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Exhibit 10.13
WEBSITE DEVELOPMENT, HOSTING AND LICENSE AGREEMENT
THIS WEBSITE DEVELOPMENT, HOSTING AND LICENSE AGREEMENT (the "Agreement")
is entered into and effective as of February 22, 2000 (the "EFFECTIVE DATE") by
and between Imperial Capital, LLC, a Delaware limited liability company, located
at 000 Xxxxx Xxxxx Xxxxx, Xxxxx 000, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000 ("IC"), and
Xxxxxxxxxxxx.xxx, Inc., a DELAWARE corporation located at 0000 Xxxxxxxxx Xxxxx,
Xxxxx 000, Xxxxxx, XX 00000 ("FRTI").
RECITALS
A. IC desires to create a Web Site (as defined below) located at the URL
xxx.xxxxxxx.xxx for the purpose of providing news, analysis, research, financial
information and other content of interest to persons who invest in municipal,
corporate, treasury and other types of bonds and fixed income securities, and to
facilitate an online order execution system for customers of IC.
B. FRTI has certain expertise and capabilities in the provision of
financial and investment services delivered through a Web Site, including those
offered at the FRTI Web Site (as defined below), as well as in the development,
hosting and maintenance of Web Sites generally. FRTI also has a significant user
base interested in investment information and investment services.
C. IC desires to engage FRTI, and FRTI desires to be so engaged, to
provide certain professional services to IC involving the creation,
implementation, hosting and maintenance of (i) the Bond Internet Ordering
Execution System or BIOES (as defined below), (ii) the IC Web Site for the
dissemination of IC Content (as defined below) and within which the BIOES will
reside, and (iii) a Fixed Income Corner (as defined below) within the FRTI Site
which will include IC Content and a Link to the IC Web Site, all in accordance
with the terms of this Agreement. IC also desires to obtain from FRTI, and FRTI
desires to provide access to, FRTI's user base as a source of traffic to access
the IC Web Site and the BIOES.
D. IC is a licensed broker-dealer under the Securities Exchange Act of
1934, as amended, and under the laws of each state in which it does business,
and such licenses allow IC to conduct its business as now conducted. It is the
intention of the parties that IC will have complete responsibility as a
registered broker-dealer for all activities and services that may only be
offered by a broker-dealer, and that Xxxxxxxxxxxx.xxx will not undertake any
activity or receive any compensation that would require that Xxxxxxxxxxxx.xxx be
licensed as a broker-dealer.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties agree as follows:
1. DEFINITIONS
1.1 "BOND EXPRESS SYSTEM" means the existing proprietary database for
traders regarding current bond offerings operated by BARRA, Inc., and accessible
to IC by virtue of a license from BARRA, Inc.
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1.2 "BOND INTERNET ORDER EXECUTION SYSTEM" or "BIOES" means the system
with which customers to the IC Web Site can execute orders to purchase and/or
sell fixed income securities.
1.3 "BIOES WEB SITES" means the IC Web Site and the Fixed Income Corner of
the FRTI Web Site.
1.4 "CODE" means computer programming/formatting code, any files necessary
to make image maps function, any server code necessary to make forms, buttons,
check-boxes or similar functions, code necessary to perform database functions,
reports, firewalling, disk access, and any other similar function or process
required by, or developed under this Agreement. If not otherwise specified, Code
shall include both Object Code and Source Code.
1.5 "CONFIDENTIAL INFORMATION" means any proprietary or confidential
information, including Intellectual Property, information relating to customers
and/or users, and other similar rights regarding information marked or otherwise
treated by the party owning such as confidential. Confidential Information does
not include any information which (a) is previously known to a disclosing party
without obligation of confidence, and without breach of this Agreement, (b) is
disclosed to the public generally through no wrongful act of the disclosing
party, (c) is received from a third party not having an obligation of confidence
and without breach of this Agreement, or (d) is independently developed by a
disclosing party without access to the other party's confidential information.
1.6 "DEVELOPED SOFTWARE" means all Code, supporting technologies and Web
Pages which constitute the IC Web Site and/or the BIOES developed by FRTI for IC
pursuant to this Agreement, except FRTI Intellectual Properties.
1.7 "FIXED INCOME CORNER" means that portion, section or Web Page(s)
within the FRTI Web Site that is dedicated to providing information relating to
fixed income investment vehicles and which contains IC Content and a Link to the
IC Web Site.
1.8 "FRTI CONTENT" means content and branding of FRTI which may be used by
IC and or FRTI in a specified Look and Feel format on the Fixed Income Corner,
the BIOES and the IC Web Site.
1.9 "FRTI INTELLECTUAL PROPERTY" means all FRTI Content, FRTI Software,
FRTI Tools and all other FRTI copyrights, patents, trade marks, service marks,
right of publicity, authors' rights, contract and licensing rights, goodwill and
all other intellectual property rights as may exist now and/or hereafter come
into existence and all renewals and extensions thereof, regardless of whether
such rights arise under the laws of the United States, or any other state,
country or jurisdiction. The FRTI Intellectual Property also includes all
upgrades, improvements, expansions, alterations, and additions made by FRTI
during the term of this Agreement and during the course of performing its
obligations under this Agreement.
1.10 "FRTI SERVICES" means those services performed by FRTI hereunder.
1.11 "FRTI SOFTWARE" shall mean any Code, standardized subroutines,
command structures, algorithms, processes, design, all interfaces, navigational
devices, menus, menu structures
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or arrangements, icons, help and other operational instructions and the literal
and nonliteral expressions of ideas that are proprietary to FRTI.
1.12 "FRTI TOOLS" means all FRTI Software (as defined above) and
development tools and programming techniques developed or owned by FRTI for use
in the development or operation of web sites, including without limitation the
IC Web Site, whether existing prior to the commencement of this Agreement,
together with all modifications to and enhancements of, and all derivative works
(other than the Developed Software) based upon, such FRTI Software and FRTI
Tools, and all Intellectual Property Rights therein. FRTI Tools shall not
include the Developed Software, any IC Content or third party software.
1.13 "FREEREALTIME WEB SITE" or "FRTI WEB SITE" means the Web Site at the
URL xxx.xxxxxxxxxxxx.xxx from time to time and any additional web site that FRTI
or any affiliate may from time to time use.
1.14 "IC CONTENT" means content and branding of IC which may be used by IC
and or FRTI in a specified Look and Feel format on the Fixed Income Corner, the
BIOES and the IC Web Site, and drawings, pictorial works, motion pictures,
animations, audiovisual works, taxonomy, database, text and other works of
authorship and all other components of the IC Web Site, other than the FRTI
Tools, created by or on behalf of IC.
1.15. "IC INTELLECTUAL PROPERTY" means all IC Content, IC Software, and
all other IC copyrights, patents, trade marks, service marks, right of
publicity, authors' rights, contract and licensing rights, goodwill and all
other intellectual property rights as may exist now and/or hereafter come into
existence and all renewals and extensions thereof, regardless of whether such
rights arise under the laws of the United States, or any other state, country or
jurisdiction. The IC Intellectual Property also includes all upgrades,
improvements, expansions, alterations, and additions made by IC during the term
of this Agreement and during the course of performing its obligations under this
Agreement.
1.16 "IC SOFTWARE" shall mean any Code, standardized subroutines, command
structures, algorithms, processes, design, all interfaces, navigational devices,
menus, menu structures or arrangements, icons, help and other operational
instructions and the literal and nonliteral expressions of ideas that are
proprietary to IC.
1.17 "IC WEB SITE" means the Web Site at the URL xxx.xxxxxxx.xxx or any
additional Web Site or URL that IC may use for the same purpose at a later date.
1.18 "LICENSE" means a limited, worldwide, non-exclusive, perpetual,
royalty free license to applicable FRTI Intellectual Properties and as more
fully set forth in Section 14, below.
