EXHIBIT 10.13
SOFTWARE LICENSE AGREEMENT
THIS SOFTWARE LICENSE AGREEMENT ("Agreement") is entered into as of
February 27, 1998 between IQ NET CORPORATION, a California corporation
("Licensor"), and VIRTUAL TELECOM SA, a Swiss corporation ("Licensee").
R E C I T A L S
A. Licensor has developed operating software (referred to herein as
"IQ Suite Software") for purposes of offering an Internet financial data
service under the xxxx "IQ Suite" by means of gathering raw data concerning
current and historical price and volume information on US and foreign
securities, currencies and commodities and formatting that data in a usable
charts, graphs and other forms for delivery over the Internet.
B. Licensee desires to acquire from Licensor, and Licensor desires to
grant to Licensee, the right to IQ Suite Software for Licensee's use in
delivering a similar financial data service over the Internet both directly
to the public under Licensee's own marks and to financial institutions on an
OEM basis who will offer the service to their own clients under their own
marks.
A G R E E M E N T
It as agreed as follows:
1. LICENSES.
1.1 GRANT. Subject to the terms hereof, Licensor hereby grants to
Licensee and Licensee hereby accepts the licenses (collectively referred to
herein as the "License"), as set forth in Sections 1.1.1 and 1.1.2 below, to
use the IQ Suite Software for Licensee's use in delivering a financial data
service over the Internet both directly to the public and the securities
industry under Licensee's own marks and to financial institutions on an OEM
basis who will offer the service under their own marks to their own clients.
As used in this Agreement, the term IQ Suite Software shall mean the
operating software program currently utilized by Licensor for its financial
data service identified by Licensor as "IQ Suite," including all computer
programs, excluding any source codes; all files, including input and output
materials; all documentation related to such computer programs and files; all
media upon which any such computer programs, files and documentation are
located (including tapes, disks and other storage media); and all related
material. Licensee expressly understands and acknowledges that,
notwithstanding any other provision of this Agreement, Licensee will not be
entitled to receive or inspect any source code for the software. As used
-1-
in this Agreement, the term "Licensed Product" shall mean Licensee's
financial data service incorporating the IQ Suite Software.
1.1.1 EXCLUSIVE LICENSE. Licensor hereby grants the
License to Licensee on an exclusive basis for the countries and area of
Europe (referred to herein as the "Exclusive Territory"). Except as
otherwise provided in Section 1.6, Licensor agrees not to market or promote a
financial data service based on its IQ Suite Software in the Exclusive
Territory. Licensor represents that it has not authorized, and agrees that
it shall not authorize, any other party to utilize the IQ Suite Software for
purposes of delivering financial data to parties in the Exclusive Territory;
provided, however, Licensor reserves the right to license the IQ Suite
Software to securities brokerage firms, banks and financial institutions,
accounting firms, and other financial firms in the U.S. for their use in
offering financial data to parties in the Exclusive Territory as an integral
part of the firm's provision of retail securities brokerage services in the
Exclusive Territory based on the Licensor's proprietary transactional systems
also licensed by Licensor to the firm.
1.1.2 NONEXCLUSIVE LICENSE. Licensor hereby grants
the License to Licensee on a nonexclusive basis for all countries and areas
outside of the Exclusive Territory except for the countries and area of North
America and Asia. As used in this Agreement, the term "Excluded Territory"
shall mean the countries and area of North America and Asia and the term
"Nonexclusive Territory" shall mean all areas of the World other than the
Exclusive Territory and the Excluded Territory. Licensee agrees not to
actively market or promote its financial data service utilizing the IQ Suite
Software in the Excluded Territory and, as provided in Section 3.3 below, to
pay Licensor compensation for each party residing in the Excluded Territory
who otherwise subscribes for the Licensee' financial data service; provided,
however, Licensee shall have the right on a nonexclusive basis to sublicense
the Licensed Product to securities brokerage firms, banks and financial
institutions, accounting firms, and other financial firms in the Exclusive
Territory for their use in offering financial data to parties in the Excluded
Territory as an integral part of the firm's provision of retail securities
brokerage services to parties in the Excluded Territory based on a
transactional system also licensed by Licensee to the firm.
