1
EXHIBIT 10.2
THE NASDAQ STOCK MARKET, INC.
NQDS INFORMATION VENDOR AGREEMENT
THIS NQDS INFORMATION VENDOR AGREEMENT ("Agreement") is made
by and between The Nasdaq Stock Market, Inc., a Delaware corporation, which is a
wholly owned subsidiary of the National Association of Securities Dealers, Inc.
("NASD"), and whose executive offices are located at 0000 X Xxxxxx, X.X.,
Xxxxxxxxxx, X.X. 00000, and FIRST INTERNATIONAL FINANCIAL CORPORATION,
("Vendor"), a ALBERTA CORPORATION, whose principal executive offices are located
at 0000 00XX XXX XXXXXXX XXXXXXX X0XXX0.
WHEREAS, Nasdaq has developed the National Quotation Data
Service ("NQDS Service") which makes available to authorized vendors certain
market information for Nasdaq National Market(R) and Nasdaq SmallCap Market(SM)
securities that has been collected, validated, processed, and recorded by the
Nasdaq(R) System ("System"); and
WHEREAS, in accordance with the provisions hereof, Nasdaq
desires to utilize the System to make the Information available to Vendor and
Vendor desires to distribute the Information to interrogation devices owned
and/or controlled by Vendor or its subscribers; and
WHEREAS, Vendor has developed a subscriber interrogation
service ("Service") whereby it intends to disseminate the Information to
interrogation devices owned and/or controlled by Vendor or its subscribers; and
WHEREAS, Vendor desires to receive and utilize the Information
from the System through a communications interface between Vendor's computers
and the System to provide the Service in accordance with the detailed
description of Vendor's system and services set forth in Attachment A hereto,
which is attached to and made a part of this Agreement; and
WHEREAS, Nasdaq is willing to furnish and Vendor is willing to
receive the NQDS Service subject to the terms and conditions hereof.
NOW, THEREFORE, in consideration of the premises and the mutual covenants and
conditions herein contained, Vendor and Nasdaq agree as follows:
Section 1. Definitions.
The following initially capitalized words or phrases shall
have the meanings set forth below when used in this Agreement.
(a) "Claims or Losses" means any and all liabilities,
obligations, losses, damages, penalties, claims, actions, suits, costs,
judgments, settlements, and expenses of whatever nature, including, without
limitation (i) direct, indirect, punitive, consequential and incidental damages,
and (ii) administrative costs, litigation costs, and attorneys' and auditors'
fees and disbursements.
2
(b) "Corporations" means the National Association of
Securities Dealers, Inc. ("NASD"), The Nasdaq Stock Market, Inc. ("Nasdaq"), and
any other subsidiaries or affiliates of the NASD now or hereafter in existence.
(c) "Exchange Act" means the Securities Exchange Act of 1934,
as amended.
(d) "Indemnified Parties", means the Corporations and each of
their officers, directors, employees and agents.
(e) "Information" means the updated individual market maker
bid and ask quotation information for each authorized Nasdaq National Market and
Nasdaq SmallCap Market securities for which the requisite minimum number of
registered market makers are entering quotations and/or certain other or
alternate information as determined by Nasdaq. A person shall be deemed to
receive or make use of the Information if he receives or makes use of all or any
part of the Information.
(f) "Interrogation Device" means any device or equipment,
including, without limitation, any computer, terminal, CRT or other display
device, which receives and displays or communicates the Information to any
person in visual or audible form. Interrogation Devices do not include printers,
disk drives, communication circuits, computers and other peripheral, front end,
and similar ancillary devices and equipment unless used to display the
Information in visual or audible form to Subscribers.
(g) "NQDS Service" means the National Quotation Data Service,
whereby Nasdaq makes the Information available to Vendor on a real-time basis,
directly or through a Nasdaq-authorized supplier.
(h) "SEC" means the Securities and Exchange Commission, and
any other or successor federal agency exercising the functions or
responsibilities assigned to the SEC.
(i) "Service" means Vendor's service, including the equipment
and software related thereto, for disseminating the Information to Interrogation
Devices owned and/or controlled by Vendor or its Subscribers, as further
described in Attachment A hereto.
(j) "Subscriber" means any person who subscribes to Vendor's
Service and is entitled to receive the Information pursuant to Section 4(d)
hereof.
(k) "System" means the computerized securities information
system for Nasdaq National Market and Nasdaq SmallCap Market securities operated
by the Corporations.
Section 2. Furnishing the Information.
(a) This Agreement governs the furnishing to Vendor by Nasdaq
of the information on a non-exclusive basis and the receipt and utilization of
the Information by Vendor in the manner described herein and in Attachments A,
B, C and D hereto, which are attached to and made a part hereof. Attachment A
hereto describes vendor's system and services, including the Interrogation
Devices upon which the information is to be disseminated by Vendor to its
Subscribers and the precise nature and format of the presentation of, and access
to, the
3
Information. Attachment B hereto sets further the technical and operational
requirements that must be met by Vendor to enable it to receive the Information
and the technical method by which such information will be provided to Vendor by
Nasdaq. Attachment C here to contains a list, by Subscriber, of each
Interrogation Device through which the Information provided to Vendor under this
Agreement may be received by Subscribers. This list also shows the Vendor and
Subscriber addresses where Interrogation Devices are located, the quantity, type
and serial number of each interrogation device located at such addresses, and
the date each interrogation device first became capable of receiving the
Information without further action by Vendor. Attachment D hereto sets forth
terms and conditions applicable to payment of fees and related provisions.
