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EULA

Mizpah Trade Manager

End-User Licence Agreement

This End-User Licence Agreement ("EULA") is a legal agreement between you ("the Licensee") and Mizpah International Pty Ltd ("Mizpah"), ABN 48 086 795 466, trading as Mizpah Software.

 

1 Copyright © and Other Rights

 

Mizpah Trade Manager, also referred to as MTM ("this Software"), is Copyright © 2012-2021, Mizpah International Pty Ltd. ALL RIGHTS RESERVED.

 

This Software is protected by copyright laws and international copyright treaties, trademark laws and other intellectual property laws and treaties. This Software is licensed, not sold. This Software contains copyrighted material, designs, software, trademarks, graphics, images, text, trade secrets and other proprietary material of Mizpah. All rights, title and interest in this Software remain at all times with Mizpah.

 

All modifications and improvements made to this Software and derivative works of this Software created by Mizpah based in whole or in part upon the suggestions or feedback provided by the Licensee or others shall remain the sole and exclusive property of Mizpah.

 

The Licensee shall not alter or remove any copyright notices in this Software or this EULA.

 

2 Scope

 

The term "this Software" includes all documentation (including printed, electronic and online), media, computer files, executables and any other materials supplied or provided to the Licensee by Mizpah as part of the purchase of a Licence for this Software.

 

This Software includes a computer file that contains an electronic Licence Key ("the Licence Key") that contains unique information specific to the Licensee. The Licence Key also specifies the software features and capabilities licensed to the Licensee and enables this Software to be used by the Licensee in accordance with this EULA. The Licensee or the Licensee's agents may not install or use this Software in a manner that circumvents or interferes with the function of the Licence Key or any other technological measure that controls access to this Software.

 

This EULA governs licensing and use of this Software by the Licensee, regardless of whether this Software is supplied directly from Mizpah or indirectly through a Mizpah authorized reseller or distributor (a "Reseller"), or by any other means.

 

The Licensee must read this EULA carefully before completing the installation process and using this Software. This EULA grants a licence to use this Software and contains warranty information and liability disclaimers.

 

If the Licensee has registered for a free trial of this Software, this EULA also governs that trial. If the Licensee has registered as a Beta Tester of this Software, this EULA also governs that beta testing.

 

By installing, copying or using this Software, the Licensee is confirming that the Licensee has read and understands this EULA and that the Licensee accepts and agrees to be bound by the terms of this EULA currently in effect and as updated by Mizpah from time-to-time.

 

If the Licensee is entering into this EULA on behalf of a company or other legal entity, the Licensee represents that the Licensee has the authority to bind such entity and its affiliates to these terms and conditions. If the Licensee does not have such authority or if the Licensee does not agree with the terms and conditions of this EULA, the Licensee must not install, copy or use the Software, and the Licensee must not accept this EULA.

 

This EULA shall apply to this Software and any Mizpah updates, supplements, Internet-based services, and support services for this Software, unless other terms accompany those items on delivery. If so, those terms shall apply.

 

3 Ownership

 

Mizpah shall retain all right, title and interest in and to this Software, any changes, corrections, bug fixes, enhancements, supplements, updates and other modifications thereto, and all Intellectual Property Rights therein, and as between the Licensee and Mizpah all such rights shall vest in and be assigned to Mizpah. Nothing in this EULA will confer on the Licensee any right of ownership or interest in this Software and the Intellectual Property Rights therein.

 

Mizpah may modify this Software at any time, at its sole discretion and without notice to the Licensee, for any reason, including to comply with applicable law or a court order, to avoid a third-party infringement claim or to provide updates or upgrades.

 

4 Licence Grant

 

Mizpah hereby grants the Licensee a personal, non-transferable, non-exclusive, worldwide licence, without the right to sub-license, to use this Software on the Licensee's specifically licensed devices in accordance with the terms of this EULA.

 

The Licensee is permitted to load this Software on one (1) or more licensed PC or laptop computers as specified in the Licence Key, said devices being under the full control of the Licensee. The Licensee is responsible for ensuring said devices meet the minimum requirements of this Software and that said devices are running a validly licensed copy of the operating system for said devices.

