Exhibit 10.6
QUANTEX(R) HARDWARE AND SOFTWARE LICENSE AGREEMENT
This Hardware and Software License Agreement ("Agreement") is made and
entered into on the date set forth below by and between ITG Inc. ("ITG") and
________________________ ("Customer").
Subject to the terms of this Agreement, Customer agrees to license from
ITG, and ITG agrees to license to Customer (i) certain software which services a
workstation-based analytics, information and routing system known as QUANTEX(R)
and the user documentation describinG the operation and use of such system
(collectively, the "Software") and (ii) a workstation, terminal, PC or other
hardware and related modem (the "Hardware") for use with a phone line for
communication with ITG.
1. INSTALLATION. ITG will, free of charge, deliver and install the
Hardware and Software (the "Installation") on Customer's premises. The Hardware
and Software shall remain the property of ITG.
2. LICENSE TO HARDWARE AND SOFTWARE. Subject to the terms of this
Agreement, ITG hereby grants Customer a revocable, non-assignable,
non-transferable, nonexclusive license to use the Software in object code form
but solely for use in direct connection with ITG's brokerage services on the
Hardware. Customer will use the Software only under the terms and conditions of
this Agreement and all rights not expressly granted hereunder are reserved by
ITG. Customer shall use the Software only on the Hardware provided by ITG, and
shall not use the Software on any other computer system or make the Software
available over a network or otherwise permit use of the Software by more than
one user at a time without the prior written consent of ITG. Customer shall
grant ITG access to the Hardware during normal business hours.
3. PROHIBITED USES. CUSTOMER SHALL NOT AND SHALL NOT PERMIT ANY OTHER
PARTY other than ITG to: (a) copy, modify, alter, print, list, decompile,
disassemble or otherwise seek to reverse engineer the Software whether in whole
or in part or to attach or otherwise connect the Software to any computer
hardware other than the Hardware or other computer software without ITG's prior
written consent given in its sole discretion; (b) allow anyone other than its
employees to access or have access to the Software or the Hardware; (c) sell,
rent, lease, license, sublicense, transfer or assign the Software or permit a
timesharing, service bureau or similar arrangement using the Software; (d) write
or develop any derivative software or any other software program based on the
Software or any Proprietary Information (as defined in Section 9); (e) use the
Software or the analytical data derived from the Software (the "Information") to
execute securities trades of any kind, directly or indirectly, on any electronic
trade execution system other than the Software without the prior written consent
of ITG, given in its sole discretion, or for any purposes other than in
connection with its own trading via ITG's brokerage services; or (f) remove the
Software from the Hardware, central
processing unit or any other location of original installation without the prior
written consent of ITG in each instance; provided that Customer may move the
Software to other like hardware in the same location solely in the event of a
Hardware failure.
Customer further agrees to strictly comply with all governmental, stock
exchange and NASD laws, rules and regulations in connection with the use of the
Software, including, but not limited to, any applicable SEC or NYSE regulations.
4. TERM AND EFFECT OF TERMINATION.
(a) This Agreement will take effect immediately upon execution of this
Agreement and will remain in force until terminated in accordance with this
Agreement.
(b) ITG may terminate this license at any time and for any reason,
including, without limitation, if ITG discontinues the QuantEX(R) service, if
the Customer ceases to be a customer oF ITG, or if Customer breaches any term or
condition of this Agreement or the Addendum hereto.
(c) If ITG terminates the license for any reason, Customer shall permit
ITG to remove the Installation from the Customer's premises. Customer shall also
deliver to ITG all copies of the Software (including, without limitation, any
documentation related thereto) in the Customer's possession within ten days of
such termination. Upon termination of the license, ITG shall have no further
liability to Customer hereunder.
(d) The provisions of Sections 7, 8 and 9 shall survive the termination
of this Agreement.
5. MAINTENANCE, SOFTWARE SUPPORT AND TECHNICAL ASSISTANCE. As a service
to its customers, ITG intends to provide maintenance for the Hardware, support
of the Software and technical assistance as and when determined appropriate by
ITG. If Customer requires an increased level of maintenance, response time or
level of qualification for technical support, or additional support or
maintenance beyond the maintenance, support or technical assistance determined
appropriate by ITG, separate arrangements must be made in writing and a fee may
be charged by ITG. Absent such separate arrangements, ITG does not guarantee any
particular level of software support or technical support or time for response
by its personnel or subcontractors.
6. EXCLUSION OF WARRANTIES. While ITG has tested prior versions of the
Software, as with any state-of-the-art product, the Software and any updates
thereto may have features that do not perform according to their specifications,
or which cause loss of data, cause the Software to terminate, or cause the
Hardware or its operating system to crash (collectively, "Bugs"). Moreover, the
Software may not always be updated to
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reflect the changing financial markets, which can lead to Bugs which did not
originally exist in the Software. There can be changes in the data feeds that
could cause problems in the Software that were not originally anticipated.
