SOFTWARE LICENSE AND MAINTENANCE
AGREEMENT
THIS SOFTWARE LICENSE AND MAINTENANCE
AGREEMENT (“Agreement”) is made and entered
into as of this 27 th day of April 2009 by and between SFG Financial
Corp, a/k/a E-Path FX, a Delaware Corporation whose principal
address is 575 Madison Avenue, 8 th Floor, New York, NY
10022 (“Licensor”), and 551 FX IB
Associates, LLC a Delaware Limited Liability Company, whose
principal address is located at 575 Madison Avenue, 8
th Floor, New York, NY 10022
(“Licensee”).
WHEREAS , Licensor is the owner of a certain proprietary
trading software known as the “E-Path FX Trading
Platform”, specifically, and variations thereof, along with
documentation and related information, including the intellectual
property rights pertaining thereto: and
WHEREAS , Licensor is the owner of the computer equipment
(the “Hardware”) required for the operation of the
Platform that is located at a single centralized location,
specifically at Internap Inc,76 Ninth Avenue, New York, New
York10011; and
WHEREAS , Licensee desires to obtain from licensor a Non
Exclusive, Non Transferrable license rights and licenses
granted herein to the Platform, for purposes of implementing and
marketing an over-the-counter, (“OTC”) Foreign Currency
Exchange Service utilizing the Platform; and
WHEREAS , Licensor shall convey a Non Exclusive license to
the Licensee solely for Licensee’s use in the field of
foreign exchange transactions only; and
WHEREAS , Licensor is willing to grant such rights,
licenses and options under the terms and conditions of this
agreement;
NOW THEREFORE , in
consideration of the mutual covenants contained herein and other
good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto, intending to be
legally bound, agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
For the purposes of this Agreement:
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“AFFILIATE” means, in the case of any corporation,
partnership, limited liability company or other business or
investment entity, a different business entity or other individual
that directly or indirectly, through one or more intermediaries
controls, or is controlled by, or is under common control with the
business entity.
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“CONFIDENTIAL
INFORMATION” shall
mean, all existing and future information, including but not
limited to Software documentation, Software training and
instruction manuals, data, reports, programs, methods, tapes,
recorded notes, computer-generated data, tests, studies and other
written documents, computer programs, proprietary trade secrets and
know-how, Software, Intellectual Property Rights and any and all
other information embodied in a tangible form relating to and
disclosed to the Licensee in connection with this Agreement,
including but not limited to those related to the Licensed
Technology. The foregoing items referenced in the preceding
sentence shall be deemed to be “confidential” within
the meaning hereof when, and so long as it is not in possession of
the Licensee prior to the disclosure thereof (except in the event
same wrongfully obtained by, or wrongly disclosed to the Licensee);
or is not then and does not become part of the public knowledge and
literature through the fault of the Licensee.
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“DERIVATIVE WORK”
means any additions, modifications,
improvements or enhancements based upon or incorporating the
Licensed Technology, such as modifications, enhancements or any
other form in which the Licensed Software may be recast,
transformed or adapted.
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“DOCUMENTATION”
means documentation developed by
Licensor from time to time in printed or computer file format
relating to the installation or use of the Licensed
Software.
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“FIELD OF USE”
means, and is limited to, the
utilization of the Licensed Technology by the Licensee for the
exclusive purpose of fulfilling Spot FX transactions by
transmitting market data and orders. The “Field of Use”
shall not include any functions or applications not expressly
described in the preceding sentence, but shall include functions or
applications developed by Licensor to enhance the performance
within the “Field of Use”.
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“INTELLECTUAL PROPERTY
RIGHTS” means, collectively, all of the following
intellectual and similar property rights of Licensor, whether or
not filed, perfected, registered, issued or recorded and whether
now or hereafter existing including, but not limited to, all: (i)
patents, patent applications, and patent rights, including any and
all continuations, divisions, reissues, reexaminations, or
extensions thereof; (ii) rights associated with works of
authorship, including but not limited to copyrights, copyright
applications and copyright registrations. Moral Rights (as defined
below) trademarks, trademark applications, service marks, trade
dress and mask works; (iii) rights relating to the protection of
trade secrets, know-how and other confidential information
including, but not limited to, rights in industrial property and
all associated information and confidential or proprietary
information; (iv) industrial design rights; (v) utility models,
inventions, and/or discoveries; (vi) know-how or other data or
information, software, databases and all embodiments or fixations
thereof; (vii) Licenses, documentations, registrations and
franchises, and all additions, improvements and accessions to , and
books and records describing or used in connection with, any of the
items set forth in the preceding clause and (viii) any rights
analogous to those set forth in the preceding clauses and any other
proprietary rights relating to intangible property.
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“LICENSED KNOW-HOW”
means the proprietary know-how and
trade secrets related to the Licensed Software and all Intellectual
Property Rights with respect to the Licensed Software.
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“LICENSED SOFTWARE”
means the Platform
Software.
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“LICENSED TECHNOLOGY”
means the Licensed Know-How and the
Licensed Software, collectively.
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“MORAL RIGHTS”
means and right of paternity or
integrity, any right to claim authorship of, to object to or
prevent and distortion, mutilation or modification of, or other
derogatory action in relation to, the subject work, whether or not
such would be prejudicial to the author’s honor or
reputation, to withdraw from circulation or control the publication
or distribution of the subject work, or similar right, existing
under judicial or statutory law of any county in the world, or
under and treaty, regardless of whether or not such right is
denominated or generally referred to as a “moral”
right.
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“PLATFORM SOFTWARE”
means all Software owned, licensed
and/or controlled by Licensor necessary for the Licensee to operate
“E-Path FX Trading Platform” (“Platform”),
which provides real-time consolidation of multiple Electronic
Communication Networks (“ECN”) markets, exchanges, and
other pools of liquidity for Spot FX (collectively the “Pools
of Liquidity”) via proprietary processes and front-end user
interface for viewing market data and trading Spot FX.
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“SOFTWARE” means computer programs and systems, whether
embodied in software , firmware or otherwise, including, software
compilations, software, software implementations of algorithms,
software tool sets, compilers, and software models and
methodologies (regardless of the stage of development or
completion) including any and all: (a) media on which any of the
foregoing is recorded; (b) forms in which any of the foregoing is
embodied (whether in Source Code, Object Code, executable code or
human readable form); (c) translation, ported versions and
modifications or any of the foregoing. Source Code means fully
documented human-readable source code form of the Software,
including programmer’s notes and materials and documentation,
sufficient to allow a reasonably skilled programmer to understand
the design, logic, structure, functionality, operation and features
and to use, operate, maintain, modify, support and diagnose errors.
Object Code means Software in machine-readable form that is
substantially or entirely in binary form or otherwise directly
executable by a computer after processing or linking.
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ARTICLE II
LICENSE GRANT AND
RESTRICTIONS
I. Licensee
acknowledges and agrees that:
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The Licensed Technology is comprised of
Licensor’s trade secrets and other proprietary, confidential
information; and
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Licensee will not sell, lease, lend, transfer,
assign, hypothecate, or otherwise distribute the licensed programs
to any third party for use in the field of foreign exchange
transactions unless the Licensee receives specific approval of the
Licensor.
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Licensor hereby, subject to the terms and
conditions of this Agreement and provided that Licensee
makes payments to Licensor as required under this
Agreement, grants to Licensee a non-exclusive license to
utilize Licensed Technology solely in the Field of Use and subject
to the additional restrictions set forth below and otherwise in
this License Agreement.
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It is hereby acknowledged by Licensor, that
Licensee desires to make use of the Licensed Technology to access
consolidated market data and to enter orders for trading Spot
FX.
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The Licensee’s rights to access and use
the Licensed Technology is limited to Licensor’s operating
hours, on days that the foreign exchange markets are open for
trading (“FX”) (“Market
Day”). At the end of the Licensor’s
operating hours or each market day the system will automatically
transmit cancellation messages for each open ticket that is
processed on the system or on any of the Pools of Liquidity at that
time. There is no guarantee that these cancellations of
the open tickets, nor that such tickets will not result in
executions outside of the Licensor’s operating
hours. The Licensee will be responsible for immediately
reporting to the Licensor any apparent failure of either
transmissions or other system failure or delays.
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The Licensee will use the Licensed Technology
only for (i) receiving market data, and (ii) entering
trading tickets in the ordinary course of the Licensee’s
business activities.
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The licensee will not use the Licensed
Technology or permit the use of the Licensed Technology for any
illegal purpose, and will use the Licensed Technology only in
accordance with the terms of this License Agreement.
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The Licensee acknowledges and understands
neither, the Licensor, nor any of its respective affiliates,
employees, officers or agents shall assume any responsibility or
liability for the system’s operations, involving the
operations of any equipment, (including but not limited to computer
equipment or peripherals, server equipment, communication equipment
and data lines, all such equipment, collectively referred to herein
as the “Equipment”).
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Licensor, specifically and without limiting any
of the foregoing assumes neither , responsibility or
liability for the availability, timeliness or accuracy of the
system or any equipment, regardless of whether or not the equipment
was recommended, selected, is contained for, or is located on the
Licensor’s premises.
The Licensee has independently evaluated the
system, and has concluded that use of the system confers a
significant benefit to the Licensee. Accordingly the
Licensee hereby assumes all liabilities and risks associated with
the use of the system and equipment, except for direct damages
arising from gross negligence or willful misconduct of the
Licensor.
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The Licensee acknowledges and understands that
accessing the Licensed Technology triggers and constitutes a
renewed assumption of such liabilities and risk.
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The Licensee agrees that neither the Licensor,
nor any of its respective affiliates, employees, officers, or
agents, shall be liable for any loss, damage, cost or expense,
(direct or indirect) except for direct damages arising from
the gross negligence of willful misconduct of the
Licensor.
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Licensor shall assume no liability, both
contingent and otherwise, which may arise out of or be in any way
related to the following; (a) furnishing, performance, maintenance,
use of, or inability to use all or any part of the system, (b) any
fault in the delivery or operation of the system, (c) suspension or
termination of the Licensee’s ability to use all or part of
the system, or any inaccuracies or omissions in any information or
documentation provided, (d) any failure or delay suffered or
allegedly suffered by Licensee in initiating and terminating
trades, (e) the termination of all or part of this Licensee
Agreement by the Licensor, (f) the termination or modification of
any and all parts of the License.
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The foregoing shall apply regardless of whether
a claim arises in contract, tort, negligence, strict liability or
otherwise.
II. Additional Restrictions. The
Licensee expressly agrees and acknowledges that, notwithstanding
anything herein to the contrary, Licensee is not licensed to, and
Licensee expressly agrees that it shall not(and shall not permit
any third party to);
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use the Licensed Technology (all or any portion
thereof) other than within the scope of the license granted by
Licensor under this Agreement;
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disclose any Licensed Technology to, or permit
the use or access of any Licensed Technology by, any third party
for any reason without the prior written consent of
Licensor;
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sublicense, assign, lease, transfer or
distribute any Licensed Technology, or operate and Licensed
Technology for timesharing, rental, outsourcing, or service bureau
operations, or to train persons (other than employees of the
Licensee on the use of any Licensed Technology solely in the Field
of Use);
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create or develop, and/or allow any third party
to create or develop, any Derivative Work of any Licensed
Technology;
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disclose any Licensed Technology to, or permit
the use or access of any Licensed Technology by any individuals
other than the employees of the Licensee for use in the Field of
Use.
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directly or indirectly, reverse engineer,
reverse assemble, disassemble or decompile all
and/or part of the Licensed Technology, or otherwise
attempt to discover any source code, algorithms, trade secrets or
other proprietary rights embedded in or relating to the Licensed
Technology by any means whatsoever (except and solely to the extent
that applicable law prohibits reverse engineering restrictions),
nor shall it knowingly permit any other individual or corporation,
association, partnership, limited liability Licensee, joint
venture, joint stock or other Licensee, business trust, trust,
organization, governmental authority or other entity of any kind to
do so.
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Modify, alter, improve and/or change in any
manner all and/or any portion of the Licensed Technology in any
manner without the prior written consent of Licensor.
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In addition, Licensor acknowledges and agrees
that, except to the extent necessary for Licensee to exercise its
rights under the license granted in this Agreement, Licensee is not
being granted, and will not hold, any other intellectual property
rights of Licensor whatsoever. Licensee’s rights in the
Licensed Technology are hereby limited to the license rights
expressly granted to Licensee under this Agreement and all rights
not expressly granted to Licensee herein are expressly reserved and
retained by Licensor. Licensee acknowledges that the grant of the
license set forth in this Section is a non-exclusive license and
that the Licensor shall have the right to use and to license to
other parties the Licensed Technology for any purpose and in any
manner as Licensor may determine in its sole discretion.
Licensee acknowledges and agrees that the
restrictions set forth in this Section, constitute a material
inducement and consideration for Licensor’s willingness to
grant the license set forth herein. Any failure of Licensee to
adhere to these restrictions will constitute a material failure of
consideration and material breach of this Agreement that will
entitle Licensor to terminate this Agreement and all
Licensee’s rights and licenses hereunder upon written notice
to Licensee in accordance with the provisions of this
Agreement.
ARTICLE III
OWNERSHIP
Licensee acknowledges that Licensor
owns all right, title, and interest in and to the Licensed
Technology and all Intellectual Property Rights therein. Licensee
will not delete or in any manner alter the copyright, or other
proprietary rights, notices of Licensor appearing on or in the
Licensed Technology as delivered to Licensee. Licensee will not
copy or reproduce the Licensed Technology (including Derivative
Works of Licensed Technology), in whole or in part without the
prior written consent of Licensor. To the extent Licensee is
provided reproduction rights pursuant to such written consent,
Licensee must reproduce on each copy of any Software related to the
Licensed Technology, all copyrights, patent, or trademark notice,
and any other proprietary legends that were provided in the
originals. In addition, Licensee will use its reasonable efforts to
protect Intellectual Property Rights in the Licensed Technology and
will report promptly to Licensor any infringement of such rights of
which the Licensee becomes aware. Licensor reserves the right at
its discretion to assert claims against third parties for the
infringement or misappropriation of Licensor’s Intellectual;
Property Rights in the Licensed Technology and to retain all
compensation, damages and other amount payable to Licensor with
regard to such infringement or misappropriation therein.
ARTICLE IV
TERM
I Subject
to termination pursuant to this Agreement, the Non Exclusive
license granted by Licensor to Licensee shall be for an initial
period of 36 months, commencing from the acceptance date, (the
“Initial Period”). The Agreement may be renewed for an
additional period of seven (7) years at the option of the Licensor.
Upon any breach by Licensee of any representation, warranty,
covenant and/or obligation hereunder, the Licensor may immediately
terminate this Agreement and prohibit the Licensee’s use of
any and/or all of the Licensed Technology. In the event of such
immediate termination Licensor shall retain all of it rights under
this Agreement and applicable law including but not limited to the
right to receive payments for all trades performed using the
Licensed Technology.
II The
Initial Period shall be extended by mutual written of the parties
within 45 days of the close of the Initial Period.
III Any
additional extension of this License Agreement will be by mutual
agreement in writing.
ARTICLE V
LICENSEE FEE, TAXES, AND TERM
I
As consideration for the Licensee to use the licensed
programs and software system as set forth in this agreement,
Licensee shall pay to Licensor the Non Exclusive license fee as set
forth below.
Licensee shall remit to Licensor,
contemporaneous with the execution of this Agreement, an Initial
Payment of $35,000.00 which has previously been advanced
by Licensee to the Licensor.
All payments provided for in this Agreement are
exclusive of, (and Licensee shall pay) all taxes, customs, duties,
insurance, shipping, and other charges. Payments made to
Licensor shall be in United States Dollars.
All taxes in connection with this Agreement
including foreign or domestic sales, use, personal property,
excise, or other similar taxes, duties, and charges that may become
due as a result of sales of the Platform, however, designated,
which charges shall be paid directly by Licensee.
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The Licensor shall grant to the Licensee a six
month option (the “Option”) to purchase up to 3,333,333
shares of its common stock. If the Option is exercised in part or
in whole on or before June 30, 2009, the exercise price of the
Option shall be $0.15. However, if the Option is exercised
a
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