This Systems License Agreement - NEXGEN Software Systems

NEXGEN SYSTEMS LICENSE AGREEMENTThis Systems License Agreement (“Agreement”) is entered into as of the date below by Licensee who accepts theterms of this Agreement and acknowledges acceptance of the terms contained herein and NEXGEN SOFTWARESERVICES, INC., a Texas corporation, with its principal place of business at 3400 Research Forest Drive, Suite B-9, TheWoodlands, TX 77381, (hereinafter “NEXGEN”), agree as follows:LICENSE DEFINITIONS1. “Brokers” means a licensed and participating financial trading firm.2. “Licensee” is the party who has purchased the license to receive the Signals generated from T-3 PositionProTrader ® System to be directed to Licensee’s Brokers solely for his own personal use.3. “Signals” includes the messages, information, and data generated by the System and generated for and inconjunction with Licensee’s personal and individual use.4. “System” is NEXGEN’s proprietary computer program T-3 Position ProTrader ® System which produces Signalsgenerated by the system. The System selected by Licensee will be determined at purchase.LICENSE GRANT1. GRANT OF LICENSE. Subject to the terms and conditions of this Agreement, NEXGEN grants Licensee a nonexclusive,non-transferable, perpetual, independent license for his Brokers to receive the Signals upon payment ofa license fee by Licensee to NEXGEN. THE PAYMENT OF THE LICENSE FEE TO NEXGEN IS NON-REFUNDABLE IN ALL CIRCUMSTANCES, EXCEPT AS OTHERWISE PROVIDED IN THISAGREEMENT.2. SCOPE OF USE. Licensee may use the Signals with a Broker for Licensee’s sole personal use.3. USE RESTRICTIONS. Licensee is not authorized to modify, adapt, translate, or create derivative works basedupon, in whole or in part the Signals received. The rights granted Licensee hereunder are restricted exclusively toLicensee. All rights not expressly granted to Licensee by this Agreement are exclusively reserved to and byNEXGEN.LICENSEE OR LICENSEE’S BROKERS MAY NOT DISTRIBUTE, CONVEY, SELL, USE OR TRADEANY SIGNAL OR OTHER INFORMATION GENERATED OR RECEIVED TO ANY PERSON ORGROUP. SUCH PROHIBITED GROUPS INCLUDE, BUT ARE NOT LIMITED TO, ANY POOL, FUNDOR INVESTOR GROUPS, WHICH POOL FUNDS TOGETHER AND PAYS COMMISSIONS ORINCENTIVE FEES TO LICENSEE OR LICENSEE’S BROKERS.Licensee agrees not to hire or solicit any individuals currently employed by NEXGEN or any former NEXGENemployees for one year after their employment is terminated for any services related to the System.4. TRANSFER OF LICENSE. The License granted to Licensee is not transferable.5. TITLE. This Agreement grants Licensee no title or rights of ownership in the Signals.6. LIABILITY FOR IMPROPER USE. In the event Licensee improperly uses, conveys, trades, or gives any of theSignals to any person, Licensee agrees that realized or potentially unrealized profits to NEXGEN would be grave.Licensee agrees that in order to establish a fair and easy method of calculation of such damages, Licensee shall beliable to NEXGEN for the payment of the then current license fee for the System for each person that Licenseeallowed to use, conveyed, traded, or gave any of the Signals.7. NO GUARANTEE OF RESULTS. The System is an automated means to analyze data concerning financialmarkets and to assist Licensee and Licensee’s Brokers in making Licensee’s investment decisions. NEXGENDOES NOT GUARANTEE A PARTICULAR RESULT FROM THE USE OF THE SIGNALS OR THESYSTEM, AND ONCE PAYMENT IS MADE THERE WILL BE NO REFUNDS FOR THE LICENSEGRANTED HEREIN EXCEPT AS RELATED TO THE LIMITED WARRANTY CONTAINED IN THISAGREEMENT.NexGen System Agreement REV 1.0 (2010-01-11)

