Exhibit 10.11
LICENSING AGREEMENT
This Licensing Agreement ("Agreement") is made and entered into as of April
2, 1999, by and between Track Data Corporation ("Data"), as licensor, and Track
Data Securities Corp. ("Securities"), as licensee.
RECITALS
A. Data, a corporation organized and existing under the laws of the State of
Delaware, owns and operates an Internet-based order entry/communication system
designed for use by broker dealers.
B. Securities, a corporation organized and existing under the laws of the
State of Delaware, is a wholly owned subsidiary of Track Securities Corp.
("TSC"), which operates as a retail broker and dealer in securities.
C. The parties are desirous of entering into an agreement whereby Data shall
license the use of the above referenced Internet-based order entry/communication
system to Securities for use by Securities and TSC.
AGREEMENTS
NOW, THEREFORE, in consideration of the mutual covenants contained in this
Agreement, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:
ARTICLE 1
GRANT OF LICENSE
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1.1 SOFTWARE LICENSE. Data hereby grants Securities a non-exclusive
and non-transferable license to use the Data Internet-based order
entry/communication system ("Licensed Software"). The Licensed Software
consists of a GUI interface at the ultimate client end to input trading
information for execution of orders to purchase and/or sell securities. The
Licensed Software will also provide (incorporate) a check on the underlying
client account to determine whether specified criteria (including credit and/or
applicable regulatory approvals) are present to allow current execution of the
trade or whether further human intervention is necessary. The Licensed Software
will provide for a confirmation of receipt of each order and a confirmation of
each execution, subject to compliance (via the clearing firm provided for below)
with all securities-law-related requirements. The Licensed Software will also
incorporate an interface to a broker/dealer which clears and carries customer
accounts so as to enable said clearing firm to receive all appropriate
information for execution, clearance and settlement of all trades.
1.2 SCOPE AND TERM OF LICENSE. Securities shall have the right to
re-license the Licensed Software solely to TSC and only for so long as TSC
remains the sole owner of Securities throughout the term of the License. If,
at any time during the term of this Agreement, TSC should cease to be the sole
owner of Securities, for any reason, Securities shall not thereafter be
permitted to re-license the Licensed Software. TSC shall execute this Agreement
to acknowledge its agreement with the terms and conditions of this Agreement
including the restrictions on the use of the Licensed Software and its
obligation to pay the fees provided for herein to Data. TSC shall have no right
to re-license the Licensed Software or its use thereof.
ARTICLE 2
LICENSE FEES
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2.1 FEES. Securities shall make a per use payment to Data of twenty
five cents ($.25) for each inquiry made through the Licensed Software. For
each inquiry which results in a confirmed order, an additional fee of two
dollars ($2.00) shall be due and payable to Data.
2.2 PAYMENT. Securities shall report to Data the amount which will be
payable for each month within fifteen (15) days after the close of each month
within the term of this Agreement and agrees to make payment in full of such
amounts within thirty (30) days of the close of each relevant month. TSC shall
make similar and corresponding reports and payments to Data to the extent of its
re-license of the Licensed Software. In the event that TSC should fail to
report or pay to Data as required above, (i) TSC's re-license rights shall
immediately cease AND (ii) Securities guarantees payment in full of the
appropriate amounts to Data, including the costs of collection (including
attorneys fees and court costs). TSC will further pay to Data its share of
agreed upon advertising costs.
2.3 LATE CHARGES. Securities (and, as relevant, TSC) agrees to pay a
one percent (1%) per month late charge for each month or part thereof on any
undisputed invoice submitted to Securities by Data which is not paid within
thirty (30) days. No such late charge shall be assessed when Securities has, in
writing to Data, and within the thirty (30) day period, protested any invoice or
portion thereof, provided such protest is reasonably made and Securities has
paid the uncontested portion of any invoice within the thirty (30) day period.
2.4 YEAR 2000 XXXXXXXXXX.Xxxx shall provide competent technical
personnel to assist Securities in planning the year 2000 conversion of the
Licensed Software.
2.5 BOOKS AND RECORDS. Securities (and, as relevant, TSC) shall make
its books and records available to representatives of Data during ordinary
business hours, to enable Data to determine the use of the Licensed Software and
the correct fees which are due to Data.
ARTICLE 3
TITLE AND CONFIDENTIAL OWNERSHIP RIGHTS
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3.1 TITLE. Securities and TSC agree that the Licensed Software is
Data's proprietary information and trade secret, whether or not any portion
thereof is or may be copyrighted or patented. Ownership of all applicable
copyrights, trade secrets, patents and other intellectual property rights in the
Licensed Software shall remain vested in Data.
