SOFTWARE RE-VENDING LICENSE AGREEMENT
-------------------------------------
This Software License Agreement (the "Agreement') is made and entered
into as of March 7, 2002 (the "Effective Date") by and between RushTrade
Software Services, Inc. located at One Galleria Tower 00000 Xxxx Xxxx, Xxxxx
000, Xxxxxx, Xxxxx 00000 ("Licensor") and Centratrade Services, Ltd., a Texas
limited partnership ("Licensee"),located at 0000 Xxx Xxxxxx, Xxxxx 000 Xxxxxxx,
Xxxxx 00000. Licensor and Licensee are collectively referred to in this
Agreement as the "Parties,"
Background
----------
A. Licensor is in the business of developing and licensing
software programs which are used in providing financial and brokerage services.
Licensor has a computer software program to assist customers in trading stocks
on the NASDAQ, AMEX, and NYSE exchanges and other exchanges;
B. Licensee is in the business of providing stock trading
services and facilitating of trading services;
C. Licensee wishes to receive a license to use the Software for
the purpose of providing stock trading services to Licensee's customers.
Licensor is willing to grant such a license under the terms of this Agreement.
NOW THEREFORE, in consideration of the premises and the mutual
promises contained herein, the adequacy and sufficiency of which are hereby
acknowledged, the Patties, intending to be legally bound, agree as follows:
Article 1. Definitions
1.1 Definitions. When used in this Agreement, the capitalized
terms listed below shall have the following meanings:
1.1.1 "Authorized Site" means the single facility where
Licensee's Designated Hardware is located. Licensee must notify
Licensor if Licensee desires to move its Designated Hardware to a new
location and thereby change its Authorized Site.
1.1.2 "Confidential Information" means both Parties' valid and
subsisting trade secrets, confidential information, client lists, test
codes, test information, contact information, and knowhow and show-how
embodied in and/or related to the Software and Licensor's products and
services, as evidenced by or embodied in any business or technical
information, idea, design, concept, technique, invention, discovery or
improvements, whether or not patentable, which is not generally known
in the industry, and the terms of this Agreement. Information shall not
be considered to be Confidential Information if the receiving party
proves with documentary evidence that such information: (a) was known
by the receiving party, without an obligation to keep it confidential
prior to its disclosure to the receiving party by the disclosing party,
as is evidenced by the receiving party's written records that existed
at the time the disclosure was made to the receiving party; (b) is or
becomes lawfully available to the receiving party from a source other
than the disclosing party; (c) was or becomes available to others in a
publication in tangible form through a source other than the receiving
party and through no fault
1
of the receiving party; or (d) is required to be used or disclosed by
an order of any court or other governmental authority, but only to the
extent required by such order. The parties agree that while certain
items of the Confidential Information may be publicly known, these
items when put together, often form combinations that are not publicly
known and are hence included within the Confidential Information. The
receiving party is not permitted to use the Confidential Information to
piece together a series of items of information from unconnected
sources and fit these items of information together to make a showing
that all or part of the Confidential Information was "public."
1.1.3 "Derivative Work" shall mean a work which is based upon
one or more preexisting works, such as a revision, modification,
translation, abridgement, condensation, expansion or any other form in
which such preexisting works may be recast, transformed, or adapted,
and which, if prepared without authorization of the owners of the
copyright in such preexisting work, would constitute a copyright
infringement. For purposes hereof, a Derivative Work shall also include
any compilation that incorporates such a preexisting work.
1.1.4 "Designated Hardware" shall mean the computer equipment
located at Licensee's Authorized Site and listed in Exhibit A.
1.1.5 "Software" means the computer software provided by
Licensor to Licensee.
1.1.6 "Intellectual Property Rights" means the worldwide
intangible legal rights or interests evidenced by or embodied in: (a)
any idea, design, concept, method, process, technique, apparatus,
invention, discovery, or improvement, including any patents, trade
secrets, and knowhow; (b) any work of authorship, including any
copyrights, moral rights or neighboring rights; (c) any trademark,
service xxxx, trade dress, trade name, or other indicia of source or
origin; and (d) any other similar rights and includes all worldwide
intangible legal rights or interests that the party may have acquired
by assignment or license with the right to grant sublicenses.
1.2 "Construction" in this Agreement, unless the context requires
otherwise, the singular shall include the plural and vice versa. The words
"includes" and "including" shall mean including, but not limited to.