(b) Nasdaq will make available the Information to Vendor from
the System. Vendor shall be responsible for obtaining the requisite quantity and
quality of common carrier communication lines and for interfacing with the
system at Trumbull, Connecticut, or at such other places as the central
computers or any back up computers for the System may be located, as described
in Attachment B hereto. Vendor will meet any reasonable requirement of Nasdaq
concerning the location of the interface(s) with the System.
(c) Vendor acknowledges and agrees that nothing herein shall
be deemed to constitute an agreement by Nasdaq to continue to disseminate the
Information in the present form or configuration or to continue to utilize any
present or future circuit or circuits carrying the Information in either the
present form or in any other form. Nasdaq, in its sole discretion, may from time
to time make modifications to the Information and the System, including the
interface and operational requirements referred to in Attachment B hereto,
irrespective of whether such changes would require changes to be made by Vendor
to its Service or in the Interrogation Devices or other equipment or would
render them inoperative with respect to the Information. Nasdaq agrees to give
Vendor at least ninety (90) days prior written notice of any change in the
speed, code, format, operating hours, or any other changes in the operational
requirements contained in Attachment B hereto, unless a malfunction in the
System necessitates modifications on an accelerated basis or an emergency
situation precludes such advance notice. Vendor shall bear all risks of failing
to make concurrent modifications to its Service. Any changes pursuant to this
subsection (c) will be applicable generally to all persons in the same class of
service as Vendor, or such part thereof as may be affected by such
modifications.
(d) Nothing contained herein shall be construed to authorize,
appoint or license Vendor to act on an exclusive basis. Nasdaq reserves the
right, without any notice or liability to vendor or to any other person, to
furnish or to contract with any other person to furnish, the Information or any
other market information by any means whatever (including devices or equipment
designed or manufactured by the Corporations or any other person).
Section 3. Use of the Information.
(a) Vendor is authorized by this Agreement to process and use
the Information only for the purposes of providing to its Subscribers listed on
Attachment C hereto a display of the Information supplied by Nasdaq to Vendor on
Interrogation Devices (i) approved by Nasdaq and described in Attachment A
hereto, (ii) listed on Attachment C hereto and (iii) owned or controlled by
Vendor or its Subscribers. Any use of the Information, whether by
4
Vendor or by its Subscribers, including, but not limited to, retransmission or
reprocessing, not expressly described in Attachment A hereto is prohibited.
Should Vendor desire to make any use of the Information (including, but not
limited to, developing or communicating derivative information based upon the
Information, retransmission, calculation of inside quotations or indices) in any
manner not then described in Attachment A hereto, Vendor may do so only with
prior written approval by Nasdaq of such use, which approval shall be reflected
in a written amendment to Attachment A hereto, or a separate agreement with
Vendor pertinent to the particular information or service that its seeks to
offer, and upon payment of the fees applicable to the use approved.
The decision approving or disapproving the proposed
modifications to Attachment A shall be made promptly and in good faith by
Nasdaq. Vendor agrees that no change in or supplement to Vendor's use of the
Information as described in Attachment A hereto shall be implemented by or for
Vendor unless Nasdaq shall have been notified thereof in writing and shall have
approved such change or supplement by amendment to Attachment A hereto. Vendor
agrees not to alter the information in any manner that adversely affects its
accuracy or integrity or that renders it misleading and agrees to continuously
monitor and review the activities of its Subscribers to insure that no
prohibited use of the Information occurs. Vendor agrees that it will not use or
cause or permit to be used, directly or indirectly, all or any part of the
Information except to operate the Service described in Attachment A hereto. If
Nasdaq transmits to Vendor data other than the Information, Vendor shall not
furnish or permit to be furnished such other data to any other party or place
without the prior written approval of Nasdaq.
(b) Notwithstanding subsection (a) above, and for
advertisement or demonstration purposes only, Vendor may use up to two (2)
Interrogation Devices, without charge, which permit persons other than
Subscribers to operate or view the Interrogation Devices on an intermittent
basis and for limited periods of time. In addition, upon obtaining the prior
written consent of Nasdaq, which shall be in the form of an amendment to this
Agreement, Vendor may be permitted to use additional Interrogation Devices for
advertisement or demonstration of its Service, or for product development and
customer service.
(c) Vendor represents that the detailed description of its
Service, and the equipment and software used in connection therewith, including
the Interrogation Devices, set forth in Attachment A hereto is true, complete,
and not misleading.
(d) Vendor acknowledges and agrees that it acts at its own
risk in developing any modification to its Service prior to receiving approval
of Nasdaq, since Nasdaq is not obligated hereby to grant such approval.
(e) Vendor shall ensure that its master computers are capable
of communicating with the System in accordance with the requirements contained
in Attachment B hereto at all times. Any variation by Vendor from the
specifications contained in Attachment B hereto for the interface with the
System is prohibited absent the prior written approval of Nasdaq. Vendor shall
provide written notice to Nasdaq of any change in location of Vendor's master
computers at least sixty (60) business days prior to such change.
5
(f) Vendor shall be responsible for and shall bear all costs
associated with the transmission, storage and distribution of the Information
after receipt from Nasdaq at the interface with the System described in
Attachment B hereto.
