Software Distributor Agreement

EXHIBIT 10(b)


SOFTWARE DISTRIBUTOR AGREEMENT


THIS AGREEMENT (the "Agreement") is entered into and made this 9th day of August, 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 HyperFeed Technologies, Inc., a Delaware corporation, whose principal office is located at 300 S. Wacker Drive, Suite 300 Chicago, Illinois 60606 ("HTI").


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) the provision of software server applications including permissioning, real-time and historical market prices and news to the Product (PermSrv-TM-, TA_SRV-TM-, and TALNet-TM-, among others) ("Software Server Applications"); and (b) the operation of an Internet and frame relay site for distribution of market quotes, trades, and other services ("TAL site"); and


WHEREAS, HTI is in the business of distributing market data, and 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"); and


WHEREAS, HTI desires to market the Product for LAN customers; and


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


WHEREAS, TAL and HTI 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;


WHEREAS, HTI, the entity formerly known as PC Quote, Inc., is affiliated with PC Quote.Com, Inc. ("PQT"); and


WHEREAS, PQT and TAL have entered into a Software License and Distributor Agreement ("PQT Agreement"), dated May 28th, 1999, which obligates PQT to pay TAL certain license fees for its use of the Product;


NOW, THEREFORE, TAL and HTI agree as follows:


1. APPOINTMENT AND ACCEPTANCE. TAL hereby appoints HTI, subject to the provisions, terms and conditions set forth in this Agreement, a non-exclusive distributor in the location(s) listed in the attached Schedule 1 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. HTI hereby accepts such appointment, and by accepting said appointment, acknowledges that it has read and understood this Agreement and the Schedules attached hereto.


2. RESERVATION OF RIGHTS. TAL reserves the right to license, sell, support, and service the Product in competition with HTI and to appoint, without limitation, other distributors for the Product. Nothing in this Agreement prohibits TAL from offering the Product on any other data feed including its own data feed. Subject to Section 13, HTI reserves the right to license, sell, support, and service its products, including HyperFeed 2000 in conjunction with other products which may compete with TAL Products and to appoint, without limitation, other distributors for the such products. Except as explicitly provided in Section 13, nothing in this Agreement prohibits HTI from offering the such products with its data feed.


3. HTI OWNERSHIP, MANAGEMENT AND BUSINESS. This Agreement is entered into by TAL in reliance upon the representations and agreements by HTI regarding its ownership, management and conduct of its business. HTI 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 HTI.


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


4. 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 5.
Notwithstanding the foregoing, this Agreement shall continue for the
period, not to exceed one year, of any customer agreement entered into
prior to December 4, 2000 by HTI.


(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.


5. TERMINATION.


(a) By TAL. TAL may terminate this Agreement if, at any time during
the term of this Agreement or any renewal hereof, HTI is in material
breach of any of the terms, conditions, duties or obligations contained
in or


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referred to in this Agreement, and such breach remains uncorrected for a
period of ten (10) days following written notice by TAL to HTI 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 HTI, if: (a) HTI has violated any material terms, conditions,
duties or obligations contained in or referred to in Paragraph 6(c) (Site
License Agreement) or (b) upon dissolution or insolvency of HTI; (c) upon
the filing by HTI of a voluntary petition in bankruptcy or for an
arrangement, composition, or reorganization or the appointment of a
receiver, trustee or custodian for any substantial part of HTI's property
or business, or an assignment by HTI for the benefit of its creditors; or
(d) upon the filing against HTI of an involuntary petition in bankruptcy or
for an arrangement, composition or reorganization, which is not dismissed
within sixty (60) days or reorganization or the appointment of a receiver,
trustee or custodian for any substantial part of HTI's property or
business, or an assignment by HTI for the benefit of its creditors.


