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EXHIBIT 10.1
NEW YORK STOCK EXCHANGE, INC.
AGREEMENT FOR RECEIPT AND USE OF MARKET DATA
AGREEMENT made as of the 23rd day of December, 1997 between
the executing person ("Customer") and New York Stock Exchange, Inc. ("NYSE")
acting on behalf of the Authorizing SROs* as Paragraph 12 describes.
RECITAL
The Authorizing SROs act (1) cooperatively pursuant to the
"CTA Plan"(1) and the "CQ Plan"(2) (collectively, the "Plans") and on behalf of
Other Data Disseminators*, and (2) individually on their own behalves, to
facilitate the dissemination of the following categories of information:
Network A* Last Sale Price Information* Network B* Last Sale Price Information
Network A Quotation Information* Network B Quotation Information
NYSE Market Information* AMEX Market Information*
Other Market Information* Delayed Last Sale Price Information*
This Agreement refers to such information collectively as
"Market Data" and refers to each category of such information as a "Type of
Market Data") The Authorizing SROs authorize NYSE to enter into this Agreement
to permit Customer to receive and redisseminate and/or otherwise use Market Data
on a non-exclusive basis, and to perform or provide the Services*, (1) to the
extent, for the purposes, and in the manner, specified in Exhibit A and (2) only
in accordance with and subject to this Agreement. This Agreement incorporates
Exhibit A.
TERMS AND CONDITIONS
Customer and the Authorizing SROs by NYSE acting on their
behalf agree as follows:
PART I: MARKET DATA ACCESS AND USE
1. DEFINITIONS
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* Whenever an asterisk follows the first use of a term, Paragraph 1 of
this Agreement refers to or defines that term.
(1) The CTA Plan was filed with the Securities and Exchange Commission (the
"Commission") by certain of the Authorizing SROs pursuant to Rule
17A-15 (later amended and renumbered as Rule 11Aa3-2) under the
Securities Exchange Act of 1934, as amended (the "1934 Act"). The
Commission declared the CTA Plan effective as of May 17, 1974.
(2) The CQ Plan was filed with the Commission by certain of the Authorizing
SROs for the purpose of implementing Rule 11Ac1-1 under the 1934 Act.
The Commission approved the CQ Plan on July 28, 1978.
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(a) "AMEX Market Information" includes Last Sale Price and
Quotation Information relating to Non-Eligible Securities* that are admitted to
dealings on the American Stock Exchange ("AMEX"), index information that AMEX
makes available and such other categories of information as AMEX or an Other
Data Disseminator may make available and AMEX may from time to time identify.
(b) "Authorizing SRO(s)" mean each of the national securities
exchanges, and the national securities association, that are signatories to
either or both Plans. (This agreement refers to any such signatory as a
"Participant".)
(c) "Customer Affiliate" means any person identified in
Exhibit A (i) that receives one or more Services and (ii) as to which NYSE has
made the "control relationship" determination that Paragraph 8(b) describes.
(d) "Data Recipient" means any person that is authorized in
accordance with Paragraph 5 to receive one or more Types of Market Data from
Customer acting pursuant to this Agreement.
(e) "Delayed Last Sale Price Information" means Last Sale
Price Information that has been delayed for such period (the "Delay Period") as
NYSE specifies on 60 days' written notice.
(f) "Disseminating Party" means "CTA" and the "Operating
Committee" (as defined in the CTA and CQ Plans, respectively), each member of
CTA and the Operating Committee, each Authorizing SRO, each facilities manager
for the dissemination of one or more Types of Market Data (e.g., the "Processor"
as defined in the Plans), each Other Data Disseminator, each of their respective
directors, governors, officers, employees and affiliates, and each director,
officer and employee of each such affiliate.
(g) "Eligible Security" has the meaning that the CTA Plan
assigns to that term.
(h) "Indirect Access" means access to one or more of the
Authorizing SROs' Transmission Facilities through an intermediary and in a
manner that (i) allows the access recipient to control the redistribution of
Market Data or (ii) precludes the access provider (A) from exercising
entitlement controls over the access recipient's use of Market Data in a manner
that is satisfactory to NYSE or AMEX, as appropriate, or (B) from otherwise
fulfilling its reporting obligations under its agreement with the Authorizing
SROs. (This Agreement provides terms and conditions pursuant to which Customer
may provide and/or receive Indirect Access.)
(i) "Indirect Access Service" refers to Customer's provision
of Market Data to a Data Recipient in compliance with Exhibit A and in a manner
that NYSE, acting in its sole discretion, determines to constitute Indirect
Access to the Transmission Facilities.
(j) "Interrogation Device" means any terminal or other device,
including, without limitation, any computer, data processing equipment,
communications equipment, cathode ray tube, monitor or audio voice response
equipment, technically enabled to display, transmit or otherwise communicate,
upon inquiry, Market Data in visual, audible or other comprehensible form.
(k) "Interrogation Service" means any service that permits
retrieval of one or more Types of Market Data by means of an Interrogation
Device.
(l) "Last Sale Price Information" means (i) the last sale
prices reflecting completed transactions in Eligible Securities or Non-Eligible
Securities, (ii) the volume and other information related to those transactions,
(iii) the identifier of the Authorizing SRO furnishing the prices, and (iv)
other related information.
(m) "Market Minder" means any Service provided by a Vendor* by
means of an Interrogation Device or other display which (i) permits monitoring,
on a dynamic basis, of Last Sale Price Information and/or Quotation Information
in respect of a particular security, and (ii) displays the most recent Last Sale
Price Information or Quotation Information with respect to that security until
such information has been
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superseded or supplemented by the display of new Last Sale Price Information
reflecting the next reported transaction in that security and/or new Quotation
Information reflecting updated bids or offers for that security.
(n) "Network A" means (i) in respect of Eligible Securities,
Eligible Securities admitted to dealings on NYSE, and (ii) in respect of a
Participant, a Participant that makes available information relating to Network
A Eligible Securities.
(o) "Network B" means (i) in respect of Eligible Securities,
Eligible Securities other than Network A Eligible Securities, and (ii) in
respect of a Participant, a Participant that makes available information
relating to Network B Eligible Securities.
(p) "Non-Eligible Securities" include certain stocks, bonds,
and other securities, that are not Eligible Securities and that are admitted to
dealings on a Participant national securities exchange.
(q) "NYSE Market Information" includes Last Sale Price and
Quotation Information relating to Non-Eligible Securities that are admitted to
dealings on NYSE, index information that NYSE makes available and such other
categories of information as NYSE or an Other Data Disseminator may make
available and NYSE may from time to time identify.
(r) "Other Data Disseminators" means (i) "other reporting
parties" (as the CTA Plan defines that term) and (ii) such other,
non-Participant parties that make market information available over the
Transmission Facilities, or that have a proprietary interest in the index
information that a Participant makes available pursuant to the CTA Plan, as NYSE
or AMEX, as appropriate, may from time to time identify.
(s) "Other Market Information" includes Last Sale Price and
Quotation Information relating to Non-Eligible Securities that are admitted to
dealings on a Participant other than NYSE or AMEX, index information that a
Participant other than NYSE or AMEX makes available pursuant to the CTA Plan and
such other categories of information as a Participant other than NYSE or AMEX,
or an Other Data Disseminator, may make available and NYSE may from time to time
identify.
(t) "Person" means a natural person or proprietorship, or a
corporation, partnership or other organization.
(u) "Quotation Information" means (i) all bids, offers,
quotation sizes, aggregate quotation sizes, identities of brokers or dealers
making bids or offers and other information in respect of Eligible Securities
and Non-Eligible Securities; (ii) the identifier of the Authorizing SRO
furnishing each bid or offer; (iii) each "consolidated BBO" (as the CQ Plan
defines that term) in the foregoing information and any identifier associated
therewith; (iv) each "ITS/CAES BBO" (as the CQ Plan defines that term) and any
identifier associated therewith; and (v) related information.
(v) "Services" include both Subscriber Services* and Indirect
Access Services.
(w) "Service Facilitator" means any person other than a
"common carrier" (as defined in the Federal Communications Act) (i) that assists
Customer as described and in the manner specified in Exhibit A in any aspect of
Customer's receipt, dissemination or other use of Market Data (including any
facilities manager, equipment operator, signal broadcaster or installation
contractor) and (ii) as to which NYSE has made the "Service Facilitator"
determination that Paragraph 8(a) describes.
(x) "Subscriber" means a recipient of one or more types of
Market Data through a Ticker Display*, Interrogation Service, Market Minder
Service, or other Market Data Service from a Vendor, another data redisseminator
or the Authorizing SROs.
(y) "Subscriber Service" refers to any Interrogation, Ticker
Display, Market Minder or other service involving the use of Market Data (other
than an Indirect Access Service) that Customer may create and provide to its own
officers, partners and employees and/or to other Data Recipients, all as Exhibit
A describes.
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(z) "Ticker Display" means a continuous moving display of Last
Sale Price Information (other than a Market Minder) provided on an interrogation
or other display device.
(aa) "Transmission Facilities" include the data transmission
facilities by which the Authorizing SROs make Market Data available pursuant to
the Plans and such other data transmission facilities by which one or more
Authorizing SROs may make Market Data available as NYSE may from time to time
identify.
(bb) "Vendor" means any person engaged in the business of
providing Subscriber Services and/or Indirect Access Services to brokers,
dealers, investors or other persons.
2. PROPRIETARY INTERESTS - Customer understands and
acknowledges, and shall assure that each Customer Affiliate and Service
Facilitator (if any) understands and acknowledges, that each Authorizing SRO and
Other Data Disseminator has a proprietary interest in the Market Data that
originates on or derives from its markets or in its index information.
3. CUSTOMER ACCESS TO MARKET DATA
(a) DIRECT ACCESS - Customer may receive one or more Types of
Market Data through direct access to (i.e., through direct computer-to-computer
interface(s) with) the Transmission Facilities.
