1
Confidential Materials omitted and filed separately with the Securities
and Exchange Commission. Asterisks denote omissions.
Exhibit 10.24
OPTIONAL SERVICE DELIVERY
AGREEMENT
THIS AGREEMENT, dated as of July 1, 1993 between XXXXXX-XXXXXX
FINANCIAL, INC., a Delaware Corporation with offices at 00 Xxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("KRF"), and XxXXXXXX, XXXXXXXX & XXXXXX, INC.,
a New York corporation with offices at 00 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000
("Source").
WHEREAS, KRF prepares, operates and transmits financial data to
subscribers by means of on-line computer terminals ("NETWORK"); and
WHEREAS, KRF markets and sells information and services under various
names, trademarks and servicemarks, including, but not limited to: MoneyCenter,
MoneyCenter for Windows, TradeCenter, Digital Data Feed, Digital Page Server,
Commodity Center and Profit Center (the "KRF Services"); and
WHEREAS, Source publishes the services listed and described in Exhibit
A to this Agreement (the "Source Services"); and
WHEREAS, Sources currently distributes all or some of the Source
Services via Telerate Systems Incorporated and Quotron; and
WHEREAS, Source desires to provide the Source Services through the
NETWORK to current and potential subscribers of KRF as well as via direct feed
to third parties.
NOW, THEREFORE the parties, in consideration of the premises and mutual
covenants contained herein, agree as follows:
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1.Distributor; Non-Exclusivity; New Source Services.
(a) Distributor.
(i) Appointment. Source hereby appoints KRF, and KRF hereby
agrees to serve as, a non-exclusive distributor of Source for the term as set
forth in Section 10 for the limited purpose of marketing and distributing the
Source Services worldwide to KRF Subscribers, as defined below, who also
subscribe to the Source Services ("Source Subscribers"), all in accordance with
the terms and conditions hereof. "Subscribers" shall mean those persons or
entities authorized by KRF subject to the terms and conditions hereof, to access
all or part of the information and services via NETWORK contained in the KRF
Services through which one or more of the Source Services are made available.
Notwithstanding the foregoing, KRF shall not deliver the Source Services to
those persons set forth in Exhibit B, as such exhibit is modified from time to
time, with any modifications being implemented by KRF as soon as possible, but
in no event later than thirty (30) days from the giving of notice.
(ii) No Implied Duties. The parties agree that KRF's duties as
distributor of Source shall be limited to those expressly set forth in this
Agreement. KRF shall not be deemed to be a fiduciary of Source and shall not
have any implied duties that might otherwise be imposed upon a distributor of
Source.
(b) Non-Exclusivity. The parties acknowledge and agree that the
appointment of KRF as distributor of Source for the purpose of distributing the
Source Services shall be on a non-exclusive basis. Source retains the right to
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distribute itself or permit other third parties to distribute one or more of the
Source Services or services substantially similar thereto.
(c) New Source Services. Source hereby grants to KRF an option to
distribute any electronically distributed information service hereafter
developed by Source that is not listed in Exhibit A or that is not substantially
similar to any service listed therein (a "New Source Service"). If KRF elects to
exercise its option under this subsection (c) with respect to a New Source
Service by giving Source written notice within twenty-one (21) days of receipt
of notice from Source of said New Source Service, such New Source Service shall
fall within the definition of Source Service under this Agreement, and the
distribution of such New Source Service shall be subject to the terms and
conditions set forth in this Agreement.
2. Inputting; Direct Feed; Accessibility; Display; Accuracy.
(a) Inputting and Use of Services.
(i) Generally. Source shall input the Source Services into the
NETWORK by means of a KRF protocol as set forth in Exhibit C. KRF shall provide
Source with subscriptions to the "basic" portion of the KRF Services through the
terminals listed in Exhibit C for no charge. In addition, KRF, upon the
execution of this Agreement, will order and install at each Source U.S. and
foreign location (including, but not by way of limitation, Xxx Xxxx, Xxxxxx,
Xxxxx, Xxxxxxxxx and Fintrend S.A.'s location in Paris) any and all of the
necessary equipment including, but not by way of limitation, the equipment as
set forth on Exhibit C required by Source to deliver the Source Services
pursuant to this Agreement at no cost to Source.
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KRF agrees to provide such additional equipment and upgrades to existing
equipment to Source locations from time to time during the terms of this
Agreement and any extensions thereof, requested by Source for the purpose of
delivering the Source Services pursuant to this Agreement at no cost to Source.