(g) Vendor acknowledges that the NASD is registered with the
SEC as a registered national securities association pursuant to Section 15A of
the Exchange Act, and that as such the NASD has a statutory obligation to
protect investors and the public interest and to insure the integrity of
quotation information, including, without limitation, the Information, supplied
to investors and the public; and further, that Section 19 (g)(1) of the Exchange
Act mandates that the NASD, as a self-regulatory organization, comply with the
provisions of the Exchange Act, the rules and regulations thereunder, and its
own rules. Accordingly, Vendor agrees that Nasdaq, as a subsidiary of the NASD,
when required to do so by the NASD, may by written notice to Vendor
unilaterally: (i) limit or terminate the right of any or all persons to receive
or use the Information; or (ii) control the manner in which Information is
formatted and displayed by Vendor to assure the completeness, fairness and
integrity of the Information received by Subscribers. Vendor shall promptly
comply with any such notice, and with respect to clause (i) above, shall
terminate or limit the furnishing of the Information within three (3) days after
receipt of such notice and shall confirm such compliance by written notice to
Nasdaq not later than five (5) days after receipt of notice from Nasdaq. Any
person or persons the subject of notice issued pursuant to this subsection (g)
shall have available to them those procedural protections provided under the
Exchange Act and applicable rules thereunder.
(h) Vendor shall assume sole responsibility for the design,
development, acquisition, installation, testing, implementation, operation and
maintenance of any and all software and equipment used to provide the Service
that is not directly supplied by Nasdaq. Vendor warrants that the design,
development, acquisition, installation, testing, implementation, operation and
maintenance of its Service will not adversely affect the equipment, software or
operation of the System, any of its component parts or processes, or any use
thereof by other persons.
Section 4. Service Charges and Subscriber Agreements.
(a) A schedule of fees will be established by Nasdaq to be
imposed upon Vendor and/or its Subscribers. These fees, and any changes thereto,
will be subject to review and approval by the SEC. A fee schedule applicable to
Subscriber Interrogation Devices and Vendors has been proposed and will be filed
with the SEC. The proposed fee schedule will be effective upon approval by the
SEC, provided, however, that nothing shall preclude the fee initially
established by Nasdaq that becomes effective from having retroactive application
to Vendor and its Subscribers, if permitted by the SEC from the date of
commencement of Service under this Agreement. Prior to approval of the initial
fee, and interim charge of $9.25 per month shall be applied to each Subscriber
Interrogation Device.
Subsequent modifications to the fee schedule approved by the
SEC shall become effective upon thirty (30) days prior written notice to Vendor.
The fee payable for the month of commencement or termination of receipt of the
Information will be a pro rata share of the full monthly fee computed by
dividing the number of days during such month that the Information was received
(or available for receipt) by a standard twenty (20) business day month.
6
(b) Vendor shall have the obligation to pay directly to
Nasdaq, on behalf of itself and all of its Subscribers, one hundred percent
(100%) of the appropriate fees specified in the then effective fee schedule,
without any deductions whatever. Vendor shall assume full and complete
responsibility for the payment of any taxes, charges or assessments imposed on
Vendor or Nasdaq by any foreign or domestic, national, state, provincial or
local governmental bodies, or subdivisions thereof, and any penalties or
interest, relating to the provision of the Information. In addition, if Vendor
is required by applicable law to deduct or withhold any such tax, charge or
assessment from the amounts due Nasdaq under this Section 4, then the amounts
due under this Section 4 shall be increased so that the net amount actually
received by Nasdaq after the deduction or withholding of any such tax, charge or
assessment will equal one hundred percent (100%) of the appropriate fees
specified on the then effective fee schedule. Vendor shall remit such fees to
Nasdaq no later than fifteen (15) calendar days after the end of the service
month; such fees shall be payable in immediately available United States funds
by check or electronic funds transfer drawn against a United States bank or
financial institution acceptable to Nasdaq. Any amounts due Nasdaq which are
past due for thirty (30) days or more shall be subject to a late fee equal to
five percent (5%) of the amount past due. Further, Vendor shall be obligated to
pay interest on any such past due amounts at a rate equal to the lesser or (i)
one and one-half percent (1.5%) per month or (ii) the maximum amount permitted
by applicable law.
(c) Vendor agrees that it will not furnish, or cause or permit
to be furnished, all or any part of the Information except to a Subscriber who,
at the time of receipt thereof, is a party to a binding agreement ("Subscriber
Agreement") with Vendor, in form and substance acceptable to and approved by
Nasdaq, which provides for the Subscriber's assumption of the substantive
obligations required hereby pertinent to such Subscriber, including, without
limitation, Subscriber's agreement to the provisions of Section 5 and 6 hereof.
Vendor shall supply each potential Subscriber with a
Subscriber Agreement approved by Nasdaq. Such Subscriber Agreement shall be
executed in duplicate by the potential Subscriber and Vendor, and Vendor shall
(i) provide the Subscriber with an original counterpart of such Subscriber
Agreement and (ii) maintain an original counterpart of such Subscriber Agreement
in its files for the duration of its Service to such Subscriber, and for (2)
years after discontinuation of Service to such Subscriber. Vendor agrees that it
will not install, operate, or maintain, on the premises of any person, any
equipment for the display or receipt of Information other than the Interrogation
Devices described in Attachment A hereto and that it will not furnish or cause
or permit to be furnished, any part of the Information to any person unless such
person shall be a party to a Subscriber Agreement, then in force with Vendor, as
referenced above, authorizing such person to receive the Information under the
applicable terms and conditions set forth in this Agreement. Subsequent to the
execution of a Subscriber Agreement with a Subscriber, the location and number
of Interrogation Devices receiving or capable of receiving the Information
without further action by Vendor will be furnished to Nasdaq by Vendor, by way
of amendment to Attachment C hereto. Any amendments to Attachment C hereto
resulting from the receipt or termination of receipt of the Information covered
by Subscriber Agreements during the course of any month shall be communicated to
Nasdaq within thirty (30) days of the close of each month. Nothing in this
Agreement shall prevent Vendor from separately charging its Subscribers for its
Service. The specific procedures and responsibilities of Vendor and Nasdaq
concerning the authorization of a Subscriber to receive the Information are set
forth in Attachment D hereto.
