SOFTWARE
DISTRIBUTOR AGREEMENT
THIS AGREEMENT (the "Agreement") is entered into and made this 16th day
of January, 1997, by and between XXXXXXXX ANALYTICS, LTD., an Illinois
corporation, having a principal office at 000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx 00000 ("Xxxxxxxx"), and Virtual Telecom S.A., a corporation
whose principal office is located at MBC-Morgines Business Center, 00, xx.
xxx Xxxxxxxx, 0000 Xxxxx-Xxxxx, Xxxxxxxxxxx (the "Distributor").
W I T N E S S E T H:
WHEREAS, Xxxxxxxx designs, develops, markets and sells computer software
and computer-based software systems and has developed a personal computer
software product (the "Product") called "TAL Trading Tools Package" a suite
of real time software products. Among the TAL Trading Tools package is a
program called RealTick Software which product consists in part of Market
Profile Graphic Format Software ("MPGF Software") owned and licensed by the
Board of Trade of the City of Chicago ("CBOT") and which reads and displays
real time exchange trade price information; and
WHEREAS, Xxxxxxxx has been granted a license from the Chicago Board of
Trade to incorporate the MPGF Software into the product; and
WHEREAS, Distributor acknowledges that the Market Profile Graphic format
does constitute valuable property of the CBOT, not within the public domain,
and that, but for this Agreement, and rights granted herein, Distributor
would have no rights with respect thereto; and
WHEREAS, Distributor acknowledges that TAL Trading Tools does constitute
valuable property of Xxxxxxxx Analytics, Ltd. not within the public domain,
and that, but for this Agreement, and rights granted herein, Distributor
would have no rights with respect thereto; and
WHEREAS, Distributor is in the business of selling, supporting,
installing and servicing computer software, and has represented that it has
the resources, facilities and personnel necessary to maintain the high
standards of performance which are necessary to achieve maximum sales of
Xxxxxxxx'x products through satisfaction of the end user, and
WHEREAS, Xxxxxxxx and Distributor have agreed that throughout the course
of this Agreement and in terminating this Agreement they will act in a fair,
equitable and ethical manner to each other as well as to the end user;
NOW, THEREFORE, Xxxxxxxx and Distributor agree as follows:
1. APPOINTMENT AND ACCEPTANCE. Xxxxxxxx hereby appoints Distributor, subject
to the provisions, terms and conditions set forth in this agreement, as a
non-exclusive distributor for the sale, support and servicing of the Product or
Products listed in Appendix E of the agreement, which appendix may be amended
from time to time. Because this appendix may include or may later be amended to
include MPGF enabled software, this agreement contains conditions for the
license and distribution of the MPGF enabled software. Distributor hereby
accepts such appointment, and by accepting said appointment, acknowledges that
it has read and understood this Agreement and the Schedules attached hereto.
Xxxxxxxx reserves the right to sell, support and service the Product in
competition with the Distributor and to appoint, without limitation, other
distributors for the Product.
2. DISTRIBUTOR OWNERSHIP, MANAGEMENT AND BUSINESS. This Agreement is entered
into by Xxxxxxxx in reliance upon the representations and agreements by
Distributor regarding its ownership, management and conduct of its business.
Distributor agrees to give Xxxxxxxx thirty (30) days prior written notice
of its intention to effect any of the following changes, and no such change
shall be made without the prior written approval of Xxxxxxxx, which approval
shall not be unreasonably withheld.
(a) A change or transfer which would materially affect, either
directly or indirectly, the ownership, management or control of
Distributor.
(b) A sale or transfer of any substantial portion of Distributor's
business property or business assets other than in the ordinary course of
business.
3. TERM.
(a) This Agreement shall become effective as of the date first above
written and shall remain in effect for a period of three (3), year(s),
unless earlier terminated in accordance with the provisions of Paragraph 4.
(b) This Agreement shall thereafter be automatically renewed for
successive one (1) year periods unless either party notifies the other not
less than ninety (90) days prior to the end of any particular term that it
does not agree to such an automatic renewal. Exercise of this right shall
not, under any circumstance, be deemed a violation of any provisions of
this Agreement, and upon the subsequent expiration of the Agreement neither
party shall be liable to the other for any damage, costs or expenses.