Source shall be responsible for any costs associated with cabling or other
modifications necessary within its locations. Source shall be responsible for
all local communications costs between Source and KRF locations except in
London, New York and Tokyo as set forth in Exhibit C. KRF shall also provide one
subscription to the KRDF Data Feed on the terms described herein and in Exhibit
C. Source may access at no cost all of the basic services information provided
by KRF, including, but not limited to that information available through KRF
Services and the "optional" services available through such KRF Services with
the written approval of KRF and/or the providers of such optional services. Any
Exchange fees or optional services fees are the responsibility of Source.
(ii) Direct Feed Agreement. KRF acknowledges that Source
anticipates providing the Source Services on a direct fees basis to certain of
Source's subscribers. Together with the execution of this Agreement, KRF and
Source agree to enter into a separate agreement, a copy of which is attached
hereto as Exhibit D, pursuant to which KRF will provide Source with a direct
feed to any of Source's subscribers, as Source form time to time designates. In
such event, Source Subscriber shall enter into a separate agreement with KRF
pursuant to which KRF will provide Source Subscribers a direct feed line. KRF
shall xxxx Source Subscribers who are not
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then-current KRF customers, no more than one hundred and twenty five percent
(125%) of KRF's fully allocated communication costs for providing a direct feed
line to Source Subscribers (the "Direct Feed Communication Charge").
(iii) Use of Source's Proprietary Services. Notwithstanding
any provision of subsection (i) that may be to the contrary, KRF, subject to the
prior written consent of Source, shall have the right to access the Source
Services; provided that Source shall have the right to deny KRF access to any
Source Service in circumstances where KRF uses such service in a way that
competes with the sale of such service by Source or any of its affiliates. Prior
to exercising its right under this subsection (iii) Source agrees to notify KRF
in writing at least thirty (30) days prior to the desired termination date and
state the action by KRF that gave rise to the termination right. If KRF ceases
such action prior to the desired termination date, Source may not deny access to
the Source Services on the basis of such cured action. The rights specified in
this subsection (iii) shall be in addition to, and not in limitation of, any
other remedies the parties may have.
(b) Accessibility of Source Services. KRF will attempt to make the
Source Services available through the various KRF Services whenever KRF
determines it is commercially practical to do so. Distribution by KRF of a
Source Service that is first made available through a KRF Service after the date
hereof pursuant to the terms of this subscription (b) shall be subject to the
terms of this Agreement.
(c) Accuracy of Information. Source shall use commercially reasonable
efforts to (i) insure that the information in the Source Services is accurate,
and
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(ii) correct inaccuracies, errors or defects in such information promptly after
discovery. Source shall monitor such information as it is distributed through
the KRF Services and promptly correct any inaccuracies, errors or defects
therein.
3. Promotion and Marketing.
(a) Efforts and Materials.
(i) Marketing. Source and KRF shall exercise commercially
reasonable efforts to market and promote subscriptions to the Source Services to
be accessed through the NETWORK. From time to time during the term of this
Agreement, but no less frequently than once a calendar quarter, KRF shall
profile or otherwise promote the Source Services on the NETWORK or in
promotional materials.
(ii) Materials. Neither party shall publish or distribute any
advertising or promotional materials regarding the availability of the Source
Services through the NETWORK without the prior written consent of the other,
which consent shall not be unreasonably withheld. Materials being sent to the
other party for approval pursuant to this subsection (a) shall be directed to
the person(s) designated in Exhibit E hereto.
(b) Subscriber List. To facilitate Source's promotional efforts, KRF
shall provide to Source the following information and reports: (i) on a monthly
basis the list of KRF Subscribers located in the United States; (ii) on a
monthly basis, the list of those persons and entities located in the United
States who became new KRF Subscribers during such month; (iii) from time to
time, but not less frequently than
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quarterly, the list of new and existing KRF Subscribers located outside the
United States promptly after it receives at headquarters the information
necessary to develop such list; (iv) upon request of MCM, information KRF has
with regard to renewal dates for subscriptions to the Source Services and (v) on
a monthly basis, access reports which shall, among other things, set forth those
persons taking the Source Services on a trial basis. KRF represents and warrants
that all reports shall be accurate and complete and correctly reflect the number
of subscriptions and those having access to the Source Services.
(c) Authorized Distributors. Source acknowledges that KRF utilizes
authorized distributors, which may or may not be affiliated with KRF, to
distribute the KRF Services ("Authorized Distributors"). Source agrees to allow
the Source Services to be distributed by the Authorized Distributors subject to
the terms and conditions hereof (except where prohibited by law or limited by
local business practices), and KRF agrees to use commercially reasonable efforts
to persuade the Authorized Distributors to distribute the Source Services. As
between KRF and Source, KRF will use all commercially reasonable means of
controlling the Authorized Distributors with regard to the distribution of the
Source Services.
