PLEASE READ THIS END USER LICENSE AGREEMENT CAREFULLY. By choosing or clicking "I Agree" in the installation application of Net Gain Portfolio Manager or by choosing or clicking the "I Agree," "I Accept," "Yes" or any other button or link which indicates the installation of Net Gain Portfolio Manager on your machine, you agree to be legally bound by the terms and conditions of this End User License Agreement. Net Gain Portfolio Manager shall be referred to as the "Software". Permission to install the Software or its derivative product(s), if any, is granted only when these terms and conditions are agreed to as stated herein. If you choose to install the Software as indicated above, you expressly agree to the terms and conditions contained herein.
This End User License Agreement ("Agreement") is a legal agreement entered into between you ("Licensee") and FutureNow Mobile, LLC ("Licensor") regarding the download, installation, purchase, and use the Software as of the date that Licensee agrees to this Agreement. In this Agreement, "you" and "your" refer to you, the Licensee, and his or her agents, and "we", "us" and "our" refer collectively to Licensor.
IF YOU ARE UNDER 18 YEARS OF AGE, YOU MAY NOT DOWNLOAD, INSTALL, PURCHASE, OR USE THE SOFTWARE.
ANY PURCHASE OR USE OF THE SOFTWARE WITHOUT AGREEING TO THE TERMS OF THIS AGREEMENT IS STRICTLY PROHIBITED.
This Agreement may be modified by Licensor from time to time, at Licensor's sole discretion. The last date of modification is set forth below. Licensor may make available shorter versions of this Agreement. These additional versions are intended only as summaries of this complete Agreement.
1. DEFINITIONS AND DESCRIPTIONS
"Software" or "software application" refers to the software that will be installed on your computer according to the terms and conditions of this Agreement, and any upgrades, updates, bug fixes, or modified versions or changes of any kind thereto (collectively, "Upgrades").
The term "download" refers to the process of obtaining software from the Licensor's servers via the Internet and storing in on your computer.
The term "install" refers to the usage of the installation program or process to install the Licensor's software onto the Licensee's computer for usage by the Licensee.
2. LICENSE GRANT
LICENSE GRANT. Licensor hereby grants to Licensee, for the term of this Agreement, a non-exclusive, non-assignable, non-transferable, non-commercial, limited license to use the Software on one (1) personal computer.
TITLE AND LIMITATIONS.
This is a license, not a transfer of title, to the Software. Licensor retains ownership of all copies of the Software. You are granted no implied licenses to any other intellectual property rights other than as specifically granted herein. You acknowledge that the Software contains trade secrets of Licensors, its suppliers, or licensors, including but not limited to, the specific internal design and structure of individual programs and associated interface information. Accordingly, except as otherwise expressly provided under this Agreement, you shall have no right, and you specifically agree not to:
transfer, assign or sublicense its license rights to another person or entity and you acknowledge that any attempted transfer, assignment, sublicense or use shall be void;
make error corrections to, or otherwise modify or adapt, the Software or to create derivative works based upon the Software, or permit third parties to do the same;
reverse engineer or decompile, decrypt, disassemble or otherwise reduce the Software to human-readable form, except to the extent otherwise expressly permitted under applicable law notwithstanding this restriction;
use or permit the Software to be used to perform services for third parties, whether on a service bureau or time sharing basis or otherwise, without the express written authorization of Licensor;
disclose, provide, or otherwise make available trade secrets contained within the Software in any form, to any third party without the prior written consent of Licensor. You shall implement reasonable security measures to protect such trade secrets; or
use the Software to develop any software application intended for resale which employs the Software.
SOFTWARE, UPGRADES, AND ADDITIONAL COPIES.
The software may be updated by way of modifications, enhancements, or other changes, which will be determined solely by the Licensor from time to time. Such updates may or may not be available free of charge after the initial installation and the Licensee agrees that the Licensor has no obligation to provide any updates. Any updates provided by the Licensor shall be subject to the same terms and conditions of this Agreement. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT: (1) YOU HAVE NO LICENSE OR RIGHT TO USE ANY ADDITIONAL COPIES OR UPGRADES UNLESS YOU, AT THE TIME OF ACQUIRING SUCH COPY OR UPGRADE, ALREADY HOLD A VALID LICENSE TO THE ORIGINAL SOFTWARE AND HAVE PAID THE APPLICABLE FEE FOR THE UPGRADE OR ADDITIONAL COPIES; AND (2) THE MAKING AND USE OF ADDITIONAL COPIES IS LIMITED TO NECESSARY BACKUP PURPOSES ONLY.