(b) INDIRECT ACCESS - Customer may receive one or more Types
of Market Data through Indirect Access to the Transmission Facilities through an
intermediary. However, Customer may do so only after NYSE notifies the
intermediary in writing of NYSE's approval.
(c) ACCESS SPECIFICATIONS AND EXPENSES - Customer may receive
one or more Types of Market Data as Paragraphs 3(a) and 3(b) provide solely as
and to the extent described, and in the manner specified, in Exhibit A. Where
Customer adds, deletes or substitutes either any intermediary or any means of
access (i.e., either direct access or Indirect Access), NYSE must first approve
the addition, deletion or substitution and any related changes as Paragraph 6
describes. Except as NYSE may explicitly undertake, no Authorizing SRO is
responsible for any cost or expense, or for providing any circuit, necessary for
Customer to receive or transmit Market Data.
4. SRO MODIFICATIONS - Upon as much notice as is reasonably
practicable under the circumstances, the Authorizing SROs, without liability to
Customer or to any other person, (a) may discontinue disseminating any or all
Types of Market Data either at all or in any particular manner, (b) may change
or eliminate any circuit(s) carrying any or all Types of Market Data, (c) may
discontinue converting any or all Types of Market Data into electrical signal
form and/or (d) may change the speed or any other characteristic of the
electrical signals representing any or all Types of Market Data.
5. CUSTOMER USE OF MARKET DATA
(a) PERMITTED USE OF DATA - Customer may receive and use a
Type of Market Data pursuant to this Agreement solely as and to the extent
described, and in the manner specified, in Exhibit A. Except as this Paragraph 5
describes, any redissemination or other use of that Type of Market Data is
prohibited. Where NYSE has authorized Customer to provide one or more, but not
all, Types of Market Data to a Data Recipient, Customer shall inhibit the
provision of the unauthorized Type(s) of Market Data in the manner Exhibit A
describes.
(b) SUBSCRIBER SERVICES - Customer may provide one or more
Type(s) of Market Data to a Subscriber through a Subscriber Service solely as
described and in the manner specified in Exhibit A and only pursuant to such one
or more of the following requirements as NYSE or AMEX, as appropriate,
specifies:
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(i) if NYSE, or AMEX, as appropriate, has notified
Customer (by such means as NYSE or AMEX, as appropriate, may specify)
that the person has entered into an appropriate agreement with NYSE or
AMEX that authorizes the person to receive and use the Type(s) of
Market Data; or
(ii) while the person is a party to an effective
agreement with Customer that includes terms and conditions in the form
attached to this Agreement as Exhibit B (if any); or
(iii) Customer's compliance with such alternative or
additional Subscriber Service requirements as NYSE, or AMEX, as
appropriate, may from time to time approve in writing.
Where Customer provides a Subscriber Service pursuant to clause (ii) or (iii) of
this Paragraph 5(b), Customer shall assure that it has the ability to modify its
agreements with Subscribers, and any alternative subscriber requirements, as
NYSE may from time to time specify. Customer shall effect any such modification
promptly, except that Customer may continue to provide a Subscriber Service to
any existing Subscriber without effecting the modification for 90 days from that
receipt. Customer shall discontinue its provision thereafter if the Subscriber
has not agreed to the modification(s). Customer shall promptly describe to NYSE
any breach by a Subscriber of the NYSE-prescribed portions of Customer's
agreements with the Subscriber, or of NYSE-prescribed alternative subscriber
requirements, about which it may learn. Customer shall not in any way amend,
supplement, or otherwise modify NYSE-prescribed provisions or requirements or
vitiate those provisions or requirements by any collateral agreement or
understanding, except as NYSE may otherwise agree in writing.
(c) INDIRECT ACCESS SERVICES - NYSE will determine in its sole
discretion whether the manner in which Customer intends to provide one or more
Types of Market Data to other persons constitutes an Indirect Access Service.
Customer may provide an Indirect Access Service solely as described and in the
manner specified in Exhibit A. Customer shall not provide any person with an
Indirect Access Service unless NYSE has notified Customer that the person has
entered into an appropriate agreement with NYSE authorizing the Indirect Access.
Customer shall promptly notify NYSE whenever any person commences or ceases to
receive an Indirect Access Service.
(d) DELAYED LAST SALE PRICE INFORMATION SERVICES - If Customer
elects to provide Delayed Last Sale Price Information Services (as described,
and in the manner specified, in Exhibit A), Customer shall:
(i) comply with any contract and fee collection
requirements that NYSE may specify from time to time as to persons
receiving Delayed Last Sale Price Information;
(ii) assure that each display of Delayed Last Sale
Price Information conspicuously exhibits a statement indicating that
the information has been delayed and the duration of the delay; and
(iii) assure that any advertisement, sales literature
or other material promoting any Delayed Last Sale Price Information
Service, and any agreement for that Service, includes such a statement
in a conspicuous manner. Customer shall assure that the statement is
effected in the form and manner Exhibit A describes and in a manner
that makes it readily visible to any person viewing the display or
promotional material. In addition, Customer shall comply, and shall use
its best efforts to cause Subscribers to comply, with any other
reasonable regulation that NYSE may adopt from time to time to assure
that viewers of Delayed Last Sale Price Information are not misled as
to its nature.
(e) SECURITIES PROFESSIONAL EXCEPTION - Insofar as (i) NYSE
determines that Customer is a securities professional (such as a registered
broker-dealer or investment adviser) and (ii) Exhibit A does not otherwise
permit Customer to provide Market Data to a particular person or branch office,
Customer, solely in the regular course of its securities business, may
occasionally furnish limited amounts of Market Data to its
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customers and clients and to its branch offices. Customer may do so
notwithstanding anything to the contrary in this Paragraph 5 and subject to such
additional limitations as NYSE may specify in writing. Customer may so furnish
Market Data to its customers and clients who are not on Customer's premises
solely (i) in written advertisements, educational material, sales literature or
similar written communications or (ii) during telephone conversations not
entailing the use of computerized voice synthesization, other electronic
communication or similar technology. Customer may so furnish Market Data to its
branch offices solely (i) as the preceding sentence permits or (ii) through
manual entry over its communications network. Customer shall not permit any
customer or client to take physical possession of any component of the equipment
and software used for or in connection with any Service, except as Exhibit A may
otherwise provide.
(f) PERMITTED CONNECTIONS OF TICKER DISPLAY DEVICES - Customer
may connect approved Ticker Display devices to the Transmission Facilities
solely (i) for persons, and at locations, that NYSE or AMEX, as appropriate, has
approved for that purpose and (ii) as described and in the manner specified in
Exhibit A. Customer shall assure that any Ticker Display device complies with
all NYSE requirements for content, format and timeliness.
6. SERVICE AND SECURITY VARIATIONS AND SUPPLEMENTS - Customer
shall submit for NYSE's approval a description of any proposed, non-trivial
variation or supplement to or deletion from any receipt, redissemination, other
use or display of Market Data or to any Market Data security safeguard. Customer
shall not implement any such variation, supplement or deletion unless NYSE
approves its description in writing, whereupon Exhibit A shall incorporate the
description. Customer understands that NYSE may not approve a proposed
variation, supplement or deletion and that it acts at its own risk if any
significant effort is expended in development prior to NYSE's approval. Customer
further understands that an approved variation or supplement may be subject to
one or more additional or substituted charges payable pursuant to Paragraph 10.
PART II: SECURITY
7. TRANSMISSION AND EQUIPMENT SECURITY
(a) PROTECTION OF TRANSMISSIONS AND EQUIPMENT - Customer shall
assure that Service-related data processing, transmission and communications
equipment and software are arranged and protected so that, so far as reasonably
possible, no person can have unauthorized access to Market Data.
(b) SECURITY BREACHES AND REVISION - Customer shall assure
that the security safeguards that Exhibit A describes are enforced. If, in its
sole discretion, NYSE determines that one or more persons have unauthorized
access to Market Data, Customer shall, in accordance with Paragraph 0, xxxx all
steps necessary to alter the security safeguards and the manner of its receipt
or transmission of Market Data so as to preclude the access. Customer shall
provide NYSE with such evidence as NYSE may request regarding the adequacy of
those steps. If NYSE determines those steps to be inadequate, Customer shall
promptly comply with any writing instructing Customer to discontinue
transmitting Market Data by the inadequately-safeguarded means.
(c) INSPECTION - Customer shall assure that any person
authorized in writing by NYSE (in respect of all Types of Market Data) or by
AMEX (in respect of Network B Market Data and Other Market Information) has
access, at any reasonable time, to any premises of Customer, any Customer
Affiliate, any Service Facilitator or any person to whom Customer provides
Market Data. In the presence of officials in charge of the premises, the
authorized person may (i) examine any component of equipment and software used
for the purposes of this Agreement and located at the premises and (ii) observe
the use of Market Data and all operations located or conducted at the premises,
but solely to monitor compliance with this Agreement. This Paragraph 7(c) does
not require Customer to disclose any proprietary information other than as
Exhibit A discloses.
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8. SERVICE FACILITATORS AND CUSTOMER AFFILIATES
(a) SERVICE FACILITATORS - NYSE will determine in its sole
discretion whether any person assisting Customer for the purposes of this
Agreement is a "Service Facilitator" and, therefore, is excused from entering
into a separate agreement with NYSE. NYSE will base its determination upon such
criteria as (i) the nature and quantity of the Service-related functions that
the person performs and (ii) the extent to which Customer owns, or is under
common ownership with, the person. Customer shall not permit any person other
than a common carrier to assist Customer in providing or performing any aspect
of the Service unless (i) NYSE has determined the person to be a "Service
Facilitator" and the person is acting in accordance with, and in the manner
specified, in Exhibit A or (ii) the person has entered into an agreement with
NYSE governing the assistance.