7
(d) Vendor shall maintain complete and accurate records at its
principal executive offices identifying all persons able to receive the
Information through the Service. All such persons shall be identified in
Attachment C hereto in accordance with the terms and conditions of this
Agreement. The records shall set forth in reasonable detail the names,
addresses, telephone numbers, and contact persons of each Subscriber, by site at
which Interrogation Devices are located, and the number of Interrogation Devices
located at each site, and the date on which Information first became available
to each Interrogation Device.
(e) Vendor shall comply with Nasdaq's reasonable procedures
and requirements for the verification of all Interrogation Devices for which a
fee is payable to Nasdaq, and any other information relating to the Service as
Nasdaq may reasonably request. Vendor shall deliver to Nasdaq each year an
audited report from an independent certified public accountant retained by
Vendor, satisfactory to Nasdaq, which shall verify the number of Subscribers and
Interrogation Devices receiving the Information and the subscriber and vendor
fees payable to Nasdaq under this Section 4 as of the last day of any selected
month during the Vendor's fiscal year, provided, however, that the month
selected is within fifteen (15) months after the month selected for the
preceding year's report. Vendor shall ensure that delivery of the audited report
is made to Nasdaq within ninety (90) days after the month end selected for the
audit. If this audit report indicates that Vendor has underreported the amount
of Subscriber fees due to Nasdaq, Vendor shall promptly remit any unpaid fees
and applicable interest and late fees to Nasdaq and submit a revised Attachment
C hereto within thirty (30) days of the date of the audit report.
(f) Vendor acknowledges that payment of all fees as described
in this Section 4 is a condition precedent for continued receipt of the
Information. Vendor shall bear all risk of non-payment by its Subscribers. Upon
Vendor's payment to Nasdaq on behalf of a Subscriber of any amounts due under
this Section 4, Vendor shall be subrogated to any and all rights of Nasdaq to
recover such amounts.
(g) From time to time, Nasdaq may cause Vendor's records of
customers, and reports and payments to Nasdaq to be reviewed by Nasdaq personnel
and/or auditors of Nasdaq's choice. The review shall be scheduled upon
reasonable notice to Vendor and conducted in Vendor's offices where its records
are kept. Vendor shall make available for review all records and supporting
documentation necessary in the judgment of the Nasdaq audit personnel to reach a
conclusion as to the accuracy and completeness of Vendor's reports to Nasdaq and
the payments connected therewith. If the examination conducted by Nasdaq
personnel or their auditors reveals exceptions or errors or possible exceptions
or errors in the audit reports provided to Nasdaq pursuant to subsection (f)
above, Vendor shall notify its auditors and direct them to perform such
procedures as are necessary to determine the magnitude of any adjustments of
amounts previously remitted to Nasdaq relating to the audit period in question.
If the audit review conducted by Nasdaq relates to a previously unaudited
period, the results of this review shall be deemed conclusive and the parties
shall promptly adjust payments and records accordingly. The conduct of any such
review by Nasdaq shall not constitute a waiver of the requirement for the annual
audit certification as described in subsection (f) above. If such audit shall
disclose additional underreported amounts, these amounts shall be remitted in
accordance with subsection (f) above. Moreover, should Vendor have underreported
the amount of Subscriber fees due Nasdaq by three percent (3%) or more, for any
audited or unaudited period,
8
Vendor shall, in addition to remitting the fees and applicable interest and late
fees due relative to such underreporting, within fifteen (15) days of invoice
from Nasdaq, reimburse Nasdaq for any audit, legal or administrative fees and
expenses incurred to detect and rectify such underreporting.
(h) Any information obtained by Nasdaq pursuant to subsection
(h) above shall be used solely for the purpose of this Agreement and shall be
kept confidential in accordance with the provisions of Section 15 hereof.
(i) Vendor agrees to pay facilities charges that may in the
future be established by Nasdaq. It is anticipated that such charges, and any
changes thereto, will be subject to review and approval by the SEC. Vendor will
be notified in writing not less than thirty (30) days prior to the imposition
of, or changes in, any facilities charges.
Section 5. Representations and Obligations of Vendor.
(a) Vendor agrees to make a diligent effort to configure and
operate its communications network (or to make a diligent effort to cause such
communications network to be configured and operated) so that said
communications network remains at all times secure from unauthorized entry or
interference and to prevent the Information from being taken from said
communications network, or in any way communicated otherwise than as described
in Attachment A hereto.
(b) Vendor shall not oppose any suit or proceeding instituted
by Nasdaq to enjoin any person receiving the Information from Vendor, who is not
entitled to receive the Information, from obtaining or using the same, and
Vendor agrees to cooperate with and assist Nasdaq in any such suit or
proceeding. If a Nasdaq request for cooperation and assistance imposes
substantial, extraordinary burdens upon Vendor, then Nasdaq agrees to reimburse
Vendor for Vendor's reasonable direct expenses incurred in connection with such
request. If Vendor furnishes, or permits to be furnished, any Information to any
party other than in accordance with this Agreement, without the prior written
approval of Nasdaq, then Nasdaq, in addition to exercising any other rights it
may have under this Agreement, may take any action against such other party to
prevent the receipt or use of the Information by such other party, either with
or without making Vendor a party to such action.
