This End-User License Agreement ("UA") is a legal agreement between you (either an individual or a single entity) and Silexx Financial Systems, LLC("Silexx") governing your use of the Obsidian™ software product which may include associated software components, media, printed materials, user manuals or guides, and training or education materials, whether in electronic or paper form (collectively, the "Software Product"). The Software Product is licensed, not sold.
This Software Product is to be used within the confines of its intended purpose as described in the Use Agreement (“UA”), and is not intended to provide investment, tax, or legal advice. Your use of the Software Product is subject to the provisions of the UA.
The UA and the Software Product include important disclosures and information that are associated with Obsidian's electronic content and services. When you click "I agree" in the Obsidian Software you will be signing, and consenting to signing, the UA electronically, and to electronic delivery of the disclosures and information.
By clicking "I agree" in the Obsidian Software, you will also confirm your understanding, acceptance, and receipt of the UA and its terms and conditions, and you will acknowledge and demonstrate that you can access the UA and the other electronic disclosures and information associated with the Software Product. This is required in order to install Obsidian. We will be creating an electronic record that you have downloaded Obsidian, are using it, and that you have agreed to the terms of the UA. If you do not agree to the terms of the UA, do not install or use the Software Product.
Silexx grants you a non-exclusive, non-transferable license to install and use a copy of the Software Product on a single computer running a validly licensed copy of Windows XP® SP2 or higher operating system, for which Silexx designed the Software Product. You acknowledge that Silexx has granted this license to you for mutual consideration arising out of your relationship with Silexx. This license is restricted to your personal use as a Silexx account holder for the limited purposes described in the user's manual and any training materials. This license permits you to make one copy of the Software Product for backup or archival purposes only. You are acquiring no right to use, and shall not use, without Silexx's prior written consent, the terms or existence of this Agreement, the names, characters, artwork, designs, trade names, copyrighted materials, trademarks or service marks of Silexx, its affiliates, agents, vendors, and licensors. The Software Product is provided in object code form only.
The preferred operating systems for the SOFTWARE PRODUCT are, Windows XP (SP2) and Windows VISTA. You are required to use a minimum of a DSL 768kbs connection when operating the Software Product. The minimum hardware requirements are 1GB of RAM, Pentium 4 2.0GHz or better, 40 MB free hard drive space, 32MB Video Memory (Single Port Card), or 64Mb Video Memory (Multi Port Card), and a 17-inch monitor with a 1280x1024 resolution. These specifications may change from time to time as documented in the "Technical Questions Section of the Obsidian FAQ" located in the Obsidian section of the Silexx.com website. By consenting to this UA, you agree to monitor the Technical Questions section of the Obsidian FAQ and implement necessary upgrades as the requirements change.
You shall not: (a) use, copy, merge, make derivative works of, or transfer copies of the Software Product, except as specifically authorized in this UA; (b) use the Software Product on more than one computer; (c) use the backup or archival copy of the Software Product (or permit any third party to use such copy) for any purpose other than to replace the original copy in the event that it is destroyed or becomes defective; (d) rent, lease, sublicense, distribute, transfer, copy, modify or timeshare the Software Product or any of your rights under this UA, except as expressly authorized in this UA; (e) provide unauthorized third parties with access to or use of the Software Product;(f) reverse engineer, disassemble, decompile or otherwise attempt to access the source code of the Software Product, except and only to the extent that such activity is expressly permitted by applicable law; or (g) use the Software Product after any expiration, termination or cancellation of this UA or the license granted in Section 5.
The Software Product is licensed, not sold, to you for use only upon the terms of this UA, and Silexx and its vendors, licensors, or suppliers reserve all rights not expressly granted to you. Silexx retains ownership of all copies of the Software Product. You must reproduce the copyright and all other proprietary notices displayed on all copies of the Software Product. The Software Product is protected by U.S. copyright laws and international treaties, and the unauthorized reproduction or distribution thereof is subject to civil and criminal penalties. All title and intellectual property rights in and to the content which may be accessed through use of the Software Product is the property of the respective content owner(s) and may be subject to their end user license agreements. This UA grants you no rights to use such content.
