Software License And Distributor Agreement

EXHIBIT 10.8


SOFTWARE LICENSE AND DISTRIBUTOR AGREEMENT


THIS AGREEMENT (the "Agreement") is entered into and made this 28th day of May, 1999, by and between Townsend Analytics, Ltd., an Illinois corporation, having its principal office at 100 South Wacker Drive, Suite 2040, Chicago, Illinois 60606 ("TAL"), and PC Quote.Com, Inc., a Delaware corporation, whose principal office is located at 300 S. Wacker Drive, Chicago, Illinois 60606 ("PQT").


W I T N E S S E T H


WHEREAS, TAL (a) designs, develops, markets and licenses computer software and computer-based software systems and has developed a suite of real time software products called "TAL Trading Tools Package" ("the Product") that performs a variety of functions such as (1) the display of market price quotations, news, and other information for analysis ("RealTick-TM-"); (2) order entry including initiating and transmitting of trading orders, position management, etc. ("RealTrade-TM-"); (3) Software Server applications ("Software Server Applications") which provide permissioning, real-time and historical market prices and news to the Product (PermSrv-TM-, TASrv-TM-, and TALNet-TM-, among others); and (b) operates an Internet and frame relay site for distribution of market quotes, trades, and other services ("TAL site"); and


WHEREAS, in connection with the utilization of the Product, certain services are licensed by PQT from HyperFeed Technologies ("HyperFeed"); and


WHEREAS, PQT acknowledges that the Product does constitute valuable property of TAS not within the public domain, and that, but for this Agreement, and rights granted herein, PQT would have no rights with respect thereto; and


WHEREAS, PQT is in the business of distributing market data, operating an Internet service and of selling, licensing, supporting, installing and servicing computer software, and has represented that it has the resources, facilities and personnel necessary to maintain the high standards of performance which are necessary to achieve maximum sales of TAL's products through satisfaction of the end user ("Customer");


WHEREAS, PQT would like to use the Product to provide an Internet service to its customers; and


WHEREAS, TAL and PQT have agreed that throughout the course of this Agreement and in terminating this Agreement they will act in a fair, equitable and ethical manner to each other as well as to the end user;


NOW, THEREFORE, TAL and PQT agree as follows:


1. LICENSE AND APPOINTMENT


(a) LICENSES. TAL hereby grants to PQT,


(i) the non-exclusive, nontransferable right during the Term
(subject to the terms herein) to use, reproduce and display
the Software Server


Applications and RealTick at Sites specified in Schedule 2.


(ii) the non-exclusive, and nontransferable right (subject to the
terms herein) during the Term to market and distribute
RealTick and to grant within the Territory, to its customers
non-exclusive, nontransferable rights.


TAL and PQT acknowledge and agree that Customers with End User
Agreements expiring after the termination of this Agreement shall
survive such termination and Customers shall be permitted to use the
Product until the termination or expiration of such End User Agreement
pursuant to the terms thereof, as long as PQT fulfills its obligation to
pay license fees and exchange fees as contemplated in this Agreement.


(b) APPOINTMENT AND ACCEPTANCE. TAL hereby appoints PQT, subject to
the provisions, terms and conditions set forth in this Agreement, as a
non-exclusive distributor for the licensing, support and servicing of
the Product or Products listed in the attached Schedule 2 to this
Agreement, which Schedule may be amended from time to time. PQT hereby
accepts such appointment, and by accepting said appointment,
acknowledges that it has read and understood this Agreement and the
Schedule attached hereto.


(c) RESERVATION OF RIGHTS. TAL reserves the right to license, sell,
support, and service the Product in competition with the PQT and to
appoint, without limitation, other distributors for the Product. Nothing
in this Agreement prohibits TAL from offering the Product, as part of
other Internet services on any other data feed including its own data
feed.


2. PQT OWNERSHIP, MANAGEMENT AND BUSINESS. This Agreement is entered into by TAL in reliance upon the representations and agreements by PQT regarding its ownership, management and conduct of its business. PQT agrees to give TAL thirty (30) days prior written notice of its intention to effect any of the following changes, and no such change shall be made without the prior written approval of TAL, which approval shall not be unreasonably withheld.


(a) A change or transfer which would materially affect, either
directly or indirectly, the ownership, management or control of PQT.


(b) A sale or transfer of any substantial portion of PQT's
business property or business assets other than in the ordinary course of
business.


