CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
EXHIBIT 10.4
SOFTWARE LICENSE, MAINTENANCE
AND DEVELOPMENT AGREEMENT
THIS SOFTWARE LICENSE, MAINTENANCE AND DEVELOPMENT AGREEMENT dated as of
March 12, 1997, between DOW XXXXX MARKETS, INC. f/k/a DOW XXXXX TELERATE, INC.,
a New York corporation, with an office at One World Financial Center, 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Telerate"), and OMEGA RESEARCH, INC.,
a Florida corporation, with offices at 0000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 000,
Xxxxx, Xxxxxxx 00000 ("Omega").
W I T N E S S E T H:
WHEREAS, Omega has previously developed the SuperCharts software;
WHEREAS, Telerate has requested that Omega modify the SuperCharts software
to create the Telerate Version of SuperCharts and the Telerate Version of
SuperCharts Special Edition;
WHEREAS, Telerate desires to obtain from Omega, and Omega is willing to
grant to Telerate, an exclusive license to promote, market, sell, sublicense and
distribute the Telerate Version of SuperCharts and to distribute, royalty-free
(as to both Telerate and to Telerate's subscribers), the Telerate Version of
SuperCharts Special Edition;
WHEREAS, Telerate desires that Omega not, during the term of this
Agreement, modify SuperCharts or SuperCharts Special Edition or any Real-Time
product to be compatible with the data feeds of the Telerate Competitors so as
to enable the Telerate Competitors
1
to offer a SuperCharts or other Real-Time product similar to, and competitive
with, the Telerate Version of SuperCharts;
WHEREAS, Telerate desires that Omega develop, and Omega is willing to
develop, provided that Omega and Telerate mutually agree as herein provided,
Enhancements to the Telerate Version of SuperCharts at Telerate's request from
time to time pursuant hereto; and
WHEREAS, Telerate desires that Omega provide, and Omega is willing to
provide, to Telerate, certain maintenance and support services for (including
required Modifications to) the Telerate Version of SuperCharts Products.
NOW, THEREFORE, in consideration of the promises and consideration herein
contained, the parties hereby agree as follows:
A. DEFINITIONS.
Capitalized terms used herein and not otherwise defined shall have the
meanings set forth in Exhibit A.
B. DEVELOPMENT OF THE TELERATE VERSION OF SUPERCHARTS PRODUCTS.
1. DEVELOPMENT. Omega shall, at Omega's sole cost and expense (except as
specifically otherwise provided in this Section B), use commercially reasonable
efforts to modify SuperCharts to create the Telerate Version of SuperCharts
Products, in accordance with the Specification, as promptly as is practicable.
Omega will be dedicating substantial amounts of time and effort to the
2
development of the Telerate Version of SuperCharts Products, and will be
incurring substantial costs in connection with the development of the Telerate
Version of SuperCharts Products, and Omega may be forgoing other business
opportunities as a result of the time, effort and expense that will be dedicated
by Omega to the development of the Telerate Version of SuperCharts Products.
Accordingly, although Omega will use commercially reasonable efforts to develop
the Telerate Version of SuperCharts Products as quickly as is practicable, Omega
shall, subject to the provisions of Subsection 9 below, have as much time as is
reasonably required by Omega to complete the development of the Telerate Version
of SuperCharts Products and to correct any Errors or non-conformities revealed
by the Quality Assurance Testing.
2. NOTICE OF COMPLETION. Upon completion of development of the Telerate
Version of SuperCharts Products, Omega shall promptly notify Telerate thereof.
3. TESTING. Within sixty (60) days following the service of the notice of
completion, the initial Quality Assurance Testing shall be completed and the
Material Error List (defined in Subsection 4 below), if any, shall be prepared.
Telerate and Omega shall jointly conduct all Quality Assurance Testing.
4. ACCEPTANCE. If the initial Quality Assurance Testing objectively
demonstrates that the Telerate Version of SuperCharts Products performs in
accordance with the Specification in all
3
material respects, the Telerate Version of SuperCharts Products shall be deemed
Accepted (the date of such demonstration being the Acceptance Date), and either
party shall at the request of the other execute and deliver a confirmatory
letter to the effect that the Telerate Version of SuperCharts Products has been
Accepted. If the initial Quality Assurance Testing reveals Errors which are not
Material Errors, the Telerate Version of SuperCharts Products shall nevertheless
be deemed Accepted and Omega shall commence making appropriate Modifications to
correct such Errors as required by this Agreement. If the initial Quality
Assurance Testing reveals any Material Error(s), or objectively demonstrates
that the Telerate Version of SuperCharts Products does not perform in accordance
with the Specification in all material respects, Telerate and Omega shall,
within the sixty (60) day period referred to in Subsection 3 above, jointly
prepare a written list describing all such Material Errors and failures to
conform in all material respects (the "Material Error List"). Omega shall then
commence to correct each of the items contained on the Material Error List.
Promptly following completion of such correction(s) by Omega, Omega shall send a
notice of correction to Telerate, within fifteen (15) days of which the Quality
Assurance Testing shall again be performed to the extent necessary to
demonstrate that the items on the Material Error List have been corrected in all
material respects. In connection with such second Quality Assurance
4
Testing, Telerate shall not be permitted to assert, for the purposes of
preventing the occurrence of Acceptance, any Material Errors or failures so to
conform not specified in the Material Error List, unless such additional
Material Errors or failures have resulted from the corrections effected by
Omega. If, in connection with such second Quality Assurance Testing, it is
demonstrated that all of the items on the Material Error List have been
corrected in all material respects, the Telerate Version of SuperCharts Products
shall be deemed Accepted (the date of such demonstration being the Acceptance
Date). If, in connection with such second Quality Assurance Testing, it is
demonstrated that all of the items on the Material Error List have not been
corrected in all material respects or new Material Errors or failures so to
conform have arisen as a result of the correction(s) effected by Omega, the
parties shall jointly prepare a second Material Error List within the fifteen
(15) day period specified above, and the procedures for correction and
re-testing and determining Acceptance set forth above shall continue to be
followed until Acceptance occurs. Omega shall, in each instance, subject to the
provisions of Subsection 9 below, have as much time as is reasonably necessary
to make each set of corrections required. Telerate shall have no right to make
any use whatever of the Telerate Version of SuperCharts Products prior to
Acceptance and unless Acceptance occurs, except as provided in Section C.1(b)
below.
5
5. TELERATE-PROVIDED MATERIALS. To assist Omega in its development efforts,
Telerate shall, at Telerate's sole cost and expense, provide to Omega the
Telerate-Provided Materials. The Telerate-Provided Materials shall be used
solely to develop, maintain and support the Telerate Version of SuperCharts
Products as provided in this Agreement. Omega acknowledges that any and all of
the Telerate-Provided Materials are, as between Telerate and Omega, the sole
property of Telerate and that all right, title and interest to such
Telerate-Provided Materials is and shall remain with Telerate. Omega further
acknowledges that the Telerate-Provided Materials may contain Confidential
Information (as defined in Section M) of Telerate as well as copyrights of
Telerate. Omega agrees that any Confidential Information included within the
Telerate-Provided Materials is subject to the provisions of Section M, and Omega
shall not create any lien or other encumbrance on the Telerate-Provided
Materials.
6. ASSISTANCE. Telerate shall, at Telerate's sole cost and expense, provide
all technical assistance reasonably requested by Omega in connection with its
use of the Telerate-Provided Materials. Omega shall not be deemed in default
hereunder as a result of the failure of Telerate to provide, or any inadequacies
in or of, the Telerate-Provided Materials or assistance of Telerate in the use
thereof. Telerate shall provide to Omega all Telerate-Provided Materials
necessary for Omega to commence development of
6
the Telerate Version of SuperCharts Products as soon as is reasonably possible
following the date of this Agreement. Should the Telerate-Provided Materials
prove to be inadequate, Telerate shall promptly provide to Omega, at its
reasonable request, and at Telerate's expense, such other equipment, materials
and information of or concerning Telerate as Omega reasonably requires in order
to develop the Telerate Version of SuperCharts Products.
7. EFFECT OF NON-ACCEPTANCE. In the event that the Telerate Version of
SuperCharts Products is not Accepted because of resort by Telerate to the
provisions of Subsection 9 below (or Omega notifies Telerate in writing that,
after expending the efforts described in Subsection 1 above, Omega is unable to
develop the Telerate Version of SuperCharts Products to be in conformance with
the Specification in all material respects and will therefore cease its efforts
in respect thereof): (i) neither party shall have any further obligation
whatever to the other party under this Agreement; (ii) no license of any kind
shall be granted to Telerate under this Agreement (and Omega shall retain all
rights to the Telerate Version of SuperCharts Products) and the Pre-Sales
License (defined in Section C.1(b) below) shall at such time be automatically
terminated; (iii) each party shall bear its own costs and expenses in connection
with this Agreement; and (iv) Omega shall return to Telerate, at Telerate's
expense, all of the Telerate-Provided Materials (except to the extent that such
7
Telerate-Provided Materials are being used by Omega in connection with the
TradeStation Agreement).
8. PREPARATION FOR OPERATIONS; DOCUMENTATION. As soon as is practicable
following the Acceptance Date, Telerate shall commence marketing efforts to sell
subscriptions for the Telerate Version of SuperCharts in accordance with this
Agreement. Prior to commencing such efforts, Telerate shall prepare all
necessary Documentation. Omega shall provide to Telerate, promptly following
Acceptance, on disk in Microsoft Word format, all documentation currently
available for SuperCharts, which Telerate shall then modify as appropriate to
create the Documentation. Omega will provide assistance as reasonably requested
by Telerate in connection with Telerate's preparation of the Documentation.
9. FAILURE OF ACCEPTANCE TO OCCUR BY DATE CERTAIN. Notwithstanding anything
to the contrary contained in Subsection 4 above, in the event that Omega fails
to deliver the notice of completion referred to in Subsection 2 above by June
30, 1997, and such failure is not due, to any material extent, to acts, omission
or delays on the part of Telerate, Telerate shall have the right to terminate
this Agreement at any time after June 30, 1997 and prior to July 15, 1997, by
giving Omega written notice to that effect within such period. Further,
notwithstanding anything to the contrary contained in Subsection 4 above, in the
event that Acceptance does not occur by September 30, 1997, and the failure of
8
Acceptance to occur by such date is not due, to any material extent, to acts,
omissions or delays on the part of Telerate, Telerate shall have the right to
terminate this Agreement at any time after September 30, 1997 and prior to
October 15, 1997, by giving Omega written notice to that effect within such
period.
C. LICENSE OF THE TELERATE VERSION OF SUPERCHARTS PRODUCTS.
1. EXCLUSIVE LICENSE.
(a) GRANT AND SCOPE.
(i) TELERATE VERSION OF SUPERCHARTS. Effective as of (but not
before) the Royalty Commencement Date, Omega hereby grants to Telerate and its
Affiliates an exclusive worldwide license to promote, market, sell, sublicense
and distribute, either directly and/or through the use of Independent
Distributors, the Telerate Version of SuperCharts and all related Documentation
(but not any other version of SuperCharts, other than the Telerate Version of
SuperCharts Special Edition in the manner provided in Subsection (a)(ii) below),
on a subscription or similar basis requiring periodic payment by the subscriber,
customer or end user, for installation solely in (or access solely from)
Workstations and Stand-Alone Units for use by customers such as those Telerate
currently serves. The Telerate Version of SuperCharts may be promoted and sold
by Telerate, its Affiliates and Independent Distributors as part of packages
containing other products and services of Telerate. Omega shall provide a master
set of disks of
9
the Telerate Version of SuperCharts to Telerate, and Telerate, its Affiliates
and Independent Distributors may, subject to the requirements of Section M, copy
such disks.
(ii) TELERATE VERSION OF SUPERCHARTS SPECIAL EDITION. Effective as
of (but not before) the Acceptance Date, Omega hereby grants to Telerate and its
Affiliates an exclusive worldwide license to include in (as part of) the
electronic information services or products licensed, sold and/or distributed by
Telerate, its Affiliates or its Independent Distributors to customers such as
those Telerate currently serves, the Telerate Version of SuperCharts Special
Edition (and to deliver in connection therewith all related Documentation), on a
completely royalty-free basis to the subscriber, customer and end user, for
installation solely in (or access solely from) Workstations and Stand-Alone
Units. Omega shall provide a master set of disks of the Telerate Version of
SuperCharts Special Edition to Telerate, and Telerate, its Affiliates and
Independent Distributors may, subject to the requirements of Section M, copy
such disks. Telerate has no obligation under this Agreement to include in any
Platform or Data Feed which it licenses, sells or distributes to existing
Telerate customers or to future customers the Telerate Version of SuperCharts
Special Edition; provided, however, that, effective as of the nearest
practicable date, but in all events no later than December 31, 1997, Telerate
has the affirmative
10
obligation to include in the Dow Xxxxx Workstation Platform (and any upgrades or
new releases thereof), and to distribute (and cause its Affiliates and
Independent Distributors to distribute) to all existing Telerate customers and
to future customers such as those Telerate currently serves to which the Dow
Xxxxx Workstation Platform (or any upgrade or new release) is licensed, sold or
distributed, as part thereof, the Telerate Version of SuperCharts Special
Edition. Such obligation to distribute the Telerate Version of SuperCharts
Special Edition to existing Dow Xxxxx Workstation subscribers relates only to
upgrades and new releases thereof. The Telerate Version of SuperCharts Special
Edition shall be marketed by Telerate, its Affiliates and Independent
Distributors as a free product automatically included in each subscription sold
or distributed by Telerate, its Affiliates or Independent Distributors for the
Dow Xxxxx Workstation Platform (and shall be automatically included in any
upgrades or new releases thereof distributed by Telerate or its Affiliates or
Independent Distributors, and any future Platforms with which the Telerate
Version of SuperCharts Special Edition may become compatible, if Telerate agrees
to such compatibility, as described below), and Telerate, its Affiliates and
Independent Distributors shall not charge to subscribers, customers or end
users, directly or indirectly, any amount therefor.
11
(iii) In the event that at any time or from time to time during
the term of this Agreement Telerate intends to offer a Platform, other than the
Dow Xxxxx Workstation Platform, with which the Telerate Version of SuperCharts
Special Edition is not com patible, or intends to modify or enhance the Dow
Xxxxx Workstation Platform in a manner that defeats its compatibility with the
Telerate Version of SuperCharts Special Edition, or intends to modify the Data
Feeds specified in Exhibit A-2 in a manner that defeats their compatibility
with the Telerate Version of SuperCharts Special Edition with respect to the
provision of such Data Feeds on the Dow Xxxxx Workstation Platform, Telerate
shall provide Omega with prompt written notice thereof. If Omega then notifies
Telerate in writing within ten (10) days of Omega's receipt of such notice that
Omega is interested in modifying or enhancing the Telerate Version of
SuperCharts Special Edition in order to create compatibility with such new or
modified or enhanced Platform or Data Feed(s), and Telerate agrees that such
compatibility should be achieved (provided that Telerate's agreement shall not
be required with respect to a modification of the Dow Xxxxx Workstation Platform
or Data Feeds which creates incompatibility), the parties shall cooperate to
achieve such compatibility as quickly as is practicable. Telerate shall then be
obligated to include the Telerate Version of SuperCharts Special Edition in the
Platform and with the Data Feeds with which it has been made compatible.
