Common use of The Licensed Software Clause in Contracts

The Licensed Software. SmartServ hereby grants to DTN and its subsidiaries an exclusive, perpetual, worldwide license (the "License") to use the object code of the Internet Software as part of DTN's and its subsidiaries' business operations and to allow the subscribers of DTN and its subsidiaries to use the Internet Software to access the Internet Services. SmartServ agrees not to license, sell, convey or otherwise transfer to anyone other than DTN any rights in the Internet Software except SmartServ may license the "Order Entry FIX Protocol" software to the Bank of New York as provided in this paragraph. In addition, SmartServ shall not use or allow anyone other than DTN to use the Internet Software to compete with the Internet Services. If during any calendar year ending after year 2000 (the "Base Year"), the aggregate SmartServ Trading Revenue for such calendar year does not equal or exceed the aggregate SmartServ Trading Revenue for the Base Year plus 30% thereof for each calendar year following the Base Year, to and including such calendar year, then the exclusivity with respect to the License shall cease and the License shall become nonexclusive unless DTN pays to SmartServ the difference within thirty (30) days after the end of such calendar year. If during any calendar quarter ending after the first twelve months of the License Term, DTN does not obtain at least 800 subscribers to the Internet Services (exclusive of renewing subscribers, but not net of terminating subscribers) at an average of at least $84.00 per subscriber per month, which dollar amount shall be reduced 4% each year thereafter but not 3 -70- below an average of $65.00 per subscriber per month, then the exclusivity with respect to the License shall cease and the License shall become nonexclusive; provided, however, in the event of a sale to any entity listed in Schedule C to this Agreement or to an affiliate of such entity of (i) all or substantially all of the assets of DTN or (ii) sufficient stock of DTN to effect a change in control of DTN, by whatever manner including, without limitation, any merger, consolidation, sale of assets, sale of capital stock or similar transaction, the 800 subscribers requirement shall temporarily be raised to 1200 subscribers for the eighteen (18) month period immediately following the occurrence of such event. SmartServ is negotiating an agreement for the license by SmartServ of its "Order Entry FIX Protocol" software to the Bank of New York or its affiliate which is a permitted exception to the exclusivity of the License as provided above. If the Bank of New York or its affiliate acquires a perpetual right or license to use the "Order Entry FIX Protocol" software, DTN shall be entitled to 30% of the revenues derived by SmartServ therefrom.

The Licensed Software. SmartServ hereby grants to DTN and its subsidiaries an exclusive, perpetual, worldwide license (the "License") to use the object code of the Internet Software as part of DTN's and its subsidiaries' business operations and to allow the subscribers of DTN and its subsidiaries to use the Internet Software to access the Internet Services. SmartServ agrees not to license, sell, convey or otherwise transfer to anyone other than DTN any rights in the Internet Software except SmartServ may license the "Order Entry FIX Protocol" software to the Bank of New York **** as provided in this paragraph. In addition, SmartServ shall not use or allow anyone other than DTN to use the Internet Software to compete with the Internet Services. If during any calendar year ending after year 2000 (the "Base Year"), the aggregate SmartServ Trading Revenue for such calendar year does not equal or exceed the aggregate SmartServ Trading Revenue for the Base Year plus 30% **** thereof for each calendar year following the Base Year, to and including such calendar year, then the exclusivity with respect to the License shall cease and the License shall become nonexclusive unless DTN pays to SmartServ the ****REPRESENTS MATERIAL REDACTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. difference within thirty (30) days after the end of such calendar year. If during any calendar quarter ending after the first twelve months of the License Term, DTN does not obtain at least 800 **** subscribers to the Internet Services (exclusive of renewing subscribers, but not net of terminating subscribers) at an average of at least $84.00 **** per subscriber per month, which dollar amount shall be reduced 4% **** each year thereafter but not 3 -70- below an average of $65.00 **** per subscriber per month, then the exclusivity with respect to the License shall cease and the License shall become nonexclusive; provided, however, in the event of a sale to any entity listed in Schedule C to this Agreement or to an affiliate of such entity of (i) all or substantially all of the assets of DTN or (ii) sufficient stock of DTN to effect a change in control of DTN, by whatever manner including, without limitation, any merger, consolidation, sale of assets, sale of capital stock or similar transaction, the 800 **** subscribers requirement shall temporarily be raised to 1200 **** subscribers for the eighteen (18) month period immediately following the occurrence of such event. SmartServ is negotiating an agreement for the license by SmartServ of its "Order Entry FIX Protocol" software to the Bank of New York **** or its affiliate which is a permitted exception to the exclusivity of the License as provided above. If the Bank of New York **** or its affiliate acquires a perpetual right or license to use the "Order Entry FIX Protocol" software, DTN shall be entitled to 30% **** of the revenues derived by SmartServ therefrom.