Exhibit 10.2
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AGREEMENT
THIS AGREEMENT is made as of September 19, 2002 (the "Effective Date")
BETWEEN
(1) REUTERS LIMITED, a company incorporated in England and Wales whose
registered office is at 00 Xxxxx Xxxxxx, Xxxxxx XX0X 0XX, Xxxxxx
Xxxxxxx ("Reuters"); and
(2) INSTINET GROUP INCORPORATED, a Delaware corporation with a principal
place of business at The Reuters Building, Three Times Square, New
York, New York 10036 ("Instinet").
A. Purpose.
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The purpose of this Agreement is to set forth the terms and conditions
by which Reuters will provide content services to Instinet clients who receive
the Newport Trading System ("Newport"), Instinet's proprietary, patent-pending
execution management platform.
A. Content.
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Reuters agrees to make available to those clients that choose to
subscribe to Newport the content set forth in Schedule 1 (the "Reuters Market
Data") solely for use in Newport, and subject to Reuters standard policies,
terms and conditions for licensing content. The fees which Reuters will charge
Newport clients for the Reuters Market Data shall be as set forth in Schedule 1;
provided that Reuters agrees only to offer such pricing during the initial term
of this Agreement and provided further that without limitation to Reuters rights
to change the pricing after the initial term, Reuters may increase such pricing
after the first year (but not more frequently than once annually), so long as
the percentage increase is at or below the increase in the consumer price index
for all urban consumers in the New York/New Jersey Metropolitan area as reported
by the Bureau of Labor Statistics of the U.S. Department of Labor, as measured
by the increase in such index from September of the previous year through August
of the current year, expressed as a percentage.
In order to facilitate the use of Reuters Market Data by Newport
clients, Instinet may act, where necessary, as a redistributor of Reuters Market
Data in accordance with the terms and conditions of the Global Reuters Services
Contract dated December 21, 2000 between Reuters Limited and Instinet Global
Holdings, Inc. during the time in which Reuters is installing the circuits
necessary to deliver the Reuters Market Data directly to a Newport client site.
B. Exclusivity.
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Reuters shall be the preferred provider of market data to Newport
clients and Instinet will not support the provision of content by other sources
of market data unless necessitated to meet client demand. Instinet may also use
other sources of market data for valid business reasons, so long as 60 days
notice of such usage is provided to Reuters.
C. Promotion.
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Instinet agrees to use commercially reasonable efforts to recommend use
of the Reuters Market Data and other Reuters services and products, including
but not limited to use of Reuters IOE product, to Newport clients.
D. Subscriber Agreements.
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Each party shall be solely responsible for obtaining the appropriate
subscriber agreements with Newport clients. Reuters shall be solely responsible
for its relationship with and delivery of the Reuters Market Data to Newport
clients, including but not limited to billing of all market data and exchange
fees, telecommunication charges, and any other fees associated with or incurred
because of Reuters provision of the Reuters Market Data to Newport clients.
Instinet shall be solely responsible for obtaining the appropriate client
agreement with Newport clients, including but not limited to, submission for
acceptance by Instinet's credit committee, as well as billing of all charges
directly related to the provision of Newport to the Newport clients.
E Term.
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This Agreement will continue for 24 months from the date first set
forth above (the "Initial Term"), with automatic renewals of 12 months unless
terminated on not less than ninety (90) days written notice prior to the end of
the Initial Term or any subsequent term (each a "Renewal Term"), such
termination to take effect at the end of an initial or any renewal term. In
addition, either party will have the right to terminate this Agreement for any
reason in its sole discretion at such time as Reuters and its affiliates shall
cease to own (directly or indirectly) more than fifty (50%) percent of the
outstanding voting stock of Instinet and at any time thereafter by giving the
other party at least thirty (90) days prior written notice, and each party will
have the right to terminate this Agreement upon notice to the other in the event
that (a) the other party materially breaches this Agreement and fails to cure
such breach within thirty (30) days of notice thereof, or (b) assigns this
Agreement to a third party that is not a member of the Reuters Group of
companies.
F. Notices and Branding.
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1. Instinet shall include the following notice: "Data is provided for
information purposes only. Reuters shall not be liable for any errors or delay
in the content, or for any action taken in reliance thereon. The RIC or Reuters
Instrument Code set has been developed and maintained by Reuters and is the
intellectual property of Reuters." Instinet shall place this notice in an "about
box" entitled "About Reuters Data" or as otherwise agreed by the parties.