12
(iv) LIMITATIONS. Telerate, its Affiliates and Independent
Distributors are not licensed, authorized or permitted in any manner by this
Agreement to use, promote, market, sell, sublicense or distribute any version of
SuperCharts or SuperCharts Special Edition or any part thereof or any other
product of Omega or any part thereof other than the Telerate Version of
SuperCharts Products ("Other Products"), and will not reproduce, prepare
derivative works from, modify or display publicly any Other Products. Telerate,
its Affiliates and Independent Distributors are prohibited from using the
Telerate Version of SuperCharts Products with any data feed or Platform other
than the current data feeds and Platform specified in Exhibit A-2 to this
Agreement (as same be deemed supplemented pursuant to the later provisions of
this subsection) or, provided the necessary Enhancement is made as provided for
herein, any similar data feed or Platform of Telerate or its Affiliates
generated in the future, or any similar data feed or Platform of Telerate or its
Affiliates generated in the future with respect to which an Enhancement is not
necessary. In the event that Telerate develops (a) an additional Data Feed to be
made available as part of the Dow Xxxxx Workstation Platform (or as part of an
additional Platform with which the Telerate Version of SuperCharts becomes
compatible pursuant to these provisions) or (b) an additional Platform (such as
an Internet Platform) to be made available to subscribers either in addition to,
or in substitution
13
for, the Dow Xxxxx Workstation Platform as part of which the Data Feeds
specified in Exhibit A-2 (as same may be amended pursuant to these provisions)
are to be offered (as the case may be, a "New Dow Xxxxx Data Product"), Omega
shall use commercially reasonable efforts to modify the Telerate Version of
SuperCharts so that it is compatible with the New Dow Xxxxx Data Product. The
parties shall adhere to the provisions and procedures of Section G.1 with
respect to the request for, and development, testing and acceptance of, such
modified version of the Telerate Version of SuperCharts, except that subsection
(a) of Section G.1 shall not apply and Omega shall not be permitted to assert
that achieving such compatibility would be adverse to Omega or its business
interests. Upon acceptance by Telerate of such modified version, the New Dow
Xxxxx Data Product shall be deemed added to Exhibit A-2. In all other respects,
the scope of the license granted to Telerate and all restrictions and
prohibitions on Telerate's use of the Telerate Version of SuperCharts set forth
in this Section C or elsewhere in this Agreement shall remain unmodified and
continue to be of full force and effect. With respect to the "exclusive" nature
of such expanded license (i.e., the restrictions relating to the Telerate
Competitors set forth in Section C.3), such "exclusivity" (i.e., such
restrictions) shall apply with respect to a New Dow Xxxxx Data Product only to
the extent that the Data Feeds which constitute or are used in connection with
such New Dow Xxxxx Data Product are
14
substantially similar to the Data Feeds currently generated by Telerate as
specified in Exhibit A-2. In the event that Telerate decides to modify the Dow
Xxxxx Workstation Platform (or a Data Feed which is offered on or through such
Platform) in a manner which will render it incompatible with the Telerate
Version of SuperCharts (a "Modified Workstation") Telerate shall give Omega
prompt written notice thereof, and shall fully cooperate with Omega, at
Telerate's expense, to enable Omega to modify the Telerate Version of
SuperCharts as quickly as practicable to be compatible with the Modified
Workstation prior to its release. Telerate shall, at its expense, provide to
Omega such assistance, technical and other information, equipment and materials
as may be required or as may be reasonably requested by Omega to complete the
necessary modifications to achieve compatibility with the New Dow Xxxxx Data
Product or Modified Workstation, as the case may be. Any such information,
equipment or materials so provided shall constitute Telerate-Provided Materials
for all purposes of this Agreement relating to the ownership and use thereof.
If, despite using commercially reasonable efforts, Omega is unable to develop
the necessary modifications to make the Telerate Version of SuperCharts
compatible with the New Dow Xxxxx Data Product or the Modified Workstation, this
Agreement shall remain of full force and effect, neither party shall have any
liability to the other in respect of such failure to achieve compatibility, and
each party
15
shall remain bound to perform all of its obligations under this Agreement,
except to the extent otherwise expressly provided herein.
(b) PRE-SALES LICENSE. Effective as of the date hereof, Omega hereby
grants to Telerate a license in the Telerate Version of SuperCharts Products for
the sole purpose of testing and reviewing, and following the Acceptance Date,
advertising and promoting, the Telerate Version of SuperCharts Products to the
extent necessary and appropriate, in Telerate's reasonable judgment, to prepare
for the sale, sublicensing and distribution of the Telerate Version of
SuperCharts Products as permitted herein (the "Pre-Sales License").
2. RIGHTS RESERVED. It is understood that SuperCharts is essentially the
same product as the Telerate Version of SuperCharts Products, and that the
development of the Telerate Version of SuperCharts Products involves no more
than modifying the current version of SuperCharts to be compatible with the
current data feeds of Telerate and its Affiliates specified in Exhibit A-2 to
this Agreement. Accordingly, Omega retains, exclusively, and shall enjoy,
exclusively, all rights to promote, market, sell, modify, distribute, license
and use, and to reproduce, prepare derivative works from, modify or perform
publicly or display, SuperCharts, SuperCharts Special Edition and any other
product of Omega (whether now existing or hereafter created or developed), or
any part
16
thereof, in any manner, in any version, and for any purpose, and to enter into
agreements and arrangements relating thereto with any Person, which do not
violate the restrictions contained in Subsection 3 below.
3. NON-COMPETITION.
(a) BY OMEGA. In addition to the restrictions concerning TradeStation
contained in Section C.3(a) of the TradeStation Agreement (which are unaffected
by this Agreement), Omega agrees that it shall not enter into any agreement or
arrangement with any of the Telerate Competitors to develop and then sell during
the term of this Agreement any Real-Time product which is compatible with data
feeds of the Telerate Competitors which are substantially similar to the data
feeds currently generated by Telerate. In addition to the restrictions
concerning TradeStation contained in Section C.3(a) of the TradeStation
Agreement (which are unaffected by this Agreement), Omega further agrees that,
in the event that Omega learns the specifications of data feeds of any of the
Telerate Competitors which are substantially similar to the data feeds currently
generated by Telerate, Omega shall not develop a new version of, or modify,
SuperCharts or SuperCharts Special Edition for the purpose of making SuperCharts
or SuperCharts Special Edition compatible with such specifications and then sell
such new or modified version during the term of this
17
Agreement. While it is acknowledged that Telerate has no affirmative obligation
to market, sell and/or distribute the Telerate Version of SuperCharts Products
as Telerate's exclusive financial market charting and technical analysis
product, at such time, if any, as Telerate offers, markets, sells and/or
distributes any other financial market charting and technical analysis product
(including its own product) as an alternative charting and technical analysis
solution to its customers, or at such time, if any, as Telerate for any reason
substantially ceases to market or promote either of the Telerate Version of
SuperCharts Products (whether by reason of either of the Telerate Version of
SuperCharts Products ceasing to have compatibility with any Platform or
otherwise), the restrictions set forth above and in Subsection (b) below shall
automatically become completely null and void and of no further force or effect
and Telerate shall be deemed to have released Omega from all obligations which
restrict Omega from entering into agreements or arrangements with any third
party regarding SuperCharts or SuperCharts Special Edition.
(b) PERSONAL NON-COMPETE. Concurrently herewith, Omega shall cause each
of Xxxxxxx and Xxxxx Xxxx to execute the noncompetition agreement attached as
Exhibit B in order to evidence their respective agreements to be bound
personally by the covenants contained in Subsection 3(a). The failure of either
of Xxxxxxx or Xxxxx Xxxx to comply with such noncompetition agreement shall also
18
CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
constitute a failure by Omega to comply with the applicable provisions of
Subsection 3(a).
D. ROYALTIES.
1. ROYALTY PAYMENTS. In consideration of Omega's grant of the exclusive
license to Telerate under Section C.1(a)(i), effective as of the Royalty
Commencement Date, Telerate shall pay to Omega the following amounts:
(a) STAND-ALONE FEE. For as long as a Stand-Alone Subscriber subscribes
to, or otherwise uses, the Telerate Version of SuperCharts, Telerate shall pay
to Omega ****** per month per Stand-Alone Unit for each such Stand Alone
Subscriber (the "Stand-Alone Fee").
(b) WORKSTATION FEE. If the Telerate Version of SuperCharts is
installed or later used in any Workstation, for as long as the Workstation
Subscriber subscribes to, or otherwise uses, the Telerate Version of SuperCharts
on such Workstation(s), Telerate shall pay to Omega an amount equal to *** of
the Incremental Fee payable by such Workstation Subscriber for each Workstation,
but in no event less than ****** per month per Workstation (the "Workstation
Fee").
(c) TELERATE VERSION OF SUPERCHARTS SPECIAL EDITION. ****************
******************************************************************************
******************************************************************************
**************.
19
2. EXCEPTIONS. Omega hereby acknowledges and agrees that no Stand-Alone Fee
or Workstation Fee (collectively, the "Royalty Fee") payment is due with respect
to (i) any copy of the Telerate Version of SuperCharts used by any subscriber
subject to approval and returned to Telerate within 90 days following initial
delivery to such subscriber (except with respect to amounts billed to such
subscriber which such subscriber is obligated to pay), (ii) any copy of the
Telerate Version of SuperCharts provided to a subscriber on a free, trial basis,
up to 90 days, but only with respect to the free trial time given to such
subscriber up to 90 days, (iii) any copy remaining in the physical possession
of, and used directly by, Telerate, its Affiliates or Independent Distributors
solely for review, advertising or promotion of the Telerate Version of
SuperCharts, (iv) any copy given to a trade magazine or similar medium solely
for the purposes of review in connection with media coverage, critique or review
by such trade magazine or other medium of the Telerate Version of SuperCharts,
or (v) any copies used by Telerate or its Affiliates or Independent Distributors
solely to test, maintain or support the Telerate Version of SuperCharts. Except
as provided in this Subsection 2, and in Subsection 1 above, there shall be no
other uses by Telerate, its Affiliates or Independent Distributors of the
Telerate Version of SuperCharts, so that, except as provided in this Subsection
2, there may exist no use whatever of the Telerate
20
Version of SuperCharts for which a Royalty Fee is not payable. Telerate has
informed Omega that it is Telerate's normal business practice to impose
stringent pricing guidelines on the sale and distribution of Telerate products.
Telerate agrees to impose equally stringent pricing guidelines with respect to
the sale, sublicensing and distribution of the Telerate Version of SuperCharts
by Telerate, its Affiliates and Independent Distributors so that each user of
the Telerate Version of SuperCharts constitutes a Workstation or a Stand-Alone
Unit (as applicable) with respect to which a separate Royalty Fee is payable.
3. MINIMUM GUARANTEED ROYALTY FEES. No minimum guaranteed Royalty Fees are
due for any period. The Royalty Fees shall be calculated solely upon sales of
the Telerate Version of SuperCharts as set forth in Subsection D.1 above.
4. PAYMENTS; STATEMENTS.
(a) PAYMENTS. Royalty Fees are due monthly and are payable no later
than the 60th day following the end of the month to which they relate.
(b) STATEMENTS. Telerate shall provide to Omega the following
statements with respect to the calculation of Royalty Fees and the basis
therefor:
(i) MONTHLY STATEMENTS FOR TELERATE SALES. Within thirty (30) days
following the end of each calendar month (or part
21
thereof, as the case may be) following the Royalty Commencement Date, Telerate
shall provide to Omega a separate statement covering the subscriptions in effect
for the Telerate Version of SuperCharts during such month which have been sold
by Telerate or its Affiliates in each of Telerate's three (3) market regions
(the Americas, Europe/Gulf, and Asia/Pacific). Telerate represents and warrants
that such three regions encompass all of the regions in which subscriptions for
the Telerate Version of SuperCharts shall be sold.
(ii) MONTHLY STATEMENTS FOR INDEPENDENT DISTRIBUTOR SALES. Within
sixty (60) days following the end of each calendar month (or part thereof, as
the case may be) following the Royalty Commencement Date, Telerate shall provide
to Omega one statement covering the subscriptions in effect for the Telerate
Version of SuperCharts during such month which have been sold by all Independent
Distributors of Telerate and its Affiliates.
(iii) QUARTERLY AND ANNUAL STATEMENTS. Within sixty (60) days
following the end of each quarterly period following, and each anniversary of,
the Royalty Commencement Date, Telerate shall provide to Omega statements
similar to those described in (i) and (ii) above for the quarterly or annual (as
applicable) period covered.
(iv) INCLUDED INFORMATION. Each such monthly, quarterly and annual
statement described above shall set forth,
22
with respect to each subscription for the Telerate Version of SuperCharts, (1)
the subscriber's name, (2) the subscriber's account number, (3) the product code
(i.e., Stand-Alone Unit or Workstation), (4) the quantity of units per
subscriber (i.e., the quantity of Stand-Alone Units or Workstations, as
applicable), (5) if a Workstation Subscriber, the amount of the Incremental Fee
billed, (6) the Royalty Fee owed (the Incremental Fee and Royalty Fee columns
shall be appropriately sub-totaled and totaled in the statements), and (7) any
other information that is reasonably necessary to provide a reasonably detailed
understanding of the basis of the calculation of the Royalty Fees.
(v) FORMAT. All such statements shall be formatted in a manner
that render such statements reasonably easy to read and understand by a
reasonably sophisticated third party. In the event that Omega is unclear about
any items set forth in a statement or how such items were determined, Telerate
shall assist Omega to understand such items or how they were determined, as the
case may be.
5. RECORDS. Telerate shall maintain complete and accurate records and files
of all documents, matters and transactions which are pertinent or relate to the
Telerate Version of SuperCharts and the sale and use thereof by Telerate, its
Affiliates and Independent Distributors (with respect to Affiliates and
Independent Distributors, as more particularly described in
23
Subsection 6 below), including, without limitation, the number, at all times, of
Workstations and Stand-Alone Units in or from which the Telerate Version of
SuperCharts has been installed or is being used, and all information, records
and files necessary to verify the correctness of the calculation and payment of
the Royalty Fees and other payments due Omega hereunder (the "Records").
Telerate shall monitor and keep track of all users of the Telerate Version of
SuperCharts, including, without limitation, the number of Workstations and
Stand-Alone Units at all times in or from which the Telerate Version of
SuperCharts has been installed or is being used, so as to be capable at all
times of computing and paying the appropriate Royalty Fees and other amounts due
hereunder. Each Record shall be maintained and kept by Telerate for a period of
three (3) years following the creation thereof. Omega shall have the right, upon
reasonable prior written notice, at its expense, to inspect and conduct or cause
to be conducted audits of the Records during Telerate's normal business hours
once per year. Telerate shall fully cooperate in all such inspections and
audits. Omega has informed Telerate that it intends to conduct a full audit of
the Records annually. If any inspection or audit of the Records discloses an
underpayment to Omega of five percent (5%) or more of the amount due, Telerate
shall, promptly upon the demand of Omega, reimburse to Omega the reasonable cost
of the inspection or audit. Once a particular period has been audited by Omega,
Omega shall not
24
again have the right to conduct an audit with respect to such period. All
information obtained by Omega and its accountants from any such inspection or
audit will be treated as Confidential Information as specified in this Agreement
and will be used solely for the purpose of verifying the accuracy of the
computation of the amounts due Omega hereunder and in connection with resolving
any dispute arising in connection therewith.
6. AFFILIATES AND INDEPENDENT DISTRIBUTORS. For all purposes of this
Agreement, including, without limitation, this Section D, it is understood that
Telerate's Affiliates' and Independent Distributors' sale of subscriptions for,
or other sublicensing of, the Telerate Version of SuperCharts to subscribers,
customers and other end users as permitted hereunder constitute the basis upon
which the Royalty Fees are computed and paid, as if Telerate were directly
entering into such subscription or sublicensing arrangements with customers,
subscribers or other end users of the Telerate Version of SuperCharts, and that
such Royalty Fees shall not be based on the consideration, if any, received by
Telerate from its Affiliates and Independent Distributors for obtaining from
Telerate the right to enter into such subscription or sublicensing arrangements
with customers, subscribers or end users. Telerate shall take such steps as are
necessary to ensure that all transactions made by its Affiliates and Independent
Distributors pertaining to this Agreement are
25
included in the Records, and within all statements required to be rendered by
Telerate under this Agreement, and that all of such Records are capable of being
audited at Telerate's New Jersey offices upon the exercise by Omega of its
inspection and audit rights hereunder.
E. MARKETING EFFORTS.
1. EFFORTS.
(a) TELERATE OBLIGATION. Commencing with the Acceptance Date, Telerate
shall use commercially reasonable efforts to promote, market, sell and/or
sublicense the Telerate Version of SuperCharts Products throughout the world;
provided, however, that, except for Telerate's obligations under Subsection 3
below and its obligations with respect to the distribution of the Telerate
Version of SuperCharts Special Edition pursuant to Section C, Telerate shall
have complete control over, and discretion in determining, the manner of
promoting, marketing, selling and/or sublicensing the Telerate Version of
SuperCharts Products.
(b) REFERRAL OF INQUIRIES. In the event that any Person contacts Omega
to subscribe for the Telerate Version of SuperCharts or to obtain information
about the Telerate Version of SuperCharts, Omega shall refer such caller to
Telerate. Omega shall have no authority to bind Telerate with respect to any
such Person or any other third party.
