-Release Software, which Vendor hopes to market in the near future.
- Vendor would like to field-test a preliminary version of its Pre-Release Software so as to further refine and modify the product before it is generally released.
- Licensee has expressed an interest in licensing a copy of the Pre-Release Software in advance of the Pre-Release Software’s general release in order to evaluate the Pre-Release Software for Licensee’s own purposes and to assist Vendor in refining and modifying the Pre-Release Software so that the Pre-Release Software becomes more useful for the Pre-Release Software’s intended market (“Beta Test”).
- In exchange for early access to the Pre-Release Software, Licensee agrees to serve as a Beta Test site for the Pre-Release Software and to provide Vendor with its comments, criticisms, suggestions, and evaluations with respect to the Pre-Release Software during the Beta Test period.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
3. LICENSE GRANT
Subject to and conditioned on Licensee’s compliance with all the terms and conditions of this Agreement, Vendor hereby grants to Licensee, during the term of this Agreement, a temporary, non-exclusive, non-transferable license to use an executable version of the Pre-Release Software, for evaluation purposes, on a single microcomputer. Licensee may make copies of the Pre-Release Software for backup purposes only, provided that Licensee reproduces Vendor’s copyright and other proprietary rights notices on all such copies. This license does not include any rights to disclose, sublicense, or otherwise transfer (except in compliance with Section 8(a)) the Pre-Release Software or other proprietary information of Vendor to any third party for any reason
4. BETA TEST
Licensee understands and acknowledges that (i) it is participating in Vendor’s Beta Test for the Pre-Release Software, (ii) it is receiving a preliminary version of the Pre-Release Software, and (iii) the Pre-Release Software may not operate properly, may not perform all functions for which the Pre-Release Software is intended or represented, and may not operate error-free. Licensee agrees to use the Pre-Release Software primarily for purposes of evaluation, agrees to provide Vendor with its comments, criticisms, and suggestions for changes with respect to the Pre-Release Software, and agrees to help Vendor identify any and all errors or malfunctions in the operation of the Pre-Release Software.
Licensee agrees to use the Pre-Release Software primarily for purposes of evaluation and to participate in Vendor’s Beta Test as follows:
- Licensee’s personnel shall report each instance of any failure, functional flaws, errors, anomalies, malfunctions or problems directly or indirectly associated with the Pre-Release Software (“Program Failure”) in full (including, without limitation, description of the application then underway and the specifics of the Program Failure). If any Program Failure results in damage to files or data or if the frequency of Program Failures is excessive under the circumstances, Licensee shall also promptly notify Vendor of this fact. Copies of the reports regarding Program Failures shall be forwarded to Vendor.
- Following termination of the Beta Test period, the Licensee shall fill out a Beta Test completion survey.
- Upon Vendor’s request, Licensee agrees to immediately terminate operation of the Pre-Release Software and return any materials provided by Vendor within seven days of notification by Vendor.
- Licensee agrees to pay all regular subscription costs, in addition to any incidental costs (such as, costs for Internet and phone services, accessories, cabling, etc.) associated with the testing of the Pre-Release Software and incurred during participation in the Beta Test period.
5. INTELLECTUAL PROPERTY OWNERSHIP
The Pre-Release Software and all authorized copies thereof shall remain the exclusive property of Vendor and shall not be used in any way other than as allowed by this Agreement. Licensee acknowledges that, as between Vendor and Licensee, Vendor owns all right, title, and interest, including all intellectual property rights (including, but not limited to, patent, trademark, copyright, and trade secret rights), in and to the Pre-Release Software. If Licensee or any of its employees or contractors sends or transmits any communications or materials to Vendor by mail, email, telephone, or otherwise, suggesting or recommending changes to the Pre-Release Software, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Vendor is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Licensee hereby assigns to Vendor on Licensee’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, (and Vendor is free to use, without any attribution or compensation to any party,) any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Vendor is not required to use any Feedback. Licensee agrees to work with Vendor to execute any and all documents which may be required to effect the assignment provided hereunder.
Licensee shall not reverse engineer, alter, modify, disassemble or decompile the Pre-Release Software, or any part thereof, without Vendor’s prior written consent.
