EXHIBIT 10.3
MAINTENANCE AGREEMENT
THIS MAINTENANCE AGREEMENT (this "Agreement") is being entered into as of
the ____ day of ________________, 1999 and is entered into by and between
HYPERFEED TECHNOLOGIES, INC., a Delaware corporation ("HyperFeed") and
XXXXXXX.XXX, INC., a Delaware corporation (the "Company").
R E C I T A L S
WHEREAS, the Company and HyperFeed have entered into that certain
Contribution and Separation Agreement (the "Separation Agreement") dated as of
the date hereof, which provides, among other things, that HyperFeed shall
contribute certain assets to the Company as an additional capital contribution
to the Company, and the Company shall assume certain liabilities of HyperFeed;
WHEREAS, as a condition to agreeing to enter into the Separation Agreement,
the Company has required that the parties execute and deliver this Maintenance
Agreement;
NOW, THEREFORE, in consideration of the mutual promises, representations,
warranties, covenants and conditions set forth in this Agreement and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the Company and HyperFeed hereby, intending to be legally bound by
the terms hereof, agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS. As used in this Agreement the follow terms
shall have the meaning set forth herein:
"Intellectual Property" means the intellectual property rights
relating to the items listed on the attached EXHIBIT A.
"Intellectual Property Gross Revenues" means the gross revenues of
Company and its subsidiaries derived from all permitted uses, licensing and
sub-licensing of any of the Intellectual Property.
"Person" means any natural person, legal entity, or other organized
group of persons or entities. (All pronouns whether personal or impersonal,
which refer to Person include natural persons and other Persons.)
ARTICLE II
MAINTENANCE AGREEMENT
SECTION 2.1 MAINTENANCE SERVICES. HyperFeed agrees and covenants that
at all times during the term of this Agreement HyperFeed shall continue to
provide software features, upgrades and enhancements to the Intellectual
Property as such features, upgrades and enhancements are tested and become
available during the normal course of HyperFeed's business. HyperFeed is under
no obligation to add special features, upgrades or enhancements requested by the
Company. Such special requests, if HyperFeed agrees to perform, shall be
subject to a separate agreement, acceptable to the parties. HyperFeed is under
no obligation to make any features, upgrades or enhancements compatible with any
features, upgrades or enhancements to the Intellectual Property made by the
Company.
ARTICLE III
TERM
SECTION 3.1 TERM. The term of this Agreement shall begin on the
Effective Date and shall be perpetual in nature unless it is otherwise
terminated in accordance with this Article 3.
SECTION 3.2 TERMINATION BY HYPERFEED HyperFeed shall have the right
(but not the obligation) to immediately terminate this Agreement:
(a) if the term of that certain DataFeed License Agreement dated
as of the date hereof by and between the Company and HyperFeed (the "DataFeed
License Agreement") expires and is not renewed by the Company or HyperFeed
terminates such agreement pursuant to Section 8 thereof;
(b) if Company is in material breach of any of its obligations or
representations hereunder, which breach is not cured within 20 days of receipt
of written notice from HyperFeed of such breach;
(c) if Company is the subject of a voluntary petition in
bankruptcy or any voluntary proceeding relating to insolvency, receivership,
liquidation, or composition for the benefit of creditors, if such petition or
proceeding is not dismissed within sixty (60) days of filing; or (iii) becomes
the subject of any involuntary petition in bankruptcy or any involuntary
proceeding relating to insolvency, receivership, liquidation, or composition for
the benefit of creditors, if such petition or proceeding is not dismissed within
sixty (60) days of filing;
(d) if the business of the Company is liquidated or otherwise
terminated for insolvency or any other basis; or
(e) if Company becomes insolvent or unable to pay its debts as
they mature or makes an assignment for the benefit of its creditors.
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SECTION 3.3 TERMINATION BY THE COMPANY. The Company shall have the right
(but not the obligation) to immediately terminate this Agreement:
(a) if HyperFeed is in material breach of any of its obligations
or representations hereunder, which breach is not cured within 20 days of
receipt of written notice from Company of such breach,
(b) if HyperFeed is the subject of a voluntary petition in
bankruptcy or any voluntary proceeding relating to insolvency, receivership,
liquidation, or composition for the benefit of creditors, if such petition or
proceeding is not dismissed within sixty (60) days of filing, or becomes the
subject of any involuntary petition in bankruptcy or any involuntary proceeding
relating to insolvency, receivership, liquidation, or composition for the
benefit of creditors, if such petition or proceeding is not dismissed within
sixty (60) days of filing, or
(c) if the business of HyperFeed is liquidated or otherwise
terminated for insolvency or any other basis.
