BACKGROUND

Neo, Incorporated Inc. and IPS Technologies, Inc. (“N/I”) provide SortWizard Version 1.0 and higher (“SortWizard”) software, related documentation, and any other material or information relating to SortWizard as provided by N/I (collectively, the “Software” which also includes any code provided by N/I in the event N/I’s support services are purchased (“Support Services”)) to you and, if applicable, your employer using the Software (collectively, “You” or “Licensee”) pursuant to this Software License Agreement (“Agreement”).  As expressly indicated in this Agreement, certain terms and conditions of this Agreement apply to Licensee based on whether Licensee has purchased a license to a version of the Software for normal use (“Normal Use”), while such terms and conditions may not apply to You if You received a license to a version of the Software for trial use (“Trial Use”). 

 

BEFORE YOU CHOOSE THE “AGREE” BUTTON AT THE BOTTOM OF THIS WINDOW, PAGE YOU WERE FROM OR ANY OTHER LOCATION ON THIS WEB SITE CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT.  BY CHOOSING THE “AGREE” BUTTON YOU ARE: (1) REPRESENTING THAT YOU ARE OVER THE AGE OF 18 AND HAVE THE CAPACITY AND AUTHORITY TO BIND YOURSELF AND YOUR EMPLOYER, AS APPLICABLE, TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND (2) CONSENTING ON BEHALF OF YOURSELF AND/OR AS AN AUTHORIZED REPRESENTATIVE OF YOUR EMPLOYER OR ANY ENTITY FOR WHICH YOU ARE ACTING AS AN AGENT, AS APPLICABLE, TO BE BOUND BY THIS AGREEMENT.  IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, OR DO NOT REPRESENT THE FOREGOING, CHOOSE THE “DECLINE” BUTTON IN WHICH CASE YOU WILL NOT RECEIVE THE SOFTWARE.  IF YOU WISH TO REVIEW THE AGREEMENT, PLEASE PRINT A COPY OF THE AGREEMENT PRIOR TO CLICKING “AGREE”, WHICH YOU MAY WANT TO SHARE WITH YOUR ATTORNEY AND/OR EMPLOYER.  

 

Should Licensee have any questions regarding this Agreement, or wish to contact N/I for any reason, Licensee must write:  Neo Incorporated, 2147 Oak Drive, Suite 100, St. Louis, MO 63131.

 

NOW THEREFORE, in consideration for (a) Licensee’s payment to N/I of the fees related to the use of the Software for Normal Use (if applicable); and/or (b) the mutual promises and covenants contained in this Agreement, the parties agree as follows:

 

(1) GRANT OF LICENSE           

(a) License. N/I grants to Licensee a limited, personal, non-exclusive, non-transferable (without right of sublicense) license for the term of this Agreement to install on a computer(s) and use for internal business purposes only one copy of the Software executable code.

(b) Restrictions. The use of the Software pursuant to this License is limited to one (1) employee of Licensee, who has been informed by Licensee of the terms of, and has agreed to comply with, all of the terms and conditions of this Agreement.

(c) Limitations. The license granted to Licensee is expressly made subject to the following limitations: Licensee may not itself (and shall not permit any third party to):

(1) Copies. Copy, other than as expressly permitted by N/I, all or any portion of the Software, except that Licensee may make one copy of the Software for archival purposes for use by Licensee only in the event the Software shall become inoperative;

(2) No Source Code Access. Modify, translate, decompile, disassemble or reverse engineer the Software or in any other manner whatsoever attempt to obtain the source code human readable embodiment of the Software; and

(3) Unauthorized Uses and Disclosures.  Use the Software or any results gained through use of the Software for commercial time-sharing, rental, application service provision, or service bureau use, or distribution of the Software through sale, resale, broadcast, Internet posting, electronic mail, or any other means without the prior written consent of N/I.

(d) Lawful Use. THE SOFTWARE IS SUPPLIED FOR LAWFUL PURPOSES ONLY. 

(2) PAYMENT, NO REFUNDS OR CREDITS.  Licensee agrees to pay all fees required by N/I for purchase of a license to the Software, as Licensee has agreed to electronically on N/I’s web site for distribution of the Software (the “Payment Page”). There can be no refunds on a subscription under any circumstances once Licensee’s subscription has been processed, even in the event of the lack of data feed availability, data feed inaccuracy, errors in order entry, THE LICENSEE'S FAILURE TO CANCEL SUBSCRIPTION AUTO RENEWAL, or any other reasons.  Licensee ALSO agrees that THEY will not charge back on THEIR credit card account, as that could be construed as fraud on THEIR part.   IN the event the LICENSEE fails to FORMALLY Cancel the subscription AS SPECIFIED ON THE WEB SITE (the "Subscription Order and Renewal Policy and Cancellation Request Page" ) IT IS AT THE LICENSOR'S SOLE DISCRETION TO ISSUE A REFUND.  SHOULD A REFUND BE ISSUED, LICENSEE AGREES TO THE DEDUCTION OF THE TRANSACTION PROCESSING FEES AS SPECIFIED ON THE WEB SITE (the "Subscription Order and Renewal Policy and Cancellation Request Page" ) FROM THE REFUND.  