Article 2. License
2.1 Grant. Licensor hereby grants and Licensee hereby accepts a,
non-exclusive, non-transferable, single site license (the "License") to use,
re-vend, sublicense, distribute, market, and resell the Software at and from
Licensee's Authorized Site based upon the following terms:
(a) Licensee may only use the Software for the performance of
stock trading services for Licensee and Licensee's customers at
Licensee's Authorized Site however, Licensee shall be allowed to
revcnd, sublicense, distribute, market and resell the Software to
Broker Dealers who are in contractual privity with Licensee and which
Licensee can document and track units of trading that utilize the
Software. To the extent there is any redistribution of the Software, it
shall not be in portions of the Software but such distribution shall be
in whole. Licensee and its re-distributes shall not be authorized to
modify the Software without written permission of Licensor. Any
unauthorized modification and/or non-authorized use will be considered
a default and breach of this Agreement.
2
(b) Licensee may only use the Software on the Designated
Hardware at Licensee's Authorized Site; however, Licensee may re-vend,
sublicense, distribute, market and resell the Software to remote users
who will be able to access the Software through a network connection to
the Designated Hardware at Licensee's Authorized Site hosting the
Software. Any sublicense shall be granted a substantially in form
attached as Exhibit B. If Licensee desires to move its Authorized Site,
then, upon prior written notice by Licensee to Licensor, Licensee may
uninstall the Software from the Designated Hardware at Licensee's
Authorized Site and then install and use the Software at Licensee's new
Authorized Site on Designated Hardware;
(c) Licensee may, in the ordinary course of business, allow
its customers to view the Software's output on the Designated Hardware
at Licensee's Authorized Site; and
(d) Licensee may, in the ordinary course of business, allow
its customers to download portions of the Software from a web site
approved by Licensor and designated by and controlled by Licensee to a
terminal located either at the customer's home or business, for the
sole purpose of allowing Licensee's customers to execute orders through
Licensee. Licensee shall only permit U.S. customers to download the
Software. Prior to the download of the Software, Licensee's customers
shall be required to execute a Sublicense Agreement reasonably
acceptable to Licensor. Upon request Licensor may require that the
Licensee provide to Licensor copies of all such Sublicense Agreements.
Licensee shall provide to Licensor on a monthly basis no later than
thirty (30) days following the end of each month a complete list of Sub
licensees' usernames. This list of user names shall be supplied as a
routine matter without request by Licensor.
2.2 Reservation of Rights. All rights not expressly granted to
Licensee herein are reserved by Licensor.
Article 3. Limitations on Use
3.1 Use by Licensee's Customers. If Licensor, in its reasonable,
good faith discretion, believes that any customer of Licensee is not using, or
will not use, the Software for its intended purpose and in accordance with the
terms of the Sublicense Agreement or otherwise materially breaches the
Sublicense Agreement, Licensor may discontinue that customer's right to use the
Software or view the Software's output. Licensee agrees to refrain from
accepting orders from or assisting customers that have been designated by
Licensor as not complying with the terms of the Sublicense Agreement. It is the
intent of this Agreement to allow customers of Licensee to use the Software
solely for the purpose of executing orders on the NASDAQ, AMEX, and/or NYSE
exchanges or any other exchanges for which the Licensor Software is compatible
and Licensee is authorized to utilize.
3.2 Licensee's Responsibilities. Licensee shall be responsible for
the supervision, management, and control of its use, and its customer's use and
any distributee's, of the Software.
3.3 Customer Sublicense Agreement. If at any time Licensor gives
Licensee notice of circumstances in Licensor's business judgment make continued
use of an approved form of the Sublicense Agreement inappropriate to protect
Licensor's Intellectual Property Rights or other rights, then Licensee shall
discontinue use of that form and change to a new form of Sublicense Agreement
approved by both Licensee and Licensor. In the event Licensor initiates such
change, Licensee shall be required to obtain new Sublicense Agreements from all
of its existing and future Sub licensees.
3
3.4 Copies. Except as expressly authorized by Licensor, Licensee
shall not copy, modify or distribute the Software or any portions thereof.
Licensor will provide reasonable backup copies of the Software to Licensee upon
written request. Licensee shall keep all copies of the Software at the
Licensee's Authorized Site, and all copies of the Software should include all of
Licensor's applicable copyright, patent, trademark, and/or service xxxx notices.
