Exhibit 10.9
MASTER
PROGRAM PRODUCT
LICENSE AGREEMENT
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Customer:
Agreement made this 1st day of May, 1990 between TCAM Systems, Inc., a
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New York Corporation, having its corporate headquarters at 00 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, hereinafter referred to as "TCAM"; and Trimark Securities,
Inc. with its offices located at 00 Xxx Xxxx Xxxxxx, Xxxx Air Plaza, White
Plains, New York 10604, its successors and assigns of its entire business,
hereinafter referred to as "Customer."
1. License
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TCAM hereby grants and the Customer accepts upon the terms and conditions
hereinafter set forth a nontransferable, non-exclusive, and irrevocable (so
long as no breach of this Agreement has been committed by Customer) license
to use the Licensed Program(s). "Licensed Program(s)" as used in this
Agreement shall mean program products to the extent identified on Schedule
A hereto (as the same may be added to or amended from time to time),
including program flow charts, file layouts, report layouts, screen
layouts, program source code (except those identified on Schedule B
attached hereto) and object code.
2. Usage
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Licenses granted under this Agreement authorize the Customer to utilize the
Licensed Program(s), in machine readable form and are granted for the
Customer's exclusive use in its normal business operation, as presently
conducted, on only one of Customer's central processing and associated
units (hereinafter collectively referred to as "CPU") which is identified
on Schedule A annexed to this Agreement. Customer shall not use the
Licensed Program(s) in the operation of a service bureau or any other
manner which would permit or allow the use of the Licensed Program(s) for
processing any transaction not involving Customer. The Customer agrees that
all Licensed Program(s) developed by TCAM shall remain the property of
TCAM. This Agreement and any Licensed Program(s) to which it applies may
not be assigned, sublicensed, or otherwise transferred by the Customer.
3. Disclosure
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(a) The Customer agrees that the Licensed Program(s) and all related
information received from TCAM under this Agreement as hereinafter amended
or supplemented or any other agreement, whether written or oral, have been
developed by TCAM at great expenditures of time, resources and money.
Therefore, Customer shall keep the Licensed Program(s) and all related
information received from TCAM, whether designated as confidential or not,
in the strictest confidence and will exercise the highest degree of care to
safeguard the confidentiality of the Licensed Program(s) and related
information received from TCAM. It is further agreed that no part of the
Licensed Program(s) shall be duplicated and/or disclosed to others, in
whole or in part, without the prior written consent of TCAM. The foregoing
restriction shall not apply to officers and necessary personnel of the
Customer to the extent that such duplication or disclosure is reasonably
necessary to the Customer's use of the Licensed Program(s). However, it is
agreed that the Customer will take all precautions to insure that all such
officers and personnel of the Customer who may make duplicates or to whom
disclosure thereof is made shall be under an express obligation in writing
to maintain confidentiality with respect thereto and shall have been
advised of the confidential nature thereof by the Customer. It is expressly
understood and agreed that the structures of confidentiality imposed by
this Agreement shall survive the termination of this Agreement or any part
thereof. A copyright notice on the Licensed Program(s) shall not be deemed
in and of itself to constitute or evidence a publication or public
disclosure.
(b) The Licensed Program(s), its logos, product names and other support
materials, if any, are either patented, copyrighted, trademarked, or
otherwise proprietary to TCAM. Customer agrees never to remove any such
notices and product identification.
(c) TCAM agrees that it shall not disclose to any third party Customer's
confidential information concerning the Customer's business, trade secrets,
methods or processes [except when any or all of the foregoing are
incorporated into the Licensed Program(s)] which TCAM learns during the
performance of this Agreement, without the prior written consent of the
Customer. This obligation shall survive the termination of this Agreement.
4. Modification
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The Customer, upon notice to TCAM, shall have the right to modify the
Licensed Program(s) through the services of its duly qualified employees
who shall prior to any such modification be under an express obligation, in
writing, to maintain the confidentiality of such Licensed Program(s) and
any modification thereto.
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The right of the Customer to modify the Licensed Program(s) shall be
subject to the following conditions:
(a) prior to making any modifications to the Licensed Program, Customer
shall first make an archive tape of the Licensed Program which shall
be maintained by Customer and at TCAM's request, made available to
TCAM at no charge;
(b) all modifications shall become the sole property of TCAM;
(c) the strictures of confidentiality imposed by this Agreement upon the
Customer shall apply to all modifications;
(d) modification to the Licensed Program(s) shall be strictly for the
purpose of tailoring and conforming the Licensed Program(s) to the
Customer's particular business requirements for which the Customer
initially requested the license granted by this Agreement; and
(e) no modification shall allow the Customer to utilize the Licensed
Program(s) for applications other than those specified in the
functional specifications (attached as Schedule C) without TCAM's
prior written consent.