(b) CUSTOMER AFFILIATES - NYSE will determine in its sole
discretion whether any "control relationship" between Customer and any person
qualifies the person as a "Customer Affiliate" for the purposes of this
Agreement. Subject to the charges to which Paragraph 10(a) refers and to the
other applicable provisions of this Agreement, Customer may provide any
Subscriber Service to partners or officers and employees of Customer Affiliates.
For that purpose, any such partner, officer or employee is deemed "a partner,
officer or employee of Customer".
(c) CUSTOMER'S GUARANTEE - Customer unconditionally guarantees
that each Service Facilitator and Customer Affiliate (i) will fully comply with
the provisions of this Agreement that protect against unauthorized access to
Market Data, that relate to installation, maintenance and inspection, or that
otherwise apply in respect of the Service Facilitator or Customer Affiliate to
the same extent as if it had entered into this Agreement and (ii) will not cause
Customer to fail to comply with this Agreement. Customer shall inform each
Service Facilitator and Customer Affiliate of all relevant provisions of this
Agreement and shall promptly provide NYSE with a full description whenever it
learns that a Service Facilitator or Customer Affiliate has failed to so comply
or has caused Customer to fail to comply.
(d) CURE AND DISCONTINUANCE OF ACCESS - Whenever NYSE notifies
Customer in writing that it has determined that a Service Facilitator or
Customer Affiliate has failed to act in accordance with, or in the manner
specified in, this Agreement, Customer shall promptly cure the breach or rectify
the failure. If NYSE so instructs, Customer shall discontinue giving Market Data
access to the partners, officers and employees of the Customer Affiliate, or
using the Service Facilitator, under this Agreement.
9. COOPERATION AS TO UNAUTHORIZED RECEIPT
(a) PREVENTION AND DISCOVERY - Customer shall use best efforts
to assure that no "Unauthorized Recipient" obtains Market Data from Customer or
from equipment and software that Customer uses for the Services. As to any Type
of Market Data, an "Unauthorized Recipient" is any person other than a Data
Recipient, Customer Affiliate or Service Facilitator in its authorized access to
that Type of Market Data. If an Unauthorized Recipient does so obtain Market
Data, Customer shall use its best efforts to ascertain the source and manner of
acquisition, shall fully and promptly brief NYSE, and shall promptly pay the
applicable amounts described in Paragraph 10. Customer shall otherwise cooperate
and assist in any investigation relating to any unauthorized receipt of Market
Data made available pursuant to this Agreement.
(b) CUSTOMER COOPERATION AND ASSIGNMENT - Any one or more
Authorizing SROs may xxx or otherwise proceed against any Unauthorized
Recipient, including suing or proceeding to prevent the Unauthorized Recipient
from obtaining, or from using, any Type of Market Data that it or they make
available. If any one or more Authorizing SROs institute any suit or other
proceeding against the Unauthorized Recipient, Customer, unless made a defendant
in the suit or proceeding,
(i) shall assure that it and Customer Affiliates and
Service Facilitators (if any) cooperate with and assist the Authorizing
SRO(s) in the suit or proceeding in all reasonable respects, provided
that the Authorizing SRO(s) reimburse Customer for reasonable
out-of-pocket expenses; and
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(ii) if the one or more Authorizing SROs so elect in
writing, shall assure that all of Customer's, Customer Affiliates' and
Service Facilitators' right, title and interest in the suit or
proceeding and in its subject matter will be assigned to the
Authorizing SRO(s).
If the one or more Authorizing SROs elect the assignment, it or they shall
indemnify, hold harmless and defend Customer against any cost, liability or
expense (including reasonable attorneys' fees) that arises out of or results
from the suit or proceeding.
(c) THIRD PARTY SUITS AGAINST CUSTOMER - If any person brings
a suit or other proceeding to enjoin Customer, any Customer Affiliate or any
Service Facilitator from refusing to furnish any Type of Market Data to any
Unauthorized Recipient, Customer shall promptly notify NYSE. The Authorizing
SRO(s) that make that Type of Market Data available may intervene in the suit or
proceeding in the name of Customer, the Customer Affiliate or the Service
Facilitator, as appropriate, and, through counsel chosen by the intervening
Authorizing SRO(s), may assume the defense of the action on behalf of Customer,
the Customer Affiliate or the Service Facilitator. Intervening Authorizing SROs
shall jointly and severally indemnify, hold harmless and defend Customer against
any loss, liability or expense (including reasonable attorneys' fees) that
arises out of or results from the suit or proceeding.
(d) WITHDRAWAL OF RECIPIENT APPROVAL - If NYSE or AMEX, as
appropriate, notifies Customer in writing that the Authorizing SRO(s) have
terminated the right of any authorized recipient to receive any Type of Market
Data, Customer (i) shall cease furnishing that Type of Market Data to the person
within five business days of the notice and (ii) shall, within ten business
days, confirm the cessation, and inform NYSE or AMEX, as appropriate, of the
cessation date, by notice.
(e) CUSTOMER INDEMNIFIED - If Customer refuses to furnish, or
to continue to furnish, to any person any Type of Market Data solely because
NYSE has notified Customer in writing that the Authorizing SRO(s) do not
authorize, or no longer authorize, the person to receive that Type of Market
Data, the Authorizing SRO(s) shall jointly and severally indemnify, hold
harmless and defend Customer from and against (i) any suit or other proceeding
that arises from the refusal and (ii) any liability, loss, cost, damage or
expense (including reasonable attorneys' fees) that Customer incurs as a result
of the suit or proceeding. The Authorizing SRO(s) shall have sole control of the
defense of any such suit or proceeding and of all negotiations for its
settlement or compromise. Customer's prompt notice to NYSE of any such suit or
proceeding is a condition to Customer's rights under this Paragraph 9(e). Those
rights do not apply when Customer ceases to furnish Market Data to a person, or
in a manner, not authorized by NYSE.
PART III: PAYMENTS, RECORDS AND REPORTS
10. PAYMENTS
(a) GENERAL CHARGES - Customer shall pay NYSE or AMEX, as
appropriate, in United States dollars the applicable charge(s) from time to time
in effect. Customer shall pay any amounts due in accordance with such
procedures, and within such time parameters, as NYSE or AMEX, as appropriate,
may specify from time to time and shall pay any applicable tax (excluding any
income tax imposed on any Authorizing SRO in respect of any such amount). The
Authorizing SROs will provide Customer with 30 days' notice of any changes in
the charge(s) payable by Customer.
(b) CHARGES FOR UNAUTHORIZED INSTALLATIONS - If NYSE or AMEX,
as appropriate, notifies Customer that it has determined in its sole discretion
that Customer has made any unauthorized or unreported provision or use of Market
Data made available to Customer under this Agreement (including the improper
receipt described in Paragraph 10(d)), Customer shall pay (i) any applicable
charge(s) that would have been imposed on Customer, a Data Recipient or an
Unauthorized Recipient in respect of a provision or use, whether by Customer or
by a Data Recipient or Unauthorized Recipient, had it been authorized or
reported and (ii) an administrative fee equal to ten percent of those charges.
Customer's payment obligations apply regardless of whether a person responsible
for an unauthorized provision or use received the Market Data from Customer
directly
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or from a person in the chain of dissemination that began with an unauthorized
provision or use by Customer. The Authorizing SROs reserve the right to recover
punitive damages for any deliberate breach of good faith and the like.
(c) INTEREST ON UNPAID AMOUNTS - If Customer has not paid any
amounts payable pursuant to Paragraph 10(a) within the applicable time
parameters, Customer shall pay interest on the unpaid amount. That interest
begins to accrue on the 31st day after the payment's due date. Customer shall
also pay interest in respect of amounts payable pursuant to Paragraph 10(b)(i).
That interest begins to accrue as of the date on which the amount would have
been payable had the provision or use of Market Data been properly authorized or
reported. The interest payable under this Paragraph 10(c) will equal the lesser
of(i) one and one-half percent per month and (ii) the maximum rate of interest
that applicable law permits.
(d) SUBROGATION AND RETURNS - If Customer has paid all amounts
due in respect of any Unauthorized Recipient (i) Customer becomes subrogated to
all rights of the Authorizing SROs to recover amounts from the Unauthorized
Recipient and (ii) NYSE or AMEX, as appropriate, will return to Customer any
amounts subsequently received from the Unauthorized Recipient, less any
associated collection and administrative expenses.
11. RECORDS AND REPORTS
(a) RECORDS MAINTENANCE AND PRESERVATION - Customer shall
maintain such billing records, reports, information, subscriber agreements and
other documents as NYSE or AMEX, as appropriate, may reasonably require from
time to time to permit the Authorizing SROs to xxxx for applicable charges and
to monitor compliance with this Agreement. Customer shall have the ability to
retrieve each such item as it applies to any NYSE-specified criterion, such as a
particular Service, Data Recipient, location or account number. Customer shall
preserve each such item for not less than three years.
(b) ACCESS TO RECORDS - During the term of this Agreement and
for three years thereafter, Customer shall assure that any authorized
representative of NYSE (in respect of all Types of Market Data) or of AMEX (in
respect of Network B Market Data and Other Market Information) is able (i) to
examine Customer's books and records relating to the Services (including, among
other items, the items Customer must maintain pursuant to Paragraph 11(a)), (ii)
to copy those books and records and extract information from them and (iii) to
otherwise perform any auditing functions necessary to verify Customer's
compliance with this Agreement.