1.19 "LINK" means a hypertext link directly between Web Pages on the World
Wide Web that may be initiated by clicking an icon, logo, button, image or text.
1.20 "LOOK AND FEEL" means the general appearance and functionality of any
IC Content, BIOES Web Site or the BIOES, made, designed, hosted, displayed and
made available pursuant to this Agreement.
1.21 "MARKETING COMMITTEE" means a committee of two or more individuals,
an even
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number of representatives of which shall be from FRTI and IC, and which shall
have the sole and exclusive responsibility and authority to determine, approve
and implement the Marketing Plan. Initially, the Marketing Committee will be two
members, and will not be increased without the prior written consent of both
parties.
1.22 "MARKETING PLAN" means the plan to market and promote the BIOES Web
Sites, and the BIOES, as more fully set forth in Section 15, below.
1.23 "OBJECT CODE" shall mean Code in machine-readable form generated by
compilation of Source Code and contained in a medium that permits it to be
loaded into and operated on computers as contemplated by this Agreement.
1.24 "SOURCE CODE" shall mean Code in programming and/or page xxxx-up
languages such as "C" and HTML, including all comments and procedural code
(e.g., job control language (JCL) statements), plus all related development
documents (e.g., flow charts, schematics, statements of principles of
operations, end-user manuals, architectural standards, and any other
specifications).
1.25 "STATEMENT OF WORK" means all of the services, obligations, efforts
and functions reasonably necessary or required to develop and host the BIOES Web
Sites (including the IC Content) and the BIOES in accordance with the terms and
conditions of this Agreement, as more fully set forth in detail in Exhibit A to
be attached to this Agreement in the manner contemplated by Section 2.1, below.
1.26 "WEB PAGE" means a document or file that is intended to be accessible
by Internet users with a web browser.
1.27 "WEB SITE" means a series of interconnected Web Pages hosted in a
single Web domain.
2. DEVELOPMENT PLAN AND FEE
2.1 FRTI shall deliver the Statement of Work to IC within 20 days of the
execution of this Agreement. IC will approve the Statement of Work in writing,
or alternatively, shall provide a statement in reasonable detail of any
deficiencies therein, within 5 business days of receipt thereof. In the event of
rejection, the parties will work diligently to complete a mutually satisfactory
Statement of Work, and upon completion, will again commence the delivery and
acceptance procedure set forth in this Section 2.1. Once the Statement of Work
has been accepted by IC, IC shall become obligated to pay to FRTI the
development fees set forth in Section 11, below.
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3. DESIGN, HOSTING AND MAINTENANCE OF THE FIXED INCOME CORNER
3.1 Design. FRTI will use FRTI Content and IC Content to design, produce,
host and maintain the structure and content comprising the Fixed Income Corner
of FRTI's Web Site, including by providing any necessary and suitable hardware
and any other equipment or facilities necessary to fulfill such requirements.
The IC Content, the BIOES and the IC Web Site shall be hosted in accordance with
specifications that are commercially reasonable in relation to other similar web
sites and the FRTI Web Site ("HOSTING SPECIFICATIONS").
3.2 Link to the BIOES. FRTI shall design, configure and maintain the Fixed
Income Corner to include a prominent Link from the Fixed Income Corner to the
BIOES located within the IC Web Site in a manner consistent with Section 9,
below. In addition, FRTI shall at all times maintain the Fixed Income Corner as
a prominent part of the FRTI Web Site.
3.4 Updates. Both parties understand and agree that the IC Content and/or
the FRTI Content contained within the Fixed Income Corner may require updated
information (the "CONTENT UPDATES"). Each party shall deliver their respective
Content Updates in a media and delivery method mutually agreed upon by both
parties. FRTI shall incorporate any and all Content Updates to the Fixed Income
Corner approved by IC during the Term of this Agreement.
3.5 Launch Date. Both parties understand and agree that time is of the
essence and that Phase One of the Statement of Work regarding the IC Web Site
shall be made available on or before May 31, 2000 (the "LAUNCH DATE"), unless
such date is extended by IC.
4. DESIGN, HOSTING AND MAINTENANCE OF THE BIOES
4.1 Design. FRTI and IC will use FRTI Content and IC Content to jointly
design, program and produce the BIOES, and FRTI will host and maintain the BIOES
residing on the IC Web Site, including by providing any necessary and suitable
hardware and any other equipment or facilities necessary to fulfill such
requirements, in accordance with the Hosting Specifications.
4.2 Look and Feel. FRTI and IC will work together to develop the operation
of the BIOES, and the Look and Feel for the BIOES, the FRTI Content and IC
Content appearing on the BIOES; provided, however, that IC shall have exclusive
control and discretion over the functions, performance and all other operational
aspects of the BIOES.
4.3 Updates and Modifications. Both parties understand and agree that the
IC Content and/or the FRTI Content included within the BIOES may require Content
Updates. Each party shall deliver their respective Content Updates in a media
and delivery method mutually agreed upon by both parties. FRTI shall incorporate
any and all Content Updates to the BIOES approved and provided by IC during the
Term of this Agreement. Both parties also understand and agree that the BIOES
may require modifications to the way it operates ("BIOES MODIFICATIONS"). IC and
FRTI shall work together to develop appropriate BIOES Modifications during the
Term of this Agreement; provided, however, IC shall have sole discretion and
approval over all BIOES Modifications.
4.4 Launch Date. Both parties understand and agree that time is of the
essence and that the BIOES shall be made available on or before the Launch Date.
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4.5 Location of the Service. The BIOES will reside within the IC Web Site
which will reside on FRTI's servers and utilize FRTI's Internet connection.
5. DESIGN, HOSTING AND MAINTENANCE OF THE IC WEB SITE
5.1 Design of the IC Web Site. FRTI and IC will use FRTI Content and IC
Content to jointly design, program and produce the IC Web Site, and FRTI will
host and maintain the IC Website, including by providing any necessary and
suitable hardware and any other equipment or facilities necessary to fulfill
such requirements, in accordance with the Hosting Specifications. FRTI's hosting
obligation shall be carried out in a manner consistent with the manner in which
FRTI currently hosts xxx.xxxxxxxxxxxx.xxx.
5.2 Updates. Both parties understand and agree that the IC Content and/or
the FRTI Content included within the IC Web Site may require Content Updates.
Each party shall deliver their respective Content Updates in a media and
delivery method mutually agreed upon by both parties. FRTI shall incorporate any
and all Content Updates to the IC Web Site approved and provided by IC during
the Term of this Agreement.
5.4 Launch Date. Both parties understand and agree that time is of the
essence and that the IC Web Site shall be made available on or before the Launch
Date.
5.5 Location of the Service. The IC Web Site may be located as a separate
Web Site, or as Web Pages within IC's existing Web Site, at the sole and
exclusive discretion of IC, but in either event, will reside on FRTI's servers
and utilize FRTI's Internet connection.
6. FRTI'S OBLIGATIONS
6.1 Performance of Services. FRTI agrees to diligently and professionally
complete the development of the Fixed Income Corner, the BIOES and the IC Web
Site in accordance with the terms and conditions of this Agreement and as
defined and described in the Statement of Work, and more specifically, to do the
following:
(i) FRTI will offer an appropriate level of e-mail customer support
on the Fixed Income Corner of the FRTI Web Site to BIOES customers, and
cooperate with IC to effectively coordinate the delivery of their customer
services.
(ii) Make available to the BIOES Web Sites all existing and future
elements of the FRTI brand and FRTI Content, including trademarks, real time
quotes, proprietary and allied financial information content and analytic tools
which FRTI has the right to provide. The parties shall determine the nature and
scope of access and use of such FRTI Content as consistent with the objective of
maximizing the BIOES customers and the economic value of the parties'
relationship while preserving the integrity of the FRTI brand.
