PCQUOTE
Co-Branding Agreement
This agreement is made effective Oct. 11,1996 by and between PC QUOTE, INC.
(hereinafter referred to as "PCQ"), a Delaware Corporation with its principal
place of business at 000 Xxxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000 and AB
Wately, Inc, (hereinafter referred to as "ABW") with its principal place of
business at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000. This agreement shall apply
to said ABW and all of its subsidiaries and related companies.
Definitions:
Software
PC Quote 6.0(TM) for Windows on the Internet is a software application that
displays market data information, provided via the digital Hyperfeed, in the
form of quotes, charts, graphs, tables, board views, tickers and other
analytical tools.
Hyperfeed
The PC Quote proprietary digital data feed transmitted via satellite, land line,
or Internet with advanced compression technology, containing financial market
Information obtained by PCQ from the institutions and exchanges listed in
Section 5 of this Agreement. This market data includes stock quotes, futures and
options trading, commodities, and other related information.
Witnesseth:
NOW, THEREFORE, for good and valuable consideration, and in consideration of the
mutual covenants and conditions herein set forth, and with the intent to be
legally bound thereby, ABW and PCQ hereby agree to the following
1. The Co-Branded Service
A. PCQ agrees to allow ABW to co-brand the PCQ SOFTWARE in order to
provide a value added service on ABW's World Wide Web site. The co-branded
SOFTWARE will be made available via ABW servers housed at the ABW office listed
in this Agreement. The server will be accessed by all ABW subscribers in order
to download the SOFTWARE and receive the HYPERFEED.
B. PCQ will provide a continuous HYPERFEED to the ABW servers; however,
PCQ will control the receipt of the HYPERFEED by ABW clients via a remote access
server on PCQ's site that will authorize each new ABW account. ABW agrees to
sign up all new subscribers to the co-branded service including execution of all
applicable service and exchange agreements, will send to PCQ the executed
subscriber agreements before access to the quote servers will be provided to ABW
clients by PCQ. PCQ shall have the sole ability to authorize access to the
market data contained in the HYPERFEED by ABW clients.
D. PCQ and Xxxxxxxx shall retain title and all copyrights or
proprietary rights to the SOFTWARE and HYPERFEED provided to ABW and ABW's
clients pursuant to this Agreement. ABW will not provide any unauthorized access
to the co-branded service, nor reproduce or redistribute the service in any way.
E. ABW agrees to include the following in the co-branded pages
displaying quotes: "All quotes provided by PC Quote, Inc." ABW also agrees to
include the following disclaimer on the access page to the co-branded service:
"PC Quote is not subject to liability for truth, accuracy, or
completeness of the market data information nor is PC Quote liable for
errors, mistakes or omissions in the data or for any delays or
interruptions in the end user's receipt of the data. PC Quote does not
warrant that the data provided may be relied upon for trading
purposes."
2. Term
A. [*] The effective date for purposes of this Agreement is the
contract date as specified on the signature page of this Agreement. Neither PCQ
nor ABW shall terminate or alter this Agreement except as stated herein.
B. [*] Notice expressing a desire to terminate this Agreement will be sent by
certified mail to the address indicated above. Said termination will be
effective as of the last day of the month in which this anniversary occurs.
C. Notwithstanding the provisions of (A), and (B) above, should a party to this
Agreement be in material breach of the Agreement, the other party may terminate
the Agreement thirty (30) days after notice of said material breach is received,
and only if such material breach is not cured within thirty (30) days of receipt
of notice.
3. Payment For Service
A. Beginning with the date specified on the fee schedule attached
hereto as Schedule A, or upon completion of the installation and testing of all
equipment and services, which ever is later, ABW will commence payment of a
monthly fee for the right to permit access by ABW's clients to said SOFTWARE and
HYPERFEED.
B. The charges for the services set forth in this Agreement shall be
invoiced monthly. ABW agrees to pay said charges within thirty (30) days of the
monthly invoice date. ABW may issue a purchase order for billing purposes. The
invoices must reference the purchase order number and be sent to the "Xxxx To"
address stated on the purchase order. The terms of this negotiated Agreement
shall supercede those contained on that purchase order.
C. All payments will be made in US Dollars drawn on a US bank. ABW will
provide a complete list of all clients using the format described in Schedule B
with each payment.
D. Any payments which have not been received by PCQ within thirty (30)
days of the invoice date shall be subject to a FINANCE CHARGE of 1.0% per month
which is a corresponding ANNUAL PERCENTAGE RATE of 12% on the outstanding
balance.
F. Any invoice submitted by PCQ shall be deemed correct unless
ABW advises PCQ in writing, within thirty (30) days of the receipt of the
invoice, that it disagrees with the invoice and specifies the nature of the
disagreement.