(c) REPORTING - NYSE (in respect of all Types of Market Data)
and AMEX (in respect of Network B Market Data and Other Market Information) may
from time to time require Customer to furnish or report all or some of the items
that Paragraph 11(a) requires Customer to maintain. Customer understands that
NYSE or AMEX may require Customer (i) to so furnish or report some or all of
those items upon occurrences of specified events and/or on a periodic basis and
(ii) to provide detailed summaries. At the request of NYSE or AMEX, as
appropriate, Customer shall have audited, by an independent certified public
accountant satisfactory to the requesting exchange, a list of all Data
Recipients and any other reasonably requested list, report or information
relating to Customer's redissemination or other use of Market Data. Customer
shall comply with this Paragraph 11(c) by such methods, in such format and
within such time parameters as NYSE or AMEX may reasonably specify.
(d) RELIABILITY OF CUSTOMER'S RECORDS - Customer shall use its
best efforts (including the insertion of appropriate terms in Customer's
agreements with Data Recipients, Customer Affiliates and Service Facilitators)
to assure that Customer is supplied with timely, complete and accurate
information so that Customer, in complying with this Paragraph 11, maintains and
supplies NYSE and AMEX with timely, complete and accurate information. Those
efforts shall include the use of such entitlement controls as Exhibit A may
describe. NYSE recognizes that certain information is beyond Customer's control
(such as information identifying Service-related equipment and software that
Customer has not supplied, installed or made available). Subject to the best
efforts requirement of this Paragraph 11(d), Customer's obligations under this
Paragraph 11 apply to information of this type only to the extent Customer has
received it.
PART IV: PROVISIONS OF GENERAL APPLICABILITY
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12. NYSE AND AMEX CAPACITIES - In respect of Network A Last
Sale Price and Quotation information, NYSE acts, and receives payments,
information and notices, under this Agreement in the one or more capacities for
which the Plans provide. In respect of Network B Last Sale Price and Quotation
Information, NYSE or AMEX so acts or receives in the one or more capacities for
which the Plans provide. In respect of NYSE Market Information, NYSE so acts or
receives solely on its own behalf. In respect of AMEX Market Information, NYSE
or AMEX so acts or receives solely on behalf of AMEX. In respect of Other Market
Information, NYSE or AMEX so acts or receives on behalf of the Participants or
Other Data Disseminators that make that information available.
13. PROHIBITED USE AND PATENT INDEMNIFICATION - Customer shall
indemnify, hold harmless and defend each Disseminating Party from and against
any suit or other proceeding at law or in equity, claim, liability, loss, cost,
damage, or expense (including reasonable attorneys' fees) incurred by or
threatened against the Disseminating Parties that arises out of or relates to
(a) any use of Market Data other than as this Agreement
provides by Customer, a Customer Affiliate or a Service Facilitator, or
(b) any claim that either any component of the equipment and
software used for the purposes of this Agreement (excluding any equipment and
software Customer or Service Facilitators (if any) do not supply, install or
make available to, or operate or maintain for, a Data Recipient) or the manner
of the use made of the component or of Market Data provided pursuant to this
Agreement infringes any United States or foreign patent or copyright or violates
any other property right.
NYSE's provision to Customer of prompt written notice of the suit or proceeding
is a condition to Customer's obligations under the preceding sentence. Customer
shall have sole control of the defense of the suit or proceeding and all
negotiations for its settlement or compromise.
14. DATA NOT GUARANTEED - The Disseminating Parties do not
guarantee the timeliness, sequence, accuracy or completeness of Market Data made
available, or of other market information or messages disseminated, by any
Disseminating Party. No Disseminating Party will be liable in any way to
Customer or to any other person for
(a) any inaccuracy, error or delay in, or omission of, (i) any
such data, information or message, or (ii) the transmission or delivery of any
such data, information or message, or
(b) any loss or damage arising from or occasioned by (i) any
such inaccuracy, error, delay or omission, (ii) non-performance, or (iii)
interruption in any such data, information or message,
due either to any negligent act or omission by any Disseminating Party or to any
"Force Majeure" (i.e., any flood, extraordinary weather conditions, earthquake
or other act of God, fire, war, insurrection, riot, labor dispute, accident,
action of government, communications or power failure, or equipment or software
malfunction) or any other cause beyond the reasonable control of any
Disseminating Party.
15. NO SPONSORSHIP - Customer shall assure that neither
Customer nor any Customer Affiliate or Service Facilitator represents, either
directly or indirectly, that any
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Disseminating Party sponsors or endorses in any manner Customer, any other
person, any particular use of Market Data or any equipment and software.
16. ARBITRATION - The parties shall settle any controversy or
claim arising out of or relating to this Agreement, or to its breach or alleged
breach, by arbitration in New York, New York under the Commercial Arbitration
Rules of the American Arbitration Association. The arbitrator(s) may issue
injunctive and other equitable relief, but may not modify this Agreement. Either
party may enter in any court having jurisdiction judgment upon any award that
the arbitrator(s) render. For the purposes of so entering any such judgment,
each party submits to the jurisdiction of the courts of the State of New York.
Nothing in this Paragraph 16 derogates any right Customer, any Authorizing SRO,
or any other person may have to appeal to the Securities and Exchange Commission
any action taken or any failure to act under the 1934 Act, or any of its rules,
or to pursue any claim relating to the unauthorized publication or use of
communications under the Communications Act of 1934, as amended, at any time,
whether before or after the commencement of any arbitration proceeding.
17. EFFECTIVE DATE AND TERMINATION - Upon its execution by
each party, this Agreement becomes effective as of the date first above written.
Upon becoming effective, this Agreement supersedes each previous agreement
between the parties relating to any receipt or use of Market Data that Exhibit A
describes. This Agreement continues in effect until terminated as this Paragraph
17 provides. Subject to Paragraph 4, either Customer or NYSE may terminate this
Agreement as to one or more Types of Market Data on 30 days' written notice to
the other. In addition, this Agreement terminates upon NYSE's withdrawal from
the Plans and terminates as to Other Market Information and either Plan's
Network B Market Data upon AMEX's withdrawal from that Plan. NYSE shall give
Customer 30 days' written notice of any such withdrawal. Insofar as Customer
receives access to Transmission Facilities by means of one or more interfaces
with one or more intermediaries, this Agreement terminates as to that access
immediately upon written notice from NYSE that it no longer approves the
interface(s). Paragraphs 8(c), 9, 10, 11, 13, 14 and 16 survive the termination
of this Agreement in general or as to any Type(s) of Market Data. They also
survive any Participant's withdrawal from either Plan as those paragraphs apply
to any matter arising prior to the withdrawal.
18. PROVISION OF SERVICE TO NYSE AND AMEX - Upon request by
NYSE and/or AMEX, Customer shall provide to the requesting exchange, free of
charge, one subscription to such one or more of Customer's Services as the
request may identify, together with the equipment necessary to receive, display
or communicate the Service(s). NYSE and AMEX shall use such subscriptions solely
for purposes of demonstrating the Service(s) and monitoring Customer's
compliance with this Agreement.
19. MISCELLANEOUS
(a) ENTIRE AGREEMENT - Exhibit C, if any, contains additional
provisions applicable to any non-standard aspects of Customer's receipt and use
of Market Data. This Agreement incorporates Exhibit C. This writing, Exhibit A,
Exhibit B and Exhibit C contain the entire agreement between the parties in
respect of their subject matter. No oral or written collateral representation,
agreement or understanding exists except as this Agreement may otherwise
provide.
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(b) MODIFICATIONS - In keeping with Paragraph 19(g), NYSE may,
by written notice to Customer, modify this Agreement as necessary to cause this
Agreement to comply, or to be consistent, with any modification to or
replacement of the 1934 Act, the rules under the 1934 Act, or either Plan.
Subject to Paragraphs 5(d) and 6, neither party may otherwise modify this
Agreement except pursuant to a writing signed by or on behalf of each of them.
(c) ASSIGNMENTS - Customer may not assign this Agreement, in
whole or in part, without the written consent of NYSE.
(d) INDIRECT ACTS PROHIBITED - In prohibiting Customer from
doing any act, this Agreement also prohibits Customer from doing the act
indirectly (e.g., by causing or permitting another person to do the act).
(e) REASONABLENESS STANDARD - This Agreement requires or
authorizes NYSE and other Authorizing SROs to provide notices and approvals, to
make requests and determinations, to impose and specify requirements, and
otherwise to act, in respect of a variety of matters. The Authorizing SROs shall
perform those acts in a reasonable manner.
(f) GOVERNING LAW - The laws of the State of New York govern
this Agreement. It shall be interpreted in accordance with those laws.
(g) ACT AND PLAN APPLICABILITY - This Agreement and the
Services are subject at all times to the 1934 Act, the rules under the 1934 Act
and the Plans.
20. NOTICES - Customer shall furnish any notice, description,
report or other communication relating to this Agreement in writing or by such
other means (e.g., by electronic mail) as NYSE may specify. The address of each
party for all written communications relating to this Agreement is:
Customer (as set forth in Exhibit A)
CQ Plan Participants and
CTA Plan Participants
c/o New York Stock Exchange, Inc. (as below)
New York Stock Exchange, Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Director of Market Data
American Stock Exchange, Inc.
00 Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Director of Market Communications
Customer may change its address by notice to NYSE. NYSE may change any other
party's address by notice to Customer.
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IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed as of the date first above written.
CUSTOMER NEW YORK STOCK EXCHANGE, INC.
