Exhibit 10.13
eSIGNAL MARKETING ALLIANCE AGREEMENT
(EQUITIES & FUTURES)
This Marketing Alliance Agreement ("Agreement") is dated as of March 19,
2004 (the "Effective Date") between eSignal, a division of Interactive Data
Corporation, having an address at 0000 Xxxxx Xxxx Xxx, Xxxxxxx, XX 00000
("eSignal"), and RushTrade Securities, Inc. having an address at One Xxxxxxxx
Xxxxx Xxxxx 000, 00000 Xxxx Xxxx. Xxxxxx XX 00000 ("Company").
WHEREAS, Company is:
[X] a broker-dealer registered under the Securities Exchange Act of 1934,
as amended, and is a member of, inter alia, the National Association of
Securities Dealers, Inc., and the Security Investors Protection Corporation,
and/or
[X] a futures commission merchant registered with the National Futures
Association under the Commodity Exchange Act, as amended;
WHEREAS, Company offers an Internet-based direct access trading platform
(the "Company System") that provides its customers ("Company Customers") the
ability to enter securities orders, to verify and determine the status of open
orders, to cancel and modify open orders, and to request basic securities
account information;
WHEREAS, eSignal offers investors and traders (i) an advanced charting
software application (which includes a proprietary platform known as "Open
Broker Connectivity," also sometimes referred to herein as "OBC Technology")
(the "eSignal Application") that interfaces with third party trading platforms
("Third Party Platforms") as a means of providing users of the eSignal System
(as defined below) ("eSignal End Users") with access to, among other things, the
trading and related functionality of such Third Party Platforms, and (ii) a
market data feed comprised of real-time and delayed stock and/or futures and
commodities quotes for major markets and feeds from major news organizations
(the "eSignal Market Data Feed" and, collectively with eSignal Application, the
"eSignal System"); and
WHEREAS, Company and eSignal desire to set forth herein their agreement
regarding the development and distribution of an interface between their
respective systems (a/k/a the Integrated Functionality, as defined in Section
1(a) below);
NOW THEREFORE, in consideration of the foregoing recitals, the mutual
promises, agreements and covenants set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1) INTEGRATED FUNCTIONALITY DEVELOPMENT & CONFIGURATION.
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a) Company and eSignal will work with each other in good faith to
configure (i) the Company System's trading and account management functionality,
and (ii) the eSignal System's active quote and analytics functionality, to
operate in conjunction with each other to enable Subscribers (as defined below)
to (A) transmit a set of order data (the "Order Data") from the eSignal System,
in a Company pre-defined format, to populate the Company pre-defined
electronic point of reception, and (B) receive from the Company System
additional order related information to populate their eSignal accounts. The
Order Data shall include the following Order Data, and such other Order Data as
the parties may agree from time to time in writing: action (buy or sell);
symbol; price; quantity, order-type; stop price (if applicable); time in force;
whether the order is "all or none"; and whether to cancel pending (unfilled)
orders. Subscribers may be required to enter additional information in the
Company System in order to utilize the order entry functionality of the Company
System. For convenience of reference, the cooperative operation of the eSignal
System and the Company System is referred to herein as the "Integrated
Functionality." "Subscribers" are eSignal End Users that are also Company
Customers, and vice versa.
b) Following completion of the Integrated Functionality, eSignal shall
subject the Integrated Functionality to such operational and other tests
(collectively, "Acceptance Tests") as eSignal may deem reasonably necessary to
determine whether the Integrated Functionality meets eSignal's operational
criteria. The Integrated Functionality shall not be put into commercial use
until it has passed all Acceptance Tests. For purposes hereof, "Acceptance"
shall mean eSignal's notification to Company that the Integrated Functionality
has passed all Acceptance Tests.
c) eSignal and Company retain the right at all times to make any changes
in their respective systems that they may deem necessary or desirable; provided,
however, neither party shall implement, without the other party's prior written
consent, any change to the first party's system that will either materially
impact the functionality of the Integrated Functionality or require modification
of the other party's system to avoid interruption in the Integrated
Functionality.