PAST PERFORMANCE OF THE SYSTEM DOES NOT GUARANTEE FUTURERESULTS. TRADING FUTURES USING THE SYSTEM HAS A RISK OF LOSSINCLUDING ALL CAPITAL INVESTED AND ONLY RISK CAPITAL SHOULD BEUSED.8. THIRD-PARTY SERVICES NECESSARY. Licensee agrees and understands that NEXGEN does not supplythe data used by System and is not responsible for any costs Licensee may incur in order to obtain the informationnecessary for the System to function or for Brokers fees and/or commissions for conducting trades or positionsrecommended by the System. Licensee is solely responsible for any costs, fees, or expenses related to obtaining orusing the Signals.WARRANTY, INDEMNITY, AND LIABILITYLIMITED WARRANTYNEXGEN warrants to Licensee that for a period of one (1) year from delivery of the System by NEXGEN (the“Warranty Period”), the unmodified System will be capable of operating substantially in conformance with the userdocumentation and release notes in effect at the time of the granting of the License. If, during the Warranty Period, it isdetermined that the System does not operate according to such specifications due to NEXGEN’S fault, NEXGEN willundertake good faith efforts to cure the nonconformity. Licensee’s only remedy in the event of nonconformity in theSystem, or for breach of any warranty is a refund of Licensee’s fees paid to NEXGEN. This limited warranty is onlyapplicable to the extent the System does not generate any Signals that can be used for the evaluation of making tradesthrough Licensee Brokers and does not apply to the performance of the System or any results achieved by Licensee in usingthe System.Licensee accepts the System “AS IS, WHERE IS” and Licensee assumes all risk as to the quality andperformance of the System and the Signals generated by the System.EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION, NEXGEN MAKES NO WARRANTIES EITHEREXPRESS OR IMPLIED AS TO ANY MATTER WHATSOEVER, INCLUDING AND WITHOUT LIMITATION,THE CONDITION OF THE PRODUCT, ITS MERCHANTABILITY, OR ITS FITNESS FOR ANYPARTICULAR PURPOSE.DISCLAIMER OF LIABILITY.LICENSEE AGREES THAT NEXGEN, ITS DIRECTORS, OFFICERS, AND EMPLOYEESSHALL NOT BE LIABLE FOR ANY (A) SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, ORCONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, ARISING FROM OR RELATEDTO A BREACH OF THIS AGREEMENT OR ANY ORDER OR THE OPERATION OR USE OF THESYSTEM AND/OR SIGNALS INCLUDING SUCH DAMAGES, WITHOUT LIMITATION, ASDAMAGES ARISING FROM LOSS OF DATA OR PROGRAMMING, LOSS OF REVENUE ORPROFITS, FAILURE TO REALIZE SAVINGS OR OTHER BENEFITS, DAMAGE TO EQUIPMENT,AND CLAIMS AGAINST LICENSEE BY ANY THIRD PERSON, EVEN IF NEXGEN HAS BEENADVISED OF THE POSSIBILITY OF SUCH DAMAGES; (B) DAMAGES (REGARDLESS OFTHEIR NATURE) FOR ANY DELAY OR FAILURE BY NEXGEN TO PERFORM ITSOBLIGATIONS UNDER THIS AGREEMENT DUE TO ANY CAUSE BEYOND NEXGEN’SREASONABLE CONTROL; (C) CLAIMS MADE A SUBJECT OF A LEGAL PROCEEDINGAGAINST NEXGEN MORE THAN TWO YEARS AFTER ANY SUCH CAUSE OF ACTION FIRSTAROSE; OR (D) ANY CLAIMS ARISING FROM OR RELATED TO AN ERROR OR OMISSION OFLICENSEE’S BROKER INCLUDING THE FAILURE TO MAKE A TRADE, MAKING THEWRONG TRADE OR IMPROPER USE OF THE SYSTEM IN MAKING A TRADE OR NOTMAKING A TRADE.LIMITATIONS OF NEXGEN’S LIABILITYNOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT NEXGEN’SLIABILITIES UNDER THIS AGREEMENT, WHETHER UNDER CONTRACT LAW, TORT LAW,NexGen System Agreement REV 1.0 (2010-01-11)

WARRANTY, OR OTHERWISE SHALL BE LIMITED TO DIRECT DAMAGES NOT TO EXCEEDTHE AMOUNTS ACTUALLY RECEIVED BY NEXGEN UNDER THIS AGREEMENT FOR THESYSTEM.TERMINATION1. TERMINATION BY NEXGEN. NEXGEN has the right to terminate this Agreement without further obligationor liability if Licensee commits a breach of this Agreement. In the event of a breach of this Agreement,NEXGEN, at its discretion, may provide Licensee an opportunity to cure such breach.2. LIQUIDATION OF NEXGEN. If NEXGEN is liquidated, dissolved, or ceases to carry on business on a regularbasis as pertains to the System licensed by NEXGEN and NEXGEN’S obligations under this Agreement are notassumed by a successor or assignee, this Agreement may be terminated by Licensee with thirty (30) days writtennotice by Licensee. In such event, NEXGEN will provide Licensee the latest working version of the System foroperation on a TradeStation ® platform.3. DISPOSITION OF SOFTWARE ON TERMINATION. Upon termination of this Agreement or cancellation ofthe license hereunder for any reason, the license and all other rights granted to Licensee shall cease allowingNEXGEN the right to disable the System through any legal means available including notifying Licensee’sBrokers of such termination and directing Brokers to