Terms of Service

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MOTIVEWAVE SOFTWARE TERMS OF SERVICE AGREEMENT

Please read this TERMS OF SERVICE AGREEMENT (“Agreement”) carefully. This agreement is made between MotiveWave Software (“Company”) and any person (“User”) who completes the registration process and installs the MotiveWave Software on the User’s computer (or computers). (“Vendor”) refers to any third party Brokerage firm or Data Service. (“Security”) refers to any asset that is traded with User’s Broker. This includes but is not limited to: stocks, futures contracts, single stock futures, options, futures options, forex (cash), mutual funds, CFDs (Contract for Difference), bonds, commodities and precious metals. The software/service (“Software”) refers to the MotiveWave application and its connectivity to data services and/or third party Brokerage Firms.

BY CLICKING THE “I Agree” BUTTON DURING INSTALLATION OF THE SOFTWARE USER EXPRESSLY AGREES TO AND CONSENTS TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY USER. THIS AGREEMENT IS APPLICABLE FOR ALL VERSIONS OF THE SOFTWARE/SERVICE INCLUDING BETA/PRE-RELEASE VERSIONS AND UNOFFICIALLY RELEASED VERSIONS. COMPANY RESERVES THE RIGHT TO MAKE CHANGES TO THIS AGREEMENT AT ITS SOLE DISCRETION AND WILL POST THESE UPDATES ON COMPANY’S WEBSITE. USER MAY REFUSE SAID AMENDMENTS SOLELY BY REQUESTING TERMINATION OF ACCESS TO THE SOFTWARE/SERVICE.

1. Terms of Service

a. Software License. As long as User complies with the terms of this agreement, Company grants User a non-exclusive, non-transferable License to use Software. Once granted, this License may not be shared, lent, transferred, sold or rented to any other person or entity. This License permits User to install the Software on more than one computer system, as long as the Software will not be used on more than one computer system simultaneously.

b. Validation of License. Internet access is required for Software to validate User’s License on startup of Software. User will grant Software Internet access on startup to complete validation procedure. Failure to do so will disable the software.

c. Use of Vendors. User is aware that the Software interacts with Vendor software/services (Data Services and Brokerage Firms). User shall abide by all Vendors individual terms of service agreements, if applicable. Company does not guarantee future accessibility to any specific Vendor and may remove connectivity to Vendors as necessary.

d. Availability and Functionality of Software. Company does not guarantee that Software will be accessible or operable at all times. Company is not responsible, directly or indirectly, for the performance and/or reliability of User’s computer system, User’s Internet connection or Vendor’s systems or loss of potential profits/losses due to interrupted trades or inability to trade. Company cannot guarantee all functionality will be supported indefinitely or available in future versions of the Software if unforeseen circumstances arise.

e. No Modifications. User will not undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of Software or any part thereof.

f. Security of User’s System. User shall be solely responsible for the security, confidentiality and integrity of all messages and the content that User receives, transmits through or stores via the Software/Service or on any computer or related equipment that is used to access the Software/Service. User shall be solely responsible for any authorized or unauthorized access to User’s account by any person, entity, partnership, organization, association or otherwise.

2. Payments/Renewals

a. Free Trial. Company automatically grants User one (and only one) 14-day free trial of the Software commencing when User completes the registration process on Company’s website. If at any time during this free trial period, User decides to purchase (either Own or Lease options) the remaining days in the Free Trial will be added to the User’s license term. Specifically for the ‘Own’ option this will extend the support/update period by the number of days remaining in the free trial period. If User has not purchased an Edition (Lease or Own) within the 14-day free trial period, the Software will automatically be disabled.

User is entitled to one free trial only regardless of the number of machines or accounts the user creates. User shall not attempt to deceive Company by creating more than one account or accessing the software from multiple locations in an attempt to get more than one free trial.

b. 90 Day Automatic Renewal. The 90 day Lease option will automatically renew and bill User’s credit card on a 90 day cycle commencing the day User completes the purchase of this lease option. It is User’s responsibility to cancel this subscription at least 10 days in advance of the cycle renewal date. User must send an email to sales@motivewave.com including account information and intention to cancel their subscription.

c. Upgrades. During the term of the license User shall be entitled to Software/Service upgrades as provided in the sole discretion of Company. User’s entitlement to upgrades shall be limited to the specific edition of the Software/Service for which the User is licensed. For instance, if User subscribes to Edition A of the Software/Service, User shall be entitled only to Edition A upgrades and so forth. Software/Service editions relate to the service level of Software/Service and shall not be confused with release version number(s).