Silexx or its agents may provide you with support services related to the Software Product ("Support Services"). Such Support Services will be provided by Silexx or its agents at no charge during the term of this UA. Use of Support Services is governed by the Silexx policies and programs described in the then current User Manual, in "on line" documentation, and/or other Silexx-provided materials. Any supplemental software code or other materials provided to you as part of the Support Services shall be considered part of the Software Product and subject to the terms and conditions of this UA. With respect to technical information you provide to Silexx or its agents as part of the Support Services, you agree and acknowledge that Silexx or its agents may use such information for its business purposes, including for product support and development for which you will make no claim. Neither Silexx nor its agents will use such technical information in a form that personally identifies you.
Obsidian provides access to sophisticated securities market data and securities trade order entry and routing functionality. User guides and training and education materials are intended to assist you in the proper use of this Software Product. You agree to read any such materials carefully, to follow all instructions, and to call Silexx for assistance if you have any questions or if you do not understand how to use the Software Product or any of its features. You acknowledge that you should not, and will not, use the Software Product if you do not understand how to use it properly. You also agree that you have sole and complete responsibility for any decisions that you make or actions that you take in reliance upon the Software Product and any results, orders, or data that you receive or transmit using Obsidian. You understand that, by making the Software Product available to you, Silexx is not recommending, promoting, or endorsing any particular investment, market data, or trading strategies.
The UA affirms that that you have acknowledged and complied with any and all contracts and agreements with the broker-dealer, clearing firm, brokerage firm, and/or bank, (“CLEARING AGENT”), that maintains the users account the broker-dealer, brokerage firm, execution firm, (“EXECUTION AGENT”), that transacts the orders between the SOFTWARE PRODUCT and the exchanges and the data source, data provider, data service (“DATA PROVIDER”) that provides data to the SOFTWARE PRODUCT. Neither the SOFTWARE PRODUCT, nor SILEXX are liable for any problems or issues with CLEARING AGENT, EXECUTION AGENT, and/or DATA PROVIDER.
All orders for the purchase and sale of securities given for your Account will be authorized by you and executed in reliance on your promise that an actual purchase or sale is intended. You understand SILEXX may at anytime, at its sole discretion and without prior notice to you, prohibit or restrict your ability to trade securities. You further agree not to allow any person to trade for your Account unless a trading authorization for that person has been received and approved by the CLEARING AGENT of your trading account. You realize that SOFTWARE PRODUCT offers fast execution systems via “hot keys”, “rapid fire”, “mouse clicks”, or other methodology currently or possibly deployed in the future. You further realize that you are able to send multiple orders with SOFTWARE PRODUCT in rapid succession. Regardless of intent, you take full responsibility for all executions generated with SOFTWARE PRODUCT. You are aware that SOFTWARE PRODUCT is not liable for orders and/or LOSSES due but not limited to; computer malfunctions, Internet connectivity (or lack thereof), power failures, unauthorized access, misuse of the software, accidents, mistakes or any other failures beyond the intent of the software.
You understand that, subject to the terms of an order, the method of execution of each order is in your sole discretion and SOFTWARE PRODUCT is not liable for order handling. If you do not specifically request that your orders be routed to a particular market venue, SOFTWARE PRODUCT will send it to the default exchange, which may be specified by you. Certain orders may be subject to manual review and entry, which may cause delays in the execution of your orders and may cause your orders to be executed at prices that are significantly different from the price quotes you obtained when you entered your order. SOFTWARE PRODUCT reserves the right in its sole discretion to decline or accept any order or change its instructions without advance notice.
The routing of your order is at your sole and absolute discretion. You are aware that the EXECUTION AGENT may offer “smart” or “special” handling status and it is in your sole discretion to use this feature and not the responsibility of SOFTWARE PRODUCT software. You acknowledge that different exchanges and execution providers may or may not offer certain routes, order types, or contingencies. At no time does SOFTWARE PRODUCT take responsibility for order routing. You understand that SOFTWARE PRODUCT does not guarantee that all or any of the access routes will be available to you all the time. SOFTWARE PRODUCT reserves the right to suspend access to its services without prior notice during scheduled or unscheduled system maintenance.
You understand that a “cancel” instruction is only a request and as such, cancellation of your order is not guaranteed and therefore SOFTWARE PRODUCT processes requests to cancel on a best efforts basis and is not liable to you if it is unable to change or cancel an order. Your order will be canceled only if your cancellation request is received in the marketplace and matched up with the existing order before the order is executed. Market orders are subject to immediate execution and, as a general rule, cannot be cancelled during market hours. Market orders and marketable limit orders placed prior to market open are subject to immediate execution at the opening and cancellation requests placed shortly before trading begins may not be honored. If any order cannot be canceled or changed, you agree that you will be bound by the results of the original order you placed.