(d) Demonstration Periods; Trade Shows. KRF agrees to promote and
market the Source Services, subject to the terms contained in the last sentence
of Section 1(a)(i), by making one or more of the Source Services available free
of charge to KRF Subscribers for up to thirty (30) days upon the request of
Source. The preceding provision shall not be deemed to increase KRF's
obligations to market and
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promote subscriptions to the Source Services set forth in subsection (a) of this
Section 3. In addition, KRF agrees to provide terminals at no cost to Source for
up to twelve (12) trade show exhibits annually in which Source participates.
Source will provide KRF sixty (60) days prior notice of the date of said trade
shows.
4. Fees; Service Agreement.
(a) Billing; Fees. Source shall xxxx Source Subscribers in the United
States on a regular basis for subscriptions to the Source Services. KRF shall
xxxx Source Subscribers outside the United States, on a regular basis for
subscriptions to all Source Services. Fees for subscriptions to the Source
Services shall be determined by Source in its respective geographic regions in
its sole discretion. Source agrees that it will make changes in published
subscription fees to the Source Services only once per year, which shall, except
as set forth below, be effective anywhere other than Japan on January 1 and in
Japan on April 1, and will give KRF no less than one hundred twenty (120) days'
prior written notice of any such change. Notwithstanding the foregoing, all new
Source Subscribers who become Source Subscribers within said one hundred twenty
(120) day pre-effective period, shall be charged the new subscription fees. KRF
covenants that it will inform all Source Subscribers of the new fees and shall
implement the new fee schedule at the times provided for herein. Source agrees
that it will not charge a Source Subscriber any more money for its subscription
to the Source Services delivered pursuant to this Agreement than it will charge
said Source Subscriber for the Source Services received by other third party
vendors. The parties agree that Source may require KRF to terminate distribution
of
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the Source Services to Source Subscribers that are severely in arrears in paying
their subscription fees. Source Subscribers shall be deemed severely in arrears
for purposes hereof when they become six months behind in payments. The parties
agree that the party responsible for billing shall comply with all applicable
Country, State and local laws and regulations, including, but not limited to the
taxing laws and regulations.
(b) KRF Service Agreements. In those jurisdictions where KRF is billing
Source Subscribers for their use of the Source Services, KRF shall provide the
applicable KRF Service Agreement to each subscriber to the Source Services and
shall not grant any subscriber access to any Source Service (except on a trial
basis) until it has obtained an executed copy of the applicable KRF Service
Agreement from such subscriber. KRF Service Agreements provided to Source
Subscribers shall contain a representation and warranty that the Source
Subscriber is an institutional investor, financial institution, broker or dealer
or similar institution and shall further provide that Source Subscribers shall
not store, modify, reproduce in any form, redisseminate, republish, re-present
or re-distribute Source Services without the prior written consent of Source
which consent shall be at Source's sole discretion and shall contain such other
provisions as reasonably requested by Source. Copies of representative KRF
Service Agreements currently being used are attached as Exhibit F. KRF shall
provide Source with a copy of material amendments to said KRF Service Agreements
within ten (10) days after such amendments are implemented. Source shall not
make any statement regarding any KRF Service that is contradictory or
inconsistent with
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Confidential Materials omitted and filed separately with the Securities
and Exchange Commission. Asterisks denote omissions.
the then-current version of the applicable KRF Service Agreement. KRF agrees to
allow Source's marketing representatives to use and present to potential and
existing subscribers the KRF Service Agreement and to require KRF's marketing
and sale representatives and those of its Authorized Distributors to coordinate
all marketing and sales efforts with Source's marketing representatives and
cooperate with Source's marketing representatives in presenting to potential and
existing subscribers the Source Services.
(c) Source's Service Agreement. In jurisdictions in which Source is
billing Source Subscribers for their use of the Source Services, Source may
provide the Source Services via a written or oral service Agreement. A copy of
the written Service Agreement that Source initially will use in jurisdictions
where it will xxxx Source Subscribers for their use of the Source Services and a
copy of Source's price lists currently in effect are attached as Exhibit G.
Source will notify KRF in writing or by facsimile of all new Source Subscribers
in jurisdictions in which Source is billing Source Subscribers.