ACCESS TO SOFTWARE.
In order to use the Software, you must provide all equipment and software necessary to use Software that are not a part of the Software, including, but not limited to, a computer that is in working order running an operating system compatible with the Software, suitable for use in connection with the Software and able to communicate with the Licensor's server through an Internet connection, and a compatible version of Excel. Microsoft Windows versions including Windows 98, Windows ME, Windows NT and older versions are not supported for use with the Software and the Software may not properly function with these operating systems. You are responsible for ensuring that your equipment and/or software do not disturb or interfere with the Licensor's operations or the operations of other users of the Software. If any upgrade or modification to the Software requires changes in your equipment or software, you must effect these changes at your own expense. Unless explicitly stated otherwise, any new or additional features that augment or enhance the Software, including the release of new products and services, shall be subject to the terms and conditions of this Agreement.
3. TERM AND AUTOMATIC RENEWAL
This Agreement shall be effective as of the date Licensee agrees to this Agreement and shall extend until the earlier of (1) the period of time communicated to the user during the registration of the Software, or (2) one (1) month after purchase of the Subscription, whichever is sooner (the "Initial Term"). For users that purchased a Subscription, this Agreement shall automatically renew for successive and continual periods of a length equal to the Initial Term ("Renewal Term") unless Licensee provides Licensor notice of cancellation prior to the end of the Initial Term or each Renewal Term by emailing such notice to Licensor at https://www.netgainportfolio.com/contact.asp. The Licensee shall be charged the then applicable licensing fees for each Renewal Term (see Pricing page at Pricing). Licensee hereby agrees to accept notices regarding registration and Renewal Terms in the form of emails and to accept other communication from Licensor in electronic or other format. At the expiration of the Term or any Renewal Term, the Software will still provide you access to your Transactions but will not function in any other way.
Should the Licensee choose to utilize the Software to manage their investment portfolio(s), the Licensee shall pay a fee for a Subscription. The fee paid by Licensee will be that which is stated on the Software's registration page located at https://www.netgainportfolio.com/order.asp
It is expressly agreed and understood that the terms and conditions of this Agreement apply whether or not the Licensee purchases the Subscription.
5. WARRANTIES AND DISCLAIMERS
ALLOCATION OF RISK. You acknowledge and agree that Licensor has set its prices and entered into this Agreement and sales of Software in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that the same reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the parties.
NO KNOWLEDGE OF INFRINGEMENT. Licensor represents that it has no actual knowledge that Licensee's use of the Software infringes any valid rights of any third party.
LIMITED WARRANTY/DISCLAIMER. Although reasonable efforts are made to ensure that the software provided will operate as intended on your computer by testing the software on numerous test machines with different browsers and operating environments, Licensor has no control over your computer or how the software will perform on your particular machine. Therefore, use of the software is at your sole risk, including, without limitation, the following:
The Licensor does not guarantee accuracy of all reporting.
Licensor is not a financial product advisory service and does not provide financial product advice. The information provided by the Software is factual numeric information only based on publicly available data or data entered by the user and the information presented in the reports is derived from that information as a result of commonly used calculations. This information is not a recommendation nor is it a statement of opinion. The information should not be relied upon for making investment decisions and it is recommended that you seek your own independent financial advice before making any decisions in relation to your investments.
Although the Software taxation reports may be used to compute taxation information, the information provided is not conclusive and does not constitute tax advice. Licensor is not a registered tax agent and does not provide tax advice. You should consult an independent tax advisor for tax advice.
Prices for marketable securities are received from various pricing services thought to be reliable; however, pricing services are sometimes unable to provide timely information. You should always request a current valuation for your securities prior to making a financial decision or placing an order.