First International Financial Corp. acting in the capacities
Paragraph 12 describes
By: By:
------------------------------- -----------------------------
Name: Xxxx X. Xxxx Name: Xxxxxx Xxxxxx
Title: President Title: Managing Director,
Market Data
Date: Dec. 23, 1997 Date: 1/11/98
Dated: May 9, 1996
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TABLE OF CONTENTS
1.0 TYPE(S) OF MARKET DATA TO BE RECEIVED
2.0 SOURCE(S) OF MARKET DATA
3.0 SUMMARY OF USES OF MARKET DATA
4.0 DESCRIPTION OF SERVICE(S)
4.1 Services and Options
4.2 Equipment and Devices Used
4.3 Display Screens
4.4 Block Diagram of System and Communication Network
4.5 Delayed Price Service
5.0 DATA ENTITLEMENT - CONTROL AND REPORTS
5.1 Control
5.2 Reporting
6.0 CUSTOMER AFFILIATES
7.0 SERVICE FACILITATORS
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1.0 TYPE(S) OF MARKET DATA TO BE RECEIVED
(Check the applicable boxes)
X Network A/1/ Last Sale X Network B/2/ Last Sale Network A Last Sale
X Network A/1/ Bid-Asked X Network B/2/ Bid-Asked Network B Last Sale
X NYSE Bond Last Sale NYSE Bond Last Sale
X NYSE Bond Bid-Asked
/1/ NYSE-listed equity securities
/2/ AMEX-listed equity securities, AMEX-listed bonds, and
other equity securities that meet AMEX listing
requirements.
2.0 SOURCE(S) OF MARKET DATA
Directly through a connection to SIAC systems
X Indirectly through S&P Xxxxxxxx
3.0 SUMMARY OF USES OF MARKET DATA
Market Data will be used: YES NO
(a) As part of a real-time interrogation display or ticker display service X
If yes, will service be made available to persons other than the
officers X and employees of the customer?
(b) For the purpose of compiling and disseminating stock tables to
press X associations or other publishers, or for the purpose of
furnishing market data via magnetic tape.
(c) In operations control programs designed for monitoring and surveillance X
purposes, order/report price validation, limit order switching, order
status verification and related activities, index
calculation/dissemination, portfolio valuation services, software/system
development, etc.
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(d) In analysis programs leading to purchase/sales or other trading X
decisions, such as options analysis, arbitrage, and program trading
(e) In market making programs which generate quotations or execute X
transactions in an automatic or semi-automatic manner.
(f) As part of a real-time automated telephone voice response service. X
(g) To provide a data feed or other type of service where control
over the X use of market data and the reporting of uses and
display devices cannot be directly maintained by the customer.
(h) As part of a delayed last-sale price interrogation, ticker display, or X
automated voice response service. (Note: bid-asked quotations may not be
delayed.)
(i) As part of a closing price, after hours or historical pricing service. X
(j) As part of a real-time Network B ticker display service, either provided X
by a vendor or created internally from data received. (Note: Separate
Network B ticker display charges apply to this usage.)
Please explain any other planned use of market data not covered in items (a)
through (j) above.
-------------------------------------------------------------------------------
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4.0 DESCRIPTION OF SERVICES
4.1 Services and Options
Description of the Service
The FIFC system has been designed in order to provide real-time stock market
data to individual investors' interrogation displays using the Internet as the
data transmission medium.
The FIFC system is intended to provide a "window" between the financial markets
and individual investors. There will be no transactions involved. The system
allows registered users to login using their individual Login ID and password in
order to access real-time market information. (Users must register and provide
the information that is required by the stock exchanges as well as credit card
information in order to be eligible to use the service.)
Through the web site, investors can access information from all major North
American exchanges, i.e. NASDAQ, New York Stock Exchange, American Stock
Exchange, OPRA, Toronto Stock Exchange, Montreal Stock Exchange, Vancouver Stock
Exchange and Alberta Stock Exchange.
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Two Levels of Service: Continual Updates, Static Updates.
Continual Updates
Registered users request real-time updates on equities and options; including
BBO, Last Sale, Volume, day hi-lo, 52 wk hi-lo, time of last sale, open, and
previous close. The system provides the quotes in a table format to the user
through a series of graphical user interfaces which have been created using
Java. The system automatically refreshes the information on the screen. Users of
this service will be signed up as non-professionals.
Static Updates
Registered users are able to obtain single snapshot quotes in a table form via
HTML in their browser. This is our usage-based metered system.
How the Data Will be Utilized
Market data will only be used to the extent that FIFC's registered users request
market information from the FIFC system. Only a user who has specifically
requested (and paid for) market data will be allowed to access real-time market
information. Market data will be used strictly for displaying current stock
price updates in an abbreviated quote format, an extended or long quote format,
a screen based ticker, and a market monitor format through the Java based
Portfolio Manager.
The data will only be used to support the intended uses of the FIFC system and
web sites. Data will not be provided to users through any other vehicle.
Profile of System Users
FIFC users are all external to the firm. All FIFC users will be financial
industry non-professionals as defined in the Exchange Agreements. Primary
testing and marketing of the site suggests that the majority of our users will
be Americans; however, the global reach of the Internet also allows us to reach
users around the world.
Overview of the FIFC Portfolio Manager(Continual Update Service)
The Portfolio Manager is a platform independent 100% Java application that
continuously updates the user's display with real-time trading information. The
Portfolio Manager allows each user to monitor their own custom set of
portfolios. Each portfolio is continuously updated with real-time intra-day
trading information. The Detailed Quotes screen allows users to query more
detailed historical data such as PE ratios, 52 week high and lows, Dividend and
Earnings information. The Exchange Statistics screen allows users to query a
variety of reports on each exchange (e.g. Most Active, % Gainers, $ Gainers,
etc...). The Option Listings screen allows users to query detailed information
about the options offered on a given security.
The primary function of the FIFC service is the Portfolio Manager that tracks
multiple stocks from multiple exchanges in user defined portfolios. Users may
select what data they wish to display from each market. From here they can set
up portfolios of 10 stocks and indexes that they
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can monitor. Users can select to view all or none of BBO, Last Sale, trade
volume, day hi-lo, 52 wk hi-lo, time of last sale, open, previous close, price
targets, company name. Also, users may choose to display a snapshot of the
market statistics for net gainers, losers, etc.
The Portfolio Manager performs one analytical function that uses the market
data. If users desire to calculate the profit/loss position on a given stock
they can by entering in their purchase price and quantity. Users may display
their portfolios in a screen based ticker that uses Last Sale data only. The
ticker symbol and last price will scroll by. Market Summary
The market summary window is designed to provide the user with an overview of
market conditions as well as the user's custom portfolio. Several major market
indices are presented to provide the user with information about overall market
conditions. The user's portfolio is displayed in a ticker tape that scrolls
across the screen. Both the ticker tape and the market indices are continuously
updated with the latest market information.
Features
Portfolio Manager
The portfolio manager allows the user to define and monitor a set of custom
portfolios. For each symbol, the portfolio manager monitors and updates the
following:
Menu-bar Actions
The menu-bar is located at the very top of the Portfolio Manager window and
contains the following pull down menus:
File
Save
The save action saves the user's portfolio selections, including the current
order of the portfolios and symbols as well as any properties the user may have
entered.
Exit
The exit action exits the portfolio manager and all related windows.
Edit
The edit pull down allows the user to customize their portfolio entries.
Adding a Portfolio
Selecting this action will pop-up a dialog box that prompts the use to enter the
name of the new portfolio they wish to add. The name must be unique among
existing portfolios.
Removing a Portfolio
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The user must select a portfolio before choosing this action. The user will be
presented with a dialog box confirming the selection. Removing a portfolio will
also remove the portfolio's contents.
Portfolio Properties
The user must select a portfolio before choosing this action. The user will be
presented with a dialog box containing the current property settings for this
portfolio. Portfolio properties are, the name and whether or not values are to
be displayed.
Add Symbol(s)
The user must select a portfolio before choosing this action. Selecting this
action will pop-up a dialog box that prompts the use to enter the symbols that
are to be added to an existing portfolio. More than one symbol may be entered,
separated by commas.
Remove Symbol
The user must select a symbol before choosing this action. The user will be
presented with a dialog box confirming the selection.
Symbol Properties
The user must select a symbol before choosing this action. The user will be
presented with a dialog box containing the current property settings for the
selected symbol. Symbol properties are, the number of shares, and the up and
down limits. Up and down limits represent price targets which if reached or
exceeded will cause the symbols change field to flash until the limit is
modified or the last trade value changes to a value above/below the given price
targets.
View
The view pull down allows the user to pop up other windows or views.
Detailed Quotes
The detailed quotes screen allows the user to view detailed information about a
symbol. The user enters a symbol and presses the "Quote" button. The detailed
symbol information will appear in the view area.
Option Listings
The option listing screen allows the user to view detailed options information
for a symbol. The user enters the symbol of the underlying security and presses
the "Options" button. The detailed symbol information including bid, ask, sizes,
last trade price and contracts traded, will appear in the view area.
Exchange Statistics
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The exchange statistics screen allows the user to request statistics for each of
the Exchanges. The user selects the exchange they wish to query and the
statistic in which they are interested and select the "Query" button. The
information will appear in the view area.
Help
About
This provides information about the release of the FIFC.
Field Descriptions
Symbol
The Symbol is the exchange symbol under which the security is traded.
Time
Time is the time of the last trade.
Last
Last is the price of the last trade.
Change (%)
Change is the difference between the last trade and the previous close prices
and is followed by the percentage of the previous close that the difference
represents.
$ Value
$ Value represents the current dollar value of the symbol. This is calculated by
multiplying the number of shares currently owned (See Symbol Properties) by the
last trade price.
Bid (Size)
Bid is the current price at which the security can be sold. The size, shown in
parenthesis, is the number of 100 share blocks currently being offered at that
price. The availability of this data varies with the exchange on which the
symbol is traded.
Ask (Size)
Ask is the current price at which the security can be bought. The size, shown in
parenthesis, is the number of 100 share blocks currently being asked for at that
price. The availability of this data varies with the exchange on which the
symbol is traded.
High
The highest price at which a symbol was traded during the current/last trading
day.
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Low
The lowest price at which a symbol was traded during the current/last trading
day.
Volume
The number of shares of the given symbol that have traded during the
current/last trading day.
Name
The full name or description of the given symbol.