Licensee acknowledges that the Pre-Release Software and other related materials provided by Vendor, and the Beta Test results compiled by Licensee, are the confidential information of Vendor (collectively, the “Confidential Information”). Licensee agrees to use the Confidential Information only for the limited term of this license and solely for the purpose of participating in Vendor’s Beta Test, and further agrees to take all steps reasonably necessary to maintain and protect the Confidential Information in the strictest confidence for the benefit of Vendor. Licensee agrees that it will not at any time, without the express written permission of Vendor, disclose the Confidential Information directly or indirectly to any third person, except to employees of Licensee who have expressly agreed in writing to be bound by the terms of this Agreement.
Confidential Information shall not include information that is (1) already in the public domain; (2) becomes generally known or available by publication, commercial use, or general sale of copies of the Pre-Release Software by Licensee; (3) discovered or created by Licensee independent of any involvement with Vendor or the Pre-Release Software; or (4) otherwise learned by Licensee through legitimate means other than from Vendor or anyone connected with Vendor.
Licensee’s obligations with respect to the Confidential Information shall continue for the shorter of 1 (one) year from the date of its receipt of the Confidential Information, or until such information is subject to one of the exclusions set forth above.
7. DISCLAIMER OF ALL WARRANTIES
LICENSEE ACKNOWLEDGES AND UNDERSTANDS:
- THAT IT IS RECEIVING A PRELIMINARY BETA TEST VERSION OF THE PRE-RELEASE SOFTWARE; AND
- THAT THE PARTIES EXPECT THE PRE-RELEASE SOFTWARE MAY CONTAIN SIGNIFICANT ERRORS, OMISSIONS, AND PROBLEMS. LICENSEE AGREES AND ACKNOWLEDGES THAT VENDOR SHALL HAVE NO RESPONSIBILITIES TO LICENSEE TO CORRECT ANY DEFECTS OR PROBLEMS IN THE PRE-RELEASE SOFTWARE OR TO ASSURE THAT THE PRE-RELEASE SOFTWARE OPERATES PROPERLY. VENDOR DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE PRE-RELEASE SOFTWARE, WHETHER EXPRESS OR IMPLIED, INCLUDING SPECIFICALLY THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTIES RIGHTS.. THE PRE-RELEASE SOFTWARE IS PROVIDED “AS IS,” AND LICENSEE UNDERSTANDS THAT IT ASSUMES ALL RISKS OF ITS USE, QUALITY, AND PERFORMANCE.
8. DISCLAIMER OF LIABILITY
BECAUSE OF THE NATURE OF THIS BETA TEST, LICENSEE AGREES AND ACKNOWLEDGES THAT VENDOR SHALL HAVE NO LIABILITY WHATSOEVER TO LICENSEE FOR ANY PROBLEMS IN OR CAUSED BY THE PRE-RELEASE SOFTWARE, OR THE TRANSACTIONS CONTEMPLATED HEREIN WHETHER DIRECT, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL (INCLUDING LOST PROFITS).
9. TERM AND TERMINATION
The term of this Agreement shall be for a period of ninety (90) days, unless sooner terminated as provided herein. Either party, however, may terminate this Agreement at any time upon five (5) days’ written notice.
Upon termination of this Agreement, Licensee will (i) erase or otherwise destroy all copies of the Pre-Release Software that are fixed or resident in the memory or hard disks of computers owned or controlled by Licensee and (ii) return to Vendor all other existing copies (including original copies) of the Pre-Release Software.
- Assignment; Severability. This Agreement may not be assigned by Licensee or by operation of law to any other person, persons, firms, or corporations without the express written approval of Vendor. Any attempted assignment shall be null and void and shall result in the termination of the license. If any part of this Agreement is found to be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of any other part or provision of this Agreement, which shall remain in full force and effect.
- Governing Law, Venue and Forum. This Agreement shall be governed by and construed and enforced in accordance with the substantive laws of the State of California, excluding its principles of conflicts of law. The Parties submit to the jurisdiction of the federal and state courts located in Los Angeles, California to the exclusion of any other forum, to hear and decide and dispute under this Agreement. Any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof.
