Exhibit 10.40A
SOFTWARE LICENSE AGREEMENT
This Software License Agreement (this "AGREEMENT"), dated as of July
31, 2002 (the "EFFECTIVE DATE"), is by and among X.X. Xxxxxx Group Inc., a
Delaware corporation ("XXXXXX"), X.X. Xxxxxx, Inc., a New York corporation
("ABWI"), and Integrated Trading Solutions, Inc., a Delaware corporation
("INTEGRATED"). Xxxxxx, ABWI and Integrated are each sometimes referred to in
this Agreement as a "PARTY" and are collectively referred to in this Agreement
as the "PARTIES."
BACKGROUND
WHEREAS, the Parties have entered into that certain Asset Purchase
Agreement, dated as of even date herewith (the "ASSET PURCHASE AGREEMENT"),
pursuant to which Xxxxxx and ABWI transferred to Integrated all of Xxxxxx`s and
ABWI`s right, title and interest in and to the Licensed Software (as defined
below); and
WHEREAS, Xxxxxx and ABWI desire to obtain a license to the Licensed
Software for use in their businesses. Integrated desires to xxxxx Xxxxxx and
ABWI a license for such purposes in accordance with the terms and conditions of
this Agreement.
AGREEMENT
NOW, THEREFORE, the Parties agree as follows:
1. DEFINITIONS.
As used in this Agreement, the following terms will have the following
meanings.
"AFFILIATE" means, with respect to any Person, any corporation or other
entity of which at least a majority of the outstanding shares of stock or other
ownership interests having by the terms thereof ordinary voting power to elect a
majority of the board of directors (or Persons performing similar functions) of
such corporation or entity (irrespective of whether or not at the time, in the
case of a corporation, stock of any other class or classes of such corporation
will have or might have voting power by reason of the happening of any
contingency) is, at the time, directly or indirectly owned or controlled by such
Person.
"AUTHORIZED USERS" means (i) Xxxxxx, but solely for the benefit of ABWI
or any other Affiliate of Xxxxxx or ABWI that is wholly owned by Xxxxxx and/or
ABWI provided that (A) the Affiliate is conducting a business or line of
business that ABWI is currently engaged in or could be engaged in within the
scope of this Agreement, (B) the Affiliate becomes a party to Fully Disclosed
Clearing Agreement dated as of October, 3, 1996, between ABWI and Xxxxxx
Financial Services, Inc., as amended (the "Clearing Agreement") on identical
terms as set forth therein, as applicable, (C) the Affiliate becomes bound by
the terms of this Agreement and the Related Documents, as applicable on terms
satisfactory to Integrated and the other parties to such Related Documents, (D)
such Affiliate does not benefit from the Licensed Software as a result of any
transaction involving a transaction prohibited by Section 13(h), and (E) the
Affiliate executes such other documentation as Integrated and/or its affiliates
reasonably request and provides to Xxxxxx a business plan and other financial
information acceptable to Xxxxxx (each an "Authorized Affiliate"), (ii) ABWI or
any Authorized Affiliate , but solely at those locations of ABWI or any such
Authorized Affiliate within the United States (it being agreed that ABWI and
each such Authorized Affiliate may use the Licensed Software to service trading
customers of ABWI or any such Authorized Affiliate located outside of the United
States solely to the extent they execute trades with ABWI in the United States
in full compliance with all applicable laws, rules and regulations, and (iii)
ABWI`s or any Authorized Affiliates` customers (e.g., retail or proprietary
traders registered with ABWI). The parties acknowledge and agree that Authorized
Users shall exclude all brokerage and/or dealer firms trading in securities and
any current or prospective customers of Integrated and/or its affiliates.
Notwithstanding anything in the immediately preceding sentence to the contrary
or any other provision of Section 3 hereof, but solely with respect to customers
noted in such sentence that are not brokerage and/or dealer firms (each a
"NON-BD"), if any such Non-BD customer of Xxxxxx or ABWI or any Authorized
Affiliate that is an Authorized User is also a customer of Integrated`s software
solutions and/or other Integrated products and services or a potential customer
that has been solicited by or on behalf of Integrated and has entered into or
has agreed to enter into good faith negotiations to become a customer of
Integrated, then Xxxxxx shall pay Integrated its then current standard license
fees for each such customer; provided, however, that Xxxxxx, ABWI, any
Authorized Affiliate and other Authorized Users shall, under no circumstances,
market the Licensed Software in a manner that purposefully or intentionally
adversely effects marketing opportunities of Integrated as reasonably determined
by Integrated; provided, further, that, any determination by Integrated that any
of Xxxxxx, ABWI, any Authorized Affiliate or other Authorized User has marketed
or is marketing the Licensed Software in a manner that deprives Integrated of a
licensing opportunity (whether or not such marketing is purposeful or
intentional) shall result in an obligation, as determined by Integrated, for the
recipient or beneficiary of the Licensed Software to pay Integrated its then
current standard licensing fees and/or to cease using the Licensed Software. A
transaction with a Non-BD that is otherwise permitted by the terms of this
Agreement and the Related Documents shall not constitute a transaction that
deprives Integrated of a marketing opportunity if (i) Xxxxxx shall have notified
Integrated in writing (sent by telecopy marked conspicuously on the cover sheet
with "Urgent-Immediate Reply Needed" to each of Integrated`s CEO and COO, each
of Xxxxxx`s CEO, COO, CFO, General Counsel and Chief Compliance Officer and to
Xxxxxx Xxxxxx (208-275-3940)) in reasonable detail of the general terms of a
proposed transaction with the Non-BD and the identity of the Non-BD, and
Integrated either confirms that such transaction does not constitute a
transaction that deprives Integrated of a marketing opportunity or does not
notify Xxxxxx within six business days after the day on which it receives the
notice from Xxxxxx that Integrated deems the transaction to be a transaction
that deprives Integrated of a marketing opportunity and Xxxxxx, ABWI and/or its
applicable Authorized Affiliate completes a transaction on terms no less
favorable to Xxxxxx, ABWI and/or its applicable Authorized Affiliate than that
provided in the notice. Existing brokerage customers of ABWI with active and
funded accounts that trade securities through ABWI as of the date hereof and
that are Non-BDs are not deemed by Integrated to deprive Integrated of a
marketing opportunity to the extent ABWI engages in a transaction with such
party that is otherwise permitted by the terms of this Agreement and the Related
Documents.