26
2. COMPETITION. Subject to the provisions of Section I and Section M,
nothing contained herein shall impair or restrict the right of Telerate, now or
in the future, to develop, procure or market products or services which may be
competitive with the Telerate Version of SuperCharts Products or with any other
product or service offered by Omega, nor obligate Telerate to obtain any other
products or services which may currently or subsequently be offered by Omega,
nor prevent Telerate from entering into similar agreements with other companies,
including those in the same industry as Omega, subject, however, to the
consequences described in Section C.3(a) if Telerate does so.
3. TRADEMARKS. Telerate shall market the Telerate Version of SuperCharts
Products solely under the trademarks Dow Xxxxx SuperChartsTM and Dow Xxxxx
SuperCharts SETM,respectively. Omega shall, for a ten dollar, one-time royalty,
license the use of such trademarks for such purpose to Telerate for the term of
this Agreement pursuant to the Trademark License attached as Exhibit E.
F. MAINTENANCE AND SUPPORT SERVICES FOR THE TELERATE VERSION OF SUPERCHARTS
PRODUCTS.
1. NOTIFICATION. During the term of this Agreement, each of Telerate and
Omega agrees to promptly notify the other in writing upon the discovery after
Acceptance of any Error (including a Material Error) which is capable of being
consistently duplicated.
27
2. ERRORS. During the term of this Agreement, upon the discovery of a
Material Error, Omega shall, at no additional charge to Telerate, use
commercially reasonable efforts to correct such Material Error as promptly as
practicable but Omega shall in any event commence to address the problem within
two business days after receiving written notice from Telerate of the discovery
of a Material Error. During the term of this Agreement, upon the occurrence of
any Error other than a Material Error, Omega shall
(a) commence to address the problem within five (5) business days after
receiving notice from Telerate of such Error, and
(b) use commercially reasonable efforts to correct such Error as
promptly as practicable in accordance with industry standards. The parties
acknowledge that there are certain Errors which are so insignificant that they
are not addressed until the next version of the subject program is released
("Insignificant Errors"). With respect to such Insignificant Errors, Omega will,
during the term of this Agreement, use commercially reasonable efforts to make
the required Modification at such time as Omega works on the Enhancement that
will result in the next version, if any, of the Telerate Version of SuperCharts
or the Telerate Version of SuperCharts Special Edition (as the case may be)
being released.
The provisions of (a) and (b) above (together with access to the Source
Code to the extent permitted under the escrow
28
agreement referred to in Section J) shall constitute Telerate's sole remedy in
the event of an Error which is not a Material Error. In the event that Omega
notifies Telerate that it is unable to correct a Material Error, Telerate's sole
remedy shall be to correct such Material Error and to recover from Omega
Telerate's reasonable costs to correct such Material Error, or, if Telerate
cannot correct the Material Error, Telerate's sole remedy shall be to terminate
this Agreement. Omega shall not be responsible for any Errors or other problems
to the extent caused by Telerate's maintenance and support of the Telerate
Version of SuperCharts Products.
3. TEMPORARY FIX. Upon the occurrence of an Error (including a Material
Error), Omega shall, if full correction of the Error will take an extended
period of time, and if requested by Telerate, and if technologically feasible,
provide a "temporary fix" to alleviate the adverse consequences of the Error to
the extent practicable pending development of the Modification required fully to
correct the Error.
4. PRIMARY SUPPORT. Telerate, and not Omega, shall be responsible for
providing primary support with respect to the Telerate Version of SuperCharts
Products to Telerate's customers. Telerate shall use commercially reasonable
efforts to support and maintain the Telerate Version of SuperCharts Products in
a good and professional manner in accordance with industry standards.
29
However, in order to assist Telerate from time to time in providing such support
during the term of this Agreement, Omega shall (a) make available, by telephone
and electronic mail, personnel expertly trained with respect to the Telerate
Version of SuperCharts Products to provide Telerate with remote diagnostic
support and maintenance services from Omega's offices during normal business
hours and (b) outside of normal business hours, by means of remote diagnostic
support and maintenance services provided from Omega's offices, assist Telerate
in providing emergency customer support services on an as-needed basis by making
a telephone number available to Telerate, which Telerate may call after-hours,
following which a representative of Omega will return the call within a
reasonable time. Omega shall, in accordance with industry standards, use
commercially reasonable efforts to maintain appropriate personnel and other
resources sufficient to perform its maintenance and support obligations under
this Agreement. The parties understand that Omega's support obligations are
intended to be secondary to Telerate's, and that Telerate's requests for support
shall be made only after Telerate has exhausted all reasonably available
internal means of solving the problem in question, including consultation with
Telerate's head technicians with respect thereto. It is further agreed that only
head technicians or regional managers of Telerate may contact Omega for
assistance.
30
G. TELERATE-REQUESTED ENHANCEMENTS.
1. CREATION.
Telerate and Omega anticipate that Telerate may desire that Omega
perform Enhancements from time to time during the term of this Agreement
(including, but not necessarily limited to, an Enhancement to make the Telerate
Version of SuperCharts Products compatible with the data feed currently being
used to transmit Telerate financial market data on which the existing Telerate
software is used in Stand-Alone Units). In the event that Telerate desires that
an Enhancement be made, Telerate shall provide Omega with written notice to that
effect, which shall include, in as much detail as is reasonably possible, the
functional specification of the Enhancement requested. Promptly after receipt of
such notice, Omega and Telerate shall endeavor, in good faith, (a) to determine
whether the requested Enhancement will add value to the Telerate Version of
SuperCharts, and, if so, whether (i) such Enhancement would have an adverse
effect on Telerate's sales of the Telerate Version of TradeStation pursuant to
the TradeStation Agreement, or (ii) development of the Enhancement is
justifiable and feasible in light of all applicable circumstances, including the
cost to Omega of developing the Enhancement in relation to the benefit Omega
would obtain under this Agreement as a result thereof, and (b) assuming that the
Enhancement will be valuable, justifiable, non-adverse and feasible as
aforesaid, (i) to mutually agree upon
31
complete specifications for the Enhancement, (ii) to mutually agree upon
time-frames or parameters for the development and completion of the Enhancement,
and (iii) to mutually agree upon the testing procedures that will be used to
test the Enhancement for acceptance purposes. An Enhancement requested by
Telerate which meets all of the foregoing requirements shall be developed by
Omega free of charge to Telerate. Notwithstanding any of the foregoing to the
contrary, (x) Omega shall not be required to develop any Enhancement which, in
Omega's good faith judgment, would have an adverse effect or impact on Omega or
its business interests, and (y) Omega shall have sole and absolute discretion to
determine whether an Enhancement should be made to the Telerate Version of
SuperCharts Special Edition. Provided that all of the foregoing is agreed upon
in a writing signed by the parties, Omega shall use commercially reasonable
efforts to develop and complete the Enhancement in accordance with the agreement
of the parties. In the event that any Enhancement developed by Omega does not
pass the acceptance tests thereof mutually agreed upon, and cannot be corrected
by Omega within a reasonable time thereafter so as to be capable of passing such
tests, neither party shall have any liability of any kind to the other in
respect of such failure (unless a party has acted in bad faith in connection
therewith), and Telerate shall have no right to make any use of, or to sell,
32
sublicense or otherwise distribute or incorporate, such Enhancement.
2. INCORPORATION. In the event that Omega performs Enhancements, such
Enhancements shall be the property solely of Omega and shall be subject to all
of the provisions contained herein relating to the Telerate Version of
SuperCharts and/or the Telerate Version of SuperCharts Special Edition (as the
case may be) generally.
H. OMEGA GENERATED ENHANCEMENTS.
During the term of this Agreement, Omega shall, at its sole cost and
expense (subject to the next sentence), and as promptly as is practicable,
modify the Telerate Version of SuperCharts (but not the Telerate Version of
SuperCharts Special Edition) to make the Telerate Version of SuperCharts
consistent with any enhancements, improvements or upgrades made to the
SuperCharts software generally (other than system testing, automation and
tracking features, which are excluded from the Telerate Version of SuperCharts).
To the extent that it is necessary for Telerate to provide to Omega equipment,
materials or information of or concerning Telerate in order to enable Omega so
to modify the Telerate Version of SuperCharts, Telerate shall provide same at
its expense and shall, at its expense, provide to Omega such technical
assistance in connection therewith as Omega may reasonably require.
33
I. TITLE TO TELERATE VERSION OF SUPERCHARTS PRODUCTS.
Telerate acknowledges and agrees that, as between Telerate and Omega, Omega
is and shall remain the sole and exclusive owner of all rights, including
copyright, in SuperCharts, SuperCharts Special Edition and the Telerate Version
of SuperCharts Products, and all Enhancements thereof, including, but not
limited to, all rights in and to the "Easy Language" portion of SuperCharts,
SuperCharts Special Edition and the Telerate Version of SuperCharts Products,
and that the same is or will be protected by applicable copyright laws. Telerate
shall display appropriate copyright notices on all packaging, documentation,
advertising, and promotional materials containing or describing the Telerate
Version of SuperCharts and/or the Telerate Version of SuperCharts Special
Edition to the effect that the Telerate Version of SuperCharts and the Telerate
Version of SuperCharts Special Edition, and any Enhancements thereto, have been
created and developed by Omega. Telerate shall display appropriate registered
trademark notices on all uses of the trademark "SuperCharts," together with a
statement that SuperCharts is a registered trademark of Omega Research, Inc. In
addition, the sign-on screen message and the "About" box of each of the Telerate
Version of SuperCharts Products programs, as well as all Documentation, shall
conspicuously display the appropriate copyright and registered trademark notices
and a legend to the effect that such Telerate Version of SuperCharts Products
and any
34
Enhancements have been created and developed by Omega and that SuperCharts is a
registered trademark of Omega Research, Inc.
J. ESCROW ARRANGEMENT.
Within sixty (60) days of execution of this Agreement, the parties will
enter into an escrow agreement, at Telerate's expense, satisfactory in form and
substance to both parties, with an independent third-party escrow agent (whose
fees and expenses will be paid by Telerate) mutually acceptable to the parties,
pursuant to which Omega shall deposit, and the escrow agent shall accept deposit
of, the Source Code for the Telerate Version of SuperCharts and the Telerate
Version of SuperCharts Special Edition. The escrow agreement shall provide
Telerate with the right to inspect and verify the items deposited by Omega with
the escrow agent, as more fully explained below. Telerate shall not copy any of
the items deposited by Omega with the escrow agent while the items are deposited
with the escrow agent, as more fully explained below. The escrow agreement shall
also require that Omega update the escrow deposit within ten (10) days of the
completion and acceptance of any Enhancement to the Telerate Version of
SuperCharts Products. The escrow agreement shall also contain the following
provisions: (1) that the Source Code, and any modifications thereto, be provided
to the escrow agent on disk; (2) that upon the initial deposit of, and after
each modification to, the Source Code, one representative of Telerate will be
permitted,
35
under the supervision of Omega and at Omega's premises, to compile the Source
Code in order to enable such representative to generate an executable program
for each of the Telerate Version of SuperCharts and the Telerate Version of
SuperCharts Special Edition (and such representative can take back each such
executable program to Telerate for the sole purpose of verifying that each
Source Code is complete); (3) that in no event will such representative be
permitted to take any notes, or to view any screen longer than is absolutely
necessary to compile an executable program, or to remove or take with him or her
any materials other than the compiled executable program; (4) that Telerate
shall have access to the escrow and the Source Code only in the event that (i)
an Error (other than an Insignificant Error) has occurred which Omega has
notified Telerate Omega is unable to correct, or an Event of Default has
occurred with respect to Omega based upon its failure to correct an Error (other
than an Insignificant Error), or (ii) Omega is in default under this Agreement
pursuant to Section N.2.(a)(iv) or (v), and Telerate has not terminated this
Agreement as a result thereof and Omega's trustee in bankruptcy has rejected
this Agreement or has refused to assume it; (5) that in order to obtain access
to the escrow and the Source Code, Telerate must deliver to the escrow agent and
to Omega an affidavit, made by a duly authorized officer on behalf of Telerate,
to the effect that one of the conditions in subparagraph (4) above has occurred,
36
following which Omega shall have the right, exercisable by similar affidavit
delivered to the escrow agent and Telerate, to contest Telerate's right to have
access to the Source Code, in which event the issue shall be resolved in
accordance with a mutually agreed-upon, expeditious dispute-resolution mechanism
set forth in the escrow agreement;(6) that, in the event Telerate gains access
to the Source Code, it may use the Source Code for the sole purpose of
correcting Errors (which, at Omega's election, shall be performed at Omega's
premises under Omega's supervision) or, in the event of an Event of Default with
respect to Omega pursuant to Section N.2.(a)(iv) or (v) (provided that Telerate
does not terminate this Agreement as a result thereof and Omega's trustee in
bankruptcy has rejected this Agreement or has refused to assume it), to correct
Errors and to otherwise maintain and support the Telerate Version of SuperCharts
Products for the term of this Agreement (and, in the event that Omega is in
liquidation or has ceased operations, to make Enhancements during the term of
this Agreement, any such Enhancements to be the property solely of Omega); and
(7) that, except as specifically provided in Section P.4, the escrow agreement
shall automatically terminate, and Telerate shall have no further right to gain
access to or use the Source Code, upon the expiration or any other termination
of this Agreement. As long as Omega executes the escrow agreement, the failure
of the escrow agreement to become effective (by reason of Telerate's or the
37
escrow agent's refusal to sign it or other cause beyond Omega's control) shall
not affect, diminish or impair any right or obligation of either party under
this Agreement. The provisions of this Section J contain the only circumstances
under which Omega shall ever be obligated to disclose the Source Code to
Telerate. The form of escrow agreement agreed upon by the parties is attached as
Exhibit C. The parties agree that SunTrust Bank/Miami, N.A., 000 Xxxxxxxx
Xxxxxx, Xxxxx, Xxxxxxx, is an acceptable escrow agent.
K. REPRESENTATIONS AND WARRANTIES.
1. GENERAL. Each party hereby represents, warrants and covenants that (a)
it has the unrestricted right to enter into and perform this Agreement, (b) it
is a corporation duly organized, validly existing and in good standing under the
laws of its jurisdiction of incorporation and has the power to own its assets
and properties and to carry on its business as now being conducted and (c) this
Agreement (w) has been duly authorized, executed and delivered, (x) constitutes
the valid and binding obligation of such party enforceable in accordance with
its terms, (y) will not violate, to such party's actual knowledge, any law,
statute, rule or regulation, or court or administrative agency judgment or
decree, and (z) will not conflict with or result in any breach or default of any
of the terms and conditions of any document or any agreement to which such party
is a party.
38
2. INTELLECTUAL PROPERTY.
(a) REPRESENTATION AND WARRANTY. Omega hereby represents and warrants
that there are no pending or threatened actions or litigation against Omega
regarding intellectual property infringement or breach of license or maintenance
agreements which would materially and adversely affect Telerate's use of the
Telerate Version of SuperCharts Products, and that Omega has received no written
notice, and is not otherwise aware, of any claim or potential claim against it
by any person with respect to the ownership or use of any intellectual property
relating to SuperCharts.
(b) EXCLUSIVE REMEDY FOR BREACH. In the event that any of the
representations and warranties of Omega contained in Subsection 1 or 2(a) above
are false, and a third party brings suit against Telerate during the term of
this Agreement asserting therein rights in the Telerate Version of SuperCharts
Products or damages or other relief as a result of an alleged infringing use by
Telerate of the Telerate Version of SuperCharts Products ("Indemnifiable
Claims"), Omega will, subject to the provisions and limitations set forth below,
assume at its expense the defense of such suit using counsel reasonably
acceptable to Telerate, and indemnify Telerate against any money damages or
costs awarded in such suit which are based upon the Indemnifiable Claims.
Omega's obligations under this Subsection (b) shall be excused if Telerate
39
fails to provide to Omega prompt notice of any Indemnifiable Claim asserted or
threatened against Telerate, but only to the extent that the delay in giving
notice is prejudicial to Omega or otherwise prejudices Omega's ability to
answer, defend against or settle such Indemnifiable Claim. Omega shall have
exclusive control of the defense of such lawsuit and all negotiations relating
to its settlement, and Telerate shall assist Omega at Omega's request in all
necessary respects in connection with the defense and/or settlement of the
lawsuit. However, Omega's total liability to incur out-of-pocket costs in the
defense of any such suit or suits and to pay damages or costs awarded in or
resulting from any such suit or suits (whether by judgment, settlement, or
otherwise) shall be limited to the amount theretofore paid to Omega by Telerate
under this Agreement, and Telerate shall advance to Omega any amounts required
to be expended by Omega in excess of such limit. Amounts so advanced shall be
credited to future payments due from Telerate to Omega under this Agreement. The
foregoing provisions of this Subsection (b) state the entire liability of Omega
to Telerate in connection with any third-party lawsuit brought against Telerate
for which indemnity pursuant to this Subsection (b) is available.
3. DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED IN THIS SECTION
K, OMEGA EXPRESSLY DISCLAIMS ANY WARRANTIES, EXPRESS OR IMPLIED, EITHER IN FACT
OR BY OPERATION OF LAW,
40
STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION MERCHANTABILITY AND FITNESS
FOR PARTICULAR PURPOSE OR USE, AND MAKES NO REPRESENTATIONS OR WARRANTIES
REGARDING SUPERCHARTS, SUPERCHARTS SPECIAL EDITION OR THE TELERATE VERSION OF
SUPERCHARTS PRODUCTS, OR THE COPYRIGHTS OF OMEGA THEREIN, INCLUDING, WITHOUT
LIMITATION, THEIR SCOPE OR VALIDITY, OR ANY SYSTEMS, PRODUCTS OR SERVICES BASED
THEREON OR MAKING USE THEREOF, INCLUDING, WITHOUT LIMITATION, NON-INFRINGEMENT
OF RIGHTS OF THIRD PARTIES.
4. PERFORMANCE. Omega warrants and covenants that (a) the Telerate Version
of SuperCharts Products (i) shall be free from any material defects in material
and workmanship, and (ii) shall perform in accordance with the Specification in
all material respects and (b) the services to be provided to Telerate as
specified herein shall be performed in a good and professional manner in
accordance with industry standards.
L. LIMITATION OF LIABILITY.
1. CERTAIN DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN
THIS AGREEMENT, IN NO EVENT SHALL OMEGA BE LIABLE TO TELERATE, REGARDLESS OF THE
TYPE OR NATURE OF THE BREACH OR OTHER ACTION OR OMISSION ASSERTED OR PROVED, FOR
SPECIAL, CONSEQUENTIAL, INDIRECT OR INCIDENTAL DAMAGES OF ANY KIND, INCLUDING,
WITHOUT LIMITATION, LOSS OF INCOME, PROFITS, REVENUE, MARKET SHARE OR THE LIKE.
FURTHER, IN NO EVENT SHALL TELERATE BE ENTITLED TO ASSERT AGAINST OR RECOVER
FROM OMEGA ANY DAMAGES OTHER
41
THAN ITS DIRECT, ACTUAL, OUT-OF-POCKET DAMAGES WHICH, IN ALL EVENTS, SHALL BE
CAPPED AT THE AMOUNT OF THE TOTAL PAYMENTS ACTUALLY RECEIVED BY OMEGA AS OF SUCH
DATE PURSUANT TO THIS AGREEMENT. NOTWITHSTANDING ANYTHING TO THE CONTRARY
CONTAINED IN THIS AGREEMENT, BUT EXCEPT AS SET FORTH IN THE LAST SENTENCE OF
THIS SECTION L.1, IN NO EVENT SHALL TELERATE BE LIABLE TO OMEGA, REGARDLESS OF
THE TYPE OR NATURE OF THE BREACH OR OTHER ACTION OR OMISSION ASSERTED OR PROVED,
FOR SPECIAL, CONSEQUENTIAL, INDIRECT OR INCIDENTAL DAMAGES OF ANY KIND,
INCLUDING, WITHOUT LIMITATION, LOSS OF INCOME, PROFITS, REVENUE, MARKET SHARE OR
THE LIKE. FURTHER, IN NO EVENT SHALL OMEGA BE ENTITLED TO ASSERT AGAINST OR
RECOVER FROM TELERATE ANY DAMAGES OTHER THAN ITS DIRECT, ACTUAL, OUT-OF-POCKET
DAMAGES (WHICH, IT IS AGREED, WOULD INCLUDE THE RIGHT TO RECOVER FROM TELERATE
ANY AMOUNTS DUE TO BE PAID OMEGA BY TELERATE PURSUANT TO SECTION D OF THIS
AGREEMENT WHICH ARE NOT PAID BY TELERATE, INCLUDING APPLICABLE STATUTORY,
PRE-JUDGMENT AND POST-JUDGMENT INTEREST THEREON). THE FOREGOING LIMITATIONS ON
THE LIABILITY OF TELERATE SHALL NOT APPLY IN ANY RESPECT TO ANY CLAIM OF OMEGA
BASED UPON (a) TELERATE, ITS AFFILIATES OR INDEPENDENT DISTRIBUTORS ENGAGING IN
ACTIVITIES WHICH EXCEED THE SCOPE OF THE LICENSES GRANTED TO TELERATE IN SECTION
C, (b) A BREACH OR VIOLATION BY TELERATE, ITS AFFILIATES OR INDEPENDENT
DISTRIBUTORS OF ANY OF THE PROVISIONS OF SECTION I OR SECTION M, OR (c) ANY
MISUSE, IMPROPER OR UNLAWFUL USE OR MISAPPROPRIATION OR
42
INFRINGEMENT BY TELERATE, ITS AFFILIATES OR INDEPENDENT DISTRIBUTORS OF ANY
TRADEMARK, SERVICE XXXX, COPYRIGHT, TRADE SECRET, OTHER INTELLECTUAL PROPERTY OR
CONFIDENTIAL OR PROPRIETARYINFORMATION OF OMEGA.
2. USE. If a temporary restraining order, preliminary injunction or final
injunction is obtained against Telerate's (or Telerate's customers') use of the
Telerate Version of SuperCharts Products due to an infringement of a patent or
copyright, or an appropriation of a trade secret, Omega will promptly, at its
option and sole expense, either (a) procure for Telerate (and Telerate's
customers) the right to continue using the Telerate Version of SuperCharts
Products in its then current phase of development, or (b) replace or modify the
Telerate Version of SuperCharts Products in its then current phase so that it no
longer infringes such patent or copyright or constitutes an appropriation of a
trade secret; or if Omega is unable to promptly effect (a) or (b) above, then,
(c), as Telerate's sole and exclusive remedy, accept Telerate's return of the
Telerate Version of SuperCharts Products (in which event this Agreement shall be
deemed terminated) and refund to Telerate, subject to the provisions of
Subsection 1 above, the full amount of Telerate's actual damages sustained as a
result of the infringement or appropriation up to the total amount paid by
Telerate to Omega to date under this Agreement.
43
M. CONFIDENTIALITY; TRADE SECRETS.
The parties recognize and acknowledge that, in connection with this
Agreement, they may disclose to each other confidential or proprietary
information (the "Confidential Information"). "Confidential Information" shall
mean the terms of this Agreement (as to both parties), the Telerate-Provided
Materials, the Records and the statements to be rendered by Telerate to Omega
pursuant to this Agreement (as to Telerate), the Source Code, the Object Code,
and the Executable Code for SuperCharts, SuperCharts Special Edition and the
Telerate Version of SuperCharts Products (as to Omega), as well as any other
information or data received by either party from the other which has been
marked "Proprietary and Confidential" by the disclosing party, or in respect of
which the receiving party has received from the disclosing party specific
written notice of its proprietary and confidential nature. Each party agrees to
use the Confidential Information solely as contemplated under this Agreement and
to hold in confidence and to protect all Confidential Information against
disclosure to unauthorized third parties by using the same standard of care as
it applies to its own confidential or proprietary information. All materials and
documents supplied hereunder shall be and remain the property of the disclosing
party, and the receiving party agrees to limit dissemination of, and access to,
such materials and documents to its personnel having a need to know and agrees
to return or
44
destroy all such materials and documents (including purging any electronically
stored records) upon request of the disclosing party. The above restrictions
shall not apply to information in the public domain or generally known or which
the receiving party can demonstrate has been independently developed by it prior
to disclosure or was otherwise known to the receiving party prior to disclosure
or was rightfully acquired by the receiving party from third parties, or which
is approved for release by the written authorization of the disclosing party, or
which is required to be disclosed by law or regulation (including in connection
with any securities filings, reports or prospectuses made or distributed or
required to be made or distributed by either party). In addition to and without
limitation of the foregoing, (a) Telerate acknowledges and agrees that the
Source Code, Object Code and Executable Code for SuperCharts, SuperCharts
Special Edition and the Telerate Version of SuperCharts Products (as same may be
enhanced by Omega) contain and will contain trade secrets of Omega, and Telerate
further agrees that it shall not (i) in any way attempt to discern Omega's trade
secrets or proprietary information relating to SuperCharts, SuperCharts Special
Edition or the Telerate Version of SuperCharts Products (as same may be
enhanced), including without limitation the Source Codes, Object Codes and
Executable Codes therefor (unless such discernment is not a violation of this
Agreement or the escrow agreement referred to in
45
Section J or a result of disclosures made by Omega to Telerate), or (ii)
disassemble or decompile the subject software, or perform any like operation
commonly known as "reverse engineering" with respect thereto, and (b) Omega
acknowledges and agrees that the current Telerate twin environment API included
in the Telerate-Provided Materials, as same may be modified, shall not be used
by Omega for any purpose other than in connection with the license granted
hereunder; provided, however, that the foregoing prohibition shall not apply to
the current Telerate twin environment API, as same may be modified, if, but only
if, Telerate publishes such current or modified Telerate twin environment API to
the information industry in a general announcement for the purpose of making
such API, as same may have been modified, freely available without charge by
Telerate and creating an "open system" by which computer software publishers may
deal directly with Telerate subscribers whose devices employ such API, as same
may have been modified. Omega acknowledges that Telerate may, during and
following the term of this Agreement, subject, however, to the consequences set
forth in Section C.3(a) to the extent applicable, engage in active efforts to
develop a Real-Time product which is compatible with its data feeds that
performs many of the same, or similar, functions as those performed by the
Telerate Version of SuperCharts Products (as same may be enhanced pursuant to
this Agreement). Omega recognizes and agrees that the general functionality
(i.e., system testing,
46
system automation, indicators, alerts on indicators, system optimization,
generation of commentary on the interpretation of an indicator, and color coding
of bar charts based upon user-defined criteria, use or display of bar charts,
candlestick charts, point and figure charts, market profiles, multiple bar
charts on a screen, bar charts and studies on a screen, sizeable chart windows,
printing functions such as chart printing (WYSIWYG), data printing (tabular
printing), automated printing and full historical printing (all data in
history), and functions and displays such as password-based security,
password-based permissioning, display of quotations and news with charts,
automatic display of system alerts and alarms, storage of multiple pages (trade
plans) in memory (RAM or on disk), retrieval of historical data from offsite
data source (manual and automatic), saving charts and data to disk, sharing
charts and data over network, user editing of historical data and user-defined
data items) performed and to be performed by SuperCharts, SuperCharts Special
Edition and/or the Telerate Version of SuperCharts Products, respectively, as
between Omega and Telerate, do not constitute trade secrets of Omega. However,
the parties acknowledge that the particular ways in which SuperCharts,
SuperCharts Special Edition and the Telerate Version of SuperCharts Products
implement, present and offer (or will implement, present and offer, as the case
may be) such functionality may contain protectable copyrights and trade secrets
of Omega.
00
X. XXXX; EVENTS OF DEFAULT; AND TERMINATION.
1. TERM. The term of this Agreement shall commence on the date hereof and,
provided that Acceptance occurs, shall, subject to each of the early termination
events specified in this Agreement, terminate on January 12, 2003.
2. EVENTS OF DEFAULT.
(a) EVENTS. Any one or more of the following shall constitute an Event
of Default hereunder:
(i) TELERATE MONETARY BREACH. Telerate fails to pay, when due, any
amount required to be paid by it under Section D of this Agreement, if such
payment is not made within thirty (30) days after Omega gives Telerate notice of
such failure to pay.
(ii) OTHER BREACHES. (A) Omega fails materially (it being
understood that if the agreement or obligation in question is already subject to
a materiality standard, the use of the word material here shall not further
alter such standard) to comply with or perform any agreement or obligation
hereunder (or either Xxxxxxx Xxxx or Xxxxx Xxxx, in cases where he is not acting
on behalf of Omega, takes any action or enters into any transaction which would,
if done by or on behalf of Omega, constitute a material failure to comply with
or perform an agreement or obligation of Omega hereunder) if such failure is not
remedied on or before the thirtieth day after notice of such failure; provided,
however, that, in the event such failure cannot, through the use of
48
commercially reasonable efforts, reasonably be remedied within such 30-day
period, if Omega commences to remedy the failure within said 30-day period and
diligently proceeds with such remedy until it is completed, no Event of Default
shall be deemed to have occurred, or (B) Telerate fails materially (it being
understood that if the obligation or agreement in question is already subject to
a materiality standard, the use of the word material here shall not further
alter such standard) to comply with or perform any agreement or obligation
hereunder (other than failure to make a payment, which is covered by Subsection
(i) above) if such failure is not remedied on or before the thirtieth day after
notice of such failure; provided, however, that, in the event such failure
cannot, through the use of commercially reasonable efforts, reasonably be
remedied within such 30-day period, if Telerate commences to remedy the failure
within said 30-day period and diligently proceeds with such remedy until it is
completed, no Event of Default shall be deemed to have occurred.
(iii) BREACHES OF REPRESENTATIONS. A representation or warranty
made or deemed to have been made hereunder by Omega or Telerate (as the case may
be) proves to have been false or misleading in any material respect when made
and the effects of the materially false or misleading representations and
warranties are material and adverse to the other party and such effects cannot
be
49
cured or eliminated within a reasonable period of time after notice
thereof.
(iv) VOLUNTARY BANKRUPTCY. Omega or Telerate (as the case may be)
(A) commences a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its debts under any
bankruptcy, insolvency, corporation or other similar law now or hereafter in
effect that authorizes the reorganization or liquidation of such party or its
debts or the appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property, or (B) shall
consent to any such relief or to the appointment of or taking possession by any
such official in an involuntary case or other proceeding commenced against it,
or (C) makes a general assignment for the benefit of creditors, or (D) admits in
writing its inability to pay its debts as they become due, or (E) takes any
corporate action to authorize any of the foregoing.
(v) INVOLUNTARY BANKRUPTCY. An involuntary case or other
proceeding shall be commenced by persons that are not bound by this Agreement
against Omega or Telerate (as the case may be) seeking liquidation,
reorganization or other relief with respect to it or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect seeking
the appointment of a trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part of its property, and
50
such involuntary case or other proceeding shall remain undismissed and unstayed
for a period of sixty (60) calendar days; or an order is entered by a court of
competent jurisdiction affecting substantially all of the property or affairs of
Omega or Telerate (as the case may be) under bankruptcy, insolvency or other
similar laws as now or hereafter in effect and such order shall remain
undismissed and unstayed for a period of sixty (60) calendar days.
(b) EFFECT OF TELERATE MONETARY DEFAULT. Upon the occurrence of an
Event of Default described in Section N.2(a)(i), in addition to any other rights
and remedies available to Omega (including, without limitation, the right to
recover all amounts not paid, together with statutory, pre-judgment and
post-judgment interest thereon), Omega shall be entitled, in its sole
discretion, to elect to terminate this Agreement and the licenses granted to
Telerate hereunder immediately upon written notice to Telerate.
(c) EFFECT OF OTHER DEFAULTS. Subject to the provisions of Section F.2
and Section L, upon the occurrence of any other Event of Default by either
party, in addition to any other rights and remedies available to the
non-defaulting party, the non-defaulting party shall be entitled, in its sole
discretion, to terminate this Agreement upon thirty (30) days' prior written
notice to the defaulting party. In addition, upon the termination of the
TradeStation Agreement for any reason, either party to this Agreement may,
within the 60-day period following the termination
51
of the TradeStation Agreement, terminate this Agreement upon thirty (30) days'
prior written notice to the other party.
(d) REMEDIES UPON ORDER FOR RELIEF BEING ENTERED UNDER BANKRUPTCY CODE.
If an Event of Default described in Section N.2(a) (iv) or (v) shall have
occurred with respect to Omega, and an order for relief pursuant to 11 U.S.C.
/section/101, ET SEQ., as amended or supplemented from time to time (the
"Bankruptcy Code") shall have been entered, Telerate may without any further
action or notice and at its sole discretion, either (i) deem this Agreement to
be terminated effective as if such termination had occurred immediately before
the date of entry of any such order for relief; (ii) seek to obtain upon an
expedited basis such approval from a court of competent jurisdiction as may
actually be necessary and required to effect immediate termination of this
Agreement; or (iii) seek to obtain upon an expedited basis such approval from a
court of competent jurisdiction as may actually be necessary and required to
compel Omega or its trustee-in-bankruptcy to assume or reject this Agreement.