4. TERMINATION.
(a) BY XXXXXXXX. Xxxxxxxx may terminate this Agreement if, at any
time during the term of this Agreement or any renewal hereof,
Distributor is in material breach of any of the terms, conditions,
duties or obligations contained in or referred to in this Agreement, and
such breach remains uncorrected for a period of fifteen (15) days following
written notice by Xxxxxxxx to Distributor of said breach and Xxxxxxxx'x
intention to terminate this Agreement, provided, however, that Xxxxxxxx
may elect to terminate this Agreement immediately upon written notice to
Distributor, if Distributor has violated any of the material terms,
conditions, duties or obligations contained in or referred to in
Paragraph 5(c), Paragraph 7(g) or Paragraph 7(h) hereof or upon the
termination or expiration of the License Agreement between the CBOT and
Xxxxxxxx, a copy of which is attached hereto as Exhibit A. For purposes
of this provision, but without limiting Xxxxxxxx'x right to terminate,
each of the following is considered to be a material breach:
(i) Failure by Distributor to make any payment when such payment
becomes validly due to Xxxxxxxx, provided that nothing contained
herein shall, or is intended to, change or limit either Xxxxxxxx'x
right to take any other or further action as provided for in
Xxxxxxxx'x then-current credit policy, or Xxxxxxxx'x right to pursue
any other remedy at law or in equity to collect any sums past due.
(ii) Distributor's violation of any of the provisions for
Paragraph 6 hereof.
(iii) Distributor's violation of any provision of Paragraph 7
hereof.
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(iv) Failure by Distributor to correct any practice or conduct
after its receipt of written notice from Xxxxxxxx that such practice
or conduct is considered by Xxxxxxxx to be detrimental to the
interests or reputation of Xxxxxxxx or the CBOT or in violation of
Xxxxxxxx'x license from the CBOT.
(v) Dissolution or insolvency of Distributor, or the filing by
or against Distributor of a petition in bankruptcy or for an
arrangement, composition or reorganization, which is not dismissed
within sixty (60) days, or the appointment of a receiver, trustee or
custodian for any substantial part of Distributor's property or
business, or an assignment by Distributor for the benefit of its
creditors.
(vi) Distributor's violation of any provision of Paragraph 2
hereof.
(vii) Submission by Distributor of any information in connection
with this Agreement which proves to be false or incorrect in any
material respect on the date submitted, omission by Distributor to
submit information required under this Agreement, or failure to update
information previously supplied, if such causes other information
submitted to be false or incorrect in any material respect.
(b) BY DISTRIBUTOR. Distributor may terminate this Agreement at any
time with or without cause by giving Xxxxxxxx not less than ninety (90)
days prior written notice. Termination does not relieve distributor for
obligations already incurred for ongoing leases.
5. TERMS OF SALE.
(a) DISTRIBUTOR PRICE. Xxxxxxxx'x price to Distributor for the
Product shall be the Distributor price established by Xxxxxxxx from time to
time, plus all applicable taxes and shipping charges. Xxxxxxxx'x general
terms and conditions of sale shall be shown in its order forms, or in
various memoranda, bulletins or correspondence issued by Xxxxxxxx from time
to time. Xxxxxxxx may change, at any time and from time to time upon
thirty (30) days prior written notice, the price and/or terms of sale to
Distributor provided that change in prices or terms that are less favorable
to the Distributor shall not be applied to orders placed by distributor and
accepted by Xxxxxxxx prior to the date of notice, and scheduled for
immediate shipment. Such changes in prices or terms that are more
favorable to Distributor shall be applied to all orders not shipped. All
prices are F.0.X. Xxxxxxxx'x facilities, and Distributor shall bear all
costs, insurance premiums, freight and all other charges and expenses
incurred after Xxxxxxxx has placed the Products in the custody of the
carrier at the place of shipment to Distributor.
(b) PAYMENT. Unless Distributor has qualified for credit, payment
for all Products shall be by payment in advance accompanying each order
submitted to Xxxxxxxx.
(c) END-USER AGREEMENT. Distributor shall not accept an order for
the Product without first obtaining from each Customer an executed Xxxxxxxx
License Agreement attached hereto as Exhibit D and, if the order includes
RealTick enabled for the Market Profile Graphic, a CBOT End-User Agreement,
attached hereto as Exhibit B. Each End-User Agreement shall identify the
MPGF Software serial number and may be revised only with express permission
of the CBOT. Distributor shall send executed End-User Agreements to the
CBOT promptly upon its receipt thereof, and shall furnish a copy of the
appropriate executed End-User Agreement to Xxxxxxxx when it submits an
order to Xxxxxxxx for the MPGF Software.