(c) Vendor represents that it is not engaged in, and agrees
not to engage in, any illegal transaction or business, and agrees not to use or
knowingly permit anyone to use the Information for any illegal purpose or for
any purpose not authorized hereby. The Information furnished to Vendor by Nasdaq
shall be solely for use in accordance with this Agreement and Vendor will
neither furnish nor permit others to furnish Information (i) other than in
accordance with this Agreement or (ii) to any person not presently authorized to
receive the Information under the procedures referenced in Section 4(d) hereof.
(d) Vendor will meet any reasonable requirement of Nasdaq
concerning the security arrangements in Vendor's place or places of business
where equipment used to store and transmit the Information is located. Vendor
will adopt and enforce, as respects persons entering Vendor's place or places of
business, any reasonable regulation or requirement which Nasdaq
9
may deem advisable in order to prevent the Information from being improperly
taken from any of Vendor's offices or places of business. For the purpose of
determining compliance with this Agreement, and at all reasonable times, any
person or persons designated by Nasdaq shall have access to the locations where
the Information is processed and the Service is received, and the right to
observe the use made of the Information and the Service and to examine and
inspect all instruments and apparatus used in connection therewith in and such
location.
(e) Neither Vendor nor any officer or employee of the Vendor
shall represent, or shall cause or permit any other person to represent, either
directly or indirectly, that Vendor or all or any part of the Service which
Vendor offers or any equipment utilized by Vendor is sponsored or endorsed by
the Corporations. Vendor acknowledges that "NASD", "Nasdaq", "Nasdaq-100",
"Nasdaq National Market", and "NASDAQ/NMS", "OTC Bulletin Board" are registered
trademarks and/or service marks and Vendor agrees not to use such marks in any
way which would infringe such marks under applicable law. Vendor acknowledges
and agrees that the Corporations have proprietary rights to use the names
"National Association of Securities Dealers, Inc.", "NASD", "The Nasdaq Stock
Market, Inc.", as trade and/or corporate names and Vendor further agrees not to
use said names or any combination or subset thereof in any manner inconsistent
with the Corporations' rights therein. For purposes of monitoring this
requirement, upon reasonable request, Vendor shall provide Nasdaq with any
materials made available to potential users of Vendor's Service. This Agreement
does not constitute a license of the marks listed in this subsection (e).
(f) If any Subscriber fails to comply with any of the
conditions, terms or provisions of this Agreement applicable to Subscribers or
of its Subscriber Agreement, or has made any representation in such Subscriber
Agreement which was or has become untrue, then Vendor shall, within three (3)
days after receipt of notice from Nasdaq of such failure or untruth, notify
Subscriber of such default and provide the opportunity for it to cure the
default within a period of five (5) days. If the default has not been cured
within this period, the Vendor shall cease providing the Information to such
Subscriber and shall, within thirteen (13) days following the receipt of the
original notice received, confirm such termination by written notice to Nasdaq.
(g) Vendor shall deliver to Nasdaq written notice within five
(5) days after Vendor knows or has reason to know that (i) a breach of or
default under this Agreement by Vendor or any Subscriber has occurred or (ii) a
breach of or default under any Subscriber Agreement has occurred, describing the
same in reasonable detail.
Section 6. Limitation of Liability.
Vendor fully understands and agrees to the following
limitations upon the liability of the Corporations: Nasdaq will furnish the
Information from its computers to all vendors as promptly and accurately as
practicable, but the Corporations neither warrant nor guarantee the sequence,
accuracy or completeness of the Information, and further, that with respect to
the Information, THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT
LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. The Corporations shall not be liable to Vendor, its
subscribers, or any other person, regardless of the cause (unless resulting from
the gross negligence or willful misconduct of the Corporations) or duration, for
any inaccuracy or lack of
10
authenticity of the Information furnished, or for any errors or omissions
therein, or for any delays in the transmission of the Information to Vendor or
presentation thereof, or for any interruptions; nor shall the Corporations be
liable to Vendor, its Subscribers, or to any other person, for any damages of
any kind whatever arising therefrom or occasioned thereby. Further, in no event
shall the Corporations be liable for incidental or consequential damages. In
addition, Vendor shall be solely responsible for any errors, omissions, or other
defects in the Information that are caused by the Vendor.
Section 7. Indemnification.
(a) Vendor shall indemnify the Indemnified Parties against,
and hold the Indemnified Parties harmless from, any and all Claims or Losses
imposed on, incurred by or asserted against the Indemnified Parties as a result
of or relating to:
(i) any non-compliance by Vendor or its Subscribers with the
terms and conditions hereof, including, without limitation, non-payment
of fees, illegal use of the Information or any use, diversion,
reprocessing or redissemination of the Information not authorized by
Nasdaq;
(ii) any assertion of Claims or Losses against the Indemnified
Parties made by Subscribers which would otherwise be barred under
Section 6 hereof if asserted by Vendor against the Corporations;
(iii) any assertion of Claims or Losses against the
Indemnified Parties made by Subscribers relating to Nasdaq's exercise
of its remedies under Section 8 hereof;
(iv) any breach by Vendor of its warranty set forth in Section
3(h) hereof;
(v) any defense of or participation by the Indemnified parties
in any action, suit, arbitration, or judicial or administrative
proceeding involving any Claims or Losses described in this subsection
(a).
Such indemnification shall also include any loss in revenue to Nasdaq for
non-payment for any Interrogation Device or the furnishing of Information
covered hereunder by a Subscriber to any other person, or to any other
Interrogation Device, wherever located, from the date such Information was
originally furnished, together with the actual legal, investigative and
administrative costs of detection, rectification and/or prevention of the
violation by a Subscriber of the terms and conditions required to be
incorporated in Subscriber Agreements hereunder.
