TS-API License

CYGNUS SYSTEMS – SOFTWARE LICENSE AGREEMENT

PRODUCT: TRADING-SYSTEM-API
LICENSE VERSION: 3.0 (SEP 2017)

IMPORTANT – READ CAREFULLY:

THIS SOFTWARE LICENSE AGREEMENT IS A LEGAL AGREEMENT BETWEEN YOU AND CYGNUS SYSTEMS LTD (“Cygnus Systems”) REGISTERED IN ENGLAND UNDER COMPANY NUMBER 10369705. IF YOU ARE INSTALLING THE SOFTWARE FOR PERSONAL USE, THIS AGREEMENT APPLIES TO AND BINDS YOU PERSONALLY. IF YOU ARE INSTALLING THE SOFTWARE AS PART OF YOUR WORK FOR AN ORGANIZATION, THIS AGREEMENT APPLIES TO AND BINDS SUCH ORGANIZATION.

“LICENSEE” OR “YOU” AND “YOUR” REFER TO THE PERSON OR ENTITY THAT IS LICENSEE OF THE SOFTWARE. BY INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE THAT ACCOMPANIES THIS AGREEMENT, YOU OR SUCH ENTITY AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU OR SUCH ORGANIZATION DOES NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT USE, COPY OR INSTALL THE SOFTWARE.

THE TERMS OF THIS LICENSE AGREEMENT CONSTITUTE THE ENTIRE AGREEMENT AND UNDERSTANDING BETWEEN THE PARTIES AND SUPERSEDE ANY AND ALL PREVIOUS COMMUNICATIONS, REPRESENTATIONS OR AGREEMENTS, WHETHER WRITTEN OR ORAL, WITH RESPECT TO THE SUBJECT MATTER HEREOF. ANY TERM OR CONDITION IN ANY PURCHASE ORDER OR OTHER DOCUMENT FURNISHED BY LICENSEE THAT IS IN ADDITION TO OR INCONSISTENT WITH THIS LICENSE AGREEMENT IS HEREBY EXPRESSLY REJECTED.

THE SOFTWARE IS LICENSED AND NOT SOLD.

1. DEFINITIONS

1.1 “Application” means a software application created by a Licensed Developer to support the internal operation of Licensee’s business that makes use of or incorporates the Licensed Software in its implementation without exposing any part of the Licensed Software application programming interface either directly or indirectly.

1.2 “Licensed Developer” means an individual software developer, employed by or under contract to Licensee, for whom Licensee has paid the applicable development license fees required to authorize such person to use such products or modules to develop Applications on Licensee’s behalf. Licenses for Licensed Developers are priced on a per individual, per product basis.

1.3 “Licensed Software” means the Cygnus Systems software components, in source code or binary form, together with the user guides, build guides, reference manuals and other documentation accompanying such software components or otherwise made available by Cygnus Systems (collectively, the “Documentation”) for which Licensee has paid the applicable license fees, and any modified or updated versions of any of the foregoing made available to Licensee pursuant to Licensee’s purchase of Maintenance and Support under the same terms and conditions. Licensed Software does not include any third-party software products that may be embedded in or bundled with the Licensed Software, which products are separately licensed by the copyright holder.

1.4 “Maintenance and Support” means the technical support and software maintenance services on the Licensed Software for which Licensee has paid the applicable fees.

2. LICENSE GRANTS

2.1 Development License Grant

Subject to the terms and conditions of this License Agreement, and upon payment of the applicable fees, Cygnus Systems grants to Licensee a nonexclusive, nontransferable, perpetual, limited right and license to:

(a) permit Licensed Developers to install and use the Licensed Software, on a per product or per module basis, in source and binary code form, for the sole purpose of creating and testing Applications; and

(b) copy or have copied the Licensed Software as necessary for the purpose of exercising the rights granted under this Section 2.1 or for back-up or disaster recovery purposes, provided that Cygnus Systems’s copyright notice and other proprietary rights notices are reproduced on each copy.