cease using the System for the benefit of Licensee.GENERAL PROVISIONSGOVERNING LAWThis Agreement shall be governed by the laws of the State of Texas, without reference to any conflict of law. Ifany provisions of the Agreement or the application of any such provision shall be held by a tribunal of competentjurisdiction to be contrary to law, the remaining provisions of this Agreement shall continue in full force and effect.Licensee agrees and acknowledges that NEXGEN provides the System from The Woodlands, Montgomery County, Texas,United States of America and that all transactions surrounding the issuance of the license and the provision of the Systemare conducted by NEXGEN from its office. Based upon those standards, Licensee consents to exclusive jurisdiction andvenue in the federal and state courts of Montgomery County, Texas.The parties agree that, in the event that the Uniform Computer Information Transaction Act, any version thereofor a substantially similar law (collectively “UCITA”) is enacted as to be applicable to a party’s performance under theAgreement and this Addendum, said statute shall not govern any aspect of the Agreement and this Addendum, any licensegranted hereunder, nor any of the parties’ rights and obligations arising pursuant to the Agreement and this Addendum.The applicable law shall be the law as it existed prior to the enactment of UCITA.The parties agree that this contract is not a contract for the sale of goods; therefore, this Agreement shall not begoverned by any codification of Article 2 or 2A of the Uniform Commercial Code, or any codification of the UniformComputer Information Technology Act (“UCITA”), or any references to the United National Convention on Contracts forthe International Sale of Goods.DISPUTE RESOLUTIONIf Licensee and NEXGEN cannot settle a claim, dispute or controversy that arises from or relates to thisAgreement, both parties agree to initially submit any and all such claims, disputes, and controversies to mediation, usingone or more third party neutrals. Licensee and NEXGEN further agree to suspend any applicable statute of limitationsduring the period of mediation-related discussions. All negotiations and discussions held pursuant to this provision shall betreated as confidential and as compromise and settlement discussions for purposes of applicable rules of evidence.ARBITRATIONLicensee and NEXGEN agree to submit any claim or dispute arising from or related to this Agreement notresolved through dispute resolution above to binding arbitration with American Arbitration Association (“AAA”) pursuantto the AAA rules for Intellectual Property. The Arbitration shall be conducted by one arbitrator and shall be final andbinding upon both Licensee and NEXGEN. The arbitrator may not award either Licensee or NEXGEN attorney fees orexpenses related to bringing an arbitration pursuant to a claim or dispute of this Agreement. Provided however each partyshall retain the right to seek injunctive relief with a court of competent jurisdiction for violations of this Agreement thatmeet the standard for a temporary restraining order as provided for pursuant to Texas law. Any arbitration hearing shall beconducted in The Woodlands, Montgomery County, Texas.NexGen System Agreement REV 1.0 (2010-01-11)

EXPORT LAW CONTROLS; EXPORT ASSURANCE DECLARATION(a) Licensee agrees to comply with all export and re-export restrictions and regulations imposed by thegovernments of the United States or the country to which the System is made available to Licensee. Licensee will notcommit any act or omission that will result in a breach of any such export requirements. This section shall survive theexpiration or termination of the license or this Agreement.