Accordingly, THE HARDWARE IS PROVIDED TO THE CUSTOMER AND THE SOFTWARE IS
LICENSED TO CUSTOMER ON AN "AS IS" BASIS WITHOUT WARRANTY OF ANY KIND. ITG MAKES
NO EXPRESS OR IMPLIED WARRANTY CONCERNING THE PERFORMANCE OF THE HARDWARE OR
SOFTWARE, AND ITG EXPRESSLY EXCLUDES ANY IMPLIED WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE HARDWARE AND SOFTWARE.
NEITHER ITG NOR ANY THIRD PARTY FURNISHING INFORMATION TO ITG GUARANTEES
OR MAKES ANY REPRESENTATIONS OR WARRANTIES WHATSOEVER (A) WITH RESPECT TO THE
SEQUENCE, ACCURACY, CURRENCY OR COMPLETENESS OF ANY QUOTATIONS OR DERIVED DATA,
MARKET INFORMATION OR ANY OTHER INFORMATION FURNISHED HEREUNDER, OR (B) THAT ANY
DATA DISSEMINATED MAY BE RELIED ON FOR TRADING PURPOSES, AND CUSTOMER AGREES TO
INDEPENDENTLY DETERMINE MARKET PRICES THROUGH CUSTOMARY TRADING CHANNELS.
Notwithstanding the foregoing, if Customer suffers a loss due to a
Hardware defect or failure, to the extent such warranties are assignable, ITG
will, on request, make reasonable efforts to assign its rights against the
vendors of such Hardware to Customer.
7. LIMITATION OF DAMAGES. NEITHER ITG NOR ANY THIRD PARTY PROVIDER OF
INFORMATION OR HARDWARE SHALL IN ANY EVENT BE LIABLE FOR ANY CONSEQUENTIAL,
SPECIAL OR INDIRECT DAMAGES OR OTHER ALLEGED BREACH OF WARRANTY OR ACTION
BROUGHT IN TORT OR STRICT LIABILITY OR UNDER ANY OTHER THEORY OF LIABILITY FROM
ANY BUG, THE PERFORMANCE OF THE INSTALLATION, THE OPERATION OF THE SOFTWARE, OR
ITG'S SUPPORT PERSONNEL, INCLUDING ANY TRADING LOSSES, FOREGONE GAINS OR FAILURE
TO SUCCESSFULLY IMPLEMENT ANY INVESTMENT STRATEGY. IN ADDITION, THE AMOUNT OF
ANY DAMAGES SHALL BE LIMITED IN ALL CASES TO THE COMMISSIONS CHARGED BY ITG IN
THE TWO WEEKS PRECEDING THE DAMAGE INCURRED BY THE CUSTOMER.
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8. INDEMNITY.
(a) Customer agrees to indemnify, defend, and hold ITG harmless of and
from any demands, claims or suits by any third party (other than claims that use
of the Software infringes upon the proprietary rights of a third party) arising
out of or related to Customer's use of the Hardware, Software or any portion
thereof.
(b) ITG shall defend, or at its option settle, any suit or proceeding
brought against Customer based upon a claim that the Software constitutes an
infringement of any United States patent, trademark or copyright of any third
party existing prior to the date of this Agreement, and shall pay any final
judgment or settlement amount in any such suit or proceeding. ITG shall not be
responsible for any cost, expense or compromise incurred or made by Customer
without ITG's prior written consent. ITG shall have no obligation hereunder for
or with respect to claims, actions or demands alleging infringement which arise
by reason of the combination of the Software with any product not supplied by
ITG or use of Software in a manner other than its intended use. The foregoing
indemnities are conditioned on (i) prompt notice of any claim, action, or demand
for which indemnity is claimed, (ii) complete control of the defense and
settlement thereof by ITG, (iii) and the cooperation of Customer in such
defense.
(c) The foregoing provisions of this Section 8 state the entire
liability and obligations of ITG and the exclusive remedy of Customer with
respect to any alleged infringement of patents, copyrights, trademarks or other
intellectual property rights by the Software, Hardware or the Installation.
9. PROPRIETARY RIGHTS; CONFIDENTIALITY.
(a) Customer agrees that (i) Customer has no right, title or interest in
the Hardware or Software except as expressly set forth in this Agreement, (ii)
the Hardware, including its operating system, and the Software contain
proprietary information and trade secrets of ITG and/or third parties (the "ITG
Proprietary Information") and (iii) Customer shall not publish, disclose, or
otherwise make available any of the ITG Proprietary Information to any person
other than its employees authorized to use the ITG Proprietary Information.
