COMPUTER SOFTWARE LICENSE AGREEMENT
Xxxxxxxx Analytics, Ltd. (100 So. Xxxxxx Dr., Suite 2040, Chicago, IL 60606)
hereafter referred to as TAL, in consideration of the terms and conditions
herein set forth hereby grants to X.X. Xxxxxx, Inc. (33 Xxxx 00xx Xxx., 00xx
xxxxx, XX, NY), hereafter referred to as "Customer", and Customer accepts, a
personal, nontransferable and nonexclusive license to use the Xxxxxxxx
Analytics' software package RealTrade(TM), the security key, and any related
documentation (collectively known as the Licensed Product) subject to the
conditions below.
RealTrade is an order entry application that allows an end user to submit orders
for general order routing. RealTrade is an additional module to PC Quote for
Windows Version 6.0 which must be installed on each workstation that uses
RealTrade. PC Quote for Windows 6.0 is provided through a separate license
agreement with PC Quote. Some of the equipment necessary to run the Licensed
Software is provided by PC Quote and is provided subject to the Equipment
License that is attached. RealTrade can route orders and order information to
various electronic exchanges and back office systems. Customer is responsible
for contracting separately with those entities for their services and providing
any equipment and other items necessary. RealTrade requires various hardware
such as the network equipment and workstations and software products as
specified in the configuration list. Customer is responsible for providing such
compatible hardware and software licenses. Customer is responsible for assuring
that no other programs operate on the hardware running the Licensed Product
except those expressly approved by TAL. Customer is responsible for providing
network personnel familiar with customer's local area network and hardware as a
primary contact with TAL during the installation and thereafter. TAL will not
provide network advice. Customer is required to provide a continuously available
phone line connected to a modem on the RealTrade order server for remote
communication with TAL.
1. LICENSE. The Licensed Product contains computer programs and related
documentation which are copyrighted and remain the property of Xxxxxxxx
Analytics, Ltd. The Licensed Product is supplied by TAL and is intended solely
for Customer's internal business purposes. The Number of Licenses granted to
Customer is specified in Schedule A below. The Customer agrees to use no more
than the number of licenses granted. No right, title or interest in or to the
Licensed Product is conveyed to the Customer by this Agreement. The license
granted hereunder shall not be assigned, sublicensed or otherwise transferred by
Customer. Customer shall not alter or modify the Licensed Product.
2. LIMITED PERMISSION TO COPY LICENSED FORMAT. Customer shall not copy, in whole
or in part, the software of the Licensed Product in machine readable form except
that Customer has limited permission to (a) make one copy of the Licensed
Product for archive or emergency backup purposes and (b) install the Licensed
Product on a single computer hard disk. Customer agrees not to allow the
Licensed Product to be subjected to reverse engineering, decompiling,
disassembling or modification. Customer agrees that it must not make copies for
use or sale to others. Customer agrees that the software and related material
constitute trade secrets of Xxxxxxxx Analytics, Ltd., and are protected by
copyright law and are very valuable to Xxxxxxxx Analytics. Customer agrees that
unauthorized copies or disclosure of the License Product will cause great damage
to Xxxxxxxx Analytics, Ltd., and that this damage is far greater than the value
of the copies involved.
3. TERM. The term of this agreement shall be for a Minimum Term as described in
Schedule A below commencing on the Effective Date. The Effective Date shall be
defined as the date upon which the licensed software is authorized by TAL.
Neither TAL nor Customer shall terminate this Agreement except as follows. This
agreement shall automatically renew at the end of each period for another
Minimum Term, unless either party sends written notice expressing desire to
terminate the agreement. Notice of termination must be received at least thirty
days before the end of the term. TAL may at its sole discretion, terminate this
agreement, without further notice, upon (a) failure of Customer to pay any
charges as described in Schedule A below or (b) the material failure of Customer
to comply with any of the other terms and conditions of this Agreement if
Customer's failure to so comply for items other than payment default shall not
be substantially cured within 10 days after written notice is given to customer
specifying the default. Upon any such termination, TAL shall not be held liable
for any damages which may be sustained by Customer, including but not limited
to, loss of business profits, business interruption, loss of data or pecuniary
loss. Upon termination of this Agreement for any reason, all unpaid charges due
TAL shall become immediately due and payable. Upon termination, Customer agrees
to return the Licensed Product to TAL.