Each of the parties hereto specifically agrees that (a) each of the termination
provisions contained in this Section has been specifically bargained for, (b)
each party has consented to termination of this Agreement at the time and in the
manner authorized by this Section and (c) neither party shall in any way attempt
or assist any other party that may attempt to delay, oppose or avoid any such
termination of this Agreement.
52
(e) RIGHTS AND OBLIGATIONS OF PARTIES PENDING ASSUMPTION OR REJECTION
OF THIS AGREEMENT IN THE EVENT OF BANKRUPTCY OF OMEGA. In the event of the
commencement of a case under the Bankruptcy Code by or against Omega, and during
the period prior to the entry of an order directing or authorizing Omega or its
trustee-in-bankruptcy to assume, reject or otherwise terminate this Agreement,
Telerate may exercise its rights under Section 365(n) of the Bankruptcy Code, as
such section may be amended or supplemented from time to time, and the exercise
of such rights or resort to any remedies provided thereunder shall not be deemed
the exclusive rights and/or remedies available to Telerate, but Telerate is
entitled to obtain any relief to the fullest extent provided by applicable
bankruptcy or nonbankruptcy law (except as limited by this Agreement).
(f) RIGHTS AND OBLIGATION OF PARTIES AFTER REJECTION OF THIS AGREEMENT
IN THE EVENT OF BANKRUPTCY OF OMEGA. Omega specifically acknowledges and agrees
that, in addition to the rights and remedies of Telerate under Section 365(n) of
the Bankruptcy Code, as such section may be amended or supplemented from time to
time, the rights and remedies of Telerate set forth in this Section have been
specifically bargained for and Omega will not attempt to delay or oppose
Telerate's exercise of such rights:
(i) Omega or its trustee-in-bankruptcy shall allow Telerate
without any interference by Omega or its trustee-in-
53
bankruptcy to exercise all of its rights, including rights to prosecute or
complete pending applications for trademarks and service marks for the Telerate
Version of SuperCharts Products or to seek other necessary governmental action
and to take such actions as may be necessary to prevent infringement on, or
violation of, any exclusive rights granted to Telerate by this Agreement; and
(ii) In the event that Omega's trustee-in-bankruptcy rejects this
Agreement or refuses to assume it (and Telerate does not elect to terminate this
Agreement), Telerate shall be entitled to have access to and use, and Omega
shall not interfere with Telerate's right to use, the Source Code, Object Code,
Executable Code and Documentation relating to the Telerate Version of
SuperCharts Products and any Enhancements thereof in accordance with this
Agreement, and, as to the Source Code, in accordance with, and as limited by,
the provisions of SECTION J hereof and the escrow agreement to be executed
pursuant thereto.
(g) SUPPLEMENTARY AGREEMENT. The parties further acknowledge and agree
that all provisions relating to the escrow arrangement constitute a
supplementary agreement as such term is used in Section 365(n) of the Bankruptcy
Code.
(h) SEVERABILITY. The provisions set forth in Sections N.2(c) through
(g) shall be deemed to be material nonseverable parts of the Agreement.
54
3. EFFECT ON SUBSCRIBERS. Upon termination of this Agreement for any reason,
including, without limitation, the expiration hereof, Telerate may not enter
into any new subscriptions or other agreements or arrangements for the use of
the Telerate Version of SuperCharts, or agree to increase, or increase, the
number of Stand-Alone Units, Workstations or users with respect to any
subscriptions, or make any further distribution whatever, direct or indirect, of
the Telerate Version of SuperCharts Special Edition. Any existing subscriptions,
as of the date of termination, for the Telerate Version of SuperCharts may be
continued until the expiration of such subscriptions and renewed (provided that
no additional users, Stand-Alone Units or Workstations are added) pursuant to
the terms of such subscriptions, and Telerate shall be obligated to continue to
pay, and Omega will continue to receive, Royalty Fees for, and other amounts due
hereunder in respect of or based upon, such existing subscriptions for as long
as the Telerate Version of SuperCharts is in use. At termination, Telerate shall
provide to Omega a complete and accurate list of all then current subscribers
and customers for the Telerate Version of SuperCharts (as well as a list of all
customers, subscribers and end users to whom the Telerate Version of SuperCharts
Special Edition has been delivered), which shall, for each subscriber and
customer using the Telerate Version of SuperCharts, set forth the expiration
date of the subscription (or
55
indicate that it is renewable on a periodic basis, identifying the period, if
appropriate) and which shall include all other information required to be
included in the statements required to be delivered by Telerate under Section
D.4 hereof. Such statements shall continue to be rendered on a monthly,
quarterly and annual basis (in the manner set forth in Section D.4) until all
subscriptions for, and uses of, the Telerate Version of SuperCharts have ceased.
The expiration or other termination of this Agreement shall not affect or impair
Omega's audit and inspection rights granted hereunder, or Telerate's duties to
maintain the Records, which shall continue at least until all subscriptions for
and uses of the Telerate Version of SuperCharts have terminated and a full and
final audit has been conducted by Omega, and until all disputes, if any,
concerning payment of Royalty Fees and other amounts due hereunder have been
fully and finally resolved.
O. NON-SOLICITATION.
To the fullest extent permitted by law, Omega agrees not to solicit the
employment of or employ any employee of Telerate or any of its Affiliates, and
Telerate agrees not to solicit the employment of or employ any employee of Omega
or any of its Affiliates, in each case, during the period commencing the date
hereof and ending on the date that is twenty-four (24) months following the
expiration or termination of this Agreement;
56
provided, however, in no event shall such period of restriction terminate prior
to June 30, 1998.
P. MISCELLANEOUS.
1. NOTICES. All notices, requests and other communications hereunder shall
be in writing and shall be delivered in person or sent by commercial overnight
courier (such as FedEx) or certified mail, return receipt requested:
(a) If to Telerate, to:
Dow Xxxxx Markets, Inc.
One World Financial Center
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: President
with a copy to:
Dow Xxxxx Markets, Inc.
One World Financial Center
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Legal Department
(b) If to Omega, to:
Omega Research, Inc.
0000 Xxxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx and Xxxxx Xxxx
57
with a copy to:
Xxxxx Xxxx Xxxxx Constant
Xxxxxxxx & Bilzin
2500 First Union Financial Center
000 X. Xxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxx, Esq.,
or to such other addresses as may be stipulated in writing by the parties
pursuant hereto. Unless otherwise provided, notice shall be effective on the
date it is officially recorded as delivered by return receipt, the courier
service, or equivalent.
2. FORCE MAJEURE. No party hereto shall be deemed to be in default of any
provision of this Agreement, or in default for failures in performance,
resulting from acts or events beyond the reasonable control of such party (such
acts shall include but not be limited to, acts of God, or civil or military
authority, civil disturbance, war, strikes, fire, lightning, hurricanes,
tornado, power outages, or other similar catastrophes or events).
3. AMENDMENT. This Agreement may not be amended except by written instrument
executed by each of the parties hereto.
4. BINDING AGREEMENT; ASSIGNMENT.
(a) GENERAL. This Agreement shall be binding upon and shall inure to
the benefit of the parties and the parties' respective successors at law and
permitted assigns. Neither this Agreement nor any obligations or duties
hereunder may be assigned or delegated by any party hereto without the prior
written consent
58
of the other party; provided that each party shall be entitled without such
consent to assign its rights and obligations hereunder to any Affiliate or in
connection with a sale (direct or indirect, by merger, sale of capital stock or
otherwise) of all or substantially all of its assets; provided, however, if
Omega directly or indirectly (by merger, sale of capital stock or otherwise)
sells all or substantially all of its assets to one of the Telerate Competitors,
Telerate may, within the thirty (30) day period following written notice from
Omega that Omega has signed a contract to sell, or has sold, substantially all
of its assets (directly or indirectly, by merger, sale of capital stock or
otherwise) to a Telerate Competitor, terminate this Agreement by giving written
notice to Omega to that effect within such thirty (30) day period. Termination
of this Agreement in this circumstance shall occur and be effective on the date
such notice of termination is given (unless the term of this Agreement has
expired prior thereto).
(b) SALE OF OMEGA TO TELERATE COMPETITOR. In the event, but only in the
event, that Telerate so terminates this Agreement following said notice of sale
of Omega to a Telerate Competitor, (i) Telerate shall have a non-exclusive
one-year license to continue to sell new subscriptions for the Telerate Version
of SuperCharts as permitted hereunder (but the non-competition obligations of
Omega, Xxxxxxx Xxxx and Xxxxx Xxxx shall, as of the
59
date of termination, automatically cease and be of no further force or effect),
(ii) such non-exclusive license shall terminate on the first anniversary of the
date of termination of this Agreement, (iii) it is understood that Omega shall,
in this circumstance of termination only, continue to be bound by its
maintenance and support obligations under Section F, but shall not continue to
be bound by any obligation to develop any Enhancements for the Telerate Version
of SuperCharts Products or to perform any other action or obligation under this
Agreement, (iv) Telerate's obligation to pay Royalty Fees, render statements and
maintain Records shall continue to be in force; and (v) the escrow agreement
described in Subsection J shall, as contemplated in the form of escrow agreement
attached, be extended for such additional year.
(c) THIRD PARTIES. No parties other than Telerate and Omega, and their
respective successors at law and permitted assigns (provided that such
successors or permitted assigns have expressly assumed this Agreement in
writing), shall have any right or standing to assert or enforce any right or
obligation under this Agreement.
5. HEADINGS. The headings of sections and paragraphs herein, and the
"WHEREAS" clauses contained on pages 1 and 2 of this Agreement, are included for
convenience of reference or context and shall not control the meaning or
interpretation of any of the provisions of this Agreement.
60
6. SURVIVAL. The provisions of this Section and of SECTIONS X, X.0, X, X, X,
X.0, X, X AND O ONLY shall survive any termination or expiration of this
Agreement.
7. GOVERNING LAW. This Agreement shall be controlled, construed and enforced
in accordance with the laws of the State of New York, other than laws relating
to conflicts of law.
8. SEPARABILITY. If any provision of this Agreement or the application
thereof to any person or circumstance shall to any extent be held to be invalid
or unenforceable, the remainder of the Agreement, or the application of such
provision to persons or circumstances as to which it is not held to be invalid
or unenforceable, shall not be affected thereby, and each provision shall be
valid and be enforced to the fullest extent permitted by law.
9. ENTIRE AGREEMENT. This Agreement, together with all Exhibits, contains
the entire understanding of the parties with respect to the subject matter
hereof and supersedes all previous and contemporaneous verbal and written
agreements relating to such subject matter.
10. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which taken together shall constitute one instrument.
11. CONSTRUCTION. The parties acknowledge and confirm that this Agreement
and each of the Exhibits hereto have been heavily
61
and thoughtfully negotiated by the parties over an extended period of time and
that any ambiguities contained herein or therein shall therefore not in any
manner be construed against the draftsman or alleged draftsman hereof or
thereof.
IN WITNESS WHEREOF, the undersigned parties have duly executed and delivered
this Agreement as of the day first above written. DOW XXXXX MARKETS, INC. OMEGA
RESEARCH, INC.
By: /S/XXXXXX X. CHILDS By: /S/XXXXXXX XXXX
-------------------- ------------------
Xxxxxx X. Childs Xxxxxxx Xxxx
Title: EVP President
62
EXHIBIT INDEX
EXHIBIT DESCRIPTION
A Definitions
A-1 Description of Telerate-
Provided Materials
A-2 Description of Data Feeds
for Telerate Version of
SuperCharts Products
B Noncompetition Agreement
of Xxxxxxx Xxxx and Xxxxx
Xxxx
C Form of Escrow Agreement
D QA Test Script (Telerate
Version of SuperCharts)
E Trademark License
F QA Test Script (Telerate
Version of SuperCharts
Special Edition)
63
EXHIBIT A
DEFINITIONS
ACCEPTANCE; ACCEPTED:
When the Telerate Version of SuperCharts Products has successfully
completed Quality Assurance Testing as described in Section B of the
Agreement.
ACCEPTANCE DATE:
The date Telerate has Accepted or is deemed to have Accepted the Telerate
Version of SuperCharts Products as described in Section B of the
Agreement.
AFFILIATE:
With respect to any individual or entity, any other individual or entity,
directly or indirectly, through one or more intermediaries, Controlling,
Controlled by, or under common Control with the original individual or
entity.
CONTROL:
The possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of an entity, whether through
the ownership of any securities, by contract or otherwise.
DATA FEED OR DATA FEED:
"Data Feed" or "data feed" means a type or category of financial market
data (e.g. equity prices) of a certain quality, detail and content,
formatted in a particular way or ways, for delivery to subscribers.
DOCUMENTATION:
All existing written descriptive and instructional information
published by Omega for use by SuperCharts customers relating
to the use and operation of SuperCharts Version 4 for
application to Real-Time data, as same shall be appropriately modified by
Telerate pursuant to this Agreement to become the documentation for the
Telerate Version of SuperCharts or the Telerate Version of SuperCharts
Special Edition (as the case may be).
ENHANCEMENT:
Any improvement or upgrade to the Telerate Version of
SuperCharts or the Telerate Version of SuperCharts Special
Edition, whether minor or substantial.
ERROR:
Any failure of the Telerate Version of SuperCharts or the Telerate Version
of SuperCharts Special Edition to perform the applicable functions or
conform to the Specification.
EXECUTABLE CODE:
With respect to SuperCharts, SuperCharts Special Edition, the Telerate
Version of SuperCharts or the Telerate Version of SuperCharts Special
Edition, a set of machine readable instructions that has been assembled or
compiled from the Source Code and Object Code and linked and that can
operate on the appropriate computer without further compiling, assembling
or linking.
INCREMENTAL FEE:
With respect to each individual use of the Telerate Version of SuperCharts
for which a Royalty Fee is payable, the gross amount charged by Telerate
in United States Dollars to a Telerate subscriber pursuant to the
subscription for such use of the Telerate Version of SuperCharts (i.e.,
per Workstation), not including sales and similar taxes, if any, added to
the price thereof which are remittable by Telerate. The Incremental Fee
shall not be reduced by royalties or other amounts or consideration paid
to Independent Distributors or others or any other amounts except for said
taxes. If, with respect to any subscription, the Telerate Version of
SuperCharts is bundled with, sold together with, or
2
incorporated into, one or more other computer programs or products of
Telerate (a "bundle") for one combined price (a "bundled selling price"),
for the purposes of calculating the Incremental Fee hereunder: the
separate list price of each product included in the bundle (including the
list price for the Telerate Version of SuperCharts) will be added together
(the "non-bundled combined price"); if the non-bundled combined price
equals the bundled selling price, the Incremental Fee will be the list
price for the Telerate Version of SuperCharts; if the non-bundled combined
price exceeds the bundled selling price, each list price included in the
non-bundled combined price shall be reduced PRO RATA until the non-bundled
combined price equals the bundled selling price, and the Incremental Fee
shall equal the list price for the Telerate Version of SuperCharts as so
reduced on such PRO RATA basis.
INDEPENDENT DISTRIBUTORS:
Unaffiliated entities who distribute Telerate products and services on
behalf of Telerate on a commission or royalty basis.
MATERIAL ERROR:
Any Error which materially impairs the subscriber's ability to use as a
whole the Telerate Version of SuperCharts or the Telerate Version of
SuperCharts Special Edition or any Error which substantially impairs the
value of such program for the typical end user.
MODIFICATION:
A change or addition to the Telerate Version of SuperCharts or the
Telerate Version of SuperCharts Special Edition that establishes
conformity of the Telerate Version of SuperCharts or the Telerate Version
of SuperCharts Special Edition to the Specification, or a procedure or
routine that eliminates the practical adverse effect on Telerate's
subscribers of such a nonconformity which was observed in the regular
operation of the Telerate Version of SuperCharts or the Telerate Version
of SuperCharts Special Edition (and is capable of being consistently
duplicated).
3
OBJECT CODE:
With respect to SuperCharts, SuperCharts Special Edition, the Telerate
Version of SuperCharts or the Telerate Version of SuperCharts Special
Edition, a set of machine readable instructions generated by the
compilation of the Source Code.
PERSON:
Any entity or individual.
PLATFORM:
"Platform" means the software through which particular financial market
data delivered on a Real-Time basis is made available to a subscriber for
such financial market data, and which constitutes a product of the data
vendor in the sense that such software may include various features and
functions relating to the manner in which the financial market data
delivered is accessed, received, displayed and may be used. All references
in the Agreement to the Dow Xxxxx Workstation Platform mean the product
known as "Dow Xxxxx Workstation" and NOT the product known as "Dow Xxxxx
Platform" or the TTRS system.