d) In the event a change to either the eSignal System or the Company
System, or both, results in required modifications to the other party's system
to avoid interruption in the Integrated Functionality, the parties agree to work
in good faith, each at its own expense, to modify their respective systems in
order to avoid or minimize any such interruption; provided, however, that
neither party shall be obligated to make any material capital expenditure in
order to modify or upgrade its system to be compatible with modifications to the
other party's system and, in lieu of making any such capital expenditure, may
elect to terminate this Agreement pursuant to Section 9(b)(i), subject to the
wind down provisions of Section 10(f).
e) The Integrated Functionality will not be co-branded and the underlying
technology of the eSignal System and the Company System are, and shall remain,
independent of each other.
f) The parties will clearly indicate, in appropriate places within their
respective systems, that all securities transactions will be processed by
Company. For example, `All brokerage services performed by XYZ Securities, Inc."
or "All futures services performed by ABC Futures, LLC."
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2) INTEGRATED FUNCTIONALITY DISTRIBUTION.
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a) Unless and until eSignal and Company shall agree otherwise in writing,
the Integrated Functionality shall be offered, marketed and advertised only in
the United States.
b) Only Subscribers may utilize the Integrated Functionality. In
connection therewith, Company and eSignal will execute their own agreements with
Subscribers governing the Integrated Functionality and their respective systems.
c) Any and all trading and other brokerage activities made available to
Subscribers via the Integrated Functionality shall be executed solely by
Company.
d) Company acknowledges that:
i) it shall be solely responsible for the management and oversight
of all orders placed or submitted by Subscribers and the
initiation or cancellation. of any such orders, as well as the
opening, maintenance, administration and closing of any trading
accounts;
ii) eSignal has no responsibility for managing, monitoring,
overseeing and/or initiating or canceling any trade orders, is
not a broker-dealer or futures commission merchant, is not taking
part in the financial services offered by Company, is not
providing any investment advice, is not executing, accepting or
directing any trades for or on behalf of any person or entity, is
not providing any clearing services, is not providing any trade
or order confirmation, is not providing specialized assistance in
resolving problems, discrepancies or disputes involving trading
accounts or related securities transactions and is not providing
any services which require licensing or registration with any
regulatory body or exchange; and
iii) neither the eSignal System nor any other information or data
provided through the eSignal System is intended to provide,
legal, investment or tax advice.
e) In executing trade orders on behalf of Company Customers, Company will
comply with all applicable U.S. and foreign laws, rules and regulations
(collectively, the "Laws and Regulations").
3) ADVERTISING.
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a) The parties agree to work together to distribute initial
communications to eSignal End Users and existing Company Clients regarding the
availability of the Integrated Functionality ("Customer Communications").
Customer Communications may include e-mail and direct mail sent via a mutually
acceptable third party mailing house facility. For all Customer Communications,
Company shall have the right of approval for all statements relating to Company
and the Company System, and eSignal shall the right of approval for all
statements relating to eSignal and the eSignal System. As of the Effective Date,
it is the parties' intent to
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distribute up to one (1) Customer Communication annually. The first Customer
Communication shall be disseminated within thirty (30) days following eSignal's
Acceptance of the Integrated Functionality. The allocation of the cost of all
Customer Communications shall be as agreed among the parties.
b) Except as set forth above, neither party shall be obligated to perform
any advertising or marketing of the Integrated Functionality, provided that;
subject to the right of the other party to review and approve all statements
made about such party or its system (including the right to decline inclusion in
any advertising), either party may, in its sole discretion, advertise the
Integrated Functionality and/or refer its prospects and customers to the
Integrated Functionality. Any such advertising may include placing banners and
product descriptions on the parties respective web sites or otherwise
advertising the Integrated Functionality through commercials, print ads and any
other media, including trade shows and private demonstrations.
c) In addition, all advertising or other promotion of the Integrated
Functionality by either party shall include the following disclaimers, as
applicable, prominently displayed, in addition to any other disclaimers that
maybe required by applicable law, rule or regulation:
i) "XYZ Securities, Inc. is an independent registered broker-dealer
and is not affiliated with eSignal, Interactive Data Corporation
or any of its subsidiaries or affiliates "
ii) "All brokerage services performed by XYZ Securities."