5. Charges/Fees.
(a) KRF Fee. ********************************************************
******************************************************************************
****************************************************************************.
(b) Sales Commission and Fee. KRF and its Authorized Distributors shall
not be entitled to any fee or commission for subscriptions to a Source Service
sold to a KRF Subscriber by a salesperson working for KRF or an Authorized
Distributor
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outside the Americas Region unless Source deems the payment of a fee or
commission appropriate.
(c) Payment. Within sixty (60) days after the end of each calendar
quarter falling fully or partially within the terms of this Agreement, KRF shall
deliver to Source a report showing the Subscription receipts for such quarter,
and the amounts due Source, and, except as set forth in the following sentence,
a check payable to Source for the gross amount of said subscription receipts.
For those KRF Subscribers which KRF bills for Source Services outside the United
States, KRF will remit payment within thirty (30) days of receipt of payment
from said KRF Subscribers. All payments made hereunder shall be made in U.S.
Dollars.
(d) Adjustments. Source acknowledges that KRF may make initial
calculations and payments of amounts due Source based on amounts billed to
Source Subscribers in respect of Source Services, and accordingly there may be
post payment adjustments to amounts remitted by KRF to Source pursuant to
subsection 5(c) hereof to reflect (i) amounts KRF billed in error for credits
KRF gave in the ordinary course of business to Source Subscribers, and (ii)
amounts KRF was unable to collect from Source Subscribers.
(e) Records. KRF shall maintain complete and accurate books and records
(collectively, the "Records") with respect to all amounts it billed to Source
Subscribers in respect of subscriptions to the Source Services. Source shall
have the right upon at least thirty (30) days' prior written notice to inspect
the Records of KRF during normal business hours no more frequently than twice
per year. All information
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gained by Source from such inspection will be kept in strict confidence and will
be used solely for the purpose of verifying the accuracy of the commutation of
the amounts due hereunder.
6. Copyright.
Source represents and warrants to KRF that Source or its licensors to
the best of its and their knowledge own the Source Services and the copyrights
thereto, and that Source has the right to authorize KRF to distribute the Source
Services under this Agreement. KRF agrees it is not acquiring under this
Agreement any proprietary interest in the Source Services and agrees not to
challenge the claim of Source or its licensors to the ownership of the Source
Services and the measures requested by Source to make the copyright claim of
Source or its licensors known to Source Subscribers and to assist Source, at
Source's expense, in Source's defense or prosecution of any copyright
infringement claim.
7. Maintenance and Circumstances Beyond Parties' Control.
Subject to the provisions set forth in Section 8, neither KRF nor
Source will be deemed in default or liable hereunder if, as a result of any
cause or circumstances beyond such party's reasonable control or any repair work
or routine maintenance, there occurs a delay in or failure or interruption of
(i) service to any Source Subscriber, or (ii) transmission of the Source
Services. So long as any such failure continues, the party responsible for such
service or transmission will use its reasonable best efforts to eliminate such
conditions and will keep the other party
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fully informed at all times concerning the matters causing such delay or default
and the prospects for their termination.
8. Indemnification.
(a) By Source. In the event any claim is brought by a third party
against KRF that relates to, arises out of or based upon the Source Services or
the failure of Source to comply with any law, rule or regulation, KRF shall
promptly notify Source, and Source shall defend such claim at Source's expense
and under Source's control. Source shall indemnify and hold harmless KRF against
any judgment, liability, loss, cost or damage (including litigation costs and
reasonable attorneys' fees) arising from or related to such claim whether or not
such claim is successful. KRF shall have the right, at its expense, to
participate in the defense of such claim through counsel of its own choosing;
provided, however, that Source shall not be required to pay any settlement
amount that it has not approved in advance.
(b) By KRF. In the event any claim is brought by any third party
against Source that relates to, arises out of or is based upon any error, delay,
interruption or other event cause by KRF or its Authorized Distributors in
transmitting the Source Services, Source shall promptly notify KRF, and KRF
shall defend such claim at KRF's expense and under KRF's control. KRF shall
indemnify and hold harmless Source against any judgment, liability, loss, cost
or damage (including litigation costs and reasonable attorneys' fees) arising
from or related to such claim, whether or not such claim is successful. Source
shall have the right, at its expense, to participate in the defense of such
claim through counsel of its own choosing; provided, however,
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that KRF shall not be required to pay any settlement amount that it has not
approved in advance.
9. Representations and Warranties of the Parties.
Each party hereby represents, covenants and warrants to the other as
follows:
(i) It has full power and authority (including full corporate
power and authority) to execute and deliver this Agreement and
to perform its obligations hereunder. This Agreement
constitutes the valid and legally binding obligation of such
party, enforceable in accordance with its terms and
conditions.