G. Any sales, use, excise, value added and local property taxes will be
payable by ABW should such taxes be applicable.
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H. In the event that any invoice is not paid by ABW within forty-five
(45)days after receipt, and when no discrepency issues have been identified by
ABW which are in some stage of resolution, after giving notice to ABW, PCQ may
terminate this agreement and ABW's access to and use of SOFTWARE and HYPERFEED
provided hereunder unless ABW pays such invoice prior to the termination date
specified in the Termination Notice. The remedies contained herein are
cumulative and are in addition to all other rights and remedies available to PCQ
under this Agreement, by operation of law, or otherwise.
I. Upon termination as provided for in this Agreement, ABW will pay all
charges for services and fees for the entire month in which that termination
becomes effective.
4. Technical Support
A. ABW agrees to field all initial customer support requests and assist
its clients to the best of its knowledge and ability. If the support issue is of
a complex nature that ABW is unable to solve, ABW may forward the call on to the
PCQ technical support staff.
5. Exchange Authorization
A. The ABW hereby acknowledges and agrees that the HYPERFEED provided
under this Agreement contains market information obtained, selected and
consolidated by PCQ under the authority of various agencies, including but not
limited to, the New York Stock Exchange, American Stock Exchange, Pacific Stock
Exchange, Midwest Stock Exchange, Chicago Board Options Exchange, the Options
Price Reporting Authority, the Consolidated Tape Association, Chicago Board of
Trade, Chicago Mercantile Exchange/International Monetary Market, Kansas City
Board of Trade, Minneapolis Grain Exchange, Commodities Exchange Center, New
York Futures Exchange, Mid-America Commodity Exchange, and Consolidated Canadian
Group and that the ABW's use of the service for internal or external
redistribution of data is authorized and regulated by said agencies.
6. Limitations Of Liability, Remedies On Default
A. The information and data used in the HYPERFEED and SOFTWARE provided
under this Agreement, including option prices, stock prices, commodity prices
dividends, dividend dates, volatilities, deltas and other variables, are
obtained by PCQ from the various exchanges and other sources which are believed
to be reliable and PCQ agrees to run reasonable control checks thereon to verify
that the data transmitted by PCQ is the same as the data received from the
various exchanges and other sources. However, PCQ shall not be subject to
liability for truth, accuracy, or completeness of the information received by
PCQ from the various exchanges and other sources and conveyed to ABW or for
errors, mistakes or omissions therein or for any delays or interruptions of the
HYPERFEED or SOFTWARE from whatever cause. This agreement does not violate any
agency requirements and PCQ has the right to enter into this agreement from its
information providers.
B. PCQ shall not be responsible for, nor be in default under this
Agreement due to delays or failure of performance resulting from Internet
Service Provider delivery problems or failure, or any communication or delivery
problems associated with the Internet in general. Furthermore, PCQ and ABW shall
not be responsible for nor in default due to acts or causes beyond its control,
including but not limited to: acts of God, strikes, lockouts, communications
line or equipment failures, power failures, earthquakes, or other disasters.
Should such an occurrence render the HYPERFEED or SOFTWARE inoperable or
unavailable for a period over ten (10) days, then ABW shall have the right to
discount their billing in proportion to the delay.
C. LIABILITY UNDER THIS AGREEMENT FROM ANY AND ALL CAUSES, INCLUDING, BUT NOT
LIMITED TO, PROGRAM MALFUNCTION OR OPERATIONAL NEGLIGENCE, SHALL BE LIMITED TO
GENERAL MONEY DAMAGES IN AN AMOUNT NOT TO EXCEED THE TOTAL CHARGES PAID BY ABW
FOR THE SERVICES DURING THE MOST RECENT TWELVE (12) MONTHS OF THE AGREEMENT.
SUCH LIMITATION SHALL BE THE EXTENT OF PCQ OR ABW'S LIABILITY REGARDLESS OF THE
FORM IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT AGAINST PCQ OR ABW,
AND THE FOREGOING SHALL CONSTITUTE PCQ'S OR ABW'S SOLE REMEDY. IN NO EVENT WILL
EITHER PARTY BE RESPONSIBLE FOR LOST PROFITS OR SPECIAL INDIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES WHICH ABW OR PCQ INCUR OR EXPERIENCE ON ACCOUNT OF
ENTERING INTO OR RELYING ON THIS AGREEMENT, EVEN IF PCQ OR ABW HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES.
7. Exclusion Of Warranties
It is expressly understood and agreed to by the parties hereto that EXCEPT AS
SPECIFICALLY PROVIDED HEREIN, ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING
ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE,
ARE HEREBY EXCLUDED.