Furthermore, each copy shall state that it is the property of Licensor in the
following language:
"This Software is the property of RushTrade Software
Services, Inc. ("Licensor") and is protected under the
copyright, trade secret, and other laws of the United States,
and when applicable, the State of Texas."
3.5 No Modifications or Reverse Engineering. Licensee shall not
modify, adapt or transcribe the Software, or create Derivative Works based on
the Software or portions thereof. Licensee shall not reverse engineer,
decompile, disassemble, or otherwise translate the Software.
3.6 Maintenance. Licensee agrees that only Licensor shall have the
right to alter, maintain, enhance or otherwise modify the Software, and if
Licensee does alter, maintain, enhance or otherwise modify the Software, the
License granted under this Agreement may be terminated as provided herein.
Article 4. Property Rights
4.1 Title to Software. Licensor shall be the owner of all copies
of the Software made by Licensee or by Licensor for Licensee. As between the
parties, Licensee agrees that Licensor is the owner of all Intellectual Property
Rights in and to the Software. The parties agree that Licensor shall own any
improvements, updates, adaptations, modifications, and error corrections to the
Software and any Derivative Works based on the Software.
4.2 Use of Software Trademark. Except for merely descriptive use,
Licensee shall not use the xxxx and any sub marks, variation of modifications
of, and/or same or similar trademarks or service marks of Licensor (all
sometimes referred to hereinafter as "Xxxx") as a trademark or service xxxx. Any
use of the Xxxx shall be followed by a "TM" designation and the following notice
shall be provided:
"RushTrade trademark of RushTrade Software Service, Inc."
If Licensor notifies Licensee that the Xxxx has been registered with the United
States Patent and Trademark Office, then any such use of the Xxxx shall be
followed by a ?designation and the following notice shall be provided:
"RushTrade IS A REGISTERED TRADEMARK OF RushTrade Software Services,
Inc.
4
Licensor shall have the right, but not the obligation, to inspect Licensee's use
of the Software and related materials to ensure that they are consistent with
proper quality standards set by Licensor. Upon reasonable prior written notice,
Licensor shall have the right to terminate any right of Licensee to use the Xxxx
if said quality standards are not being materially and reasonably met.
Article 5. Fees
5.1 Periodic Payment. Licensee shall pay Licensor a fee of $0.75
per execution of each 1,000 units and/or $.60 per unique order identifier
executed on exchanges for utilization of both RushTrade Direct Pro Level II or
Rushtrade Direct. The fee structure between licensee and each sub licensee shall
be determined exclusively by licensee, and may be changed at anytime. RushTrade
Direct Level I software, in addition to a license fee described, each Sublicense
shall pay an initial $10,000 set-up fee directly to Licensor for the use of
RushTrade Direct Level I software for private labeling the program.
5.2 In the event that the license fee charged to any licensee of
Licensor which is an application service provider or conducts itself as a
"Service Bureau" during the term of this Agreement is less than 110% of the
license fee which Licensee is obligated to pay hereunder, if not curred within
30 days, then this Agreement shall be immediately and automatically amended to
be 90% of such lower license fee.
5.3 Other Transaction Fees. Licensor shall not be liable for any
other fees that are necessary for Licensee to complete any executions. The
Licensee and Licensee's customers shall be solely responsible for such other
fees that are necessary to complete the executions.
5.4 Payment of Taxes. Licensee shall pay all taxes that may be
assessed on its use of the Software, including, but not limited to, personal
property taxes, sales and use taxes, and excise taxes, but excluding taxes based
on the income of Licensor. Licensor shall not be liable to pay any taxes that
may be assessed on Licensee's use of the Software, including but not limited to,
personal property taxes, income taxes, sales and use taxes, excise taxes, or
other fees or tariffs.
5.5 Payment Terms. Licensor shall invoice Licensee in arrears on a
monthly basis no earlier than the fifth day of each month after the Effective
Date until termination of this Agreement. All amounts shown due on such invoice
shall be paid within fifteen (15) business days after the date of the invoice.
Late payments shall be subject to a late fee equal to one and one-half percent
(1.5%) per month on the overdue amount (not to exceed $500 per month), or the
maximum allowable legal rate by any applicable state or federal law, whichever
is less. Any invoicing of any amounts that are not allowable by state and
federal law and/or exceed the maximum allowable rate by such state or federal
laws shall be null and void and shall be deemed to only be billing for the
maximum allowable legal rate of interest allowed by such state or federal laws.
