END-USER LICENSE AGREEMENT
Bionic Trader Systems, LLC
PLEASE READ THIS END-USER LICENSE AGREEMENT (“EULA” OR “AGREEMENT”) CAREFULLY BEFORE INSTALLING OR USING THE PRODUCTS AND/OR SOFTWARE SPECIFIED HEREIN.
This EULA is between you and Bionic Trader Systems, LLC..
BY CLICKING ON THE “I ACCEPT THE AGREEMENT” BUTTON, SIGNING THE AGREEMENT**, INSTALLING, ACCESSING, COPYING, OR OTHERWISE USING THE SOFTWARE, YOU ARE CONSENTING TO BE BOUND BY THIS EULA. IN CONSENTING TO BE BOUND BY THIS EULA, YOU ACCEPT AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT ON BEHALF OF YOURSELF AND EACH OF YOUR REPRESENTATIVES. THIS AGREEMENT MUST BE ACCEPTED BY YOU WITHOUT ANY MODIFICATIONS, ADDITIONS, OR DELETIONS. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS EULA, INCLUDING THE DISCLAIMER OF WARRANTIES SECTION, CLICK THE “I DO NOT ACCEPT THE AGREEMENT” BUTTON AND DO NOT INSTALL OR USE THE SOFTWARE OR OTHER PRODUCTS SPECIFIED HEREIN.
** Bionic reserves the right to require you to sign a physical copy of this EULA prior to accepting your subscription. This will be required for all Illinois licensees to meet the requirement as licensed software for Illinois sales and use tax.
Please note that this EULA is not a keyboard equipment license agreement or a warranty for use of keyboard equipment with any component of the Bionic Suite (as defined in Section 1). Please refer to the documentation accompanying such keyboard equipment for any such information.
1. LICENSE AGREEMENT
This EULA is a license agreement between you (either an individual or single entity and sometimes referred to herein as “customer”, “you” or “your”) and Bionic Trader Systems (“Bionic”, “we” or “us”) for the use of the proprietary computer software program known as “Keyboard Trader” (the “Software”), as well as related materials we may make available to you online or otherwise, such as electronic media, and other electronic documentation (collectively, the “Electronic Documentation”), sample files or programs (collectively, the “Sample Files), and quick start guides (“Quick Start Guides”). The Software, Electronic Documentation, Sample Files and Quick Start Guides are collectively referred to herein as the “Bionic Suite”. Elements of the Bionic Suite (e.g. Software, Electronic Documentation, and Sample Files) may be password protected, require authorization codes or license codes, login, etc. These elements will be collectively referred to as the “Restricted Bionic Suite”. Other elements (e.g. Quick Start Guides) may not be password protected, require authorization codes, login, etc., and are not included in the term Restricted Bionic Suite. Whether part of the Restricted Bionic Suite or not, no element of the Bionic Suite may be used for any purpose in violation of this EULA.
You are not authorized to download or use components of the Restricted Bionic Suite or use previously downloaded components: (a) outside of an Authorized Period (as defined in Section 2); or (b) for any other purpose aside from use with the Software.
Quick Start Guides and Sample Files, including workspaces and keyboard layouts, provided by Bionic are for educational and informational purposes only. Bionic shall not be responsible for your use of Sample Files or modified Sample Files in a live trading environment. You understand and agree that Bionic does not suggest any workspace or keyboard configuration to be used by any particular client and you must design such configurations as are suitable for your needs.
This EULA will apply to all distributions of Bionic Suite components, including the delivery of any of the Bionic Suite via electronic mail, downloads via our websites www.keyboardtrader.com or www.bionictradersystems.com (collectively, the “Website” or “Websites”), or in any other manner. If you access areas of either Website restricted for Authorized Users (as defined in Section 2), or use any component of the Restricted Bionic Suite, with Bionic’s authorization, you agree to be bound by the following terms and conditions.
Subject to the terms of this EULA, Bionic grants you a nonexclusive, nontransferable license to access and use the Restricted Bionic Suite according to the terms of your Software License Level (defined in Section 4 below), for your use only, without the right to sublicense such rights, provided that you unconditionally agree to access and use the Bionic Suite solely in accordance with this EULA. The Software is licensed in object code form only. You may download information, updates or materials generated by us for your use only and only pursuant to this EULA. We reserve all rights not expressly granted to you in this EULA. The Bionic Suite is licensed to you, not sold. You will not and may not allow the any components of the Bionic Suite to become the subject of any charge, lien or encumbrance. We may conduct inventories and audits to ascertain whether your use of the Bionic Suite accords with the provisions of this EULA, and you hereby agree to assist us as reasonably necessary in the conduct of such audits. Notwithstanding anything to the foregoing, non-executable customized files (macro files and workspace files) may be shared with other users who also have an active license from us.
2. AUTHORIZED PERIOD
Use of the Restricted Bionic Suite, including the Software, Electronic Documentation, and Sample Files, if any, is by authorization only and your authorized period of use (“Authorized Period”) is identified either (a) by your accepted software registration (“Software Registration”); or (b) as determined by a Demo Period, as defined in Section 26 herein. When the Authorized Period is identified by Customer’s accepted Software Registration, the Authorized Period is either your accepted or adjusted requested subscription period (“Subscription Period”), or Bionic’s acceptance of Customer’s selection of a transactional pricing plan.
Authorized Periods, including Subscription Periods and Demo Periods, may extend with or without written or electronic signature of this EULA. If in the case that you are pre-paying for the Software on a monthly basis, Subscription Periods are extended by your payment of a Software invoice for a Subscription Period in the future. If you are a transactional user (“Transactional User”), i.e., your fees are determined by the number of transactions in your account, your Authorized Period continues until you or Bionic cancels your account. Extensions to Demo Periods are initiated by Bionic’s extension of the Demo Period based on Customer request.
