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EXHIBIT 10.4.1
ELECTRONIC CONTRACTING RIDER TO VENDOR AGREEMENT
THIS AGREEMENT is made this 28th day of October, 1999, between First
International Financial Corp., an Alberta, Canada corporation ("Vendor"), and
the American Stock Exchange, Inc., Chicago Board Options Exchange,
Incorporated, New York Stock Exchange, Inc., Pacific Exchange Incorporated and
Philadelphia Stock Exchange, Inc. (said exchanges are sometimes collectively
referred to as the Options Price Reporting Authority ("OPRA"), a registered
securities information processor registered pursuant to Section 11A(b) of the
Securities Exchange Act of 1934, as amended).
RECITALS
A. The aforesaid exchanges have been authorized by the Securities and
Exchange Commission ("SEC") pursuant to Section 11A(a)(3)(B) of the Securities
Exchange Act of 1934, as amended, to act jointly as parties to a Plan for
Reporting of Consolidated Options Last Sale Reports and Quotation Information
(said plan as amended from time to time in accordance with the provisions
thereof is hereinafter referred to as the "Plan"), and the Plan provides that
any other national securities exchange or association approved by the SEC for
the trading of options may become a party to the Plan (all such parties are
hereinafter sometimes referred to collectively as the "Participants" and
individually as a "Participant");
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B. The Plan provides that the consolidated options information
reporting system described therein is administered by the Participants through
a committee designated as OPRA, and all references in this Agreement to OPRA
shall mean the Participants acting pursuant to the Plan;
C. Vendor and OPRA are parties to a Vendor Agreement (the "Vendor
Agreement") and may also be parties to a "Dial-Up Market Data Service Rider to
the Vendor Agreement" (the "Dial-Up Rider");
D. Vendor wishes to provide an Options Information service to
customers who qualify as Nonprofessional Subscribers (a "Nonprofessional
Service") or to customers via a dial-up or Internet-based service to a personal
computer (A "Dial-Up Service"), and to make use of electronic agreements to
satisfy its obligations under the Vendor Agreement and the Dial-Up Rider, if
applicable, to obtain written agreements from such customers setting forth the
terms and conditions under which such services may be provided;
E. OPRA is willing to allow Vendor to use electronic contracts for the
purposes described above, provided that Vendor's other agreements with its
customers may be entered into electronically and provided that such use is in
accordance with the terms and conditions set forth in this Rider.
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AGREEMENTS
1. Definitions
Defined terms used in this Rider have the same meaning as provided for
in the Vendor Agreement, unless a different meaning is provided for herein or
unless the context otherwise requires.
2. Use of Electronic Contracts
Section 5 of the Vendor Agreement requires Vendor to obtain from all
Nonprofessional Subscribers a Nonprofessional Application and Agreement for the
benefit of OPRA Section 7(a) of Dial-Up Rider requires Vendor to obtain from
all of its Dial-Up Service customers ("Dial-Up Customers") an agreement for the
benefit of OPRA. Section 7(b) of the Dial-Up Rider permits Vendor to delegate
to a Correspondent Subscriber Vendor's obligation to obtain from Dial-Up
Customers an agreement for the benefit of OPRA. ("Nonprofessional Subscribers"
and "Dial-Up Customers" are sometimes collectively referred to herein as
"Customers"; Customers that have entered into electronic contracts in place of
traditional, hard-copy agreements are referred to herein as "Electronic
Customers.") This Rider enables Vendor (or a Correspondent Subscriber acting on
Vendor's behalf) to satisfy its obligation to obtain each of these agreements
(and any amendments and modifications thereto) by means of an electronic
contract created through communications over computer networks (an "Electronic
Contract") provided that, (a) Vendor's use of the Electronic Contract is in
accordance with all of the terms and conditions of this Rider Agreement, and
(b) Vendor may enter into Electronic Contracts with its customers in respect of
OPRA services only
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if Vendor's (or a Correspondent Subscriber acting on Vendor's behalf) other
agreements with such customers may be entered into electronically.