Although every effort possible is made to avoid mathematical errors, Licensor makes no warranty to be free of mathematical errors.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, SOFTWARE FURNISHED BY LICENSOR AND ACCEPTED BY YOU ARE PROVIDED "AS IS" AND WITHOUT ANY WARRANTY WHATSOEVER. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARE SPECIFICALLY EXCLUDED AND DISCLAIMED BY LICENSOR. LICENSOR DOES NOT WARRANT THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF SOFTWARE IS WITH YOU.
NOT DESIGNED FOR SYSTEMS REQUIRING FAULT TOLERANCE. The software has not been designed, tested, or verified for use on equipment involved in high-risk activities or in mission critical applications that require extreme fault tolerance. Therefore, the software should not be used on any computers that perform or communicate with computers that are involved in such applications.
LIMITATION OF REMEDIES. YOUR SOLE AND EXCLUSIVE REMEDY FOR BREACH OF THE FOREGOING LIMITED WARRANTY WILL BE THAT: (A) LICENSOR WILL ENDEAVOR TO CORRECT WITHIN A REASONABLE TIME ANY REPORTED FAILURE OF THE SOFTWARE TO SUBSTANTIALLY CONFORM TO OR PERFORM SUBSTANTIALLY IN ACCORDANCE WITH LICENSOR'S SPECIFICATIONS, TO THE EXTENT SUCH SPECIFICATIONS EXIST; (B) REPLACE THE SOFTWARE; OR (C) IN THE EVENT THAT LICENSOR SHALL FAIL OR BE UNABLE FOR ANY REASON TO CORRECT ANY SUCH FAILURE OR NON-CONFORMITY OF THE SOFTWARE OR REPLACE THE SOFTWARE, YOU MAY TERMINATE THE END USER LICENSE AGREEMENT AS TO THE AFFECTED SOFTWARE AND RECEIVE A REFUND OF ANY LICENSE FEE YOU PAID TO LICENSOR.
USE OF UNSUPPORTED OPERATING SYSTEMS. Microsoft Windows versions including Windows 98, Windows Me, Windows NT and older versions of the Windows operating systems prior to Windows 98 are not supported by Net Gain Portfolio Manager. Your use of unsupported operating systems is done entirely at your own risk and without any warranty of any kind by the Licensor.
LIMITATION OF LICENSOR LIABILITY. IN NO EVENT WILL LICENSOR BE LIABLE TO YOU FOR ANY LOST PROFITS, LOST SAVINGS, LOST DATA, UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA, LOST REVENUE, BUSINESS INTERRUPTION, LOSS OF CAPITAL OR OTHER SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY SOFTWARE FURNISHED OR TO BE FURNISHED BY LICENSOR UNDER THIS AGREEMENT OR THE USE THEREOF, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, AND THE AGGREGATE LIABILITY OF LICENSOR UPON ANY AND ALL CLAIMS HOWSOEVER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY SOFTWARE FURNISHED OR TO BE FURNISHED BY LICENSOR UNDER THIS AGREEMENT WILL IN ANY EVENT BE ABSOLUTELY LIMITED TO THE AMOUNT PAID BY YOU TO LICENSOR FOR YOUR PURCHASES OF SOFTWARE UNDER THIS AGREEMENT; PROVIDED, HOWEVER, THAT NOTHING IN THIS AGREEMENT SHALL OPERATE TO RELIEVE LICENSOR FROM LIABILITY FOR ITS OWN WILLFUL OR WANTON RECKLESSNESS OR INTENTIONAL TORTS.
YOUR OBLIGATIONS. You represent and warrant that (a) you are the owner or an authorized user of the computer and data on which the Software are installed or are used in conjunction with; and (b) you shall use the Software only for lawful purposes, and will comply at all times with all applicable federal, state, and local laws and regulations applicable to the use of the same. You agree not to use any automated or manual process to interfere with, modify, or attempt to interfere with or modify the Software except to uninstall the same as provided herein.
6. LICENSEE'S CONSENT
By using the Software you also authorize us to:
record and maintain records of Licensee's IP address;
record and maintain statistical information resulting from your use of the Software and interactions with Licensor's Web site(s) for the purpose of communications from Licensor to Licensee;
record and maintain all information provided as a part of any order form;
record and maintain information related to the identity of any link you clicked on to access our web site(s);
record and maintain the name and email address entered into our "Join our email Notification List" form;
use all collected data for marketing purposes, analyze user usage and for use by Licensor in communications with Licensee.