3. User Representation

User warrants and represents that User is a natural person, and that User is at least 18 years of age and competent to enter into this Agreement. If User is not a natural person, User warrants and represents that User is duly organized and competent to do business under the applicable laws of the relevant jurisdiction, and User (and each person using the System on your behalf) is duly authorized to enter into this Agreement and take all actions contemplated hereby.

4. Termination

Without prejudice to any other rights, Company may terminate this agreement if User fails to comply with the terms and conditions of this agreement. In such event, User must destroy all copies of the Software in User’s possession.

5. Copyright

All title, including but not limited to copyrights, in and to the Software and any copies thereof are owned by Company or its suppliers. All title and intellectual property rights in and to the content which may be accessed through use of the Software is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This agreement grants User no rights to use such content. All rights not expressly granted are reserved by Company.

6. No Warranties

Company expressly disclaims any warranty for the Software. The Software is provided ‘As Is’ without any express or implied warranty of any kind, including but not limited to any warranties of merchantability, non-infringement, or fitness of a particular purpose. Company does not warrant that the Software will be uninterrupted or error free. Company does not make any warranty as to any results that may be obtained by use of the Software. Company does not warrant or assume responsibility for the accuracy or completeness of any information, text, graphics, links or other items contained within the Software. Company makes no warranties respecting any harm that may be caused by the transmission of a computer virus, worm, time bomb, logic bomb, or other such computer program. Company further expressly disclaims any warranty or representation to Authorized Users or to any third party. Company is not responsible directly or indirectly for User’s Security order, purchase and sale actions. User acknowledges that there is risk in trading securities and that assets may be lost and are not insured.

7. Limitation of Liability

In no event shall Company be liable for any damages (including, without limitation, lost profits, business interruption, or lost information) rising out of User’s use of or inability to use the Software, even if Company has been advised of the possibility of such damages. In no event will Company be liable for loss of data or for indirect, special, incidental, consequential (including lost profit), or other damages based in contract, tort or otherwise. Company shall have no liability with respect to the content of the Software or any part thereof, including but not limited to errors or omissions contained therein, libel, infringements of rights of publicity, privacy, trademark rights, business interruption, personal injury, loss of privacy, moral rights or the disclosure of confidential information. In no event shall Company’s total liability for any damages exceed the total fees paid for by User to Company hereunder. Company is not responsible directly or indirectly for compliance or lack thereof by an Vendor (Brokerage Firm or Data Service) with respect to any applicable laws and regulations including, but not limited to those laws regarding or pertaining to the trading of securities.

8. Indemnification

User agrees to indemnify, hold harmless and defend Company, its shareholders, directors, officers, employees and agents from and against any action, cause, claim, damage, debt, demand or liability, including reasonable costs and attorney’s fees, asserted by any person, entity, partnership, organization, association or otherwise, arising out of or relating to: (a) this Agreement, (b) User’s use of the Software/Service, including any data or work transmitted or received by User, and (c) any unacceptable use of the Software/Service, including, without limitation, any statement, data or content made, transmitted or republished by User which is prohibited as unacceptable.

9. Description of Other Rights and Limitations

a. Maintenance of Copyright Notices. You must not remove or alter any copyright notices on any and all copies of Software.

b. Distribution. User may not distribute registered copies of the Software to third parties.

c. Prohibition on Reverse Engineering, Decompilation, and Disassembly. User may not reverse engineer, decompile, or disassemble Software. User agrees not to attempt, and if User is a corporation, User will use their best efforts to prevent User’s employees and contractors from attempting to reverse compile, modify, translate or disassemble the Software in whole or in part. Any failure to comply with the above or any other terms and conditions contained herein will result in the automatic termination of this license and the reversion of the rights granted hereunder to Company.

d. Support Services. Company may provide you with support services related to the Software (“Support Services”). Any supplemental software code provided to you as part of the Support Services shall be considered part of the Software and subject to the terms and conditions of this agreement.

e. Compliance with Applicable Laws. You must comply with all applicable laws regarding use of the Software.

f. Severability/Partial Invalidity. If any provision of this Agreement is determined to be illegal or unenforceable, then such provision shall be enforced to the maximum extent possible and the other provisions shall remain fully effective and enforceable. Should any term or provision hereof be deemed invalid, void or enforceable either in its entirety or in a particular application, the remainder of this Agreement shall nonetheless remain in full force and effect.

g. Governing Law/Dispute Resolution. This Agreement is made in and shall be governed by the laws of the Province of Ontario without reference to any conflicts of laws. Any and all disputes relating to or arising out of this Agreement including, but not limited to, the arbitrability and the validity of this Agreement shall be resolved by binding arbitration in Toronto, Ontario, Canada.

h. Assignment by Company. Company is allowed at its sole discretion to assign this Agreement or any rights hereunder to any Affiliate, without giving prior notice.

Last Updated: May 10, 2011