All extensions of Authorized Periods serve as extensions of the Customer’s agreement to the updated version of this EULA available on the keyboardtrader.com domain, as well as Customer’s agreement to future adjustments of the updated EULA which occur during the extended Authorized Periods.
You may only use the Restricted Bionic Suite after the Authorized Period begins. You may not use the Restricted Bionic Suite after the Authorized Period ends, or after your authorization has been terminated by us. At the end of an Authorized Period, or if at any time Bionic terminates this EULA, or for any other reason you have not been authorized to use the Restricted Bionic Suite, you must cease use of, and uninstall, the Software and other components of the Restricted Bionic Suite. Anyone found to be using any component of the Restricted Bionic Suite inconsistent with an Authorized Period may be charged at the pre-paid monthly rate of the most expensive Software License Level for the corresponding term of the unapproved usage.
As used herein, “Authorized User” refers to a customer or demo user using the Restricted Bionic Suite during an Authorized Period.
As part of the Software Registration process, or if applicable, any other registration process applicable to your use, and in addition to your acceptance of the terms of this EULA, you must provide your legal full name, a valid email address, and other requested information.
4. RESTRICTED ACCESS
Upon the start of a Subscription Period, we will provide you with a username/password to logon to the Software, and/or a license code, in accordance with the Software License Level (currently Standard, Premium, or Professional) (the “Software License Levels”) that you select. The username/password and/or license code will permit or restrict access to the applicable Software License Level. You may be required to activate a license code provided to you by us one or more times during or prior to the start of a Subscription Period.
It is your responsibility to protect your username/password and/or license code. Bionic is not responsible for any losses or other damages that occur as a result of your sharing or loss of your username/password and/or license codes. If you forget or misplace a username, password or license code, please contact Bionic.
Please see our websites as to available Software License Levels, which may change over time. See the Software Registration for details on change allowances and procedures. We anticipate that particular Software License Levels will enable you to use Sample Files, Electronic Documentation, and possibly other files which will occasionally be made available for download from our websites. We may supply you with one or more usernames and/or passwords to access these materials. For more information about the Software License Levels and to help you determine which level is suitable for your activities, please visit our Websites. If you attempt to access a Software License Level to which you are not licensed, Bionic may terminate this EULA and your subscription, and take any other action permitted by law.
5. EXCLUSIVE LICENSE
Access to the Software and the use of any Restricted Bionic Suite component is limited to the Authorized User. A username/password and/or license code may not be shared by multiple people and you may not use the Software on more than one workstation at the same time. You may not sell, license, rent, copy, lease, lend, disclose or transfer any component of the Bionic Suite, or any other information or materials that you might receive from us. If you attempt to install more versions of the Software than is permitted, share your username/password and/or license code, permit others to use or share the Software or any other component of the Restricted Bionic Suite, or otherwise use the username/password and/or license code in any unauthorized way, Bionic may terminate this EULA and your subscription, and take any other action permitted by law.
6. ACCOUNT SECURITY & DATA BACKUPS
You are responsible for maintaining the security of your information technology systems and computers. You should exercise the necessary steps to ensure that unauthorized individuals do not access the Software, your username/password and/or license code, if provided by Bionic, or other components of the Bionic Suite, as well as your Log Files or any other information which is proprietary or private to you. Further, you are responsible for backing up all files part of or to be used with the Bionic Suite. To this end, the licensee is permitted to make and keep an archival copy of the Bionic Suite. Bionic is not liable to you or any third party for any loss or damage from your failure to secure your systems, or for failure to back up files that are part of, or to be used with, the Bionic Suite.
7. KEYBOARD EQUIPMENT
The functionality of the Software is largely dependent on the use of hotkeys that are triggered from a computer keyboard. Although Bionic sells keyboards and related equipment, the Software was not built to work with any specific keyboard. Further, in order for the Software to receive commands triggered from a keyboard, the commands must be communicated through a computer system, including components other than the Software and the keyboard equipment (e.g., operating system, motherboard, other computer hardware, the application programming interface of a Base Platform (as defined in section 30) to which the Software is connected, etc.). As a result, Bionic does not control, and cannot control, all of the elements of your computer system. Further, a variety of potential system conflicts, errors, improper settings, etc. may exist or occur in your computer system that may cause hotkey triggers to be improperly communicated to the Software. Accordingly, this EULA does not provide any warranties that any specific keyboard, even keyboards sold by Bionic, will successfully trigger functionality in the Software. Bionic advises all customers to test whichever keyboard they select to use in combination with the Software before trading in a live environment, and if unsuccessful, to select a different keyboard, or explore other solutions. You understand and agree that even if a keyboard does not perform as you expect with the Software, Bionic is not responsible for any losses, delays or failures caused by your use of the keyboard with the Software, even if the keyboard is sold by Bionic.
While Bionic may sell keyboards or other equipment at its own discretion, you are not required to buy any equipment from us in order to operate the Software. Regardless of your supplier, the keyboard equipment must contain suitable features and capabilities to be used with the Software. Whether you elect to purchase equipment from Bionic or from third parties, the terms of any of its accompanying electronic documentation will apply to its use. Any warranties that apply to the keyboard equipment will be supplied with the equipment. This EULA does not cover any hardware provided by Bionic nor is hardware included in any pricing for the software.
Bionic is not responsible for any difficulties or errors with respect to software utilities used to program keyboards. If Bionic offers sample keyboard layouts (i.e., software files created using software utilities used to program programmable keyboards), it does so using software created by other software providers, and does so for educational and informational purposes only. For the purposes of this agreement, these keyboard layouts are deemed “Sample Files” and are governed by the terms of “Sample Files” as otherwise specified herein. However, in order for you to gain rights to use any sample keyboard layouts which may be offered, you must obtain rights by a separate agreement made outside of this EULA.