COMMUNICATIONS WITH LICENSEE.
Licensee consents to:
the receipt of reminder messaging windows and emails from Licensor regarding registration and renewal of the Software Subscription. Licensee can withdraw such consent by following such instructions in the reminder window or email; and
the receipt of business related and promotional messaging windows and emails from Licensor. Licensee can withdraw such consent by following such instructions in the reminder window or email.
You agree that Licensor may, at its sole discretion, access our Software on your computer, and/or cause the Software to contact Licensor, in order to terminate the functionality of any Software in accordance with the termination provisions of this Agreement.
This Agreement will immediately terminate in the event of any unauthorized use including but not limited to unauthorized use, distribution, copying, modifications or any other actions that are prohibited as outlined elsewhere in this Agreement. The Licensee may terminate this Agreement at any time by erasing or destroying any and all copies of the software and any products or works related to the software that are in the Licensee's possession.
Upon termination of the Agreement, the rights and licenses granted to the Licensee under this Agreement will immediately terminate. The Licensee will immediately erase and destroy all copies of the software in the Licensee's possession.
The expiration function of the Software utilizes the local date from the Licensee's computer when the program is activated. This date is then periodically cross-referenced with the current date. Should the Licensee's system clock be moved forward, it may cause the Software to prematurely expire. In such case, the Licensee may contact the Licensor for free re-activation at https://www.netgainportfolio.com/contact.asp
9. POST-TERMINATION RIGHTS
There are sections of this Agreement that will survive its termination. The following sections shall survive termination of this Agreement for any reason: 1, 2.B., 2. C. 5, 6, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19. 20, 21, 22, and 23.
10. PROPRIETARY NOTICES
You agree to maintain and reproduce all copyright, trademarks and other proprietary notices on all copies, in any form, of the Software in the same form and manner that such copyright and other proprietary notices are included on the Software. Except as expressly authorized in this Agreement, you shall not make any copies or duplicates of any Software without the prior written permission of Licensor.
INTELLECTUAL PROPERTY INDEMNITY BY LICENSOR. Subject to the limitations of Section 5, Licensor will defend you and hold you harmless against liability upon any claim by any third party that the Software as furnished by Licensor infringe or violate any copyright, trademark or trade secret rights of such third party or any patent rights of such third party under a United States patent issued as of the effective date of this Agreement, provided that: a) you notify Licensor promptly in writing of any notice of any such claim; b) you cooperate with Licensor in all reasonable respects in connection with the investigation and defense of any such claim; c) Licensor shall have sole control of the defense of any action on any such claim and all negotiations for its settlement or compromise; and d) should the Software become, or in Licensor's opinion be likely to become, the subject of a claim of copyright, patent or trademark infringement or trade secret misappropriation, you will permit Licensor, at Licensor's option and expense, either to: i) procure for you the right to continue using the affected Software; ii) replace or modify the same so that it becomes non infringing; or iii) terminate this Agreement with respect to such Licensor Products and refund to you the amount of the license fees paid to Licensor. Notwithstanding anything herein to the contrary, however, Licensor shall have no obligation or liability under any provision of this Section if any copyright, patent or trademark infringement or trade secret misappropriation claim is based upon use of the Software in a manner other than that for which it was furnished by Licensor, upon any Software which has been modified by or for you in such a way as to cause it to become infringing, or upon any trademark or service mark which is not used by Licensor.
INDEMNITY BY YOU.
You will, to the fullest extent permitted by law, indemnify Licensor against and hold Licensor harmless from any and all claims, liabilities, damages, costs and expenses, including reasonable attorneys' fees in connection with investigating, defending, or settling any claim relating to or arising out of any acts or omissions on the part of you which gives rise to claims against Licensor by third parties.
12. FORCE MAJEURE
Neither party will be liable for, or will be considered to be in breach of or in default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond such Party's reasonable control and that such Party is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs, the affected Party will give prompt written notice to the other Party and will use commercially reasonable efforts to minimize the impact of the event.