In the event Licensee disputes any amount shown due on such invoice, Licensee
shall pay timely any undisputed amounts and send written notice detailing any
disputed amounts to Licensor. Licensor shall then have the right to hire an
independent auditor to audit the portion of Licensee' books and records that
relate to the subject of the dispute.
5.6 Records of Transactions. Licensee shall maintain accurate and
complete records to allow verification of all transactions that were executed
using the Software, including transactions originating from Licensee's
Authorized Site and remote customer transactions. Licensee shall at least twice
a month (or at intervals designated by Licensor that may be more often), on the
dates requested by Licensor, provide Licensor with a summary report of all such
transactions for the period since the last such report. Licensee shall retain
such records for so long as the records are required to be obtained by any
exchange upon which they were executed.
5
5.7 Audit Rights. Licensor, at its sole discretion, upon ten (10)
days notice to Licensee, may inspect, audit, and copy Licensee's books, records,
files and any other items related to Licensee's use of Software and the trading
activity files deemed necessary by Licensor to verify compliance with the terms
of this Agreement. Any and all information requested shall be held confidential
for Licensor purposes, including but not limited to ensuring proper payment to
Licensor and other compliance issues. Licensee shall allow, or cause to be
allowed, Licensor, or Licensor's agents, access to the above items. If, upon
inspection and audit of Licensee's books, records, files and other items, it is
determined that Licensee's accounting of payments due under this Agreement was
deficient in excess of five percent (5%) of the amount actually due, then
Licensee shall reimburse Licensor for the costs of Licensor's audit (including
accountants' and attorneys' fees) and, shall immediately pay Licensor the amount
due.
Article 6. Installation, Performance and Support
6.1 Initial Delivery of Software. If Licensor has not already done
so, Licensor shall deliver to Licensee one copy of the Software and any
associated documentation as soon as reasonably, practical after c Effective Date
of this Agreement ("Initial Delivery and Installation"). Until further notice,
RushTrade Software Services Inc. will maintain server room and house software
until CentraTrade Services, Ltd. has completed and tested its Data Center.
6.2 Installation Services. If Licensor has not already done so,
Licensor or its authorized designated installer shall make the Initial Delivery
and Installation of the Software on the Designated Hardware at Licensee's
Authorized Site as soon as reasonably practical after the Effective Date of this
Agreement.
6.3 Testing. Licensee shall conduct tests of the Software after it
has been installed. This testing shall establish that the Software is
functioning as designed. Licensor will provide to Licensee a complete list of
all new features of the Software as such are initiated during the testing
period.
6.4 Updates. Licensor, at its option, may provide Licensee with
updates and error corrections for the Software. Licensee agrees to install the
updates and error corrections in accordance with Licensor's instructions. If
Licensee is unable to install the updates and error corrections in accordance
with Licensor's instructions, Licensee agrees to request that Licensor may
install the updates and error corrections under the terms of Section 6.4.
6.5 Customer Support. Licensee is solely responsible for providing
support to its customers and instructing them on how to use the Software. If
Licensee is unable to resolve a customer question or problem, Licensee may
request Licensor's assistance under the terms of Section 6.4. Licensor shall not
be obligated to provide such service to any one not authorized to Licensee to
request such service. Licensee shall periodically provide to Licensor a list of
individuals authorized to bind Licensee to be obligated to incur the cost set
forth in 6.4 above.
6
Article 7. Confidentiality and Security
7.1 Confidentiality of Software. Licensee acknowledges that the
Software is a confidential proprietary trade secret belonging to Licensor,
except where explicitly provided for in this Article 7 Licensee agrees to hold
the Software and all other Confidential Information in confidence for Licensor.
Except as permitted above, Licensee agrees not to sell, rent, sublicense,
distribute, transfer, or disclose the Software or its contents, including
methods or ideas used in the Software, to anyone. Licensee may, however,
disclose front-end, human eye read only portions of the Software and other
Confidential Information to employees of Licensee when disclosure to such
employees is necessary to use the License as granted in this Agreement and when
such disclosure is limited to a "need-to-know" basis. Licensee shall instruct
all employees to whom any such disclosure is made that the disclosure is
confidential and that the employee must keep the Software and Confidential
Information confidential by using at least the same care and discretion that
they use with other data designated by Licensee as confidential. The
confidentiality requirements of this Article 7 shall be in effect while this
Agreement is in force and effect and after it terminates or expires.