iii) "ABC Futures, LLC is an independent registered futures commission
merchant and is not affiliated with eSignal, Interactive Data
Corporation or any of its subsidiaries or affiliate."
iv) "All futures services performed by XYZ Securities."
d) Each party is responsible for the accuracy of all sales and marketing
materials relative to its products and the other party shall have no liability
in respect thereof.
e) Except as required by any applicable law or regulation or the rules of
any recognized national stock or other exchange (each a "Governmental Entity"),
neither party shall issue or cause any public announcement (a "Press Release")
to be made regarding this Agreement without obtaining the prior written consent
of the other party and providing the other party with a reasonable opportunity
to review and comment upon the Press Release. In the event that a Governmental
Entity shall require either party to issue a Press Release as aforesaid, such
party shall, to the extent reasonably practicable, provide the other party at
least forty eight (48) hours prior written notice and the opportunity to review
and make reasonable comments upon the Press Release prior to its release.
4) INTELLECTUAL PROPERTY
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a) eSignal acknowledges and agrees that it acquires no license to the
Company System and that Company owns all right, title and interest in and to the
Company System and any modifications, alterations, translations or derivative
works thereto, including, but not limited to,
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any code written by Company in connection with the Integrated Functionality
(collectively, the "Company Intellectual Property").
b) Company acknowledges and agrees that it acquires no license to the
eSignal System or the OBC Technology and that eSignal owns all right, title and
interest in and to the eSignal System and any modifications, alterations,
translations or derivative works to the eSignal System, including, but not
limited to, any code written by eSignal in connection with the Integrated
Functionality (collectively, fine "eSignal Intellectual Property").
5) CROSS-TRADEMARK LICENSES.
------------------------
a) Company hereby grants to eSignal a non-exclusive, non-transferable,
limited license to use Company's trade names, trademarks, service marks and/or
logos set forth on Exhibit A-1 attached hereto ("Company Trademarks") (as the
same may be amended from time to time to add or delete marks) during the term of
this Agreement (and any renewal terms) for the purpose of promoting the
Integrated Functionality. eSignal shall comply with any and all guidelines from
time to time provided by Company concerning the use of Company Trademarks and,
prior to any use of Company Trademarks, shall submit a sample or proof of such
use for approval by Company. Without limiting the foregoing, the Company
Trademarks may not be used as part of any co-branded or composite xxxx that also
includes any of the eSignal Trademarks.
b) eSignal hereby grants to Company non-exclusive, non-transferable,
limited license to use eSignal's trade names, trademarks, service marks and/or
logos set forth on Exhibit B-2 attached hereto ("eSignal Trademarks") (as the
same may be amended from time to time to add or delete marks) during the term of
this Agreement (and any renewal terms) for the purpose of promoting the
Integrated Functionality. Company shall comply with the requirements eSignal
Logo Style Guide attached hereto as Exhibit A-3 and any other guidelines from
time to time provided by eSignal concerning the use of the eSignal Trademarks
and, before any use of eSignal Trademarks, shall submit a sample or proof of
such use for approval by eSignal. Without limiting the foregoing, the eSignal
Trademarks may not be used as part of any co-branded or composite xxxx that also
includes any of the Company Trademarks. All uses of the eSignal Trademarks by
Company must be accompanied by the text indicating that eSignal(R) is a
registered trademark of Interactive Data Corporation.
c) The trademark licenses granted by each party to the other hereunder
shall automatically terminate upon any termination of this Agreement.
d) All goodwill arising from the use by either party of the other party's
trademarks, shall inure solely to the benefit of the trademark owner.
e) Except as expressly set forth herein, nothing in this Agreement grants
to either party any ownership of, or any rights in or to the other party's
intellectual property or trademarks.
6) CUSTOMER SUPPORT. Neither party shall have any specific support
obligations relative to the Integrated Functionality, provided, however, the
parties shall provide customary and usual support of their respective systems
and their other products and services that may be delivered by either in
connection with the Integrated Functionality.