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(d) ORDER ACCEPTANCE AND DELIVERY. Each of Distributor's orders is
subject to acceptance by Xxxxxxxx at its principal office, which acceptance
shall not be unreasonably withheld, provided that the order is accompanied
by full payment of the price and a completed and signed End User Agreement
signed the end user, a copy of which is attached hereto as Exhibit X.
Xxxxxxxx will use its best efforts to maintain an inventory of Product
adequate to meet the reasonably anticipated sales of Distributor. Xxxxxxxx
shall endeavor to promptly fill all accepted orders, but reserves the right
to allocate the sale and shipment of Products. Xxxxxxxx shall not be
liable for any delays in filling accepted orders.
(e) RISK OF LOSS. Risk of loss for all Products shall pass to
Distributor at the F.O.B. point. Xxxxxxxx'x responsibility for loss or
damage occurring in shipment, storage, delivery or otherwise, to any
items being sent to Distributor, or being sent to others for
Distributor, shall under all circumstances cease after such items have
been delivered by Xxxxxxxx to any carrier.
6. WARRANTIES. Xxxxxxxx expressly disclaims all warranties, express or
implied with respect to the Product and related materials, or their quality of
performance including warranties of merchantability and fitness for a
particular purpose. TAL makes no representation concerning the likelihood of
profitable trading using the Product. The Product is licensed "as is" and "with
all faults". Distributor shall not extend any warranties for or on behalf of
Xxxxxxxx or the CBOT and shall make no representation or warranty regarding the
Product or the MPGF Software or the likelihood of profitable trading based on
the Product, the MPGF Software or the Market Profile Graphic Format. In no
event shall Xxxxxxxx or the CBOT incur any liability to Distributor or any
customer of Distributor arising out of any contract or arrangement between
Distributor and any of its customers unless Xxxxxxxx or the CBOT shall
expressly and in writing agree to the contrary.
ANY CURRENT WARRANTY STATEMENT PUBLISHED BY XXXXXXXX IS EXCLUSIVE, AND IS MADE
EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WHETHER IN FACT
OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR USE. NEITHER XXXXXXXX OR THE CBOT ASSUMES, NOR
AUTHORIZES ANY OTHER PERSON TO ASSUME FOR IT, ANY OTHER LIABILITY IN CONNECTION
WITH THE DESIGN, MANUFACTURE, SALE, INSTALLATION OR USE OF ANY OF ITS PRODUCTS.
XXXXXXXX AND THE CBOT SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THE SALE,
DESIGN, MANUFACTURE, INSTALLATION OR USE OF ANY PRODUCTS, WHETHER DUE TO
NEGLIGENCE OR ANY OTHER CAUSE.
Xxxxxxxx'x liability, if any, under any warranty statement shall in all
events be limited to repair or replacement at Xxxxxxxx'x sole option of any
defective Product, which shall be Distributor's sole and exclusive remedy;
provided, however, that if any defective Product cannot in Xxxxxxxx'x sole
opinion be replaced then Xxxxxxxx'x liability shall be limited to the return of
the last month's lease payment thereof. Any unauthorized modification or
improvement to the Product which affects the Product as delivered to
Distributor will void Xxxxxxxx'x then-current warranty.
7. DISTRIBUTOR STANDARDS OF OPERATION. Distributor shall use its best efforts
to promote the sale of the Product. Distributor shall also undertake to maintain
high standards of performance, and shall conduct its business at all times in
such a manner as will reflect favorably on Xxxxxxxx and its products and avoid
in any way any deceptive, misleading or unethical practice or advertising.
Distributor shall comply with each of the following standards.
(a) SALES QUOTA. Xxxxxxxx may establish a mutually-agreed quota for
sales by Distributor for one or more periods during the term of this
Agreement. Distributor shall
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endeavor to meet or exceed the quota and any other quota which may be
established during the term of this Agreement or any renewal thereof.
(b) PLACE OF BUSINESS, EQUIPMENT AND FACILITIES. Distributor will
equip, staff and maintain a place of business and the equipment and
facilities which reflect favorably upon Xxxxxxxx and its products.
(c) FINANCIAL RESPONSIBILITY. At Xxxxxxxx'x request, Distributor
shall provide Xxxxxxxx with financial information about Distributor's
operations in order to establish and maintain lines of credit.