1.2 IMPROVEMENTS. Any modification of, development of or
improvement on a currently offered feature of the IQ Suite Software by, or
obtained by, Licensor, whether or not copyrightable and whether presently
existing or hereafter arising, shall be promptly communicated to Licensee and
be subject to the terms of the License.
1.3 ALLEGED INFRINGEMENT BY LICENSEE. If any suit, action or other
proceeding shall be brought or threatened against Licensee involving any
claim of infringement of any copyright or other proprietary right held by a
third party based upon Licensee's use of the Licensed Product, but excluding
any claim based upon Licensee's use of its marks, intellectual property other
than IQ Suite Software, or business practices, Licensee shall promptly notify
Licensor and deliver to Licensor copies of all papers which shall have been
served in any such suit, action or other proceeding. Licensor shall have the
-2-
right and obligation to dispose of any such claim at Licensor's expense.
Licensee shall cooperate fully with Licensor in pursuing such measures as
Licensor may elect, provided Licensor acts in such a manner as to protect
Licensee's interest in the License at all times. To the extent a conflict
exists between any proposed action of Licensor and any proprietary rights of
Licensee, or rights of Licensee under this Agreement, Licensor shall not take
such action without first consulting with Licensee as to such action and
shall fully cooperate with Licensee in the protection of such rights.
Licensor shall hold Licensee harmless from and against any and all Losses
(but not the fees or expenses of any counsel retained by Licensee to
represent its separate interests) incurred by Licensee in connection with any
of the foregoing claims of infringement.
1.5 SUBLICENSE RIGHTS. Except as otherwise provided herein,
Licensee may sublicense its rights under the License, and Licensee's rights
under the License may be asserted by any such sublicensee, in connection with
Licensee's grant of a sublicense to a banking or securities brokerage firm
for that parties use in hosting an Internet site for purposes of delivering
financial data service utilizing the IQ Suite Software to its own clientele.
Licensee shall also confer with Licensor from time to time regarding the
status of such sublicensing arrangements and provide Licensor with copies of
any sublicense agreements.
1.6 RIGHT OF FIRST REFUSAL. In the event Licensor develops any
new features to its IQ Suite Software or develops any other operating
software or systems relating to the provision of services to the financial
industry (collectively referred to herein as a "New Product"), than Licensee
shall have the right of first refusal to bid on any license for use of the
New Product in the Exclusive Territory. Licensor shall provide Licensee with
the written terms of any proposed license for the New Product and Licensee
shall have 30 days to accept the offer by delivering written notice of
acceptance of the proposed terms to Licensor. If Licensee fails to accept
the offer within the 30 day period, Licensor shall have the right to offer
the license rights to the New Product in the Exclusive Territory to another
party on the same terms and conditions as offered to Licensee. However, if
after Licensee fails to accept the offer and Licensor materially changes the
terms of the offer, Licensor must reoffer the license to Licensee under a new
30 day acceptance period.
2. OBLIGATIONS AND REPRESENTATIONS OF LICENSOR AND LICENSEE.
2.1 INTEGRATION. In consideration of the payment set forth in
Section 3.1 below, Licensor shall (i) conduct certain clean-up of the IQ
Suite Software as the Licensee may reasonably request in writing, (ii)
integrate the IQ Suite Software program into Licensee's existing financial
data service, including those cosmetic changes to the front-end of the
financial data service as Licensee shall reasonably request for purposes of
identifying the service under Licensee' marks, and (iii) deliver to Licensee
electronically a standardized version of the IQ Suite Software, pursuant to
Licensee's reasonable criteria, suitable for use by a financial institution
in offering the Licensed Product on an OEM basis to its own clients under the
firm's own xxxx. Licensor shall use its best efforts to complete the
clean-up and
-3-
system integration referred to in subparts (i) and (ii) and deliver the
standardized program referred to in subpart (iii) no later than 30 days
following the execution of this Agreement.
2.2 MAINTENANCE AND ASSISTANCE. Licensor shall for no additional
consideration install, and assist the Licensee in installing for its OEM
customers, on a timely basis, all upgrades and modifications to the IQ Suite
Software conducted by Licensor from time to time throughout the term of this
Agreement. In addition, and in consideration of a consulting fee to be
agreed to by the parties but which in any case shall be on commercially
reasonable terms, Licensor shall provide Licensee with technical assistance
in connection with Licensee' use of the Licensed Product, including (i)
cosmetic modifications to the front-end of the Licensed Product as Licensee
may request from time to time, and (ii) assistance in integrating the
Licensed Product to the operating systems of the Licensee's OEM customers.