(iii) Develop and host a mechanism whereby IC "contributing editors"
can update the content and offerings on the BIOES Web Sites.
(iv) Cooperate with IC to develop and execute the Marketing Plan and
use commercially reasonable efforts to market the BIOES Web Sites to potential
customers, including existing customers of FRTI, through commercially reasonable
marketing efforts. Those efforts will
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include, without limitation, engaging in a substantive analysis of existing
customers of FRTI to determine which customers may be potential buyers of fixed
income securities, and referring such customers to IC and sending email
proposals to such prospects on IC's behalf.
(v) Develop and manage the database and marketing system for a
periodic e-mail newsletter with content created by IC for delivery to FRTI and
IC customers.
(vi) Offer a level of customer service to BIOES customers equal to
that provided to FRTI's existing clients, including minimum site and on-line
system performance levels available from comparable on-line brokerage services,
and cooperate with IC to effectively coordinate the delivery of their respective
customer services. FRTI will use commercially reasonable efforts to maintain the
BIOES Web sites' performance to the standards it accords to its own Web Site.
FRTI will administer all Web servers and front-end databases. FRTI will devote a
webmaster for update and maintenance of the BIOES Web Sites.
6.2 Delivery. FRTI shall complete the BIOES Web Sites and the BIOES in
accordance with the Statement of Work, in a manner reasonably acceptable to IC
("FINAL DELIVERY"), at least two (2) business days before the Launch Date.
Failure to make a timely Final Delivery as set forth in this Section 6.2 shall
constitute a material breach of this Agreement. Adequate supporting
documentation shall be delivered to IC in printed and in electronic format. FRTI
Software shall be delivered to IC in electronic format.
6.3 Employees. During the term of this Agreement and for a period of six
months thereafter, FRTI shall not (a) induce or attempt to induce any employee
of IC to leave the employ of IC or hire any such employee, or in any way
interfere adversely with the relationship between any such employee and IC, (b)
induce or attempt to induce any employee of IC to work for, render services or
provide advice to or supply Intellectual Property or Confidential Information of
IC to any third person, firm or corporation or (c) induce or attempt to induce
any customer, supplier, licensee, licensor or other business relation of IC to
cease doing business with IC or in any way interfere with the relationship
between any such customer, supplier, licensee, licensor or other business
relation and IC. During the term of this Agreement and for a period of six
months thereafter, IC shall not (a) induce or attempt to induce any employee of
FRTI to leave the employ of FRTI or hire any such employee, or in any way
interfere adversely with the relationship between any such employee and FRTI ,
(b) induce or attempt to induce any employee of FRTI to work for, render
services or provide advice to or supply Intellectual Property or Confidential
Information of FRTI to any third person, firm or corporation or (c) induce or
attempt to induce any customer, supplier, licensee, licensor or other business
relation of FRTI to cease doing business with FRTI or in any way interfere with
the relationship between any such customer, supplier, licensee, licensor or
other business relation and FRTI .
6.4 Conduct of Business. FRTI shall conduct, and cause each of its
employees, consultants, independent contractors and agents to conduct their
respective obligations under this Agreement in all material respects in
accordance with applicable provisions of federal, state, local and foreign law.
As to matters and activities with respect to which a broker-dealers license is
required, IC shall have the responsibility of supervising and assuring
compliance with applicable securities and licensing laws and regulations.
6.5 Action. Subject to the terms and conditions of this Agreement, FRTI
shall take, or
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cause to be taken, all actions, and to do or cause to be done all things
necessary, proper or advisable (to the extent commercially reasonable) under
applicable laws and regulations to carry out its duties under this Agreement.
6.6 Consents; Permits. FRTI shall use its best efforts to obtain all
consents required to be obtained in order for FRTI to carry out its duties
contemplated by this Agreement.
6.7 Status Reports. FRTI will confer in good faith and on a regular and
frequent basis with representatives of IC to report any matter of materiality
and the general status of its ongoing obligations under this Agreement.
6.8 Cooperation. FRTI shall fully cooperate with IC in connection with the
development of the IC Content, the BIOES and the IC Web Site and the performance
of its obligations hereunder.
6.9 Registrations. To promote awareness and drive traffic to the
BIOES Web Sites, FRTI shall separately register the BIOES Web Sites with the
following major search engines: Yahoo; Lycos; Alta Vista; Excite
7. IC REVIEW AND RESPONSE.
7.1 IC Acceptance. Upon notification by FRTI that it has effected its
Final Delivery of the completed Statement of Work by FRTI to IC, IC will accept
or reject the Final Delivery within ten (10) business days by written notice.
Failure to give written notice of acceptance or rejection within that period
will constitute acceptance. IC may reject the Final Delivery only if the Final
Delivery fails to meet the requirements stated in the Statement of Work. IC must
provide FRTI with written notice explaining any and all rejections in detail.
7.2 IC Rejection. If IC rejects the Final Delivery, FRTI will promptly
correct the failures specified in the rejection notice within fifteen (15)
business days of the rejection. When it believes that it has made the necessary
corrections, FRTI will again submit the Final Delivery to IC and the
acceptance/rejection/correction provisions above shall be reapplied until the
Final Delivery is accepted; provided, however, that upon the third or any
subsequent rejection or if any of the corrections are not made within fifteen
(15) days of any rejection, IC may terminate this Agreement at its discretion,
as provided under Section 13.
8. IC'S OBLIGATIONS
8.1 Content. IC shall use commercially reasonable efforts to develop and
supply professional quality research, content, and tools, updated daily (or as
otherwise reasonably available to IC), for incorporation into the BIOES Web
Sites; including a daily list of bond offerings, and updates to the Bond Express
system or any system later developed to replace the Bond Express system.
8.2 Customer Account Management. IC shall use commercially reasonable
efforts to develop and provide order execution services for customer bond
orders, "back office" customer account management, including: account openings,
credit, all trading, clearing, and related functions, administer and process all
appropriate customers accounts in compliance with all regulatory and IC control
requirements.
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8.3 Customer Support. IC shall offer an appropriate level of customer
support, including: e-mail and telephone support services to IC Web Site
customers at a level of customer service at least equal to that provided to IC's
existing clients, including industry standard execution system performance
levels. IC will cooperate with FRTI to effectively coordinate the delivery of
their respective customer services.
8.4 Marketing and Promotion. IC shall cooperate with FRTI to develop and
execute the Marketing Plan and market and promote the BIOES Web Sites to
potential customers through commercially reasonable marketing efforts.
8.5 Compliance with Securities and Licensing Laws and Regulations.
(a) IC shall be responsible for all trading and related functions.
IC shall administer and process all appropriate customer accounts and records,
clearing firm approvals, and customer accounts in compliance with all regulatory
and internal control requirements.
(b) IC shall have absolute discretion to accept or reject any
account and to continue or discontinue to do business with any customer.
(c) IC or its agent shall have the exclusive right and authority to
determine, process, and collect all payments related to the execution and
clearing of all securities transactions.
(d) IC shall have the responsibility for supervising and assuring
compliance with federal and state securities laws and all rules and regulations
of the Securities and Exchange Commission and the various state securities
regulatory agencies relating to its securities and broker-dealer activities.
8.6 Cooperation in Development. IC shall use its commercially reasonable
efforts to cooperate with FRTI as FRTI works to fulfill its obligations under
this Agreement. Such cooperation shall include, without limitation, consultation
with the personnel of IC who are the most knowledgeable about the particular
issue at hand, performing the obligations of IC under this Agreement in a timely
manner, providing content and IC Intellectual Property in the form and format
reasonably requested by FRTI, and undertaking such other actions that are not
enumerated in this Agreement but are reasonably related to the purposes of this
Agreement or may be reasonably expected to be rendered by IC during the course
of this Agreement.