(b) Vendor shall indemnify the Indemnified Parties against,
and hold the Indemnified Parties harmless from, any and all Claims or Losses
imposed on, incurred by or asserted against the Indemnified Parties as a result
of or relating to any assertion by any person that Vendor's Service infringes
any patent, trademark, service xxxx, copyright, or violates any other property
right, or any defense of or participation by the Indemnified Parties in any
action, suit, arbitration, or judicial or administrative proceeding involving
any Claims or Losses described in this subsection (b). Nasdaq agrees to promptly
notify Vendor in writing of any such suit or proceeding brought against any of
the Indemnified Parties. If permitted by applicable law, Nasdaq further agrees
that, upon request, Vendor shall have the right to defend, settle, or compromise
any such suit or proceeding, at Vendor's expense, provided that: (i) Vendor
demonstrates to Nasdaq's satisfaction that it is financially able to defend such
action and to pay any settlement or judgment; and (ii) counsel retained by
Vendor are satisfactory to Nasdaq.
11
Nasdaq agrees to cooperate with Vendor in the defense of any such suit or
proceeding and Vendor agrees to reimburse Nasdaq for its expenses with respect
thereto.
Section 8. Default.
(a) Vendor has specifically induced Nasdaq to enter into this
Agreement based on the representations and undertakings of Vendor contained
herein. Strict compliance with the provisions of this Agreement are and shall be
a condition precedent to Vendor's right to continue to receive the Information.
Vendor expressly acknowledges and agrees that Nasdaq shall have the rights set
forth in subsection (b) below if Nasdaq shall determine that one or more of the
following events or conditions occurs or is continuing:
(i) Vendor defaults in the payment when due of any of the
amount described in Section 4 hereof;
(ii) any representation, warranty or certification made by
Vendor in this Agreement or in any other document furnished by Vendor
in connection herewith was false or misleading, as of the time made or
furnished;
(iii) Vendor defaults in the performance of any of its
obligations or covenants under this Agreement, or any representation,
warranty or certification described in clause (ii) above shall become
untrue or inaccurate, and such default, untruth or inaccuracy (if
curable) shall continue unremedied for a period of fifteen (15) days
after Nasdaq notifies Vendor thereof;
(iv) Vendor proceeds with a proposed action in default of its
obligations or covenants under this Agreement, or in breach of any
representation, warranty or certification described in clause (ii)
above, after Nasdaq has notified Vendor that such proposed action would
constitute a default hereunder;
(v) Vendor (A) applies for or consents to the appointment of,
or the taking of possession by, a receiver, custodian, trustee or
liquidator of itself or of all or a substantial part of its property,
(B) makes a general assignment for the benefit of it's creditors, (C)
institutes proceedings under the United States Bankruptcy Code, (D)
files a petition seeking to take advantage of any other law relating to
bankruptcy, insolvency, reorganization, winding-up, or composition or
readjustment of debts, (E) fails to controvert in a timely and
appropriate manner, or acquiesces in writing to, any petition filed
against it in an involuntary case under the Bankruptcy Code, or the
board of directors of Vendor takes any action for the purpose of
effecting any of the foregoing;
(vi) a proceeding or case of the type described in clause (v)
above is commenced, without the application or consent of Vendor, in
any court of competent jurisdiction, and such proceeding or case is
entered and continues unstayed and in effect for a period of sixty (60)
days, or an order for relief against Vendor is entered in an
involuntary case under the Bankruptcy Code; or
(vii) Vendor admits in writing its inability to pay its debts
as they become due.
(b) Upon the occurrence of any of the events or conditions
described in subsection (a) above, Nasdaq shall have the immediate right, in its
sole discretion, to take one or more of the following actions: (i) to terminate
this Agreement and Vendor's right to receive the Information hereunder; (ii) to
discontinue providing the Information to Vendor; (iii) to demand arbitration
under Section 14 hereof; or (iv) to pursue such other remedies, consistent with
Section 14 hereof, as it may be entitled hereunder or at law or in equity.
12
(c) Vendor acknowledges and agrees that the exercise by Nasdaq
of the remedies to which it is entitled under this Section 8 shall not be deemed
or considered to be, and to the extent permitted by applicable law Vendor waives
any right to represent or assert that any such exercise constitutes, an act or
omission or an improper denial or limitation of access to any service or
facility operated by the Corporations as contemplated in Section 11A of the
Exchange Act, or any other provision of the Exchange Act, or any rule adopted
thereunder.
Section 9. Term and Termination.
(a) The original term of this Agreement shall commence on the
date specified in Section 25 hereof and shall continue until the date one (1)
year thereafter. The term of this Agreement shall automatically be extended for
successive additional periods of one (1) year unless terminated by written
notice by a party hereto given to the other at least ninety (90) days prior to
the expiration of the original term or any such additional one (1) year period
as the case may be. Notwithstanding the foregoing, and in addition to Nasdaq's
rights under Section 8 hereof, this Agreement may be terminated by:
(i) either party upon breach of this Agreement by the other
party which continues unremedied for fifteen (15) days after notice to
the breaching party; or
(ii) either party upon termination of the right of Vendor to
receive Information pursuant to Section 3 (g) hereof; or
(iii) either party if performance hereof by Nasdaq is impaired
or rendered unnecessary by reason of changes in the statutes, rules and
regulations referenced in Section 16(b) hereof, other than rules and
regulations of the NASD; or
(iv) Vendor should Vendor be unable to receive the Information
as a result of any modification to the operational requirements
notified by Nasdaq in accordance with Section 2(c) hereof; or
(v) Nasdaq should Nasdaq cease providing NQDS Service to all
persons in the same class of service as Vendor, provided, however, that
Nasdaq has given Vendor not less than ninety (90) days notice of its
intention to cease providing NQDS Service.