2.2 COPYRIGHT NOTICES. Licensee shall display as part of any
financial data service utilizing the IQ Suite Software offered by Licensee
hereunder, copyright notices as may be reasonably requested by Licensor in
writing for purposes of protecting Licensor's copyrights.
2.3 OWNERSHIP. Licensor represents that it owns solely all of the
rights, title and interests in and to the IQ Suite Software free and clear of
all mortgages, liens, claims and encumbrances. Licensor has no reason to
believe that it has violated or, by reason of this Agreement, would violate
any of the patents, trademarks, service marks, trade names, copyrights, trade
secrets or other proprietary rights of any other person or entity. Licensor
is not obligated under any contract (including licenses, covenants or
commitments of any nature) or other agreement, or subject to any judgment,
decree or order of any court or administrative agency, that would interfere
with Licensee's use of the License Product.
3. LICENSE CONSIDERATION. As consideration for the License, Licensee
shall pay to Licensor the following:
3.1 INITIAL LICENSE FEE. Licensee shall pay Licensor the sum of
Thirty Thousand Dollars ($30,000.00) in consideration of Licensor's grant of
the License and provision of integration and clean-up services referred to in
Section 2.1 above, payable as follows: $10,000 upon execution of this
Agreement and $20,000 upon completion of clean-up and integration.
3.2 IQ SUITE LIGHT SOFTWARE INTEGRATION FEE. At such time as
Licensee provides written notice of its election to integrate Licensor's IQ
Suite Light Software containing the features set forth on Attachment 1 into
Licensee's financial data service, Licensee shall pay Licensor the sum of Ten
Thousand Dollars ($10,000.00) in consideration of Licensor's modification and
integration of the IQ Suite Light Software into Licensee's financial data
service.
-4-
3.3 CONTINUING ROYALTY. Licensee shall pay to Licensor a sales
royalty equal to (i) twenty percent (20%) on net sales derived by Licensee
through its commercial use of the Licensed Product to residents of the
Exclusive Territory and Nonexclusive Territory; and (ii) the greater of $5.00
per subscriber or sixty percent (60%) on net sales derived by Licensee
through its commercial use of the Licensed Product to residents of the
Excluded Territory. For purposes of this Agreement, the term "net sales"
shall mean be the gross receipts by Licensee from its provision of the
Licensed Product less all fees paid to stock exchanges and data vendors.
The sales royalty shall be payable within forty-five (45) days of the end of
each calendar quarter or portion thereof falling within the term of this
Agreement and shall be accompanied by a report describing in reasonable
detail the basis for Licensee's determination of the amount of sales royalty
payable hereunder. All payments made hereunder shall be in United States
dollars or at the option of Licensee in Swiss francs. The exchange rate shall
be established on the date the payment is made calculated using the rate set
by the Citibank of New York, New York, U.S.A.
3.3.1 CALCULATION OF ROYALTY ON OEM ACCOUNTS. For
purposes of determining the amount of sales royalty to be paid by Licensee
based on its sublicense of the Licensed Product to an OEM customer with
clients in the Excluded Territory, the following rules shall be followed: (i)
if less than ten percent (10%) of the OEM customers' clients are in the
Excluded Territory, Licensee shall pay royalties on all net sales derived
from the contract with the OEM customer pursuant to subpart (i) of Section
3.3; and (ii) in the event more than ten percent (10%) of the clients are in
the Excluded Territory, Licensee shall pay a sales royalty pursuant to
subpart (ii) of Section 3.3 on a percentage amount of net sales derived under
the contract equal to the percentage amount of the OEM customers' clients
that are located in the Excluded Territory and shall pay a sales royalty
based on subpart (i) of Section 3.3 on the balance of the net sales.
3.4 AUDIT RIGHTS. Licensee shall keep true and sufficient records
to determine sales royalty payments due hereunder. These records shall be
maintained and open to inspection at reasonable intervals by an independent
auditor at Licensor's expense, for a period of three (3) years following each
accounting report filed hereunder. Licensor shall select the independent
auditor and shall instruct each such auditor to exert his or her best efforts
to avoid disruption of Licensee's business in the conduct of the inspection.