 

The Licensee may not allow any third party to copy or use this Software on behalf of or for the benefit of any third party. The Licensee also may not use this Software in any way that breaches any applicable local, national or international law, nor for any unlawful or illegal activity, or to facilitate an unlawful or illegal activity, nor use this Software for any purpose that Mizpah considers is a breach of this EULA.

 

Mizpah asserts these and all other moral rights as the author and owner of this Software. This Software may not be edited, altered, modified, adapted, reproduced, copied, resold, transferred, used, disclosed, distributed, marketed, published, assigned, translated, rented, leased, loaned, delegated, shared, given away, decompiled, disassembled, reverse engineered, stored in a retrieval system or transmitted in any form or by any means, either in whole or in part, whether or not incorporated with other data or information, nor may the Licensee or an agent of the Licensee create any derivative work of any part of this Software, without the prior written permission of Mizpah.

 

Mizpah reserves the right to grant licences to use this Software to third parties.

 

5 Trial Licence

 

A Licence designated as a "Trial Licence" authorizes the Licensee to use one (1) copy of this Software for a defined time period as specified in the Licence Key for non-production evaluation or demonstration purposes only.

 

6 Limited Term and Multiple Use Licences

 

A Licence designated as a "Limited Term Licence" or a "Multiple Use Licence" authorizes the Licensee to use as many copies of this Software in a production environment as specified in the Licence Key for a defined period of time as specified in the Licence Key.

 

7 Termination

 

This EULA is effective from the date the Licensee purchases a Licence for this Software and shall continue until terminated as specified in the Licence Key provided. The Licensee may terminate it at any time upon written notice to Mizpah.

 

If the Licensee has registered for a Trial Licence of this Software, this EULA shall be effective from the time this Software is validly supplied to the Licensee and this EULA shall terminate on the date specified in the Licence Key provided for that trial.

 

If the Licensee has registered with Mizpah as, or is recognised by Mizpah as, a Beta Tester of this Software, this EULA shall be effective from the time this Software is validly supplied to the Licensee and this EULA shall terminate on the date specified in the Licence Key provided for that beta testing.

 

This EULA will also terminate immediately if the Licensee fails to comply with any term of this EULA. Upon such termination, the licence granted by this EULA will immediately terminate and the Licensee agrees to stop all access and use of this Software. Any provisions that by their nature continue and survive will survive any termination of this EULA.

 

Upon termination of this EULA, the Licensee shall uninstall this Software from all devices licensed by this EULA for this Software and shall not use this Software on any device licensed by this EULA for this Software. The Licensee shall also destroy all copies of this Software in its possession obtained under this EULA.

 

8 Maintenance and Support

 

Mizpah will notify the Licensee of any available updates and upgrades as they may be made available from time-to-time.

 

The Licensee will be entitled to receive updates free of charge during the lifetime of the Licence Key of this Software. In order to receive updates after the Licence Key expires, the Licensee must purchase a new Licence.

 

9 No Warranty

 

This Software and this EULA are provided "as is" and "with all faults", and Mizpah expressly disclaims all representations and warranties of any kind, whether express, implied, common law, custom, usage, course of dealing, trade practice, statutory or otherwise, including without limitation, warranties of design, non-infringement of intellectual property rights, title, merchantability or fitness for any particular use or purpose, or that the results or outcomes that are obtained by using this Software will be accurate or reliable, and all such warranties are hereby excluded to the fullest extent permitted by law. Without limiting the generality of the foregoing, Mizpah also makes no warranty that this Software will meet any particular person's requirements or that this Software will be secure or error free or that defects in this Software will be corrected. Mizpah disclaims all equitable indemnities.

 

No oral or written advice given by Mizpah, its dealers, distributors, representatives, resellers, agents or employees shall create a warranty or in any way increase the scope of this warranty and the Licensee may not rely upon such information or advice.

 

10 Limitations of Liability

 

Under no circumstances and in no event and under no legal theory, whether in tort (including negligence), contract, strict liability, warranty, statute or otherwise, shall Mizpah be liable to any person or any legal entity for any damages whatsoever, including, without limitation, damages for loss of goodwill, work stoppage, business interruption, computer failure or malfunction, or any and all other commercial damages or losses of revenue, savings, profits, business, goodwill, information or data, or other direct, indirect, special, incidental, punitive, exemplary or consequential damages of any character, personal injury, loss of privacy, disclosure of confidential information, or other intangible losses, arising as a result of or related to this EULA or the installation, running, use, content, performance or failure of this Software, even if Mizpah has been advised (or should have known) of the possibility of such damages, except to the extent invariable law, if any, provides otherwise.