"CONFIDENTIAL INFORMATION" means any and all technical and
non-technical information (including trade secrets, know-how and proprietary
information, firmware, designs, schematics, techniques, plans or any other
information relating to any research project, work in process, future
development, scientific, engineering, manufacturing, marketing or business plans
or financial or personnel matters) relating to a Party or its present or future
products, sales, suppliers, customers, licensors, licensees, employees,
investors or Affiliates and disclosed or otherwise supplied by a Party to
another Party pursuant to this Agreement.
"ERROR" means any defect in the code of an Integrated Enhancement that
prevents the Licensed Software from properly performing its intended functions
to the extent such code is written by or on behalf of Integrated (all uses of
the phrase "on behalf of Integrated" in this Agreement used in the context of
the creation of software code shall refer to the case when Integrated hires
third parties to create software for it but shall exclude the case when
Integrated licenses or purchases third party software for inclusion in the
Licensed Software).
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"EVENT OF DEFAULT" means the occurrence of any of the following: (i) a
party fails to perform any of its obligations under this Agreement in any
material respect; (ii) a material breach (as determined in accordance with
Section 9.3 of the Asset Purchase Agreement) by a party or its affiliate(s)
under the Asset Purchase Agreement or any other material breach (without
reference to any determination under Section 9.3 of the Asset Purchase
Agreement) under any agreement or instrument contemplated by the Asset Purchase
Agreement or under any of the Related Documents; (iii) any breach of a payment
obligation with respect to any debt owed by Xxxxxx or its Affiliates that is not
a part of the debt evidenced by the Related Documents; or (iv) a breach by ABWI
or Xxxxxx of any obligation under the Clearing Agreement; PROVIDED that the
non-breaching party has given the breaching party written notice of default
setting forth in reasonable detail the breach that has occurred; PROVIDED,
FURTHER, that the breaching party shall have, with respect to a non-material
breach, thirty (30) days after its receipt of such written notice to cure the
breach, but if the breach is not capable of being cured within such thirty (30)
day period the breaching party shall have an additional thirty (30) day period
to cure the breach; and, PROVIDED, FURTHER, that the breaching party shall have,
with respect to a material breach only fifteen (15) days (or such longer period
as set forth in the Asset Purchase Agreement, the Clearing Agreement or the
applicable Related Document relative to a breach arising thereunder) after its
receipt of such written notice to cure the breach. In addition, any breach by a
party hereto or their affiliates of a Related Document that results in a
termination by the non-breaching party of such Related Document shall give rise
to an immediate termination event hereunder (without any requirement for any
additional grace or cure period as set forth herein).
"INTEGRATED CORRECTIONS" means all bug fixes, patches, corrections and
similar modifications to the Licensed Software by or on behalf of Integrated in
the event of any Error in the Licensed Software.
"INTEGRATED ENHANCEMENTS" means all updates, upgrades, new versions,
additional functionality, and other similar modifications or improvements to the
Licensed Software (including all new extensions or components of the Licensed
Software and all derivative works of the Licensed Software), made by or on
behalf of Integrated and generally made available to other licensees, but shall
exclude any and all customized work for hire and any proprietary development by
or on behalf of Integrated that is not generally made available to other
licensees and all other changes for which Integrated generally receives a
designated payment that an Authorized User has not accepted or for which it has
not paid.
"INTELLECTUAL PROPERTY RIGHTS" means any U.S. or foreign patents,
patent applications, trademarks, trade names, service marks, brand names, logos
and other trade designations (including unregistered names and marks), trademark
and service xxxx registrations and applications, copyrights and copyright
registrations and applications, moral rights, inventions, invention disclosures,
formulae, formulations, processes, methods, trade secrets, computer software
(including the architecture thereof), computer programs and source codes,
manufacturing research and similar technical information, engineering know-how,
assembly and test data, drawings and royalty rights.