8. SOFTWARE UPDATES
Provided that all subscription fees have been paid, all updates to the Software will be available to you via our Websites, or at our option, will be delivered to you via electronic mail and may be downloaded and installed without charge. All Software updates will be delivered electronically. All such updates will be deemed within the definition of “Software” as defined herein, and shall be subject to the terms of this EULA. Nothing in this EULA requires Bionic to provide any updates to the Software during a Subscription Period or Demo Period.
You understand and agree that some new Software installations and Software updates may be required during the term of this EULA. You agree to install new versions of the Software and install updates to the Software within 60 calendar days of being informed of such new versions and updates. We will use commercially reasonable efforts to inform you over email at the email address registered with your account. Notwithstanding the foregoing, you agree that in the event of (a) an emergency patch or update determined by Bionic to be necessary; or (b) an Exchange or regulatory mandate for any reason (e.g., for technical upgrades or legal changes), you will install the updates provided by Bionic in the time frame communicated by Bionic, and in the event you fail to do so, Bionic may terminate the license granted hereunder.
9. CONTENT AND ACTIVITIES
You are responsible for all the material, data, and actions you or any individual associated with your account provide to and/or perform in conjunction with the Bionic Suite (“Content”). You are responsible for obtaining the right to access all market data or other information that may be used with the Bionic Suite. You may not use the Bionic Suite for any illegal or unauthorized purpose.
10. MODIFICATIONS TO THE SOFTWARE AND PRICES
Bionic reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Bionic Suite (or any part thereof) with or without notice. If you request specific modifications, Bionic may charge additional fees. All customer-requested modifications, regardless of fees paid, are the sole property of Bionic and shall be subject to the continued application of the terms of this EULA. Bionic shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of any part or all of the Bionic Suite, or any loss of functionality or other losses that may result therefrom. You understand that modifications to the Software or other components of the Bionic Suite made by Bionic, you, or any third party may require you to create new workspaces and other files, or make adjustments to existing workspaces and other files, for continued compatibility with the Bionic Suite. You understand that Bionic may use third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology and the agreements with such third parties may affect your rights hereunder.
Unless otherwise provided in your individual registration, Software prices are subject to change upon 30 days’ notice from us. Such notice may be provided at any time by posting the changes to either Website or by notifying users.
11. TERMINATION OF LICENSE
Either party may terminate the EULA with or without cause. Termination of the EULA will also be effective immediately upon the end of the Subscription Period or Demo Period. Further, a violation of any of the terms this EULA may result in the immediate termination of your right to use any component of the Restricted Bionic Suite with or without prior notice to you.
Upon termination of the EULA, you must immediately cease all use of the Restricted Bionic Suite and destroy or return to us all components of the Restricted Bionic Suite in your possession including any copies of materials you may have created in tangible form from electronic delivery. At our written request, you shall certify, in writing, at no charge to us, that the Restricted Bionic Suite components in your possession has been destroyed or returned to us and that no portion of any component remains in your possession or control. Even if the EULA terminates early, payment obligations are not affected and no refunds will be given.
12. TECHNICAL SUPPORT
We may, but shall not be obligated to, provide technical support to you in connection with your use of the Bionic Suite. You should carefully review the help file, installation instructions and other information regarding platform functionality and user instructions which we may include with the Bionic Suite and/or on our Websites. We may, but shall not be obligated to, offer screen sharing, telephone, and/or in-person support and training, which may include electronically delivered code patches and upgrades, advice on workspace and other software file construction, and/or other support. You understand that in the case we decide to provide technical support, our ability to do so may be severely limited if you are not able to communicate with us using a screen sharing session on your trading computer. All such technical support may be subject to an additional fee and may be further governed by a separate agreement between you and Bionic. Unless otherwise provided in such additional agreement, all such technical support shall be subject to the terms and conditions of this EULA.
13. RESTRICTIONS UPON USE
You agree not to view or use, or attempt to view or use, the Software’s source code in any way. You may not reproduce, duplicate, reverse engineer, decompile, disassemble, translate, tamper, clone, image, ghost copy, share, hack, pirate, exploit or adapt any component of the Bionic Suite including the Software, or attempt to do any of the foregoing, except and only to the extent that such activity is expressly permitted by Bionic or by applicable law. To the extent such activity is permitted by Bionic, you agree to use the tools provided in the Bionic Suite for such activity. You understand that you are responsible for any modifications to the Bionic Suite that you make or download, including any macros or other customized software which you may create or execute. Do not manually edit any workspace file outside of the Software, i.e., by using a text editor, etc. There is a high risk of mistakes or other logical errors that may cause the Software or your workspace to operate unpredictably, not operate at all, or operate in ways which may be predictable but are not advisable. If you edit a workspace manually you do so at your own risk, Bionic has no responsibility for any such edits and you may reduce the ability of Bionic to provide technical support, if such support is available. For example, any representations or warranties that Bionic may make with respect to the Bionic Suite do not apply if you use customized workspace files which were built or edited not using the Software.
14. ERRORS IN PROCESSING
You understand that the technical processing of the Software, and the transmission of data and commands using the Software, including your data and commands, may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. As a result, Bionic shall not be liable for any loss or damage that directly or indirectly occurs as a result of the inaccuracy of data provided by or to the Software or use of the keyboard equipment. Further, Bionic is not liable for any loss or damage that directly or indirectly occurs as a result of impaired access to the data, data bottlenecking or impaired speed of data transmission, or any other data problems or errors, regardless of whether the problems are due to fault of an Internet Service Provider, Exchange, Clearing Firm, the provider of a Base Platform (as defined in section 30), the provider of the operating system or system hardware components, or any other party.
15. COMPLIANCE WITH APPLICABLE LAWS AND RESTRICTIONS
You agree to comply with all laws, regulations, permits, orders and other restrictions to the extent that they are applicable to the procurement and use of any component of the Bionic Suite, including any embedded third-party software, and shall not, directly or indirectly, export or reexport (as defined in the United States Export Administration Regulations) any software or any information about software to any country for which the United States government or any agency thereof requires an export license or other governmental approval without first obtaining the same.