Other Actions
Selecting A Portfolio
To select a portfolio you must click (with mouse button 1) the top line
containing the name of the portfolio.
Open/Close A Portfolio
Clicking (with mouse button 1) the arrow button located at the top of the
portfolio to the left of the name will open and close a portfolio. To conserve
space on the screen, a user may choose to close one or more portfolios. When the
arrow is pointing down, the portfolio is open. When it is pointing to the right,
it is closed.
Changing the order of Portfolios
After closing all of your portfolios, you may drag (using button 3 on your
mouse) the portfolios into any order you want.
Selecting A Symbol
A symbol may be selected by clicking (using button 1 on your mouse) anywhere on
the line containing the symbol information. The symbol will have an outline when
it is selected.
Changing the order of Symbols
You may drag (using button 3 on your mouse) the symbols within a portfolio into
any order you want. You may not drag a symbol outside of its original portfolio,
but it may be added to any number of portfolios using the Add Portfolio Edit
action.
4.2 Equipment and Devices Used
Data Processing Equipment
Data is received via land lease POTS line at the Company's premises and directly
to dual S & P Xxxxxxxx Client Site Processors.
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Data Parser & Quote Server
These two programs (S & P Xxxxxxxx Client Site Processor v 3.0) reside in two
(2) S & P Xxxxxxxx Client Site Processors, 32MB RAM, 512kb cache, Ethernet PCI
10/100 Mbps, UNIX.
Database & Webserver
The customer database (currently Microsoft SQL v 6.5) and web server (Microsoft
Internet Information Server) reside in a Digital Equipment Corporation Alpha
1000 Server. The AlphaServer configuration is 000 Xxx Xxxxxxx, 64-bit platform,
128 MB EDO RAM Windows NT Server v 4.0.
Applet Server
This program resides in a Digital Equipment Corporation Celebris XL 5166DP Dual
000 Xxx Xxxxxxx processors with 128MB EDO RAM, 512kb cache, Ethernet PCI 10/100
Mbps, Windows NT v 4.0
Router/Firewall
A protective firewall is between the Company's LAN and the Internet. Included is
a firewall filter and routing system, Bastion Host firewall and
application-level gateway with authentication, authorization, monitoring, and
logging capabilities, and a choke router backup to Bastion Host. The type of
firewall is a product supplied by Borderware.
User Interface
The user interface for the continual updating service is the applet itself (e.g.
Portfolio Manager). Because an applet can only connect back to the machine from
which it is loaded, the User Interface must be co-located with the Applet
Server(s) so it can be loaded and started in the Subscriber's browser. The
interface for the static quote service is the clients web browser and HTML.
Market Data Display
Java applets are downloaded to the client's personal computer, where the market
data is then displayed. The end user display device is completely dependent on
the users equipment, and FIFC has no control over what equipment is used by its
users.
4.3 Display Screens
The following are screen display samples based upon real-time last sale and bid
and ask NYSE market data.
Detailed Quote with Fundamentals
[GRAPHIC OF DISPLAY SCREEN]
[Screen Display Of XxxxXxxxxxx.Xxx Report]
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4.4 Block Diagram of the System and Communications Network
The following is a block diagram describing the overall system that will be
utilized in the dissemination of the market data.
[BLOCK DIAGRAM APPEARS HERE]
Subsystems
We currently have 6 distinct subsystems each providing a critical piece of
functionality.
Data Parser
Receives and parses the data feed, sending parsed data to the quote server. Part
of the S & P Client Site Processor.
Quote Server
Quote server maintains an in memory copy of the latest trading information for
all Symbols. Part of the S & P Client Site Processor.
Database
Database (currently Microsoft SQL) contains subscriber information, User Account
Files, as well as exchange and market information on Symbols. The database also
tracks usage-based interrogation amounts by quote packets (see section 5.0 for a
detailed explanation of this tracking system).
Applet Server
Ticker.bat maintains subscriber portfolios and applet options. Serves as applet
interface to quote information which resides in either the Database or the Quote
Server.
User Interface
The user interface is the applet itself (e.g. Portfolio Manager). Because an
applet can only connect back to the machine from which it is loaded, the User
Interface must be co-located with the Applet Server(s) so it can be loaded and
started in the Subscriber's browser.
Web Server
The web server is the Internet presence for FIFC. It contains the home page,
help files, ticker lookup, login forms and other html/cgi related files.
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4.5 Delayed Price Service
FIFC currently has no plans to disseminate or use delayed last sale prices.
5.0 Data Entitlement - Control and Reports
5.1 Control
a) The market data entitlement system resides on FIFC's system, therefore
only FIFC has control of the entitlement of the market data. When a
user initially registers for First International's services they are
prompted to specify which exchanges they would like to receive data
for. This information is recorded, tracked in User Account Files in the
FIFC Customer Database and made readily available to the system. All
market data is stored in a database at two levels: the first identifies
which exchange the data originates from (Network A or Network B) and a
second level identifies what symbol or security the data corresponds
to. An exchange identifier is attached to each symbol. When the user
requests a piece of market data from a specific exchange, the system
will compare the request to the authorization limits for the exchanges
that the user has been granted in their User Account File. In the event
the user requests market data for an Exchange which they are not
permissioned for, the system will alert the user and reject the
request. Should the user want to obtain the restricted piece of market
data they will have to return to the registration section and make a
request to FIFC to add the desired exchange to their entitlements. FIFC
will then determine whether or not they must fill out additional
exchange agreements and what the incremental cost will be. Upon receipt
of the required Subscriber Agreements and payment, FIFC then changes
the User Account File granting the user access to the requested
exchange data. The FIFC service only allows users to obtain real-time
information for last sale and bid and asked data for both Network A and
Network B.
First International Financial's system identifies a user via a unique
login ID, a unique password, and a unique FIFC Client Number. Only
users with a valid login ID and password can access the market data.
The user is prompted for their login ID and password upon entering the
FIFC system. The Customer Database is then checked for verification of
login ID and password and a log is created with their unique FIFC
Client Number. If the password does not match the password recorded in
the system then he/she will be prompted to re-enter the login
identification. This process will re-iterate three times and upon
failing on the third try, log the user out of the system and server.
The forementioned processes and a firewall are very stringent measures
employed to restrict access to the market data to only authorized
users.
b) Simultaneous use of the password is restricted via First
International's System. As a user logs into the system his/her entry
and FIFC Client Number is recorded. If Simultaneous use of the password
is restricted via First International's System. As a user logs into the
system his/her entry and FIFC Client Number is recorded. If another
individual tries to enter the system using the same login
identification and password the system will check the log to see if
that corresponding FIFC Client Number is already logged in. If it is in
use, the system will refuse to grant him/her access. Once the user
signs off the system or the system detects the user is no longer
present after 30 minutes of inactivity, then his/her user session is
removed.
c) When a prospective user registers for access to First International's
system they are prompted to specify which exchanges they would like to
view data for and informed what the cost will be for the specified
combination. Additionally, they will be informed which exchange
agreements must be downloaded and filled out. The completed forms are
then faxed directly to the offices of First International Financial
where they are reviewed and either accepted or rejected. After
approving a user for use of the system, FIFC creates a User Account
File using FIFC's Administration Program, proprietary software that is
used for database administration. Each User Account File contains the
following information; name, address, login ID, password, occupation
and description, exchange entitlements, billing information, employer
name and address, and age. Only FIFC can add, change, or delete
exchange entitlements for the user by entering the appropriate exchange
identifier in the user account file. If the application is rejected,
the user is contacted via e-mail or telephone to elaborate on why they
were rejected (e.g. insufficient data, designated a professional,
etc.).
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Users are automatically billed each month once they have successfully
been accepted into the system. In order to quit the service the user
must notify the office of First International either by telephone,
e-mail or fax. Furthermore, notification must be 30 days prior to the
user's last day of service. Upon receiving notification of
discontinuance, First International records the user's anticipated last
day of service. Each day a process is executed that will remove users
that no longer wish to use the service.
User Account Files contain all the information on users and are stored
in the Customer Database. Each day a report is generated from the
Customer Database for billing purposes. From the same database, a
report is generated every month for Exchange reporting purposes.
Users do not have direct access to alter their data entitlements. Only
FIFC has access to the entitlement system to change data access.
Subscribers can only alter their entitlements by submitting a change of
registration. Upon receipt of the change of registration FIFC
physically enters in the new requests. The system will determine if the
Exchange agreements that the user has completed are sufficient for the
new data he/she would like to receive. In the event these agreements
are not sufficient, the user will be prompted to download the remaining
required agreements. Such agreements must be filled out and sent to
First International for reviewing and approval. Upon granting approval,
First International will notify and allow the user to request
information from the new exchange or restrict data coming from an
exchange that was removed. As well, the user will be notified what
his/her change in pricing will be given the changes they have
requested.
d) Audit trail information is maintained in electronic and hard copy
format. Each User Account File contains customers transactions history
that is maintained for 6 years. In compliance with exchange and vendor
agreements, a hard copy is generated monthly for exchange reporting
purposes. The customer transaction history includes the time and date
of registration for the FIFC service, the date and amount of payment
for service, and the exchanges they have contracted to receive market
data from. In addition to the user account files, the web servers of
First International automatically track which users have entered into
and for what duration they remained in the system. These log files are
kept on-line and then archived to tape and a hard copy is generated
once a month. In turn, these tapes and hard copies are to be kept for a
period of eighteen months. The details of the log files include: which
data instruments were requested/received and the time of the request
for each user.
Exchange Indentifier Description
Our data provider, S&P Xxxxxxxx, sends the exchange identifier attached to every
data message we receive, specifying exactly to which exchange the symbol
belongs. We append this to the symbol itself for storage and retrieval purposes,
meaning we cannot look up or display a symbol without knowing from which
exchange it is part of. For example AT&T's symbol comes in from the NYSE as T.N
in which the .N is the exchange identifier. AMEX symbols have .A attached as a
suffix.