7.2 Employee Confidentiality Agreements. Licensee agrees that any
material breach of its obligations pursuant to this Article 7 of this Agreement
constitutes a material breach of this Agreement. The Parties agree that any
alleged breach of the obligations of Article 7 of this Agreement by a former
employee of Licensee shall enable Licensor to have Licensee's right, if any, to
assert a claim against such former employee with respect to such breach, and
Licensee shall provide reasonable assistance to Licensor in pursing such a
claim.
7.3 Disclosure as Breach. Licensee agrees that any material breach
of its obligations pursuant to this Article 7 of this Agreement constitutes a
material breach of this Agreement. The Parties agree that any alleged breach of
the obligations of Article 7 of this Agreement by a former employee of Licensee
shall enable Licensor to require, should Licensor choose such action, Licensee
to take all necessary actions to repair any damage resulting from a breach of
the obligations set forth in this Article 7, failing which, Licensor may
terminate Licensee's right to use the Software under this Agreement as provided
in Section 8.2.
7.4 Court Ordered Disclosure. If Licensee is ordered by a court,
administrative agency, or other governmental body of competent jurisdiction to
disclose the Software or any other Confidential Information, or if it is served
with a motion that such an order be issued, then Licensee shall immediately
notify Licensor of the motion or order by the most expeditious possible means;
and Licensee shall join or agree to (or at a minimum shall not oppose) a motion
or similar request by Licensor for an order protecting the confidentiality of
the Confidentiality Information, including joining or agreeing to (or non
opposition to) a motion for leave to intervene by Licensor.
7.5 Reporting of Attempts to Disclose. Licensee shall immediately
report to Licensor any attempt by any person of which Licensee has knowledge (i)
to use or disclose any portion of the Confidential Information without
authorization from Licensor, or (ii) to copy, reverse assemble, reverse compile
or otherwise reverse engineer any part of the Confidential Information.
7.6 Data Backup. Licensor is not responsible for the backup or
storage of Licensee's data or Licensee's customers' data. Licensee agrees to
maintain adequate records so as to be able to replicate any information
transmitted by Licensee's customers through use of the Software.
7
7.7 Inspection. Licensee hereby authorizes Licensor to enter its
premises in order to inspect the Software in any reasonable manner during
Licensee's normal working hours to verify Licensee's compliance with the terms
of this Agreement. This inspection shall only be allowed after Licensor has
given twenty-four (24) hours notice for this purpose. If such notice is
personally delivered, emailed, or sent by facsimile, it shall be deemed given
upon the earlier of (I) receipt of said notice and/or (2) confirmation of
transmission by sender. Any other form of notice shall be controlled by Article
10.2 below.
7.8 Injunction. Licensee acknowledges that, in the event of a
breach by Licensee or any of Licensee's customers of any of the foregoing
provisions or of the provisions of Article 2 (License), Article 3 (Limitations
on Use) or Article 7 (Confidentiality), Licensor will not have an adequate
remedy in money damages. Licensor shall therefore be entitled to obtain an
injunction against such breach from any court of competent jurisdiction
immediately upon request. Licensor's right to obtain injunctive relief shall not
limit its right to seek further remedies.
7.9 Confidentiality of Licensee's Customers. In the event that
Licensor gains ,access to any Confidential Information belonging to Licensee or
its customers under the terms of this Agreement, Licensor agrees to maintain
that information as Confidential, and not use that information for any purpose
not specified in this Agreement, or otherwise disclose the information to any
other parties.
Article 8. Termination
8.1 Effective Life of Agreement. This Agreement shall remain in
force from the Effective Date for a period of two (2) years from the Effective
Date, unless earlier terminated as provided for herein.
8.2 Termination. Licensee may terminate this Agreement upon (a)
the failure of Licensor to cure a material breach within sixty (60) days of
written notice of the material breach, or (b) for any reason upon 60 days
advance notice to Licensor. Licensor will -have the right to terminate this
Agreement if Licensee has (a) breached any material term of this Agreement and
failed to cure such breach within 30 days after receipt of written notice from
Licensor, or may terminate with reasonable cause upon 180 day advance notice to
Licensee. In the event that Licensor should wrongfully terminate this Agreement,
then Licensor shall be obligated to pay to Licensee the fees (for purposes of
this Section 8.2, the "Termination Fees") set forth in Section 5.1 for all
executable transactions on exchanges utilizing the Software by any person or
entity which was, at the time of the wrongful termination, a client or customer
of Licensee (each, a "Former Customer"). The Termination Fees will be paid in
the same manner as set forth in Section 5.4. Termination Fees will begin
accruing on the date each Former Customer begins trading with the Software
through some party or means other than Licensee (for example, by the Former
Customer directly, through Licensor using its own "application service
provider", or through any other method or means) and ending on the 365`h day
after the date of such first trade. The obligation of Licensor to pay
Termination Fees survives the expiration or termination of this Agreement, and
does not preclude Licensee from seeking any other remedy at law or in equity in
the event of a wrongful termination of this Agreement by Licensor.