16. DISCLAIMER OF WARRANTIES
YOUR USE OF EACH COMPONENT OF THE BIONIC SUITE IS AT YOUR SOLE RISK. THE BIONIC SUITE IS AVAILABLE TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. BIONIC DOES NOT WARRANT THAT ANY COMPONENT OF THE BIONIC SUITE INCLUDING THE SOFTWARE AND SAMPLE FILES, IF ANY, WILL BE FREE OF DEFECTS OR BUGS, WILL OPERATE UNINTERRUPTED, WILL OPERATE WITHOUT DELAYS, WILL OPERATE SECURE OR ERROR FREE, OR WILL SATISFY YOUR OPERATIONAL REQUIREMENTS. BIONIC MAKES NO REPRESENTATION THAT EACH COMPONENT OF THE BIONIC SUITE, INCLUDING THE SOFTWARE AND SAMPLE FILES, IF ANY, WILL PLACE OR EXECUTE ORDERS AT THE PRICES INTENDED OR EXPECTED, WILL PLACE OR EXECUTE THE ORDERS INTENDED OR EXPECTED, WILL NOT PLACE OR EXECUTE ORDERS WHICH ARE NOT INTENDED OR EXPECTED, WILL PLACE OR EXECUTE THE ORDER QUANTITY INTENDED OR EXPECTED, WILL PLACE OR EXECUTE THE TYPE OR SELL/BUY ORDER INTENDED OR EXPECTED, WILL PREVENT YOU FROM GOING OVER YOUR POSITION LIMITS OR BOUNDARIES, WILL PREVENT YOU FROM INCURRING A DEBIT BALANCE, WILL GUARANTEE A PROFIT OR FREEDOM FROM LOSS, OR WILL FUNCTION PROPERLY OR WITHOUT CONFLICT IN CONJUNCTION WITH ANY OTHER SOFTWARE, HARDWARE OR OTHER EQUIPMENT, WHETHER PROVIDED BY BIONIC OR THIRD PARTIES.
BIONIC MAKES NO REPRESENTATION THAT YOU WILL PROPERLY INTERPRET THE ELECTRONIC DOCUMENTATION AND UNDERSTAND THE LIMITATIONS OF THE BIONIC SUITE. BIONIC MAKES NO REPRESENTATION OR WARRANTY THAT THE SECURITY MEASURES EMBEDDED WITHIN THE SOFTWARE WILL WORK AS INTENDED OR WITHOUT ERRORS.
BIONIC MAKES NO REPRESENTATION OR WARRANTY THAT BASE PLATFORMS (AS DEFINED IN SECTION 30), APPLICATION PROGRAMMING INTERFACES OF BASE PLATFORMS, OR EXCHANGES WILL EXECUTE AND/OR CONFIRM THE EXECUTION OF ORDERS, CANCEL REQUESTS, PRICE CHANGES, OR ANY OTHER FUNCTION INVOLVING COMMUNICATION WITH AN EXCHANGE, BASE PLATFORM, OR APPLICATION PROGRAMMING INTERFACE OF BASE PLATFORMS IN THE ORDER IN WHICH THEY WERE REQUESTED FROM THE SOFTWARE OR AT ALL.
BIONIC MAKES NO REPRESENTATION OR WARRANTY THAT YOUR SYSTEM HARDWARE, OPERATING SYSTEM, SOFTWARE, NETWORK, OR OTHER SYSTEM COMPONENTS WILL PRIORITIZE ACTIONS YOU TRIGGER WITHIN THE SOFTWARE TO OCCUR BEFORE OR WITH HIGHER PRIORITY THAN OTHER ACTIONS ON YOUR SYSTEM, WHETHER OR NOT THE OTHER ACTIONS ARE TRIGGERED OR SCHEDULED BY YOU.
FURTHER, BIONIC MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO THE TIMING OF ANY DELIVERY OF ANY SOFTWARE, UPDATES, LICENSE CODES, USERNAME/PASSWORD CHANGES, ETC. BIONIC MAKES NO REPRESENTATION REGARDING THE AVAILABILITY OF SAMPLE FILES OR QUICK START GUIDES. BIONIC MAKES NO REPRESENTATION OR WARRANTY OR GUARANTY WHATSOEVER THAT THE SOFTWARE, SAMPLE FILES OR THE WEBSITES, WILL BE OPERATIONAL AT ALL TIMES OR WILL SUIT YOUR BUSINESS NEEDS. BIONIC ALSO MAKES NO REPRESENTATION THAT ANY PARTICULAR SOFTWARE LICENSE LEVEL IS SUITABLE FOR YOUR USE.
BIONIC SHALL HAVE NO RESPONSIBILITY FOR DECISIONS THAT YOU MAKE REGARDING THE USE OF THE SOFTWARE OR ANY OTHER COMPONENT OF THE BIONIC SUITE. BY WAY OF EXAMPLE ONLY, YOU ARE SOLELY RESPONSIBLE FOR THE HOT KEY ASSIGNMENTS, THE USE OF MACROS OR OTHER CUSTOMIZATIONS DEVELOPED BY OR FOR YOU, OR ANY KEYBOARD CONFIGURATIONS YOU MAY USE, AND WE HAVE NO RESPONSIBILITY FOR LOSSES OR DAMAGES INCURRED WITH RESPECT TO YOUR DESIGN OR USE OF THE SAME.
YOU ACKNOWLEDGE THAT TRADING INVOLVES RISK OF LOSS AND THAT ALL INVESTMENTS AND TRADES CARRY RISKS AND BIONIC HAS NO RESPONSIBILITY FOR YOUR TRADING DECISIONS. YOU ACKNOWLEDGE THAT BIONIC HAS NOT MADE ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, THAT THE METHODS, TECHNIQUES OR INDICATORS PRESENTED IN ANY COMPONENT OF THE BIONIC SUITE WILL BE PROFITABLE OR WILL NOT RESULT IN LOSSES. YOU AGREE TO HOLD BIONIC HARMLESS AGAINST ANY CLAIMS OR DAMAGES ARISING FROM OR RELATING TO ANY INVESTMENT, TRADE OR DECISION REGARDING THE SAME, MADE BY OR ON BEHALF OF YOU.