- Relationship of the Parties. Each party is acting as an independent contractor and not as an agent, partner, or joint venture with the other party for any purpose. Except as provided in this Agreement, neither party shall have any right, power, or authority to act or to create any obligation, express or implied, on behalf of the other.
- Headings. The titles and headings of the various sections and paragraphs in this Agreement are intended solely for convenience of reference and are not intended for any other purpose whatsoever or to explain, modify, or place any construction on any of the provisions of this Agreement.
- All Amendments in Writing. No provisions in either party’s purchase orders, or in any other business forms employed by either party, will supersede the terms and conditions of this Agreement, and no supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement.
- Entire Agreement. The parties have read this Agreement and agree to be bound by its terms, and further agree that it constitutes the complete and entire agreement of the parties and supersedes all previous communications, oral or written, and all other communications between them relating to the license and to the subject matter hereof. No representations or statements of any kind made by either party that are not expressly stated herein shall be binding on such party.
“Pre-Release” means that the software development process is still ongoing and the resulting application is not considered to be as feature complete or finished for a production release
“Beta” means that the software is considered to be feature complete but is likely to contain a number of known or unknown issues or bugs.
“Alpha” means that software development is in an early development stage and may contain serious errors, and any resulting instability could cause crashes or data loss. Alpha software may also not contain all of the features that are planned for the final version.
“StocksToTrade’s Confidential Information” means all nonpublic information disclosed by us, our affiliates, business partners or our or their respective employees, contractors or agents that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. StocksToTrade’s Confidential Information includes: (a) nonpublic information relating to our or our affiliates or business partners’ technology, customers, business plans, promotional and marketing activities, finances and other business affairs including, but not limited to our proprietary methodology providing information and education to you so that you may conduct your own investment research and consider your own investment decisions ; (b) third-party information that we are obligated to keep confidential; and (c) the nature, content and existence of any discussions or negotiations between you and us or our affiliates. StocksToTrade’s Confidential Information does not include any information that: (i) is or becomes publicly available without breach of this Agreement; (ii) can be shown by documentation to have been known to you at the time of your receipt from us; (iii) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; (iv) can be shown by documentation to have been independently developed by you without reference to the StocksToTrade’s Confidential Information; or (v) discloses your own trading activities but does not mention StocksToTrade’s proprietary methodology and other aspects of the Service.
“StocksToTrade Content” means Content we or any of its affiliates make available in connection with the Service or on the StocksToTrade’s Software and/or Site to allow access to and use of the Service; Documentation; software libraries; command line tools; and other related technology. StocksToTrade’s Content does not include the Service.
“StocksToTrade’s Marks” means any trademarks, service marks, service or trade names, logos, and other designations of StocksToTrade’s and its affiliates that we may make available to you in connection with the Service or this Agreement.
“Content” means software (including machine images), data, text, audio, video, images, DVDs or other content.
“Documentation” means the user guides and other written materials provided for in connection with the Service, as we may update from time to time.
“Policies” means the Acceptable Use Policy, the Site Terms, and all restrictions described in the StocksToTrade’s Content and on the StocksToTrade’s Site, and any other policy or terms referenced in or incorporated into this Agreement.
“Privacy Statement” means the privacy statement currently referenced at https://stockstotrade.com/privacy-policy/ , as we may update from time to time.
“Service” means each of the services made available by us or our affiliates, including any web services described in the Site Terms, the StocksToTrade Content, the StocksToTrade Marks, the StocksToTrade Site, and any other product or service provided by us under this Agreement. Service does not include Third Party Content.
“Suggestions” means all suggested improvements to the Service that you provide to us.
“Term” means the term of this Agreement described in Section 6.1.
“Third Party Content” means Content made available to you by any third party on the StocksToTrade Site or in conjunction with the Service.
“Your Content” means Content you (a) disclose, share, or upload on or to the Service, (b) cause to interface with the Services, or (c) upload to the Service under your account or otherwise transfer, process, use or store in connection with your account.
“Your Submissions” means Content that you post or otherwise submit to developer forums, sample code repositories, public data repositories, or similar community-focused areas of the StocksToTrade Site or the Service.