13. ELECTRONIC SIGNATURE, RECORDS, AND AGREEMENTS
You agree that by clicking on any button or link or performing the actions which initiate installation of the application on your computer, you are entering into a legally binding contract as evidenced by this action which is equivalent to submitting a legally binding electronic signature as defined in the United States Electronic Signatures In Global and National Commerce Act (the "E-Sign Act").
You are also agreeing to the use of your electronic signature as defined herein on all transactions that are performed between you and Licensor, its products and its representatives.
You are also agreeing that you are waiving any rights under law that require an original signature or the exchange of money to validate an agreement or contract.
You are also agreeing that all records of transactions that are stored by electronic means have the same validity as original paper documents and that paper documentation will not necessarily be retained for legal record keeping.
The aforementioned rights are being waived regardless of any applicable laws or regulations which may apply to any country or jurisdiction worldwide that would normally require original and tangible documents.
14. JURISDICTION / DISPUTES
This Agreement shall be governed in accordance with the laws of the State of New York. All disputes under this Agreement shall be resolved by litigation in the courts of the State of New York including the federal courts therein and the Parties all consent to the jurisdiction of such courts, agree to accept service of process by mail, whether postal or electronic, and hereby waive any jurisdictional or venue defenses otherwise available to it.
15. AGREEMENT BINDING ON SUCCESSORS
The provisions of the Agreement shall be binding upon and shall inure to the benefit of the Parties hereto, their heirs, administrators, successors and permitted assigns. No third-party beneficiaries are intended or shall be construed as created by virtue of this Agreement.
Neither party may assign this Agreement or the rights and obligations hereunder to any third party without the prior express written approval of the other party which shall not be unreasonably withheld, except that Licensor may assign all rights and obligations to any successor in interest.
The failure by Licensor at any time to enforce any of the provisions of this Agreement or any right or remedy available hereunder or at law or in equity, or to exercise any option herein provided, will not constitute a waiver of such provision, right, remedy or option or in any way affect the validity of this Agreement. The waiver of any default by Licensor will not be deemed a continuing waiver, but will apply solely to the instance to which such waiver is directed.
18. CORRECTION OF ERRORS AND INACCURACIES
This Agreement may contain typographical errors or other errors or inaccuracies and may not be correct or current. Licensor reserves the right to correct any errors, inaccuracies or omissions and to change or update this Agreement at any time without prior notice. Licensor does not, however, guarantee that any errors, inaccuracies or omissions will be corrected.
The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section.
20. LIMITATION ON RELATIONSHIP
This Agreement shall not be construed as creating or constituting any partnership, joint venture or agency relationship between the parties.
21. EXPORT CONTROL LAWS
The Software may be subject to United States export controls. The Software may not be downloaded or otherwise exported or re-exported: (1) into (or to a national or resident of) Cuba, Iraq, Libya, Sudan, Syria, North Korea, Iran or any other country to which the United States has embargoed goods; or (2) to anyone on the United States Treasury Department's list of Specially Designated Nationals or the United States Commerce Department's Table of Denial and Prohibition Orders.
By downloading or using software the Software, you are agreeing to the foregoing and all applicable export control laws. You are also warranting that you are not under the control of, located in, or a resident or national of any such country or on any such list. You agree to comply strictly with all United States. export control laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. The information on export control laws provided herein is not necessarily complete. For more information on export control laws, please refer to 15 C.F.R. §§736, 738, 744, 746.
If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement.
This Agreement constitutes the entire understanding of the Parties, and revokes and supersedes all prior agreements between the Parties and is intended as a final expression of their agreement. It shall not be modified or amended except in writing signed by the Parties hereto and specifically referring to this Agreement. This Agreement shall take precedence over any other documents that may conflict with this Agreement.
24. QUESTIONS OR ADDITIONAL INFORMATION
If you have any questions regarding this Agreement or wish to obtain additional information, please send a letter via U.S. Mail to FutureNow Mobile, LLC, 600 Mamaroneck Avenue, Suite 400, Harrison, NY 10528, United States or by email at https://www.netgainportfolio.com/contact.asp.
Last Modified: September, 22 2016.