YOU ACKNOWLEDGE THAT NONE OF THE COMPONENTS OF THE BIONIC SUITE ARE DESIGNED TO PROVIDE INVESTMENT OR TRADING ADVICE TO YOU OR, IF APPLICABLE, YOUR CLIENTS, AND THAT, BY GRANTING YOU THE LIMITED LICENSE HEREIN PURSUANT TO THE TERMS HEREOF, BIONIC IS NOT PROVIDING INVESTMENT OR TRADING ADVICE. YOU ARE SOLELY RESPONSIBLE FOR DETERMINING WHETHER ANY TRADING STRATEGY, TRADES OR RELATED TRANSACTIONS ARE SUITABLE FOR YOU GIVEN YOUR OBJECTIVES, FINANCIAL CIRCUMSTANCES, AND RISK TOLERANCE. YOU SHOULD CONSULT FINANCIAL, LEGAL AND/OR TAX PROFESSIONALS REGARDING YOUR PARTICULAR SITUATION.
WITHOUT LIMITING THE FOREGOING, YOU AGREE THAT THE AGGREGATE LIABILITY OF BIONIC FOR DAMAGES FROM ANY CAUSE OF ACTION WHATSOEVER, REGARDLESS OF THE FORM OF ACTION, SHALL NOT EXCEED (A) FOR PRE-PAID USERS, A PRO-RATA CALCULATION OF SUBSCRIPTION FEES PAID BY YOU TO BIONIC THAT ARE ATTRIBUTABLE TO YOUR SUBSCRIBED SERVICES FOR A ONE MONTH PERIOD; (B) FOR TRANSACTIONAL USERS, THE TRANSACTION FEES PAID BY YOU TO BIONIC FOR THE ONE MONTH BILLING PERIOD IN WHICH THE CAUSE OF ACTION AROSE. IN NO EVENT SHALL BIONIC OR ITS AFFILIATES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE FOR LOSSES, LOST PROFITS OR DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY NATURE WHATSOEVER INCLUDING DAMAGES FOR, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF BIONIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (A) THE USE OR THE INABILITY TO ACCESS OR USE OUR WEBSITES OR ANY COMPONENT OF THE BIONIC SUITE; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; (C) GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SOFTWARE OR EQUIPMENT; (D) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (E) STATEMENTS OR CONDUCT OF ANY THIRD PARTY USING OUR WEBSITES OR THE SOFTWARE; (F) ERRORS OR DELAYS IN DATA DELIVERY OR TRADING FUNCTIONALITY RELATED TO THE PUBLISHING OF TRADE DATA, OR THEFT RELATED TO THE PUBLISHING OF TRADE DATA; OR (G) ANY OTHER MATTER RELATING TO OUR WEBSITES, THE BIONIC SUITE OR ANY EQUIPMENT INCLUDING THE KEYBOARD EQUIPMENT.
THE FOREGOING LIMITATIONS AND EXCLUSIONS OF LIABILITY SHALL NOT PRECLUDE OR LIMIT IN ANY WAY EITHER PARTY FROM ENFORCING INTELLECTUAL PROPERTY RIGHTS AFFORDED THE PARTY UNDER THE LAW OF ANY STATE OR COUNTRY HAVING JURISDICTION OF THE SUBJECT MATTER OF THIS AGREEMENT OR FROM RECOVERING DAMAGES FOR INFRINGEMENT OF THOSE INTELLECTUAL PROPERTY RIGHTS UNDER THE PROVISIONS OF THIS AGREEMENT.
BIONIC IS NOT LIABLE FOR ANY LOSS, LOST PROFITS, MISSING FUNDS, OR ANY OTHER LIABILITY INVOLVING OR RELATED TO YOUR CLEARING FIRM, I.E., THE FIRM WHICH CLEARS OR EXECUTES YOUR TRADES, OR ANY LIABILITY INVOLVING OR RELATED TO AN EXCHANGE.
17. INTELLECTUAL PROPERTY RIGHTS
The components of the Bionic Suite, including but not limited to Software, Electronic Documentation, Quick Start Guides, Sample Files, as well as keyboard equipment and the content on our Websites are protected by copyright and other intellectual property laws and treaties. Bionic or its suppliers, including third party licensors of tools and intellectual property usable in connection with the Bionic Suite, own the title, copyright and other intellectual property rights in such items. You will not challenge the ownership or rights in the Bionic Suite or any component thereof, our Websites or any third party software, used in conjunction with the Bionic Suite. You may not remove, modify or alter any copyright, trademark or patent notice from any product delivered by us. You shall not have any rights in the trademarks, service marks or designs of Bionic and its suppliers, all of which remain the exclusive property of Bionic or its suppliers, as applicable. You agree not to undertake any action that will interfere with or diminish Bionic’s or its supplier’s right, title or interest in its trademarks or trade-names or any of its rights under patent, trademark or copyright laws. Suppliers of Bionic shall be deemed third party beneficiaries with respect to the license grant and restrictions applicable to their proprietary products.
You may provide suggestions, comments, or other feedback (collectively, “Feedback”) to Bionic with respect to its products and services, including the Bionic Suite. Feedback is voluntary and Bionic is not required to hold it in confidence. Bionic may use Feedback for any purpose without obligation of any kind. To the extent a license is required under your intellectual property rights to make use of the Feedback, you hereby grant Bionic an irrevocable, non-exclusive, perpetual, royalty-free license to use the Feedback in connection with Bionic’s business, including enhancement of the Bionic Suite.