4. CONFIDENTIAL INFORMATION.
4.1 NON-DISCLOSURE. Each party agrees not to use, disclose, sell,
license, publish, reproduce or otherwise make available the Confidential
Information of the other party except and only to the extent necessary to
perform under this Agreement. Each party agrees to secure and protect the
other party's Confidential Information in a manner consistent with the
maintenance of the other party's confidential and proprietary rights in the
information and to take appropriate action by instruction or agreement with
its employees, consultants or other agents who are permitted access to the
other party's Confidential Information to satisfy its obligations under this
Section 4.
-5-
4.2 DEFINITION. "Confidential Information" means a party's
information, not generally known by non-party personnel, used by the party
and which is proprietary to the party or the disclosure of which would be
detrimental to the party.
4.3 CONFIDENTIALITY AGREEMENT WITH EMPLOYEES. Each party shall
require each of its employees or agents who perform services for it hereunder
to sign a confidentiality agreement in a form approved by the other party.
4.4 INDEMNIFICATION. Each party agrees to indemnify and shall
hold harmless (including payment of reasonable attorneys' fees) the other
party, its corporate affiliates, and any employee or agent thereof (each of
the foregoing being hereinafter referred to individually as "Indemnified
Party") against all liability to third parties (other than liability solely
the fault of the Indemnified Party) arising from or in connection with the
parties breach of its agreement under this Section 4. Each party's
obligation to indemnify any Indemnified Party will survive the expiration or
termination of this Letter Agreement by either party for any reason.
4.5 INJUNCTIVE RELIEF. It is hereby understood and agreed that
damages shall be an inadequate remedy in the event of any party's breach of
this Section 4 and that any such breach by a party will cause the other party
great and irreparable injury and damage. Accordingly, notwithstanding the
provisions of Section 6.11, each party agrees that the other shall be
entitled, without waiving any additional rights or remedies otherwise
available to the nonbreaching party at law or in equity or by statute, to
injunctive and other equitable relief in the event of a breach or intended or
threatened breach by the breaching party.
4.6 RETURN OF MATERIALS. Upon termination of this Agreement,
Licensee shall immediately return to Licensor all materials specified in
Section 1.1.
5. TERM OF AGREEMENT AND TERMINATION.
5.1 TERM. This Agreement shall remain in full force and effect for
an initial term of two (2) years expiring on February 27, 2000, subject to
renewal by Licensee for consecutive two (2) year terms upon Licensee's
payment of a renewal fee of $100,000 prior to the expiration of the then
current term.
5.2 TERMINATION. This Agreement may be terminated by Licensor only
if:
(a) Licensee fails to pay or to give reasonable assurances it
will pay any amount due under this Agreement within 15 days of its receipt of
written notice of nonpayment from Licensor;
(b) Licensee becomes insolvent or fails to pay its debts when
due;
-6-
(c) Licensee seeks relief under any bankruptcy law or similar
law for protection of debtors, or allows a receiver or trustee to be
appointed for substantially all of its assets who is not removed within 30
days;
(d) Licensee breaches any material provision of this
Agreement (other than as specified in subparagraph (a), and does not (i)
correct the material breach within 45 days of the effective date of written
notice of the material breach from Licensor, or (ii) if such material breach
cannot reasonably be corrected within the aforesaid 45-day period, undertake
within 20 days of the effective date of such notice and continue until
completion, efforts to cure the breach in an expeditious manner; or
(e) Licensee attempts to make an assignment or other transfer
within the meaning of Section 6.10 without first obtaining Licensor's
reasonable approval.
6. MISCELLANEOUS.
6.1 NOTICE. Any notice hereunder shall be in writing (including
electronic facsimile) and shall be effective upon receipt, if personally
delivered, upon receipt at the receiving terminal, if delivered by telex or
other electronic facsimile, or on the tenth day following mailing by
registered or certified mail deposited in the United States mail and
addressed to the parties at the following addresses or at such other
addresses as shall be specified in writing in accordance with this Section.