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7) FEES AND COSTS. Neither party shall be obligated to pay the other any
fees, commissions or royalties whatsoever in connection with this Agreement or
the Integrated Functionality and each party shall be responsible for its own
costs in performing its obligations hereunder. Without limiting the foregoing,
neither of the parties hereto will be entitled to compensation upon any
termination or expiration of this Agreement for its efforts in promoting the
Integrated Functionality or generating goodwill inuring to the benefit of the
other party.
8) CONFIDENTIAL INFORMATION.
------------------------
a) For purposes of this Agreement, "Confidential Information" means: (i)
any business or technical information of Company or eSignal, including, but not
limited to, any information relating to the Company System or Company
Intellectual Property, the eSignal System or eSignal Intellectual Property, or
Company's or eSignal's other intellectual property or product plans, designs,
costs, product prices and names, customer lists, lists of prospects, finances,
marketing plants, business opportunities, personnel, research, development or
know-how; (ii) the terms of this Agreement; and (iii) all information and data
received from or through the disclosing party which is identified as being
proprietary to a third party.
b) Confidential Information does not include information that: (i) is or
becomes generally known to the public through no fault of or breach of this
Agreement by the receiving party; (ii) is rightfully known by the receiving
party at the time of disclosure without an obligation of confidentiality; (iii)
is independently developed by the receiving party without use of the disclosing
party's Confidential Information; or (iv) the receiving party rightfully obtains
from a third party without restriction on use or disclosure. In addition,
without limiting the foregoing, information available to both parties regarding
Subscribers shall not constitute Confidential Information of either party
hereunder, the parties hereby acknowledging that each party will independently
receive information regarding Subscribers directly from such Subscribers.
Notwithstanding the foregoing, the parties acknowledge that any use by either
party of Subscriber information shall be subject to all applicable laws, rules
and regulations.
c) Each party agrees that it will not use the other party's Confidential
Information except as necessary for the performance of this Agreement and will
not, without the other party's prior written approval, disclose such
Confidential Information to any person or third party except to those of its
employees, agents and subcontractors that need to know such Confidential
Information for the purpose of performing under this Agreement and who are also
bound by the nondisclosure and use restrictions set forth herein. Each party
will maintain the confidentiality of all Confidential Information in its
possession or control using no less than the efforts that such party ordinarily
uses with respect to its own proprietary information of similar nature and
importance, but in no event less than a reasonable degree of care. All copies of
a party's Confidential Information shall bear any legend as to confidentiality
that may appear on the original.
d) The foregoing obligations will not restrict either party from
disclosing Confidential Information of the other party: (i) pursuant to the
order or requirement of a court, administrative or regulatory agency, or other
governmental body, provided that the party required to make such a disclosure
gives reasonable notice to the other party to contest such order or requirement;
or (ii) on a confidential basis to its legal or financial advisors. Except with
respect to disclosures made pursuant to subsection (i) of this paragraph, each
party shall be liable for any breach of the
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confidentiality obligations set forth herein by any person or entity acting by,
through or under such party.
e) It is understood that no right in or license to the disclosing party's
Confidential Information is offered or granted hereby, nor shall any right or
license be implied by the disclosure of Confidential Information. IN FURNISHING
CONFIDENTIAL INFORMATION HEREUNDER, THE DISCLOSING PARTY MAKES NO WARRANTY,
REPRESENTATION OR GUARANTEE WHATSOEVER REGARDING THE COMPLETENESS OR ACCURACY OF
SUCH CONFIDENTIAL INFORMATION.
f) Each party recognizes that the other party would be irreparably harmed
by violation of the confidentiality obligations set forth herein and shall be
entitled to an injunction or other decree of specific performance with respect
to any such violation (without any bond or other security being required), in
addition to all other available remedies.
9) TERM AND TERMINATION.