(3) SOFTWARE OWNERSHIP AND RIGHTS.  

(a) Ownership. N/I and its licensors own all rights in and to the Software and any part thereof, including, without limitation, all patents, trademarks, trade secrets, copyrights, and any other intellectual property or proprietary rights.  The Software is not sold to Licensee, and all rights not expressly granted herein are reserved to N/I. 

(b) Rights. This Agreement does not convey to Licensee any rights in or to the Software other than the license expressly granted hereunder. 

(4) RISK OF USE. Licensee acknowledges that stock trading involves a high degree of risk and the Licensee could lose some or all of Licensee’s invested capital when using the Software in connection with trading transactions. Licensee also understands that Licensee is solely responsible for performing Licensee’s own research and determining the accuracy of information provided via the Software prior to deciding to buy or sell a security and for the gains or losses associated with any trades executed using the Software.

(5) DISCLAIMERS.        

(a) General Disclaimer. Licensee ACKNOWLEDGES THAT THE SOFTWARE IS PROVIDED ON AN “AS-IS”, “AS-AVAILABLE” BASIS, AND N/I DOES NOT MAKE ANY, AND HEREBY SPECIFICALLY DISCLAIMS ANY, REPRESENTATIONS, ENDORSEMENTS, GUARANTEES, OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, (I) ANY OF THE FOREGOING OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS; (II) THAT USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE; AND (III) ANY OF THE FOREGOING ARISING FROM COURSE OF DEALING, PERFORMANCE,  TRADE OR TRADE PRACTICE.

(b) Specific Disclaimers. Without limiting any other disclaimer in this agreement, Licensee acknowledges that: (i) N/I does not guarantee compatibility between the Software and any future versions thereof; (ii) Licensee will have sole responsibility for the adequate protection and backup of Licensee’s data and/or equipment used with the Software; AND (iii) the entire risk as to the quality and performance of the Software and any obligation with respect to service and support (UNLESS LICENSEE PURCHASES THE SUPPORT SERVICES) ARE borne by Licensee.

(c) Data Feed/Source. Licensee acknowledges that the Software is dependent upon Licensee’s AND LICENSOR’S data feed suppliers’ servers and technology, AND/or other servers and technology as arranged by Licensee, for data, transmission of that data via the Internet, and the availability of that data for use by the Software. The operation or performance of any such servers and technology used or accessed by the Software, the availability and timeliness of the data supplied, and the accuracy of the data that may be used or displayed from any data source, can in no way be guaranteed under any circumstances, and, without limiting any other disclaimer in this Agreement, N/I EXPRESSLY DISCLAIMS ANY SUCH GUARANTEE, AND NO REFUND OR CREDIT WILL BE ISSUED.

(6) LIMITATION OF LIABILITY. THE MAXIMUM LIABILITY ARISING OUT OF THIS AGREEMENT, OR OTHERWISE IN CONNECTION WITH THE SOFTWARE, WHETHER BASED UPON CONTRACT, NEGLIGENCE, TORT OR OTHER LEGAL THEORY, FOR N/I AND N/I’S PARENTS, SUBSIDIARIES, AFFILIATES, SHAREHOLDERS, MEMBERS, DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS (THE “N/I PARTIES”) SHALL NOT IN ANY EVENT EXCEED THE AMOUNT OF THE LAST SUBSCRIPTION PAYMENT RECEIVED BY N/I PRIOR TO THE DATE THE LIABILITY AROSE, AND THEREFORE THE N/I PARTIES WILL NOT BE LIABLE HEREUNDER, OR OTHERWISE IN CONNECTION WITH THE SOFTWARE, FOR ANY OTHER DAMAGES, SUCH AS, WITHOUT LIMITATION, DIRECT, GENERAL, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, TRADING LOSSES, DATA FEED CHARGES, REGULATORY FEES AND PENALTIES, AND LOSS OF PROFITS, SAVINGS, DATA OR USE (COLLECTIVELY, THE “EXCLUDED DAMAGES”) EVEN IF AN N/I PARTY WAS ADVISED OF THE POSSIBILITY OF ANY EXCLUDED DAMAGES, ANY EXCLUDED DAMAGES WERE FORESEEABLE, AND EVEN IN THE EVENT OF A FAILURE OF ESSENTIAL PURPOSE OF A LIMITED REMEDY. IN THOSE STATES THAT DO NOT ALLOW THIS EXCLUSION OR LIMITATION OF LIABILITY FOR THE EXCLUDED DAMAGES, THE N/I PARTIES’ LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.

(7) ESSENTIAL NATURE OF DISCLAIMERS AND LIMITATION OF LIABILITY. Licensee acknowledges that the above disclaimers and limitation of liability constitute an essential part of this Agreement.

(8) TAXES.  The charges for the version of the Software licensed for Normal Use do not include taxes. If N/I is required to pay any federal, state, or local taxes based on the Software provided under this Agreement, the taxes shall be billed to and paid by the Licensee; this shall not apply to taxes based on N/I’s income.