4. FEES
A. The monthly software license fee will be composed of a License Fee
based on the modules selected which is Schedule A and a Trade Processing Fee
also specified in Schedule A.
B. The Final Month's Fee set forth in Schedule A below must be paid in
advance of installation. C. Thereafter the Customer will be billed the License
Fee in arrears of service, for the Lease Period, for the duration of the Minimum
Term set forth in Schedule A.
D. The Trade Processing Fee will be charged at the beginning of the
month for the previous month's processed trades. TAL will produce trade reports
as a basis of billing from the Licensed Product. Customer agrees to provide TAL
with access to the Licensed Product via modem at all times and access through on
site visits with 24 hour notice. Should trade reports not be available from the
Licensed Product for whatever reason, Customer will be required to produce
acceptable reports from other sources.
E. The charges set forth in Schedule A on the reverse side shall remain
unchanged during the Minimum Term. Thereafter, TAL may change any and all
charges upon prior written notice to Customer at least 30 days prior to the end
of the Minimum Term.
F. All charges billed will be due and payable in full within 10 days of
receipt of invoice. If Customer fails to pay any amount due under this
Agreement, Customer shall upon demand pay interest on the unpaid balances at a
rate of 2% per month on such delinquent balances from the due date.
G. Customer agrees to pay all PC Quote fees, exchange fees,
communication fees, personal property taxes, sales taxes, lease taxes, value
added taxes, and other third party charges which are Customer's legal
responsibility to pay.
5. ADDITIONAL CHARGES
A. The Customer is responsible to obtain exchange approval for the
integration of the Licensed Product where necessary. All charges and fees
including exchange fees, NASDAQ testing and communication charges, sales and use
taxes and services charges are the responsibility of the Customer.
B. Certain hardware will be provided for use with the Licensed Product
as listed in the addendum to the Equipment License. No other software except
components of RealTrade and the required operating systems should be installed
or run on the provided hardware without express permission of TAL. Customer
using nonauthorized software shall pay TAL for any support services provided on
a time and materials basis.
C. The Customer is responsible for providing other compatible equipment
and software to be used with the Licensed Product as specified in the
configuration requirements. Customer using nonauthorized hardware or software
configurations shall pay TAL for any support services provided on a time and
materials basis.
6. MAINTENANCE. TAL, or its agent, shall be available to provide phone and fax
support during the hours 7:00AM to 7:00 PM CST Monday through Friday excluding
trading holidays. Emergency-only support will be provided via pager in other
hours.
Customers will receive normal maintenance upgrades during the term of
the lease at no additional charge. Customers who have unusual support
requirements such as the need for on-site support shall contract separately for
those requirements.
7. DATA AUTHORIZATION. Customer acknowledges that TAL maybe required to report
data related to the number of users and which electronic information providers
services they have available for use to various agencies from whom the
information is received. To enable TAL to meet its obligation in this regard,
Customer agrees to inform TAL in writing whenever its usage of the data changes
materially. Such changes shall include but not be limited to an increase in the
number of simultaneously operable computers with access to the data feed.
8. DISCLAIMER TAL expressly disclaim all warranties, express or implied with
respect to the Licensed Product and related materials, or their quality of
performance including warranties of merchantability and fitness for a particular
purpose. TAL makes no representation concerning the likelihood of profitable
trading using the Licensed Product. The Licensed Product is licensed "as is" and
"with all faults". The end user accepts full liability for any investment
decisions or stock purchases made with the Licensed Product. The sales
personnel, employees, and dealers of TAL are not authorized to make warranties
binding on TAL about the Licensed Product. Accordingly, additional oral
statements do not constitute warranties and should not be relied upon and are
not part of the License agreement.