3. LICENSE RESTRICTIONS AND LICENSEE RESPONSIBILITIES

3.1 Development Restrictions

The development rights granted to Licensee in Section 2.1 may only be exercised by individual developers employed by or under contract to Licensee that Licensee has designated as “Licensed Developers” and for whom Licensee has paid the applicable per product or per module development license fees. If one Licensed Developer ceases to be employed by or under contract to Licensee or permanently ceases work on projects involving the Licensed Software, then Licensee may designate an alternate developer to replace such Licensed Developer at no additional cost. However, the development license is not a concurrent license that may be used by numerous developers in shifts. Licensee may not create a programmatic interface that makes use of the Licensed Software application programming interfaces for use by any party other than Licensed Developers and must ensure that persons other than Licensed Developers do not have programmatic access to the Licensed Software either directly or indirectly.

3.2 Distribution Restrictions

Licensee can, without restrictions and without royalty payments, copy for distribution, distribute and permit deployment of Application binaries built using the licensed software on any computer so long as no headers or source code files of the licensed software are distributed.

3.3 General Use Limitations

All rights not specifically granted herein are retained by Cygnus Systems. Licensee may not, nor may Licensee permit any other person or entity to use, copy, modify, or distribute the Licensed Software (electronically or otherwise), or any copy, adaptation, transcription, or merged portion thereof, or the Documentation except as expressly authorized by Cygnus Systems.

Licensee may not, nor may Licensee permit any other person or entity to, reverse assemble, reverse compile, or otherwise translate any binary forms of the Licensed Software, except to the extent applicable laws specifically prohibit such restriction.

Licensee’s rights may not be transferred, leased, assigned, or sublicensed except for a transfer of the License Agreement in its entirety to (1) a successor in interest of Licensee’s entire business who assumes the obligations of this License Agreement or (2) any other party who is reasonably acceptable to Cygnus Systems, enters into a substitute version of this License Agreement, and pays an administrative fee intended to cover attendant costs.

No service bureau work, multiple-user license, or time-sharing arrangement is permitted, except as expressly authorized by Cygnus Systems. If Licensee uses, copies, or modifies the Licensed Software or transfers possession of any copy, adaptation, transcription, or merged portion thereof to any other party in any way not expressly authorized by Cygnus Systems, all licenses under this License Agreement are automatically terminated.

3.4 Proprietary Protection

Cygnus Systems shall have sole and exclusive ownership of all right, title, and interest in and to the Licensed Software and all modifications and enhancements thereof (including ownership of all trade secrets and copyrights pertaining thereto), subject only to the rights and privileges expressly granted to Licensee herein by Cygnus Systems. This License Agreement does not provide Licensee with title or ownership of the Licensed Software, but only a right of limited use. Licensee must keep the Licensed Software free and clear of all claims, liens, and encumbrances.

3.5 Compliance Verification

Licensee must have a commercially-reasonable process in place to track the number of developers using the Licensed Software in order to ensure that the appropriate license fees have been paid. Licensee will, upon Cygnus Systems’s request, certify in writing the number developers using the Licensed Software on a per product or per module basis, as of the date of the request. In the event Licensee fails to provide such certification within thirty (30) days of Cygnus Systems’s request, or, if Cygnus Systems reasonably believes that a certification provided by Licensee is inaccurate, Licensee will permit Cygnus Systems, or a mutually-approved independent representative, to enter Licensee’s premises, during regular business hours, to verify Licensee’s compliance with the terms of this License Agreement. Except as specifically provided in this License Agreement, all fees paid to Cygnus Systems are nonrefundable.

3.6 Confidentiality

Licensee agrees to maintain in confidence the source code version of the Licensed Software by using at least the same physical and other security measures as Licensee uses for its own confidential technical information and documentation, but in no case less than reasonable measures. Licensee further agrees not to disclose the source code version of the Licensed Software, or any aspect thereof (including, without limitation, header files), to anyone other than employees or contractors who have a need to know or obtain access to such information in order to support Licensee’s authorized use of the Licensed Software and are bound to protect such information against any other use or disclosure. Licensee agrees that all material and information relating to the Licensed Software is made available for use solely under and in accordance with the terms and conditions of this License Agreement. Licensee has no right at any time during or after cancellation or termination of this License Agreement to disclose such material and/or information relating to the Licensed Software, whether directly or indirectly, to any third party without Cygnus Systems’s prior written approval. Licensee shall hold harmless, defend and indemnify Cygnus Systems from and against any and all losses, costs, damages and expenses arising out of or in connection with Licensee’s failure to comply with requirements of this Section.