9. EXCLUSIVITY
9.1 Order Execution System. FRTI and IC both agree that during the Term of
the Agreement and subject to Section 9.3, below, the IC Web Site will be the
exclusive Internet Web Site through which either company will promote or offer
Internet-based order execution services for "fixed income" securities to retail
and institutional investors; provided that the following conditions occur:
9.1.1 At least $30,000 shall be received by FRTI under Section 11.2,
below, in any of the calendar months commencing in the sixth (6th) month
following the Launch Date through the eighth (8th) month following the
Launch Date, and
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9.1.2 At least $65,000 shall be received by FRTI under Section 11.2,
below, in any of the calendar months commencing in the ninth (9th) month
following the Launch Date through the eleventh (11th) month following the
Launch Date, and.
9.1.3 At least $90,000 shall be received by FRTI under Section 11.2,
below, in any of the calendar months commencing in the twelfth (12th)
month following the Launch Date through the fifteenth (15th) month
following the Launch Date, and.
9.1.4 At least $115,000 shall be received by FRTI under Section
11.2, below, in any of the calendar months commencing in the sixteenth
(16th) month following the Launch Date through the eighteenth (18th) month
following the Launch Date.
Notwithstanding the foregoing, in the event that the minimum payment
levels set forth in this Section 9.1 are not met in any given calendar month, IC
shall have the option, exercisable by payment within fifteen days of the end of
any calendar month, to pay to FRTI an amount equal to the difference between the
minimum payment obligation for such month provided for in this Section 9 and the
amount actually payable under Section 11.2, so as to preserve the exclusivity
provided for by this Section 9. Any payments so made by IC may be deducted from
any future amounts payable to FRTI pursuant to Section 11.2 which are in excess
of the minimum amounts for such month provided for in this Section 9.
9.2. Links to Other Fixed Income Web Sites. FRTI and IC both agree that
during the Term of the Agreement and subject to Section 9.3, below, FRTI will
not enter into any other agreement, contract or other similar arrangement the
primary purpose of which is to feature a Link to a Web Site engaging in the
retail and/or institutional trading of "fixed income" securities. FRTI agrees
not to create or sponsor any additional or similar information Web Page, Web
Site or service dedicated to information regarding fixed income securities.
9.3 Other Advertising. Notwithstanding the foregoing provisions, this
Agreement shall not be construed to prohibit FRTI from allowing advertising over
which FRTI has no editorial control, and "buttons" which create a Link, but do
not specify within the content contained in the button that the Link is to a Web
Site that sells "fixed income" or "high-yield" securities.
10. MUTUAL CONSENT
The parties agree that nothing in this Agreement shall constitute a joint
venture by and/or between FRTI and IC. However, FRTI and IC both agree that the
Marketing Plan for the BIOES Web Sites shall be subject to the approval of the
Marketing Committee.
11. PAYMENTS AND REPORTING
11.1 Development Fees. Pursuant to an additional engagement letter to be
entered into between the parties, IC will agree to reimburse FRTI its actual
direct out-of-pocket costs incurred in connection with the development of the
BIOES, and the IC Web Site.
11.2 Network Communications Fees. IC will pay FRTI a network
communications fee equal to five dollars ($5.00) per securities transaction (the
"COMMUNICATIONS FEE") executed through the BIOES. It is understood that FRTI is
in the process of obtaining its license to become a registered securities
broker/dealer, and that it is in the interest of both FRTI and IC for FRTI to
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obtain such brokerage license. At such time as FRTI obtains its license to
become a registered securities broker/dealer, IC, in lieu of the Communications
Fee, agrees to pay FRTI a commission equal to 20% of the net sales credit
derived from each transaction effected through the BIOES which was first
introduced by FRTI. For purposes of this Section, net sales credit means gross
sales credit less clearing and Bond Express fees, direct Web Site hosting
expenses and certain hedging expenses standard within the securities industry.
In an effort to provide FRTI an incentive to obtain such license, IC hereby
agrees to pay FRTI a special one-time discretionary bonus in an amount to be
mutually agreed upon at a later date. Such bonus amount will be earned and
payable at such time as FRTI receives its brokerage license; provided however,
such bonus amount will only be payable to FRTI if such license is obtained by
the earlier of (i) the termination of this Agreement and (ii) December 31, 2000.
Upon termination of this Agreement, other than a termination by IC
pursuant to Sections 13.2.1, 13.2.2 or 13.2.4, in consideration of the licenses
granted by FRTI to IC in this Agreement, FRTI shall be entitled to fifty (50%)
of the amount of the fees referenced above for one (1) year from the termination
of this Agreement.
11.3 Services Expenses. IC will reimburse FRTI for its direct transaction
out-of-pocket costs incurred in connection with the ongoing Web hosting services
("DIRECT HOSTING COSTS"). Third party costs related to the Marketing Plan
(including sales brochures and materials, etc.) shall be approved by the
Marketing Committee, and will be funded on a 50/50 basis by the parties.
11.4 Timing of Payments. All payments hereunder shall be payable monthly
on or before the 15th day of each month immediately following the month in which
such payment obligation arises.
11.5 Reporting. Both parties agree to maintain complete and adequate
records relating to traffic on the BIOES Web Sites, Net Profits, fees pursuant
to this Agreement, and other relevant data and operating statistics, as
applicable. Each party shall produce monthly reports in a form and content
reasonably acceptable to the other party of all such data; provided, that
neither party shall be obligated to report to the other concerning individual
customer identity or account information.
11.6 Audit Rights. FRTI shall have the right on an annual basis to audit
the books and records of IC, either personally or by agent for the limited
purposes of verifying the amount of compensation owed to FRTI under this
Agreement and for no other purpose. The time of the audit shall be mutually
convenient to FRTI and IC, but shall not be later 30 days after a notification
of intent to audit by FRTI. If FRTI determines that IC has underpaid FRTI the
amount owed under this Agreement by an aggregate amount in excess of seven
percent (7%), then IC shall pay the cost of the audit.
12. ORDER PAYMENTS
IC will have the exclusive right and authority to determine, process, and
collect all payments related to the execution and clearing of all securities
transactions through the BIOES. FRTI will have no legal interest or obligation
in such order processing and nothing in this Agreement is intended to include,
preclude or require FRTI to become a broker-dealer or become involved in
broker-dealer operations.
12
13. TERM AND TERMINATION
13.1 Term. The term of this Agreement shall commence as of the Effective
Date and shall continue until the date which is eighteen (18) months following
the Launch Date, unless terminated pursuant to the provisions of Section 13.2
below (the "ORIGINAL TERM"). The term will be extended for successive
twelve-month periods ("RENEWAL TERM") if neither party has given written notice
of termination at least three months prior to the end of the then current term.
13.2 Termination. This Agreement and the licenses granted hereby may be
terminated by either party as follows:
13.2.1 Immediately upon failure of the other party to comply with
laws and regulations which materially affect such party's contracting
rights or reputation, and where such failure can be cured, with thirty
(30) days written notice of such failure, if such failure is not cured
within such thirty (30) days.
13.2.2 Immediately upon any material breach of this Agreement by the
other party, and where such breach can be cured, within thirty (30) days
written notice of such breach, if such failure is not cured within such
thirty (30) days.
13.2.3 At the end of any Renewal Term provided notice of such
termination is given three (3) months prior to the end of such Renewal
Term.
13.2.4 Immediately by IC as provided in Section 7.2, above.
13.2.5 Upon written notice in the event the other party (i) is
adjudged bankrupt; (ii) becomes insolvent; (iii) makes a general
assignment for the benefit of its creditors; (iv) files a voluntary
petition of bankruptcy; or (vii) initiates reorganization proceedings as a
result of insolvency or takes steps toward liquidation.