"LICENSED SOFTWARE" means the object (or executable) code of
Integrated`s proprietary computer software, as described on Exhibit A, including
all Integrated Enhancements and Integrated Corrections adopted by Xxxxxx to the
extent required and as otherwise permitted by this Agreement.
"XXXXXX" means Xxxxxx Financial Services, Inc., a North Carolina
corporation.
"PERSON" means and includes natural persons, corporations, limited
partnerships, limited liability companies, general partnerships, joint stock
companies, joint ventures, associations, companies, trusts, banks, trust
companies, land trusts, business trusts and other organizations, whether or not
legal entities, and governmental authorities.
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"RELATED DOCUMENTS" has the meaning set forth in the Asset Purchase
Agreement.
"SYSTEM" will mean any of Xxxxxx`s, ABWI`s, or any of their respective
Affiliates` (but solely to the extent Affiliates are Authorized Users) software,
firmware, hardware, computer systems or devices, or networks, whether owned,
leased or rented, or otherwise provided for the benefit, or under the control,
of any of the foregoing (but solely to the extent such "System" has been
recommended for use in writing by Integrated in connection with the Licensed
Software).
2. LICENSES.
(a) LICENSE TO SOFTWARE.
(i) Subject to the terms of this Agreement, Integrated hereby
grants to Xxxxxx a perpetual, non-exclusive, license to use the Licensed
Software, including the right to sublicense the Licensed Software to Authorized
Users so long as each Authorized User takes such action as Integrated requests
(at Integrated`s expense, except to the extent any Authorized User is creating,
involved in or responsible for the problem for which Integrated is requesting
protective action) with respect to the protection of its Intellectual Property
Rights.
(ii) Integrated will deliver to Xxxxxx all Integrated
Enhancements in accordance with Integrated`s normal and customary release
schedule. Xxxxxx will have no obligation to install any Integrated Enhancements
unless the same are provided without charge and Xxxxxx will be provided a
reasonable period to install such Integrated Enhancements. Integrated will
deliver all Integrated Corrections to Xxxxxx promptly upon written notice of any
Error or potential Error to a duly authorized representative of Integrated. Upon
the installation of any Integrated Enhancement or Integrated Correction, such
Integrated Enhancement or Integrated Enhancement, as applicable, will thereupon
be deemed to be part of the Licensed Software.
(b) LICENSE RESTRICTIONS. Neither Xxxxxx nor ABWI or any other
Authorized User shall: (i) provide, lease, lend, use or allow others to use the
Licensed Software to or for the benefit of third parties, other than as
permitted by this Agreement; or (ii) use the Licensed Software in connection
with the execution of trades of securities outside of the U.S. (subject to such
limited use for Authorized Users located outside of the U.S. as is expressly set
forth in the definition of "Authorized User" in Section 1 for such Authorized
Users to execute securities trades within the U.S) or in violation of any law,
rule or regulation.
(c) ADDITIONAL SOFTWARE. Xxxxxx will be responsible for obtaining any
third party software licenses for the operating system it determines is needed
to operate the Licensed Software.
3. FEES AND ROYALTIES.
(a) ROYALTY PAYMENTS. For [*], Xxxxxx may use the Licensed Software in
accordance with this Agreement [*]. Upon the expiration of the [*], and in
consideration for the license granted to Xxxxxx hereunder, Xxxxxx shall pay, and
shall cause all Authorized Users to pay, to Integrated a royalty equal to [*]
per month for each user of the Licensed Software (the "ROYALTY"). [*], and
thereafter on each anniversary of the Effective Date, the Royalty shall be
adjusted by the percentage change in the "CPI" for the immediately preceding
calendar year. CPI means the monthly index of the Consumer Price Index for Urban
Wage Earners and Clerical Workers (all items; 1982-84 = 100) issued by the
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"BUREAU." Bureau means the U.S. Department of Labor, Bureau of Labor Statistics,
or if it ceases to publish the CPI, any successor agency of the United States
that shall publish the CPI or the data necessary to determine the CPI. If the
Bureau ceases to use the 1982-84 reference base, or a substantial change is made
in determining the CPI, or the CPI shall be discontinued for any reason,
Integrated shall designate an alternative index comparable to the CPI.
(b) INTEGRATED ENHANCEMENTS AND CORRECTIONS. In consideration for
Integrated making all Integrated Enhancements available to Xxxxxx and installing
Integrated Enhancements if and as directed by Watley, Watley, on its own behalf
and on behalf of all other Authorized Users, shall pay to Integrated the
then-current fee that Integrated charges all its other customers for such
Integrated Enhancements (except as set forth in Section 2(a)(ii)). Xxxxxx shall
remit payment to Integrated within thirty (30) days after receipt of invoice
therefor. Integrated shall make available to Xxxxxx and install all Integrated
Corrections at no additional cost.
(c) OTHER COSTS. From the Effective Date and so long as this Agreement
is in effect, Xxxxxx shall, on its own behalf and on behalf of all other
Authorized Users, pay all exchange fees and bandwidth (provided that Xxxxxx may
select its bandwidth provider in its sole discretion as long as the cost of any
change from the existing bandwidth provider is paid for at Xxxxxx`s sole expense
(including, without limitation, the cost of any Integrated personnel) and so
long as Integrated is provided a reasonable period of time to make such change
and so long as such changes of providers occur no more frequently than once in
any three year period) related to providing the Licensed Software as well as any
fees and costs associated with providing service to Authorized Users not located
at the current 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx address of Xxxxxx other than
via the Internet. Xxxxxx shall remit payment to Integrated within thirty (30)
days after receipt of invoice therefor.