(b) Licensee acknowledges that (i) NEXGEN System may contain routines that implement the U.S. GovernmentData Encryption Standard (“DES”) and (ii) that export of DES technology is controlled by agencies of the U.S.Government. Licensee will not export, re-export or re-license for export any System until and unless Licensee has compliedin all respects with all export and re-export restrictions of the USA and the country to which the System is provided.Licensee further agrees that the System will not be transferred or re-licensed for export if Licensee knows orsuspects that the System will be exported in violation of such restrictions. Licensee further certifies that the System will notbe re-exported to countries included in prohibited Country Groups of the U.S. Export Administration Regulations, ordelivered to national citizens of these countries, or to any person or group as currently listed under such regulations.MISCELLANEOUS1. WAIVER, MODIFICATION. The waiver, amendment or modification of this Agreement or any righthereunder shall not be effective unless made in writing and signed by the party against whom enforcement is sought.NEXGEN reserve the rights to modify the term of this Agreement in subsequent writing delivered to Licensee at such time.Any modification of the terms of the Agreement shall only be prospective and shall not operate to negate any rights grantedto Licensee or NEXGEN. Licensee shall be deemed to have accepted any changes or modifications to this Agreement uponreceipt of such changes, unless Licensee objects to such changes and agrees to terminate its license ad use of the Software.2. FORCE MAJEURE. In the event circumstances beyond either party’s reasonable control prevent suchparty, (“Affected Party”) from performing its obligations under this Agreement, the performance of such obligations shallbe suspended to the extent as is reasonable under the circumstances; provided, however, that during the suspension theAffected Party shall use its commercially reasonable efforts to resume its performance under the Agreement; and provided,further, however, that if the Affected Party's performance is suspended for a period of greater than ninety (90) days, theother party shall have the option to terminate the Agreement upon written notice thereof to the Affected Party.3. NOTICE. Any notice or other communication required or permitted hereunder shall be given in writingeither electronically or hard copy to the other party at the address (electronic or otherwise) provided by a party or at suchaddress as designated by a party. Notices to Nexgen may be directed as identified on the following website:http://www.nexgent3.com/index.php?mod=contact.4. PRESS RELEASES. NEXGEN reserves the right to announce the inclusion of Licensee as a customerof NEXGEN in a press release that NEXGEN will draft and distribute to NEXGEN’S media contact database only upon theprior review and approval of content by Licensee. NEXGEN further reserves the right to develop case studies and/or othermedia relations documents that may include such details as approved by Licensee prior to any release.5. SUCCESSORS AND ASSIGNS. All terms and provisions of this Agreement shall be binding upon andinure for the benefit of the parties hereto, and their successors and assigns and legal representatives, except that Licenseemay not assign this Agreement nor any right granted hereunder, in whole or in part without NEXGEN’S prior writtenconsent. For purposes of this Agreement, assignment shall apply to change of control by and of Licensee.6. BENEFICIARY. NEXGEN’S licensors of software included in the System are direct and intended thirdparty beneficiaries of this Agreement and may enforce this Agreement directly against Licensee.7. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the parties withrespect to the subject matter contained herein, superseding all previous agreements pertaining to such subject matter. Allprior agreements, representations, warranties, statements, negotiations, understandings, and undertakings are supersededhereby and Licensee hereby represents and acknowledges that in entering into this Agreement it did not rely on anyrepresentations or warranties other than those explicitly set forth in this Agreement. Both parties hereto represent thatthey have read this Agreement, understand it, agree to be bound by all terms and conditions stated herein, and acknowledgereceipt of a signed, true, and exact copy of this Agreement.8. AMENDMENT. Licensee acknowledges and agrees that NEXGEN may modify or amend thisAgreement from time to time. NEXGEN will deliver any modification, amendment or correction to this Agreement toLicensee who upon acceptance of such terms will be bound by those terms as of the date of such modification, amendmentor correction and such modification, amendment or correction shall be retroactive to the first date of this Agreement, unlessotherwise set forth in the Agreement. If Licensee should choose not to accept such modification, amendment or correction,NexGen System Agreement REV 1.0 (2010-01-11)

