END USER LICENSE AGREEMENT

YOU SHOULD CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS BEFORE SUBSCRIBING TO OR USING THIS PRODUCT. BY CLICKING THE “I AGREE” BUTTON OR INSTALLING THE OPTIONSCAPE SOFTWARE ON YOUR COMPUTER, YOU ARE CONSENTING TO BE BOUND BY THIS AGREEMENT, INCLUDING ITS AUTOMATIC RENEWAL PROVISION, AND ARE BECOMING A PARTY TO IT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE BUTTON THAT INDICATES YOU DO NOT ACCEPT THE TERMS, AND DO NOT INSTALL THE SOFTWARE.

 

This End User License Agreement (the “EULA” or the “Agreement”) sets forth the terms and conditions of your use of the OptionScape software (the “Software”). For the purposes of this Agreement, “you” or the “end user” means you, the subscriber, and “Licensor” means OptionScape USA, Inc., a Nevada corporation. “Party” means either of you and the Licensor, and “Parties” means both of those two.

 

Whereas Licensor has developed certain software applications and content that it makes available to subscribers via the Internet on a subscription basis for the purpose of assisting in calculating and visualizing option valuation and risk factors in the context of a training program, and

 

Whereas you wish to use Licensor’s services and the Software, and

 

Whereas Licensor has agreed to provide and you have agreed to pay for Licensor’s services and access to the Software subject to the terms and conditions of this Agreement,

 

Now, therefore, in consideration of the premises and other good and valuable consideration, the adequacy of which the Parties hereby acknowledge, you and Licensor do hereby agree as follows.

 

1.      Definitions:  The following definitions shall apply throughout this Agreement:

 

(a)    Content: content provided by Licensor to you through the Software and Web Interface, including but not limited to market data, text, graphics, and diagrams.

 

(b)   Documentation: any and all documents that Licensor may make available to you from time to time that set out a description of the Service or user instructions for the Service.

 

(c)    Effective Date: the date on which you purchase your subscription.

 

(d)   Normal Business Hours: 8:00am to 6:00pm local Chicago time, each day that is not a Saturday, Sunday, or public holiday in the United States of America.

 

(e)    Personally Identifiable Information: an individual’s name, last and first or first initial, in combination with a government or financial institution identification code such as a social security, driver’s license, or passport number or financial accounts information.

 

(f)    Service:  the Software, any upgrades or updates to the Software, Documentation, Web Interface, and Content provided to you by Licensor under this Agreement.

 

(g)   Software:  the local and online OptionScape software applications provided by Licensor.

 

(h)   Subscriber Data:  data submitted to Licensor by you through the Web Interface, including but not limited to Personally Identifiable Information.

 

(i)     Subscription: your purchase pursuant to Section 5 of this Agreement of the right to have authorized access to and use of the Service in keeping with this Agreement.

 

(j)     Subscription Fees:  The fees payable by you to Licensor for your Subscription.

 

(k)   Term:  the effective period of this Agreement, as determined pursuant to Sections 5 and 6 below.

 

(l)     Web Interface:  the website provided by Licensor at www.optionscape.com or such other URL as may be used by Licensor from time to time.

 

2.      Acceptance:  By downloading, installing or using any part of the Software, Content, or Web Interface, you indicate that you have read this Agreement, understand it, and agree to be bound by its terms and conditions.

 

3.      Grant:

 

(a)    In consideration of the payment of Subscription Fees as set forth in Sections 5 and 6 below, and other provisions herein, Licensor hereby grants you a non-exclusive, non-transferable license to use and access the Service and the Documentation, beginning on the effective date of your Subscription, solely for your personal use, and subject to the terms and conditions of this Agreement. A corporate license is available under a separate agreement. All rights to or ownership in the Service and the Documentation not expressly granted hereunder are reserved to Licensor.

(b)  The license granted to you hereunder as to the Service is limited to your personal access to and use of the Service through the Software you install, the Web Interface, or any application programming interface (API) made available by Licensor for that purpose.

(c)  The Software may be installed on an unlimited number of computers, but the license described herein applies solely to use of the Service by you, not by any other person. Moreover, you may only maintain one live session on the Web Interface at a time.