(d) SOFTWARE DEVELOPMENT. In the event Xxxxxx requests software or
product development, Integrated shall charge Xxxxxx its then standard rates
charged to similarly situated clients for similar projects, as determined by
Integrated in its sole discretion.
(e) PAYMENTS. Xxxxxx shall remit payment, and shall cause all other
Authorized Users to remit payment, due to Integrated within thirty (30) days
after the last day of each calendar month for any Royalty earned during the
immediately preceding month. During the period that Royalties are payable in
accordance with this Section 3, Xxxxxx shall render to Integrated a monthly
report in such form as is reasonably satisfactory to Integrated. The report
shall set forth the total number users of the Licensed Software and any other
information reasonably requested by Integrated. Xxxxxx shall maintain books and
records concerning the use of Licensed Software. Such books and records shall be
complete and accurate and Integrated shall have the right, through its
representatives or auditors, to reasonable inspection of the books and records
of Xxxxxx relating to the use of the Licensed Software, PROVIDED that any such
inspection shall only occur (i) upon fifteen (15) days` prior written notice to
Xxxxxx, (ii) with minimum disruption to Xxxxxx`s business operations, (iii)
subject to the confidentiality provisions set forth in Section 8, and (iv) at
Integrated`s expense except to the extent any audit identifies an error on the
part of ABWI, Xxxxxx or another Authorized User that misstates the amounts due
to Integrated by 7.5% or more.
4. SUPPORT OBLIGATIONS. Subject to the effect Integrated`s acceptance or
non-acceptance (for which Integrated shall not have or incur any liability for
any consequential effect with respect to the performance, functionality or
specifications of the Licensed Software or related support obligations under
this Agreement) of the Assumed Liabilities (as defined in the Asset Purchase
Agreement) in accordance with the provisions of the Asset Purchase Agreement,
Integrated will use reasonable business efforts to provide Xxxxxx with
maintenance and support of the Licensed Software (including, without limitation,
provision of Integrated Corrections) reasonably appropriate for how Authorized
Users use the Licensed Software as of the date of this Agreement (and use the
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Licensed Software after the date of this Agreement solely to the extent changed
by any Integrated Enhancement or Integrated Correction). Notwithstanding
anything to the contrary herein, Integrated shall not be obligated to provide
co-location facilities or redundant server/data feed facilities and may
eliminate and/or substitute services/products as it deems necessary in its sole
discretion. Integrated shall not be required to provide user support services in
connection with the use of the Licensed Software by Xxxxxx or any Authorized
Users, other than by telephone to Xxxxxx`s corporate representatives designated
in writing to Integrated from time to time (but not directly to customers of
ABWI or Xxxxxx or any Affiliate) to address network related issues. To the
extent Xxxxxx, ABWI or an Affiliate request non-telephonic support such as an
on-site visit, Integrated may provide the same at its then prevailing rates for
such service. Integrated will also use commercially reasonable efforts to
telephone third party vendors whose products have evidenced a failure to perform
their intended functions in order to request that such vendors repair such a
failure.
5. THIRD PARTY DATA AGREEMENTS. Xxxxxx and ABWI understand and acknowledge that
Integrated, in its sole discretion and without liability, may terminate, not
renew, replace or otherwise modify agreements currently in place with third
parties (collectively, "DATA AGREEMENTS") pursuant to which data, orders,
confirmations and other information are provided through or by the Licensed
Software, PROVIDED that Integrated provides Xxxxxx with substantially equivalent
information and functionality (but solely to the extent such equivalent
information and functionality exist at comparable prices and to the extent that
installing such information and functionality does not impose significant extra
cost on Integrated).
6. TERM; EVENT OF DEFAULT. This Agreement shall commence as of the Effective
Date and may be terminated by any non-defaulting Party upon an Event of Default.
7. EXPENSES AND TAXES.
(a) EXPENSES. Except as expressly set forth in this Agreement, each
Party will bear all costs and expenses of the performance of its obligations
under this Agreement.
(b) TAXES. Each Party will bear all current and future local, state and
federal taxes and duties imposed upon the payments received by that Party under
this Agreement, including all sales, use, services and income taxes.
8. PROPRIETARY RIGHTS; INDEMNIFICATION.
(a) RIGHTS. Integrated retains ownership of all right, title and
interest in the Licensed Software and Integrated`s other Intellectual Property
Rights. Xxxxxx has no rights in the Licensed Software except those expressly
granted by this Agreement.
(b) COPYRIGHT AND OTHER NOTICES. Xxxxxx will not remove or otherwise
change any of Integrated`s copyright, trademark or other proprietary rights
notices contained in the Licensed Software without the prior written consent of
Integrated.
(c) INDEMNIFICATION.