3.2 CONFIDENTIALITY. The Licensed Software is the confidential
property of Data and any unauthorized disclosure to any third parties is
prohibited. Securities and TSC agree to take all reasonable steps to protect
the Licensed Software and its documentation, and shall not market, disclose or
permit the use and/or utilization of the techniques, documentation or programs
contained within or associated with the Licensed Software, or any derivative
thereof, by any third party, except consultants hired by either Securities
and/or TSC. Securities and TSC warrant that any consultants hired by them shall
be subject to the same confidentiality obligations that Securities and TSC
assume hereunder. The obligations of this Article 3.2 shall survive beyond the
termination of this Agreement, but such obligations shall not apply to
information which: (i) was generally known to the public at the time of
receipt; (ii) becomes generally known to the public through no fault of
Securities and/or TSC; (iii) is learned by Securities and/or TSC from a third
party who is not in breach of an obligation of confidentiality to another; (iv)
was independently developed or known prior to disclosure by Securities and/or
TSC; or (v) is disclosed pursuant to court order after written notice of any
motion to compel disclosure or subpoena to Data.
3.3 DERIVATIVES AND MODIFICATIONS. Any derivative of the Licensed
Software and any other modifications thereto, are vested in Data. In the event
that Securities or TSC develop, without the assistance of Data, modifications or
derivatives that are an independent or new system, then Data will not have any
rights to those modifications, derivatives or new system.
ARTICLE 4
DOCUMENTATION
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4.1 MANUALS. Documentation will be provided to Securities for the
Licensed Software.
4.2 COPYING AND MODIFICATION. TSC and Securities may copy, modify and
customize their documentation, provided that such copies retain any and all
"Confidential Materials" Notices set forth at the beginning of each piece of
Data's documentation. TSC and Securities agrees to treat any and all such
copies, whether modified or customized, as confidential materials subject to
Article 3.
ARTICLE 5
LIMITED WARRANTY
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5.1 GRANT OF LICENSE. Data warrants that it has the right to grant the
software license contained in Article 2 and that it is not currently bound by
any other agreements, restrictions or obligations which do or would in any way
interfere or be inconsistent with this Agreement.
5.2 PERFORMANCE. Data warrants that, for a period of one (1) year
following the date of this Agreement that the Licensed Software will perform in
accordance with the functions, specifications and descriptions contained in the
related Data documentation. THIS WARRANTY DOES NOT EXTEND TO ANY CUSTOMIZATION,
MODIFICATION OR CONVERSION OF THE LICENSED SOFTWARE DONE BY Securities OR TSC.
ARTICLE 6
INDEMNIFICATION
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6.1 INDEMNITY. Data shall indemnify, defend, and hold Securities
harmless from any claims, demands, liabilities, losses, damages, judgments,
including reasonable attorneys' fees, resulting from any claimed infringement or
violation of any copyright, patent, or other intellectual property right arising
out of the use of the Licensed Software. Data agrees, should Securities' or
TSC's use of the Licensed Software be enjoined by any court, to use its best
efforts to obtain, at no expense to Securities, the right to continue to use the
Licensed Software so enjoined.
ARTICLE 7
DISCLAIMER OF WARRANTIES
------------------------
7.1 DISCLAIMER. OTHER THAN THOSE WARRANTIES FOR THE LICENSED SOFTWARE
SET FORTH IN ARTICLE 5 OF THIS AGREEMENT, DATA SPECIFICALLY DISCLAIMS ALL
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES
OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
ARTICLE 8
EXCLUSIVE REMEDIES
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8.1 DEFECT IN MATERIALS OR WORKMANSHIP. Data will replace or repair
any item of the Licensed Software which is shown to be defective in material or
workmanship on the date of delivery, or which otherwise fails to perform in
accordance with the functions, specifications and descriptions contained in the
related Data documentation.
8.2 MANUALS. Data will replace or amend any page in any manual or
other document relating to the Licensed Software which is shown to contain any
error or inaccuracy, without additional charge.
8.3 TIME FOR CLAIMS. Securities agrees it will bring no claim against
Data under this Agreement for the Licensed Software more than one (1) year after
the date of this Agreement.
ARTICLE 9
DAMAGES
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"DATA" WILL NOT BE LIABLE FOR ANY LOSS OF PROFIT OR ANY OTHER COMMERCIAL
DAMAGE, INCLUDING BUT NOT LIMITED TO, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR
OTHER INDIRECT DAMAGES, UNDER ANY CAUSE OF ACTION ARISING OUT OF OR RELATING TO
THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, CLAIMS ARISING FOR MALFUNCTIONS
OR DEFECTS IN THE LICENSED SOFTWARE OR NON-DELIVERY OF THE LICENSED SOFTWARE
EVEN IF "Data" HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT
SHALL "DATA" LIABILITY FOR ANY CLAIM ARISING OUT OF THIS AGREEMENT EXCEED THE
AMOUNT PAID TO "DATA" BY "SECURITIES" UNDER THIS AGREEMENT.
ARTICLE 10
TERMINATION
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10.1 WRITTEN NOTICE. Securities shall have the right upon ninety (90)
days written notice to Data to cancel this Agreement. Securities agrees that
upon written notice of cancellation to Data, all monies paid to Data are
non-refundable, and Securities further agrees to pay all outstanding invoices,
not otherwise in dispute as set forth in Article 2.2 above, within thirty (30)
days.