5. Price
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The license fees for Licensed Program(s) are specified in Schedule A
annexed to this Agreement. The license fees set forth herein do not include
federal, state, county or local sales, property, use and/or other
applicable taxes except franchise and income taxes, however designated.
Such taxes, wherever applicable, shall be paid by Customer. If any such
taxes are hereafter levied or charged against and are paid or are payable
by TCAM, retroactively or otherwise, such taxes shall be the responsibility
of the Customer and shall be added to such fees and charges and shall be
paid by the Customer when billed as additional amounts due hereunder.
6. Invoicing and Payment
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All invoices shall be payable within fifteen (15) days of the date of
invoice.
7. Maintenance
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The license fees listed in Schedule A annexed to this Agreement shall
include three (3) months of maintenance service (from the time the Licensed
Program(s) are delivered to Customer) for correction of program errors in
connection with the Licensed Program(s). Should any changes be necessitated
to the Licensed Program(s) during the three (3) month maintenance period as
the result of (i) industry or Customer requirements; or (ii) modifications
made by the Customer to the Licensed Program (as
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determined by TCAM in its sole judgement), the Customer may request from
TCAM development and installation of such changes on a time and cost basis.
Any work performed by TCAM as a result of such modifications, industry or
Customer requirements will not increase any remaining portion of the
maintenance period. TCAM'S OBLIGATION TO PROVIDE THE MAINTENANCE SHALL
CEASE UPON ANY MODIFICATION MADE TO THE LICENSED PROGRAM(S) BY CUSTOMER.
8. LIMITED WARRANTY
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A) TCAM MAKES NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION
THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, EXCEPT THAT TCAM, SUBJECT TO SUB-PARAGRAPH B OF THIS SECTION 8,
WARRANTIES THAT THE LICENSED PROGRAM(S), WHEN DELIVERED AND FOR A PERIOD OF
THREE (3) MONTHS THEREAFTER, WILL OPERATE IN ALL MATERIAL RESPECTS AS
DESCRIBED IN THE PROGRAM PRODUCT FUNCTIONAL DESCRIPTIONS ATTACHED HERETO AS
SCHEDULE C. CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR THE BREACH OF ANY
PROVISION OF THIS AGREEMENT OR FOR BREACH OF WARRANTY SHALL BE LIMITED TO
THE CORRECTION OF THE LICENSED PROGRAM DEFECT BY TCAM OR THE REFUND (EITHER
IN FULL OR ON A PRO-RATA BASIS DETERMINED BY TCAM BASED UPON THE PERCENTAGE
OF THE LICENSED PROGRAM WHICH CONTAINS THE DEFECT) OF THE LICENSE FEE
ACTUALLY PAID FOR THE AFFECTED LICENSED PROGRAM; THE CHOICE OF REMEDIES
SHALL BE EXCLUSIVELY MADE AT THE OPTION OF TCAM.
THE WARRANTY PROVIDED HEREIN SHALL IMMEDIATELY CEASE AND BE OF NO
FORCE OR EFFECT UPON ANY MODIFICATION MADE BY THE CUSTOMER TO THE
LICENSED PROGRAM(S).
B) SELECTION OF THE COMPUTER HARDWARE AND OPERATING SYSTEM WHICH
THE LICENSED PROGRAM(S) SHALL OPERATE IN CONJUNCTION WITH HAS BEEN
MADE BY CUSTOMER. TCAM MAKES NO WARRANTY THAT THE HARDWARE, ITS
CAPACITY AND ITS OPERATING SYSTEMS ARE ADEQUATE TO ALLOW THE
LICENSED PROGRAM(S) TO EXECUTE EFFICIENTLY.
9. Patent and Copyright Indemnification
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TCAM will defend at its expense any action brought against the Customer to
the extent that it is based on a claim that the Licensed Program(s), used
within the scope of the license hereunder, infringes a United States
copyright or patent. TCAM will pay any costs and damages finally awarded
against the Customer in such action which are attributable to such claim,
provided that: (i) the Customer notifies TCAM immediately upon receiving
notice that such a claim has been threatened or instituted (whichever is
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first to occur) in writing; (ii) such claim is not based upon designs,
information or materials supplied to TCAM by the Customer; and (iii) that
such claim is not based upon or attributable to any modifications made to
the Licensed Program(s) by or at the request of the Customer. TCAM shall be
entitled to control the defense of any such claim, including without
limitation (i) the selection of counsel, (ii) defense strategy, and (iii)
settlement. Customer shall fully cooperate and assist TCAM (at TCAM's
expense) in all aspects of the defense of such claim. If, as a result of
any such claim, litigation or threat thereof, the Customer is permanently
enjoined from using the Licensed Program(s) by a final, non-appealable
decree, TCAM at its sole option and expense may procure for Customer the
right to continue to use the Licensed Program(s), or at its sole option and
expense, may replace or modify the Licensed Program(s) so as to settle such
claim, litigation or the threat thereof. If such settlement, replacement or
modification of the Licensed Program(s) is not reasonably practical in the
sole opinion of TCAM, after giving due consideration to all factors
including financial expense, TCAM may discontinue and terminate the License
upon written notice to Customer and shall refund to Customer the
unamortized portion of the fees payable hereunder based upon a four (4)
year straight-line depreciation. The foregoing states the entire liability
of TCAM with respect to infringement of any copyrights or patents by the
Licensed Program(s) or any parts thereof, and Customer hereby expressly
waives any other such liabilities.