If to Licensor: IQ Net Corporation
00000 X. Xxxxxx Xxxxx Xxxxx
Xxxx xx Xxxxxxxx, XX 00000
Attn: Xxxx Xx
If to Licensee: Virtual Telecom SA
00 xx. xxx Xxxxxxxx
Xxxxx-Xxxxx 0, Xxxxxxxxxxx
Attn: Xxxx Xxxxxxx
6.2 NO AGENT. This Agreement does not constitute Licensee as the
agent or legal representative of Licensor for any purpose whatsoever.
Licensee shall not have the right or authority to assume or to create any
obligation or responsibility, express or implied, on behalf or in the name of
Licensor or to bind Licensor in any manner.
6.3 REMEDIES. All remedies provided for in this Agreement shall be
cumulative and shall not be exclusive of one another or any other remedies
available in law or equity.
6.4 SEVERABILITY. If any clause or provision of this Agreement
should, under any applicable laws, be held to be illegal, void or
unenforceable, such clause or provision
-7-
shall be considered separately and renegotiated in good faith between the
parties, taking into consideration the spirit of this Agreement, so as to
agree on any other alternate clause or provision, it being understood that in
any case the remaining portion of this Agreement shall continue in full force
and effect.
6.5 WAIVERS. No delay or failure by either party to this Agreement
to exercise any right, power or remedy with regard to any breach or default
by the other party shall impair any right, power or remedy of the former
party, and shall not be construed to be a waiver of any breach or default of
the same or any other provision of this Agreement.
6.6 HEADINGS AND GENDER. The section headings used in this
Agreement are intended solely for convenience of reference and shall not in
any way or manner amplify, limit, modify or otherwise be used in the
interpretation of any of the provisions of this Agreement, and the masculine,
feminine or neuter gender and the singular or plural number shall be deemed
to include the others whenever the context so indicates or requires.
6.7 SUCCESSORS. The covenants, agreements, terms and conditions
contained in this Agreement shall be binding upon and inure to the benefit of
the successors, assigns, receivers and trustees of the parties hereto.
6.8 ENTIRE AGREEMENT. This Agreement sets forth the entire
agreement between the parties hereto and fully supersedes any and all prior
agreements or understandings between the parties hereto pertaining to the
subject matter hereof. No change in, modification of or addition, amendment
or supplement to this Agreement shall be valid unless set forth in writing
and signed and dated by each of the parties hereto subsequent to the
execution of this Agreement.
6.9 COUNTERPARTS. This Agreement may be executed in two
counterparts both of which shall constitute only one agreement.
6.10 ASSIGNMENTS. Licensee may not assign or transfer this
Agreement, voluntarily or involuntarily, without Licensor's prior approval
not to be unreasonably withheld or delayed. A transfer of a controlling
interest in Licensee's stock or other evidence of ownership will be deemed to
be a transfer of the Agreement requiring Licensor's approval. If Licensor
does approve, this Agreement will be binding on the authorized assignee or
transferee, but will not release Licensee from its obligations.
6.11 ARBITRATION AND ATTORNEY'S FEES. Any controversy or claim
arising out of or relating to this Agreement, or the breach thereof, shall be
settled by arbitration administered by the American Arbitration Association
in accordance with its Commercial Arbitration Rules, and judgment on the
award rendered by the arbitrator(s) may be entered in any court having
jurisdiction thereof. The arbitration shall take place in Los Angeles
County, California. The prevailing party shall be entitled to its reasonable
attorney's fees.
-8-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
"LICENSOR"
IQ NET CORPORATION,
a California corporation
By:______________________________________________
Xxxx Xx,
Chief Executive Officer
"LICENSEE"
VIRTUAL TELECOM SA,
a Swiss corporation
By:______________________________________________
Xxxx Xxxxxxx,
Chief Executive Officer
-9-
ATTACHMENT 1
The features of IQ Suite "Light" version include:
Quotes (Snap quote)
Charts - Intraday with time series 5/15/30/60 min
- Daily
- Weekly
- Monthly
- Barcharts
- Candlestick charts
Xxxxxxxxx Bands
Moving Averages 10 day & 30 day
Volume
RSI
Stockastics
Momentum
Search tool for Fundamentals
Selector/Organizer Tool for custom studies
-10-