(i) Integrated, at its expense, will defend and/or handle any
claim or action threatened or brought against Xxxxxx, ABWI, any of their
Affiliates or any of their respective officers, directors, employees, agents,
consultants or other representatives, or any third parties permitted to use the
Licensed Software in accordance with the provisions of this Agreement
(collectively, the "INDEMNIFIED PARTIES") based on or arising out of any claim
that the Licensed Software as modified by any Integrated Enhancement or
Integrated Correction: (a) constitutes an infringement, violation, trespass,
contravention or breach of any patent, copyright, trademark, license or other
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property or proprietary right of any third party, or constitutes the
unauthorized use or misappropriation of any trade secret of any third party; or
(b) is not in compliance with any applicable law, rule, regulation, order of any
governmental (including, without limitation, any regulatory or quasi-regulatory)
agency or contract, including without limitation, any financial disclosure or
encryption law; provided that, in each such case, the claim could not have been
made but for an Integrated Enhancement or an Integrated Correction to the
Licensed Software. Integrated further agrees to indemnify and hold the
Indemnified Parties harmless from and against any and all liabilities, costs,
losses, damages and expenses (including reasonable attorneys` and experts` fees
and expenses) associated with (x) any claim described in the first sentence of
this paragraph and (y) any breach of this Agreement by Integrated. Xxxxxx will
promptly notify Integrated of any such claim or action and will reasonably
cooperate with Integrated in the defense of such claim or action, at
Integrated`s expense.
(ii) Integrated will have the sole right to conduct the
defense of any such claim or action and all negotiations for its settlement or
compromise; PROVIDED, HOWEVER, that Xxxxxx may participate in the defense of any
such claim or action at Xxxxxx`s expense.
(iii) If the Licensed Software becomes the subject of any such
claim or action, then Xxxxxx may terminate this Agreement unless Integrated,
promptly after receiving written notice of any such claim or action, either: (a)
procures for Xxxxxx the right to continue using the Licensed Software as
contemplated hereunder; (b) modifies the Licensed Software to render same
non-infringing or to correct such non-compliance, as the case may be (provided
such modification does not materially adversely affect the use of the Licensed
Software); or (c) replaces same with an equally suitable, functionally
equivalent, compatible, non-infringing (or compliant, as the case may be)
software program. If none of the foregoing is possible and if the Licensed
Software is found to infringe or to not comply, Integrated or Xxxxxx will have
the right to terminate this Agreement and Integrated will refund to Xxxxxx all
amounts paid by Xxxxxx hereunder subject, however, to the effect of Section
12(b).
(iv) Each of Xxxxxx, ABWI and any Affiliate permitted to be an
Authorized User (each a "XXXXXX INDEMNITOR"), at its expense, will indemnify and
hold harmless from any breach of this Agreement by an Authorized User,
Integrated, any of its affiliates or any of their respective officers,
directors, employees, agents, consultants or other representatives
(collectively, the "INTEGRATED INDEMNIFIED PARTIES"). The Xxxxxx Indemnitors
further agrees to indemnify and hold the Integrated Indemnified Parties harmless
from and against any and all liabilities, costs, losses, damages and expenses
(including reasonable attorneys` and experts` fees and expenses) associated with
such claim or action. Integrated will promptly notify the appropriate Xxxxxx
Indemnitor(s) of any such claim or action and will reasonably cooperate with
such Xxxxxx Indemnitor(s) in the defense of such claim or action, at such Xxxxxx
Indemnitors` expense. Integrated will have the right to terminate this Agreement
in the event of a breach of the provisions of this clause (iv).
9. CONFIDENTIALITY.
(a) CONFIDENTIAL INFORMATION. No Party will disclose another Party`s
Confidential Information to any Person except its Affiliates and its and their
employees, agents and independent contractors to whom it is necessary to
disclose the Confidential Information for purposes permitted under this
Agreement and who have agreed to receive it under terms at least as restrictive
as those specified in this Agreement. Each Party will use best efforts to
maintain the confidentiality of Confidential Information received from the other
Parties. Each Party will use another Party`s Confidential Information only for
the purposes of performing this Agreement.
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(b) EXCEPTIONS TO CONFIDENTIAL INFORMATION. Confidential Information
will not include information to the extent that: (i) such information is or
becomes publicly available other than through any act or omission of a Party in
breach of this Agreement; (ii) such information was rightfully received by the
receiving Party, other than under an obligation of confidentiality, from a third
party who had no obligation to the Party that owns such information not to
disclose such information to others; (iii) such information was rightfully in
the possession of the receiving Party at the time of the disclosure or was
independently developed by the receiving Party; or (iv) any applicable law,
rule, regulation or court order requires the disclosure of such information,
provided that prior to such disclosure the Party subject to such requirement
will give notice to the Party that owns such information so that such Party may
take reasonable steps to oppose or limit such disclosure. The burden of proof
that Confidential Information falls into any of the above exemptions will be
borne by the Party claiming such exemption.
10. REPRESENTATIONS AND WARRANTIES.
(a) Each Party represents, and warrants to the other that each has
obtained all authorizations, approvals and consents of, made all necessary
filings and registrations with, and given all necessary notices to, all Persons
necessary for their execution, delivery and performance of this Agreement.
(b) Integrated represents, warrants and covenants to the other Parties
that all maintenance and support services provided hereunder shall be performed
in a workmanlike and professional manner.