2. Reuters will provide Instinet with a graphics file containing the
Reuters logo ("Logo"). Instinet shall insert the Logo in the "about box", as a
flag on application screens and order blocks, and as dots indicating news on
blotters, and other places where appropriate. Reuters reserves the right to
request Instinet to replace this Logo with another graphic identifying Reuters.
G. Confidentiality.
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"Confidential Information" means information in any form (including,
but not limited to, models, software and computer outputs) which is not excluded
under this Section, whether written or oral, of a business, financial or
technical nature which is marked or otherwise indicated as being or is, or ought
reasonably to be known to be, confidential and which is disclosed by either
party (the "Disclosing Party") or any member of the Disclosing Party's Group to
the other (the "Receiving Party") or any member of its Group through their
dealings with each other hereunder. The parties each agree:
(a) to hold the Confidential Information in confidence and, not without
the Disclosing Party's prior written consent, to disclose any part of it to any
person other than those directly concerned with Reuters and Instinet's dealings
with each other and whose knowledge of such Confidential Information is
essential for such dealings. The Receiving Party will ensure that those persons
comply with the obligations imposed on the Receiving Party under this clause.
The Receiving Party will be liable for such person's default; (b) not, without
the Disclosing Party's prior written consent, to use the Confidential
Information for any purpose other than in their dealings with each other; (c) to
delete from any device containing any Confidential Information and/or return to
the Disclosing Party upon demand or termination of the Agreement, the
Confidential Information except for one copy of such Confidential Information as
is required to be retained by law, regulation, professional standards or
reasonable business practice by a member of the Receiving Party's Group; and (d)
to use reasonable endeavors to provide the Disclosing Party with prompt notice
if any member of the Receiving Party's Group becomes legally compelled to
disclose any of the Confidential Information, so that the Disclosing Party may
seek a protective order or other appropriate remedy. If such order or remedy is
not available in time, the obligation of confidentiality will be waived to the
extent necessary to comply with the law; (e) this obligation of confidentiality
is made by each of Reuters and Instinet on their own behalf and as agent for
each member of their respective Groups; (f) this obligation of confidentiality
will not apply to information which (i) is, at the time of the disclosure, or
subsequently through no act or omission of the Receiving Party's Group, becomes
generally available to the public; (ii) becomes rightfully known to the
Receiving Party's Group through a third party with no obligation of
confidentiality; (iii) the Receiving Party is able to prove was lawfully in the
possession of the Receiving Party's Group prior to such disclosure; or (iv) is
independently developed by the Receiving Party's Group without benefit of or
reference to the other party's Confidential Information; (g) this undertaking
will be binding for as long as such Confidential Information retains commercial
value; (h) if a Receiving Party is requested or required in any judicial or
administrative proceeding or by any regulatory body or court to disclose any
Confidential Information, such Receiving Party shall, so long as it is permitted
by such judicial, administrative or regulatory body (i) use its best efforts to
give the Disclosing Party prompt notice of such request so that it may seek an
appropriate protective order or other remedy and (ii) consult with the
Disclosing Party as to the advisability of taking legally available steps to
resist or narrow such request or requirement. The Receiving Party shall
cooperate fully with the Disclosing Party in obtaining such an order or other
remedy. If in the absence of an appropriate protective order or other remedy the
Receiving Party is nonetheless legally required to disclose Confidential
Information, the Receiving Party may make such disclosure without liability
hereunder; provided, however, that the Receiving Party shall use its reasonable
efforts to give the Disclosing Party written notice of the information to be
disclosed as far in advance of its disclosure as is practicable and, upon the
Disclosing Party's request and at its expense, use its reasonable efforts to
obtain reasonable assurances that confidential treatment will be accorded to
such Confidential Information; (i) the terms of this Section shall survive the
termination or expiration of this Agreement, regardless of the reason for such
termination or expiration.
H. Disclaimer of Warranties.
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There are no warranties with respect to the Reuters Market Data or
other Reuters services and products on the part of Reuters, nor with respect to
Newport or other Instinet services or products on the part of Instinet provided
under this Agreement. Reuters and its suppliers and Instinet and its affiliates
make no warranty or representation that the content will meet any party's
requirements. Reuters makes no warranty or representation that the Reuters
Market Data, and Instinet makes no warranty or representation that Newport or
other Instinet services or products will be error free or run without
interruption. Reuters and its suppliers and Instinet and its affiliates make and
no party receives any other warranties whether express, implied, statutory, or
otherwise arising from course of dealing or usage of trade, and Reuters and
Instinet each expressly disclaims all other warranties, including the implied
warranties of merchantability, non-infringement and fitness for a particular
purpose.