8.3 Events of Default. This Agreement may be terminated by either
Party if the other Party is at any time placed in bankruptcy, if it goes into
voluntary dissolution, if it has a receiver appointed, if it compromises with
its creditors, or if it has any material judgment given against it and such
judgment is final or becomes final and is not satisfied within twenty-one (21)
days of the final judgment (after all appeals) or of the date of the judgment
becoming final (after all appeals).
8
8.4 Effect of Termination. All rights and obligations of the
Parties hereunder shall cease upon the termination of this Agreement except that
(i) the obligations of the parties pursuant to Article 7 (relating to
Confidentiality) shall continue in full force and effect, and (ii) any amounts
owed to a Party hereunder shall continue to be owed. Upon termination of this
Agreement all license grants from Licensor to Licensee shall cease, Licensee
shall immediately cease all use of the Software, and, at Licensor's request,
Licensee shall either destroy or send to Licensor all copies of the Software and
related materials in its possession.
Article 9. Warranties and Indemnification
9.1 Compliance. Each party warrants that it will comply with all
applicable laws and regulations of the United States, including all Securities
and Exchange Commission regulations, and with all applicable rules of the
National Association of Securities Dealers (NASD, New York Stock Exchange, or
other applicable security exchanges' rules and regulations). This Agreement
shall not be construed to require any party to take any action in violation of
any such applicable laws, rules or regulations.
9.2 No Warranties. THE SOFTWARE IS PROVIDED "AS IS WITH ALL
FAULTS" AND NO WARRANTIES, EXPRESS OR OTHERWISE, ARE MADE REGARDING THE
PERFORMANCE OR RESULTS OF THE SOFTWARE. LICENSEE FURTHER ACKNOWELDGES AND AGREES
THAT LICENSOR DOES NOT WARRANT THAT THE SOFTWARE WILL DELIVER ORDERS TO NASDAQ
OR OTHER EXCHANGES OR THAT THE DATA IT RECEIVES IS TRUE, ACCURATE OR IN REAL
TIME. IN ADDITION, LICENSEE AGREES AND ACKNOWLEDGES THAT THE SOFTWARE
CALCULATIONS MAY NOT BE CORRECT AND THAT THE SOFTWARE MAY FAIL WITHOUT WARNING.
LICENSEE AGREES TO RELY ON THE SOFTWARE AND ITS RESULTS SOLELY AT LICENSEE'S OWN
RISK. LICENSEE HEREBY AGREES AND UNDERSTANDS THAT LICENSOR MAKES NO WARRANTIES
OR GUARANTIES AS TO A TIMELY INSTALLATION OF THE SOFTWARE OR ANY DOWNTIME THAT
THE SOFTWARE MAY CAUSE LICENSEE IN ITS BUSINESS.
9.3 Allocation of Risk. Licensee acknowledges and agrees that the
risk concerning the quality and performance of the Software is assumed by
Licensee. As between the parties, Licensee assumes all liability for any
corruption or delay of data that occur in Licensee's computers, Licensee's
customers' computers, or the various exchanges and networks used to execute
trades. Licensee agrees that Licensor is merely providing software services
through which customers may communicate with the exchanges to execute trades.
Licensor is not responsible for verifying the accuracy of the information
entered into the Software by Licensee or Licensee's customers, Licensee assumes
all responsibility for obtaining an executed contract from each of Licensee's
customer that governs Licensee's obligations and liabilities to the customer,
Licensee acknowledges that Licensor has no control over Licensee's and
Licensee's customer's entry of data and that Licensor assumes no responsibility
for Licensee's or Licensee's customers' computers or networks, the NASDAQ, AMEX,
or NYSE, or any other exchange.