(c) Integrated represents, warrants and covenants to the other Parties
that it will continue to license and support the Licensed Software for a period
of no less than three (3) years from the Effective Date (but without any
limitation on its assignment rights set forth in Section 13(h)). Thereafter,
Integrated shall provide Xxxxxx with no less than nine (9) months prior written
notice if Integrated intends to cease licensing or supporting the Licensed
Software.
(d) Integrated represents, warrants and covenants to the other Parties
that modifications of the Licensed Software by any Integrated Enhancement or
Integrated Correction will not contain any computer code designed by or on
behalf of Integrated (i) to disrupt, disable, harm, or otherwise impede in any
manner, including aesthetical disruptions or distortions, the operation of the
Licensed Software or any System (sometimes referred to as "viruses" or "worms");
(ii) that would disable the Licensed Software or any System or impair in any way
their operation based on the elapsing of a period of time, the exceeding of an
authorized number of copies, or the advancement to a particular date or other
numeral (sometimes referred to as "time bombs", "time locks", or "drop dead"
devices); or (iii) that would contain any other harmful, malicious or hidden
procedures, routines or mechanisms that cause the Licensed Software or any
System to cease functioning or to damage or corrupt data, storage media,
programs, equipment or communications, or otherwise interfere with Xxxxxx`s,
ABWI`s, or their respective Affiliates` operations.
(e) Integrated represents, warrants and covenants to the other Parties
that, with respect to all date-related data and functions provided by the
Licensed Software, a modificaton to the Licensed Software and by any Integrated
Enhancement or Integrated Correction will operate in a manner which is
consistent with the use of the Licensed Software by ABWI and Xxxxxx as of the
date of this Agreement.
11. OTHER AGREEMENTS.
(a) The Parties acknowledge and agree that Integrated does not assume
any responsibility whatsoever for Xxxxxx`s, or ABWI`s performance of Xxxxxx`s,
or ABWI`s obligations under any agreement regarding or relating to the Licensed
Software between Xxxxxx, ABWI or any of their Affiliates and any third party
that was not an Assumed Liability accepted by Integrated under Section 1.2 of
the Asset Purchase Agreement, and Integrated hereby disclaims any such
responsibility.
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(b) Notwithstanding anything to the contrary herein, Integrated shall
have no liability for (i) any fee or expense (including, without limitation,
late charges and penalties) incurred prior to the Effective Date that was
incurred by Xxxxxx or ABWI related to the Licensed Software, the Data
Agreements, employment agreements or any product, equipment or services related
thereto and (ii) any fee or expense for equipment leased or owned by Xxxxxx or
ABWI prior to the Effective Date; PROVIDED that such fees or expenses were not
Assumed Liabilities expressly accepted in writing by Integrated under the
Section 1.2 of the Asset Purchase Agreement.
12. DISCLAIMERS AND LIMITATIONS OF LIABILITY.
(a) DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT: INTEGRATED EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED,
WITH RESPECT TO THE LICENSED SOFTWARE OR ITS QUALITY, INCLUDING ANY WARRANTIES
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; INTEGRATED MAKES NO
REPRESENTATION CONCERNING THE LIKELIHOOD OF PROFITABLE TRADING USING THE
LICENSED SOFTWARE; AND THE LICENSED SOFTWARE IS LICENSED "AS-IS" AND "WITH ALL
FAULTS." NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, INTEGRATED DOES
NOT WARRANT THAT THE USE OF THE LICENSED SOFTWARE WILL BE UNINTERRUPTED OR
ERROR-FREE OR THAT ALL DEFICIENCIES OR ERRORS ARE CAPABLE OF BEING CORRECTED.
NEITHER XXXXXX NOR ABWI WILL EXTEND ANY WARRANTIES FOR OR ON BEHALF OF
INTEGRATED NOT SPECIFIED IN THIS AGREEMENT AND WILL MAKE NO REPRESENTATION OR
WARRANTY REGARDING THE LIKELIHOOD OF PROFITABLE TRADING BASED ON THE LICENSED
SOFTWARE. IN NO EVENT WILL INTEGRATED INCUR ANY LIABILITY TO XXXXXX OR ANY
AUTHORIZED USER ARISING OUT OF (I) ANY CONTRACT OR ARRANGEMENT BETWEEN XXXXXX
AND ANY AUTHORIZED USER UNLESS EXPRESSLY AGREED TO IN WRITING, OR (II) ANY
COMMUNICATIONS, INTERNET AND/OR OTHER FAILURE AFFECTING THE LICENSED SOFTWARE
ARISING IN CONNECTION WITH ACTS OF GOD OR THIRD PARTY ACTIONS OR OMISSIONS.
INTEGRATED WILL, HOWEVER, USE COMMERCIALLY REASONABLE EFFORTS TO TELEPHONE THIRD
PARTIES WHOSE SYSTEMS FAIL IN ORDER TO REQUEST THEY REPAIR SUCH FAILURES.