--------------------
a) The term of this Agreement will commence on the Effective Date, will
continue for a period of one (1) year and, unless terminated as provided herein,
will automatically renew for successive one (1) year periods.
b) Either party may terminate this Agreement
i) at any time, with or without cause, upon not less than one
hundred twenty (120) days prior written notice to the other party
(said one hundred twenty (120) day period constituting the "Wind
Down Period"); or
ii) immediately upon written notice to the other party, subject to
the provisions of Section 9(c) below, in the event:
(1) the other party materially breaches any provision of this
Agreement and fails to cure such breach within thirty (30)
days after receipt of notice of such breach;
(2) the other party ceases to do business as a going concern
without an assignment of its rights and obligations to a
successor-in-interest; applies for or consents to the
appointment of a trustee, receiver or other custodian, or
makes an assignment for the benefit of creditors; becomes
insolvent or generally fails to pay, or admits in writing
its inability to pay, its debts as they become due; or,
subject to applicable law, commences or has commenced
against it any bankruptcy, reorganization, debt arrangement,
or other case or proceeding under any bankruptcy or
insolvency law, or any dissolution or liquidation
proceedings and, if such case or proceeding is commenced
against it, such case or proceeding is not dismissed within
one hundred twenty (120) days thereafter; or
(3) any substantial part of the other party's property is or
becomes subject to any levy, seizure, assignment or sale for
or by any creditor or governmental agency without being
released or satisfied within ten (10) days thereafter.
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c) In the event of any termination of this Agreement pursuant to the
provisions of Section 9(b)(ii), the Wind Down period shall be reduced to
forty-five (45) days.
10) TERMINATION-RELATED OBLIGATIONS.
-------------------------------
Upon any termination of this Agreement, the parties will immediately:
a) reconfigure and/or reprogram their respective systems and products to
disable the Integrated Functionality;
b) cease all advertising and promotion of the Integrated Functionality
and, to the extent possible, cancel pending advertising that has not yet been
published or otherwise distributed;
c) cease all use of the other's trade xxxxx, trademarks, service marks
and/or logos and discontinue use of all materials which reference the other
party, its products or services;
d) remove all links to the other party's web site(s);
e) return to the other party or, at the other party's request, destroy,
all copies of such party's Confidential Information in its possession or
control, and upon written request, an officer or other member of senior
management of such party will certify to the other as to the return or
destruction of all Confidential Information; and
f) work in good faith during the applicable Wind Down Period to wind down
their relationship in an expeditious and equitable manner, minimizing disruption
in services to Subscribers to the extent reasonably practicable.
11) DISCLAIMER OF WARRANTIES.
------------------------
a) ESIGNAL HEREBY EXPRESSLY DISCLAIMS LIABILITY FOR (1) ANY DELAY OR
INACCURACY IN THE EXECUTION OF ANY ORDER MADE THROUGH USE OF THE INTEGRATED
FUNCTIONALITY, (II) THE INABILITY TO ENTER, EXECUTE OR CANCEL ALL OR PART OF ANY
ORDER MADE THROUGH USE OF THE INTEGRATED FUNCTIONALITY, AND (III) MARKET LOSSES
INCURRED BY ANY SUBSCRIBER UTILIZING THE INTEGRATED FUNCTIONALITY.
b) THE ESIGNAL MARKET DATA FEED IS BELIEVED TO BE RELIABLE, BUT IS
PROVIDED "AS IS" AND WITHOUT ANY WARRANTY OF ACCURACY OR COMPLETENESS. ESIGNAL
DISCLAIMS ANY LIABILITY FOR INACCURATE OR INCOMPLETE INFORMATION CONVEYED TO ANY
SUBSCRIBER VIA THE ESIGNAL MARKET DATA STREAM.
c) EXCEPT FOR ANY EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, EACH
PARTY HEREBY DISCLAIMS ALL WARRANTIES REGARDING THE COMPANY SYSTEM AND THE
COMPANY INTELLECTUAL PROPERTY, THE ESIGNAL SYSTEM AND THE ESIGNAL INTELLECTUAL
PROPERTY, THE INTEGRATED FUNCTIONALITY, THEIR RESPECTIVE CONFIDENTIAL
INFORMATION AND THEIR RESPECTIVE BUSINESSES, AND ANY THIRD PARTY SOFTWARE OR
HARDWARE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND
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FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ANY WARRANTIES ARISING OUT OF
COURSE OF DEALING, USAGE OR TRADE.
12) LIMITATION OF LIABILITY.