 

4.      Restrictions on Use:  Except to the extent expressly permitted under this Agreement, you may not, and may not permit others to:

 

(a)  attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software, Content, or Documentation (as applicable) in any form or media or by any means, without written permission from Licensor, except for notes that you generate for your own reference and do not publish in any way; or

(b)   attempt to modify, translate, reverse-compile, disassemble, reverse-engineer, or otherwise reduce to human-readable form all or any part of the Software, or assist someone in performing such prohibited acts; or

(c)    access all or any part of the Service or Documentation in order to build a product or service that competes with the Service or Documentation; or

(d)   permit any third party to use the Service or Documentation; or

(e)    license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Service or Documentation available to any third party; or

(f)    attempt to obtain, or assist third parties in obtaining, access to the Service or Documentation, other than as provided under this Section 4; or

(g)   publish any technical support communications with Licensor or its agents.

 

5.      Subscription and Fees:

 

(a)    You shall pay the Subscription Fees to Licensor for the Subscription established by this Agreement, in keeping with Sections 5 and 6 of this Agreement.

 

(b)   Licensor shall debit the credit card used to subscribe to the Service for the applicable Subscription Fees prospectively, with effect from the Effective Date and for the duration of the Term.

 

(c)    Licensor shall be entitled to increase (with your agreement) your Subscription Fees upon ninety (90) days’ prior notice to you, and your continued use of the Service after such ninety (90) days have passed shall indicate your acceptance of a corresponding amendment to this Agreement.

 

6.      Term, Automatic Renewal, and Termination of Subscription:  This Agreement shall enter into effect on the Effective Date and shall remain in effect thereafter for the term of months that you select at the time you purchase your subscription.

 

SUBJECT TO THE EARLY TERMINATION PROVISIONS IN THIS SECTION 6, THIS AGREEMENT SHALL AUTOMATICALLY RENEW AND REMAIN EFFECTIVE FOR CONSECUTIVE RENEWAL PERIODS OF THE SAME DURATION AS THE ORIGINAL TERM OF MONTHS, WITH THE RENEWAL EFFECTIVE ON THE EXPIRATION DATE OF THE EXPIRING TERM, UNLESS EITHER PARTY NOTIFIES THE OTHER PARTY NO LESS THAN FIVE (5) BUSINESS DAYS BEFORE THE NEXT RENEWAL DATE THAT IT WISHES TO TERMINATE THE AGREEMENT, IN WHICH EVENT THE AGREEMENT SHALL TERMINATE WITHOUT FURTHER RENEWALS. TO TERMINATE THIS AGREEMENT AND THEREBY CANCEL ITS AUTOMATIC RENEWAL, YOU MUST PROVIDE LICENSOR WITH NOTICE OF YOUR ELECTION TO TERMINATE THIS AGREEMENT VIA EMAIL AT THE FOLLOWING ADDRESS:

 

This email address is being protected from spambots. You need JavaScript enabled to view it.

 

IF YOU DO NOT TERMINATE THIS AGREEMENT, AND IT IS AUTOMATICALLY RENEWED, LICENSOR SHALL DEBIT THE CREDIT CARD USED TO SUBSCRIBE TO THE SERVICE FOR THE APPLICABLE SUBSCRIPTION FEES, PROSPECTIVELY, WITH EFFECT FROM THE RENEWAL DATE AND FOR THE DURATION OF THE TERM.

 

In addition to termination of this Agreement by timely notification of non-renewal, the Parties may terminate this Agreement prior to its normal expiration in any of the ways set forth below in this Section 6, and no others:

 

(a)    Licensor may terminate this Agreement immediately upon the occurrence of any event that constitutes “just cause” for termination, including a failure by you to abide by the terms and conditions of this Agreement.

 

(b)   You may terminate this Agreement immediately upon the bankruptcy, liquidation, or dissolution of Licensor, whether voluntary or involuntary, or whenever Licensor ceases or threatens to cease to operate as a going concern.

 

(c)    Licensor may terminate this Agreement immediately upon any attempt by you to assign use or access to the Service to any person or entity that is not a party to this Agreement without Licensor’s prior written consent, which is not to be unreasonably withheld.

 

(d)   If Licensor exercises its right under Section 5(c) to increase your Subscription Fees, you may terminate this Agreement at any time during the ninety-day window established by that Section 5(c) in relation to such increase in your Subscription Fees by giving Licensor written notice of your election under this subsection, with termination effective five (5) business days after Licensor’s receipt of such notice.