13.3. Duties of FRTI Upon Termination. Upon termination or expiration of
this Agreement by IC pursuant to Sections 13.2.1, 13.2.2 or 13.2.5, if requested
by IC, FRTI shall continue to host the IC Web Site and the BIOES for up to forty
five (45) days. IC shall pay FRTI a customary market rate for the services
described in the foregoing sentence. Upon termination or expiration of this
Agreement, except as otherwise consistent with their duties hereunder, FRTI
shall (i) immediately stop displaying, featuring, linking or in any other manner
using any IC Confidential Information, IC Content or any other IC Intellectual
Property and shall return such materials directly to IC; (ii) turn over any and
all electronically stored copies of such materials within thirty (30) days from
the date of termination of this Agreement and/or destroy all of its copies of
IC's Intellectual Property and Confidential Information (including all back-up
copies or electronic embodiments thereof but excluding all FRTI Intellectual
Properties) and "wipe" all electronic files constituting or comprising any
Intellectual Property or Confidential Information of IC, unless otherwise
directed in writing by IC, and (iii) do all things reasonably necessary to
enable IC to transfer the web hosting of the BIOES and the IC Web Site from FRTI
to another party designated by IC.
13.4. Duties of IC Upon Termination. Upon termination or expiration of
this Agreement, IC shall (i) immediately stop displaying, featuring, linking or
in any other manner using any FRTI Confidential Information, FRTI Content or any
other FRTI Intellectual Property and shall return
13
such materials directly to FRTI; (ii) turn over any and all electronically
stored copies of such materials within thirty (30) days from the date of
termination of this Agreement and/or destroy all of its copies of FRTI's
Intellectual Property and Confidential Information (including all back-up copies
or electronic embodiments thereof but excluding all IC Intellectual Properties)
and "wipe" all electronic files constituting or comprising any Intellectual
Property or Confidential Information of FRTI, unless otherwise directed in
writing by FRTI, and (iii) do all things reasonably necessary to enable FRTI to
transfer the web hosting of the BIOES and the IC Web Site from FRTI to another
party designated by IC. Thereafter, FRTI shall be entitled to the residual
license fees set forth in section 11.2 of this Agreement or as agreed otherwise
in writing. In no event shall IC have any rights to the FRTI Tools or any FRTI
Intellectual Properties, or any FRTI Intellectual Properties arising after the
termination of this Agreement.
14. PROPRIETARY RIGHTS AND LICENSE GRANTS
14.1 Ownership. It is the intent of this Agreement that IC own the
Developed Software and all of the work product produced in connection therewith
(other than the FRTI Tools and FRTI Intellectual Property). IC shall be the sole
and exclusive owner of, and FRTI hereby sells, assigns and transfers to IC: (a)
the Developed Software and all ideas, inventions, concepts, discoveries,
technologies, improvements, modifications, designs, plans, drawings, artwork,
pictures, schematics, descriptions, formulae, computer software, firmware,
programs, data files, and derivative works, enhancements or reproductions
thereof first developed or conceived in connection with the development of the
Developed Software and/or the performance of the Services, (b) all other
tangible or intangible materials, products, and things that are produced by or
developed for or in connection with the development of the Developed Software
and/or the performance of the Services, including related Source and Object
Codes, documentation, upgrades, revisions, and any paper, discs, tapes, or other
storage devices and media upon which they are located or stored, and (c) all
copyrights, patents, trade secrets and other proprietary rights in respect of
any of the foregoing ((a) through (c) shall collectively be known as, "IC
PRODUCTS"). IC Products do not include the FRTI Intellectual Properties. To the
fullest extent permitted by law, all IC Products and the creation or development
thereof by FRTI, shall constitute "work for hire" under Section 201 of Title 17
of the United States Code. FRTI agrees to execute and deliver any documents or
instruments, and do any such acts or things, as may be reasonably requested by
IC (at IC's expense) to evidence such transfers. FRTI agrees to execute and
deliver any documents or instruments, and do any such acts or things, as may be
reasonably requested by IC (at IC's expense) to evidence such transfers.
14.2 Patents. If IC, in its sole discretion, determines to seek patent or
other protection with respect to the any of the IC Products, FRTI shall
cooperate fully and promptly with IC during the term of and after termination or
expiration of this Agreement in the application for patents or other protection
therefor in the U.S.A. and any foreign countries in the name of IC or its
assignee, and FRTI shall promptly execute and deliver any documents or
instruments reasonably requested by IC to accomplish such end.
14.3 Restrictions on FRTI Properties. This Agreement does not grant to IC
any title or right of ownership of any kind in or to the FRTI Intellectual
Properties. IC will only use the FRTI Intellectual Properties and any other
confidential or proprietary information under the license granted pursuant to
Section 14.5, below. IC acknowledges and accepts that the FRTI Intellectual
Properties constitutes information confidential and proprietary to FRTI, and IC
agrees to hold and protect the FRTI Intellectual Properties in confidence and
with at least the same degree of care as
14
IC protects its own Intellectual Property and Confidential Information. This
Agreement does not grant IC any right to modify, reverse engineer, decompile or
disassemble the FRTI Intellectual Properties in any manner including, but not
limited to, for the purpose of using parts or portions thereof (including
individual graphics), including those parts or portions derived by dissection,
except under a license from FRTI and payment of fees.
14.4 Restrictions on Developed Software. This Agreement does not grant to
FRTI any title or right of ownership of any kind in or to the Developed Software
or any other IC Intellectual Properties. FRTI will only use the Developed
Software and IC Intellectual Properties and any other confidential or
proprietary information of IC under the terms and conditions of this Agreement.
FRTI acknowledges and accepts that the IC Intellectual Properties constitutes
information confidential and proprietary to IC, and FRTI agrees to hold and
protect the IC Intellectual Properties in confidence and with at least the same
degree of care as FRTI protects its own Intellectual Property and Confidential
Information. This Agreement does not grant FRTI any right to copy, use, modify,
reverse engineer, decompile or disassemble the Developed Software or IC
Intellectual Properties in any manner including, but not limited to, for the
purpose of using parts or portions thereof (including individual graphics),
including those parts or portions derived by dissection. Nothing contained
herein shall prevent FRTI from using the FRTI Tools and FRTI Intellectual
Properties.
14.5 FRTI License. FRTI hereby grants to IC a limited, perpetual,
non-exclusive, non-transferable, royalty-free (the fees set forth in section
11.2 shall not be deemed royalties), worldwide license to use, provide access
to, market, promote, reproduce and display the FRTI Tools and FRTI Intellectual
Property solely in connection with creating and displaying the co-branded
marketing materials, Links, profiles, and any other requirement set forth
herein, as well as the promotion, linking and marketing of the IC Content, IC
Web Site, BIOES or as otherwise set forth in this Agreement. Upon the
termination of this Agreement, this license shall be limited to only those
portions of the FRTI Tools and FRTI Intellectual Property necessary for the IC
Web Site to remain operational when hosted by a competent web site hosting
service in the same manner as it has historically operated.
14.6 Use of Intellectual Property. The FRTI Intellectual Property and the
IC Intellectual Property may only be used in connection with the performance of
the parties respective obligations under this Agreement and not for any other
purpose.
14.7 No Contest of Ownership. IC acknowledges that the FRTI Intellectual
Properties are the exclusive and sole property of FRTI. FRTI acknowledges that
the IC Intellectual Properties are the exclusive and sole property of IC. Each
of IC and FRTI agrees that: (a) it will not contest the ownership or validity of
the other's Intellectual Property, (b) any and all rights that might be acquired
by its use of the other's Intellectual Property shall inure to the sole benefit
of the other, (c) it will not to use or register in any country any Intellectual
Properties, trade names, or other designations resembling or confusingly similar
to the Intellectual Properties of the other party. Whenever attention is called
by one party to the other of any such confusion or risk of confusion, such other
party agrees to take appropriate steps immediately to remedy or avoid such
confusion.