3. TERM.


(a) This Agreement shall become effective as of the date first
above written and shall remain in effect until December 4, 2000, unless
earlier terminated in accordance with the provisions of Paragraph 4.


(b) This Agreement shall thereafter be automatically renewed for
successive one (1) year periods unless either party notifies the other
not less than ninety (90) days prior to the end of any particular term
that it does not agree to such an automatic renewal.


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4. TERMINATION.


(a) BY TAL. TAL may terminate this Agreement if, at any time
during the term of this Agreement or any renewal hereof, PQT is in
material breach of any of the terms, conditions, duties or obligations
contained in or referred to in this Agreement, and such breach remains
uncorrected for a period of ten (10) days following written notice by
TAL to PQT of said breach and TAL's intention to terminate this
Agreement, provided however, that TAL may elect to terminate this
Agreement immediately upon written notice to PQT, if PQT has violated
any of the material terms, conditions, duties or obligations contained
in or referred to in Paragraph 5(c) (End-User Agreement) or Paragraph 11
(PQT Standards of Operation) hereof. For purposes of this Paragraph, but
without limiting TAL's right to terminate, a material breach shall
include without limitation the following events:


(i) Failure by PQT to make any payment when such payment
becomes validly due to TAL, provided that nothing contained herein
shall, or is intended to, change or limit either TAL's right to
take any other or further action or pursue any remedy at law or in
equity to collect any sums past due.


(ii) PQT's violation of any of the provisions of Paragraph
2 (PQT Ownership, Management and Business); Paragraphs 5(c)
(End-User Agreement); Paragraph 6 (Warranties); Paragraph 11 (PQT
Standards of Operation); Paragraph 12 (Marketing); Paragraph 13
(Redistribution); Paragraph 15 (Private Label); and Paragraph 20
(Confidentiality of Trade Secrets) as set forth below;


(iii) Failure by PQT to correct any practice or conduct
within ten (10) days of its receipt of written notice from TAL
that such practice or conduct is considered by TAL to be
detrimental to the interests or reputation of TAL.


(iv) Dissolution or insolvency of PQT, or the filing by or
against PQT of a petition in bankruptcy or for an arrangement,
composition or reorganization, which is not dismissed within sixty
(60) days, or the appointment of a receiver, trustee or custodian
for any substantial part of PQT's property or business, or an
assignment by PQT for the benefit of its creditors.


(v) Submission by PQT of any information in connection
with this Agreement which proves to be false or incorrect in any
material respect on the date submitted; omission by PQT to submit
information required under this Agreement; or failure to update
information previously supplied, if such causes other information
submitted to be false or incorrect in any material respect.


(b) BY PQT. PQT may terminate this Agreement if, at any time
during the term of this Agreement or any renewal hereof, TAL is in
material breach of any of the terms, conditions, duties or obligations
contained in or referred to in this Agreement, and such breach remains
uncorrected for a period of ten (10) days following written notice by
PQT to TAL of said breach and PQT's intention to terminate this
Agreement. Termination does not relieve PQT for obligations already
incurred or accrued for current or prior transactions.


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5. TERMS OF LICENSE.


(a) LICENSE FEES. TAL's license fee for PQT for the Product
shall be the license fee established by TAL from time to time, plus all
applicable delivery charges, provided that the effective date of any
customer license fee modification shall be the first day of the next
customer renewal term referenced in Paragraph 7 below. The fees
applicable on the date of this Agreement are set forth in Schedule 2
attached hereto. PQT shall be solely responsible for any and all taxes
arising from each order for the Product placed with TAL. TAL may change
at the time of renewal of this Agreement, upon thirty (30) days prior
written notice to PQT, the fee and/or terms of payment by PQT for new
and renewing Customers, provided that changes in fees or terms that are
less favorable to the distributor shall not be applied to orders placed
by PQT and accepted by TAL prior to the date of notice, and scheduled
for immediate installation. Such changes in fees or terms that are more
favorable to PQT shall be applied to all orders not delivered. PQT shall
bear all costs, insurance premiums, communications costs, freight and
all other charges and expenses incurred by TAL for delivery to PQT.


(b) PAYMENT. PQT shall pay for the use of all Products in
advance of the month of service to PQT by TAL. A ten (10) day grace
period will be allowed if all license fees are otherwise current. Upon
receipt of payment, TAL will provide passwords to enable use of the
Product for the month.