TCAM's responsibility to indemnify and hold harmless Customer for the
infringement of a patent by the Licensed Program(s) and its related
processes is strictly limited to patents for the Licensed Program(s) that
have been registered with the Patent and Trademark Office prior to the
execution of this License Agreement. TCAM will in no event be liable to
indemnify Customer for infringement by the Licensed Program(s) of any
patent acquired by any third party subsequent to the execution of this
Agreement.
10. LIMITED LIABILITY
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THE CUSTOMER AGREES THAT TCAM'S LIABILITY HEREUNDER FOR ANY
DAMAGES INCLUDING LIABILITY FOR ANY BREACH OF WARRANTY, NEGLIGENCE,
STRICT LIABILITY IN TORT, OR OTHERWISE, REGARDLESS OF FORM OF ACTION,
SHALL BE LIMITED AS SET FORTH UNDER PARAGRAPHS 8 AND 9. TCAM'S TOTAL
LIABILITY TO CUSTOMER SHALL NOT EXCEED THE LICENSE FEE ACTUALLY PAID
BY CUSTOMER FOR THE LICENSED PROGRAM GIVING RISE TO SUCH LIABILITY.
NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THE TRANSACTIONS
UNDER THIS AGREEMENT MAY BE BROUGHT BY THE CUSTOMER MORE THAN
TWELVE (12) MONTHS AFTER DELIVERY OF THE APPLICABLE LICENSED
PROGRAM TO THE CUSTOMER EXCEPT TO THE EXTENT ALLOWED UNDER
PARAGRAPH 9 HEREOF FOR LIABILITY, BASED ON PATENT OR COPYRIGHT
INFRINGEMENT.
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IN NO EVENT SHALL TCAM BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL
DAMAGES EVEN IF TCAM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
11. No Sublicense
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Customer shall not sublicense, assign or transfer the Licensed Program(s).
Any attempt to otherwise sublicense, assign or transfer any of the rights,
duties or obligations hereunder shall be void.
12. Term
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This license is effective until terminated as follows: Customer may
terminate the license with respect to any Licensed Program at any time by
returning the Licensed Program(s) together with all copies, modifications
and merged portions in any form. This Agreement shall terminate immediately
upon the following events: If Customer (i) shall fail to comply with any
term or, condition of this Agreement or (ii) shall become insolvent or a
party to any bankruptcy or receivership proceeding or any similar action
affecting the affairs or the property of the Customer. Customer shall upon
such termination return to TCAM the Licensed Program(s) together with all
copies, modifications and merged portions in any form. Customer shall not
be entitled to any refund of the license fees specified on Schedule A
annexed hereto in the event that this Agreement is terminated except as
provided in Paragraph 9. Without limitation to the foregoing, TCAM upon
default by Customer as provided herein, shall have the right to take
immediate possession of the Licensed Program(s) wherever located without
notice or demand.
13. Cooperation & Support
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The Customer agrees to cooperate with TCAM with respect to this Agreement
including without limitation, providing TCAM at no charge and as requested,
reasonable computer hardware, communication networks, computer operators,
terminal operators, test data and facilities required for development,
unit, volume and network testing of the Licensed Program(s), and in
general, Customer agrees to provide all information and access to key
personnel needed to develop and implement the Licensed Program(s).
14. General
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(a) No modifications of this Agreement shall be valid or binding on TCAM
unless acknowledged in writing by its duly authorized representative.
All notices or other communications given under this Agreement shall
be in writing, sent to the address hereinbefore set forth as principal
place of business or such other addresses as TCAM or the Customer may
designate in writing.
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(b) Customer understands and agrees that violation of any provision of this
Agreement may cause damage to TCAM in an amount which is impossible or
extremely difficult to ascertain. Accordingly, without limitation to any
other remedy available at law, TCAM shall be entitled to seek injunctive
relief restraining the Customer from continuing to violate the terms and
provisions of this Agreement.