Technical Specifications for the Record-Keeping of Per-Quote Charge Usage.
Our web based per-quote usage-based service allows a registered user to look up
the realtime data for a single stock. We have a secure method to accurately and
reliably track this action. First, we guarantee that each person requesting the
stock data has registered with our service, meaning they have agreed to the
enclosed sample agreements. Using standard HTTP authentication, the web pages
and CGI scripts are protected from unauthorized use. Only those who have a user
account with our service may view the pages.
Second, the CGI script that connects to our Data Server knows exactly who is
requesting the information and for which stock symbol and Exchange the client is
requesting. This gets logged
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to disk before sending a single quote-packet allowing us to closely monitor
usage. It is impossible for a user to subvert this program to get stock
information without it recording the action first. For the purpose of counting
quotes, a "quote-packet" is any data element, or all data elements, for a single
issue. (For example, open, high, low, last, volume, net change, bid, offer, size
are data elements. "IBM" is a single issue.) An index value also qualifies as a
data element.
In a more detailed description, here is a sample user session. The client uses
their web browser to connect to our server and request the HTML page containing
a CGI form allowing them to enter a symbol. This HTML page is stored in an HTTP
protected directory, meaning the Web Server first checks that the user has
entered a valid username and password (which they were assigned upon
registration.) If one has not been entered yet, the Web Server sends a message
to the browser to obtain that information from the user. Once the username and
password are sent back, the Web Server checks that they are valid, and if not,
it denies the user access to the HTML page (and any other pages and programs
store in the protected directory.)
Once the Web Server has received a valid username and password, it then sends
the user's browser the HTML page with the form. The user fills out the form with
their desired stock symbol, and this information is passed back (always with
their username and password which the browser caches, so the Web Server can
verify who they are.) The CGI script that receives the information then logs the
transaction to disk. Only upon successful completion of this action will the CGI
script request the actual stock information from the Data Server and send it
back to the client.
The data is compiled into daily reports in hard copy and monthly reports that
are sent to the NYSE and Authorizing SRO's. The data logs are also backed up in
several locations on different computers, so in the event of a disk failure, the
logs remain unharmed.
5.2(a) Applicable Fees and Reporting Requirements -- Per Quote Pricing
FIFC understands and acknowledges that there are separate fees for each of
Network A data Network B data.
Usage Based Fees - Network A
Each real-time (less than 20 minutes old) quote-packet disseminated will be
subject to a charge that is currently $.01 (one cent) which applies in respect
of each quote packet retrieved during the period of market open (currently
9:30am to 4:20pm ET). Quote-packets disseminated at any time other than this
period will not be subject to a charge.
Reporting Requirements -- Network A
FISC will submit monthly reports to the NYSE consisting of the number of
quote-packets that have been accessed during the month.
Usage Based Fees - Network B
Tiered Quote Fees apply to FIFC services which permit individuals to access
market data by dialing into the vendors computers via any network, including the
Internet. FIFC customers must
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be in contractual privity with FIFC which contract contains language acceptable
to the AMEX (1) clearly enumerating the property rights of the Network B
participants and the AMEX, (2) prohibiting retransmission or redistribution of
the market data and (3) indicating that the market data is not guaranteed.
Fees
The Network B charge is a function of the number of quotes requested by each of
FIFC customers during the month being reported.
Quotes Accessed by the Monthly Fee Per
Tier Customer in the Month Customer
I 1-50 $ 0.50
II 51-250 $ 3.25
III more than 251 $35.00
A quote is any data element or all data elements for a single issue. An index
value also qualifies as a data element. If the vendor offers a portfolio pricing
feature, then each issue (index) priced is counted as a quote.
These rates will be increased 5% September 1 each year this Pilot is in effect.
The Vendor understands that, upon 60 days notice, the AMEX may also increase the
rates as well as change the quote ranges for each of the three categories.
Reporting Requirements
Vendor must report to the AMEX no later than the 15th of each month the number
of customers in each of the three tiers during the previous month.
In addition, Vendor must send to the AMEX, by the 15th of the following month, a
report of all quote usage listing the number of customers who requested or
accessed one quote in the month, two quotes, three quotes and so on. This report
must be a computer file readable into Excel.
In addition, Vendor agrees to supply other reports of a market research nature
as the AMEX may reasonably request.
5.2(b) Sample Reports
All data is stored in our MS SQL database and any type of report can be
generated. Below is a sample of three reports.
a) Customer Entitlement and Usage Report for January 1, 1997 - January 31,
1997
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DEVICES
Customer Service Billing User Account Entitlements Previous Change Current Active Fees to
Address Address File Number Month Total Date Exchange
-------------- --------- --------- ------ --------- ------------ --------- -------- --------- ---------- ----------
Xxxx Xxxxx 0 Xxxxxx 0 Xxxxxx 107 NYSE, 1 0 1 11/11/96 4.25
AMEX, 1 0 1 11/11/96 3.25
NASDAQ, 0 +1 1 01/09/97 4.00
TSE 0 +1 1 01/09/97 6.00
b) Total Number of Customers (display units) by Exchange for January 1,
1997 - January 31, 1997
Name of Devices NYSE AMEX NASDAQ NASDAQ OPRA VSE TSE ME ASE
-------------------------------- -------- -------- ---------- ---------- -------- ------ -------- -------- --------
Previous Month 10 5 9 1 2 2 4 1 1
Change +2 +1 +1 0 0 -2 +1 -1 -1
Total this Month 12 6 10 1 2 0 5 0 0
Total Fees Remitted to Exchange $63.00 $19.50 $40.00 $50.00 $4.00 $0.00 $30.00 $0.00 $0.00
c) Metered Per-Quote Usage Report for January 1, 1998 - January 31, 1998
Number of Users Total Real Time Quote Fee per Quote Packet Total Fees Due to XXXXX
Packets
103 10,300 $0.01 $103.00
6.0 Customer Affiliates
As defined in this agreement there are no customer affiliates.
7.0 Service Facilitators
Exodus Communications located at Harbourside Financial Xxxxxx, Xxxxx XXX, Xxxxx
000, Xxxxxx Xxxx, XX 00000. FIFC has leased office space from Exodus to house
its own servers and receive the S&P Xxxxxxxx data feed in New Jersey.
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EXHIBIT C
AGREEMENT FOR RECEIPT AND USE OF MARKET DATA;
ADDITIONAL PROVISIONS
21. NETWORK A AND NETWORK B PILOT TEST OPERATIONS
(a) AUTHORIZATION - Exhibit A describes Services that Customer provides
pursuant to a per-quote charge. Customer acknowledges and understands
that it provides those services on a pilot test basis (the "Pilot Test
Services"). The CTA Plan and the CQ Plan authorize the Authorizing SROs
to enter into arrangements for pilot test operations designed to
develop new Market Data services. Accordingly, Customer may provide the
Pilot Test Services, but may do so only as and to the extent described,
and in the manner specified, in Exhibit A. It may do so only for so
long as this Agreement is in effect.
(b) SHARING OF RESEARCH - Customer, NYSE and AMEX shall periodically
discuss the results, progress and status of the Pilot Test Services and
share any market research that Customer has generated, subject to
Customer's obligation or reasonable need to maintain confidentiality in
respect of certain information.
(c) CUSTOMER AGREEMENTS WITH SUBSCRIBERS - Customer may provide the Pilot
Test Services to a person only while the person is a party to an
effective agreement with Customer that includes the terms and
conditions in the form attached to this Exhibit C as Attachment A.
(This Exhibit C refers to any such person as a "Pilot Test
Subscriber".) Customer shall assure that it has the ability to modify
its agreements with each Pilot Test Subscriber as NYSE or AMEX, as
appropriate, may from time to time specify. Customer shall effect any
such modification promptly, except that Customer may continue to
provide a Pilot Test Service to a Pilot Test Subscriber without
effecting the modification for 90 days from that receipt. Customer
shall discontinue its provision thereafter if the Pilot Test Subscriber
has not agreed to the modification(s). Customer shall promptly describe
to NYSE or AMEX, as appropriate, any breach of the NYSE or
AMEX-prescribed portions of Customer's agreements about which it may
learn. Customer shall not in any way amend, supplement, or otherwise
modify NYSE or AMEX-prescribed provisions or requirements or vitiate
those provisions or requirements by any collateral agreement or
understanding, except as NYSE or AMEX, as appropriate, may otherwise
agree in writing.
(d) PILOT TEST SERVICE CHARGES - In addition to the applicable charge(s)
payable by Customer pursuant to Paragraph 10, Customer shall pay:
(1) in respect of Network A Market Data, one cent ($0.01)
for each "quote packet" (as defined in Exhibit A)
that Customer distributes pursuant to the Pilot Test
Services; and
(2) in respect of Network B Market Data, in accordance
with the following chart:
Number of quotes accessed by
Customer during a month That month's fee
---------------------------- ----------------
1 - 50 $0.50
51 - 250 $3.25
more than 250 $35.00
provided, however, that those fees shall not apply insofar as Customer has
delayed any such quote packet for no less than 20 minutes. Customer shall so pay
those amounts in accordance with Exhibit A and subject to the terms and
conditions that Paragraph 10 imposes in respect of other amounts payable
pursuant to this Agreement.
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(e) TERMINATION OF PILOT TEST SERVICES - Customer understands that NYSE or
AMEX intends to monitor the Pilot Test Services and may determine to
amend the CTA Plan and the CQ Plan to permit the pilot test's Market
Data services on a permanent basis, whether in the form described in
Exhibit A, or to discontinue its authorization of one or more Pilot
Test Services. If NYSE (in respect of Network A Pilot Test Services),
or AMEX (in respect of Network B Pilot Test Services) makes any such
determination, it shall so notify Customer. Within 30 days of receipt
of that notice, Customer shall cease to provide the Pilot Test Services
to which the notice refers and the provisions of this Exhibit C shall
then terminate. If Customer wishes to continue to provide those
services and NYSE or AMEX, as appropriate, is willing to permit
Customer to do so, Customer shall amend Exhibit A to reflect any
necessary changes and shall comply with such additional terms and
conditions as NYSE or AMEX, as appropriate, may impose in respect of
those services.