(c) END-USER AGREEMENT. PQT shall not distribute the Product or
permit a customer to use the Product without first obtaining from each
Customer a signed end user agreement, the form of which has been
approved in writing by TAL. PQT may use an alternative procedure for
obtaining signed end user agreement, provided that (i) the end user is
required to take some affirmative action to use or install the Product,
such as breaking a seal or clicking an electronic "accept" button; (ii)
the end user is advised that taking such action indicates acceptance of
the terms and conditions of the end-user terms of use agreement, and
(iii) the end user has the opportunity to read the end user agreement
and the applicable warranty in its entirety before taking such action.
PQT may only use this alternative procedure if the method is used as a
standard practice by PQT for other PQT products and services in the
ordinary course of business. PQT shall prepare and submit monthly
reports to TAL which contain the names of new Customers and a brief
description of the type of end user agreement executed by each Customer
(e.g. alternative procedure or standard written end user agreement).


(d) RISK OF LOSS. TAL's responsibility for loss or damage
occurring in shipment, storage, delivery or otherwise, to any items
being sent to PQT, or being sent to others for PQT, shall under all
circumstances cease after such items have been delivered by TAL to any
carrier.


6. WARRANTIES. TAL expressly disclaims all warranties, express or implied with respect to the Product and related materials, or their quality of performance including warranties of merchantability and fitness for a particular purpose. TAL makes no representation concerning the likelihood of profitable trading using the Product. The


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Product is licensed "as is" and "with all faults". PQT shall not extend any warranties for or on behalf of TAL and shall make no representation or warranty regarding the Product or the likelihood of profitable trading based on the Product. In no event shall TAL incur any liability to PQT or any customer of PQT arising out of any contract or arrangement between PQT and any of its customers unless TAL shall expressly and in writing agree to the contrary.


ALL WARRANTIES, EXPRESS OR IMPLIED, WHETHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR USE ARE HEREBY DISCLAIMED IN THEIR ENTIRETY. TAL DOES NOT ASSUME, NOR AUTHORIZE ANY OTHER PERSON TO ASSUME FOR IT, ANY OTHER LIABILITY IN CONNECTION WITH THE DESIGN, MANUFACTURE, LICENSING, INSTALLATION, OR USE OF ANY OF ITS PRODUCTS. NEITHER PARTY SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THE LICENSING, DESIGN, MANUFACTURE, INSTALLATION OR USE OF ANY PRODUCTS, WHETHER DUE TO NEGLIGENCE OR ANY OTHER CAUSE.


TAL's liability, if any, under this Agreement, shall in all events be limited to repair or replacement at TAL's sole option of any Product which is defective in a material manner, which shall be PQT's sole and exclusive remedy; provided, however, that if any such defective Product cannot in TAL's sole opinion be repaired or replaced, then TAL's liability shall be limited to the return of the last month's license payment thereof paid in connection with or for such defective Product. Either party shall have the option to terminate this Agreement upon notice to the other party delivered within fifteen days after such payment. Any unauthorized modification or improvement to the Product which affects the Product as delivered to PQT will void TAL's then-current warrant.


7. CUSTOMER'S TERM. PQT agrees that the maximum term of any license of the Product to Customers will be no more than one year unless TAL otherwise agrees in writing and that PQT will not license the Product to new Customers after the delivery of notice of termination pursuant to Paragraph 4 unless otherwise agreed in writing by the parties.


8. AUDITING. PQT shall make a remote dial-up connection to the Internet site available to TAL in order for TAL to monitor PQT's licensing of the Product. PQT shall provide a modem and pay the basic monthly telecommunication line charges to establish the connection. TAL shall pay for all dial-up connection time charges. Such access may not be used by TAL for any purpose other than verification of the license fees owed it hereunder.


9. ONGOING LICENSE FEE OBLIGATIONS. Except as otherwise specifically provided herein (including with respect to any grant of rights and licenses herein, any continuing license fee payments provided for herein and the continued furnishing of the Product to customers after expiration of the Term), upon expiration of the Term or upon termination, neither party shall have any further obligations under this Agreement; provided, that termination or expiration hereof shall not affect or impair any right or obligation of a party hereto arising prior to termination or expiration. As soon as PQT's


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license fee obligations under this Agreement shall have ceased, PQT will stop using, reproducing, displaying, marketing, and distributing the Product and make all reasonable efforts to cause Customers to stop using the Product.