Customer shall advise each authorized employee as to the confidential nature of
the ITG Proprietary Information and the restrictions placed upon its use and
disclosure, and does hereby agree to indemnify ITG against any loss, damage and
expense due to any disclosure of confidential material by any employee or agent
of Customer. Customer agrees to notify ITG immediately should it become aware of
the unauthorized possession or use of the ITG Proprietary Information or any
portion thereof by any person not authorized by this Agreement to such
possession or use. Customer agrees to promptly furnish full details of such
possession or use to ITG, and to cooperate with ITG in any litigation against
third parties deemed necessary by ITG to protect ITG's proprietary rights.
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(b) "Confidential Information" means any proprietary information,
technical data, or know-how, including, but not limited to, that which relates
to specifications, research, product plans, products, services, orders,
strategies, forecasts, forecast assumptions, methodologies, models, customers,
markets, software, developments, inventions, processes, designs, drawings,
engineering, hardware configuration information, marketing or finances,
disclosed by one party (the "Disclosing Party") to the other (the "Receiving
Party"). Confidential Information shall not include information, technical data
or know-how which: (i) was in the possession of, or demonstrably known by, the
Receiving Party prior to its receipt from the Disclosing Party; (ii) is in the
public domain at the time of disclosure, not as a result of any inaction or
action of the Receiving Party; (iii) is approved for release by the Disclosing
Party in writing or (iv) is independently developed by the Receiving Party
without reliance on or use of the Confidential Information.
(c) Each party agrees to maintain the confidentiality of the
Confidential Information using procedures no less rigorous than those used to
protect and preserve the confidentiality of its own similar proprietary
information, and shall not, directly or indirectly, (i) transfer or disclose any
Confidential Information to any third party, (ii) use any Confidential
Information other than as contemplated under this Agreement or (iii) take any
other action with respect to Confidential Information inconsistent with the
confidential and proprietary nature of such information. In the event that
either party or their respective directors, officers, employees, consultants or
agents are requested or required by legal process to disclose any of the
Confidential Information of the other party, the party required to make such
disclosure shall, to the extent permitted by law, give prompt notice so that the
other party may seek a protective order or other appropriate relief. In the
event that such protective order is not obtained, the party required to make
such disclosure shall disclose only that portion of the Confidential Information
which its counsel advises that it is legally required to disclose.
10. TIME FOR COMPLAINTS, LIMITATION OF ACTIONS. ITG can only remedy a
Bug or service problem, subject to the limitations set forth in Paragraph 5
above, if it knows of the problem, and ITG relies on its customers to promptly
notify ITG of any such problem. Accordingly, Customer agrees to promptly notify
ITG of any such problem as soon as Customer becomes aware of the same. Subject
to the limitations set forth above in Section 5, in no instance shall ITG have
any obligation with respect to any Bug or service complaint unless the Customer
has notified ITG of the Bug or service complaint in writing within 7 days of
discovery by the Customer.
11. ARBITRATION. IN CONNECTION WITH THE FOLLOWING AGREEMENT TO
ARBITRATE, CUSTOMER UNDERSTANDS THAT:
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a. ARBITRATION IS FINAL AND BINDING ON THE PARTIES;
b. THE PARTIES ARE WAIVING THEIR RIGHT TO SEEK REMEDIES IN COURT,
INCLUDING THE RIGHT TO A JURY TRIAL.
c. PRE-ARBITRATION DISCOVERY IS GENERALLY MORE LIMITED AND
DIFFERENT FROM COURT PROCEEDINGS;
d. THE ARBITRATOR'S AWARD IS NOT REQUIRED TO INCLUDE FACTUAL
FINDINGS OR LEGAL REASONING, AND ANY PARTY'S RIGHT TO APPEAL OR
TO SEEK MODIFICATION OF THE RULING BY THE ARBITRATORS IS
STRICTLY LIMITED; AND
e. THE PANEL OF ARBITRATORS WILL TYPICALLY INCLUDE A MINORITY OF
ARBITRATORS WHO WERE OR ARE AFFILIATED WITH THE SECURITIES
INDUSTRY.