3. Conditions for Use of Electronic Contract
Vendor may satisfy its obligation to enter into agreements with its
Customers under the Vendor Agreement and the Dial-Up Rider by means of
Electronic Contracts, but only if each of the following conditions is satisfied:
a. Prior to the execution of this Rider Agreement by OPRA, OPRA shall
have received from Vendor, and shall have approved, an "Attachment A", which
shall describe the procedures and system that Vendor proposes to use in
connection with the administration of Electronic Contracts under this Rider.
This description shall include at least the following information:
i. how Vendor's customers electronically register for
Vendor's own services;
ii. how Vendor shall capture, record and document each
Electronic Customer's assent to an Electronic Contract; and
iii. the attribution procedure that Vendor plans to adopt in
connection with its administration of Electronic Contracts, including the
procedure used to verify the identity of Customer and to confirm the terms of
the Electronic Contract asserted to by that Customer.
b. For each Nonprofessional Subscriber, Vendor must use the form of
Electronic Contract for Nonprofessional Subscribers attached hereto as Exhibit
A, as such form may be amended by OPRA from time to time;
c. For each Dial-Up Customer, Vendor must use either the form of
Electronic Contract for Dial-Up Customers attached hereto as Exhibit B, as such
form may be amended by OPRA from
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time to time, or a form of Electronic Contract that satisfies the requirements
of the Dial-Up Rider and has been approved in writing by OPRA prior to its use
by Vendor;
d. Vendor must present the complete text of the Electronic Contract
(or any amendment or modification thereto) to the Electronic Customer on the
computer screen before the Electronic Customer is requested to manifest its
assent to its terms and conditions;
e. Vendor must require each Electronic Customer to manifest its assent
to each Electronic Contract (or any amendments or modifications thereto) by
"clicking" at the appropriate spaces on the computer screen;
f. Vendor's provision of the Service after receipt of an Electronic
Customer's assent to an Electronic Contract (or an amendment or modification
thereto) in accordance with Section 3(e) above shall constitute Vendor's
acceptance of the Electronic Contract (or the amendment or modification
thereto);
g. Vendor must adopt a commercially reasonable attribution procedure
for all Electronic Contracts and all amendments and modifications thereto,
which procedure must be agreed to by Customer;
h. Vendor shall maintain detailed records of all Electronic Contracts,
including without limitation:
i. hard-copies of each form of Electronic Contract (and any
amendments and modifications thereto) entered into between Vendor and any of
its Electronic Customers;
ii. records that identify each Electronic Customer that is a
party to an Electronic Contract, the terms and conditions of the Electronic
Contract (and any amendments or modifications thereto) agreed to by such
Electronic Customer, and information concerning the
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Electronic Customer's assent to such Electronic Contract (and any amendments or
modifications thereto) including, for each such Electronic Customer, records
that:
(1) identify the exact form of Electronic Contract
(and any amendments or modifications thereto) that the Electronic Customer
assented to;
(2) set forth all of the information requested of
and entered by the Electronic Customer in the Electronic Contract (and any
amendments or modifications thereto);
(3) describe the manner in which the Electronic
Customer manifested assent to the Electronic Contract (and any amendments or
modifications thereto);
(4) provide the date and time of each assent by such
Electronic Customer;
(5) identify the effective dates of the Electronic
Contract (and any amendment or modification thereto);
i. All of the records required to be stored by Vendor in accordance
with Section 3(h) above shall be stored by Vendor in manner that is reasonably
secure in accordance with standard industry practice;
j. Vendor shall make all information recorded in accordance with
Section 3(h) above available for inspection by OPRA or its representatives
during normal business hours. With respect to each Electronic Customer, Vendor
shall retain all such records for a period of at least three (3) years from
the date Vendor discontinues the Service for such Customer;
k. The text of the Electronic Contract (and any modifications or
amendments thereto) entered into by a particular Electronic Customer must be
available for review at the request of the Customer every time the Customer
accesses the Service;
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l. Every time an Electronic Customer accesses the Service, the
following notice (or similar notice in a form approved in writing by OPRA) must
prominently appear on the first screen viewed by such Customer:
"YOUR RECEIPT AND USE OF THIS SERVICE IS SUBJECT TO THE TERMS
AND CONDITIONS OF YOUR ELECTRONIC AGREEMENT WITH [VENDOR]. TO VIEW THE TERMS
AND CONDITIONS OF THIS AGREEMENT, PLEASE CLICK HERE."