(b) Upon termination of this Agreement Vendor shall
immediately cease any and all use of the Information.
Section 10. Assignment; Third-Party Rights.
This Agreement shall be binding upon and inure to the benefit
of the parties and their permitted successors and assigns. This Agreement may
not be assigned by any party without the written consent of the other party,
except to a successor corporation by operation of law, merger or consolidation
of either party, or to a corporation or partnership or other entity acquiring
substantially all the property, assets and business of any party by sale, lease
or other disposition or to any corporation controlling, controlled by, or under
common control with any party, except that Nasdaq may assign its rights to any
person as security for or in connection with the borrowing of monies. Except as
otherwise provided in Sections 6, 7, and 21 hereof, nothing in this Agreement
shall entitle any person to any rights as a third-party beneficiary under this
Agreement. Nothing in this Agreement shall constitute the parties as partners or
participants in a joint venture and neither party is appointed the agent of the
other.
13
Section 11. Amendment.
Except as otherwise provided herein, no provision of this
Agreement, or the attachments which are a part hereof, may be amended, modified
or waived unless by an instrument in writing executed on behalf of each of the
parties by their respective duly authorized officers.
Section 12. Waiver.
No failure on the part of either party hereto to exercise, no
delay in exercising, and no course of dealing with respect to any right, power
or privilege under this Agreement shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right, power or privilege preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege under this Agreement.
Section 13. Entire Agreement.
This Agreement constitutes the entire Agreement between the
parties with respect to the subject matter hereof, and supersedes all prior
negotiations, communications, writings, and understandings.
Section 14. Arbitration.
All claims, disputes, controversies and other matters in
question between the parties to this Agreement, arising out of, or relating to
this Agreement, or to the breach hereof, and which cannot be resolved by the
parties shall be settled by binding arbitration in accordance with this
Agreement and the following procedure or such other procedures as may be
mutually agreed upon by the parties:
(a) Either party may serve upon the other party, by hand or
certified mail, return receipt requested, a written demand, specifying in
reasonable detail the nature of the matter, that the claim, dispute, controversy
or other matter in question be submitted to arbitration. The demand, which shall
be effective upon receipt, shall be made within a reasonable time after the
claim, dispute, controversy or other matter in question has arisen. In no event
shall the demand for arbitration be made after the date when institution of
legal or equitable proceedings based upon such claim, dispute, controversy or
other matter in question would be barred by the applicable statute of
limitations or laches.
(b) After service and receipt of a demand for arbitration, the
parties shall attempt to agree upon a single arbitrator within ten(10) days or
such longer period as the parties may agree to.
(c) In the event the parties fail to agree upon a single
arbitrator within the period established under subsection (b) above, then each
party shall appoint one arbitrator within an additional ten (10) days and notify
the other party of such appointment. If either party fails to timely appoint an
arbitrator, then the arbitrator appointed by the other party shall be the sole
arbitrator. If, however, both parties appoint an arbitrator, then a third
arbitrator shall be selected within ten (10) days thereafter by the first two
arbitrators unless otherwise agreed by the parties.
14
If the arbitrators and the parties fail to appoint a third arbitrator, either
party may request the American Arbitration Association or any federal or local
court of the District of Columbia to appoint the third arbitrator.
(d) Any arbitration proceeding shall be conducted in
accordance with the rules of the American Arbitration Association (except that
the procedures set forth in this section shall supersede the rules of the
American Association) or such other procedures as are agreed to by the
arbitrators or the parties. Nothing contained herein shall be construed as
requiring submission of any claim, dispute, controversy or other matter in
question to the American Arbitration Association.
(e) The arbitration proceeding shall be held in the District
of Columbia, unless otherwise agreed by the parties.
(f) The decision rendered through arbitration shall be final
and binding upon the parties hereto and judgment may be entered in accordance
with applicable law in any court having jurisdiction thereof. In rendering a
decision the arbitrators shall be governed by the terms of this Agreement.
(g) Although the parties agree that compulsory and binding
arbitration shall be the exclusive means of dispute resolution, judicial review
of any arbitration decision or proceeding (other than entry or enforcement of an
arbitration award/judgment) or of any matter arising under the terms of this
Agreement, whether or not submitted to the binding arbitration process required
by this Agreement, shall be brought solely in the federal or local courts of the
District of Columbia.
The foregoing procedures shall not preclude either party from
(i) petitioning the SEC regarding a matter in question or (ii) pursuing all
available administrative, judicial or other remedies for infringement of a
registered patent, trademark, service xxxx, or copyright.
Section 15. Confidentiality.
Each party acknowledges that in the course of performance of
this Agreement it may obtain confidential data, information or techniques from
the other party. With respect to any such data, information or techniques which
a party has designated in writing as "confidential" on or before disclosure to
the other party, and which are not otherwise publicly available, the other party
agrees to hold such data, information or techniques confidential, to use it only
in performance of this Agreement, and agrees not to disclose it unless directed
to do so by any court or administrative agency. Nothing in this Agreement shall
constrain the Corporations from using confidential information in furtherance of
their regulatory duties under the Exchange Act.
Section 16. Governing Law.
(a) This Agreement shall be deemed to have been made in the
District of Columbia and shall be construed and enforced in accordance with, and
the validity and performance hereof shall be governed by, the law of the
District of Columbia, without reference to principles of conflicts of laws
thereof. Each party hereby consents to submit to the jurisdiction
15
of the courts of the District of Columbia in connection with any action or
proceeding instituted by the other party pursuant to the provisions of this
Agreement.