QA TEST SCRIPT:
The test script to be used to conduct the Quality Assurance Testing, a
copy of which is attached as Exhibit D with respect to the Telerate
Version of SuperCharts and Exhibit F with respect to the Telerate Version
of SuperCharts Special Edition, which, if capable of being followed in all
material respects, will establish the conformance of the Telerate Version
of SuperCharts Products to the Specification. Within thirty (30) days
following the date of the Agreement, the parties shall jointly develop a
more detailed QA Test Script, which, once completed and agreed upon by the
parties, shall serve as the QA Test Script for all purposes of the
Agreement. The parties agree to cooperate in good faith to develop jointly
and agree upon such more detailed QA Test Script within said 30-day
period. If such more detailed QA Test Script is not jointly developed and
agreed upon within said
4
30-day period, the QA Test Script attached as Exhibit D with respect to
the Telerate Version of SuperCharts and Exhibit F with respect to the
Telerate Version of SuperCharts Special Edition shall serve as the QA Test
Script for all purposes of the Agreement. The purpose of developing a more
detailed QA Test Script is not to expand the functionality that is to be
developed or demonstrated by the Telerate Version of SuperCharts Products
(as described in Exhibit D with respect to the Telerate Version of
SuperCharts and Exhibit F with respect to the Telerate Version of
SuperCharts Special Edition), but rather to specify in more detail the
testing procedures that will be used to determine whether the more general
guidelines set forth in Exhibit D with respect to the Telerate Version of
SuperCharts and Exhibit F with respect to the Telerate Version of
SuperCharts Special Edition have been met.
QUALITY ASSURANCE TESTING:
The testing of the Telerate Version of SuperCharts Products in accordance
with the QA Test Script to determine whether the Telerate Version of
SuperCharts Products conforms to the Specification, and each such
subsequent testing performed prior to Acceptance to determine whether or
not Acceptance has occurred, as described in Section B.
REAL-TIME:
With respect to the SuperCharts program or any similar program, software
that receives and displays data on a "real-time" or instantaneous basis,
and which is not delayed in any fashion, or which displays data on no
longer than a 10-minute delay basis. "Real-Time," as used in the Agreement
in relation to any existing or future software product of Omega, means
only SuperCharts and SuperCharts Special Edition and any future financial
market charting and technical analysis product which has substantially all
of the same functions and features, and is used for substantially all of
the same purposes, as SuperCharts and SuperCharts Special Edition and is
competitive with the Telerate Version of SuperCharts or the Telerate
Version of SuperCharts Special Edition.
5
ROYALTY COMMENCEMENT DATE:
The date the first subscription for or use of the Telerate Version of
SuperCharts is received or occurs for which a Royalty Fee is payable
pursuant to the Agreement.
SELL; SALE; SELLING:
The terms "sell", "sale" and "selling", as they relate to the exploitation
by Telerate of its rights under the Agreement, mean the sublicensing by
Telerate, its Affiliates and Independent Distributors (on behalf of
Telerate or Telerate's Affiliates) pursuant to the Agreement of the
Telerate Version of SuperCharts to subscribers, customers and other
end-users under subscriptions or similar arrangements providing for
periodic payment therefor by such subscribers, customers and other end
users, and do not refer to the sale or disposition, as such words are
commonly understood, of the Telerate Version of SuperCharts or rights
therein.
SOURCE CODE:
With respect to SuperCharts, SuperCharts Special Edition, the Telerate
Version of SuperCharts and the Telerate Version of SuperCharts Special
Edition, the form of code which is human readable and which can be
translated by a compiler or assembler for execution on a computer. The
Source Code will be in a language that is customarily understood by
competent computer programmers (e.g., C, C++, Assembly Language).
SPECIFICATION:
Specification, as it relates to the Telerate Version of SuperCharts, means
that the Telerate Version of SuperCharts will have the same functionality
in all material respects as SuperCharts, as reflected in the documentation
for SuperCharts, except that the Telerate Version of SuperCharts will not
have system testing, automation or tracking functions or features and
except that the Telerate Version of SuperCharts will be designed to run on
a 32-bit, rather than 16-bit, CPU. Specification, as it relates to the
Telerate Version of SuperCharts Special Edition, means that the Telerate
Version of SuperCharts Special Edition will have the
6
same functionality in all material respects as those functions of
SuperCharts which have been included by Omega (in its sole discretion) in
the Telerate Version of SuperCharts Special Edition.
STAND ALONE SUBSCRIBER:
Stand Alone Subscriber shall mean any subscriber who subscribes to the
Telerate Version of SuperCharts from Telerate or its Affiliates or
Independent Distributors, as, when and so long as used or to be used
pursuant to such subscription on Stand Alone Unit(s).
STAND-ALONE UNIT:
A Stand-Alone Unit is one computer that will run the Telerate Version of
SuperCharts but will not be linked by network to any other computers.
However, (i) if such computer is providing access to the Telerate Version
of SuperCharts on more than one screen, each such screen shall constitute
a separate Stand-Alone Unit, and (ii) if any such screen may be accessed
by more than one keyboard, each additional keyboard shall constitute a
separate Stand-Alone Unit.
SUPERCHARTS:
That version of Omega's financial market data charting and technical
analysis program known as SuperCharts 4 that operates in Real-Time.
SUPERCHARTS SPECIAL EDITION:
A "scaled-down" version of SuperCharts developed or to be developed by
Omega, containing (and omitting) such features and functions as Omega
shall, initially and from time to time, in its sole and absolute
discretion, determine, but which shall contain, at a minimum, the features
and functions set forth in Exhibit F.
7
TELERATE COMPETITORS:
Bloomberg, Reuters, Xxxxxx-Xxxxxx, Commodity Quote Graphics, Bridge and
such parties' Affiliates and successors, whether currently existing or
existing in the future. The parties acknowledge and agree that,
notwithstanding anything in the foregoing definition of "Telerate
Competitors" to the contrary, neither any data vendor which, nor the
business of any such data vendor which, is acquired by any of the Telerate
Competitors listed above, nor any successor company created by any such
Telerate Competitor to succeed to such business (if any), shall be deemed
a Telerate Competitor for purposes of the Agreement unless such data
vendor was, or the business acquired was owned by, one of the Telerate
Competitors listed above. However, if the acquired company or business is
used as a conduit for data feeds of the Telerate Competitors which are
substantially similar to the data feeds of Telerate (as described in
prohibited by Section C.3 of the Agreement), such acquired company or
business shall be deemed a Telerate Competitor.
TELERATE-PROVIDED MATERIALS:
The equipment and materials to be provided to Omega at its request to
develop the Telerate Version of SuperCharts Products as specified in
Exhibit A-1 hereto.
TELERATE VERSION OF SUPERCHARTS:
A version of SuperCharts that is generally compatible with the data feeds
generated by Telerate and its Affiliates (such data feeds are specified in
Exhibit A-2 hereof) and, assuming no Enhancement is required, similar data
feeds of Telerate and its Affiliates which may be generated during the
term of the Agreement.
TELERATE VERSION OF SUPERCHARTS PRODUCTS:
Collectively, the Telerate Version of SuperCharts and the Telerate Version
of SuperCharts Special Edition.
8
TELERATE VERSION OF SUPERCHARTS SPECIAL EDITION:
A version of SuperCharts Special Edition that is generally compatible with
the data feeds generated by Telerate and its Affiliates (such data feeds
are specified in Exhibit A-2 hereof) and, assuming no Enhancement is
required, similar data feeds of Telerate and its Affiliates which may be
generated during the term of the Agreement.
TRADESTATION AGREEMENT:
That certain Software License, Maintenance and Development Agreement,
dated August 26, 1994, as amended, between Telerate and Omega.
WORKSTATION:
A Workstation is one computer receiving or able to access Telerate data
(regardless of what software programs are being used in connection with
such data), in or from which the Telerate Version of SuperCharts would
reside or could be accessed either alone or with other applications and
utilities, and which would remain linked by a network with one or more
other computers which will also have Telerate data. However, (i) if such
computer is providing access to the Telerate Version of SuperCharts on
more than one screen, each such screen shall constitute a separate
Workstation, and (ii) if any such screen may be accessed by more than one
keyboard, each additional keyboard shall constitute a separate
Workstation. A single network may have many Workstations.
WORKSTATION SUBSCRIBER:
Any subscriber which subscribes to the Telerate Version of SuperCharts
from Telerate or its Affiliates or Independent Distributors, as, when and
so long as used or to be used pursuant to such subscription on one or more
Workstations.
9
EXHIBIT A-1
DESCRIPTION OF TELERATE-PROVIDED MATERIALS
To be delivered and fully installed at Omega's premises:
1. 2 fully functional TeleTrac units (hardware, software and fully enabled
data feed), fully enabled as to capability with Telerate data available through
the data feed.
2. 1 Twin Server (hardware, software and all applicable data feeds).
3. Software and enablement for ten workstation sites running off the Twin
Server.
4. 15 copies of complete and detailed specifications for the current
Telerate twin environment API (with sufficient detail to enable Omega to modify
SuperCharts to be compatible with such environment).
To be delivered and fully installed at Xxxx residence in Gables Estates,
Florida:
One copy of software (and full enablement including all data
available on the data feed) of the upcoming Telerate Twin environment
which allows for the server and the workstation software to be
running on the same computer.
Plus: all other materials, equipment, information and assistance required by0
Omega from time to time in connection with the development of the Telerate
Version of SuperCharts Products.
EXHIBIT A-2
DESCRIPTION OF DATA FEEDS FOR
TELERATE VERSION OF SUPERCHARTS PRODUCTS
The Telerate data feeds currently known and referred to as:
The Items Producer
The QDS Producer
The TWParser Producer
which constitute part of the Telerate Platform known as Dow Xxxxx Workstation,
and any additional data feeds which are made available in the future as part of
Dow Xxxxx Workstation to the extent that compatibility of such data feeds with
the Telerate Version of SuperCharts is established pursuant to the Agreement.
2
EXHIBIT B
NONCOMPETITION AGREEMENT
NONCOMPETITION AGREEMENT, dated as of March 12, 1997, by and among XXXXXXX
XXXX and XXXXX XXXX (collectively, the "Cruzes"), and DOW XXXXX MARKETS, INC.
f/k/a DOW XXXXX TELERATE, INC., a York corporation ("Telerate").
PRELIMINARY STATEMENT
Telerate and Omega Research, Inc., a Florida corporation currently owned by
the Cruzes ("Omega"), have, on the date hereof, entered into a certain Software
License, Maintenance and Development Agreement (the "License Agreement).
Pursuant to Section C.3 of the License Agreement, Omega has made certain
negative covenants to Telerate. In order to comfort Telerate that the Cruzes
will not do outside of Omega what Omega cannot do directly pursuant to Section
C.3 of the License Agreement, the Cruzes have, subject to the important
bargained-for limitations described below, agreed to be personally bound to the
provisions of Section C.3 of the Agreement.
NOW, THEREFORE, it is agreed as follows:
A. PRELIMINARY STATEMENT. The Preliminary Statement is true and correct and
constitutes a part hereof.
1. COVENANT. Each of the Cruzes covenants that he shall be bound personally
to the covenants of Omega set forth in Section C.3 of the License Agreement, and
that he will not take, and will refrain from taking, any action which Omega is
prohibited from taking under said Section C.3 of the License Agreement. The
Cruzes are not executing this document for any other purpose, and are in no way
or manner guarantors or co-makers of any covenant or obligation of any kind or
nature of Omega set forth in the License Agreement or any other agreement or
instrument executed or delivered in connection therewith.
2. LIMITATION OF LIABILITY. In the event that either of the Cruzes breaches
this Agreement, Telerate's sole and exclusive remedy shall be to obtain from a
court of competent jurisdiction a temporary restraining order, preliminary
injunction and permanent
injunction (for the period of restriction) enjoining the Cruzes from taking the
actions prohibited in Section 2 above. Telerate shall have no right, in any
circumstance, to seek or recover damages of any kind from either of the Cruzes
for any reason or upon any theory (legal or otherwise) whatever, it being
understood that the equitable relief described above is Telerate's sole and
exclusive remedy (whether or not as a practical matter it is an effective remedy
in the circumstances) for any breach by either or both of the Cruzes of this
Agreement. The parties acknowledge, confirm and agree that the provisions of
this Section 3 were specifically bargained for, and that the Cruzes would not
have entered into this Agreement for the benefit of Telerate absent Telerate's
absolute assurance that the Cruzes would never be personally responsible for or
answerable in damages of any kind in the event of a breach hereof. In
furtherance of the foregoing, Telerate hereby covenants that it will never xxx
either of the Cruzes personally (except to the extent necessary to obtain the
equitable relief contemplated herein) with respect to any provision, obligation
or covenant contained in the License Agreement, or any breach or violation
thereof, or with respect to any transaction or matter arising out of or related
to the License Agreement.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of the date first above written.
/s/ XXXXXXX XXXX
----------------
XXXXXXX XXXX
/s/ XXXXX XXXX
--------------
XXXXX XXXX
DOW XXXXX MARKETS, INC.
By: /s/XXXXXX X. CHILDS
-------------------
Xxxxxx X. Childs
Title: EVP
2
EXHIBIT C
ESCROW AGREEMENT
SOFTWARE ESCROW AGREEMENT
SOFTWARE ESCROW AGREEMENT, dated ______________, 1997 (the "Agreement"),
tby and among OMEGA RESEARCH, INC., a Florida corporation ("Omega"), DOW XXXXX
MARKETS, INC. f/k/a DOW XXXXX TELERATE, INC., a New York corporation
("Telerate"), and SUNTRUST BANK/MIAMI, NATIONAL ASSOCIATION ("Escrow Agent").
PRELIMINARY STATEMENT
Omega and Telerate are parties to that certain Software License, Maintenance
and Development Agreement dated March 12, 1997 (the "License Agreement").
Pursuant to Section J of the License Agreement, Omega has agreed to deposit in
escrow with Escrow Agent, on computer disk, the Source Code (and certain related
materials) for the Telerate Version of SuperCharts and for the Telerate Version
of SuperCharts Special Edition. This Agreement shall govern the terms and
conditions of such escrow arrangement. Capitalized terms used herein, which are
not defined herein, shall have the respective meanings ascribed to them in the
License Agreement.
NOW, THEREFORE, it is agreed as follows:
1. SUPPLEMENTARY AGREEMENT. This Agreement is supplementary to the License
Agreement. This Agreement is intended to provide certain guidance for the
limited circumstances under which Telerate shall be entitled to access to the
Source Code (and certain related materials) for the Telerate Version of
SuperCharts and for the Telerate Version of SuperCharts Special Edition in order
to protect certain of its interests under the License Agreement.
2. NO INFERENCE OF TERMINATION. The description herein of the possible
occurrences that would constitute a Release Event (as defined below), and the
consequences thereof, shall create no presumption that Omega or its trustee in
bankruptcy should be permitted to reject or terminate this Agreement under
applicable law. The parties agree that such a rejection or termination would be
prejudicial to Telerate's interests. This Agreement is not intended to diminish,
enlarge, modify or impair, and this Agreement shall not diminish, enlarge,
modify or impair, any right or obligation of any party under the License
Agreement.
3. ESCROW DEPOSIT. Within ten (10) days following the Acceptance Date, Omega
shall deposit with Escrow Agent, and Escrow Agent shall accept the deposit of,
in a sealed envelope, the Source Code, on computer disk, for each of the
Telerate Version of SuperCharts and the Telerate Version of SuperCharts Special
Edition, together with such programmers notes and instructions as have been
prepared by Omega in the normal course of its operations in connection with the
creation of such Source Code (collectively the "Escrowed Code"). Omega shall,
promptly after such deposit is made, notify Telerate of that fact. Escrow Agent
shall hold and maintain the Escrowed Code at its premises at 000 Xxxxxxxx
Xxxxxx, Xxxxx, Xxxxxxx, in a vault or safety deposit box, and shall not permit
access thereto, or the release thereof, by or to any person or entity whatever,
except as specifically permitted by this Agreement.