I. Indemnities.
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The parties agree to each indemnify and hold the other party, its
affiliates (and their respective
officers, directors, and employees) harmless from and against all costs,
including, but not limited to, costs relating to damages (direct, consequential,
and/or incidental in nature), claims, demands, proceedings, suits, actions,
investigations or inquiries by any regulatory body, any other liabilities, and
any legal fees or costs related thereto (together, the "Costs") resulting from,
in connection with, or arising out of any failure or breach by a party, for any
reason, fraudulent, negligent, or otherwise, to comply with its obligations of
confidentiality under this Agreement. The terms of this Section shall survive
the termination or expiration of this Agreement, regardless of the reason for
such termination or expiration.
J. Limitation of Liability.
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No party shall make a claim against, nor be liable to, the other for
any damage, including, without limitation, any consequential, special, indirect,
incidental or punitive damages or lost profit suffered by it because of any
performance or failure to perform any obligations hereunder.
EXCEPT FOR THE INDEMNITIES CONTAINED HEREIN, NEITHER PARTY NOR ANY OF ITS
SUBSIDIARIES AND AFFILIATES SHALL BE LIABLE TO ANY PARTY FOR ANY TRADING LOSSES,
INACCURATE DISTRIBUTIONS, LOST REVENUES, LOST PROFITS, LOSS OF BUSINESS OR DATA,
LOSS OF USE, LOSS OF COST OR OTHER SAVINGS, OR ANY INCIDENTAL, INDIRECT,
CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND OR NATURE, INCLUDING SUCH
DAMAGES ARISING OUT OF OR RELATED TO ANY BREACH OF THIS LETTER AGREEMENT,
WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING
NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, WHETHER OR NOT FORSEEABLE, EVEN IF
SUCH PARTY HAS BEEN ADVISED OR WAS AWARE OF THE POSSIBLILITY OF SUCH LOSS OR
DAMAGE.
The terms of this Section shall survive the termination or expiration of this
Agreement, regardless of the reason for such termination or expiration.
K Expenses.
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The parties shall each pay their respective fees, costs and expenses
and those of their agents and
third party vendors, independent contractors or consultants, in connection with
this Agreement, including without limitation any legal fees.,
L. Relationship of the Parties.
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Neither this Agreement nor provisions contained herein shall be
construed as creating a partnership, joint venture, franchise, agency or other
such relationship or as authorization for either party to act as agent of the
other party or to contract on behalf of the other party..
M. Entire Agreement
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This Agreement contains the entire and exclusive agreement of the
parties with reference to the matters discussed herein and therein, and
supersedes all prior drafts, communications, discussions and understandings,
oral or written, with respect thereto and no amendment to this Agreement shall
be effective unless in writing and signed by the parties or their duly
authorized representatives.
N. Assignment.
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Neither party shall assign this Agreement, in whole or in part, without
the prior written consent of the other party; provided that Reuters may assign
this Agreement to another member of the Reuters Group and Instinet may assign
this Agreement to another member of the Instinet Group.
O. Notices.
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Any notices, consents or other communications required or permitted to
be given or sent under this Agreement shall be in writing and sent to the
addresses of the parties as set out below or such address as either party shall
advise to the other party by notice in writing.
To Reuters:
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Reuters America Inc.
0 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
With a copy to:
General Counsel
Reuters America Inc.
0 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
To Instinet:
Instinet Group Incorporated
0 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxxxxx
With a copy to: General Counsel
Fax: (000) 000-0000
P. Captions.
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Captions are inserted herein only for the convenience of the parties
and do not form a substantive part of this Agreement.
Q. Governing Law/Dispute Resolution.
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This Agreement and all obligations of the parties hereunder and under
the documents contemplated hereby shall be governed by the laws of the State of
New York. The Parties agree that any claim arising out of this Agreement shall
be brought in, and the Parties consent to personal and exclusive jurisdiction of
a venue in, the State and federal courts located within New York City, New York.
The terms of this Section shall survive the termination or expiration of this
Agreement, regardless of the reason for such termination or expiration.
R. Counterparts.
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This Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
. .
REUTERS LIMITED INSTINET GROUP INCORPORATED
Signed: /s/ Xxxxx Xxxxx Signed: /s/ Xxxx Xxxxxxxxx
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Print Name: Xxxxx Xxxxx Print Name: Xxxx Xxxxxxxxx
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Title: President, IBB of Reuters Title: President and Chief
Limited Financial Officer and
--------------------------- Director
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Date: September 19, 2002 Date: September 19, 2002
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