8. Confidentially of Proprietary Information
A. ABW understands and acknowledges the proprietary nature of the
HYPERFEED and SOFTWARE provided by PCQ and that said HYPERFEED and SOFTWARE have
been developed as a trade secret of PCQ and at its expense. ABW agrees to hold
said information in the same manner as ABW deals with its own proprietary
information and trade secrets. Furthermore, ABW agrees not to attempt any
reverse engineering of the HYPERFEED to decode the signals used by PCQ in
transmitting the information.
B. PCQ understands the proprietary nature of any information belonging
to ABW and recognizes the harm that can be occasioned to user by disclosure of
information relative to ABW's activities. PCQ agrees to hold such information in
the same manner as PCQ deals with its own proprietary information and trade
secrets.
C. PCQ acknowledges the confidential nature of ABW's use of the
SOFTWARE and HYPERFEED during the initial term of this agreement. Due to the
unannounced platform on which ABW shall make available its electronic service to
its client during this initial term, PCQ shall in no way disclose to other
parties the substance nor acknowledge the existence of this agreement. Any
advertising or disclosure of the relationship between the parties, use of
either's marks, names or reference by the other shall be approved by both
parties prior to release.
9. Indemnification
A. ABW hereby agrees to defend, indemnify and hold harmless PCQ, its
employees, agents, successors and assigns, harmless, including reasonable
attorney's fees, from and against any of the following:
1 . Any and all claims, liabilities, and obligations claimed
by any third party or parties against PCQ and arising directly out of ABW's use
of the Service.
2. Any and all claims, liabilities, or obligations resulting
from ABW's misrepresentations, negligence, willful misconduct, breach of
warranty or non-performances of any of the covenants or obligations under this
Agreement or from any misrepresentations or omissions made by ABW to PCQ
including specifically, but not limited to, any authority required of ABW
pursuant to Section 6 hereof.
B. Such indemnification by ABW shall only be effective if the
claim, liability or obligation claimed by the third party is in no way related
to PCQ's negligence, willful misconduct or failure to perform any of its
obligations under this Agreement.
C. PCQ hereby agrees to defend, indemnify and hold ABW
harmless, including reasonable attorney's fees, from and against any claim that
the SOFTWARE or HYPERFEED infringes on the patent, copyright or other
proprietary rights of another, including any and all claims, liabilities, or
obligations resulting from PCQ's negligence, willful misconduct,
misrepresentations, breach of warranty or non-performance of any of the
convenants or obligations under this Agreement.
D. Such indemnification by PCQ shall only be effective if:
1. The claim, liability or obligation claimed by the third
party is in no way related to ABW'S negligence, willful misconduct or failure to
perform any of its obligations under this Agreement.
2. ABW notifies PCQ promptly in writing of any claim or
threatened claim against ABW and thereafter cooperates with PCQ so that PCQ will
not be prejudiced in the defense, settlement or other handling thereof and ABW
permits PCQ, at PCQ's option and expense, to control the defense, settlement or
other handling of such claim.
10. Assignment
This Agreement or any rights or obligations granted hereunder
may not be assigned by ABW without the prior written consent of PCQ.
11. Applicable Law and Venue
This Agreement shall be interpreted, construed and enforced in
all respects in accordance with the laws of the State of Illinois, except with
regards to its rules regarding choice of law. Each party irrevocably consents to
the jurisdiction of the courts of the State of Illinois and the federal courts
situated in the State of Illinois, in connection with any action to enforce the
provisions of this Agreement, to recover damages or other relief for breach or
default under this Agreement, or otherwise arising under or by reason of this
Agreement.
12. Severability and Survival
A. Whenever possible, each provision of this Agreement shall
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be prohibited by or invalid under
applicable law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Agreement.
B. The provisions dealing with indemnification and
confidentiality and any other section of this Agreement,unless specifically
stated otherwise, which may reasonably be interpreted or construed as surviving
the completion, expiration, termination or cancellation of this Agreement, shall
survive the completion, expiration, termination or cancellation of this
Agreement.
13. Miscellaneous Provisions
A. The parties to this Agreement are independent contractors with
requisite corporate power and authority to enter into the Agreement and carry
out the transactions contemplated hereby. Neither party is a ABW or
representative of the other party. Neither party shall have any right, power or
authority to enter into any agreement for or on behalf of, or incur any
obligation or liability of, or to otherwise bind, the other party. This
Agreement shall not be interpreted or construed to create an association, joint
venture or partnership between the parties or to impose any partnership
obligation or liability upon either party.
B. Any notice, approval, request, authorization, direction or other
communication under this Agreement shall be given in writing and shall be deemed
to have been delivered and given for all purposes, (i) on the delivery date if
delivered personally to the party to whom the same is directed, or (ii) three
business days after the mailing date, whether or not actually received, if sent
by registered U.S. mail postage and charges prepaid, to the address of the party
to whom the same is directed as set forth in the introductory paragraph of this
Agreement. Either party may change its address specified above by giving the
other party notice of such change in accordance with this Section 13.B.