14.8 Reasonable Steps to Avoid Compromise of Intellectual Property. Each
party shall take reasonable steps to avoid endangering the validity of the
other's Intellectual Properties, including compliance with the applicable laws
or regulations of all countries where the BIOES
15
related products are marketed. Each party agrees that it will execute trademark
registered user agreements and similar documents required to protect or enhance
the other's title and rights in its Intellectual Properties.
14.9 Protection of IP. Each party shall use reasonable efforts to maintain
the validity and distinctiveness of the other's Intellectual Properties so as to
enhance the goodwill symbolized by such Intellectual Properties. If requested by
any party, the other will include in advertising and marketing and sales
brochures an appropriate legend stating that the Intellectual Properties of the
other party are used under license from such party.
14.10 Representative Samples. IC agrees to furnish, at no charge, to FRTI,
from time to time as requested, representative samples of the products,
services, brochures, and other media to which it affixes the FRTI Intellectual
Properties.
14.11 Conforming to Standards of Use. If, at any time, the use of the FRTI
Intellectual Properties shall fail to conform to the standards of quality
required by the applicable specification and standards, IC shall promptly cease
use of such representations of the FRTI Intellectual Properties.
14.12 Restrictions on Use of FRTI IP. IC shall not use any of the FRTI
Intellectual Properties as a corporate name, or as a trade name, nor shall it
authorize others to do so.
14.13 IC License. IC hereby grants to FRTI a limited, non-exclusive,
non-transferable, royalty-free, worldwide license to use, provide access to,
market, promote, reproduce and display the IC Intellectual Property solely in
connection with creating and displaying the IC Content, Links, profiles, and any
other requirement set forth herein, as well as the promotion and marketing of
the IC Web Site, BIOES, IC Content or as otherwise set forth in this Agreement.
Each proposed use may be implemented only with the prior with approval of IC,
which shall not be unreasonably be withheld.
14.14 Co-Extensive Term. The term of the license granted pursuant to
Section 14.13 shall be co-extensive with the term of this Agreement.
15. MARKETING AND PROMOTION
On or prior to the date which is 30 days before the Launch Date, and
before the end of each one-year period thereafter (each a "FINANCIAL YEAR,"
except that the first Financial Year shall be from the Launch Date to December
31, 2000), IC shall develop a Marketing Plan for the next succeeding Financial
Year, for approval of the Marketing Committee (any such approved Marketing Plan
as is approved by the Marketing Committee is referred to herein as the
"MARKETING PLAN"). The Marketing Plan shall contain a budget of marketing
expenses of the greater of (i) $50,000 and (ii) five percent (5%) of the gross
revenues of IC derived from the BIOES, which shall be born equally by IC and
FRTI. FRTI shall be entitled to credit towards its obligation to pay marketing
expenses for the amounts of any in-kind advertising provided by FRTI, such
credit to be determined at it's then-current advertising rate charged to its
best customers. Either party may make marketing expenditures without the
approval of the Marketing Committee in excess of the budget without the prior
written consent of the other party, so long as they do not violate any provision
of this Agreement in doing so. Each party agrees to cooperate in the development
and execution of the
16
Marketing Plan. In addition, FRTI agrees to use commercially reasonable efforts
to market the BIOES Web Sites to potential customers, including existing
customers of FRTI. Those efforts will include, without limitation, engaging in a
substantive analysis of existing customers of FRTI to determine which customers
may be potential buyers of fixed income securities, and targeting marketing
proposals to such prospects.
16. REPRESENTATIONS AND WARRANTIES
The parties hereto enter into this Agreement based on the following
representations and warranties, which shall survive for 120 days from the
execution hereof:
16.1 Authority to Enter into Agreement. Each party represents and warrants
to the other that it has the right and authority to enter into this Agreement,
including the attached Statement of Work and Stock Purchase Agreement, and to
perform all of its respective obligations and undertakings herein. Each party
further represents and warrants to the other that (i) the rights and privileges
granted or to be granted hereunder are and shall at all times be free and clear
of any liens, claims, charges or encumbrances; and (ii) neither party has not
done or omitted to do, nor will do or omit to do, any act or thing that would or
might impair, encumber, or diminish the other party's full enjoyment of the
rights and privileges granted and to be granted under this Agreement.
16.2 FRTI's Representations and Warranties. FRTI represents and warrants
to IC that: (i) all software licenses and hardware that FRTI furnishes to IC
were properly and legally obtained; (ii) all content and software delivered or
furnished by FRTI to IC shall (a) conform to all current industry standards for
Year 2000 compliance (the ability to successfully process dates both before, on
and after January 1, 2000), and (b) be free from any virus, material error,
disabling device, time bomb, or remote control mechanism that might, or might be
utilized to, impede any of IC's operations, damage customers' computer systems
environment or software in any respect, or compromise the integrity of any file
information or data; (iii) FRTI has not done or omitted to do, nor will do or
omit to do, any act or thing that would or might impair, encumber, or diminish
IC's full use and enjoyment of the rights and privileges granted and to be
granted to IC under this Agreement; (iv) all of the FRTI Intellectual Properties
shall comply with applicable professional standards and all applicable federal,
state and local statutes and regulations which pertain to such information and
materials and shall not infringe upon or violate the personal or property rights
or any other rights of any person or entity (including, without limitation, the
rights of patent, copyright, trademark, privacy and publicity); and (v) FRTI
owns or has the right to license FRTI Intellectual Properties, including all
copyrights where applicable, and has full legal right, power and authority to
use, reuse, compile and arrange FRTI Intellectual Properties as contemplated
under this Agreement.
16.3 IC's Representations and Warranties. IC to its knowledge represents
and warrants to FRTI that to the extent material to this Agreement: (i) all
software licenses and hardware that IC furnishes to FRTI were properly and
legally obtained; (ii) all content and software delivered or furnished by IC to
FRTI shall (a) conform to all current industry standards for Year 2000
compliance (the ability to successfully process dates both before, on and after
January 1, 2000), and (b) be free from any virus, material error, disabling
device, time bomb, or remote control mechanism that might, or might be utilized
to, impede any of FRTI's operations, damage customers' computer systems
environment or software in any respect, or compromise the integrity of any file
information or data; (iii) IC has not done or omitted to do, nor will do or omit
to do, any act or thing that would or might impair, encumber, or diminish FRTI's
full use and enjoyment of the rights and privileges
17
granted and to be granted to FRTI under this Agreement, (iv) the IC Intellectual
Properties shall comply with applicable professional standards and all
applicable federal, state and local statutes and regulations which pertain to
such information and materials and shall not infringe upon or violate the
personal or property rights or any other rights of any person or entity
(including, without limitation, the rights of patent, copyright, trademark,
privacy and publicity), and (v) IC owns or has the right to license IC
Intellectual Properties, including all copyrights where applicable, and has full
legal right, power and authority to use, reuse, compile and arrange IC
Intellectual Properties as contemplated under this Agreement.
17. MUTUAL CONFIDENTIALITY
FRTI and IC each separately agree it shall not, except at the request of
the other party, directly or indirectly, disclose to anyone any Confidential
Information of the other party, or any client of the other party, or utilize
such Confidential Information for its own benefit except as required under this
Agreement, or for the benefit of third parties, and all memoranda, notes,
records or other documents compiled by it or made available to it under this
Agreement pertaining to the business of the other party or its respective
clients shall be kept in strict confidence. The foregoing confidentiality
obligation shall survive the termination of this Agreement and all Confidential
Information shall be returned to the other party upon request. In the event
either FRTI or IC discloses Confidential Information of the other party to a
person or entity not subject to this Agreement, said disclosure shall not
constitute a breach of confidentiality obligation under this Agreement to the
extent the disclosing party is able to show that such disclosure is required by
operation of law, regulation or similar order, except that the other party shall
have the right first to seek a protective or similar order from a court of
competent jurisdiction, and the disclosing party will cooperate with the other
party at the other party's expense.