You will not assume that an order has been executed, changed or cancelled until you have received a confirmation from the EXECUTION AGENT specifically indicating that the order has been executed, changed or cancelled. SOFTWARE PRODUCT may receive delayed reports of order executions, changes and/or cancellation request status from the EXECUTION AGENT reporting the status of transactions. You will be subject to late reports of executions related to orders that were previously unreported to you or reported to you as being expired, cancelled or executed. In addition, any reporting or posting errors, including errors in execution prices, will be corrected to reflect what actually occurred in the marketplace.
You are responsible for knowing the status of your pending orders before entering additional orders. Any duplication by you of a pending order will be considered authorized and intended by you, even if the execution of the order exceeds account limitations set forth by the clearing agent. If you want to change an existing order, you agree to enter a change order. If you enter a cancellation request, you agree to wait for a transaction status report specifically indicating that your cancellation request has been affected prior to entering a replacement order. Repeated, successive change orders, particularly when an order is partially executed, may under some circumstances result in reporting delays and/or inaccuracies in initial transaction status reports. You will rely on official transaction confirmations from the EXECUTION AGENT and CLEARING AGENT as the official records of transactions in your Account, and you agree to contact your EXCUTION AGENT and CLEARING AGENT in the event you are unclear as to the status of an order. SOFTWARE PRODUCT is not responsible for the accuracy of the order messages, late fills, cancelations, or rejection messages. It is possible for an EXECUTION AGENT to send incorrect information to SOFTWARE PRODUCT. It is your responsibility to contact the CLEARING AGENT, EXECUTION AGENT, and/or Exchange as to the status of your order and at no time and under no circumstances is SOFTWARE PRODUCT liable for the messages it receives from the EXECUTION AGENT.
You understand that neither SOFTWARE PRODUCT nor any participating DATA PROVIDER guarantees or makes any warranty of any kind, expressed or implied, regarding the timeliness, sequence, accuracy or completeness of Market Data. You agree that SILEXX is not liable for any losses (including lost opportunity or profits) arising out of or relating to: (i) any inaccuracy, defect or omission of the data; (ii) any error or delay in the transmission of such data; or (iii) interruption in any such data due to any cause beyond the control of SILEXX.
You also understand that each DATA PROVIDER asserts a proprietary interest in all of its market data it furnishes to Software Product. You will use market data (including real time quotes) in conjunction with SOFTWARE PRODUCT only for individual use. You acknowledge and agree that the SOFTWARE PRODUCT, SILEXX, and the AFFILATES have no responsibility for the accuracy or completeness of the market data, provided by the DATA PROVIDERS.
You understand that you are responsible for all acts and omissions relating to the use of Software Product, including all orders entered through Software Product using your User ID and Passwords. You understand and agree that it is your responsibility to maintain the confidentiality of your User ID and Passwords. You agree to notify SILEXX, the CLEARING AGENT, and EXECUTION AGENT immediately if: (i) an order is placed through SOFTWARE PRODUCT and you do not receive an order number; (ii) an order is placed through SOFTWARE PRODUCT and you do not receive an accurate acknowledgment of the order or of its execution; (iii) you receive acknowledgement of an execution of an order which you believe you did not place; or (iv) you become aware of any unauthorized use of your User ID and Passwords.
If you fail to notify the EXECUTION AGENT, CLEARING AGENT and SILEXX as soon as practicable when any if the above conditions occur, neither the EXECUTION AGENT, CLEARING AGENT, SILEXX, nor any of their respective affiliates will be liable to you or to any other person for any claim with respect to the handling, mishandling or loss of any order. You understand that you are responsible for all orders and/or losses due but not limited to computer malfunctions, Internet connectivity (or lack thereof), power failures, unauthorized access, misuse of the software, accidents, mistakes or any other failures beyond the intent of the software.