ACCEPTED AND AGREED:
CUSTOMER NEW YORK STOCK EXCHANGE, INC.
First International Financial Corp. acting in the capacities Paragraph 12
describes
By: By:
------------------------------ --------------------------------
Name: Xxxx X. Xxxx Name: Xxxxxx Xxxxxx
Title: President Title: Managing Director,
Market Data
Date: Dec. 23, 1997 Date: 1/11/98
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ATTACHMENT A
TERMS AND CONDITIONS
PROPRIETARY NATURE OF DATA - Subscriber understands and
acknowledges that each "Authorizing SRO" (i.e., the New York Stock Exchange,
Inc. ("NYSE"), each CTA Plan Participant and each CQ Plan Participant), and each
other entity whose information is made available over the facilities of the
Authorizing SROs (an "Other Data Disseminator") has a proprietary interest in
the Market Data that originates on or derives from it or its markets. For the
purposes of this Addendum, "Market Data" means (a) CTA Network A last sale
information, (b) CQ Network A quotation information, (c) such bond and other
equity last sale and quotation information, and such index and other market
information, as the Authorizing SROs or any Other Data Disseminator may make
available and as NYSE may from time to time designate as "Market Data", and (d)
all information that derives from any such information.
THIRD-PARTY BENEFICIARIES; ENFORCEMENT - Subscriber
understands and acknowledges that this Addendum confers third-party beneficiary
status on the Authorizing SROs. In authorizing Vendor to take any action, or to
receive any communication, this Addendum authorizes Vendor to act on its own
behalf and on behalf the Authorizing SRO(s). NYSE may enforce this Addendum as
to all Market Data, and any Authorizing SRO may enforce this Addendum as to
Market Data that originates on or derives from its markets, by legal proceeding
or otherwise, against Subscriber and may likewise proceed against any person
that obtains such Market Data other than as this Addendum contemplates. No act
or omission on the part of Vendor and no other defense that might defeat
recovery by Vendor against Subscriber shall affect the rights of the Authorizing
SROs as third-party beneficiaries under this Addendum. Subscriber shall pay the
reasonable attorney's fees that any Authorizing SRO incurs in enforcing this
Addendum against Subscriber.
DATA NOT GUARANTEED - Subscriber understands that neither
NYSE, any other Authorizing SRO, any Other Data Disseminator nor the Processor
under the CTA Plan or the CQ Plan (the "Disseminating Parties") guarantees the
timeliness, sequence, accuracy or completeness of Market Data or of other market
information or messages disseminated by any Disseminating Party. Neither
Subscriber nor any other person shall hold any Disseminating Party liable in any
way for (a) any inaccuracy, error or delay in, or omission of, (i) any such
data, information or message or (ii) the transmission or delivery of any such
data, information or message, or (b) any loss or damage arising from or
occasioned by (i) any such inaccuracy, error, delay or omission, (ii)
non-performance or (iii) interruption in any such data, information or message,
due either to any negligent act or omission by any Disseminating Party, to any
"force majeure" (e.g., flood, extraordinary weather conditions, earthquake or
other act of God, fire, war, insurrection, riot, labor dispute, accident, action
of government, communications or power failure, equipment or software
malfunction) or to any other cause beyond the reasonable control of any
Disseminating Party.
REDISSEMINATION PROHIBITED - Subscriber shall use Market Data
only for its individual use. Subscriber shall not furnish Market Data to any
person or entity other than an officer, partner or employee of Subscriber.
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DISSEMINATION DISCONTINUANCE OR MODIFICATION - Subscriber
understands that, at any time, the Authorizing SROs may discontinue
disseminating any category of Market Data, may change or eliminate any
transmission method and may change transmission speeds or other signal
characteristics. Subscriber shall not hold the authorizing SROs liable for any
resulting liability, loss or damages that may arise therefrom.
DURATION; SURVIVAL - This Addendum remains in effect for so
long as Subscriber has the ability to receive Market Data as contemplated by
this Addendum. In addition, either Subscriber or Vendor may terminate this
Addendum on 30 days' written notice to the other. Subscriber understands that
Vendor is obligated to terminate this Addendum pursuant to this Paragraph upon
notice to that effect from NYSE. Paragraphs [PROPRIETARY NATURE OF DATA],
[THIRD-PARTY BENEFICIARIES; ENFORCEMENT] AND [DATA NOT GUARANTEED] survive
termination of this Addendum. This Addendum supersedes each previous agreement
between the Subscriber and NYSE insofar as the superseded agreement pertains to
the Market Data services that Vendor provides to Subscriber pursuant to the
Vendor-Subscriber Agreement.
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EXHIBIT C
AGREEMENT FOR RECEIPT AND USE
OF MARKET DATA; ADDITIONAL PROVISIONS
22. "CLICK-ON" AGREEMENTS
(a) SCOPE - The Agreement and Exhibit A require Customer to
enter into contracts with its subscribers for the benefit of the Authorizing
SROs. This Paragraph 22 applies insofar as Exhibit A allows Customer to satisfy
that obligation by means of on-line contracts to which the subscriber manifests
its assent by means of "clicking" an appropriate space on a computer screen (a
"Click-On Agreement"); provided, however, that, subsequent to the effective date
of this Paragraph 22, Customer may not so use a Click-On Agreement for the
benefit of the Authorizing SROs insofar as a subscriber enters into written
agreements (i.e., on paper) for Customer's benefit contemporaneously with the
subscriber's determination to receive Market Data from Customer.
(b) AUTHORIZATION - Customer may fulfill its obligation to
have its subscribers enter into agreements for the benefit of the Authorizing
SROs by means of a Click-On Agreement, subject to the indemnification provisions
set forth in Paragraph 22(c) below and the following conditions:
(i) NYSE must have approved the form and content of, and
manner of entry into, the Click-On Agreement, and any change to that
form, content and manner of entry, prior to its use.
(ii) Customer must maintain a hard copy of each NYSE-approved
Click-On Agreement and careful records as to the scope of use of each
such agreement. Those records ("Click-On Agreement Records") must
indicate with precision exactly to which agreement each subscriber
manifested its assent, the precise manner in which each subscriber
manifested its assent and the effective dates of the Click-On Agreement
and of any updated or revised versions.
(iii) Upon request from NYSE, Customer must provide to
NYSE:
(A) a hard copy of each Click-On Agreement that
it uses in connection with its provision of
the Services, including any revised version;
(B) a description of the scope of use of, and
manner of entry into, each such agreement;
and
(C) access to all Click-On Agreement Records.
(iv) Customer must prevent the subscriber from having the
ability to manifest its assent to the Click-On Agreement unless all of
the agreement's terms and conditions have first appeared on the
computer screen.
(v) Each time a subscriber logs on to the Service(s) that the
Click-On Agreement governs, the Subscriber must view the following
message, which shall appear in a clearly legible form:
As your agreement for the receipt and use of market data
provides, the securities markets (1) reserve all rights to the
market data that they make available; (2) do not guarantee
that data; and
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(3) shall not be liable for any loss due either to their
negligence or to any cause beyond their reasonable control.
(c) INDEMNIFICATION - Customer shall defend and indemnify the
Authorizing SROs, and hold the Authorizing SROs harmless, from and against any
suit or other proceeding at law or in equity, claim, liability, direct or
indirect loss, cost, damage, lost profits or expense (including attorneys' fees)
incurred by or threatened against the Authorizing SROs that arises out of or
relates to the unenforceability of a Click-On Agreement due to the manner in
which the subscriber manifests its assent to the terms and conditions of the
Click-On Agreement. NYSE's prompt written notice of the suit or proceeding is a
condition to Customer's obligations under the preceding sentence. Customer shall
have sole control of the suit or proceeding and all negotiations for its
settlement or compromise.
(d) APPLICABILITY OF AGREEMENT - Terms defined in the
Agreement shall have the same meaning in this Paragraph 22.
Except as this Paragraph 22 may otherwise provide, all terms and conditions of
the Agreement shall govern this Paragraph 22. In particular, the parties
recognize and understand that clause (iii) of Paragraph 5(b) of the Agreement
and the provisions of Paragraph 5(b) that apply to that clause govern Customer's
use of Click-On Agreements. In the event of a conflict between the Agreement and
this Paragraph 22, this Paragraph 22 shall govern.
(e) TERMINATION OF PARAGRAPH 22 - If NYSE, in its sole
discretion, determines that statutory or common law have deemed, or are likely
to deem, Click-On Agreements to be unenforceable, it may so notify Customer.
Customer shall cease to allow subscribers to enter into Click-On Agreements
within 24 hours of Customer's receipt of that notice and this Paragraph 22 shall
then terminate; provided, however, that, as to any subscriber that has
manifested assent to a Click-On Agreement prior to that determination, Customer
may continue to provide one or more Services to that subscriber until 90 days
after Customer's receipt of that notice. Customer may provide one or more
Services to that subscriber thereafter only if the subscriber has entered into a
written agreement suitable to NYSE.
ACCEPTED AND AGREED:
CUSTOMER NEW YORK STOCK EXCHANGE, INC.
First International Financial Corp. acting in the capacities Paragraph 12
describes
By: By:
---------------------------- ------------------------------
Name: Xxxx X. Xxxx Name: Xxxxxx Xxxxxx
Title: President Title: Managing Director, Market Data
Date: 12/15/97 Date: 1/11/98
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