(d) RECORDS AND RECORD KEEPING. Distributor agrees to keep accurate
book and records of account for a period of up to three (3) years after the
close of each calendar year showing all information necessary for the
accurate determination of the number of units of the Product sold and the
gross proceeds thereof and agrees that the Distributor, CBOT or an
independent firm of accountants selected by either of them shall have right
to inspect the books and records of the Distributor, it being agreed that
any books or records reviewed in connection with such inspection shall be
kept strictly confidential and shall not be utilized in any commercial
manner other than in connection with determining compliance with this
Agreement. In the event such inspection discloses a liability to Xxxxxxxx
or a liability of Xxxxxxxx to the CBOT as the result of the failure of the
Distributor to properly discharge its obligations hereunder in the amount
of ten (10%) percent or more, the Distributor shall pay to Xxxxxxxx the
cost of such audit in addition to the amount of such discrepancy. The
provisions of this Paragraph shall survive termination of this Agreement
for a period of forty-two (42) months after termination.
(e) MARKETING REPORTING. Distributor will, at Xxxxxxxx'x request,
provide Xxxxxxxx with sales and marketing data and reports.
(f) XXXXXXXX'X TRADEMARKS.
(i) ADVERTISING AND PROMOTION. Distributor will comply with
Xxxxxxxx'x then-current policies regarding advertising and promotion
and the use of Xxxxxxxx'x service marks and the like, which policies
may be amended by Xxxxxxxx at any time, or from time to time.
Additionally, Distributor will prominently feature Xxxxxxxx'x Product
on any sales floor and in promotional activities. As part of its
general promotional activities for the Product, Distributor will
feature the appropriate Xxxxxxxx tradename or trademark wherever
practicable. Any display of Xxxxxxxx'x tradename shall be accompanied
by the words "Authorized Distributor For" or other words approved by
Xxxxxxxx, and Distributor shall not, under any circumstance, use the
words "agent", "agency" or other such words in connection with its
display of Xxxxxxxx'x tradename.
Prior to any use, Distributor shall provide Xxxxxxxx with copies,
duplicates, photographs or samples of packaging, advertising, copy,
brochures, marketing and promotional materials, documentation and
technical materials, and other documents and materials of Distributor
bearing any trademark of Xxxxxxxx for review of the manner in which
such trademarks are proposed to be used. Xxxxxxxx shall be deemed to
have consented to any proposed use of the trademarks of which it has
been given notice as provided herein if it does not object to such use
in writing to Distributor within thirty (30) days of receipt of such
notice of proposed use.
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From time to time Xxxxxxxx may furnish Distributor with manuals
and technical material prepared to facilitate Distributor's sales
efforts. All such materials, manuals and lists remain the property
of Xxxxxxxx and are to be returned to Xxxxxxxx upon the termination
or expiration of this Agreement, except as Xxxxxxxx and Distributor
may otherwise agree.
(ii) TRADEMARKS AND TRADENAMES. All Products sold by Distributor
may bear the appropriate Xxxxxxxx and CBOT trademarks. Distributor
shall not be deemed by anything contained in or done pursuant to
this Agreement to acquire any right, title or interest in or to the
use of any Xxxxxxxx tradename, trademark or service xxxx, and shall
do nothing to prejudice the value or validity of Xxxxxxxx'x rights
therein or ownership thereof. Distributor shall not use any Xxxxxxxx
tradename, trademark, service xxxx, symbols or the like in
connection with the offer and/or sale of any other product or in any
manner found objectionable by Xxxxxxxx. Upon termination or
nonrenewal of this Agreement, Distributor shall discontinue any use
of Xxxxxxxx'x trademarks and service marks, tradenames, identifying
symbols and the like, and all labels, brochures, displays and any
and all literature and advertising media relating to Xxxxxxxx or any
of its products.
(g) Trademark Rights and Quality Standards.
(i) Subject to the terms and conditions contained herein,
Xxxxxxxx hereby grants to Distributor, for the term of this
Agreement, a nonexclusive, nontransferable, right and license to use
the trademarks set forth in Exhibit C, attached hereto, as amended
from time to time by Xxxxxxxx (the "CBOT Trademarks") solely in
connection with the marketing and the servicing of the MPGF Software.
(ii) During the term of this Agreement, Distributor shall use
and prominently display the CBOT Trademarks on the packaging of the
MPGF Software and in the advertising, copy, brochures, marketing and
promotional materials, documentation and technical materials, and
other materials used, produced or distributed by Distributor for the
MPGF Software in accordance with, and subject to, the limitations
specified herein.