4. SUPPLEMENTARY ESCROW DEPOSITS. Within ten (10) days following the
completion and acceptance of any Enhancement to the Telerate Version of
SuperCharts or the Telerate Version of SuperCharts Special Edition developed by
Omega, Omega shall deposit with Escrow Agent, and Escrow Agent shall accept
deposit of, in a sealed envelope, such updated Source Code, on computer disk,
for the Telerate Version of SuperCharts or the Telerate Version of SuperCharts
Special Edition as so enhanced, together with such programmers notes and
instructions as have been prepared by Omega in the normal course of its
operations in connection with the creation of such updated Source Code
(collectively, an "Updated Escrowed Code"). Omega shall, promptly after each
such deposit is made, notify Telerate of that fact. Upon any such supplementary
deposit by Omega, Escrow Agent shall return to Omega the Escrowed Code then held
by Escrow Agent, and the Updated Escrowed Code shall then become the Escrowed
Code for all purposes hereunder. Omega covenants to Telerate that each Source
Code deposited into escrow pursuant to this Agreement, including the initial
deposit, will be in a language that is customarily understood by competent
computer programmers (e.g., C, C++, Assembly Language).
5. RELEASE EVENTS. The following events constitute the only events upon
which Escrow Agent is authorized to release the Escrowed Code to any person or
entity (other than deposit of the Escrowed Code with a court as more fully
explained later in this Agreement), or to allow access to the Escrowed Code by
any person or entity (individually, a "Release Event," and, collectively, the
"Release Events"):
2
(a) VERIFICATION OF ESCROWED CODE. Within thirty (30) days following
notice from Omega of the initial escrow deposit described in Section 3 above,
and within thirty (30) days following notice from Omega of each supplementary
escrow deposit described in Section 4 above, Telerate shall be afforded access
to the Escrowed Code solely for the purpose of verifying that the Escrowed Code
contains the then-current Source Code for the Telerate Version of SuperCharts
and for the Telerate Version of SuperCharts Special Edition. In order to
exercise such right, Telerate shall provide Omega and Escrow Agent with written
notice to that effect within the applicable 30-day period ("Verification
Notice"). Within five (5) business days following the delivery of the
Verification Notice, Omega, Telerate and Escrow Agent shall schedule a mutually
convenient date, not later than thirty (30) days following the delivery of the
Verification Notice, on which a representative of Omega and a representative of
Telerate shall meet at the offices of Escrow Agent to receive from Escrow Agent
the sealed envelope containing the Escrowed Code. Escrow Agent shall deliver the
Escrowed Code to Omega's representative. Each of Telerate and Omega shall
confirm in writing in advance to Escrow Agent the name of its representative.
Escrow Agent shall request appropriate photo identification from each
representative prior to releasing the Escrowed Code to Omega's representative.
Following said release of the Escrowed Code to Omega's representative, Omega's
representative and Telerate's representative shall proceed to Omega's Miami
office, where Telerate's representative will be permitted to verify, under
Omega's supervision, that the Escrowed Code contains the Source Code for the
then-current version of the Telerate Version of SuperCharts and for the Telerate
Version of SuperCharts Special Edition. The verification procedure shall be
exclusively as follows: the Telerate representative shall be permitted to
compile the Source Code in order to enable such representative to generate an
executable program for the Telerate Version of SuperCharts and for the Telerate
Version of SuperCharts. Such representative may then take back with him to
Telerate such executable program for the sole purpose of verifying that the
Source Code is complete. In no event will such Telerate representative be
permitted to take any notes, or to view any screen longer than is absolutely
necessary to compile an executable program, or to remove or take with him or her
any materials other than the compiled executable program. Following completion
of the compilation of the executable program, the Escrowed Code, in the presence
of the Telerate representative, shall be sealed in an envelope, and the Telerate
representative and the Omega
3
representative shall then proceed to the offices of Escrow Agent, whereupon the
Escrowed Code will be redeposited with Escrow Agent, subject to future release
only upon the occurrence of another Release Event.
(b) FAILURE OF OMEGA TO CORRECT AN ERROR. In the event that Omega
notifies Telerate that it is unable to correct an Error (other than an
Insignificant Error), or an Event of Default under the License Agreement has
occurred with respect to Omega based upon Omega's failure to correct an Error
(other than an Insignificant Error), and Telerate has not terminated, or given
notice of termination of, the License Agreement pursuant to any provision
thereof other than Section P.4 thereof, and Telerate desires access to the
Escrowed Code, Telerate shall deliver to Escrow Agent and to Omega an affidavit
of Telerate, made by a duly authorized officer of Telerate (the "Correction
Failure Affidavit"), stating, as applicable, that:
(i) "Telerate is entitled to access to the Escrowed Code because
Omega has notified Telerate that it is unable to correct an Error (other than an
Insignificant Error), a copy of such notification from Omega being attached
hereto [with such notification attached], and Telerate has not terminated, or
given notice of termination of, the License Agreement pursuant to any provision
thereof other than Section P.4 thereof", or
(ii) "Telerate is entitled to access to the Escrowed Code because
an Event of Default under the License Agreement has occurred with respect to
Omega based upon Omega's failure to correct an Error (other than an
Insignificant Error), and Telerate has not terminated, or given notice of
termination of, the License Agreement pursuant to any provision thereof other
than Section P.4 thereof," and
(iii) "Omega has been delivered a true and complete copy of this
affidavit on the date shown on the attached certified or registered mail receipt
or commercial carrier receipt evidencing delivery to Omega on such date" [and
attaching such receipt].
Subject to Omega's right to serve a Counter Affidavit (defined and
described below), at any time during the thirty (30) day period following the
end of the fifth (5th) business day following delivery of the Correction Failure
Affidavit, Escrow Agent shall, at Telerate's request, release the Escrowed Code
to
4
Telerate. Upon receipt of the Escrowed Code in this circumstance, Telerate
shall use the Escrowed Code solely for the purpose of correcting the Error(s)
the failure of which to correct served as the basis for Telerate's right to have
access to the Escrowed Code. If requested by Omega in writing or in Omega's
Counter Affidavit, correction of said Error(s) will take place at Omega's
offices under Omega's supervision, in which event the procedures for release and
return of the Escrowed Code set forth in subsection (a) above shall be followed.
In no event shall any copy be made of the Escrowed Code. Upon completion of
correction of said Error(s), the Escrowed Code shall be sealed in an envelope
and redeposited with Escrow Agent. Even if Omega does not elect to have the
Error(s) corrected at its offices under its supervision, Omega shall have the
right to have a representative be present for such resealing and redeposit
procedure.
(c) BANKRUPTCY OF OMEGA. In the event that an Event of Default occurs
with respect to Omega under Section N.2(a)(iv) or (v) of the License Agreement,
and Telerate does not terminate or give notice of termination of the License
Agreement pursuant to any provision thereof other than Section P.4 thereof, and
Omega's trustee in bankruptcy has expressly rejected the License Agreement or
expressly refused to assume the License Agreement, and Telerate desires access
to the Escrowed Code, Telerate shall deliver to Escrow Agent and to Omega an
affidavit of Telerate, made by a duly authorized officer of Telerate (the
"Bankruptcy Affidavit"), stating:
(i) "An Event of Default has occurred with respect to Omega under
Section N.2(a)(iv) or (v) under the License Agreement";
(ii) "Telerate has not terminated and has not given notice of
termination of the License Agreement pursuant to any provision thereof other
than Section P.4 thereof";
(iii) "Omega's trustee in bankruptcy has expressly rejected the
License Agreement or has expressly refused to assume it, and a copy of the
action of the bankruptcy court so rejecting or refusing to assume the License
Agreement is attached" [and attaching a true, correct and complete copy of such
action]; and
(iv) "Omega has been delivered a true and complete copy of this
affidavit on the date shown on the attached certified
5
or registered mail receipt or commercial courier receipt evidencing delivery to
Omega on such date" [and attaching such receipt].
Subject to Omega's right to serve a Counter Affidavit, at any time
during the thirty (30) day period following the end of the fifth (5th) business
day following delivery of the Bankruptcy Affidavit, Escrow Agent shall, at
Telerate's request, release the Escrowed Code to Telerate. Upon receipt of the
Escrowed Code in this circumstance, Telerate may use the Escrowed Code, until
the expiration or termination of the License Agreement, solely for the purpose
of correcting Errors and providing maintenance and support to subscribers for
the Telerate Version of SuperCharts and the Telerate Version of SuperCharts
Special Edition, and if, but only if, Omega is in liquidation or has completely
ceased operations, and Telerate has not terminated or given notice of
termination of the License Agreement pursuant to Section P.4 thereof, to make
Enhancements, any such Enhancements to be the property solely of Omega. In no
event shall any copy be made of the Escrowed Code.
6. TERM. This Agreement shall be effective as of the date hereof and shall
continue to be effective until the earliest of (a) January 12, 2003 and (b)
subject to the right of Telerate to deliver a Counter Affidavit, the date on
which the Escrow Agent receives an affidavit from either Telerate or Omega (the
"Termination Affidavit") (a copy of which shall be served on the non-serving
party) stating that the License Agreement is or has been terminated pursuant to
any provision thereof other than Section P.4 thereof, and that the non-serving
party has been delivered a true and complete copy of the Termination Affidavit
on the date shown on the certified registered mail receipt or commercial courier
receipt attached (a copy of which shall be attached to the Termination
Affidavit). Upon any such termination of this Agreement, Escrow Agent shall
release the Escrowed Code to Omega, at Omega's request. If, however, Omega has
delivered a Termination Affidavit, subject to Telerate's right to deliver a
Counter Affidavit, Escrow Agent shall return the Escrowed Code to Omega promptly
following the fifth (5th) business day following the delivery of the Termination
Affidavit. If, at the time of such termination of this Agreement, Telerate is in
possession of the Escrowed Code pursuant to this Agreement, Telerate shall,
immediately upon termination, cease using the Escrowed Code for any purpose and
promptly return it to Omega accompanied by a letter from Telerate affirming that
Telerate has ceased using the Escrowed Code for any purpose, has used the
Escrowed Code only as permitted
6
hereunder, and has made no copies of any kind or nature of, or made or retained
any notes or materials concerning, the Escrowed Code. (Omega shall have the
right to request and receive from Telerate such a confirmatory letter following
any release to Telerate hereunder of the Escrowed Code.) Notwithstanding
anything to the contrary contained in this Agreement, if the Escrowed Code has
not been returned to Omega by the Outside Termination Date, Escrow Agent shall
release the Escrowed Code to Omega on or promptly following the Outside
Termination Date, regardless of any conflicting or contrary instructions or
objections which may be given by Telerate (including any Counter Affidavit), the
parties agreeing that Telerate has no right whatever to make such an objection,
and that Escrow Agent has no discretion upon the occurrence of the Outside
Termination Date to do anything other than deliver the Escrowed Code to Omega.
7. COUNTER AFFIDAVIT. In any case where Telerate has asserted the right of
access to the Escrowed Code (whether pursuant to a Verification Notice, a
Correction Failure Affidavit or a Bankruptcy Affidavit), or where Omega has
asserted the right to be returned the Escrowed Code pursuant to a Termination
Affidavit (as the case may be, a "Release Affidavit"), the party who has not
delivered the Release Affidavit (the "Objecting Party") may, within five (5)
business days of its receipt of the Release Affidavit, object to the release of
the Escrowed Code requested in or in connection with the Release Affidavit by
delivering to the party who has delivered the Release Affidavit (the "Asserting
Party") and to Escrow Agent an affidavit (a "Counter Affidavit") stating that
the Asserting Party is not entitled to receive access to or release or return of
(as the case may be) the Escrowed Code, and the reasons therefor. No party shall
deliver a Counter Affidavit unless it believes, in good faith, that the
Asserting Party is not entitled to the access or release of the Escrowed Code
asserted by the Asserting Party. In no event shall Telerate have the right to
serve, or serve, a Counter Affidavit to contest the return of the Escrowed Code
to Omega on the Outside Termination Date. In the event that a Counter Affidavit
is delivered, Escrow Agent shall continue to hold the Escrowed Code, and shall
not release it to, or allow access to it by, any party, pending the joint
instructions of Telerate and Omega, or as otherwise described in Section 10(a)
below.
8. DISPUTE RESOLUTION. In the event a Counter Affidavit is delivered, Omega
and Telerate shall, in good faith, attempt to
7
resolve the dispute within five (5) business days following the delivery of the
Counter Affidavit. If a resolution is reached, Omega and Telerate shall promptly
execute joint written instructions to Escrow Agent concerning what is to be done
with the Escrowed Code. In the event no such resolution is reached within said
five-business-day period, either party may file a suit or action in any court of
competent jurisdiction situated in Dade County, Florida to obtain such relief at
law or in equity in respect of the Escrowed Code as such party deems warranted
or appropriate.
9. LIMITATION OF REMEDIES BETWEEN TELERATE AND OMEGA. As between Telerate
and Omega, all limitations on remedies that one party may have against the other
under the License Agreement shall apply to this Agreement.
10. RIGHTS, DUTIES AND RESPONSIBILITIES OF ESCROW. It is understood that the
duties of the Escrow Agent are purely ministerial in nature. It is further
agreed that:
(a) In the event that Escrow Agent shall be uncertain as to the duties
or rights hereunder or shall receive instructions with respect to the Escrowed
Code which, in its sole opinion, are in conflict with either other instructions
received by it or any provision of this Agreement, it shall be entitled to
continue to hold the Escrowed Code, or a portion thereof, in escrow pending the
resolution of such uncertainty to Escrow Agent's sole satisfaction, by final
judgement of a court or courts of competent jurisdiction or otherwise; or Escrow
Agent, at its option, may deposit the Escrowed Code in the registry of a court
of competent jurisdiction in a proceeding to which all parties in interest are
joined. Upon so depositing the Escrowed Code and filing its complaint and
interpleader, Escrow Agent shall be completely discharged and released from
further liability.
(b) Escrow Agent shall not be liable for any action taken or omitted
hereunder except in the case of its bad faith, gross negligence or willful
misconduct. Escrow Agent shall be entitled to consult with counsel of its own
choosing and shall not be liable for any action taken, suffered or omitted by it
in reasonable reliance upon the advice of such counsel. Any reasonable expenses
incurred by Escrow Agent in connection with such consultation shall be
reimbursed by Telerate.
8
(c) Telerate shall indemnify and hold Escrow Agent, its agents,
representatives, and employees harmless from any claim, demand or loss suffered
by Escrow Agent and the cost thereof (including court costs and attorneys' fees
for negotiation, trial and appeal).
(d) This agreement sets forth exclusively the duties of Escrow Agent
with respect to any and all matters pertinent hereto and no implied duties or
obligations shall be read into this Agreement against Escrow Agent.
(e) Escrow Agent may resign as Escrow Agent at any time upon thirty
(30) days prior written notice to Telerate and Omega. In the case of Escrow
Agent's resignation, its only duty shall be to hold and release, if required,
the Escrowed Code in accordance with the original provisions of this Agreement
until a successor escrow agent shall be appointed and written notice of the name
and address of such successor escrow agent shall be given to the escrow agent by
Telerate and Omega, whereupon Escrow Agent's only duty shall be to deposit with
the successor escrow agent the Escrowed Code if then in its possession.
11. FEES AND EXPENSES. Escrow Agent shall be entitled to: (a) an annual
administration fee of $1,500.00 payable by Telerate and (b) be reimbursed by
Telerate for any reasonable out-of-pocket expenses for performing its
obligations in connection with this Agreement.
12. NOTICES. All notices, affidavits, instructions, requests and other
communications required or permitted hereunder shall be in writing and shall be
delivered in person or sent by commercial overnight courier (such as FedEx) or
certified or registered mail, return receipt requested:
(a) If to Telerate, to:
Dow Xxxxx Markets, Inc.
One World Financial Center
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: President
9
with a copy to:
Dow Xxxxx Markets, Inc.
One World Financial Center
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Legal Department
(b) If to Omega, to:
Omega Research, Inc.
0000 Xxxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx and Xxxxxx Xxxx
with a copy to:
Xxxxx Xxxx Xxxxx Constant
Xxxxxxxx & Bilzin
2500 First Union Financial Center
000 X. Xxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxx, Esq.
(c) If to Escrow Agent, to:
SunTrust Bank/Miami, N.A.
000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
ATTN: ____________________,
or to such other addresses as may be stipulated in writing by the parties
pursuant hereto. Notice shall be effective on the date it is officially recorded
as delivered by return receipt or the courier service.
13. FORCE MAJEURE. No party hereto shall be deemed to be in default of any
provision of this Agreement, or for failures in
10
performance, resulting from acts or events beyond the reasonable control of such
party.
14. AMENDMENT. This Agreement may not be amended except by written
instrument executed by each of the parties hereto.