9. LIMITS OF LIABILITY.
A. TAL shall not have any liability under this agreement for any money damages
resulting from claims made by Customer or third party for errors, omissions,
interruptions or delays in the Licensed Product or for the unavailability of the
services provided or to be provided regardless of the cause. In no event will
TAL or PC Quote be responsible for special, direct, indirect, incidental,
exemplary or consequential damages which Customer may incur on account of
entering into this agreement even if TAL has been advised of the possibility of
such damages. Customer waives all claims against TAL, their directors, officers
and employees for special, indirect, or consequential damages arising out of or
in connection with the use or performance of the Licensed Product.
B. If the foregoing disclaimer and waiver of liability should be deemed invalid
or ineffective, TAL, their directors, officers and employees shall not be liable
in any and all events beyond the amount of five hundred dollars paid by Customer
for the Licensed Product. Such disclaimer and indemnification shall survive the
termination of this agreement.
10. GENERAL This agreement shall be governed by the laws of the State of
Illinois of the United States. If any provision of this Agreement shall be
invalid under applicable law, that shall not invalidate the remaining
provisions.
/s/ Xxxxxx Xxxxx 12/10
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Customer Signature Date
Name Xxxxxx Xxxxx
------------------------------
Title President
Company X.X. Xxxxxx
------------------------------
/s/ signature illegible 12/8/96
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Vice President, Xxxxxxxx Analytics, Ltd. Date
SCHEDULE A
Licensed Product: RealTrade
(Please indicate items ordered)
[*]
I understand and agree to the above license agreement:
/s/ Xxxxxx Xxxxx 12/10/96
------------------------------ ---------------------
Customer Signature Date
/s/ illegible 12/8/96
---------------------------------------- ---------------------
Vice President, Xxxxxxxx Analytics, Ltd. Date
---------------------
*Confidential treatment has been requested for the remainder of Schedule.
EQUIPMENT LICENSE
This Agreement made effective on the date below by and between PC Quote, Inc.
(hereinafter referred to as "PCQ", a Delaware Corporation with its principal
place of business at 000 X. Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, and
X.X. Xxxxxx (hereinafter referred to as "Customer") at:
00 Xxxx 00xx Xxxxxx
XX, XX 00000
PC Quote (PCQ) to facilitate Customer's use of the Licensed Product, may provide
to Customer computer hardware or other equipment that may be required. PCQ shall
retain title to any equipment it furnishes. Customer as lessor and user of such
equipment, agrees to be responsible for it and shall reimburse PCQ for all
damages sustained by the equipment of for the cost of replacing the equipment in
the event that it is lost, stolen, or destroyed while in the possession of
Customer. In the event that the LICENSE AGREEMENT is terminated by either party,
Customer shall remain responsible for the safety of the equipment and shall
reimburse PCQ for any damages sustained or its replacement cost if lost, stolen
or destroyed, from the date that the Agreement is canceled until such time that
PCQ repossesses such equipment. Customer agrees to insure all equipment owned by
PCQ which is provided the Customer incident to the services purchased in a sum
equal to its replacement value under a commercial multi-peril policy or its
equivalent. Customer further agrees to name PCQ as a additional insured under
said policy and to furnish PCQ with a certificate of insurance evidencing such
coverage if so requested by PCQ. Customer agrees to provide access to the
equipment for purposes of installation, removal, maintenance, or repaid during
reasonable business hours.
Upon termination of the LICENSE AGREEMENT Customer shall, within thirty (30)
days following the effective date of termination, return all property of PCQ
held and used by the Customer and Customer shall pay all removal cost incurred.
Agreed to:
/s/ Xxxxxx Xxxxx
---------------------------------------
Customer
X.X. Xxxxxx
Name
Xxxxxx Xxxxx
Title
President
---------
Date 12/10/96