(ii) That the parties will comply with all codes, regulations and
laws applicable to the provision of the services under this
Agreement, and has obtained or will obtain all necessary
permits, licenses and other authorizations necessary for its
performance of services under this Agreement.
10. Confidentiality.
(a) The following materials and information and all copies thereof of
whatever nature are designated as "confidential" and are the proprietary
information and trade secrets of KRF:
(i) the computer software possessed by KRF and all
source documents relating to such computer software;
(ii) proprietary business information of KRF
(including, without limitation, the names and addresses of Subscribers,
information
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providers and suppliers), and business information that KRF does not
generally make available to the public;
(iii) the methods, means, personnel, equipment and
software by and with which KRF provides the NETWORK; and
(iv) any other information that KRF reasonably
designates, by notice in writing delivered to Source, as being
confidential or a trade secret.
(b) The following materials and information and all copies thereof of
whatever nature are designated as "confidential" and are the proprietary
information and trade secrets of Source:
(i) proprietary business information of Source, and
business information that Source does not generally make available to
the public; and
(ii) any other information that Source reasonably
designates, by notice in writing delivered to KRF, as being
confidential or a trade secret.
(c) All such proprietary or confidential information of KRF or Source
shall be kept secret by the Source or KRF, as the case may be, to the degree it
keeps secret its own confidential or proprietary information. Such information
belonging to either party shall not be disclosed by the other party to its
employees except on a need-to-know basis or to agents or contractors of such
other party, but may be disclosed by such other party to state or federal
agencies, authorities or courts upon their order or request provided prompt
notice of such order or request is given by such other party to the party to
which such information belongs, if such notice is legally permitted. Upon
termination of this Agreement, all copies of such
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information shall be returned to the party to which such information belongs and
no copies thereof shall remain in the possession, custody or control of such
other party.
(d) No information that would otherwise be proprietary or confidential
for the purposes of this Agreement pursuant to subsections (a) or (b) above
shall be subject to the restrictions on disclosure imposed by this section in
the vent and to the extent that (i) such information is in, or becomes part of,
the public domain otherwise than through the fault of the party to which such
information does not belong, (ii) such information was known to such party prior
to the execution of this Agreement, or (ii) such information was revealed to
such party by a third party.
11. Term; Termination.
(a) Term. The initial term of this Agreement shall commence ninety-one
(91) days subsequent to notice given by Source to Telerate Systems Incorporated
("Telerate") of Source's intent to distribute the Source Services through other
network vendors pursuant to that certain agreement dated as of January 1, 1992,
between Source and Telerate (the "Telerate Agreement") and shall terminate at
the end of the seventh year (the "Initial Term"). Notwithstanding the foregoing,
Source may terminate this Agreement prior to its commencement date in the event
Source, in its sole discretion, retracts said notice to Telerate under the
Telerate Agreement. Furthermore, this Agreement shall terminate on September 30,
1993, in the event that Source has not provided notice to Telerate of its intent
to distribute the Source Services through other network vendors on or before
September 30, 1993. The term of this Agreement shall automatically be extended
for one or more periods of one
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year (a "Renewal Term"), unless either party sends to the other written notice
of its election not to renew at least ninety (90) days prior to the end of the
initial Term, or any Renewal Term, as the case may be.
(b) Default. If either party shall default in the performance of or
compliance with any provision contained in this Agreement and such default shall
not have been cured within thirty (30) days after written notice thereof shall
have been given to the appropriate party, the party giving such notice may then
give further written notice to such other party terminating this Agreement, in
which event this Agreement and any other rights granted hereunder shall
terminate on the date specified in such further notice. The parties agree that
any breach of a representation or warranty contained in this Agreement shall
result in its immediate termination. KRF agrees, in the vent of a breach by it
of any of its obligations under this Agreement, Source may seek temporary or
permanent injunctive relief, without the necessity of proving actual damages or
the posting of a bond, as well as other equitable relief, and will be entitled
to commence an action for any such relief in any court of competent
jurisdiction.
(c) Insolvency. In the event that either party hereto shall be adjudged
insolvent or bankrupt, or upon the institution of any proceedings by it seeking
relief, reorganization or arrangement under any laws relating to insolvency, or
if an involuntary petition in bankruptcy is filed against such party and said
petition is not discharged within sixty (60) days after such filing, or upon any
assignment for the benefit of its creditors, or upon the appointment of a
receiver, liquidator or trustee of
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any of its assets, or upon the liquidation, dissolution or winding up of its
business (an "Event of Bankruptcy"), then the party involved in any such Event
of Bankruptcy shall immediately give notice thereof to the other party, and the
other party at its option may terminate this Agreement upon written notice.