SECTION 3.4 PROCEDURE FOR TERMINATION. A party may exercise its right to
terminate pursuant to this Article 3 by sending appropriate notice to the other
party. No exercise by a party of its rights under this Article 3 will limit its
remedies by reason of the other party's default, the party's rights to exercise
any other rights under this Article 3, or any of that party's other rights.
ARTICLE IV
COVENANTS AND AGREEMENTS
SECTION 4.1 SOFTWARE UPDATES. HyperFeed agrees and covenants that at
all times during the term of this Agreement HyperFeed shall continue to
provide and license to the Company software updates to the Intellectual
Property as features are tested and become available.
SECTION 4.2 OWNERSHIP. As between HyperFeed and the Company: the Company
shall be the exclusive owner and shall retain all right, title and interest to
any new features to the Intellectual Property created by the Company.
SECTION 4.3 COOPERATION. Each party agrees to take all action and to
cooperate as is reasonably necessary, at the other party's request and expense,
to protect the other's respective rights, titles, and interests in the
Intellectual Property, and further agrees to execute any documents that might be
necessary to perfect each party's ownership of such rights, titles, and
interests.
ARTICLE V
COMPENSATION
SECTION 5.1 PAYMENT FOR MAINTENANCE SERVICES. Pursuant to the procedures
set forth in this Article 5, the Company shall pay HyperFeed a service fee for
the maintenance services
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provided under this Agreement equal to three percent (3%) of Intellectual
Property Gross Revenue.
SECTION 5.2 COMPUTING INTELLECTUAL PROPERTY GROSS REVENUE. The Company
will compute Intellectual Property Gross Revenue for each calendar month.
Within thirty (30) days after each calendar month, the Company will deliver to
HyperFeed a statement indicating Intellectual Property Gross Revenue for such
month and will pay HyperFeed the maintenance fee amount as computed in
accordance with Section 5.1.
SECTION 5.3 BOOKS AND RECORDS. The Company will maintain accurate books
and records which report the recognition of Intellectual Property Gross Revenue.
HyperFeed may, at its own expenses, examine and copy those books and records, as
provided in this paragraph. HyperFeed may make such an examination for a
particular statement within three (3) years after the date when Company sends
HyperFeed the statement concerned. HyperFeed may make those examinations only
during the Company's usual business hours, and at the place where it keeps the
books and records. HyperFeed will be required to notify the Company at least
ten (10) days before the date of planned examination. If an examination has not
been completed within two months from commencement, the Company may require
HyperFeed to terminate it on seven (7) days notice to HyperFeed at any time,
provided that Company has cooperated with HyperFeed in the examination of such
books and records.
ARTICLE VI
WARRANTIES; REPRESENTATIONS
SECTION 6.1 HYPERFEED REPRESENTATIONS AND WARRANTIES. HyperFeed
represents and warrants that:
(a) it has full power and authority to enter into this Agreement;
(b) the execution, delivery and performance by HyperFeed of this
Agreement will not conflict with, or result in a breach or termination of or
constitute a default under, any lease, agreement, commitment or other instrument
to which HyperFeed is a party; and
(c) this Agreement constitutes the valid and binding obligations
of HyperFeed enforceable against it in accordance with its terms.
SECTION 6.2 COMPANY REPRESENTATIONS AND WARRANTIES. The Company
represents and warrants that:
(a) it is has the full power and authority to enter into and
fully perform this Agreement; and
(b) this Agreement constitutes the valid and binding obligations
of Company enforceable against it in accordance with its terms; and
(c) the execution, delivery and performance by the Company of
this
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Agreement will not conflict with, or result in a breach or termination of or
constitute a default under, any lease, agreement, commitment or other instrument
to which the Company is a party.
ARTICLE VII
GENERAL
SECTION 7.1 ASSIGNMENT. Neither HyperFeed nor Company may assign this
Agreement, or its respective rights and obligations hereunder, in whole or in
part without the other party's prior written consent. Any attempt to assign
this Agreement without such consent shall be void and of no effect ab initio.
Notwithstanding the foregoing, any party may assign this Agreement or any of its
rights and obligations hereunder to any entity controlled by it or to any entity
that acquires it by purchase of stock or by merger or otherwise, or by obtaining
substantially all of its assets (a "Permitted Assignee"), provided that any such
Permitted Assignee, or any division thereof, thereafter succeeds to all of the
rights and is subject to all of the obligations of the assignor under this
Agreement.
SECTION 7.2 CHOICE OF LAW AND VENUE. Each party hereto irrevocably
submits to the exclusive jurisdiction of (a) the Superior Court of the State of
Illinois, Xxxx County, or (b) the United States District Court for the Northern
District of Illinois, for the purposes of any suit, action or other proceeding
arising out of this Agreement or any transaction contemplated hereby or thereby.