(b) LIMITATIONS OF LIABILITY. THE LIABILITY OF EACH PARTY AND ITS
EMPLOYEES, AGENTS AND AFFILIATES TO THE OTHER PARTIES AND THEIR RESPECTIVE
EMPLOYEES, AGENTS AND AFFILIATES WILL BE LIMITED TO DIRECT DAMAGES. IN NO EVENT
WILL ANY PARTY OR ITS EMPLOYEES, AGENTS OR AFFILIATES BE LIABLE FOR INCIDENTAL,
SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) SUFFERED BY
ANOTHER PARTY OR ITS EMPLOYEES, AGENTS OR AFFILIATES, EVEN IF PREVIOUSLY ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING HEREIN TO THE
CONTRARY, INTEGRATED`S MAXIMUM LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED
THE GREATER OF (A) THE SUM OF ALL AMOUNTS RECEIVED BY INTEGRATED DURING THE
TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE RELEVANT CLAIM OR (B) $100,000
DOLLARS.
13. GENERAL.
(a) GOVERNING LAW. This Agreement is to be governed and construed in
accordance with the laws of the State of Texas, without regard to its conflict
of law provisions.
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(b) JURISDICTION. Any judicial proceeding brought against any of the
Parties to this Agreement on any dispute arising out of this Agreement or any
matter related hereto shall be brought solely in the appropriate state or
Federal courts located in Dallas, Texas (provided that Integrated,
notwithstanding the foregoing, may elect to pursue its rights and remedies in
another forum if it so desires). Each of the Parties hereby irrevocably and
unconditionally submits, for itself and its property, to the in personam
jurisdiction of the state and Federal courts sitting in Dallas County, Texas, in
each case with respect to any action or proceeding arising out of or relating to
this Agreement. Each Party hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement in any such court. Each Party
hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in any
such court.
(c) ENTIRE AGREEMENT. This Agreement, which includes the Exhibits
described in this Agreement, embodies the entire understanding among the Parties
with respect to its subject matter and supersedes all previous communications,
representations or understandings, either oral or written, regarding the subject
matter of this Agreement.
(d) AMENDMENT. No amendment or modification of this Agreement shall be
valid or binding unless signed by all the Parties to this Agreement. No
amendment or modification of this Agreement shall be valid or binding if made by
electronic means.
(e) WAIVER. No provision of this Agreement can be waived except by a
written document signed by the Party waiving the provision. The failure to
insist, in any one or more instances, upon the strict performance of any
provision or to exercise any right of this Agreement shall not be deemed to be a
waiver or relinquishment of the future performance of any such provision or the
future exercise of such right, but the obligations of each Party with respect to
such future performance shall continue in full force and effect.
(f) NOTICES. Any notice, demand, consent, approval, request, or other
communication or document to be provided under this Agreement shall be (a) in
writing and (b) deemed to have been provided (i) 48 hours after being sent by
certified or registered mail in the U.S. mails, postage prepaid, return receipt
requested, to the address of the recipient set forth below or such other address
in the United States as such Party may designate from time to time by notice to
the other Parties, or (ii) upon giving by hand or other actual delivery
(including delivery by a nationally recognized overnight courier) at the address
of the recipient set forth below or such other address in the United States as
such Party may designate from time to time by notice to the other Parties. No
notice, amendment or waiver with respect to this Agreement shall be effective if
given by electronic means. For purposes of this Agreement, Xxxxxx`s notice
address is Xxxxxx Financial Services, Inc., 0000 Xxxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxx XX 00000, attn: President and Chief Operating Officer.
(g) SEVERABILITY. In the event any provision of this Agreement is found
to be invalid, voidable or unenforceable, the Parties agree that unless it
materially affects the entire intent and purpose of this Agreement, such
invalidity, voidability or unenforceability shall affect neither the validity of
this Agreement nor the remaining provisions in this Agreement, and the provision
in question shall be deemed to be replaced with a valid and enforceable
provision most closely reflecting the intent and purpose of the original
provision.
(h) SUCCESSORS; ASSIGNMENT. Subject to the effect of the other
provisions of this Section, this Agreeement shall be binding upon and shall
inure to the benefit of the successors and assigns of the Parties. Integrated
may freely assign any and all of its rights, interests and obligations under
this Agreement, PROVIDED that, solely in the case of an "asset sale" (the sale
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of assets by Integrated pursuant to operation of law, merger, consolidation or
other similar transaction shall not be deemed to be an "asset sale" subject to
the effect of the proviso in this sentence) when Integrated transfers all of its
right, title and interest in the Licensed Software to a purchaser but does not
assign or delegate to such purchaser its obligations under this Agreement,
Integrated will cause such purchaser in such asset sale by Integrated to such
purchaser to provide a license to Integrated to enable Integrated to continue to
license the Licensed Software to the Authorized Users in accordance with the
provisions of this Agreement. Notwithstanding any other provision of this
Agreement, neither this Agreement nor any interest in this Agreement or any
rights hereunder shall be sold, transferred, or assigned by Xxxxxx or ABWI, by
operation of law or otherwise, including the merger or consolidation of Xxxxxx
or ABWI with or into another entity. For purposes of this Section, any change in
"control" of Xxxxxx or ABWI shall constitute an assignment. Control means the
direct or indirect power to direct or cause direction of the management and
policies of an entity, whether through the ability to exercise voting power, by
contract or otherwise, as determined by Integrated; and provided further that a
transaction shall not constitute a change in control if (i) Xxxxxx shall have
notified Integrated in writing (sent by telecopy marked conspicuously on the
cover sheet with "Urgent-Immediate Reply Needed" to each of Integrated`s CEO and
COO, each of Xxxxxx`s CEO, COO, CFO, General Counsel and Chief Compliance
Officer and to Xxxxxx Xxxxxx (208-275-3940)) in reasonable detail of the general
terms of a proposed transaction and identity of the applicable investor(s)
and/or acquirer , and Integrated either confirms that such transaction does not
constitute a change in control or does not notify Xxxxxx within six business
days after the day on which it receives the notice from Xxxxxx that Integrated
deems the transaction to be a change in control and Xxxxxx and/or its applicable
subsidiary completes a transaction on terms no less favorable to Xxxxxx and/or
its applicable subsidiary than that provided in the notice or (ii) it involves
the issuance by Xxxxxx or a subsidiary of common stock or other equivalent
equity securities (A) in connection with the conversion of existing indebtedness
on the date hereof of Xxxxxx or the applicable subsidiary or (B) upon the
conversion or exercise of warrants, preferred stock or other securities existing
on the date hereof or issued pursuant to clause (A) above into common stock of
Xxxxxx or the applicable subsidiary. Any attempted assignment, transfer, sale,
or other delegation in violation of this Section shall be void.