The Software, Electronic Documentation, Quick Start Guides, and Sample Files and the content of our Websites are copyright © 2011-2018. Keyboard Trader, Bionic Trader Systems and related trademarks and logos are the exclusive property of Bionic and its affiliates. You may not duplicate, copy, or reuse any portion of the Bionic Suite or our Websites without our express written permission.
18. GOVERNING LAW AND VENUE
This EULA is governed by the laws of the State of Illinois without regard to conflict of law principles thereof. Any dispute between the parties which arises out of or is related to this EULA shall be instituted and prosecuted only in the appropriate state or federal court or other tribunal situated in Cook County in the State of Illinois. You hereby submit to the exclusive jurisdiction of such courts and tribunals for purposes of any such action and the enforcement of any judgment or order arising therefrom. You hereby waive any right to a change of venue and any and all objections to the jurisdiction of the state and federal courts and other tribunals located in Cook County in the State of Illinois.
19. ATTORNEYS’ FEES AND COSTS
If Bionic retains legal counsel to enforce any term or condition of this EULA against you (including but not limited to the commencement of a legal proceeding), you agree to reimburse Bionic for all of its expenses in connection thereto, including court costs and reasonable attorneys’ fees. You agree that Bionic shall be entitled to injunctive or other equitable relief for any breach of the provisions of this EULA.
You may not assign this EULA or your rights hereunder without the express written consent of Bionic. You acknowledge that Bionic may assign this EULA and/or its rights hereunder to any other person, with or without notice to you. This EULA shall inure to the benefit of and be binding upon each party’s successors and permitted assigns.
21. NO THIRD PARTY BENEFICIARIES
There are no intended third party beneficiaries to this Agreement. Bionic is not responsible to your customers, clients, successors, heirs or assigns for anything relating to this EULA or your use of the Bionic Suite.
If any provision of this EULA is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect. The failure of Bionic to exercise or enforce any right or provision of this EULA shall not constitute a waiver of such right or provision.
23. ELECTRONIC COMMUNICATIONS
Questions about this EULA should be sent to firstname.lastname@example.org. Please note that we may, but shall not be obligated to, forward information and communications to you via the email address that you have provided. It is solely your responsibility to inform us of any changes to your email address.
24. APPLICABILITY OF AGREEMENT
You may not use the Bionic Suite if you are a person barred from using any of its components under the laws of the United States or other countries including the country in which you are resident or from which you are currently located. As the Bionic Suite is not intended for minors, you affirm that you have reached both the age of 18 and the age of majority in the applicable jurisdiction from which you use the Bionic Suite. The license is personal to you and access to, or use of, the Restricted Bionic Suite may not be shared or transferred by you to any third parties, including your representatives, without our permission. You agree that you will not contest the validity or enforceability of this EULA because it was accepted in electronic form. If you do not agree to the terms of this EULA, you may not access, use or install any portion of the Restricted Bionic Suite.
We reserve the right to update and change this EULA from time to time without notice. Continued use of the Software or any other part of the Restricted Bionic Suite after any such changes shall constitute your consent to be bound by such changes. You can review the most current version of this EULA at any time on the keyboardtrader.com domain.
Any new features that augment or enhance the Bionic Suite, including the release of new tools and resources, shall also be subject to the most current version of this EULA.
26. DEMO PERIOD
Demo Period is defined as any period of time in which Bionic may, at its discretion, make the Restricted Bionic Suite available for use on a limited trial basis. In order for a Demo Period to be valid (and for you to use the Restricted Bionic Suite on a trial basis), it must be approved by Bionic. If your use of the Restricted Bionic Suite is on a trial basis, you are bound by all the terms and conditions of this EULA. During a Demo Period, you may use the Bionic Suite only for trial purposes and you are prohibited from using the Bionic Suite to effect any trades or transactions.
27. BETA USERS
Bionic may at its discretion offer you enrollment in a Keyboard Trader Beta Tester Program (the “Beta Program”). This EULA applies to your participation in the Beta Program. In addition, you will be required to agree to certain additional terms and conditions in order to enroll in the Beta Program that will be provided in the BETA Tester Program Registration Form. The Beta Program may contain one or more beta services and/or beta products (collectively, the “Beta Services”) from time to time as determined by Bionic’s sole discretion. In order to participate in the Beta Program and use the services, you must first agree to the terms of the EULA and the applicable Beta Program. If at any time Bionic terminates this EULA or the Beta Program, or for any other reason you are not authorized to use the Restricted Bionic Suite, you must cease use of, and uninstall, all components of the Restricted Bionic Suite promptly upon notice.
The Beta Services are made available to you for purposes of evaluation and feedback without any compensation or reimbursement of any kind from Bionic. You acknowledge that the Beta Services you are evaluating may contain bugs, errors and other programs and are provided “asis”. Therefore, to the extent permitted by applicable law, Bionic disclaims any warranty, condition and/or liability obligations to you of any kind with respect to the Beta Services. You further acknowledge the importance of communication between Bionic and you during your use of the Beta Services and participation in the Beta Program and hereby agree to receive related correspondence and use any updates from Bionic. In the event you request to opt-out from such communications, your participation in the Beta Program will be cancelled. You also hereby acknowledge that Bionic has not made any representations, promises or guarantee that any particular component of the Beta Services will ever be announced or made available to anyone in the future and that Bionic has no express or implied obligation to you to announce or introduce the Beta Services. During the Beta Program, you will be asked to provide feedback regarding your use of the Beta Services and you hereby grant to Bionic a perpetual, royalty-free worldwide license to use and/or incorporate such feedback into any Bionic product or service (including the Beta Services) at any time at the sole discretion of Bionic.
28. SALES AND MARKETING
Bionic may refer to you as being a client of Bionic in presentations, sales and advertising, press releases, and customer lists with your prior written consent.
29. MINIMUM SYSTEM SPECIFICATIONS
You are required to use a system which meets the technical specifications as listed on the keyboardtrader.com domain. The specifications may include operating systems, Base Platforms, hardware specifications, etc. Bionic reserves the right to update these requirements from time to time. Bionic may, but shall not be obligated to, inform you of any updates.