9.4 Disclaimer. THE WARRANTIES AND LIMITATIONS SET FORTH IN THIS
ARTICLE CONSTITUTE THE ONLY WARRANTIES MADE BY THE PARTIES. THE PARTIES
SPECIFICALLY DISCLAIM ALL OTHER WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESS
OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF DESIGN, ANY IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES
9
ARISING FROM COURSES OF XXX XXXX, TRADE USAGE OR TRADE PRACTICE, AND WARRANTIES
OF TITLE OR NONINFRINGEMENT. LICENSOR MAKES NO WARRANTIES WHATSOEVER TO ANY
PERSON OR ENTITY OTHER THAN LICENSEE. NO REPRESENTATIONS OF FACT, ORAL OR
WRITTEN. INCLUDING STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE. OR
PERFORMANCE OF PRODUCTS OR SERVICES, WHETHER MADE. BY LICENSOR'S EMPLOYEES OR
OTHERWISE, WHICH IS NOT CONTAINED IN THIS AGREEMENT, SHALL BE DEEMED TO BE A
WARRANTY BY LICENSOR FOR ANY PURPOSE OR GIVE RISE TO ANY LIABILITY OF LICENSOR
WHATSOEVER. LICENSEE AGREES THAT IN NO EVENT WILL LICENSOR BE LIABLE TO LICENSEE
FOR. ANY INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY
KIND (INCLUDING LOST PROFITS, LOSS OF BUSINESS OR OTHER SIMILAR DAMAGES).
9.5 Limitations of Liability. NOTWITHSTANDING THE ABOVE
PROVISIONS, AT ANY TIME THERE SHALL BE NO LIABILITY ON THE PART OF LICENSOR BY
VIRTUE OF THIS AGREEMENT, OR THE PERFORMANCE OR NONPERFORMANCE OF ITS
RESPONSIBILITIES UNDER THE AGREEMENT, OR BY VIRTUE OF A BREACH BY LICENSOR OF
ANY REPRESENTATION OR WARRANTY CONTAINED HEREIN WHETHER DUE TO THE NEGLIGENCE OF
LICENSOR OR OTHERWISE LICENSEE AGREES THAT IN NO EVENT WILL THE TOTAL AGGREGATE
LIABILITY OF LICENSOR FOR ANY CLAIMS, LOSSES, OR DAMAGES EXCEED THE GREATER OF
(A) $10,000, OR (B) THE TOTAL AMOUNT PAID BY LICENSEE TO LICENSOR UNDER THIS
AGREEMENT FOR THE THREE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE UPON WHICH
THE FIRST ACT OR OMISSION OCCURRED THAT GAVE RISE TO LICENSOR'S LIABILITY. THE
FOREGOING LIMITATION OF LIABILITY IS COMPLETE AND EXCLUSIVE, SHALL APPLY EVEN IF
LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL CLAIMS, LOSSES,
OR DAMAGES, AND SHALL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF ANY
OTHER REMEDIES POSSESSED BY LICENSEE OR THIRD PARTIES. THIS LIMITATION OF
LIABILITY REFLECTS AN ALLOCATION OF RISK BETWEEN LICENSOR AND LICENSEE IN VIEW
OF THE FEES CHARGED BY LICENSOR.
9.6 Infringement Issues. Licensee shall notify Licensor of the
assertion of any claim that the Software or Licensee's use of the Software under
this Agreement violates the trade secret, trademark, copyright, patent, or other
proprietary right of any other party, and shall cooperate with Licensor in the
investigation and resolution of any such claim. If the Software becomes, or is
likely to become, the subject of a claim of infringement of a copyright or
patent, Licensor, at its option, may procure for Licensee the right to continue
using the Software, may replace or modify the Software to render it
non-infringing, or may require that Licensee discontinue use of the Software.
Article 10. Additional Terms.
10.1 Assignment. Licensee shall not assign, transfer, or otherwise
dispose of this Agreement in whole or in part to any individual firm or
corporation without the prior written consent of Licensor, which consent shall
not be unreasonably withheld, Any assignment with consent does not release
Licensee from any of its obligations under this Agreement unless the consent so
states.
10.2 Notices. Any and all notices (except for invoicing and
inspection as provided for herein to the contrary) to be given under this
Agreement by either Party to the other may be effected by personal delivery in
writing, by telecopy, or by mail, registered or certified, postage prepaid with
return receipt requested. Notices shall be sent to the Parties at their
respective addresses set forth on the first page of this Agreement. Notices
delivered personally or telecopied shall be deemed given as of seven (7) days
after mailing.