18. INDEMNIFICATION
18.1 FRTI's Indemnifications. FRTI agrees to indemnify, defend, and hold
IC and its successors, officers, directors, employees, affiliates, subsidiaries,
agents and consultants harmless from and against any and all actions, causes of
action, claims, demands, costs, liabilities, expenses and damages, including
attorneys' fees, arising out of, or in connection with the FRTI Intellectual
Property or FRTI's breach of any representation, warranty or covenant contained
in this Agreement, but if and only if FRTI has committed some wrongful material
act or failed to undertake a material action which FRTI had a duty to undertake
which causes any of the foregoing.
18.2 IC's Indemnifications. IC agrees to indemnify, defend and hold FRTI
and its successors, officers, directors, employees, affiliates, subsidiaries,
agents and consultants harmless from and against any and all actions, causes of
action, claims, demands, costs, liabilities, expenses and damages, including
attorneys' fees, arising out of, or in connection with the IC Intellectual
Property or IC's breach of any representation, warranty or covenant contained in
this Agreement, but if and only if IC has committed some wrongful material act
or failed to undertake a material action which IC had a duty to undertake which
causes any of the foregoing.
18.3 Mandatory License. The parties agree that if any part of a party's
Properties are adjudged by a court of competent jurisdiction to be an
infringement of any U.S. Intellectual Property right of a third party, the
infringing party will make a reasonable effort to procure a license from the
person holding said U.S. Intellectual Property right, or to modify the party's
Properties, as the case
18
may be, to avoid any infringement, but if and only if there is no reasonable
commercial alternative to procuring such a license. If the infringing party is
unable to procure a license after making a commercially reasonable effort, and
is unable to modify its Properties within reasonable commercial limits, the
infringing party will indemnify and hold the non-infringing party harmless from
any and all resulting Claims, fees, or other penalties. The non-infringing party
shall make all reasonable efforts to mitigate and avoid damages and costs for
which the infringing party might become liable.
18.4 Indemnification Procedure. The indemnitor must afford the other party
the opportunity to participate, at its own expense, in any claim; provided,
however, that so long as the indemnitor is conducting a good faith and diligent
defense at its own expense, the indemnitor shall at all times have the right to
control all aspects of the handling of such claim, including but not limited to,
the selection of counsel, and any compromise, settlement or other resolution of
such claim; and provided further that indemnitor shall not have the right to
settle any claim against indemnitee without indemnitee's written consent, unless
such settlement provides for a full release of all liability against indemnitee
without any payment by or admission of liability by indemnitee. Notwithstanding,
if the indemnitor is likewise named in an action or proceeding and
representation of the indemnified parties by the same counsel would be
inappropriate under applicable standards of professional conduct, or if such
diligent good faith defense is not being or ceases to be conducted, the expense
of separate counsel for indemnified parties shall be paid by the Indemnitor, and
the indemnified parties shall have the right to undertake the defense with
counsel of their choice and shall have the right to compromise or settle such
claim, liability, action or expense.
18.5 Limitation On Liability. Notwithstanding the foregoing, the market
data, Products and information provided with FRTI's services are believed to be
reliable and FRTI agrees to run reasonable control checks thereon to verify that
the data transmitted by FRTI is the same as the data received from the various
exchanges and other information sources. However, FRTI does not warrant or
guarantee such accuracy and shall not be subject to liability for truth,
accuracy, or completeness of the information conveyed to a customer or IC or for
errors, mistakes or omissions therein or for any delays or interruptions of the
data or information stream from whatever cause. FRTI advises that customers
always consult a securities broker or other authorized financial advisor or
representative to verify the accuracy of the securities prices before making any
investments or other financial decisions.
Notwithstanding the foregoing, FRTI 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 customer's receipt of the
data or services, or FRTI user e-mail. Furthermore, FRTI 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, security breaches, hacking incidents, tortuous acts
or crimes, power failures, earthquakes, or other disasters.
Notwithstanding anything else contained in this Section 18, IC shall not
be responsible for any violation by FRTI of any law, rule or regulation to which
FRTI is or may become subject.
19
19. DISCLAIMER AND LIMITATION OF LIABILITIES
19.1 Disclaimer of Warranties. THE WARRANTIES SET FORTH HEREIN ARE LIMITED
WARRANTIES AND ARE THE ONLY WARRANTIES MADE BY THE RESPECTIVE PARTIES. THE
PARTIES EXPRESSLY DISCLAIM, AND HEREBY EXPRESSLY WAIVE, ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE.
19.2 Limitation of Liability. TO THE MAXIMUM EXTENT PERMISSIBLE UNDER
APPLICABLE LAW, EXCEPT FOR OBLIGATIONS ARISING UNDER SECTION 18
("INDEMNIFICATION") AND ANY BREACH OF SECTION 17 ("MUTUAL CONFIDENTIALITY"), OR
SECTION 16 ("REPRESENTATIONS AND WARRANTIES"), NEITHER PARTY WILL BE LIABLE TO
THE OTHER PARTY OR ANY OTHER USER FOR ANY LOSS OF BUSINESS OR PROFITS, OR FOR
ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR SPECIAL DAMAGES, REGARDLESS OF THE
FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE, EVEN IF
SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY
ACKNOWLEDGES THAT THIS LIMITATION OF LIABILITY REFLECTS AN INFORMED, VOLUNTARY
ALLOCATION BETWEEN THE PARTIES OF THE RISKS (KNOWN AND UNKNOWN) THAT MAY EXIST
IN CONNECTION WITH THIS AGREEMENT.
20. GENERAL
20.1 Notices. All notices and requests in connection with this Agreement
are to be deemed given as of the day they are received either by messenger,
delivery service, or in the United States of America mails, postage prepaid,
certified or registered, return receipt requested, and addressed as follows, or
to such other address as a party may designate in writing pursuant to this
notice provision:
To FRTI To IC:
Attn: Xxxx Xxxx, President Attn: Xxxx Xxxxxx, Chief Operating Officer
0000 Xxxxxxxxx Xxxxx, Xxxxx 000 000 Xxxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000 Beverly Hills, California
Phone:000.000.0000, Ext. 101 Phone: 000.000.0000
Email: xxxxx@xxxx.xxxxxxxxxxxx.xxx Email: xxxxxxx@xxxxxxxxxxxxxxx.xxx
With a copy to: With a copy to:
Xxxxxxx X. Xxxxxxxx Xxxxx Xxxxxxxx
Xxxxxxxx Xxxxxxxx & Xxxxxxx Troop Xxxxxxx Pasich Reddick & Xxxxx
000 X. Xxxxxxxx Xxxxxx, 00xx Floor 0000 Xxxxxxx Xxxx Xxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000 Xxx Xxxxxxx, XX 00000
Tel: 000-000-0000 el: 310.728.3222
Email: xxxxxxxxxx@xxx.xxx Email: xxxxxxxxxx@xxxxxxxx.xxx
20.2 Independent Contractors. FRTI and IC are independent contractors of
each other, and nothing in this Agreement shall be construed as creating an
employer-employee relationship, a
20
partnership, or a joint venture between the parties.
20.3 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California. Any legal proceeding
arising out of or relating to this Agreement or its alleged breach shall be
brought exclusively in a State or Federal Court sitting in the State of
California, County of Los Angeles, and the parties agree to such exclusive
venue.
20.4 Assignment. This Agreement may not be assigned by a party without the
prior written consent of the other party, except that either party may assign
its rights and obligations under this Agreement to an affiliate without the
written consent of the other party; provided, however' that any such assignment
shall not relieve such party of its obligations hereunder to the other party.
Subject to the forgoing, this Agreement is binding upon and inures to the
benefit of each party's respective successors and lawful assigns.