(iii) During the term of this Agreement, Distributor shall use
the CBOT Trademarks solely in connection with the marketing and the
servicing of the MPGF Software. Distributor shall not use the CBOT
Trademarks directly or indirectly in connection with, or in relation
to, any product except the MPGF Software or any business activity
except an activity relating to the marketing or servicing of the
MPGF Software.
Except as otherwise provided herein or with the consent of the
CBOT, during the term of this Agreement, Distributor shall not use
the CBOT Trademarks or the phrases "CBOT", "Board of Trade",
"Chicago Board of Trade" or "Board of Trade of the City of Chicago,"
or any phrase which is confusingly similar to or a colorable
imitation or translation thereof, as part of a company name or trade
name, as a product name, trademark or service xxxx, in its
advertising or on its stationary, business cards or the like, and
Distributor shall not seek to protect or to register the CBOT
Trademarks or any of the foregoing as a trademark or any other form
of intellectual property protection.
(iv) Distributor shall not exercise the rights and licenses
granted pursuant to Paragraph 7 (g)(i) hereof, or otherwise use the
CBOT Trademarks in any country which requires the registration of
users of trademarks, until such time as the parties hereto and
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the CBOT have entered into a mutually acceptable registered user's
agreement and for which an application to record or register the
same in such country, at the CBOT's expense, has been made and
recorded. Distributor's use of the CBOT Trademarks shall be in
strict compliance with applicable standards and statutes, including
those standards and statutes of countries other than the United
States, in each instance where the CBOT Trademarks are used by
Distributor. In each instance where the CBOT Trademarks are used,
Distributor shall apply the legend that the applicable CBOT
Trademark is a trademark of the CBOT, or, in countries where
registered, that the applicable CBOT Trademark is a registered
trademark of CBOT.
(v) Distributor will at no time assert any claim of ownership
of, or make any claim to, the CBOT Trademarks or any goodwill or
reputation associated with the CBOT Trademarks, by reason of the
Distributor's licensed use thereof or otherwise. No right or license
is granted hereby, by implication or otherwise, under any xxxx,
trademark, service xxxx or tradename of the CBOT except as
specifically provided herein. Distributor shall nor take or permit
others to take any action or omission in derogation of any of the
rights of the CBOT in the CBOT Trademarks, during the term of or
after this Agreement.
Any and all right, title or interest in or to the CBOT
Trademarks which may accrue to the benefit of, or be acquired by
Distributor as a result of Distributor's exercise of the rights and
licenses granted pursuant hereto shall be assigned to, and inure to
the benefit of, the CBOT; and Distributor hereby assigns and shall
assign to the CBOT any and all such right, title and interest as and
to the extent requested by the CBOT. All rights not granted to
Distributor are hereby expressly reserved by the CBOT.
(vi) Registration and any other protection for the CBOT
Trademarks shall only be obtained by the CBOT in its name. Expenses
for such registration incurred by the CBOT in connection with the
CBOT Trademarks shall be borne by the CBOT. In those jurisdictions
where registration of a user of CBOT Trademarks or registration of
trademark licenses is required by law, the CBOT and Distributor shall
make joint application to the Registrar of Trade Marks, or to such
other person as is required by the laws of the relevant jurisdiction,
for the registration of Distributor as the registered user of the
CBOT Trademarks or for the registration of this Agreement
respectively. Distributor shall furnish the CBOT with all reasonably
requested information (including specimens and samples illustrative
of the manner of use of the CBOT Trademarks) and documentation
(including the execution and delivery of any and all affidavits,
declarations, oaths, and other documentation) to assist the CBOT in
obtaining and maintaining trademark protection and registrations in
any litigation related thereto.
(vii) Distributor, at the CBOT's expense, shall take all steps
and shall provide all materials reasonably required to assist the
CBOT in maintaining and enforcing the CBOT Trademarks in connection
with MPGF Software. Distributor shall promptly notify the CBOT in
writing of any actual or suspected infringement or misuse of the CBOT
Trademarks. The CBOT may take action against such infringers or
suspected infringers and any and all recoveries resulting from such
actions initiated by the CBOT shall be retained by the CBOT.
(viii) Distributor shall at all times during the term of this
Agreement maintain reasonable quality control standards for the MPGF
Software, as specified by the CBOT, to protect the CBOT's name,
reputation and the CBOT Trademarks (the "Quality Standards").