12. Miscellaneous.
(a) Notices. All notices hereunder (except as provided for in Section
4(c) hereof) shall be in writing and shall be delivered in person, or sent by
overnight courier service, to the address of the party set forth below, or to
such other addresses as may be stipulated in writing by the parties pursuant
hereto. Unless otherwise provided, notice shall be effective on the date it is
officially recorded as delivered.
(i) If to KRF, to:
Xxxxxx-Xxxxxx Financial Inc.
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
with a copy to:
Xxxxxx-Xxxxxx Inc.
Xxx Xxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000-0000
Xx. Xxxxxxxxx Xxxxxxx, Associate General Counsel
(ii) If to Source, to:
XxXxxxxx, Xxxxxxxx & Xxxxxx, Inc.
00 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: President
with a copy to:
The Van Xxxxxx Xxxxxxx Companies, Inc.
Xxx Xxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, XX 00000
Attention: General Counsel
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(b) Amendment; Assignment. This Agreement may not be amended except by
written instrument executed by Source and KRF. Neither party may assign this
Agreement to any third party, other than an affiliate, without the prior written
consent of the other. Any assignment of this Agreement to an affiliate shall not
relieve the assigning party of any of its obligations or liabilities under this
Agreement.
(c) Survival of Certain Provisions. Notwithstanding the termination of
this Agreement, those provisions of this Agreement that by their nature are
intended to survive such termination shall survive, including without
limitation, the provisions of Sections 8, 9, 10 and 11.
(d) Consequential Damages. Except pursuant to Section 8, neither party
shall be liable for any consequential, indirect, incidental or special damages,
even if advised of the possibility of such damages.
(e) Entire Agreement. This Agreement contains the entire understanding
of the parties on the subject hereof and terminates and supersedes all previous
verbal and written agreements on such subject.
(f) Relationship of the Parties. The parties agree that KRF will act as
an independent contractor in the performance of its duties under this Agreement.
This Agreement does not and shall not be deemed to constitute a partnership or
joint venture between the parties and neither party nor any of its directors,
officers, employees or agents shall, by virtue of the performance of their
obligations under this Agreement, be deemed to be an employee of the other. KRF
has no authority to
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make any representations on behalf of or to bind Source in connection with the
provision of Source Services in the course of performing any of its obligations
under this Agreement or otherwise.
(g) "Affiliate" Defined. For purposes of this Agreement, the term
"affiliate" and its derivatives shall mean, with respect to any individual or
entity directly or indirectly, through one or more intermediaries, controlling,
controlled by, or under common control with such individual or entity. The term
"control" and its derivatives, as used in the immediately preceding sentence,
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of any entity, whether through the
ownership of voting securities, by contact or otherwise.
(h) Severability. In the event any provision of this Agreement or
application hereof to any party or in any circumstances shall be determined to
be invalid, unlawful, or unenforceable to any extent, the remainder of this
Agreement, and the application of any provision to parties or circumstances
other than those as to which it is determined to be unlawful, invalid or
unenforceable, shall not be affected thereby, and each remaining provision of
this Agreement shall continue to be valid and may be enforced to the fullest
extent permitted by law.
(i) Non-Waiver. No delay or failure by either party in exercising any
right under this Agreement, and no partial or single exercise of that right,
shall constitute a waiver of that or any other right.
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(j) Captions. The captions used herein are for convenience only, and
constitute no part of this Agreement.
(k) Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York, without regard to the
choice of law principles thereof.
IN WITNESS WHEREOF, the undersigned parties have duly executed this
Agreement as of the 1st day of July, 1993, to be effective as set forth in
Section 11(a) hereof.
XxXXXXXX, XXXXXXXX & XXXXXX, INC. XXXXXX-XXXXXX FINANCIAL, INC.
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxx X. Xxxxxx
----------------------------- -------------------------------
Name: XXXXXXX X. XXXXXXX Name: XX. XXXX X. XXXXXX
Title: PRESIDENT Title: PRESIDENT
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Exhibit A
Source Services
Name Description
---- -----------
CorporateWatch* Principally provides rapid and
comprehensive information on corporate
securities, private placements, equities
and mortgage and derivative product new
issues.
CurrencyWatch* A foreign exchange market forecasting
and analysis system combining live 24
hour fundamental and technical analysis
presented as both commentary and live
technical trading pages, together with
comprehensive live EMS analysis.