-----------------------
EXCEPT FOR (I) CLAIMS SUBJECT TO SECTION 13, OR (II) ANY DAMAGES
RESULTING FROM A PARTY'S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR BREACH OF
CONFIDENTIALITY, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY
DIRECT, ACTUAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES,
OR INCIDENTAL LOSSES OR DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, LOST
PROFITS, LOST SAVINGS OR LOSS OF USE OF FACILITIES OR EQUIPMENT, REGARDLESS OF
WHETHER ARISING FROM BREACH OF CONTRACT, WARRANTY, TORT, STRICT LIABILITY OR
OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, OR IF SUCH
LOSS OR DAMAGE COULD HAVE BEEN REASONABLY FORESEEN. IF, FOR ANY REASON, WHETHER
BY OPERATION OF LAW OR OTHERWISE, ANY OF THE FOREGOING LIMITATIONS OF LIABILITY
SHALL BE INEFFECTIVE, THEN, IN SUCH EVENT, EACH PARTY AGREES THAT THE OTHER
PARTY'S ENTIRE LIABILITY ARISING OUT OF THIS AGREEMENT, IF ANY, SHALLL NOT
EXCEED TWENTY FIVE THOUSAND DOLLARS ($25,000).
13) INDEMNIFICATION.
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a) Company hereby agrees to defend, indemnify and hold eSignal harmless
from and against any and all claims, damages, liabilities, costs, losses and
expenses of any kind or nature whatsoever (including any legal or other expenses
incurred in connection with investigating any claim, and any amounts paid in
settlement or compromise) (collectively, "Losses") to which eSignal may become
subject, insofar as such Losses arise out of or are based upon (A) any breach or
violation by Company of any applicable Laws and Regulations, (B) improper use of
the eSignal Trademarks, (C) trading/market losses of Subscribers utilizing the
Integrated Functionality, or (D) any claim that the Company System infringes any
patents, copyrights, trade secrets, licenses or other property rights of any
third party, provided that: (i) eSignal promptly notifies Company in writing of
any such action and gives Company sole authority and all information and
assistance (at Company's expense) reasonably requested by Company to defend or
settle such claim, (ii) in the case of (D) above, such claim does not arise out
of any unauthorized use of or modification to the Company System by eSignal, and
(iii) any such costs and expenses (other than judgments or settlements
negotiated by Company) were incurred by eSignal with Company's written
authorization.
b) eSignal hereby agrees to defend, indemnify and hold Company harmless
from and against any and all Losses to which Company may become subject, insofar
as such Losses arise out of or axe based upon (A) any improper use of the Broker
Trademarks, or (B) any claim that the eSignal System infringes any patents,
copyrights, trade secrets, licenses or other property rights of any third party,
provided that: (i) Company promptly notifies eSignal in writing of any such
action and gives eSignal sole authority and all information and assistance (at
eSignal's expense) reasonably requested by eSignal to defend or settle such
claim, (ii) in the case of (B) above, such claim does not arise out of any
unauthorized use of or modification to the eSignal
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System by Company, and (iii) any such costs and expenses (other than judgments
or settlements negotiated by eSignal) were incurred by Company with eSignal's
written authorization.
14) SURVIVAL.
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The provisions of Sections 3(d), 4, 5(d), 6, 7, 8, 10, 11, 12, 13, 14,
15, 16, 17, 18, 19, 20, 21, 22, 24, 25 and 26 shall survive any termination,
cancellation, or completion of performance of this Agreement and, without
limiting the foregoing, all of the provisions of this Agreement (exclusive of
Sections 1(a)-(c), 3(a) & (b), 9 and 23) shall survive termination, termination,
cancellatin or complemention of performance of this Agreement soley with respect
to any ongoing utilization of the Integrated Functionality by Subscribers
following termination of this Agreement to the extent the Integrated
Functionality (or any portion thereof) for any reason remains functional
following termination of this Agreement.
15) NON-EXCLUSIVE RELATIONSHIP.