3.7 Development of Applications

The Licensed Software is intended for use by sophisticated developers. Licensee is responsible for selecting persons who are qualified to use the Licensed Software on Licensee’s own equipment and are familiar with the Licensed Software. Licensee is also responsible for ensuring a proper environment and proper utilities for the development and execution of Applications utilizing the Licensed Software. Licensee represents that it has the requisite expertise to evaluate the suitability of the Licensed Software and that it has undertaken its own investigation of the suitability of the Licensed Software in the Applications. Licensee represents that it has relied upon its own skill and judgment in selecting the Licensed Software and developing the Applications.

3.8 Relationship with End Users

There are no third party beneficiaries to this License Agreement. Consequently, Cygnus Systems provides no warranty at all to any person, other than the limited warranty provided to Licensee hereunder. Licensee will be solely responsible for the development of the Applications authorized by this License Agreement and for providing all support or services required or requested by end users of the Applications. Licensee will not make any representations or warranties to its employees, customers, end users or any other third party on Cygnus Systems’s behalf. Cygnus Systems assumes no responsibility under this License Agreement, either directly or indirectly, for damages to Licensee or third parties resulting from the direct or indirect use of the Applications created by or on behalf of Licensee.

3.9 Remedies

Licensee acknowledges that, in the event of Licensee’s breach of any of the foregoing provisions, Cygnus Systems will not have an adequate remedy in money or damages. Cygnus Systems will therefore be entitled to obtain an injunction against such breach from any court of competent jurisdiction immediately upon request without posting a bond. Cygnus Systems’s right to obtain injunctive relief shall not limit its right to seek further remedies.

4. MAINTENANCE AND SUPPORT OF LICENSED SOFTWARE

Cygnus Systems or its authorized resellers shall provide Maintenance and Support on the Licensed Software at the level and for the period for which Licensee has paid the applicable fees. Maintenance and Support services provided by Cygnus Systems are provided in accordance with Cygnus Systems’s standard maintenance and support and obsolescence policies, which are subject to change. Maintenance and Support is limited to platforms listed on Cygnus Systems’s current product support matrix, which is also subject to change. Licensee is responsible for ensuring that its environment is on the current product support matrix. Off-matrix support is available from Cygnus Systems for an additional fee in a quote generated by Cygnus Systems, at the end of the initial maintenance and support term.

5. LIMITED WARRANTY, DISCLAIMER AND LIMITATION OF LIABILITY

5.1 Limited Warranty

Cygnus Systems warrants to Licensee and for Licensee’s benefit only that the unaltered Licensed Software, when used as permitted under the License Agreement and in accordance with the instructions in the Documentation, will operate substantially as described in the Documentation for a period of thirty (30) days from the date of delivery (the “Software Warranty Period”). The Licensed Software is provided to Licensee as source code and is for use by sophisticated software developers, and Cygnus Systems does not warrant that use of the Licensed Software will be uninterrupted or error-free, or that all errors will be corrected, or that use of the Licensed Software will meet Licensee’s needs.

Cygnus Systems will, at its own expense and as its sole obligation and Licensee’s sole and exclusive remedy for any breach of this warranty, use commercially reasonable efforts to correct any reproducible error in the Licensed Software reported to Cygnus Systems by Licensee in writing during the Software Warranty Period; provided, however, that no such error correction provided to Licensee will extend the original Software Warranty Period. If Cygnus Systems determines that it is unable to correct the error, Cygnus Systems may, upon approval by Licensee, refund to Licensee the fees paid by the Licensee for the defective Licensed Software and terminate the License Agreement and all licenses granted herein. In the event Licensee does not approve of such refund and termination of the License Agreement, Licensee will be entitled to keep the Licensed Software and use it pursuant to the licenses granted herein; provided, however, that Cygnus Systems will not be obligated to provide Maintenance and Support for the Licensed Software that is impacted by the reported defect.

5.2 Exclusions

The limited warranty set forth above will not apply to defects resulting from, or because of, modifications made to the Licensed Software by anyone other than Cygnus Systems, misuse, failure of media not furnished by Cygnus Systems, operation with media, software or equipment not authorized by Cygnus Systems in the Documentation or not meeting or not maintained in accordance with the supplier’s specifications, or causes other than ordinary use. The warranty set forth above will not be enlarged, diminished or affected by, and no obligation or liability will arise from, Cygnus Systems’s rendering of technical advice, assistance or service in connection with Licensee’s selection or use of the Licensed Software.