20.5 Modification and Waivers. No purported amendment, modification or
waiver of any provision of this Agreement is binding unless set forth in a
written document signed by all parties (in the case of amendments and
modifications) or by the party to be charged (in the case of waivers). Any
waiver is limited to the circumstance or event specifically referenced in the
written waiver document and is not to be deemed a waiver of any other term or
provision of this Agreement or of the same circumstance or event upon any
recurrence of the waived activity.
20.6 Survivability. Sections 11, 12, 13.3, 13.4, 14, 16, 17, 18, 19, and
20 shall survive the expiration or termination of this Agreement.
20.7 Severability. If for any reason a court of competent jurisdiction
finds any provision of this Agreement, or portion thereof, to be unenforceable,
that provision of the Agreement will be enforced to the maximum extent
permissible so as to effect the intent of the parties, and the remainder of this
Agreement will continue in full force and effect. Failure by either party to
enforce any provision of this Agreement will not be deemed a waiver of future
enforcement of that or any other provision. This Agreement has been negotiated
by the parties and their respective counsel and will be interpreted fairly in
accordance with its terms and without any strict construction in favor of or
against either party.
20.8 Entire Agreement. This Agreement (including all exhibits, annexes and
schedules) constitutes the sole and entire agreement between the parties with
respect to the services contemplated herein, supercedes all prior and
contemporaneous written and oral agreements, understandings and representations
between the parties, and constitutes the entire understanding of the parties
with respect to the subject matter hereof.
20.9 Attorneys' Fees. If any action, suit or other proceeding is
instituted to remedy, prevent or obtain relief from a default in the performance
by any party of its obligations under this Agreement, the prevailing party shall
recover all of such party's costs and attorneys' fees incurred in each and every
such action, suit or other proceeding, including any and all appeals or
petitions therefrom. As used in this Agreement, attorneys' fees shall be deemed
to mean the full and actual costs of any legal services actually performed in
connection with the matters involved calculated on the basis of the usual fee
charged by the attorney performing such services and shall not be limited to
"reasonable attorneys' fees" as defined in any statute or rule of court.
21
20.10 Captions. All captions contained in this Agreement are for reference
only and do not interpret, define, or limit the scope, extent, or intent of this
Agreement or any of its provisions.
20.11 Counterpart Execution. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, with the same effect
as if all parties had executed the same counterpart. All counterparts shall be
construed together and shall constitute one Agreement.
20.12 Number; Gender. As used in this Agreement and when required by the
context, the singular number shall include the plural and the masculine gender
shall include the feminine and neuter genders and the word "person" shall
include corporation, firm, partnership, individual, or other form of
association.
20.13 Arbitration. Any dispute, controversy, or claim arising out of or
relating to this Agreement, or the breach, termination, or invalidity thereof,
shall be finally resolved in Los Angeles County, California, in accordance with
the arbitration and conciliation procedures set forth in Rules of the American
Arbitration Association in force on the date of this Agreement.
The arbitration shall be heard and determined by three arbitrators.
Each party shall appoint one arbitrator. The presiding arbitrator shall be
selected by the two arbitrators appointed by the parties.
The award shall include interest from the date the claims were
submitted to the party against whom the claims were made pursuant to Section
20.15.
To the extent that the rules of the American Arbitration Association
do not provide a rule for a particular circumstance, then California Code of
Civil Procedure, part 3, title 9 shall apply. If however, the matter subject to
arbitration is deemed to be an international commercial arbitration within the
meaning of California Code of Civil Procedure Section 1297.12, then California
Code of Civil Procedure, part 3, title 9.3 shall apply to the extent that the
Rules of the American Arbitration Association do not provide a rule. In any
event, the parties shall have the right to take depositions and obtain discovery
in accordance with California Code of Civil Procedure Section 1283.05 and
Section 1283.1.
For purposes of California Code of Civil Procedure Section 1281.8
(relating to the issuance by a court of provisional remedies), the Parties agree
that in any provision of this Agreement relating to confidential information or
the protection of intellectual property, it shall be conclusively presumed that
the arbitration award to which a party may be entitled may be rendered
ineffectual without an appropriate provisional remedy to which the party may
otherwise be entitled.
The Parties acknowledge and agree that the legal remedies available
to the other party(ies) to this Agreement for redress of a violation of the
covenants and agreements set forth in this Agreement would be inadequate and
that the nonbreaching party(ies) shall be entitled, without posting any bond or
other security, to temporary, preliminary and permanent injunctive relief,
specific performance, and other equitable remedies, in addition to other
remedies to which the nonbreaching party(ies) may be entitled at law or in
equity.
20.14 Time to Bring Actions. All actions arising under this Agreement or
out of the
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transactions pursuant thereto shall be brought within one year from the date of
the occurrence giving rise to such cause of action. Any action not brought
within such time shall be conclusively deemed waived and such waiver shall be an
absolute defense.
20.15 Remedies. Each party shall be entitled to exercise all remedies at
law or in equity. All remedies shall be cumulative. The pursuit by one party of
a particular remedy shall not constitute a waiver of any right to pursue any
other remedy, either concurrently or subsequently to seeking any other remedy. A
waiver of one remedy at one point in time shall not constitute a waiver of the
same remedy at another point in time. A party shall be entitled to prejudgment
interest at the highest legal rate from the time of default until the time of
judgment, and shall be entitled to postjudgment interest at the highest legal
rate until the judgment is satisfied.
20.16 Further Actions. Subject to the terms and conditions hereof, each of
the Parties agrees to use its best efforts before and after the Closing to take,
or cause to be taken, all reasonable action and to do, or cause to be done, all
reasonable things necessary, proper or advisable to consummate and make
effective the transactions contemplated by this Agreement, including, but not
limited to, (i) obtaining any licenses, permits, consents, approvals,
authorizations, qualifications and orders of governmental authorities and
parties to contracts with a party as are required in connection with the
consummation of the transactions contemplated hereby; (ii) effecting all
necessary registrations and filings; (iii) defending any lawsuits or other legal
proceedings, whether judicial or administrative, whether brought derivatively or
on behalf of third parties (including governmental agencies or officials),
challenging this Agreement or the consummation of the transactions contemplated
hereby; and (iv) furnishing to each other such information and assistance as
reasonably may be requested in connection with the foregoing.
20.17. Force Majeure. Anything to the contrary in this Agreement
notwithstanding, no party shall be liable to any other party for any loss,
injury, delay, damage, or other casualty suffered or incurred by such other
party hereto due to riots, storms, forces, earthquakes, floods, other phenomena
of nature, explosions, embargoes, governmental or other laws and regulations,
coups, rebellions, strikes, boycotts, litigation or labor disputes, tortious
acts of any other person, acts of God, war, fire, explosions, accidents, power
outages, fuel shortages, water shortages, terrorist acts, acts of any government
or governmental agency, changes in tariffs or duties, criminal acts,
transportation interruptions, communications interruptions, the failure of banks
or other financial institutions to perform according to expected practices and
standards, the failure or inability of any supplier or vendor to manufacture,
obtain or deliver any product or service with whom a party has contracted, the
death or sudden incapacity of a key employee or agent of a party, or any other
cause that is beyond the reasonable control of such party hereto. Any failure or
delay by either party hereto in performance of any of its obligations under this
Agreement due to one or more of the foregoing causes shall not be considered as
a breach of this Agreement. The doctrine of ejusdem generis is hereby rejected
and waived, and shall not be applied to this Agreement.
20.18 Punitive Damages. Each party waives all rights which such Party
might have to recover punitive or exemplary damages for the conduct of the other
Party arising out of, in connection with, or related directly or indirectly to
the alleged nonperformance or breach by a Party of its obligations under this
Agreement or otherwise arising by operation of law.
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IN WITNESS WHEREOF, the parties have entered into this Agreement as of the
Effective Date written above.
IMPERIAL CAPITAL, LLC XXXXXXXXXXXX.XXX, INC.
By:___________________________ By:______________________________
Its:___________________________ Its:______________________________