(i) JOINT AND SEVERAL OBLIGATIONS. Xxxxxx, ABWI and any Affiliate that
becomes an Authorized User shall have joint and several liability with respect
to the duties and obligations of each under this Agreement. Each of Xxxxxx and
ABWI acknowledge and agree that any liens or security interests granted by
Xxxxxx or ABWI in favor of Integrated or Xxxxxx, whether through the Fully
Disclosed Clearing Agreement or other agreements or arrangements currently in
place, shall serve to secure the joint and several obligations and Xxxxxx and
ABWI owing to Integrated under this Agreement.
(j) COUNTERPARTS. The Parties may execute more than one counterpart of
this Agreement, and each fully executed counterpart shall be deemed an original.
(k) FORCE MAJEURE. Each Party will be excused from performance under
this Agreement for any period and to the extent that it is prevented from
performing any action pursuant to this Agreement, in whole or in part, as a
result of delays beyond its reasonable control caused by another Party or by an
act of God, war, civil disturbance, court order, labor dispute, third party
nonperformance or other cause beyond its reasonable control, including failures
or fluctuations in power, heat, light, air conditioning or telecommunications
equipment. Integrated will also be excused from performance under this Agreement
to the extent the Licensed Software cannot function without the benefit of
software currently licensed to Xxxxxx or ABWI prior to the date hereof and such
software vendors have not granted a license to provide their software that not
only enables Integrated to provide their software to Authorized Users but also
on such other terms as shall be acceptable to Integrated in its sole discretion.
Integrated may at its option, notwithstanding any provision in any Related
Document to the contrary, determine to continue providing technical support to
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Authorized Users previously provided by Xxxxxx under the terms of the Software
License Agreement dated as of June 1, 2002 among Xxxxxx, ABWI and Xxxxxx.
(l) FURTHER ASSURANCES. Each Party will execute and deliver such
further agreements, documents and instruments and take such further action as
may be reasonably requested by any other Party to carry out the provisions and
purposes of this Agreement.
(m) RELATIONSHIP OF THE PARTIES. Each Party will perform its
obligations under this Agreement as an independent contractor. Nothing in this
Agreement or in the performance of this Agreement is intended to create: a
partnership, joint venture or other joint business arrangement among the Parties
or any of their Affiliates; any fiduciary duty owed by one Party to another
Party or any of its Affiliates; or a relationship of employer and employee among
the Parties or any of their Affiliates.
(n) HEADINGS. The headings used for the sections and subsections in
this Agreement are for convenience and reference purposes only and will in no
way affect the meaning or interpretation of this Agreement. All Exhibits and
other attachments referenced in this Agreement (if any) are hereby incorporated
for all purposes. In the event of any conflict between this Agreement and any
Exhibits or other attachments to this Agreement, the provisions of this
Agreement will control.
(o) SURVIVAL. Sections 8, 9, 10, 12 and 13 of this Agreement will
survive any such termination of this Agreement.
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed by their respective duly authorized officers.
INTEGRATED TRADING SOLUTIONS, INC. X.X. XXXXXX GROUP INC.
By: By:
------------------------------- --------------------------------
Name: Name:
Title: Title:
Address: Address:
0000 Xxxxxxx Xxxxxx 00 Xxxx Xxxxxx
Xxxxx 0000 Xxx Xxxx, Xxx Xxxx 10005
Xxxxxx, Xxxxx 00000 Attention: Xxxx Xxxxxxxx
Attention: CEO
[*] Confidential information has been omitted and has been separately filed
with the Securities and Exchange Commission.
[SIGNATURE PAGE FOR SOFTWARE LICENSE AGREEMENT]
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EXHIBIT A
---------
LICENSED SOFTWARE
The Licensed Software includes the software programs known as "UltimateTrader
II" and "Xxxxxx Trader."
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