Certain open source or other-vendor software may be distributed with the Licensed Software. Such products are provided or recommended for Licensee’s convenience only. Cygnus Systems makes no representation or warranty of any kind regarding such products. Cygnus Systems offers no support for such products and shall have no liability associated with their use. Licensee’s use of these products shall be in accordance with the licenses for such products, copies of which are included with the products and/or in the Cygnus Systems documentation.

5.3 DISCLAIMER

EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 5.1 ABOVE, THE LICENSED SOFTWARE IS PROVIDED “AS IS,” WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. CYGNUS SYSTEMS SPECIFICALLY DISCLAIMS ALL OTHER PROMISES, REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE OR COURSE OF DEALING.

5.4 LIMITATION OF LIABILITY

THE CUMULATIVE LIABILITY OF CYGNUS SYSTEMS TO LICENSEE FOR ALL CLAIMS RELATING TO THE LICENSED SOFTWARE AND THIS LICENSE AGREEMENT, INCLUDING ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, SHALL NOT EXCEED THE TOTAL AMOUNT OF ALL LICENSE FEES PAID TO CYGNUS SYSTEMS HEREUNDER. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS LICENSE AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. CYGNUS SYSTEMS SHALL HAVE NO LIABILITY FOR LOSS OF DATA OR DOCUMENTATION, IT BEING UNDERSTOOD THAT LICENSEE IS RESPONSIBLE FOR REASONABLE BACK-UP PRECAUTIONS. IN NO EVENT SHALL CYGNUS SYSTEMS BE LIABLE FOR ANY LOSS OF PROFITS; ANY INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES; OR ANY CLAIMS OR DEMANDS BROUGHT AGAINST LICENSEE, EVEN IF CYGNUS SYSTEMS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIMS OR DEMANDS. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS LICENSE AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. LICENSEE MAY HAVE ADDITIONAL RIGHTS UNDER CERTAIN LAWS (E.G., CONSUMER LAWS) THAT DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF SUCH LAWS APPLY, CERTAIN EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO LICENSEE; HOWEVER, ALL OTHER RESTRICTIONS AND LIMITATIONS SHALL REMAIN IN EFFECT.

6. INDEMNIFICATION

In the event the Licensed Software is held or is believed by Cygnus Systems to infringe a third party patent or copyright, Cygnus Systems will, at its sole option and expense, elect to (a) modify the Licensed Software so that it is non-infringing; (b) replace the Licensed Software with noninfringing Licensed Software which is functionally equivalent; (c) obtain a license for Licensee to continue to use the Licensed Software as provided hereunder; or if none of (a), (b), or (c) is commercially reasonable, then (d) terminate the license for the infringing Licensed Software and refund the license fees paid for that Licensed Software, prorated over a five (5) year term from the Effective Date. THIS SECTION 6 STATES CYGNUS SYSTEMS’S ENTIRE LIABILITY AND LICENSEE’S SOLE AND EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OF THIRD PARTY PROPRIETARY RIGHTS OF ANY KIND.

7. TERMINATION

7.1 Term

The term of this License Agreement will begin as of the date that Licensee receives the Licensed Software and will remain in effect perpetually unless terminated under this Section 7.

7.2 Termination for Convenience

Licensee may terminate this License Agreement for any reason, or for no reason, by giving Cygnus Systems thirty (30) days written notice.

7.3 Termination for Cause

Cygnus Systems may terminate this License Agreement if Licensee breaches its obligations hereunder. Cygnus Systems will effect such termination by giving Licensee notice of termination, specifying therein the alleged breach. If the breach is curable, Licensee will have a grace period of thirty (30) days after such notice is served to cure the breach described therein. If the breach is cured within the thirty (30) day grace period, then this License Agreement will remain in effect; otherwise, this License Agreement will automatically terminate upon the conclusion of the thirty (30) day grace period.

