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MPI STYLUS SUITE END USER SOFTWARE LICENSE AGREEMENT

MPI STYLUS SUITE END USER

SOFTWARE LICENSE AGREEMENT

 

IMPORTANT - READ CAREFULLY BEFORE INSTALLING THIS SOFTWARE

 


BY CLICKING THE ACCEPTANCE BUTTON OR INSTALLING OR USING THE SOFTWARE YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, LICENSOR IS NOT WILLING TO LICENSE THE SOFTWARE TO YOU, THE BUTTON INDICATING NON-ACCEPTANCE MUST BE SELECTED, AND YOU MUST NOT INSTALL OR USE THE SOFTWARE.

BY CLICKING THE ACCEPTANCE BUTTON AND/OR DOWNLOADING, COPYING, INSTALLING OR OTHERWISE USING THIS SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS LICENSE, THAT YOU UNDERSTAND IT, AND THAT YOU AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.

LICENSE TERMS AND CONDITIONS

  1. Grants. Markov Processes International Corp ("Licensor') grants to the End User ("Licensee") a nonexclusive single-user license to use the product known by the trade name "mpi Stylus Suite", a returns-based investment style analysis tool (the "Software"). This Agreement permits the use of the Software only by the Licensee registered by Licensor, and the service and support personnel of such Licensee ("Operators".) Where a Licensee or an Operator has access to more than one computer, such Licensee or Operator may install the Software onto each computer. However, regardless of the number of computers on which the Software is installed, only the Licensee and Operators have the right to access and use the Software. The license granted herein shall not be assigned or transferred to nor shall it be sublicensed to any other party.

  2. Distribution of Output. Licensee may employ the Software to generate reports, charts, graphs, documents and other materials ("Output") for Licensee's internal use. Use of Output in published research reports, presentations, speeches, and communications with clients and their investment managers, is permitted as long as the credit "Created with MPI Stylus" is included with the material. A Client is a party or organization to which the Licensee is directly and solely responsible for delivering investment advisory or professional services. No other party may make use of the Output for servicing a Client of the Licensee or a client of the party without having entered into a separate license agreement with the Licensor.

  3. Term. The term of this Agreement is one (1) year and shall commence (a) upon its acceptance by the Licensee and (b) upon the Notification of the Licensee by the Licensor by e-mail of the availability of and the means by which the Software may be downloaded by the Licensee from the Licensor's web site. Licensee has the option to terminate this Agreement within seven (7) days of its commencement and to receive a full refund of the license fee, provided that written notice is sent to the Licensor by U.S. Postal Service Express Mail or by private courier on or before the seventh day following Notification certifying that the Software has been removed from the computer(s) on which it was installed by the Licensee and that all copies of the Software have been destroyed. The term of this Agreement may be renewed for additional successive one (1) year periods by Licensor providing an invoice to Licensee, at least thirty (30) days prior to the expiration of the then-current term, for the annual fee payable for the subsequent renewal term. Licensee's payment of such invoice shall constitute its acceptance of the renewal term. If Licensee does not pay such invoice or otherwise accept such renewal, in writing, prior to the expiration of the then current term, then this Agreement shall expire at the end of that term. Within ten (10) days of the expiration or termination of this Agreement, Licensee shall return the Software to Licensor or, upon Licensor's request, certify the destruction of all copies of the Software. Should Licensor breach the terms and conditions of this Agreement, Licensee may terminate this Agreement and the license hereunder with ten (10) days prior notice to Licensor and receive a pro-rata refund of any prepaid fees upon the return or destruction of the Software as described above. Similarly, should the Licensee breach the terms and conditions of this Agreement, Licensor may terminate this Agreement and the license hereunder with ten (10) days prior notice to Licensee. No refunds shall be provided if this Agreement is terminated due to Licensee's breach.

  4. Fee. Licensee agrees to pay Licensor an annual fee for the license granted in Section 1. Licensee will not be granted any right to use the Software or to renew such rights hereunder, until Licensor has received the applicable payment relating to such license. Licensor may change the annual license fee at its sole discretion on any one (1) year anniversary date by giving at least sixty (60) days written notice of said intention to change the fee to Licensee. All federal, state, municipal or other governmental taxes now or hereafter imposed on the license (other than taxes on the income of the Licensor) shall be paid by Licensee.

  5. Maintenance, Training and Support. Licensor will provide Licensee with Software maintenance and support at no additional charge to Licensee. Support will be rendered via e-mail, a FAQ (frequently asked questions) module on Licensor's web site, and internet delivered basic user training sessions. Maintenance includes updates and enhancements to the Software available during the term of this Agreement and correction of all verifiable errors in the Software.

  6. Title.

    (a) Ownership. Title to the original and any copies of the Software is expressly retained by Licensor. Licensee has no ownership or other proprietary rights in and to the Software. Rather, Licensee has a license to use the Software, pursuant to the terms of this Agreement, as long as this Agreement remains in full force and effect. Ownership of the Software, documentation and all intellectual property rights therein shall remain at all times with Licensor and/or any third parties from which Licensor licenses any such rights. Any other use of the Software by any person, business, corporation, government organization or any other entity is strictly forbidden and is a violation of this Agreement.