 

7.      End User’s Obligations:  You shall:

 

(a)    comply with all applicable laws and regulations with respect to your activities under this Agreement;

 

(b)   ensure that the computer system or systems by which you access the Service comply with the relevant specifications provided by Licensor from time to time;

 

(c)    be solely responsible for procuring and maintaining your network and telecommunications links from your computer(s) to the Internet and the Web Interface, and for all problems, conditions, delays, delivery failures, and loss or damage arising from or relating to your network connections or telecommunications links or caused by the Internet;

 

(d)   use all reasonable effort to prevent any unauthorized access to, or use of, the Service and, in the event of any such unauthorized access or use, promptly notify Licensor; and

 

(e)    bear sole responsibility for the security of any logons, passwords, and product keys allocated to you and accordingly be liable for all damages, losses, and interruptions to the Service resulting from any unauthorized access to or use of the Service or Documentation by a third party using the logon, password, or product key allocated to you, unless the logon, password, or product key allocated to you and used in such unauthorized access become available to a third party through the fault of Licensor.

 

8.      Licensor’s Obligations:

 

(a)    Licensor agrees that the Service will be performed substantially in accordance with this Agreement and the Documentation.

 

(b)   This Section 8 shall not apply to the extent of any non-conformance that is caused by use of the Service contrary to Licensor’s instructions, or modification or alteration of the Service by any party other than Licensor or Licensor’s duly authorized contractors or agents. If the Service does not conform to the obligations set forth in this Agreement, Licensor will, at its expense, use all reasonable commercial efforts to correct any such non-conformance promptly or provide you with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes your sole and exclusive remedy for any breach of any Licensor obligation set out in this Section 8. Notwithstanding the foregoing, Licensor:

 

(i)     does not warrant that your use of the Service will be uninterrupted or error-free; or that the Service, Documentation, or information obtained by you through the Service will meet your requirements; and

 

(ii)   is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the Internet, and you acknowledges that the Service may be subject to limitations, delays, and other problems inherent in the use of such communications facilities.

 

(c)    This Agreement shall not prevent Licensor from entering into similar agreements with third parties, or from independently developing, using, selling, or licensing documentation, products, or services that are similar to those provided under this Agreement.

 

(d)   Licensor warrants that it has and will maintain all licenses, consents, and permissions necessary for the performance of its obligations under this Agreement.

 

(e)    Licensor is under no obligation to create new features or functionality for the Software and/or the Web Interface. However, Licensor intends to continue developing the Software and the Web Interface to improve functionality and will use reasonable effort to develop new features that would improve the quality of the Service provided to you.

 

(f)    Licensor shall comply with all applicable data protection and cybersecurity laws and regulations as they pertain to the Service; the obligation to which shall survive the termination of this Agreement.

 

9.      Service Level:

 

(a)    Licensor shall, during the Term, provide the Service and make available the Documentation to you on and subject to the terms of this Agreement.

 

(b)   Licensor shall use commercially reasonable endeavors to make the Service available twenty-four (24) hours per day, seven (7) days per week, except for:

 

(i)     planned maintenance carried out during the maintenance window of 10:00pm to 4:00am Chicago time; and

 

(ii)   unscheduled maintenance performed outside Normal Business Hours, provided that Licensor has used reasonable endeavors to give you at least six (6) Normal Business Hours’ notice in advance.

 

(c)    Licensor will, as part of the Service and at no additional cost to you, provide you with Licensor’s standard customer support services during Normal Business Hours.

 

10.  Intellectual Property Rights:

 

(a)    You acknowledge and agree that Licensor owns all intellectual property rights in the Service and the Documentation, including any intellectual property rights generated by Licensor as a result of or pursuant to providing the Service to you, but not including any Subscriber Data (all such covered intellectual property rights, the “Licensor IPR”). Except as expressly stated herein, this Agreement does not grant you any rights to, or in, patents, copyrights, trade secrets, trade names, or trademarks (whether registered or unregistered), or any other rights or licenses, in relation to the Service or the Documentation.

 

(b)   For the avoidance of doubt, the Licensor IPR shall include without limitation any models, methods of data handling, calculations, and report layouts created by Licensor prior to the Effective Date or created by Licensor during or after the Term. Licensor shall be permitted without limitation to use, provide, and license all or any part of the Licensor IPR to other customers at any time.

 

(c)    Licensor confirms that it has all the rights in relation to the Service and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.

 

(d)   You acknowledge and agree that Licensor shall be permitted to collect and use data relating to the usage of the Service by you, and shall be permitted to disclose such usage data in an aggregated and anonymized format to third parties without your consent.

 

11.  Effect of Termination:

 

(a)    Upon the termination or expiration of this Agreement, however caused:

 

(i)     all licenses granted under this Agreement shall immediately terminate;

 

(ii)   you shall destroy or uninstall, and make no further use of, any Software, Content, Documentation, and other items (and all copies of the same) belonging to Licensor; and

 

(iii) Licensor may destroy or otherwise dispose of any Subscriber Data in its possession.