10. MINIMUM AGGREGATE LICENSE FEE PAYMENTS.


(a) PQT agrees to pay a minimum aggregate license fee payment
("Minimum Aggregate License Fee Payment") to TAL of five million dollars
($5,000,000) during the initial term of this Agreement. Minimum monthly
license fee payments ("Minimum Monthly License Fee Payment") of at least
two hundred twenty thousand dollars ($220,000) will be paid by PQT on a
monthly basis to TAL. The minimum monthly license fee payment (that
shall be due and payable hereunder shall be $220,000 until the Minimum
Aggregate License Fee Payment has been paid in full. From and after the
month in which the Minimum Aggregate License Fee Payment is paid in
full, PQT shall pay the license fee set forth in Schedule 2 without
regard to the Minimum Monthly License Fee Payment amount.


(b) Notwithstanding anything to the contrary contained herein,
half of the amount of license fees paid by PCQuote, Inc. since April
1st, 1999 shall be applied to the Minimum Aggregate License Fee Payment
due from PQT to TAL.


(c) If this agreement is terminated for any reason, PQT shall
pay the unpaid balance of the Minimum Aggregate License Fee Payment
immediately, unless this Agreement has been terminated by PQT pursuant
to Paragraph 4(b) of this Agreement.


(d) PQT's payment of the Minimum Aggregate License Fee Payment
shall not relieve PQT from its continuing obligation to pay license fees
hereunder.


11. PQT STANDARDS OF OPERATION. PQT shall use its best efforts to promote the licensing of the Product. PQT shall also undertake to maintain high standards of performance, and shall conduct its business at all times in such a manner as will reflect favorably on TAL and its products and avoid in any way any deceptive, misleading or unethical practices or advertising. PQT shall comply with each of the following standards:


(a) PLACE OF BUSINESS, EQUIPMENT AND FACILITIES. PQT will
equip, staff and maintain a place of business and the equipment and
facilities which reflect favorably upon TAL and its products.


(b) FINANCIAL RESPONSIBILITY. At TAL's request, PQT shall
provide TAL with financial information about PQT's operations in order
to establish and maintain lines of credit.


(c) RECORDS AND RECORD KEEPING. PQT agrees to keep accurate
books and records of account for a period of up to three (3) years after
the close of each calendar year showing all information necessary for
the accurate determination of the number of units of the Product sold
and the gross proceeds thereof and agrees


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that TAL or an independent firm of accountants selected by TAL, shall
have right to inspect the books and records of PQT, it being agreed that
any books or records reviewed in connection with such inspection shall be
kept strictly confidential and shall not be utilized in any commercial
manner other than in connection with determining compliance with this
Agreement. In the event such inspection discloses a liability to TAL as
the result of the failure of PQT to properly discharge its obligations
hereunder in the amount of ten (10%) percent or more, PQT shall pay to TAL
the cost of such audit in addition to the amount of such discrepancy. The
provisions of this Paragraph shall survive termination of this Agreement
for a period of twenty-four (24) months after termination.


(d) MODIFICATION OR CONVERSION OF PRODUCTS. PQT shall not
remove, deface or otherwise change any descriptive markings, labels, the
language of the End-User Agreement, or the copyright notice on any of the
Products. PQT shall not, without the prior written consent of TAL, make,
sell, license or distribute any modifications or improvements to the
Products which affect the Product as delivered to PQT. PQT will not
knowingly maintain or support software which has been modified or
converted without TAL's prior authorization.


12. MARKETING.


(a) PQT will comply with TAL's then-current policies regarding
advertising and promotion and the use of TAL's service marks and the
like, which policies may be amended by TAL at any time, or from time to
time. Additionally, PQT will prominently feature the Product in
promotional activities. As part of its general promotional activities
for the Product, PQT will feature the appropriate TAL tradename or
trademark wherever practicable and in a form approved by TAL. PQT shall
not, under any circumstance, use the words "agent", "agency" or other
such words in connection with its display of TAL's tradename.