MoneyWatch* Provides 24 hour fundamental and
technical analysis of US Treasury,
Agency and money market securities. The
service combines live commentary and
technical trading analysis with detailed
forecasts and analysis of the US
economy.
YieldWatch* Addresses European and Asia Pacific
government bonds/financial futures
markets including the U.S. T-bond.
Information is presented as live
commentary, technical trading blotters
and spread analysis, together with
regional market briefings.
*Denotes a registered trademark of XxXxxxxx, Xxxxxxxx & Xxxxxx, Inc.
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Exhibit B
The following subscribers should be restricted from access to the Source
Services pursuant to Section 1(a)(i) of the Agreement:
Munifacts/American Banker Thomson Financial Networks
Xxxxx & Company Alert/OASYS
Money Market Services AutEx
Ried, Xxxxxxxx CDA Investment Technologies
Elliot Wave International CORIS
Data Resources Inc. FIRST-CALL
Xxxxxxxxx & Co. Forex Watch
Xxxxx Economics Forex Chartist
Xxxxxxxxx Technical SystemGriggs & Santow
Investext
Xxxx & Bradstreet Securities Data Co.
Predex Xxxxxx Auction Systems
Xxxxx Asset Backed Securities Group
Bank Valuation Securities Information Center
Chronometrics Software Division
Capital Techniques Technical Data (All Services)
Telerate Corporate Market Service Valornform
Eurobond Service I.F.R. JapanWatch
Elders Applied Research I.F.R. Xxxxx
X.X. Xxxxxxxxx I.F.R. CorporateEye
Business Week I.F.R. XxxXx
Market Data Corporation I.F.R. Int'l. Financing Review
Market News Service Atlas
Xxxxx Bond Data
Xxxxxx Data MoneyData
Pensions & Investment Age ILX
Money Line Corporation Bond World
Standard & Poor's Moody's
Dow Xxxxx News Service XXxxx Xxxx
Duff & Xxxxxx FX 24
Xxxxx Group Gannett
Investment Dealers Digest Fitch
(I.D.D. Information Services) Sheshunoff
Securities Data Corp. Capital Management
RS Investments Xxxxxxxx'x Xxxxxx Wave International
MRL Publishing Xxxxxxx Xxxxx International
Capital Management IPO Financial
MBSIS Commscan
X.X. Xxxxxx & Company AMG Data Services
Mortgage Data MortgageData
Bloomberg IDEA
X'Xxxxxx, Xxxx & Xxxxxxxx Dalcomp Inc.
Telekurs Xxxxx Xxxxxxx Capital Consultants
Stone, XxXxxxxx SDC Publishing
Institutional Investor Euromoneys
In addition to the above list, only Authorized Distributors should be allowed
access when exhibiting at conferences.
24
Exhibit C
"Non-Chargeable" KRF Equipment and Services
I. Equipment to be supplied by KRF to Source for use by Source at Source's
locations including but not limited to:
(i) One KRDF data feed at Source's site in New York.
(ii) Money Center for Windows, one server and five slaves (one each
product and one for MIS) in New York.
(iii) Money Center for Windows, one server and one slave at each
overseas site and disaster recovery site.
(iv) One "Market Maker" (DES) terminal in each Source site.
II. Electronic means of delivering Source's information to KRF in a timely
and reliable manner to include but not limited to two KRFI lines with
the necessary equipment and leased lines with dial back-up at Source's
primary site as well as at disaster recovery site.
III. Facilities for linkage between Source's New York office and each of
Source's overseas offices located in a city that make up KRF's backbone
network; namely, Kansas City, New York, Chicago, London, Singapore,
Tokyo, Hong Kong and Sydney. Source is responsible for local
communications costs between Source locations and KRF locations except
in New York, London and Tokyo where KRF will assume responsibility for
these costs. Source is not responsible for any costs related to KRF's
backbone network.
25
Exhibit D
Direct Feed Delivery Agreement
26
DIRECT FEED DELIVERY AGREEMENT
THIS AGREEMENT, dated as of __________________, 1993 between KNIGHT RIDDER
FINANCIAL, INC., a _____________ Corporation with offices at 00 Xxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("KRF") and XxXXXXXX, XXXXXXXX & XXXXXX,
INC., a New York Corporation with offices at 00 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000 ("Source").
WHEREAS, Source publishes the services listed and described in Exhibit A to this
Agreement (the "Source Services"); and
WHEREAS, KRF and Source have entered into an Optional Service Delivery Agreement
dated as of the date hereof ("Optional Service Delivery Agreement"); and
WHEREAS, Source desires to make the Source Services available to subscriber to
the Source Services ("Source Subscribers") via direct feed line; and
WHEREAS, KRF is willing to provide Source Subscribers with a direct feed line to
deliver the Source Services directly to certain Source Subscribers.