Each party agrees to commence any such action, suit or proceeding either in the
United States District Court for the Northern District of Illinois or if such
suit, action or other proceeding may not be brought in such court for
jurisdictional reasons, in the Superior Court of the State of Illinois, Xxxx
County. Each party further agrees that service of any process, summons, notice
or documents by U.S. registered mail to such party's respective address set
forth above shall be effective service of process for any action, suit or
proceeding in Illinois with respect to any maters to which it has submitted to
jurisdiction in this Section 7.2. Each party irrevocably and unconditionally
waives any objection to the laying of venue of any action, suit or proceeding
arising out of this Agreement or the transactions contemplated hereby and
thereby in (i) the Superior Court of the State of Illinois, Xxxx County, or
(ii) the United States District Court for the Northern District of Illinois, and
hereby and thereby further irrevocably and unconditionally waives and agrees not
to plead or claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient forum.
SECTION 7.3 COMPLIANCE WITH LAWS AND REGULATIONS Each party shall comply
with all laws and regulations applicable to its activities under this Agreement.
SECTION 7.4 PARTIAL INVALIDITY. If any provision of this Agreement (or
any portion thereof) or the application of any such provision (or any portion
thereof) to any Person or circumstance shall be held invalid, illegal or
unenforceable in any respect by a court of competent jurisdiction, such
invalidity, illegality or unenforcability shall not affect any other provision
hereof (or the remaining portion thereof) or the application of such provision
to any other Persons or circumstances.
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SECTION 7.5 NOTICES. All notices or other communications required or
permitted to be given hereunder shall be in writing and shall be delivered by
hand or sent, postage prepaid, by registered, certified or express mail or
reputable overnight courier service and shall be deemed given when so delivered
by hand, or if mailed, three days after mailing (one business day in the case of
express mail or overnight courier service), as follows:
(i) if to Company,
XXXxxxx.xxx, Inc.
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxx
(ii) if to HyperFeed,
HyperFeed Technologies, Inc.
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxx
SECTION 7.6 INDEPENDENT CONTRACTOR STATUS. The parties to this Agreement
are independent contractors. There is no relationship of partnership, joint
venture, employment, franchise, or agency between the parties. No party shall
have the power to bind any other or incur obligations on any other's behalf
without the other's prior written consent.
SECTION 7.7 NO WAIVER. No failure of any party to exercise or enforce
any of its rights under this Agreement shall act as a waiver of such right.
SECTION 7.8 ENTIRE AGREEMENT. This Agreement, along with the Exhibits
hereto, contains the entire agreement and understanding among the parties hereto
with respect to the subject matter hereof and supersedes all prior agreements
and understandings relating to such subject matter. No party shall be liable or
bound to any other party in any manner by any representations, warranties or
covenants relating to such subject matter except as specifically set forth
herein.
SECTION 7.9 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more such counterparts have been signed by
each of the parties and delivered to each of the other parties.
SECTION 7.10 AMENDMENT. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.
SECTION 7.11 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Illinois
applicable to agreements made and to be
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performed entirely within such State, without regard to the conflicts of law
principles of such State.
SECTION 7.12 NO THIRD PARTY RIGHTS. This Agreement is for the sole
benefit of the parties hereto and nothing herein expressed or implied shall give
or be construed to give to any person, other than the parties hereto any legal
or equitable rights hereunder.
SECTION 7.13 HEADINGS. The headings contained in this Agreement or in any
Exhibit hereto are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement. All Exhibits annexed hereto or
referred to herein are hereby incorporated in and made a part of this Agreement
as if set forth in full herein. Any capitalized terms used in any Exhibit but
not otherwise defined therein, shall have the meaning as defined in this
Agreement. When a reference is made in this Agreement to a Section or an
Exhibit, such reference shall be to a Section of, or an Exhibit to, this
Agreement unless otherwise indicated.
* * * * *
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* * * * *
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representatives as of the date first above written.
HYPERFEED TECHNOLOGIES, INC., XXXXXXX.XXX, INC.,
A DELAWARE CORPORATION A DELAWARE CORPORATION
By: By:
------------------------------------ -------------------------------
Xxxx X. Xxxxx, Senior Vice President Xxxxxxx X. Xxxxxxxxx, President
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EXHIBIT A
TO MAINTENANCE AGREEMENT
ORBIT:
Orbit, including object code, source code, application documentation and
source code documentation as described in the documentation. Orbit is a
software product comprised of a set of modular, front-end, financial market
software applications, created by HyperFeed used as a real-time market tool
for the online investor. These applications are tailored specifically for
use with HyperFeed, and utilize the Quote Socket application programming
interface ("API"). Orbit is written in C++ utilizing Microsoft Foundation
classes, each application is self contained, and loosely coupled to the other
applications through propriety API's.