 

The Licensee assumes ALL risks and responsibilities associated with installing, running or using this Software, including the quality and performance of this Software, as well as ALL risks and responsibilities associated with installing, running or using any other software that is based on or uses any program code from this Software.

 

11 Exclusions and Limitations

 

Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for certain damages. Accordingly, some of the above disclaimers and limitations of liability may not apply. To the extent that Mizpah may not, as a matter of applicable law, disclaim any implied warranty or limit Mizpah's liabilities, the scope and duration of such warranty and the extent of Mizpah's liability shall be the minimum permitted under such applicable law.

12 Indemnification

 

The Licensee shall indemnify, defend and hold Mizpah and its officers, directors, employees, agents, successors and assigns harmless from and against all third-party claims, suits, actions, damages, settlements, losses, liabilities, costs or expenses of whatever form or nature, including attorney's fees and other costs, arising from a claim that Mizpah violates any applicable statute, regulation, or law, or infringes any intellectual property right or other legal right of any third party (a "Claim"), and shall give Mizpah all reasonable information and assistance regarding such Claim. Mizpah will have no obligation to the Licensee for any infringement or misappropriation claim that arises from modifications to this Software by anyone other than Mizpah, use of this Software other than as specified in this EULA or in the applicable documentation, use of this Software in conjunction with third-party software, hardware or data other than that approved by Mizpah, or any combination of the foregoing.

 

The Licensee shall promptly notify Mizpah in writing of any Claim; provided that the failure to provide such notice shall not relieve the Licensee of its indemnification obligations except to the extent of any material prejudice directly resulting from such failure. The Licensee shall bear full responsibility for, and shall have the right to solely control, the defence (including any settlements) of any Claim; provided, however, that the Licensee shall keep Mizpah informed of, and consult with Mizpah in connection with the progress of such litigation or settlement and the Licensee shall not settle any such Claim in a manner that does not unconditionally release Mizpah without Mizpah's written consent, not to be unreasonably withheld or delayed.

 

13 Trading Risk Disclaimers

 

As advised by the NFA, CFTC and the FCA, trading Foreign Exchange or any other financial market ("financial markets") on margin or as a leveraged product carries a high level of risk, and may not be suitable for all investors. The high degree of leverage can work against traders as well as for traders. The Licensee must be aware of and understand all of the risks and accept them in order to invest in or trade financial markets. Before deciding to invest in or trade financial markets, the Licensee should carefully consider the Licensee's investment objectives, level of experience, and risk appetite. By undertaking these types of high-risk trades, the Licensee acknowledges that the Licensee is trading with the Licensee's available risk capital and any losses the Licensee may incur will not adversely affect the Licensee's lifestyle. The possibility exists that the Licensee could sustain a loss of some of, all of, or more than the Licensee's initial investment and therefore the Licensee should not invest or trade with money that the Licensee cannot afford to lose. The Licensee should be aware of all the risks associated with investing in and trading financial markets and seek advice from an independent financial advisor. This Software does not constitute financial advice in any form, nor does it constitute a solicitation nor an offer to Buy, Sell or Hold any financial instrument, investment or product in any financial markets. No representation is being made that any account will or is likely to achieve profits or losses similar to those achieved by anyone else or any other software. The past performance of any trading system or methodology is not necessarily indicative of future results.

 

As advised in CFTC Rule 4.41, hypothetical or simulated performance results have certain limitations. Unlike an actual performance record, simulated results do not represent actual trading. Also, since the trades have not been executed, the results may have under- or over-compensated for the impact, if any, of certain market factors, such as lack of liquidity. Simulated trading programs in general are also subject to the fact that they are designed with the benefit of hindsight. No representation is being made that any account will or is likely to achieve profit or losses similar to those achieved by anyone else or any other software.

 

14 Governing Law

 

This EULA and any dispute arising out of or in connection with this EULA shall be governed by and construed in accordance with the laws of the Commonwealth of Australia and the laws of the state of Queensland in the Commonwealth of Australia.

Copyright © Mizpah International Pty Ltd. 16 January 2021. V1.3.