End User Licence Agreement
End User Licence Agreement 20110824
1 Conditions of Supply
By opening or installing this Software ("Software") package, or any related package supplied by Norgate, you become a Licensee. As a Licensee you agree to be bound by the terms of this Licence Agreement ("Agreement").
Any reference to "he" in the Agreement shall be taken as a reference to "he" or "she".
"Norgate" means Norgate Investor Services Pty. Ltd. (ABN 70058485395).
"Norgate and its associates" means Norgate Investor Services Pty. Ltd. and related companies, securities exchanges, brokers, suppliers, business partners, resellers, agents, and includes directors, officers, employees or contractors of all of the above.
“Data” means trading information for securities, and related or derived information, supplied in association with the Software or obtained through it.
"Documentation" means any instructional information regarding the operation of the Software, including information provided within the product as well as external files and printed material.
Where a Norgate associate supplies an “add-in”, or related package to the Software, a separate Licence Agreement may apply. Norgate is not responsible for the content of any such additions.
2 Grant of Licence
Norgate hereby grants to the Licensee a non-exclusive licence to use the Software, Data and Documentation on the following terms:
Licensee may: (i) use the Software on two computers that are normally accessed by the Licensee for personal use; (ii) copy the Software and Data for archival purposes provided that any copy contains all of the original Software's proprietary notices.
The data is for the personal and private use of the Licensee only. Any other use, such as within a commercial environment, is considered commercial use and such use is not granted under this licence.
The Licensee warrants that he will not resell or redistribute the Data supplied in association with the Software, or obtained through it, in part or in full, in any way whatsoever.
3 Data Suppliers
Parts of the Data are subject to the copyright of, and reproduced under licence from, various original suppliers including:
Australian Securities Exchange Limited
Dow Jones Indexes / CME Group Index Services
FTSE International Limited
Interactive Data Corp
London Metal Exchange
Norgate Investor Services Pty Ltd
Singapore Exchange Limited
Standard & Poors, a Division of The McGraw-Hill Companies, Inc.
The licensee warrants that the above suppliers own the Intellectual Property Rights in the information and redistribution of the information is covered by separate agreements between Norgate and the suppliers.
The use of data supply by Standard & Poors, a Division of The McGraw-Hill Companies, Inc. is governed by the following clause:
Reproduction of any information obtained from any S&P/ASX Index in any form is prohibited except with the written permission of S&P. Because of the possibility of human or mechanical error by S&P’s sources, S&P or others, S&P does not guarantee the accuracy, adequacy, completeness or availability of any information and is not responsible for any errors or omissions or for the results obtained from the use of such information. THERE ARE NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE. In no event shall S&P be liable for any indirect, special or consequential damages in connection with subscriber's or others' use of any S&P/ASX Index. All S&P/ASX Index data is Copyright © 2008 The McGraw-Hill Companies, Inc., Standard & Poor's ("S&P") is a division of The McGraw-Hill Companies, Inc.
The use of data supply by JSE Limited is governed by the following clause:
Norgate is licensed by the JSE to publish the Information on a delayed basis. The JSE shall not be responsible for any error or omission in the Information. All copyright and database rights in the Information belong to the JSE. Re-distribution of the data comprising the Information is not permitted without the express prior written consent of the JSE. You agree to acquaint yourself with and comply with any restrictions or conditions imposed upon the use, access, or storage of the Information as may be required by the JSE or Norgate including the condition that in certain circumstances you will be required to enter into a separate agreement with the JSE or Norgate. The Information is the proprietary information of the JSE. All copyright subsisting in the Information vests in the JSE. All its rights are reserved.
Norgate reserves the right to change its data suppliers without notice.
Norgate’s data suppliers are not associated with, and should not be construed as endorsing, promoting or expressing any opinion about, any of Norgate’s products or services, or the content of any internet sites operated by Norgate. The suppliers and their related companies, offices and employees, shall not be liable in any way for any loss or damage howsoever arising (whether in negligence or otherwise) in relation to the supply of Data by Norgate, and any omissions from that Data, except where a liability is made non-excludable by legislation.
The licensee accepts that they will provide on request all information requested by Norgate or the Data Suppliers for auditing or compliance purposes.
4 Foreign Exchange/Currency Data
Where Foreign Exchange data is provided through the Software, this data represents an aggregation of information derived from the interbank market. Due to the fact that foreign exchange transactions are not performed through a central exchange, the rates provided by Norgate may vary from those actually available for the purposes of trading. Some cross-rates may be calculated by reference to others.