(b) This Agreement and the Information to be provided
hereunder are subject to all applicable federal, state and local laws and
governmental rules and regulations, including, without limitation, the Exchange
Act and the Securities Act of 1933, as amended, the rules thereunder, and to the
rules, regulations and requirements of the NASD.
Section 17. Liaison and Notices.
All questions regarding the implementation of this Agreement
shall be directed to the persons identified in subsections (a) and (b) below.
All notices and other communications required or permitted to
be given under this Agreement shall be in writing and shall be deemed to have
been duly given upon actual receipt by the notified party, or upon constructive
receipt (as of the date marked on the return receipt) if sent by certified mail,
return receipt requested, and addressed to the following addresses:
(a) If to Nasdaq: The Nasdaq Stock Market, Inc.
0000 X Xxxxxx X.X.
Xxxxxxxxxx, XX 00000
Attn: Manager, Trading & Market Svc's
(000) 000-0000
with a required copy to: Xxxxxx X. Xxxx
Vice President
The Nasdaq Stock Market, Inc.
0000 X Xxxxxx X.X.
Xxxxxxxxxx, XX 00000
(b) If to Vendor: FIRST INTERNATIONAL FINANCIAL CORP.
0000 00XX XXX XX
XXXXXXX XXXXXXX X0X XX0
ATTN: XXXX XXXX
Either party, by ten (10) days prior written notice, may specify a different
contact person or address for purposes of this Section 17.
Section 18. Receipt of Services by Nasdaq
Vendor agrees that during the term of this Agreement it will
provide to Nasdaq at no cost two (2) subscriptions to the Service covered by
this Agreement together with the equipment used for the display of the Service.
Nasdaq represents and agrees that such subscriptions will be used solely for
purposes of monitoring the Information and demonstration of Vendor's Service.
Section 19. Severability.
16
If any of the provisions of this Agreement, or application
thereof to any person or circumstance, shall to any extent be invalid or
unenforceable, the remainder of this Agreement, or the application of such terms
or provisions to persons or circumstances other than those as to which they are
invalid or unenforceable, shall not be affected thereby, and each term and
provision of this Agreement shall be valid and enforceable to the fullest extent
permitted by law.
Section 20. Captions; Interpretation.
The section headings used in this Agreement are intended
solely for convenience of reference and shall not in any way or manner amplify,
limit, modify or otherwise be used in the interpretation of this Agreement.
Unless otherwise expressly provided, all references herein are to the sections
of or attachments to this Agreement and " hereto," "hereof," "hereby" and
"herein" refer to this Agreement. The masculine, feminine or neuter gender and
the singular or plural number shall be deemed to include the other number or
genders where the context so indicates or requires. The word "person" shall
refer to any natural person, proprietorship, corporation, partnership, or other
entity whatever. Unless otherwise expressly provided, references to days, months
or years are to calendar days, months or years.
Section 21. Force Majeure.
In addition to the provisions of Section 6 hereof, the
Corporations shall not be liable for delay or failure in performance of any of
the acts required by this Agreement when such delay or failure arises from
circumstances beyond the control and without the gross negligence or willful
misconduct of the Corporations. Such causes may include, without limitation,
acts of God, acts of government, in its sovereign or contractual capacity, acts
of public enemy, acts of civil or military authority, war, riots, civil strife,
terrorism, blockades, sabotage, rationing, embargoes, epidemics, earthquakes,
fire, flood, quarantine restrictions, power shortages, utility or communication
failure or delays, labor disputes, strikes, or shortages, or supply shortages.
The time for performance of any act delayed by such events may be postponed for
a period equal to the delay.
Section 22. Bankruptcy.
If Nasdaq is not permitted to terminate this Agreement
pursuant to Section 8 hereof because of the provisions of the United States
Bankruptcy Code, as amended, then Vendor or any trustee for Vendor agrees to
assume or reject this Agreement within no more than fifteen (15) days after
request by Nasdaq to the presiding Bankruptcy Court or judicial officer. Vendor
or any trustee for Vendor agrees not to seek or request any extension or
adjournment of any such application by Nasdaq to such Court or judicial officer.
Section 23. Survival.
The provisions of Sections 4(e), 4(f), 4(h), 4(i), 5(e), 6,
7, 8(c), 9(b), 14, 15, and 16 hereof shall survive the completion of performance
or any termination of this Agreement.
17
Section 24. Authorization.
This Agreement shall not be binding upon Nasdaq unless
executed by an authorized officer of Nasdaq. Vendor, Nasdaq, and the persons
executing this Agreement, represent that such persons have been and are duly
authorized by all necessary and appropriate corporate or other action to execute
this Agreement on behalf of Vendor and Nasdaq, respectively.
Section 25. Effective Date
The execution date of this Agreement shall be the date it is
executed by an authorized officer of Nasdaq. This Agreement shall be effective
upon the earlier of (a) the execution date or (b) the date the Information is
first made available to Vendor.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective authorized officers.
FIRST INTERNATIONAL FINANCIAL CORP.
("VENDOR")
By: /s/ XXXX X. XXXX
----------------------------
Name: XXXX X. XXXX
Title: PRESIDENT
Date: 03/25/97
Executed this day of June 12, 1997, in the District of Columbia, for
and on behalf of:
THE NASDAQ STOCK MARKET. INC.
By: /s/ illegible
----------------------------
Name:
----------------------------
Title: Senior Vice President
The NASDAQ Stock Market, Inc.