Distributor shall implement all modifications or supplements to the
Quality Standards requested by the CBOT.
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(ix) Prior to any use, Distributor shall provide the CBOT with
copies, duplicates, photographs or samples of packaging, advertising,
copy, brochures, marketing and promotional materials, documentation
and technical materials, and other documents and materials of
Distributor bearing the CBOT Trademarks for the CBOT's review of the
manner in which the CBOT Trademarks are proposed to be used. The
CBOT shall be deemed to have consented to any proposed use of the
CBOT Trademarks of which it has been given notice as provided herein,
if it does not object to such use in writing to Distributor within
twenty (20) days of receipt of such notice of proposed use.
Distributor shall not use, or shall cease to use, such of the
foregoing if such use of the CBOT Trademarks (i) is in contravention
of any statute, standard or practice, (ii) impairs the validity or
enforceability of the CBOT Trademarks, or (iii) reflects poorly on
the CBOT.
(x) Distributor will use all reasonable efforts to correct any
use of the CBOT Trademarks which the CBOT identifies to Distributor
as objectionable. Upon termination of this Agreement, Distributor
shall immediately cease using, directly or indirectly, the CBOT
Trademarks, and shall not thereafter use any marks or terms
confusingly similar thereto.
(h) MODIFICATION OR CONVERSION OF PRODUCTS. Distributor shall not
remove, deface or otherwise change any descriptive markings, labels, the
language of the End-User Agreement, or the copyright notice on any of the
Products. Distributor shall not, without the prior written consent of
Xxxxxxxx, make, sell, license or distribute any modifications or
improvements to the Products which affect the Product as delivered to
Distributor. Xxxxxxxx will not maintain or support software which has
been modified or converted without Xxxxxxxx'x prior authorization.
(i) SOFTWARE DISTRIBUTION POLICY. Distributor shall limit its
sale of the Product only to customers of quotation vendors listed on
the form attached hereto as Exhibit C, as amended from time to time
in the sole discretion of Xxxxxxxx. Xxxxxxxx may modify the list of
quotation vendors at any time, or from time to time. Distributor
further agrees that it will not copy the Product except with the
prior written consent of Xxxxxxxx and the CBOT. Where it is
authorized to make such copies, Distributor further agrees to
reproduce all copyright notices and other restrictive legends found
on the Product as received from Xxxxxxxx on all copies of the Product
made by Distributor. Xxxxxxxx shall have the right to audit
Distributor and any Distributor installation to ensure compliance
with the foregoing, and Distributor shall cooperate with Xxxxxxxx in
any such audit.
(j) COMPLIANCE WITH LICENSE AND LAWS. Xxxxxxxx and Distributor
shall comply with all requirements imposed on Xxxxxxxx (and its
distributors) in Xxxxxxxx'x license agreement with the CBOT, attached
hereto as Exhibit A, and with all federal, state and local laws,
regulations, rules and ordinances pertaining to the operations and
conduct of its business and the sale of the Product, including but not
limited to all laws pertaining to the export of Products to foreign
countries.
(k) CUSTOMER SUPPORT. Distributor shall be adequately familiar with
the Product to provide assistance to customers in the installation and use
of the Product.
8. CONFIDENTIALITY OF TRADE SECRETS. Distributor agrees that all
confidential information received from Xxxxxxxx, including without limitation
all technical information and service manuals received in training sessions,
is and shall remain the property and confidential information of Xxxxxxxx or
the CBOT. Similarly, Xxxxxxxx agrees that all confidential information
received from
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Distributor is and shall remain the property and confidential information of
Distributor. Both parties agree, on behalf of themselves and their employees,
to use their best efforts to maintain such information in the strictest
confidence and not to disclose the same to any third party, including their
employees not having a need to know. Neither party shall copy or reproduce any
such confidential information without the prior written approval of the other.
Both parties agree to obtain from each of its employees having access to such
information a written agreement that states that the employee has been informed
of the confidential nature of such information and that the employee agrees to
maintain such information in confidence. Each party further agrees to return
all such information and all copies thereof to the other immediately upon
termination of this Agreement.