--------------------------
Each party shall be free to market its existing products and to develop
and market additional products (in every case, including to Subscribers), and to
otherwise conduct its business, whether or not such business is now or in the
future directly or indirectly competitive with the other party's business or
with the Integrated Functionality. Without limiting the generality of the
foregoing, (i) Company acknowledges that eSignal offers integrated functionality
(that is substantially the same as the Integrated Functionality hereunder) with
other Third Party Platforms, which may be competitors of Company, and (ii) both
parties acknowledge and agree that Subscribers are not the exclusive customers
of either party hereto, each party having an independent contractual
relationship with the Subscribers, and that either party may at any time, both
during the term of this Agreement (including renewal terms) and following the
termination of this Agreement, market their products to Subscribers and solicit
Subscribers for any purpose, subject to applicable law. Neither party will be
liable to the other if a Subscriber elects to terminate receipt of/access to,
the Integrated Functionality, in order to obtain a service from either of the
parties that is competitive with the Integrated Functionality.
16) NOTICES.
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All notices permitted or required under this Agreement shall be in
writing and shall be considered given: (i) when delivered personally; (ii) five
(5) days after mailing, when sent certified mail, postage prepaid, return
receipt requested; (iii) one (1) business day after dispatch, when sent via a
nationally recognized commercial overnight carrier, fees prepaid; or (iv) upon
delivery when sent by facsimile transmission confirmed by first class mail. All
notices will be sent to the parties at the following addresses, or such
addresses as the parties may specify from time to time by like notice:
If to Company:
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RushTrade Securities, Inc.
One Galleria Tower, Suite 300
00000 Xxxx Xxxx
Xxxxxx, Xx 00000
Attn: Xxxxx X. XxXxxxxxx
Fax: (972) -450-6001
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If to eSignal
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eSignal, a division of Interactive Data Corporation
0000 Xxxxx Xxxx Xxx
Xxxxxxx, XX 00000
Attn: A. Xxxxxxx Xxxxxx, V.P., Finance and Administration
Fax:(000) 000-0000
with a copy to:
Interactive Data Corporation
00 Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: Legal Department
Fax: (000) 000-0000
17) FORCE MAJEURE.
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Neither party shall be liable for any failure or delay in its performance
due to circumstances beyond its control, including, but not limited to, acts of
civil or military authority, national emergencies, terrorism, labor
difficulties, fire, flood or catastrophe, acts of God, insurrection, war, riots
or failure beyond its reasonable control of transportation, power supply,
telephone or other communications lines.
18) WAIVER.
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The failure by either party to enforce any provision of this Agreement
will not constitute a waiver of future enforcement of that or any other
provision.
19) GOVERNING LAW AND JURISDICTION.
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This Agreement will be governed by and construed in accordance with the
laws of the State of New York without application of the principles of conflicts
of law. Any legal action or proceeding arising under this Agreement will be
brought exclusively in the Federal or states courts located in the State of New
York and the parties hereby consent to the personal jurisdiction and venue
therein.
20) SEVERABILITY.
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If for any reason a court of competent jurisdiction finds any provision
of this Agreement invalid or unenforceable, that provision will be enforced to
the maximum extent permissible and the other provisions of this Agreement will
remain in full force and effect.
21) RELATIONSHIP OF THE PARTIES.
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The parties to this Agreement are independent contractors and this
Agreement will not establish any relationship of partnership, joint venture,
employment, franchise, or agency between the parties. Neither party will have
the power or authority to bind the other or to incur obligations on the other's
behalf without the other party's prior written consent.
22) ENTIRE AGREEMENT.
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This Agreement, including any Exhibits hereto, constitutes the complete
and exclusive understanding and agreement between the parties regarding its
subject matter and supersedes all prior or contemporaneous agreements or
understandings, written or oral, relating to its subject matter. Any waiver,
modification or amendment of any provision of this Agreement will be effective
only if in writing and signed by duly authorized representatives of both
parties.
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23) ASSIGNMENT.
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Neither party may assign it rights or delegate its duties hereunder
without the prior written consent of the other party, such consent not be
unreasonably withheld or delayed, except in the event that the proposed
assignment is to a competitor of the non-assigning party, in which case the
non-assigning party may withhold its consent to assignment in its sole
discretion. Notwithstanding the foregoing, either party may assign this
Agreement as of right to any of its Affiliates, provided that the non-assigning
party is promptly notified of the assignment. Each party acknowledges and agrees
that: (i) a transfer by operation of law of a party's interest in this
Agreement; and (ii) a Change of Control affecting that party shall constitute a
deemed assignment. Subject to the foregoing, this Agreement shall be binding
upon the parties hereto and their respective permitted successors and assigns.