15. BINDING AGREEMENT; ASSIGNMENT. This Agreement shall be binding upon and
shall inure to the benefit of the parties and the parties' respective successors
at law and permitted assigns.
16. HEADINGS. The headings of sections and paragraphs herein are included
for convenience of reference and shall not control the meaning or interpretation
of any of the provisions of this Agreement.
17. GOVERNING LAW; VENUE. This Agreement shall be controlled, construed and
enforced in accordance with the laws of the State of Florida, other than laws
relating to conflicts of law. The venue and jurisdiction for any claim under
this Agreement shall be in the appropriate court in Dade County, Florida.
18. ENTIRE AGREEMENT. This Agreement contains the entire understanding of
the parties and supersedes all previous verbal and written agreements.
19. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which taken together shall constitute one instrument.
11
IN WITNESS WHEREOF, the undersigned parties have duly executed this
Agreement as of the day first above written.
DOW XXXXX MARKETS, INC. OMEGA RESEARCH, INC.
By:_________________________ By: /S/ XXXXXXX XXXX
----------------
Print Name: ________________ Xxxxxxx Xxxx
Title: _____________________ President
ESCROW AGENT:
SUNTRUST BANK/MIAMI, NATIONAL ASSOCIATION
By:___________________________________
Name:_________________________________
Title:________________________________
12
EXHIBIT D
QA TEST SCRIPT (TELERATE VERSION OF SUPERCHARTS)
CHART
Data
Amount
Limited by memory (as will be only 32-bit application).
Resolution
The user can display data in tick, intraday (any interval
up to 1440 minutes), daily, weekly, monthly and point and
figure resolutions, for multiple session markets.
Type
All symbols that can be displayed in the Telerate Version
of TradeStation as supported by TWIN will be plotted and
continuously updated by the program.
Display
Market status
The user can display a continuously updated status line at
the top of any chart window that will include the current
price, net change from prior day's close, day's high, day's
low and current indicator values.
Chart types
The program shall allow the user to display prices as
Open-High-Low-Close, High-Low-Close, Japanese Candlestick,
Dot on Close and Line on Close bars, point and figure.
Configuration
The program shall allow the user to change the color and
size of any element on a chart. This includes the font and
font color, window background and bar thickness and color.
Tools
The user can place any of the following tools on any price or any
indicator on a chart. Arc, Up/Down arrows, Standard/Fibonacci
Cycles*, Ellipse, Xxxx Fan*, Horizontal Line*, Percent Retracement,
Rectangle, Speed Resistance Arc/Fan*, Support Resistance Lines*,
Trend Lines*, Text, Zoom. The user can modify display
attributes and position of any tool placed on a chart. Furthermore,
the user shall be allowed to enable alarms on those tools marked with
an asterisk that will alert the user when the market penetrates that
tool, on an intra-bar or end of bar basis, as selected by the
customer for that specific marketing tool.
Analysis Techniques
The user shall be allowed to place any of the following analysis
techniques on a chart.
Indicators, PaintBars(tm), ShowMe's(tm)
Custom 1 Line, Custom 2 Lines, Custom 3 Lines, Custom 4 Lines,
Mov Avg - Displaced, Mov Avg Weighted, DMI, Xxxxxxxxx Bands, Mov
Avg 1 Line, Mov Avg 2 Lines, Mov Avg 3 Lines, Mov Avg Envelopes,
Mov Avg Exponential, Commodity Channel Index, On Balance Volume,
Gapless Bar Chart, True Low, Open Interest, XxXxxxxxx
Oscillator, MFI, parabolic, Accumulation Distribution, Percent
R, Price Channel, Rate of Change, RSI, RSI w/o Zones,
Accumulation Swing Index, MACD, Spread, DownTicks, Stochastic -
Fast, Stochastic - Slow, Swing Index, Volume (Tick Vol) Volume
(UpTick Vol), Volume (DownTick vol), Volume, Up/Down Tick
Difference, Ultimate Oscillator, Volatility, Momentum,
Consecutive x bars down, Consecutive x bars up, Gap Down Bar,
ShowMe(tm) Anything, Key Reversal Up, Key Reversal Down, Outside
Bar, Gap Up bar, Inside Bar, Island Reversal Up, Island Reversal
Down, Breakout of x Bar High, Breakout of x Bar Low, %R/less
than/x, %R/greater than/x, Price/less than/x Bar Avg, Price/less
than/xBar Avg., Close Avg/greater than/Open Avg, Close Avg/less
than/Open Avg, Momentum Increasing, Momentum Decreasing,
Stochastic Fast Custom, Stochastic Slow Custom, PaintBar(tm)
Custom, Percent Change, Down Ticks, Equal Ticks, Up Ticks.
Experts
Fundamental Expert, Technical Expert, Fundamental
and Technical Expert.
2
Furthermore, the user can modify the inputs and alert criteria of any
of the aforementioned analysis techniques.
QUOTE
Data
Amount
256 quotes per window.
Resolution
Tick by tick.
Type
All symbols that can be displayed in Telerate Version of
TradeStation as supported by TWIN shall be continuously updated
in the quote window.
Display
Quote fields
All fields that can be displayed in Telerate Version of
TradeStation as supported by TWIN will be available to the user.
Furthermore, user definable alarm fields can be added that alert
the user to breakout conditions on the high, low, time and
volume.
Configuration
The program shall allow the user to change the color and size of
any element on a quote window. This includes the font and font
color, window background color and the colors of alert fields.
Alert Tracking Control Center
Data
Date/time alert was hit, symbol, name, last price.
Display
Configuration
The program shall allow the user to change the color and size of
any element on an ATCC window. This includes the font and font
color and window background color.
3
EXHIBIT E
TRADEMARK LICENSE
Dow Xxxxx Markets, Inc.
(f/k/a Dow Xxxxx Telerate, Inc.)
One World Financial Center
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
March 12, 1997
Omega Research Inc.
0000 Xxxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxx, XX 00000
ATTENTION: XXXXXXX AND XXXXX XXXX
Re: TRADEMARK LICENSE
Dear Messrs. Xxxx:
As contemplated in the Software License, Maintenance and Development
Agreement between Omega Research, Inc. ("Omega") and Dow Xxxxx Markets, Inc.,
f/k/a Dow Xxxxx Telerate, Inc. ("Telerate") dated as of the date hereof (the
"Software License Agreement"), Omega shall grant Telerate a license to use the
"SuperCharts" name and xxxx pursuant to the terms and conditions set forth in
the Software License Agreement and those specified below.
Omega hereby grants to Telerate the right and license to use the name and
xxxx SuperCharts (hereinafter called the "Licensed Xxxx") as part of the
collective name and xxxx "Dow Xxxxx SuperChartsTM" and "Dow Xxxxx SuperCharts
SETM" solely on, and solely in connection with the promotion and marketing of,
(i) the Telerate Version of SuperCharts Products (as defined in the Software
License Agreement), (ii) electronic information services marketed with the
Telerate Version of SuperCharts Products, and (iii) any hardware and software
necessary to support the Telerate Version of SuperCharts Products and such
electronic information services (hereinafter called the "Licensed Product")
throughout the world, except that Telerate shall not use the Licensed Xxxx in
any territory where, or in any manner in which, Telerate, pursuant to
the Software License Agreement, is prohibited from marketing or distributing the
Telerate Version of SuperCharts Products. All other rights to, and to use, the
Licensed Xxxx are reserved solely and exclusively to Omega including, without
limitation, the right to license such name and xxxx for any goods or services to
any person or entity, except to the Telerate Competitors (as defined in the
Software License Agreement) for, or in connection with, purposes or activities
to the extent prohibited by Section C.3 of the Software License Agreement.
Telerate may use the Licensed Xxxx in connection with the promotion of the
Licensed Products prior to the Acceptance Date and/or the Royalty Commencement
Date (as such terms are defined in the Software License Agreement), with the
prior written consent of Omega, which shall not be unreasonably withheld.
The license granted hereunder shall continue until the termination of the
Software License Agreement; provided, however, that Telerate may continue to use
the Licensed Xxxx in accordance with the terms of this Agreement with respect to
subscriptions to the Licensed Product that are in effect as of the termination
of the Software License Agreement for so long as Telerate is permitted to use
the Telerate Version of SuperCharts for such subscriptions pursuant to the
Software License Agreement. Telerate is obligated to use the Licensed Xxxx as
set forth in the Software License Agreement.
In consideration of the license granted hereunder, and upon receipt of an
invoice from Omega, Telerate shall pay Omega a one-time fee of ten dollars
($10).
Omega reserves and shall have the exclusive right to commence litigation to
protect or enforce rights to the Licensed Xxxx; provided, however, that if Omega
does not wish to institute an action, Telerate may, with the advance written
consent of Omega, which consent shall not be unreasonably withheld, institute
said action, in which event then Omega will, at Telerate's expense, cooperate
with Telerate in the institution of the proceeding, such proceeding to be
pursued at the expense of Telerate. Damages recovered or settlement received in
any claim, action or proceeding commenced by Omega or Telerate hereunder with
reference to the Licensed Xxxx that relates principally to infringement of the
Licensed Xxxx by Telerate Competitors, first, shall be apportioned
2
and paid to the recovering parties' reasonable costs of pursuing such claim or
litigation in such proceeding, and, then, shall be apportioned and paid equally
to each of Omega and Telerate. Damages recovered or settlement received in any
claim, action or proceeding commenced by Telerate that is not principally
related to infringement by a Telerate Competitor, first, shall be apportioned
and paid to the recovering parties' reasonable costs of pursuing such claim or
litigation in such proceeding, and, then, shall be apportioned and paid equally
to each of them. Damages recovered or settlement received in any claim, action
or proceeding commenced by Omega that is not principally related to infringement
by a Telerate Competitor shall be paid solely to Omega.
Omega acknowledges and agrees that the name and xxxx "Dow Xxxxx" is
proprietary to Telerate or its Affiliate and shall not challenge Telerate's or
its Affiliate's ownership of "Dow Xxxxx." Telerate acknowledges and agrees that
the name and xxxx "SuperCharts" is proprietary to Omega and shall not challenge
Omega's ownership of SuperCharts.
Upon reasonable written notice, Omega may from time to time inspect the
Licensed Product on Telerate's premises and Telerate's advertising and
promotional materials concerning the Licensed Product. Telerate shall maintain
the quality of that portion of the Licensed Product that is the Telerate Version
of SuperCharts Products so that it has the same high quality as the software
furnished to Telerate under the Software License Agreement and Telerate shall
maintain the overall quality of the Licensed Product in a manner consistent with
the high standards of quality displayed by the products and services marketed by
Telerate as of the date of this Agreement. If the required standard of quality
is not being observed, upon written notice from Omega reasonably detailing the
deviation from the required standard of quality, Telerate shall make appropriate
corrections as promptly as is reasonably practicable.
Telerate may sublicense the rights granted in this Letter Agreement to its
Affiliates and independent Distributors (as such terms are defined in the
Software License Agreement) of the Licensed Product.
Telerate shall defend, indemnify and hold harmless Omega from, against and
in respect of any claims, losses, liabilities,
3
judgments, awards, costs and expenses (including reasonable attorneys' fees and
costs) asserted against or incurred by Omega (collectively, "Claims") that arise
out of or relate to Telerate's use of the Licensed Xxxx for, or in connection
with, any portion of the Licensed Product other than the Telerate Version of
SuperCharts Products.
All notices permitted or required in connection with the license granted
hereunder shall be in writing and shall be delivered in person or sent by
commercial overnight courier (such as Fedex) or certified mail, return receipt
requested and shall be sent to the parties at the addresses specified in the
notice provision of the Software License Agreement.
All terms and conditions of the Software License Agreement, to the extent
not directly inconsistent with a provision of this Letter Agreement, shall apply
to the licensing of the Licensed Xxxx including, without limitation, the
representations and warranties in Sections K.1 and K.2(a) and the remedies for a
breach of such representations or warranties in Section K.2(b), and the Software
License Agreement shall be read in conjunction with this Letter Agreement, as if
this Letter Agreement were an addendum thereto, in defining, interpreting and
determining the respective rights and obligations of the parties.
Notwithstanding anything to the contrary herein, the record keeping obligations
of Section D.4 of the Software License Agreement shall not be applicable to the
license of the Licensed Xxxx.
This Letter Agreement shall be governed and construed in accordance with the
laws of the State of New York without regard to the choice of law principles
thereof. Any waiver by either party hereto of its rights under this Letter
Agreement, or failure to enforce any of same, shall not be construed as a
continuing waiver of the same right or obligation, or a waiver of any other
right or obligation. This Letter Agreement (and the Software License Agreement
to the extent applicable pursuant to the immediately preceding paragraph)
constitutes the entire Agreement between the parties and cannot be modified or
amended except by a writing executed by both parties. This Letter Agreement may
only be assigned to the extent, and in the circumstances, that the Software
License Agreement is permitted to be assigned.
4
IN WITNESS WHEREOF, the parties hereto have executed this Letter Agreement
on the date first written above.
DOW XXXXX MARKETS, INC.
By: /s/ XXXXXX X. CHILDS
--------------------
Xxxxxx X. Childs
Title: EVP
OMEGA RESEARCH, INC.
By: /s/ XXXXXXX XXXX
----------------
Xxxxxxx Xxxx, President
5
EXHIBIT F
QA TEST SCRIPT (TELERATE VERSION OF SUPERCHARTS SPECIAL EDITION)
CHART
Data
Amount
Limited by memory (as will be only 32-bit application).
Resolution
The user can display data in tick, intraday (any interval
up to 1440 minutes), daily, weekly, monthly resolutions,
for multiple session markets.
Type
All symbols that can be displayed in the Telerate Version
of TradeStation as supported by TWIN will be plotted and
continuously
updated by the program.
Display
Market status
The user can display a continuously updated status line at
the top of any chart window that will include the current
price, net change from prior day's close, day's high, day's
low and current indicator values.
Chart types
The program shall allow the user to display prices as
Open-High-Low-Close, High-Low-Close, Dot on Close and Line
on Close bars.
Configuration
The program shall allow the user to change the color and
size of any element on a chart. This includes the font and
font color, window background and bar thickness and color.
Tools
The user can place any of the following tools on any price or any
indicator on a chart. Horizontal Line*, Trend Lines*, Text, Zoom. The
user can modify display attributes and position of any tool placed on
a chart.
Analysis Techniques
The user shall be allowed to place any of the following analysis
techniques on a chart.
Indicators
Mov Avg - Displaced, Mov Avg - Weighted, Xxxxxxxxx Bands, Mov
Avg 1 Line, Mov Avg 2 Lines, Mov Avg 3 Lines, Mov Avg Envelopes,
Mov Avg Exponential, Open Interest, Stochastic - Fast,
Stochastic - Slow, Volume, Momentum, Relative Strength Index and
Rate of Change.
QUOTE
Data
Amount
256 quotes per window.
Resolution
Tick by tick.
Type
All symbols that can be displayed in the Telerate Version of
TradeStation as supported by TWIN shall be continuously updated
in the quote window.
Display
Quote fields
All fields that can be displayed in the Telerate Version of
TradeStation as supported by TWIN will be available to the user.
Configuration
The program shall allow the user to change the color and size of
any element on a quote window. This includes the font and font
color, window background color.
OMEGA RESEARCH, INC.
0000 XXXX XXXXXXX XXXXXX
XXXXX 000
XXXXX, XXXXXXX 00000
July 24, 1997
Dow Xxxxx Markets, Inc.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
RE: SOFTWARE LICENSE, MAINTENANCE AND DEVELOPMENT AGREEMENT DATED AS OF MARCH
12, 1997 (THE "AGREEMENT") BETWEEN DOW XXXXX MARKETS, INC. AND OMEGA
RESEARCH, INC.
Ladies and Gentlemen:
This shall confirm our mutual understanding and agreement that, due to a
scrivener's error, the date of termination set forth in Section N.1 of the
Agreement (i.e., January 12, 2003) is incorrect. The parties acknowledge and
agree that the actual date of termination of the Agreement is January 12, 2002,
NOT January 12, 2003.
Please confirm your agreement to the foregoing by countersigning this
letter below.
Very truly yours,
OMEGA RESEARCH, INC.
By: /S/ XXXX X. XXXXX
----------------------
Xxxx X. Xxxxx
Vice President
AGREED TO AND ACCEPTED:
DOW XXXXX MARKETS, INC.
BY:/S/ X. X. CHILDS
------------------
NAME: X.X. CHILDS
-------------------
TITLE: EVP
-------------------
2