(c) TCAM shall not be liable to Customer for any delay or failure by TCAM to
perform its obligations under this Agreement or otherwise if such delay or
failure arises from any cause or causes beyond the reasonable control of
TCAM, including but not limited to labor disputes, strikes, other labor or
industrial disturbances, acts of God, floods, lightning, shortages of
materials, rationing, utility or communication failures, earthquakes,
casualty, war, acts of the public enemy, riots, insurrections, embargoes,
blockages, actions, restrictions, regulations or orders of any government,
agency or subdivision thereof.
(d) The Customer acknowledges that it has read all the terms of this Agreement
and is authorized to enter into it and agrees to be bound by its terms and
conditions and that it is the complete and exclusive statement of the
agreement between the parties, which supersedes all prior communications
and agreements between the parties relating to the subject matter of this
Agreement.
(e) If any provision, or portion thereof, of this Agreement shall be deemed
invalid and/or inoperative, under any applicable statute or rule of law, it
is to that extent to be deemed omitted and shall have no effect as to any
other provision contained in this Agreement.
(f) Customer shall not depict, refer to or in any other manner use the Licensed
Program(s) or any portion thereof in any advertisements, without the prior
written consent of TCAM and provided further that such advertisement
clearly states that TCAM is the owner of the copyright for the Licensed
Program(s).
(g) TCAM and the Customer agree not to hire, attempt to hire, or retain as
consultants or otherwise, employees and/or consultants of the other party
directly or through any third party or entity, for a period of two years
subsequent to employee's last day of work for employee's respective
employer regardless of the circumstances surrounding employee's cause of
termination of employment. It is expressly understood and agreed that the
provisions of this paragraph shall survive the termination of this
Agreement or any part thereof.
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(h) This Agreement shall be governed by the laws of the State of New York. The
parties hereby: (i) waive all right to trial by jury; (ii) consent to the
jurisdiction of the Supreme Court of the State of New York and of the
United States District Court for the Southern District of New York; and
(iii) consent that any process or notice of motion or other application to
the court or judge thereof may be served within or without the State of New
York by registered or certified mail, or by personal service, provided a
reasonable time for appearance is allowed.
TRIMARK SECURITIES INC. TCAM SYSTEMS, INC.
By: /s/ Xxxxx Xxxxxxxx By: /s/ Xxxx Xxxxxxxxxxx
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(Signature) (Signature)
Name: Xxxxx Xxxxxxxx Name: Xxxx Xxxxxxxxxxx
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Title: President Title: General Counsel
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Date: Date:
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SCHEDULE A
COMPUTER CURRENT
SYSTEM CUSTOMER LICENSE
LICENSED PROGRAM TYPE LOCATION PRICE
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1) Third Market Trading Stratus XA 2000 10 New King $500,000 Subject
System ordered directly Street, West to payment plan
by Customer from Air Plaza, detailed below.
2) Appletree In-memory Stratus White Plains,
Database N.Y. 10604
Trimark Securities, Inc. TCAM Systems, Inc.
By: /s/ Xxxxx Xxxxxxxx By: /s/ Xxxx Xxxxxxxxxxx
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(Signature) (Signature)
Title: President Title: General Counsel
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PAYMENT PLAN
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April 1, 1990 $100,000 November 1, 1990 $ 25,000
May 1, 1990 25,000 December 1, 1990 25,000
June 1, 1990 25,000 January 1, 1991 25,000
July 1, 1990 25,000 February 1, 1991 25,000
August 1, 1990 25,000 March 1, 1991 25,000
September 1, 1990 25,000 April 1, 1991 25,000
October 1, 1990 25,000 May 1, 1991 100,000
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SCHEDULE B
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Source code for Appletree In-memory Database program is not included in the
license granted hereby.
Trimark Securities Inc. Tcam Systems, Inc.
By: Xxxxxx Xxxxxxxx By: Xxxx Xxxxxxxxxxx
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Title: President Title: General Counsel
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First Amendment to Master Program
Product License Agreement ("Agreement")
between TCAM Systems, Inc. ("TCAM") and
Trimark Securities, Inc. ("Customer")
dated as of May 1, 1990.
1. Notwithstanding anything to the contrary in Section 7 of the Agreement,
Customer shall be entitled to receive twelve (12) months of maintenance
service for the Third Market Trading System software commencing from the
day the Third Market Trading System is delivered to the Customer, at no
additional charge.
TRIMARK SECURITIES INC. TCAM SYSTEMS, INC
By: /s/ Xxxxxx Xxxxxxxx By: /s/ Xxxx Xxxxxxxxxxx
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(Signature) (Signature)
Name: Xxxxxx Xxxxxxxx Name: Xxxx Xxxxxxxxxxx
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Title: President Title: General Counsel
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Date: Date:
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