4. INDEMNIFICATION
Vendor agrees to indemnify, hold harmless and defend OPRA, each
Participant, OPRA's Processor and each affiliate of the foregoing from and
against any and all claims, suits, proceedings at law or in equity, and any and
all liability, loss, damages, costs or expenses, including reasonable
attorneys' fees, arising out of or in connection with any allegation that an
Electronic Contract is unenforceable or invalid, if any of the reasons for the
alleged unenforceability or invalidity of the contract is based upon or related
to the fact that the contract was entered into or administered electronically,
provided, however, that Vendor shall be notified promptly in writing of any
such claims and Vendor shall have sole control of the defense of any such
claim, suit or proceeding and all negotiations for settlement or compromise
thereof, but only insofar as such settlement or compromise does not impose any
liability on OPRA, any Participant, any Affiliate thereof, or OPRA's Processor.
5. Modification or Termination of Rider Agreement and Electronic Contracts
In the event of any changes in applicable law or industry practice
relating to electronic commerce or if OPRA determines, in its sole discretion,
that the Electronic Contracts are likely to be unenforceable or invalid for any
reason. OPRA may modify the terms of, or terminate, this Rider upon written
notice to Vendor. Within thirty (30) days of its receipt of any notice of
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modification, Vendor shall notify OPRA in writing whether Vendor consents to
the modifications. If Vendor does not consent to the modifications within
thirty (30) days of its receipt of the notice, the Rider Agreement shall
immediately terminate. As of the date of any termination, Vendor shall no
longer allow any Electronic Customer to enter into Electronic Contracts. For
each Electronic Customer that has entered into an Electronic Contract prior to
any termination of this Rider Agreement, Vendor must discontinue providing any
Nonprofessional or Dial-Up Service to such Customer not later than sixty (60)
days after termination, unless such Customer has by that date entered into a
hard-copy agreement in accordance with the terms of the Vendor Agreement or
Dial-Up Rider, as applicable.
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6. Assignment of Agreement
Vendor shall not assign this Agreement in whole or in part without the
prior written consent of OPRA, except to a successor corporation upon merger or
consolidation of Vendor, or to a corporation acquiring all or substantially all
of the property, assets and business of Vendor. Subject to the foregoing
restriction, this Agreement shall bind and inure to the benefit of the
assignees and successors of the parties hereto.
7. Notices
All notices, bills, consents or requests required or authorized to be
given hereunder shall be deemed sufficiently given if in writing and sent by
registered mail to OPRA at:
Options Price Reporting Authority
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
and in the case of Vendor to its address on file with OPRA.
8. Integration, Modification
This Agreement, together with the Vendor Agreement to which this
Agreement is a Rider and any other riders to said Vendor Agreement, constitutes
the entire agreement between the parties relating to the furnishing of Last
Sale Reports or Quotation Information to Vendor and the use thereof as
permitted hereunder. No modification of this Agreement shall be valid unless
set forth in writing and executed by the parties hereto.
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9. Governing Law
This Agreement shall be construed in accordance with and governed by
the laws of the State of Illinois. The respective rights and obligations of the
parties to this Agreement shall be subject to any applicable provisions of the
Securities Exchange Act of 1934, as amended, and any rules and regulations
promulgated thereunder.
10. Headings
Section headings used in this Agreement are for convenience in
reference only and shall not affect the meaning or construction hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers or duly authorized agents on the day
and year first above written.
First International Financial Corp.
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[Name of Vendor]
By: Xxxxx Xxxxxxxx
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[Title]
OPTIONS PRICE REPORTING AUTHORITY
AMERICAN STOCK EXCHANGE, INC.
CHICAGO BOARD OPTIONS EXCHANGE INCORPORATED
NEW YORK STOCK EXCHANGE
PACIFIC STOCK EXCHANGE, INC.
PHILADELPHIA STOCK EXCHANGE, INC.
By: /s/ XXXXX XXXX
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Xxxxx Xxxx
Executive Director
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