The obligations of confidence set forth hereinabove, however, shall impose
no obligation upon either party with respect to any confidential information
which: (i) is now or which subsequently becomes generally known or available by
publication, commercial use or otherwise; (ii) is known by the receiving party
at the time of receiving such information; (iii) is furnished to third parties
without restriction on disclosure; (iv) is subsequently rightfully furnished by
a third party without a restriction on disclosure; or (v) is independently
developed by Distributor or Xxxxxxxx, provided that the person or persons
developing same have not had access to the confidential information. Nothing
contained herein shall obligate Distributor to return to Xxxxxxxx any service
manuals which were purchased by Distributor from Xxxxxxxx at the then
prevailing Distributor price.
The obligations set forth in this paragraph shall survive the expiration
or any earlier termination of this Agreement.
9. MISCELLANEOUS.
(a) RELATIONSHIP OF PARTIES. The relationship between the parties
to this Agreement is that of independent contractors. Neither is an agent
or employee of the other nor has any right or authority to assume or create
any obligation of any kind, expressed or implied, on behalf of the other,
nor shall the acts or omissions of either create any liability for the
other. Subject to the provisions of this Agreement, Distributor shall
conduct its business at its own initiative, responsibility and expense.
(b) INDEMNIFICATION.
(i) Distributor agrees that it will indemnify, defend and hold
harmless Xxxxxxxx, its officers, directors, employees and agents from
any and all losses, claims, damages, expenses and causes of action of
every nature whatsoever, including attorneys' fees, which are caused
by the breach of this Agreement by Distributor or by the negligent
acts, omissions or intentional wrongdoing of Distributor in connection
with the performance or nonperformance of its obligations hereunder.
(ii) Distributor shall hold, indemnify and save the CBOT, its
members, officers and employees, harmless from any costs, expenses,
(including reasonable attorneys' fees), judgments, settlements,
losses, or other liabilities incurred by the CBOT, directly or
indirectly, as a result of any claim, action, suit or litigation
brought against the CBOT by any party arising out of or relating to:
(a) any failure by Distributor to perform any obligation under this
Agreement including but not limited to any failure to obtain executed
End-User Agreements, (b) any representations or warranties made by
Distributor except as provided herein; or (c) any damages or claims
resulting from the termination or expiration of the License Agreement
between Xxxxxxxx and the CBOT.
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(c) ASSIGNABILITY. Neither this Agreement, nor any right or
obligation hereunder, is assignable in whole or in part, whether by operation of
law or otherwise, by Distributor without the prior written consent of Xxxxxxxx.
This Agreement may be assigned by Xxxxxxxx and its duties hereunder may be
delegated.
(d) NOTICES AND OTHER COMMUNICATIONS. Unless otherwise provided,
every notice hereunder shall be in writing and deemed given when delivered in
person or when mailed, postage prepaid, to the intended recipient at the
address specified in this Agreement, or other address previously designated by
the intended recipient by written notice, provided, however, that notices to
Xxxxxxxx shall be addressed Attention: Vice-President, Marketing and Sales. Any
notice of termination or nonrenewal shall be given by registered or certified
mail.
(e) FORCE MAJEURE. Xxxxxxxx shall not be liable for any loss,
damage, delay or other consequence resulting from causes beyond reasonable
control, including but not limited to, acts of God, fire, strikes, labor
disputes, riot or civil commotion, case of war (declared or undeclared), labor
or material shortages or governmental regulations, orders or decisions.
(f) NON-WAIVER. No failure of exercise, and no delay in exercising,
on the part of either party hereto or of the CBOT, of any right, power or
privilege hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise by either party of any right, power or privilege hereunder
preclude any other or further exercise thereof.
(g) ENTIRE AGREEMENT. This Agreement and the attached Addendum set
forth the entire understanding of, and supersedes and revokes all prior
agreements between, the parties relating to the subject matter contained herein
and merges all prior discussions between them. This Agreement may not be
modified except by a writing signed by a duly authorized officer of Xxxxxxxx.
The Addendum contains specific details of distributor prices and terms and may
be modified from time to time. Nothing in the Addendum can modify the Agreement
with respect to the obligations of the Distributor to the Chicago Board of
Trade and the Market Profile graphic.
(h) GOVERNING LAW. The validity, construction, and enforceability
of this Agreement shall be governed in all respects by the law of the state of
Illinois.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in
duplicate as of the day first above written.
Virtual Telecom SA, Geneva
By: Xxxx Xxxxxxx Xxxxxx Xxxxx
Title: CEO CFO
ACCEPTED:
XXXXXXXX ANALYTICS, LTD.
By: __________________________________
Title: _______________________________
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