5 Title and Copyright
All title ownership rights, copyrights and intellectual property rights in and to the Software (including but not limited to any images, photographs, animation, video, audio, music, text and "applets" incorporated into the Software), the accompanying printed materials, any derived information (including but not limited to statistics, charts, databases and tables) and any copies of the Software and Data are owned by Norgate or its suppliers. The Software is protected by the copyright laws of Australia and international copyright treaties. This licence gives the Licensee no intellectual property, ownership or copyright rights to such content.
The ASX logo is a registered trade mark of Australian Securities Exchange Limited. "All Ordinaries (r)" and "ASX (r)" are registered trade marks of ASX Operations Pty Limited.
For any materials that the Licensee transmits to Norgate, the Licensee grants Norgate a worldwide, non-exclusive, assignable, royalty-free, sub-licensable (through multiple tiers), perpetual, irrevocable right and license to use, copy, distribute, transmit, reproduce, edit, modify, translate, and reformat such materials, in any media now known or hereafter developed, without compensation to the Licensee. The Licensee represents and warrants that he has all rights necessary to grant the foregoing licenses.
6 Modifications, Derivative Works and Reverse Engineering
The Licensee agrees that he will not in any way copy, modify, translate, reverse engineer, decompile, disassemble or create derivative works or allow any other party to copy, modify, translate, reverse engineer, decompile, disassemble or create derivative works based upon the Software or Documentation.
7 No Separation or Transfer of Licence
The Software is licensed as a single product and the Licensee agrees that the material comprising the Software will not be separated for use by more than one user. These rights may not be transferred to any other party. The Licensee agrees that he will not permit other individuals to use the Software.
The Licensee agrees that he will not remove any proprietary notices or labels on the Software or Documentation.
9 Rent or Lease
The Licensee agrees that he will not rent or lease the Software.
10 Subscription information
The Licensee agrees that he is responsible for protecting the confidentiality of his account information and that he will not make his user details available to another party. The Licensee agrees to accept the cost of all additional use of his subscription if that use has been made possible by the deliberate communication of the Licensee’s assigned username and password.
Data subscriptions are for a set period of time and cannot be cancelled or suspended. Refunds will not be provided in the event that the Licensee determines that a Data service is no longer required.
11 Accuracy of information
All material in the Software is provided in good faith and is derived from sources believed to be accurate. Norgate and its associates do not make any representation or warranty as to the timeliness, reliability, accuracy or completeness of the Data, nor do they accept any responsibility arising in any way from errors in it or omissions from it. Nothing in these conditions shall exclude, restrict or modify any condition or warranty implied by law. Norgate and its associates may provide corrections to the Data without notice.
12 General information only - Non Advisory
The Licensee agrees that the material provided in the Software is general information only and is not intended as investment advice and will not be relied upon as such. The Licensee agrees to obtain professional investment advice tailored to his specific circumstances prior to making any investment decisions, if applicable. The Licensee agrees to consult with a broker to verify pricing before conducting any securities trading. The Licensee agrees that the material provided does not, and must not be construed as providing recommendations in relation to any securities or other financial products. The Licensee agrees that the material provided does not constitute and will not be construed as an offer of securities or other financial products nor is it an invitation for the Licensee to take up securities or other financial products.
The Licensee agrees that the material comprising the Software is copyright and supplied under licence from Norgate for personal use only. Except for the temporary copy held in a computer's cache and a single permanent copy for the Licensee's personal reference held on a maximum of two machines, the material may not otherwise be used, copied, reproduced, published, stored in a retrieval system, altered, or transmitted in any form or by any means in whole or in part without the prior written approval of Norgate. The historical Data supplied in association with the Software may include a digital watermark for identification of unauthorised duplication.
Norgate will prosecute individuals or corporations that violate copyright of the Software and Data to the full extent of the law.
14 Data Usage Restrictions
The Licensee agrees not to use any part of the Software or Data to establish, maintain or provide or assist in establishing, maintaining or providing a market for trading in securities. The Data may not be used as the basis of a financial instrument or as the basis for settlement of a contract. The Data must be for personal and non-commercial use only.
The licensee accepts that the data will not be used in any manner with may be directly or indirectly competitive with the operations of Norgate or its suppliers.