For purposes hereof (a) "Affiliate" shall mean a legal entity that controls, is
controlled by, or is under common control with, another legal entity; and (b)
"Change of Control" shall mean with respect to an entity, a transfer (whether in
a single transaction or a series of related transactions) of more than fifty
percent (50%) of the stock or other equity interests having voting or other
rights to direct the management of such entity (including, but not limited to,
units, membership interests or other interests evidencing an ownership interest
in a limited liability company).
24) NO RULE OF STRICT CONSTRUCTION.
------------------------------
The parties hereto, by executing below, acknowledge that the provisions
and language of this Agreement have been negotiated by the parties and
specifically agree that no provision of this Agreement shall be construed
against a party by reason of such party having drafted such provision or this
Agreement.
12
25) COUNTERPARTS.
------------
This Agreement may be signed in one or more counterparts, with the same
effect as if the signature on each counterpart were upon the same instrument. A
copy or facsimile of a party's signature shall be binding upon the signatory
with the same force and effect as an original signature.
26) HEADINGS.
--------
The headings appearing herein are inserted only as a matter of
convenience and as a reference, and in no way define, limit or describe the
scope or intent of the applicable clause or this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the Effective Date.
eSIGNAL
a division of Interactive Data Corporation RushTrade Securities, Inc.
By: /s/ A. Xxxxxxx Xxxxxx By: /s/ Xxxxx Xxxxxx
------------------------------- -----------------------------
Name: Name: Xxxxx Xxxxxx
----------------------------------
A. Xxxxxxx Xxxxxx
V.P., Finance & Administration Title: President
13
EXHIBIT A-I
COMPANY TRADEMARKS
------------------
RushTrade
EXHIBIT A-2
-----------
ESIGNAL TRADEMARKS
------------------
ESIGNAL(R)
EXHIBIT A-3
------------
[logo omitted] eSignal Logo Style Guide
This guide has been provided to provide an accurate reference for the use of
eSignal logos and to establish standards to ensure consistency and proper
representation of our products and services.
The instructions given and the style illustrated may not be varied without prior
permission.
It is not possible to cover every application or desired use of our logos - the
objective is to provide the guidance and control necessary to achieve a
consistent identity throughout our business.
Any inquiries regarding this guide or usage can be directed to Xxx Xxxxxx:
xxxxxxx@xxxxxxx.xxx, 510.723.3554 or Xxxxx Xxxxx xxxxxx@xxxxxxx.xxx,
510.723.3519.
Logos - The following rules apply to all eSlgnal logos listed below:
o Any logo use requires prior permission from the Marketing Dept. at eSignal
o Logos are not to be modified in any way
o Take care when resizing, ratios of logos are to remain consistent
o eSignal logos are not to be incorporated into any other logos
o eSignal logos are not to be used as part of a sentence
o eSignal logos are not to appear surrounded by a graphical box
o Reverse logos are available, if needed
o Use of color is outlined below
eSignal
eSignal logo colors are Blue for the word "Signal" and Sliver for the "e" and
the lines
Typeface is Adobe Garamond Bold.
Pantone 286 (BLUE) -- For print: PMS 286 (Spot Color),
Pantone 877 (SILVER) -- For Print; PMS 877 (Spot Color),
or PMS 429C for non-metallic
Print Web Print black & white
[logo omitted] [logo omitted] [logo omitted]
eSignal Pro
eSignal Pro logo colors are Blue for the word "Signal" and Silver for the lines,
the word "Pro" and the "e"
Typeface is Adobe Garamond Bold for "eSignal" and Verdana Bold Italic for "Pro"
Pantone 286 (BLUE) -- For print; PMS 286 (Spot Color),
Pantone 877 (SILVER) -- For Print: PMS 877 (Spot Color),
or PMS 429C for non-metallic
Print Web Print black & white
[logo omitted] [logo omitted] [logo omitted]