ACKNOWLEDGING THE PRECEDING DISCLOSURES, CUSTOMER AGREES THAT ANY AND
ALL CONTROVERSIES WHICH MAY ARISE BETWEEN CUSTOMER AND ITG CONCERNING CUSTOMER
ACCOUNTS, ANY TRANSACTION OR THE CONSTRUCTION, PERFORMANCE OR BREACH OF THIS OR
ANY OTHER AGREEMENT BETWEEN CUSTOMER AND ITG, WHETHER ENTERED INTO ON, PRIOR OR
SUBSEQUENT TO THE DATE HEREOF, SHALL BE DETERMINED BY ARBITRATION. ANY
ARBITRATION UNDER THIS AGREEMENT SHALL BE DETERMINED BEFORE THE NASD OR AN
EXCHANGE OF WHICH ITG IS A MEMBER IN ACCORDANCE WITH THE RULES OF THAT
PARTICULAR REGULATORY AGENCY OR EXCHANGE THEN IN EFFECT. CUSTOMER MAY ELECT IN
THE FIRST INSTANCE WHETHER ARBITRATION SHALL BE BY THE NASD OR ANOTHER
APPROPRIATE SPECIFIC NATIONAL SECURITIES EXCHANGE, BUT IF CUSTOMER FAILS TO MAKE
SUCH ELECTION BY REGISTERED LETTER OR TELEGRAM WITHIN FIVE (5) DAYS AFTER
CUSTOMER RECEIVES A WRITTEN REQUEST FROM ITG THAT CUSTOMER MAKES SUCH ELECTION,
THEN ITG SHALL MAKE THE ELECTION AS TO THE ARBITRATION FORUM WHICH WILL HAVE
JURISDICTION OVER THE DISPUTE. JUDGMENT UPON ARBITRATION AWARDS MAY BE ENTERED
IN ANY COUNTY, STATE OR FEDERAL COURT, HAVING JURISDICTION.
No person shall bring a putative or certified class action to
arbitration, nor seek to enforce any pre-dispute arbitration agreement against
any person who has initiated in court a putative class action; or who is a
member of a putative class who has not opted out of the class with respect to
any claims encompassed by the putative class action until: (i) the class
certification is denied; or (ii) the class is decertified; or (iii) the customer
is excluded from the class by the court. Such forbearance to enforce an
Agreement to arbitrate shall not constitute a waiver of any rights under this
agreement except to the extent stated herein.
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12. EQUITABLE RELIEF. Notwithstanding anything contained in Paragraph
11 to the contrary, ITG shall have the right to institute judicial proceedings
against Customer or anyone acting by, through or under Customer in order to
enforce ITG's rights hereunder through specific performance, injunction or
similar equitable relief. In addition, Customer acknowledges and agrees that the
obligations contained in Paragraphs 3 and 9 hereof are of special and unique
character which give them peculiar value to ITG and ITG cannot be adequately
compensated in damages in an action at law in the event Customer breaches such
obligations. Customer therefore agrees that, in addition to any other remedies
which ITG may possess, ITG shall be entitled to specific performance, injunctive
or other equitable relief in the form of preliminary and permanent injunctions
or other appropriate or similar equitable remedies, without bond or other
security, in the event of an actual or threatened breach of said obligations by
Customer, and Customer agrees in advance to waive its rights to contest ITG's
pursuit of such remedies. Customer further agrees that the United States
District Court for the Southern District of New York, or any state court located
in New York, shall have jurisdiction to enter such specific performance,
injunctive or other equitable relief as may be requested by ITG pursuant to this
Paragraph. Customer hereby agrees to submit to, and not to contest, the
jurisdiction of such state or Federal courts in connection with any suit brought
by ITG to obtain such relief.
13. FILING OF FINANCING STATEMENTS. ITG or its affiliates may, at their
option, file a financing statement with respect to the Hardware or the Software
pursuant to the Uniform Commercial Code and, by executing this Agreement,
Customer irrevocably appoints ITG as its attorney-in-fact in making such filing.
14. ASSIGNMENT: This Agreement and the license granted hereunder are
personal in nature and may not be assigned by Customer without the prior written
consent of ITG. Any attempt to sublicense, assign or transfer this Agreement or
any of the rights, licenses, duties or obligations under this Agreement, whether
by operation of law or otherwise, shall be null and void AB INITIO.
15. MISCELLANEOUS. A waiver or breach of any provision of this
Agreement shall not be construed as a continuing waiver of other breaches of the
same or other provisions of this Agreement. There are no prior representations,
warranties or agreements between the parties not contained in this Agreement.
All headings contained herein are for directory purposes only and are not part
of this Agreement. This Agreement may be signed in any number of counterparts,
all of which taken together shall constitute one and the same document. This
Agreement shall be governed by the laws of the State of New York without giving
effect to conflict of laws principles. The whole or partial invalidity of any
provision of this Agreement shall not affect the validity of any other provision
of this Agreement.
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THIS AGREEMENT EXCLUDES ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES
OF MERCHANTABILITY OR FITNESS IN PARAGRAPH 6 ON PAGE 3.
THIS AGREEMENT CONTAINS A PREDISPUTE ARBITRATION CLAUSE IN PARAGRAPH 11
ON PAGES 5-6.
BY SIGNING THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU HAVE RECEIVED A COPY
OF IT.
ITG INC.
By:
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Name:
Title:
Date:
[Insert Customer Name]
By:
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Name:
Title:
Date:
