This AGREEMENT, dated, is entered into by and between: Minneapolis Grain Exchange (the "Sublicensor"), a not-for-profit mutual membership organization under the laws of the State of Minnesota, U.S.A. with its principal place of business at 102 Grain Exchange Building, 400 South 4 th Street, Minneapolis, MN 55415-1413, U.S.A. And (the "Sublicensee"), a company/person with its principal place of business at WHEREAS A. OM Technology AB ("OM") has granted a license (the "Software Product License") to certain software and documentation (the "Software Product") pursuant to an agreement dated August 31, 2001entered into between OM and the Sublicensor. B. The Software Product License entitles the Sublicensor to grant sublicenses to Members and Third Party Developers with respect to the software applications specified in Annex A hereto, being software comprised in the Software Product (the "Sublicensed Software"). C. These general terms and conditions govern the sublicensing by the Sublicensee of the Sublicensed Software as specified in Annex A. ARTICLE 1 DEFINITIONS AND INTERPRETATION "Member" shall mean users of the Sublicensor Market, authorised by the Sublicensor to access the central portions of the Software Product primarily for the purpose of placing orders. "OM" shall mean OM Technology AB, Norrlandsgatan 31, 105 78 Stockholm, Sweden or its successors or assigns. OM Technology AB, Sublicensing Agreement 1(7)
"OM Confidential Information" shall mean all confidential or proprietary information and documentation comprised in and relating to the Sublicensed Software. "Party" or "Parties" shall mean the Sublicensor or the Sublicensee separately or together as the context requires. "Sublicense" shall have the meaning set forth in Section 2.01. "Sublicensed Software" shall have the meaning set forth in Recital B. "Sublicensor's Market" shall mean the Sublicensor's electronic trading network for members or other Members world-wide to be operated by the Sublicensor, exclusively in the Territory, and on which trading activities will take place. "Term" shall mean the period of time beginning on the date that this Agreement is entered into and ending on the date that either Party gives notice to the other Party that it wishes to terminate this Agreement. "Territory" shall mean United States of America. "Third Party Developer" shall mean a third party software developer engaged by and authorized by the Sublicensor, inter alia, to develop applications which interface with the Software Product. ARTICLE 2 LICENSE TO SUBLICENSED SOFTWARE 2.01 License. The Sublicensor hereby grants to the Sublicensee a non-exclusive, non-transferable license, to use the Sublicensed Software, during the Term, in object code form (the "Sublicense"). 2.02 Scope of Sublicense. The Sublicense shall be subject to the following additional terms and conditions: (1) Where the Sublicensee is a Member, the Sublicensee shall be entitled to use the Sublicensed Software for any purpose in the ordinary course of business, directly related to the Sublicensee's activities as a Member. (2) Where the Sublicensee is a Third Party Developer, the Sublicensee shall be entitled to use the Sublicensed Software for any purpose in the ordinary course of business, directly related to the Sublicensee's activities developing software on behalf of the Sublicensor for use on the Sublicensor's Market. 2.03 Subject of Sublicense. OM Technology AB, Sublicensing Agreement 2(7)
The subject of the Sublicense shall be the version of the Sublicensed Software specified in Annex A and delivered to the Sublicensee upon execution of this Agreement, in object code form, and thereafter, new versions of the Sublicensed Software developed and licensed to the Sublicensor by OM and delivered to the Sublicensee by the Sublicensor. (1) The Sublicensed Software is licensed for execution on hardware and standard software configurations fulfilling the minimum requirements specified in Annex A, as amended by the Sublicensor from time to time. Where the Sublicensee is a Third Party Developer, the Sublicensee may use other hardware and software configurations for development and testing purposes, however, recognizing that the Sublicensed Software is not intended to be operated in such a manner. (2) Sublicensee does not obtain by means of this Agreement any right of ownership or title to the Sublicensed Software. (3) Sublicensee shall not sub-license or otherwise transfer or assign the Sublicense or disclose or otherwise make the Sublicensed Software available to any third party or use or permit the use of the Sublicensed Software outside the scope of the Sublicense; (4) Sublicensee shall be entitled to make one (1) copy of the Sublicensed Software for back up purposes only. (5) Additional licenses to the Sublicensed Software for testing and training purposes may be granted subject to separate agreement. (6) The Sublicensed Software may not be modified, adapted, altered, decompiled, reverse assembled or reverse engineered by the Sublicensee. (7) The Sublicensee shall not derive works from the Sublicensed Software. 2.04 Intellectual Property Rights. (1) Ownership of any intellectual property rights in (1) the Software Product (2) the Sublicensed Software, and (3) any works derived from the software specified in subsections "(1)", "(2)", shall vest or remain vested in OM or any other entity as OM may in its sole discretion elect. (2) The reproduction of or use of the Sublicensed Software (a) by a Member, for purposes other than those specified in Section 2.02(1), or (b) by a Third Party Developer, for purposes other than those specified in Section 2.02(2), is prohibited. The Sublicensed Software is and incorporates proprietary information and trade secrets of OM or any third party holder of rights represented by OM. Sublicensee understands and acknowledges that the confidentiality provisions set forth in Article 4 below apply to the Sublicense. OM Technology AB, Sublicensing Agreement 3(7)
(3) "OM", "OM CLICK Exchange System", "OM CLICK Trade application", "OM SECUR Clearing System", "OM PowerCLICK Exchange System", "OMlink Trader" and "OMnet" are trademarks of OM or any third party holder of rights represented by OM. Such trademarks or service marks applied to copies of the Sublicensed Software, screen layouts or the like, by OM may not be removed by Sublicensee. 2.05 Breach of License Terms. (1) In the event Sublicensor or OM has reasonable cause to believe that Sublicensee is in breach of any of the provisions set forth herein, Sublicensee shall, within thirty (30) days of receipt of such request from Sublicensor or OM, provide Sublicensor and OM with a written explanation or written confirmation that the breach has been cured. (2) In the event Sublicensee fails or neglects to perform or observe any of its material obligations under the provisions set forth in this Agreement, and fails to remedy the same within thirty (30) days following receipt of a written notice of the occurrence of failure and demand to cure, Sublicensee shall pay liquidated damages to OM, in an amount of USD one hundred thousand (USD100,000), together with all costs and expenses incurred in connection with any recovery action, including legal and court costs incurred by Sublicensor and/or OM. In the event that the actual damage suffered is in excess of such liquidated amount, OM shall be entitled to damages corresponding to the actual damage suffered. (3) In the event any breach of any of the provisions of this Agreement set forth herein is caused wilfully or with gross negligence by Sublicensee, and is not cured by Sublicensee within thirty (30) days of receipt of notice of the breach, Sublicensor shall terminate the licenses granted hereunder immediately. In the event of license termination as aforesaid Sublicensee shall, free of charge, and without undue delay transfer to Sublicensor the Sublicensed Software transferred to Sublicensee by Sublicensor without keeping any copy or transcript thereof. ARTICLE 3 LIMITATION OF LIABILITY NEITHER OM NOR SUBLICENSOR WILL IN ANY EVENT BE LIABLE FOR ANY DAMAGES WHATSOEVER TOWARDS SUBLICENSEE, INCURRED BY SUBLICENSEE AS A RESULT OF ITS USE OF THE SUBLICENSED SOFTWARE. THE SUBLICENSED SOFTWARE IS PROVIDED TO SUBLICENSEE "AS IS," WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES AGAINST INFRINGEMENT. NEITHER OM NOR SUBLICENSOR SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL, INCIDENTAL OR OTHER SUCH DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS OR OM Technology AB, Sublicensing Agreement 4(7)
BUSINESS INTERRUPTION DAMAGES, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ARTICLE 4 CONFIDENTIALITY 4.01 Confidential Information. All OM Confidential Information shall be held in confidence by Sublicensee to the same extent and in at least the same manner as Sublicensee protects its own confidential or proprietary information. Sublicensee further undertakes to use the OM Confidential Information strictly for the purposes of this Agreement and not to make any other commercial use thereof. ARTICLE 5 RELATIONSHIP TO TRADING RULES AND REGULATIONS 5.01 Relationship To Trading Rules And Regulations. Nothing in this Agreement shall modify, supercede, or impact Sublicensee's relationship with Sublicensor, or vice versa, including without limitation the rules and regulations regarding trading on Sublicensor's markets (including the Sublicensor's Market). Without limiting the generality of the foregoing, Sublicensee acknowledges that while the use of the Software Product and the Sublicensed Software are governed by this Agreement, Sublicensee and its users and customers are also subject to Sublicensor's rules and regulations as they may be promulgated and amended from time to time, including Chapters 18 and 21 of Sublicensor's Rule Book as well as applicable U.S. laws and rules and regulations promulgated thereunder. ARTICLE 6 MISCELLANEOUS 6.01 Governing Law. This Agreement shall be governed by and construed in accordance with New York law. 6.02 Third Party Beneficiary. OM is an intended third party beneficiary of this Agreement. 6.03 Costs. Sublicensee shall have full obligation, and Sublicensor shall have no obligation whatsoever to reimburse Sublicensee, for any expenses or costs incurred by Sublicensee in the performance of this Agreement, even at Sublicensor's suggestion. Sublicensee's incurring of costs or expenses under this Agreement is at Sublicensee's sole risk and upon Sublicensee's independent business judgment that such costs and expenses are justifiable. OM Technology AB, Sublicensing Agreement 5(7)
6.04 No Assignment. Sublicensee represents that it is acting on its own behalf and is not acting as an agent for or on behalf of any third party, and further agrees that it may not assign its rights or obligations under this Agreement without prior written consent of Sublicensor. Any assignment made without such written consent shall have no effect. 6.05 Severability. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, it is the intent of the parties that all other provisions of this Agreement be construed so as to remain fully valid, enforceable, and binding on the Parties. 6.06 Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and merges all prior and contemporaneous communications. It shall not be modified except by a written agreement dates subsequent to the date of this Agreement and signed on behalf of Sublicensee and Sublicensor by their respective duly authorized representatives. Place and date Place and Date Minneapolis Grain Exchange Sublicensee Printed name and title Printed name and title M1: 815329.04 OM Technology AB, Sublicensing Agreement 6(7)
Annex A Sublicensed Software The Sublicensed Software shall comprise OM's proprietary software applications CLICK Trade and CLICK Exchange, including the OMnet API software. Hardware Configuration The minimum hardware configuration requirements for the operation of the Sublicensed Software shall be as follows: n Qty CLICK Trade Workstation minimum requirements Pentium III 600 MHz or faster 256 MB RAM, 4GB HD Storage Windows NT 4.0 (service pack 4 or higher) or Windows 2000 A network card supported by Windows NT 4.0 or Windows 2000 A 21" display, or larger with a graphics card supporting 1280 X 1024 pixels or more (minimum 4MB RAM ). Keyboard and mouse M1: 815329.04 OM Technology AB, Sublicensing Agreement 7(7)