    (b) Actions not Permitted. The license and right to use the Software does not entitle the Licensee to publish, display, disclose, rent, lease, modify, loan, distribute or create derivative works based on the Software, or any part thereof. Licensee may not reverse engineer, decompile, translate, adapt, or disassemble the Software, nor shall Licensee attempt to create the source code from the object code for the Software. The Software is supplied to Licensee by Licensor solely in object code.

    (c) Copyrights. The Software and documentation contain certain property that is protected by United States Copyright Law and trade secret law, and by international treaty provisions. Licensor is the owner of or has obtained the rights to use all copyrighted materials contained in the Software. All rights granted to Licensee herein are reserved to Licensor.

    (d) Trademarks. Licensee acknowledges Licensor's proprietary interest in the trademark "mpi Stylus Suite" and all other trademarks and logos used in connection with the Software. Licensee acknowledges that such trademarks and any related goodwill are the property of Licensor and Licensee agrees not to (and not to cause any third party to) infringe upon or harm the rights of Licensor in its trademarks or to use similar marks, works or symbols, except as expressly permitted under the terms of this Agreement. Licensee may use the trademarks only in a manner that is consistent with Licensor's ownership thereof. Licensee will not seek or obtain trademark registration for any of Licensor's trademarks, or product names, or any confusingly similar marks or names, without Licensor's prior written consent, which may be withheld for any reason.

  7. Warranties and Disclaimer, Limitation of Liability.

    EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT THE SOFTWARE AND DOCUMENTATION ARE PROVIDED ON AN "AS IS" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT LICENSOR DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET ANY REQUIREMENTS OR NEEDS LICENSEE MAY HAVE, OR THAT THE SOFTWARE WILL OPERATE ERROR FREE, OR IN AN UNINTERRUPTED FASHION, OR THAT ANY DEFECTS OR ERRORS IN THE SOFTWARE WILL BE CORRECTED, OR THAT THE SOFTWARE IS COMPATIBLE WITH ANY PARTICULAR PLATFORM. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, LICENSOR IS NOT OBLIGATED TO PROVIDE ANY UPDATES TO THE SOFTWARE.

    IN NO EVENT WILL LICENSOR BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, OR FOR ANY CLAIM BY ANY OTHER PARTY, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT LICENSOR'S LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS LICENSE OR OTHERWISE WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION OR OTHERWISE SHALL NOT EXCEED THE AMOUNT OF THE FEES PAID BY LICENSEE TO LICENSOR DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF SUCH LIABILITY.

  8. Confidentiality. For the duration of this Agreement and thereafter, neither party will reveal, divulge or make known to any person, firm, corporation or other business organization, and shall not directly or indirectly use for its own benefit, or for the benefit of anyone else, any secret or confidential information of the other party, including, without limitation: any trade secrets; business plans; accounting and financial information; customer information and lists; internal business procedures; patents, trademarks, copyrights and other intellectual property rights; and marketing information. Confidential information shall not include any information which (a) is or becomes generally available or known to the public, other than as a result of any disclosure by the receiving party or its directors, officers, employees, agents, representatives, partners, and affiliates (each, a "Representative") in violation hereof; (b) is or becomes available to the receiving party on a non-confidential basis from any source other than the disclosing party or a Representative thereof, other than any such source that the receiving party or any of its Representatives knows or should know is prohibited by a legal, contractual, or fiduciary obligation to the disclosing party from disclosing such information; or (c) is independently developed by without any of the confidential information of a disclosing party.

    Licensee shall not provide or disclose the Software in any manner to any other developer or vendor of software products.

    Without intending to limit the remedies available to Licensor, Licensee agrees that damages at law will be an insufficient remedy to Licensor in the event that Licensee violates the terms of this Section 8, and that Licensor may apply for and obtain immediate injunctive relief in any court of competent jurisdiction to restrain the breach or threatened breach of, or otherwise to specifically enforce, any of the agreements and covenants contained herein.

    The obligations of Licensee hereunder will survive the termination of this Agreement.

  9. Indemnification. Licensee represents and warrants that (a) he or she is not a minor and has the requisite authority to enter into this License; and (b) he or she will not use the Software or documentation in any manner other than as authorized pursuant to the terms and conditions of this Agreement. Licensee shall indemnify and hold harmless Licensor, its directors, officers, employees and agents from and against any and all claims, demands, damages, losses, liabilities, suits and expenses (including reasonable attorneys' fees) arising out of or by reason of (i) any breach or alleged breach by Licensee of any of his or her representations, warranties or agreements made by him or her in this Agreement or (ii) any errors or omissions made by Licensee and/or any of his or her employees or Operators in utilizing the Software and/or providing services to Licensee's clients and other third parties.

  10. Miscellaneous. This Agreement shall be governed by the laws of the State of New Jersey. This Agreement may not be altered or modified except by written instrument duly executed by both parties. Each party agrees that this Agreement is the complete and exclusive statement between the parties which supersedes and merges all prior proposals, understandings and other agreements, oral or written, between the parties relating to this Agreement.