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 HTI 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) HTI's violation of any of the provisions of Paragraph 3 (HTI
Ownership, Management and Business); Paragraph 7 (Warranties); Paragraph
13 (Redistribution); Paragraph 14 (Distribution); Paragraph 16 (Private
Label); Paragraph 18 (Distribution of Product with Order Entry; Paragraph
19 (Distribution of Data to TAL); Paragraph 20 (International
Distribution); and Paragraph 22 (Confidentiality of Trade Secrets) as set
forth below;


(iii) Submission by HTI 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 HTI to submit information materially
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 HTI. HTI 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 HTI to TAL of said
breach and HTI's intention to terminate this Agreement.


(c) Termination does not relieve either party of obligations already incurred or accrued for current or prior transactions.


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6. TERMS OF LICENSE.


(a) LICENSE FEES. TAL's fee for HTI for the Product shall be the
fee established by TAL from time to time plus all delivery costs,
insurance premiums, communications costs, freight and all other charges
and expenses incurred by TAL for delivery to HTI and its customers,
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 8 below. The fees applicable on the date of this
Agreement are set forth in Schedule 2 attached hereto. HTI 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 HTI, the fee
and/or terms of payment by HTI for new and renewing Customers, provided
that changes in fees or terms that are less favorable to HTI shall not
be applied to orders placed by HTI 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 HTI shall be applied to all
orders not delivered.


(b) PAYMENT. HTI shall pay for the use of all Products in advance
of the month of service to HTI 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) SITE LICENSE AGREEMENT. HTI shall not distribute the Product or
permit a customer to use the Product without first obtaining from each
Customer a signed Site License Agreement, the form and content of which
has been approved in writing by TAL. If Site License Agreements were
previously or are hereafter not obtained by HTI or its predecessor PC
Quote, Inc., HTI agrees to remedy the situation by obtaining signed Site
License Agreements which have been approved by TAL within a reasonable
time frame. HTI shall indemnify TAL from any and all losses, claims,
damages, expenses, and any causes of action of every nature whatsoever,
including attorneys' fees, which arise from claims brought by customers
who have not signed Site License Agreements. HTI and its directors,
officers and employees shall represent TAL and its directors, officers
and employees in a positive and reasonable manner in any communications
with customers pertaining to TAL's requirement that such customers
execute TAL's Site License 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
HTI, or being sent to others for HTI, shall under all circumstances
cease after such items have been delivered by TAL to any carrier.


(e) If the license fees owing by any current customer for the
Product are understated by HTI or its predecessor, PC Quote, Inc.,
HTI agrees to: (i) pay to TAL any and all correct license fees owed for
all customers who are being charged incorrect license fees, unless TAL
has expressly agreed in writing to waive payment of fees in specific
cases, and notwithstanding whether HTI has collected


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the fees, and (ii) remedy the situation within a reasonable time frame
so that customers are charged the correct license fees, unless TAL has
expressly agreed in writing to waive this requirement in specific cases.
HTI shall indemnify TAL from any and all losses, claims, damages,
expenses, and any causes of action of every nature whatsoever, including
attorneys' fees, which arise from claims brought by customers regarding
said understated license fees. HTI agrees that it will not offer or
provide any such customers another product in lieu of the Product or
similar to the Product for a period of six (6) months after the date on
which such customer is notified of such understatement. HTI and its
directors, officers and employees shall represent TAL and its directors,
officers and employees in a positive and reasonable manner in any
communications with customers pertaining to any understatement of
licensing fees.


7. 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 Product is licensed "as is" and "with all faults". HTI 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 HTI or any customer of HTI arising out of any contract or arrangement between HTI 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.


If any Product is defective in a material manner, then TAL's liability, if any, under this Agreement, shall in all events be limited to repair or replacement at TAL's sole option, and such repair or replacement shall be HTI'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 (15) days after such payment. Any unauthorized modification or improvement to the Product which affects the Product as delivered to HTI will void TAL's then-current warranty.


8. CUSTOMERS' TERM. HTI 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 HTI will not license the Product to new Customers after the delivery of


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notice of termination pursuant to the terms of this Agreement unless otherwise agreed in writing by the parties.


9. ONGOING LICENSE FEE OBLIGATIONS. Except as otherwise s ...