7.4 Effect of Termination

Upon termination of the License Agreement for any reason the following terms shall apply:

(a) all rights granted under this License Agreement will immediately terminate and Licensee must immediately stop all use of the Licensed Software;

(b) Licensee must return to Cygnus Systems or destroy all copies of the Licensed Software provided to or made by or on behalf of Licensee, and will, within ten (10) days after the effective date of termination, provide Cygnus Systems with written certification that all such copies have been returned or destroyed; and

(c) all provisions of this License Agreement with the exception of the licenses granted in Section 2 and Maintenance and Support obligations set forth in Section 4 will survive termination of this License Agreement for any reason. Termination of the License Agreement will not affect Licensee’s obligation to pay all amounts accrued hereunder prior to the effective date of termination. Licensee agrees that the termination of this Agreement by Cygnus Systems can never entail liability for Cygnus Systems to pay damages to Licensee for anticipated or missing profits that could otherwise have arisen through Licensee’s use of the License.

8. MISCELLANEOUS

8.1 Severability

If any term or provision of the License Agreement is found to be invalid under any applicable statute or rule of law, then, that provision notwithstanding, the License Agreement will remain in full force and effect, and in such event, such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.

8.2 Governing Law/Forum Selection

The parties agree that the U.N. Convention on the International Sale of Goods shall not apply to the License Agreement.
Any and all disputes between the parties shall be brought and resolved solely and exclusively in the courts located in the licensee’s home jurisdiction or the courts of England and Wales.

8.3 No Joint Venture

Nothing contained in the License Agreement will be construed so as to make the parties partners or joint venturers or to permit either party to bind the other party to any agreement or purport to act on behalf of the other party in any respect.

8.4 Waiver and Modifications

Failure by Cygnus Systems to enforce any rights under this License Agreement will not be construed as a waiver of such rights, and a waiver in one or more instances will not be construed as constituting a continuing waiver or as a waiver in other instances. No modification of this License Agreement shall be binding unless it is in writing and is signed by an authorized representative of the party against whom enforcement of the modification is sought.

8.5 English Language

The parties hereto have expressly required that the present License Agreement be drawn up in the English language. (Les parties aux présentes, ont expressément exigé que la présente Convention soient rédigées en langue anglaise)

9. EVALUATION LICENSE

If You obtained the software for evaluation purposes, subject to the terms of this License Agreement, Cygnus Systems grants You a nonexclusive license to install and use the software on computers owned or operated by You and which are subject to Your control, for purposes of testing and evaluation. Provided You include all Cygnus Systems copyright, trademark, and government notices in each copy of the software, You may make a reasonable number of copies of the software to accomplish the foregoing. You may not: (i) duplicate, distribute, publish, transfer, sublicense, or make software available in any form to others; or (ii) assign, sublicense or transfer any license granted herein. You may not export software to another country. Cygnus Systems retains sole and exclusive ownership of all right, title, and interest in and to the software and associated materials, and all copies thereof including changes made by You. The term of the evaluation license is THIRTY (30) days, unless terminated as provided herein or extended in Cygnus Systems’s sole discretion. Cygnus Systems may, at its option at any time, in addition to other available remedies, with or without cause, terminate this license. Upon termination or expiration of the evaluation license You are required to return or destroy, as requested by Cygnus Systems, all copies of the software in your possession and all other materials pertaining to the Software, including all copies thereof. You agree to certify your compliance with such requirement upon Cygnus Systems’s request. Software provided under an evaluation license is provided “AS IS” with NO WARRANTY. Cygnus Systems MAKES AND YOU RECEIVE NO WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY. CYGNUS SYSTEMS SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL CYGNUS SYSTEMS BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER UNDER THE EVALUATION LICENSE, INCLUDING BUT NOT LIMITED TO DIRECT, CONSEQUENTIAL, INDIRECT, SPECIAL, OR INCIDENTAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10. ACADEMIC USE

Academic license rights may only be exercised by a teacher or student at an accredited institution organized and operated exclusively for the purpose of teaching its enrolled students (e.g., a university, college or high school), which has been granted a discount to authorize such person to use the Licensed Software solely for student instruction and learning. Academic discounts are not applicable to satellite organizations of such institutions such as research laboratories and hospitals. THE LICENSED SOFTWARE IS PROTECTED BY UNITED KINDOM COPYRIGHT LAW AND INTERNATIONAL TREATY. UNAUTHORIZED REPRODUCTION OR DISTRIBUTION IS SUBJECT TO CIVIL AND CRIMINAL PENALTIES.

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