 

(b)   Except as expressly set forth herein, the termination or expiration of this Agreement, howsoever caused, shall have no effect on the accrued rights of the Parties as at termination.

 

12.  Notice:  Any notice, request, consent, demand, invoice, document, or other communication required or permitted to be given under this Agreement shall be in writing and shall be deemed to be given on the date such communication is (i) delivered by hand; (ii) sent by facsimile or e-mail if sent during normal business hours of the recipient, and on the next day that is not a Saturday, Sunday, or legal holiday in the State of Illinois if sent after normal business hours of the recipient; (iii) deposited in the United States certified mail, postage prepaid, with return receipt requested; or (iv) deposited with a commercial overnight delivery service. Delivery by any of these mechanisms shall constitute sufficient notice provided the communication is sent to the following addresses, or such other addresses, e-mail addresses, or fax numbers as the

 

Parties may subsequently designate in writing with thirty (30) days’ notice:

 

For Licensor:

 

OptionScape USA, Inc.

Contact details as displayed on the “Contact Us” page of the OptionScape web site: https://www.optionscape.com

 

For you:

 

Your email address you provided for end user license registration

 

13.  Non-Waiver:  The failure of a Party hereto to insist upon strict adherence to any term of this Agreement on any occasion shall not be considered a waiver or deprive that Party of the right thereafter to that term or any other term of this Agreement. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. No waiver by any Party shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

 

14.  Limitation of Warranties and Remedies:  Except as expressly and specifically provided in this Agreement:

 

(a)    You assume sole responsibility for results obtained from use of the Service and the Documentation provided by Licensor, and for conclusions drawn from such use;

 

(b)   You acknowledge that Licensor is providing the Service and Documentation on an “as is” basis;

 

(c)    For Australia: Under the Australian Consumer Law, you have statutorily guaranteed consumer rights. Nothing in this Agreement is intended to affect those rights;

 

(d)   YOU ACKNOWLEDGE AND ACCEPT THAT NOTHING IN THE SERVICE, NOTHING IN THE DOCUMENTATION, AND NOTHING YOU MAY HEAR FROM LICENSOR’S CUSTOMER SUPPORT SERVICES CONSTITUTES FINANCIAL ADVICE AND THAT NO INFORMATION YOU OBTAIN FROM LICENSOR OR AS OUTPUT FROM THE SOFTWARE CONSTITUTES A RECOMMENDATION TO BUY, HOLD, SELL, SELL SHORT, OR WRITE ANY SECURITY, OPTION, OR OTHER FINANCIAL INSTRUMENT;

 

(e)    YOU ACKNOWLEDGE AND ACCEPT THAT LICENSOR IS PROVIDING YOU WITH ACCESS TO THE SERVICE AND THE DOCUMENTATION FOR USE IN AN EDUCATIONAL SETTING AND NOT FOR USE IN ACTUAL TRADING, FOR WHICH REASON THE SOFTWARE AND OTHER PORTIONS OF THE SERVICE AND DOCUMENTATION MAY CONTAIN APPROXIMATIONS AND SIMPLIFICATIONS THAT ARE PRESENTED FOR PEDAGOGICAL REASONS AND THAT RENDER THE OUTPUT OF THE SOFTWARE INAPPROPRIATE FOR USE IN SELECTING ACTUAL LIVE TRADES;

 

(f)    You acknowledge and accept that while Licensor shall make reasonable commercial efforts to provide the Service and Documentation accurately and to make corrections to the Service and Documentation as needed, Licensor in no way guarantees that the Service or Documentation will be free from error;

 

(g)   You acknowledge and accept that while Licensor shall use commercially reasonable endeavors to provide the service level described in Section 9(b), Licensor in no way guarantees that the Service or Documentation will be available to you at all times and without interruption;

 

(h)   Licensor disclaims, to the fullest extent permitted by law, any and all implied warranties, including, without limitation, any implied warranty of merchantability or fitness for a particular purpose for the services and products delivered to you (including, but not limited to, the Service and the Documentation) under this Agreement;

 

(i)     You, at your expense, shall indemnify, hold harmless, and defend Licensor and Licensor’s officers, directors, members, employees, agents, affiliates, subsidiaries, successors, and permitted assigns against any and all losses, claims, causes of action, damages, liabilities, deficiencies, judgments, settlements, interest, awards, penalties, fines, costs, and expenses of whatever kind, including but not limited to reasonable attorneys’ fees, arising out of or relating to any direct or third-party claims alleging damages resulting from use of the Service or Documentation by you or any other entity accessing the Service or Documentation with your help, including access achieved through logon credentials assigned to you;