15 Limited Warranty
Norgate warrants that for a period of thirty (30) days from the date of its acquisition, the Software will substantially achieve the functionality described in the Documentation, given that it is operated as directed. The date of acquisition is the date from which the Software is made available to the Licensee for download from an internet location operated by Norgate. Norgate also warrants that where the Software is shipped to the Licensee, the media containing the Software is free from defects in material and workmanship.
This warranty applies only if the Licensee informs Norgate of any problem with the Software during the applicable warranty period and provides evidence of the acquisition date. The warranty does not apply if any modifications are made to the Software by the Licensee during the warranty period, or if the Software is subjected to accidental abuse or improper use, or if the Licensee violates any of the terms of this Agreement
16 Warranty Remedies
Should a breach of the Limited Warranty occur, Norgate's liability will be limited to the following remedies which will be implemented solely at its discretion: (i) replace the Licensee's defective media; or (ii) advise the Licensee how to achieve substantially the same functionality with the Software as described in the Documentation through a procedure different to that set forth in the Documentation; (iii) provide the Licensee with a replacement copy, or amended version, of the Software or (iv) provide the Licensee with a pro-rata refund.
17 No other Warranties.
Norgate does not warrant that Licensee's use of the Software will be uninterrupted, error-free or secure.
The Licensee agrees that Norgate has the right to change or discontinue any function or feature of the Software, including Data content and time of availability. Norgate also retains the right to upgrade the specifications relating to equipment required for the use of the Software.
The Licensee agrees that, to the maximum extent permitted by applicable law, Norgate and its associates disclaim all other warranties, either express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose, with regard to the Software, Data and accompanying Documentation.
18 No liabilities for consequential damages.
The Licensee agrees that Norgate and its associates shall have no obligation or liability to the Licensee in contract or in tort arising out of or relating to delays, errors or omissions in collection and dissemination of the Data, or for the inaccuracy of information carried or displayed by the Software. The Licensee agrees that, to the maximum extent permitted by applicable law, in no event shall Norgate and its associates be liable for any special, incidental, indirect, or consequential damages whatsoever (including, without limitation, damages for loss of business profits, business interruption, computer failure or malfunction, loss of business information, or any other pecuniary loss) arising out of the use of or inability to use the Software or Data, even if Norgate and its associates have been advised of the possibility of such damages.
The Licensee or user of a Licensee's product agrees to limit any claims against Norgate and its associates to the total amount paid by the Licensee to Norgate and its associates for the license to the Software.
19 Representation and Warranties
The Licensee acknowledges that the Norgate and its associates do not make any representation or warranties regarding the product or the services provided or any other matter which is or might be relevant to the Licensee buying the products or services other than the representation or warranties expressed in this Agreement.
The Licensee represents and warrants that he will utilise the Software only in relation to purposes for which he has obtained all necessary clearances and permissions. The Licensee assumes the entire risk resulting from a breach of this warranty and agrees to hold harmless and indemnify and defend Norgate and its associates from and against any losses, damages, fines and expenses (including attorney's fees and costs) arising out of, or relating to, any claims that the Licensee has violated another party's rights.
The Licensee indemnifies and shall keep indemnified Norgate from and against any liability, loss, expense or demand for or arising from any false, misleading or deceptive representation or statement made by the Licensee in respect of the Software to any person.
This Licence Agreement shall terminate automatically if the Licensee fails to comply with the limitations described in this licence. On termination, the Licensee must destroy all copies of the Software and its Documentation, including all Data obtained through and in association with the Software.
22 Delayed Data
Some Data (for instance some ASX data) is provided on a minimum 20 minute delayed basis. The Licensee agrees that this information is not real-time information. All other information is provided as "end of day" and is at least 20 minutes-delayed.
23 Governing Law
This Agreement shall be subject to Australian Law and the parties hereby submit to the exclusive jurisdiction of the Australian courts.
24 Entire Agreement
This Agreement constitutes the complete and exclusive agreement between Norgate and Licensee with respect to the subject matter hereof. These terms and conditions supersede and exclude all prior and other discussions, representations (contractual or otherwise) and arrangements relating to the supply of the products or any part thereof including, but without limiting the generality of the foregoing, those relating to the performance of the products or any part thereof or the results that ought to be expected from using the product. This Agreement may not be modified except in writing duly signed by a Director of Norgate and Licensee.
The Licensee acknowledges that they have read and understand this Agreement and agree to be bound by its terms. The Licensee further agrees that this agreement is the complete and exclusive statement of the Agreement between Licensee and licensor, and supersedes any proposal or prior Agreement, oral or written, and any other communications relating to the subject matter of this Agreement.
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