10
10.3 Taxes. Licensee shall reimburse Licensor for any state, local,
and federal taxes (excluding taxes imposed upon Licensor's income) applicable to
the transactions contemplated under this Agreement provided (i) Licensor has the
legal obligation to collect the tax from Licensee, and (ii) Licensor either
charges Licensee the tax at the time of invoicing, if applicable, or if assessed
by a taxing jurisdiction at a later date, sufficient notice is given to Licensee
so Licensee may provide documentation to Licensor that either Licensee has
already paid such taxes to the taxing jurisdiction, or that the tax is not
legally due.
10.4 Severability. If any provision of this Agreement shall be held
to be illegal, invalid, or unenforceable by a court of competent jurisdiction,
that provision shall be modified, if possible, or deleted, if not possible, and
the remainder of this Agreement shall remain in full force and effect.
10.5 Entire Agreement. This Agreement represents the final
agreement of the parties with regard to the subject matter hereof, supersedes
all previous agreements and understandingly whether written or oral, between the
Parties with respect thereto. There are no unwritten oral agreements between the
Parties hereto. This Agreement may not be modified except by an instrument in
writing signed by a duly authorized representative of each Party hereto.
10.6 No Agency. Nothing in this Agreement shall be construed to
create an agency, joint venture, partnership, or othcr form of business
association between the Parties.
10.7 Governing Law Jurisdiction Venue. This Agreement is deemed to
have been entered into in the State of Texas, and its interpretation,
construction, and the remedies for enforcement or breach are to be applied
pursuant to, and in accordance with, the laws of the State of Texas except for
choice of law principles. Venue and jurisdiction for any action or claim,
brought under this Agreement shall be in the courts with proper jurisdiction
located in the State of Texas, and the Parties expressly submit themselves to
the personal jurisdiction of such courts.
10.8 Attorneys' Fees and Costs. If any legal proceeding is
necessary to enforce the terms of this Agreement, the prevailing Party shall be
entitled to reasonable attorney's fees and costs in addition to any other relief
to which that Party may be entitled.
10.9 Force Majeure. The obligations of the Parties under this
Agreement (other than the obligation to make payments) shall be suspended to the
extent a Party is hindered or prevented form complying therewith because of
labor disturbances (including strikes or lockouts) war, terrorist act, actions
of God, earthquakes, fires, storms, accidents, governmental regulations, failure
of vendors or suppliers, or any other cause whatsoever beyond a party's control.
For so long as such circumstances prevail, the Party whose performance is
delayed or hindered shall continue to use all commercially reasonable efforts to
recommence performance without delay.
10.10 Headings. The headings in this Agreement are for purposes of
reference only and shall not be construed a part of this Agreement.
10.11 No Bias. This Agreement shall be interpreted as written and
negotiated jointly by the Parties. It shall not be strictly construed against
either Party, regardless of the actual drafter of the Agreement.
11
10.12 Duplicate Counterparts. This document may be executed in
duplicate and, if so, either copy or both copies are considered originals.
10.13 No Representations. Each party acknowledges that it enters
into this Agreement of its own accord and does not do so on the basis of, and
does not rely on, any representation, warranty or other provision except as
expressly provided herein, and all conditions, warranties or other terms implied
by statute or common law are hereby excluded to the fullest extent permitted by
law.
10.14 Binding. This Agreement shall be binding on the Parties, their
affiliated companies, subsidiaries, successors, and assigns (if any), and they
each warrant that the undersigned are authorized to execute this Agreement on
behalf of the respective Party. This Agreement is also binding upon the
officers, directors, agents, employees, partners and shareholders of the Parties
and any other persons acting in concert with them.
12
IN WITNESS WHEREOF, the Parties have respectfully caused this Agreement
to be executed by their duly authorized representative on the date hereinafter
indicated.
LICENSEE: LICENSOR.
CENTRATRADE SERVICES, LTD., RushTrade Software Services, Inc.
A Texas limited partnership
By: PSJ Management, LLC, a Texas limited
Liability company
Its: General Partner
By: /s/ Xxxx X. Xxxxxx By: /s/ X.X. (Xxxxx) Xxxxx, Jr.
--------------------------------- --------------------------------
Xxxx X. Xxxxxx,CEO X.X. (Xxxxx) Xxxxx, Jr., President
Name: Xxxx Xxxxxx
-------------------------------
Title: CEO Title:
------------------------------ -----------------------------
Date: March 7, 2002 Date: March 7, 2002
------------------------------ -----------------------------
13