 

(j)     Licensor shall not be liable, whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution, or otherwise, for any loss of profits, loss of business, depletion of goodwill, loss or corruption of data or information, pure economic loss, or any special, indirect, or consequential loss, costs, damages, charges, or expenses arising under or relating to this Agreement, including without limitation any claimed liability to you for losses, damages, fines, or reputational damage relating to any breach by any third party of Licensor’s security protocols, hacking, or other attack on the Software; and

 

(k)   Licensor’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution, or otherwise, arising in connection with the performance or contemplated performance of obligations under this Agreement, shall be limited to the total Subscription Fees paid by you for the Subscription during the one (1) month immediately preceding the date on which any such claim may arise.

 

15.  Disputes:

 

(a)    To the extent permitted by applicable law, all disputes arising under this Agreement shall be resolved by binding arbitration conducted in a jurisdiction, selected by you, in which OptionScape has an office. Such disputes shall be resolved by a single arbitrator selected in accordance with the commercial arbitration rules of the International Chamber of Commerce (“ICC”), the arbitration to be conducted in accordance with the Rules of the ICC. The decision of the arbitrator shall be final; no appeal may be taken therefrom; and judgment on such decision may be entered by any court of competent jurisdiction. Absent a contrary ruling from the arbitrator, which ruling shall control, the Parties shall each pay one-half (1/2) of the expenses of the arbitration, with each Party responsible for the payment of its respective attorneys’ fees.

 

(b)   To the extent that applicable law requires any disputes between the Parties with respect to this Agreement to be resolved in a court of law, the Parties hereby stipulate and agree that such disputes shall be heard in a court sitting in Chicago, Illinois. The Parties hereby waive any objection they might otherwise be permitted to assert with respect to the personal jurisdiction of such courts over them or the appropriateness of Chicago or such courts as a venue for the resolution of their disputes.

 

(c)    This Agreement shall be construed and interpreted pursuant to the laws of the State of Illinois, without consideration of conflict-of-law principles.

 

16.  Legal Effect: You may have legal rights under local or national laws that are not described in this Agreement. This Agreement does not change those rights where your local or national laws do not permit it to do so.

 

17.  Severability:  If any provision of this Agreement is held illegal, void, or unenforceable, to any extent, in whole or in part, as to any situation or person, by any arbitrator or court of competent jurisdiction, the balance of this Agreement shall remain in effect, and the provision in question shall remain in effect as to all other persons or situations, as the case may be.

 

18.  Headings for Convenience Only:  The section headings in this Agreement are solely for convenience or reference and shall not affect the interpretation or limit the scope or intent of this Agreement or any of its sections. When a reference in this Agreement is made to a section, such reference shall be to a section of this Agreement unless otherwise indicated.

 

19.  Entire Agreement:  This Agreement constitutes the entire agreement between the Parties with respect to its subject matter, and except as otherwise provided herein, all other prior agreements, representations, statements, negotiations, and undertakings between the Parties with respect to such subject matter, whether written or oral, are terminated and superseded hereby.

 

20.  Written Amendments:  Except as provided in Section 5(c), no amendment to this Agreement shall be effective unless it is in writing and signed by a duly authorized representative of each Party.

 

21.  Time of the Essence:  Time is of the essence in relation to all of the provisions of this Agreement.

 

22.  Assignment:  The Parties acknowledge and agree that the covenants, terms, and provisions contained in this Agreement cannot be transferred, sold, assigned, pledged, or hypothecated without the prior written consent of the other Party. This Agreement shall inure to the benefit of and be binding upon the Parties and their respective successors, personal representatives, heirs, legatees, and permitted assigns. Nothing in this Agreement shall be interpreted to confer any rights on any third parties.

 

23.  Force Majeure:  Licensor shall have no liability to you under this Agreement if Licensor is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions, or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Licensor or any other party); failure of a utility service or transport or telecommunications network; denial of service attacks; act of God; war; riot; civil commotion; rebellions or revolutions in the United States or any nation where the obligations under this Agreement are to be executed; malicious damage; compliance with any law or governmental order, rule, regulation or direction; accident; breakdown of plant or machinery; fire; flood; earthquake; storm; or default of Licensor or its sub-contractors, provided that you are notified of such an event and its expected duration.