30. BASE PLATFORMS
The Software allows users to trade financial products by connecting through the application programming interface of one or more “Base Platforms”. The Software is a separate software system from these Base Platforms and application programming interfaces, and the Software will not operate without you having a license to a Base Platform. It is your responsibility to obtain the license to a Base Platform at your own expense. A current list of Base Platforms may be requested or obtained from our websites.
You understand and agree that even if the Software prevents or allows actions to be taken within the Software, this does not imply that the Software prevents or allows those actions to be taken within the Base Platform and vice versa. By means of example only, even if users are able to configure Position Limits / Boundaries within the Software, these Position Limits / Boundaries will not limit the ability of users to place orders within the Base Platform. It is your responsibility to understand the operation and limitations of both the Software and the Base Platforms and to further understand how your actions in each may affect the other.
While the Software may be further developed in the future, at the present time it is primarily an order entry system. It is your responsibility to obtain access to timely market data, your account positions and open orders, and to remain alert to changes in this information in the Base Platform. You further agree that it is your responsibility to review your brokerage statements every day. Bionic is not liable because you are unaware of your account positions, working orders, account balance, etc.
You agree that you have a basic skill set in operating the Base Platform to which you are connected and using in conjunction with the Software. This includes but is not limited to, a skill set in order placement.
Bionic will make reasonable efforts to ensure that the Software and any Software updates are compatible with the application programming interfaces of the Base Platforms. However there are no warrantees that the Software, Software updates, Base Platforms, or application programming interfaces to which the Software connects will be compatible, free of defects or operate error-free. There are no warranties that Bionic will be able to make adjustments to the Software and release Software updates that correspond to updates in the Base Platform and application programming interfaces of the Base Platforms in a time frame that suits your business purposes. For more information on compatibility of the Software with the application programming interfaces of Base Platforms, please contact the provider of the Base Platform and/or Bionic. It is your responsibility to upgrade the versions of the Base Platform, application programming interfaces of the Base Platforms, and Software based on compatibility and other factors as determined by you.
31. THROTTLE/MESSAGING LIMITS
The Software may offer functionality that allows you to perform many actions within a short period of time. You may be able to configure the Software to, for example, submit many orders, cancel requests, or prices changes of working orders with one or more user inputs. In order for all of the commands to be successfully executed, however, they may be required to be accepted by the Software, the application programming interface of the Base Platform, the Base Platform, the exchange or exchanges to which the orders are being placed/changed/canceled, the brokerage/futures clearing merchant, and possibly other parties and/or systems. One or more of these parties and/or systems may impose limits on communication. For example, Base Platforms or the application programming interfaces of the Base Platforms may impose rate or throttle limits, i.e., the maximum number of messages (i.e., order, order changes, etc.) that the user may send per a specific amount of time (i.e., one second). The Software may also include rate limiting functionality. Exchanges and FCMs/brokerages may impose limits on messaging. If you want to use the Software to submit multiple actions within a short period of time, we strongly recommend that you research what, if any, throttle limits, rate limits, messaging limits, etc. exist within all the components of your system and network. Otherwise, one or more functions that you attempt to submit using the Software may not execute as intended. Bionic is not responsible for any losses you suffer due to your failed attempts to submit one or more functions using the Software due to throttle limits, rate limits, message limits, etc. However, we encourage you to explore our help resources, and/or inquire with us about this topic to ensure your optimal satisfaction.
32. CONFORMED EXCHANGES/PRODUCTS
The Software has passed conformance testing for the trading of products at various exchanges through the application programming interface of one or more Base Platforms. It is your responsibility to keep informed of the conformed product/exchange/Base Platform list, which may be updated occasionally on the keyboardtrader.com domain. If you attempt to trade any products of exchanges which have not passed conformance testing using the Base Platform to which you are using in conjunction with the Software, there is a high risk of errors. Orders may go to market at wrong prices, orders may not go to market at all, orders may be rejected, and other significant technical challenges may occur. Any attempt to trade any products of exchanges that have not passed conformance testing using the Base Platform to which you are using in conjunction with the Software, is at your own risk.
Even if products/exchanges have passed conformance testing for a Base Platform, some Software features may not be functional for those products/exchanges/Base Platforms. It is your responsibility to research which features are supported for the products at the exchanges using the Base Platform with which you wish to trade before attempting to use the features in the Software. Bionic is not liable if you are unsuccessful in using features in the Software which are not usable for a product at an exchange with the Base Platform you are using. If you are unsure as to which functions are executable for a given product/exchange/Base Platform, contact the exchange or the provider of the Base Platform.
Keyboard Trader is not conformed to trade to any exchange directly, and is not associated, affiliated, connected, approved, authorized, or sponsored by any exchange.
33. EXCHANGE DATA AND AGREEMENTS
For any data that you use, store, publish, or redistribute in conjunction with the Software, it is your responsibility to do so according to exchange rules and/or license agreements. You agree that nothing about this EULA gives you the right to bypass exchange rules, fees, and/or license agreements.
34. SIMULATION ENVIRONMENT
As part of this EULA, Bionic may at its own discretion offer a simulation trading environment (“Simulation Environment”). If offered, the Simulation Environment will have an additional set of policies and guidelines. However, if a Simulation Environment is offered, your use of the Simulation Environment is subject to this EULA.
Bionic reserves the right to change the policies and guidelines at any time and without notice to you. Bionic reserves the right to revoke your access to the Simulation Environment at any time. If your rights to Simulation Environment are revoked, it will not affect the remainder this EULA. In all scenarios, once your Subscription Period or Demo Period ends, you are no longer permitted to access the Simulation Environment.