then this Agreement shall terminate without notice and NEXGEN shall have the right to disable or otherwise inhibitLicensee’s continued use of the System.ACKNOWLEDGEMENTSLicensee acknowledges and agrees that NEXGEN has informed Licensee that trading future contracts carries ahigh level of risk and is not suitable for all investors. Before deciding to trade commodities Licensee agree to carefullyconsider his investment objectives, level of experience and appetite for risk. Licensee acknowledges that he couldexperience a loss of some, a significant portion or all of Licensee’s initial investment and Licensee agrees that Licensee willnot invest money that Licensee cannot afford to lose.Licensee acknowledges that the use of margin accounts also greatly increase risks. Licensee acknowledges andunderstands that margin requirements fluctuate and Licensee is responsible for knowing Licensee’s current margin levelsthrough Licensee’s brokerage. Historically most position trading programs can have maximum drawdowns that are equalto or exceed minimum margin required to trade. Two to Three times the minimum capital in a portfolio will be needed tosystem trade should such a draw down in equity occur at the onset of trading. Licensee agrees to review all historicalmaximum drawdowns and equity curves in order for Licensee to make educated decisions regarding Licensee’s financialability to withstand such a draw down in equity.Licensee acknowledges and agrees that NEXGEN has informed Licensee that Pastperformance does not guarantee future results. Trading futures has a risk of loss and only riskcapital should be used.Licensee acknowledges and understands that:HYPOTHETICAL PERFORMANCE RESULTS HAVE MANY INHERENT LIMITATIONS,SOME OF WHICH ARE DESCRIBED BELOW. NO REPRESENTATION IS BEING MADETHAT ANY ACCOUNT WILL OR IS LIKELY TO ACHIEVE PROFITS OR LOSSESSIMILAR TO THOSE SHOWN. IN FACT, THERE ARE FREQUENTLY SHARPDIFFERENCES BETWEEN HYPOTHETICAL PERFORMANCE RESULTS AND THEACTUAL RESULTS SUBSEQUENTLY ACHIEVED BY ANY PARTICULAR TRADINGPROGRAM.ONE OF THE LIMITATIONS OF HYPOTHETICAL PERFORMANCE RESULTS IS THATTHEY ARE GENERALLY PREPARED WITH THE BENEFIT OF HINDSIGHT. INADDITION, HYPOTHETICAL TRADING DOES NOT INVOLVE FINANCIAL RISK, ANDNO HYPOTHETICAL TRADING RECORD CAN COMPLETELY ACCOUNT FOR THEIMPACT OF FINANCIAL RISK IN ACTUAL TRADING. FOR EXAMPLE, THE ABILITYTO WITHSTAND LOSSES OR TO ADHERE TO A PARTICULAR TRADING PROGRAM INSPITE OF TRADING LOSSES ARE MATERIAL POINTS WHICH CAN ALSO ADVERSELYAFFECT ACTUAL TRADING RESULTS. THERE ARE NUMEROUS OTHER FACTORSRELATED TO THE MARKETS IN GENERAL OR TO THE IMPLEMENTATION OF ANYSPECIFIC TRADING PROGRAM WHICH CANNOT BE FULLY ACCOUNTED FOR INTHE PREPARATION OF HYPOTHETICAL PERFORMANCE RESULTS AND ALL OFWHICH CAN ADVERSELY AFFECT ACTUAL TRADING RESULTS.NexGen System Agreement REV 1.0 (2010-01-11)

Licensee has read, understands, and agrees to all of the terms, representations, acknowledgements and other statementscontained in this License Agreement. Licensee agrees that by clicking “I accept and Continue” that Licensee is legallyobligated to all of the terms, including the terms of purchase of the license granted, and other restrictions contained in thisAgreement.NEXGEN INC.:Licensee:Signed: _______________________________________Signed: _________________________________________Name: ________________________________________Name: ___________________________________________Title: _________________________________________Title: ____________________________________________Date: _________________________________________Date: ____________________________________________NexGen System Agreement REV 1.0 (2010-01-11)