(9) INDEMNIFICATION.

(a) Indemnity.  Licensee shall indemnify N/I and its shareholders, members, directors, officers, employees, agents, contractors (other than Licensee), and affiliates, and hold all such indemnified Parties harmless from and against any and all losses, damages, settlements, liabilities, costs of equitable obligations, charges, assessments, and expenses, as well as any claims, suits, and causes of action, including, without limitation, all attorneys’ fees and disbursements arising in connection with any breach by the Licensee of any term or condition of this Agreement.

(b) Defense and Assistance.  Upon receipt of any third party claim, N/I has the right to assume the sole defense of the claim, at Licensee’s expense, by legal counsel chosen by N/I.  Licensee shall provide N/I with assistance, without charge, as N/I requests in connection with the defense, including, without limitation, providing N/I with any information, documents, records, and reasonable access to Licensee and, if applicable, Licensee’s personnel as N/I deems necessary.  In no event will Licensee settle, make an appearance, or make any statement in any third party claim without N/I’s prior written consent.

(10) TERM AND TERMINATION. 

(a) Term The term of this Agreement will continue until terminated by either party, which termination may be made without cause and at the terminating party’s convenience. 

(b) Effect of Termination.  After termination of this Agreement, Licensee must immediately cease all use of the Software, delete all Software and authorization codes, destroy all copies of Software, and, upon request of N/I, certify in writing to such deletion and destruction.  Licensee may not receive any refunds, pro rata or otherwise.

(c) Survival and Successors Bound.  Sections (1)(c)(2) (No Source Code Access), (1)(c)(3) (Unauthorized Uses and Disclosures), (2) (Payment), (3)(a) (Ownership), (4) (Risk of Use), (5) (Disclaimers), (6) (Limitation of Liability), (7) (Essential Nature of Disclaimers and Limitation of Liability), (8) (Taxes), (9) (Indemnification), (10) (b) (Effect of Termination), (10) (c) (Survival and Successors Bound), (11) (General), and the notice requirements and acknowledgements in the “Background” section at the beginning of this Agreement will survive any termination or expiration of this Agreement. The rights and liabilities of the parties hereto will bind and inure to the benefit of their respective heirs, assignees, successors, executors, trustees and administrators, as the case may be.

(11) GENERAL.

(a) Export Controls. Licensee agrees to comply fully with all relevant export laws and regulations of the United States to assure that the Software and any associated technical data (if any) are not exported, directly or indirectly, in violation of United States law and regulations.

(b) U.S. Government End Users. The Software is a “commercial item”, as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of “commercial computer software” and “commercial computer software documentation”, as such terms are used in 48 C.F.R. 12.212 (Sept. 1995).  Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), U.S. Government users acquire the Software with only those rights expressly set forth in this Agreement.

(c) Miscellaneous.  Except for the Payment Page and the terms and conditions agreed to by the parties in the event Licensee purchases the Support Services, this Agreement is the entire agreement between the parties and supersedes all earlier or simultaneous agreements regarding the subject matter hereunder. This Agreement may be amended only in a writing, signed by both parties.  Both parties acknowledge that they are independent contractors under this Agreement, and neither party, nor any of their respective employees or agents, have the power or authority to bind or obligate the other party.  All claims regarding this Agreement shall be governed by and construed in accordance with the laws of the State of Missouri except for any choice or conflict of law principles, and shall be litigated in the State of Missouri regardless of the inconvenience of the forum. The parties acknowledge and agree that this Agreement is an agreement for the provision of services, not goods.  In the event a court of competent jurisdiction or an arbitrator finds otherwise, then the parties acknowledge and agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.  Either party’s failure to insist upon strict performance of any provision of this Agreement shall not be construed as a waiver of any of its rights under this Agreement. All remedies under this Agreement, at law or in equity, shall be cumulative and nonexclusive. If Licensee breaches this Agreement, Licensee acknowledges that a remedy at law alone would be inadequate, and Licensor will be entitled, in addition to any other rights available under this Agreement or at law or in equity, to apply for immediate injunctive relief without any requirement to post a bond or other security and Licensee acknowledges and agrees to not contest such application on the basis of a lack of irreparable harm.  This Agreement is not assignable, delegable, sublicenseable or otherwise transferable by Licensee in whole or in part without the prior written permission of N/I. Any such transfer, assignment, delegation or sublicense by Licensee without the N/I’s prior written consent shall be null, void, and invalid. In the event that any portion of this Agreement is held to be unenforceable, the unenforceable portion shall be construed as nearly as possible to reflect the original intent of the parties, the remainder of the provisions and portions of provisions shall remain in full force and effect, and the unenforceable portion shall be enforceable in all other contexts and jurisdictions.  No third party is a beneficiary of this Agreement. Any failure or delay by N/I to comply with its obligations under this Agreement shall not be grounds for liability to the extent such failure results from factors beyond its reasonable control. Licensee acknowledges that it had a full and ample opportunity to consult counsel prior to executing this Agreement and that there shall be no construction against N/I by virtue of having drafted this Agreement.