The term of this UA and the license granted to you will continue until it is terminated as provided in this Section. Without prejudice to any other rights SILEXX may have, the license granted under the UA will terminate automatically in the event you violate any provision of this agreement or your account agreement. You may terminate or cancel the license granted by discontinuing use of the Software Product and providing Silexx written notice. In the event of termination, for any reason, you shall delete the Software Product from your computer(s) and either destroy any tangible media containing the Software Product or return it to SILEXX. You understand that Silexx may discontinue technical and customer support for this Software Product at any time without any recourse by you.
The software product is provided “AS IS,” without warranty of any kind. All warranties are disclaimed, whether express, implied or statutory, including but not limited to warranties of merchantability, fitness for a particular purpose, title, and non-infringement of third party intellectual property rights, or that the software product’s functions will meet your requirements. The entire risk as to the quality and performance of the software product is with you. This disclaimer applies to and is for the benefit of SILEXX, its affiliates, agents, vendors, and licensors.
To the maximum extent permitted by applicable law, in no event shall SILEXX, its affiliates, agents, vendors, or licensors be liable to you or any third party for any damages of any kind, including but not limited to punitive, exemplary, special, incidental, direct, indirect, or consequential damages (for example, loss of personal or business profits, business interruption, loss of business information, or any other pecuniary loss) arising out of the use of or inability to use the SOFTWARE PRODUCT or the provision of or failure to provide Support Services. This limitation applies even if SILEXX has been advised of the possibility of such damages and regardless of the form of action, whether in contract, tort (including negligence), strict liability, or otherwise. In no event shall SILEXX’s liability for any damages, regardless of kind or type, to you or any other person exceed US $5.00. Because some states and jurisdictions do not allow the exclusion or limitation of liability, the above limitation may not apply to you. For purposes of this Section 13, the term SILEXX shall include SILEXX, its subsidiaries, affiliates, joint ventures, third party vendors and licensors.
Obsidian and its underlying encryption technology are subject to U.S. government export controls contained in the Export Administration Regulations. Obsidian is exportable under license exception ENC. Export or distribution to the following countries, or to nationals or residents of the following countries, is prohibited: Cuba, Iran, Iraq, Libya, North Korea, Sudan, and Syria. Prohibited countries are subject to change. Federal law also prohibits the distribution, exporting, or re-exporting of Obsidian to anyone on, or under the control of any person on, the U.S. Commerce Department Bureau of Industry and Security List of Denied Persons or the U.S. Treasury Department Office of Foreign Asset Control's list of Specially Designated Nationals. You acknowledge and agree to be bound by these restrictions. If you live outside of the United States, the country in which you reside or in which you receive Obsidian ("Home Country") may control or restrict your receipt, downloading, distribution, and use of Obsidian. You acknowledge and agree that it is your responsibility to comply with the import and export control laws and encryption product and technology restrictions of your Home Country and that SILEXX is not responsible for your compliance.
This UA constitutes the entire agreement between you and SILEXX. You understand and agree that SILEXX may revise the terms and conditions of this UA at any time, and you agree to be bound by future revisions. Use of the SOFTWARE PRODUCT after the effective date of the changes will constitute your consent to the changes. No failure on the part of any party to exercise and no delay in exercising, any right, power, or remedy under this UA will operate as a waiver thereof, nor will any single or partial exercise of any right under this UA preclude any other or further exercise thereof or the exercise of any other right. No vendor, distributor, dealer, retailer or other person is authorized to modify this UA or to make any representation or warranty concerning the SOFTWARE PRODUCT other than those specifically set forth in this UA.
You acknowledge and agree that each provision of this UA that provides for a disclaimer of warranties or an exclusion or limitation of damages represents an express allocation of risk, and is part of the consideration of this Agreement. If any provisions of this UA are invalid under applicable law, they shall be enforced to the maximum permissible extent to effect the intent of the parties and the remaining provisions will remain in full force and effect. This UA and performance hereunder will be governed by and construed in accordance with the laws of the State of California without reference to choice of law principles. You agree that all actions or proceedings arising in connection with this UA shall be governed by your customer account agreement with SILEXX. The following provisions shall survive termination or expiration of this UA: Sections 8 (Ownership), 12 (Term and Termination), 13 (Disclaimer of Warranties), 14 (Limitation of Liability), 16 (Entire Agreement), and 17 (General). SILEXX’s subsidiaries, affiliates, joint venturers, third party vendors, and licensors are intended third party beneficiaries of this UA.