Prior to any use, PQT shall provide TAL with copies, duplicates,
photographs or samples of packaging, advertising, copy, brochures,
marketing and promotional materials, documentation and technical
materials, and other documents and materials of PQT bearing any
trademark of TAL for review of the manner in which such trademarks are
proposed to be used. TAL shall be deemed to have consented to any
proposed use of the trademarks of which it has been given notice as
provided herein if it does not object to such use in writing to PQT
within five (5) business days of receipt of such notice of proposed use.


From time to time TAL may furnish PQT with manuals and technical
material prepared to facilitate PQT's sales efforts. All such materials,
manuals and lists remain the property of TAL and are to be returned to
TAL upon the termination or expiration of this Agreement, except as TAL
and PQT may otherwise agree.


(b) PQT agrees to provide similar advertising placement for the
Product should it market Orbit or any product similar to Orbit or the
Product on its web site. PQT also agrees to profile TAL on the PQT web
sites as a strategic business ally.


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TAL agrees to profile PQT on its web sites and TAL agrees to profile PQT
as a strategic business ally.


(c) PQT agrees to spend at least as much in advertising dollars
the Product as it spends on Orbit and other products similar to Orbit or
the Product.


(d) TAL agrees that PQT may market RealTick under the name "PC
Quote 6.0 for Windows". PQT will change the branding of the Product to
"PC Quote 6.0 for Windows brought to you by RealTick" or some other form
that is reasonably approved by TAL. Notwithstanding the provisions of
clause (j) below (which provisions shall be effective immediately), in
no event shall PQT be forced to change the branding in a period of time
which is less than six (6) months from the Effective Date.


(e) PQT agrees to market RealTrade provided by TAL, subject to
terms and conditions to be mutually agreed upon.


(f) PQT will set the sales and commission structure of the
Product such that they shall be equivalent on a percentage of revenue
basis to other PQT products. TAL, with PQT's prior written consent, may
offer an incentive to PQT sales representatives directly to promote TAL
product lines.


(g) PQT will, at TAL's request, provide TAL with sales and
marketing data and reports to enable TAL to monitor PQT's compliance
with the terms herein, within a reasonable period of time.


(h) PQT agrees to use its best efforts to market the Product and
Services.


(i) All Products licensed by PQT shall bear the appropriate TAL
trademarks and copyrights. PQT shall not be deemed by anything contained
in or done pursuant to this Agreement to acquire any right, title or
interest in or to the use of any TAL tradename, trademark or service
mark, and shall do nothing to prejudice the value or validity of TAL's
rights therein or ownership thereof. PQT shall not use any TAL
tradename, trademark, service mark, symbols or the like in connection
with the offer and/or sale of any other product or in any manner found
objectionable by TAL. Upon termination or nonrenewal of this Agreement,
PQT shall discontinue any use of TAL's trademarks and service marks,
tradenames, identifying symbols and the like, and all labels, brochures,
displays and any and all literature and advertising media relating to
TAL or any of its products.


(j) PQT agrees that all marketing efforts and all documentation
related to the Product, including but not limited to print and
electronic advertisements and literature, shall state that the Product
is the property of Townsend Analytics and shall mention RealTick and TAL
in a form which shall be approved prior to use by TAL.


(k) Notwithstanding anything to the contrary contained in the
Agreement, TAL agrees that PQT may develop, license, distribute, market
and otherwise commercially exploit PQT's proprietary products which may
be competitive with


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Products (as that term is defined in the Agreement), including, but not
limited to the Orbit product.


13. REDISTRIBUTION. Except as specified in Schedule 2 below, PQT agrees that it does not have the right to license to its customers to redistribute the Product over the Internet.


14. SUPPORT.


(a) PQT SUPPORT TO TAL.


(i) PQT agrees to provide (or cause HyperFeed to provide) TAL
with technical support necessary for TAL to maintain the driver
and feed handler with adequate notice of changes in the feed
specifications and in the market data.


(ii) PQT agrees to provide support to end users of the Product
and Services.


(iii) PQT shall be adequately familiar with the Product to
provide assistance to customers in the installation and use of
the Product.


(iv) PQT agrees to provide (or cause HyperFeed to provide) TAL
with a computer similar to the computer that will be installed
for customer's server, communication equipment required to
receive PQT data at TAL's offices and real time market data
including exchange, news, and fundamental data necessary for
development.


(v) PQT agrees to provide (or cause HyperFeed to provide) PC
Quote data, including exchange and source data, at no charge to
TAL at TAL's site. This data sha ...