Bionic’s Simulation Environment is different than simulation trading that may be offered as a feature of one or more Base Platforms, FCMs, etc. For example, a Base Platform may allow the user to switch from trading in a live environment to simulation trading environment by changing the IP address to which the user connects, by starting/stopping a simulation server, or by adjusting other settings within or outside the Base Platform. It is your responsibility to know at all times whether you are trading in Bionic’s Simulation Environment, or a live or simulation trading environment outside of our control. Bionic is not responsible for your losses or lost gains due to your not realizing which environment you are trading in.
35. SECURITY MEASURES – IMPACT ON PERFORMANCE
There are security measures in this Software that are designed to prevent unlicensed or illegal use of the Software. You agree that Bionic may use these measures to protect itself. However, these measures are not guaranteed to operate error-free or without disruption. Bionic will not be liable for any losses or damages which result out of the failure of these security methods to perform their intended tasks. These include, but are not limited to, the costs associated with the failure of the Software to launch during a Subscription Period or Demo Period, improper access to the paid Software License Levels (currently Standard, Premium, and Professional), etc. Damages related to any disruption of the Software due to failures of the security measures are limited to the pro-rata cost of the subscription fee for the term of the disruption and may be conditioned upon your ability to demonstrate, to Bionic’s reasonable satisfaction, that the service disruption occurred.
36. DATA PUBLISHING
Bionic may publish your trade data (“Trade Data”) to a database, on your premises or our premises, while you are trading and/or in periodic intervals. The Trade Data may include transaction ids, timestamps, order quantities, execution quantities, symbol identifiers, account identifiers, variables indicating whether the orders were placed within the Base Platform or via the Software, variables indicating whether the orders were modified via the Software, Base Platform identifiers, user identifiers, exchange transaction identifiers, exchange time stamps, order status, and variables related to your Software logon sessions and order history. The Trade Data will not reflect whether your orders are buy or sell orders, or reflect your order execution prices, unless you enable your account to collect this data.
If, according to your Software Registration, you have indicated that you agree to license the Software on a transactional basis, i.e., based on the number of trades that occur in your account, this will require Bionic to publish your Trade Data to a database on our servers so that we can know the volume of your trading, and determine whether the trades were initiated by the Software or modified thereafter by the Software, as this is a factor that determines your fee.
If you choose, you may assign in the Software for additional information (“Excel Variables”) to be published to a database along with your orders and executions. Bionic may charge a fee for any Excel Variables that you publish. Data publishing fees do not imply or include data analysis, as Bionic does not currently provide data analysis services.
The Trade Data and Excel Variables that we provide are not intended to be MiFID II compliant, and we not guarantee their accuracy. We recommend that you do not use this data to comply with any reporting requirements. We do not intend for you to use this data to determine whether your executions are fair. The timestamp variable that we provide is the timestamp that we process transactions on your computer and is therefore delayed, even if by a small fraction of a second, compared to when an order is sent or an order fill is received. If you send multiple orders or receive multiple fills at approximately the same time, this may cause slight delays in processing. Delays per transaction are dependent on many factors including CPU and RAM and therefore are not known for any particular user.
37. EXCEL ADD-IN
We do not guarantee performance for any system that you build with the Keyboard Trader Add-In for Excel. This is in light of the fact that the Keyboard Trader Add-In for Excel integrates with technologies produced by Microsoft, and based on your needs, the technologies produced by Microsoft may further integrate with technologies produced by market data providers and/or trading applications. Because these external technologies are outside of our control, could change over time, and could potentially have unique interaction effects in combination, we do not guarantee the performance of the Keyboard Trader Add-In for Excel in combination with any or all of them. In the interests of your safety we recommend that you aggressively stress test anything that you build with it before using it in a live market environment. Regardless of what you build, you are responsible for its performance, and we do not guarantee that it will work. However, we will do our best to provide you with information, testing tools, and our recommendations. Contact Bionic with any questions.
38. TRANSACTIONAL USERS
We will invoice all Transactional Users according to our pricing schedule as shown on the keyboardtrader.com domain. The pricing schedule may include a minimum monthly fee upon the first login each month, and may have different transaction rates and caps based on different Software License Levels and Base Platforms connections. The pricing schedule will include fees based on your transaction volume while the Software is running, and may further include fees imposed on trades that occur while the Software is running, even if the trades were not initiated or modified using the Software.
You agree to pay Bionic according to its pricing schedule, and other terms identified on the Software Registration. If Bionic has a relationship with your FCM/broker, Bionic may instead at its own discretion accept payment from your FCM/broker as direct debits from your brokerage account with them.
In the case of disputed transactions, you understand and agree that the burden is on you to have your FCM/broker, the exchange, or Base Platform provider provide written confirmation, or other communication as deemed acceptable by Bionic, that the disputed trades did not occur in your account and/or did not occur while the Software was running.
The prices referred to in this EULA do not include taxes and other similar charges. Customer is responsible for, and shall pay or reimburse Bionic for, all taxes, including sales, use, value-added (VAT), general services (GST), gross receipts, excise, personal property, or other federal, state or local taxes, export tariffs and import duties, or any similar assessments based on the license to Customer of Bionic Suite under this EULA, and any penalties, interest and collection or withholding costs associated with any of the foregoing items, excluding taxes on Bionic’s net worth and net income. In lieu of paying such taxes Customer may provide Bionic with a tax exemption certificate acceptable to the taxing authorities. Customer shall reimburse Bionic for any fines, penalties, taxes and other charges, including expenses incurred by Bionic, due to Customer’s submission of invalid information.
40. ENTIRETY OF AGREEMENT
This EULA (including any addendum or amendment to this EULA that is included in our website or that accompanies any component of the Bionic Suite or the Beta Program, if applicable) constitutes the entire agreement and understanding between you and Bionic with respect to the subject matter hereof, including any updates, upgrades or new versions of any components of the Bionic Suite, and supersedes any and all prior agreements and understandings, oral or written, relating to the subject matter hereof.
I have read, understand and agree to be bound by the terms as set forth in this EULA.