All notices delivered to ABW shall be delivered to the address above,
attention:
Xxxxx Xxxxxxx
XX Xxxxxx
C. The failure of either party to insist upon or enforce strict
performance by the other party of any provision of this Agreement or to exercise
any right under this Agreement shall not be construed as a waiver or
relinquishment to any extent of such party's right to assert or rely upon any
such provision of right in that or any other instance; rather, the same shall be
and remain in full force and effect.
14. Entire Agreement
A. As used herein, the term "Agreement" includes any written
amendments, modifications or supplements made in accordance herewith.
B. ABW and PCQ acknowledge that they have read this Agreement,
understand it, agree to be bound by its terms and further acknowledge and agree
that it constitutes the entire agreement of the parties hereto and supersedes
all other proposals, oral or written, and all other communications between the
parties relating to the subject matter hereof and this Agreement may not be
modified or terminated orally. No amendment to this Agreement shall be effective
unless it is in writing and signed by duly authorized representatives of both
parties.
IN WITNESS WHEREOF, the parties hereto hereby execute this Agreement.
AGREED TO:
PC QUOTE, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President of Sales
Date: 10/11/96
X.X. XXXXXX, INC.
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Director
Date: 10/11/96
SCHEDULE A
To the Co-Branding Agreement between
PC Quote, Inc. and X.X. Xxxxxx, Inc. dated October 11, 1996
Schedule of Services and Fees
[*]
BY: PC QUOTE INC. BY: X.X. Xxxxxx, Inc.
/s/ signature illegible /s/ Xxxxxx Xxxxx
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[X.X. XXXXXX, INC. LETTERHEAD]
Amendment to Section 2, Part B of the Co-Branding Agreement
This amendment to Section 2 (titled "Term"), Part B of the Co-Branding Agreement
is made effective December 9, 1996 by and between PC Quote, Inc. (hereinafter
referred to as "PCQ") and X.X. Xxxxxx, Inc. (hereinafter referred to as
"ABW"),who are also the parties contracted in the aforementioned Co-Branding
Agreement. This Amendment shall apply to said PCQ and ABW and all of their
subsidiaries and related companies.
[*]
AGREED TO BY:
/s/ Xxxxxx Xxxxx /s/ Xxxxxx Xxxxxxx
X.X. Xxxxxx, Inc P.C. Quote, Inc.
Xx. Xxxxxx Xxxxx Xx. Xxxxxx Xxxxxxx
Director President
Date:12/5/96 Date:12/10/96
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[X.X. XXXXXX, INC. LETTERHEAD]
SECOND AMENDMENT
TO
CO-BRANDING AGREEMENT
THIS SECOND AMENDMENT TO CO-BRANDING AGREEMENT (this "Amendment") is
made and entered into, effective for all purposes and in all respects as of the
23rd day of February,1998, by and between PC QUOTE, INC., with its principal
place of business at 000 Xxxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000 ("PCQ") and
X.X. Xxxxxx, Inc., with its principal place of business at 00 Xxxx 00xx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 ("ABW").
WHEREAS, PCQ and ABW have executed that certain Co-Branding Agreement
dated October 11, 1996, as amended on December 10, 1996 (as so amended, the
"Agreement");
WHEREAS, the parties hereto desire to further amend the Agreement to
modify the provisions of the Agreement regarding [*] thereof; and
WHEREAS, the parties hereto desire to set forth herein the terms and
conditions of their agreements and understandings with respect to the foregoing.
NOW, THEREFORE, in consideration of the foregoing, of the mutual
promises of the parties contained herein and of other good valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending legally to be bound, hereby covenant and agree as
follows:
1. The preamble hereto is incorporated herein and, by this reference,
is made a substantive part hereof.
2. The text of Section 2. A. and B. of the Agreement is hereby deleted
in its entirety and the following language is inserted in its stead:
[*]
3. To the extent, if any, that a provision of this Amendment conflicts
with or differs from any provision of the Agreement, such provision of this
Second Amendment shall prevail and govern for all purposes and in all respects.
4. Except as modified hereby, the Agreement and its terms and
provisions are hereby ratified and confirmed for all purposes and in all
respects.
5. This Second Amendment may be executed in several counterparts, each of which
shall be deemed an original but all of which collectively shall constitute the
same instrument.
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IN WITNESS WHEREOF, the undersigned parties have hereunto affixed their
signatures and seals as of the day and year first above written.
PC QUOTE, INC.
By: /s/ Xxxxx [illegible]
Name: Xxxxx [illegible]
Title:VP
X.X. XXXXXX, INC.
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title:President