10.2 DEFAULT. Each party has the right to terminate this Agreement if
the other party breaches or is in default of any obligation hereunder and which
default is incapable of cure or which, capable of cure, has not been cured
within fifteen (15) days of receipt of notice of such default (or such
additional cure period as the non-defaulting party may authorize).
10.3 INSOLVENCY. Securities may terminate this Agreement by written
notice to Data and may regard Data as in default of this Agreement if Data
becomes insolvent, makes a general assignment for the benefit of creditors,
files a voluntary petition of bankruptcy, suffers or permits the appointment of
a receiver for its business or assets, or becomes subject to any proceeding
under any bankruptcy or insolvency law, whether domestic or foreign, which
proceeding is not dismissed within sixty (60) days from the initiation thereof,
or is wound up or liquidated, voluntarily or otherwise. In the event that any
of the above events occur, Data shall immediately notify Securities of its
occurrence. Data may terminate this Agreement immediately, upon written notice
to Securities, if it learns that Securities or TSC shall at any time during the
term of this Agreement should be subject to a Statutory Disqualification (as
that term is defined by the Securities Exchange Act of 1934, as amended from
time to time). Data's right to terminate because TSC should become subject to a
Statutory Disqualification will cease if Securities is no longer owned by TSC.
10.4 CESSATION OF USE UPON TERMINATION. Upon termination of this
Agreement for Securities' default as set forth in Article 10.2, Securities shall
immediately cease using the Licensed Software and shall destroy the Licensed
Software and any backup copies of the Licensed Software and all copies of the
documentation in possession of Securities. Termination of this Agreement will
not relieve Securities, TSC and their respective employees of their obligations
of confidentiality pursuant to Article 3.2 of this Agreement and payment of any
unpaid fees. Upon termination of this Agreement for Data's default as defined
in Article 10.2, Securities shall have the right to continued use and possession
of the Licensed Software and all copies of the documentation, provided
Securities fulfills the obligations of the Agreement with respect to
confidentiality.
ARTICLE 11
GOVERNING LAW
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11.1 NEW YORK LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York without reference to the
place of execution of this Agreement or the residence of the parties.
ARTICLE 12
MISCELLANEOUS
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12.1 DATA'S NAME AND/OR LOGO. Securities shall obtain the prior
written consent of Data prior to its use of Data's name and/or logo.
12.2 ENTIRE AGREEMENT. This Agreement, together with any exhibits and
attachments, contains the entire agreement between Data and Securities relating
to the rights granted and the responsibilities and duties assumed by the parties
hereunder. Any prior agreements, promises, negotiations or representations,
either oral or written, relating to the subject matter of this Agreement, not
expressly set forth herein, are of no force and effect.
12.3 AMENDMENT. This Agreement or any part or section of it may be
amended at any time by the mutual written consent of the duly authorized
representatives of Data and Securities. Any amendment shall not effect the
other terms and conditions of this Agreement, which shall remain in full force
and effect.
12.4 HEADINGS. The headings of articles and sections contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
12.5 SEVERABILITY. In the event any term or provision of this
Agreement is declared null and void by any court of competent jurisdiction, the
remainder of the provisions of this Agreement shall remain in full force and
effect.
12.6 WAIVER OF BREACH. Waiver of breach of any provision of this
Agreement shall not be deemed a waiver of any other breach of the same or
different provision. In addition, waiver of breach of any provision of this
Agreement shall not constitute a waiver of any future breach.
12.7 ASSIGNMENT. Neither Data nor Securities shall assign its rights
and duties or obligations under this Agreement without the express written
approval of the other unless such assignment is specifically provided for
herein. Any attempt at assignment in violation of this Article 12.7 shall be
void and of no force and effect.
12.8 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
12.9 BINDING AGREEMENT. This Agreement shall be binding and inure to the
benefit of the parties hereto and their successors and permitted assigns.
12.10 NOTICES. Any notice required to be given pursuant to the terms and
provisions of this Agreement shall be in writing, postage pre-paid, and shall be
sent by certified or registered mail, return receipt requested, to the
appropriate address as set forth below or to such other addresses that the
parties may from time to time designate pursuant to this Article 12.10. Notice
shall be effective and deemed to have been given on the date indicated on the
return receipt of the delivery date.
To Data:
Track Data Corporation
00 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxx, Vice President
with a copy to:
Xxxxxx X. Xxxxxxx, Esquire
Wildman, Harrold, Xxxxx & Xxxxx
000 Xxxx Xxxxxx Xxxxx; Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
To Securities or to TSC:
Track Data Securities Corp.
[or] Track Securities Corporation
0000 Xxxxxxxxx Xxxxxxxxx; Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxxxxxxx, President
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
TRACK DATA CORPORATION TRACK DATA SECURITIES CORP.
By: _____________________________ By: _____________________________
Its President Its President
TRACK SECURITIES CORPORATION
By: _____________________________
Its President