NOW THEREFORE, the parties in consideration of the premises and mutual covenants
contained herein agree as follows:
1. Provision of Direct Feed Line.
Upon prior written notice to KRF, KRF agrees to provide to Source
Subscribers, a direct feed line for the direct delivery of Source
Services to Source Subscribers. KRF shall enter into a separate
agreement with Source Subscriber for the provision of the direct feed
line. A copy of KRF standard direct feed line agreement is attached as
Exhibit B. Further, with respect to non-U.S. Source Subscribers, KRF
agrees to enter into a separate KRF Service Agreement in the form of
Exhibit F to, and which complies with the terms and conditions set
forth in, Section 4(b) of the Optional Service Delivery
27
Agreement with said non-U.S. Source Subscriber pursuant to which KRF
agrees to provide the Source Services. KRF shall xxxx Source
Subscribers who are not then-current KRF customers, obtaining a direct
feed line pursuant to this section, a fee equal to no more than one
hundred twenty-five percent (125%) of KRF's fully allocated
communication costs for providing a direct feed line to Source
Subscribers (the "Direct Feed Communication Charge").
2. Installation. KRF agrees that within thirty (30) days or as quickly as
reasonably possible, subject to communication or installation delays not under
KRF's control, of receipt by it of notice from Source that it will install a
direct feed line to those Source Subscribers as set forth in Section 1 hereof.
KRF further agrees to provide to Source information relating to systems
configuration of each Source Subscriber for whom KRF provides a direct feed line
pursuant to this Agreement.
3. Representations and Warranties of KRF. KRF hereby represents, covenants and
warrants to Source as follows:
(i) That KRF is a corporation duly organized, validly
existing and in good standing under the laws of
Delaware.
(ii) That KRF has full power and authority (including full
corporate power and authority) to execute and deliver
this Agreement and to perform its obligations
hereunder. This Agreement constitutes the valid and
legally binding obligation of KRF, enforceable in
accordance with its terms and conditions.
(iii) That the direct feed line that KRF shall place with a
Source Subscriber pursuant to the terms of this
Agreement shall operate at a standard level in order
to convey the Source Services at a
-2-
28
level comparable to the delivery of Source Services
delivered pursuant to the Optional Service Delivery
Agreement.
(iv) The direct feed line installed by KRF will be capable
of carrying all of the Source Services including any
New Source Services.
(v) That KRF will comply with all codes, regulations and
laws applicable to the provision of direct feed lines
under this Agreement, and has obtained or will obtain
all necessary permits, licenses and other
authorizations necessary for its performance of
services under this Agreement.
(vi) That the direct feed lines provided to Source
Subscribers shall meet the technical requirements as
set forth in KRF's published documentation for
installation and maintenance of its direct feed lines
as well as convey the Source Services in a manner and
with a functionality at a level as is generally made
available to its own customers.
(vii) That KRF shall support, maintain and repair direct
feed lines installed pursuant to this Agreement in a
timely, competent and workmanlike manner and at a
level that meets KRF's support, maintenance and
repair services to its customers generally.
(viii) KRF agrees that it will not consent to a request by a
Source Subscriber who seeks to store, modify,
reproduce in any form, redisseminate, recirculate or
republish in any form the Source Services without the
prior written consent of Source, which consent shall
be at Source's sole discretion.
-3-
29
4. Billing. KRF shall xxxx Source Subscriber who is not a then-current KRF
customer, the Direct Feed Communication Charge. Source acknowledges
that in the event that a direct feed line is provided to a
then-existing KRF customer or, in the further event that a direct feed
line is provided to a non-KRF customer who subsequently subscribes to
additional KRF services, that the KRF communication charges may
increase as agreed to between KRF and Source Subscriber. Source
Subscriber shall be responsible for payment of all taxes (except for
taxes based on KRF's net income), and KRF shall be responsible for
collecting, remitting and otherwise complying with all applicable
Country, State and local taxing laws and regulations. In addition,
Source shall xxxx Source Subscribers for fees relating to the Source
Services in the United States, and KRF shall xxxx Source Subscribers
outside the United States, in accordance with KRF's usual billing
practices and KRF shall not be entitled to any portion of such fees.
5. Indemnification.
(a) By Source. In the event any claim is brought by third party
against KRF that relates to, arises out of or is based upon
the Source Services or the failure of Source to comply with
any law, rule or regulation, KRF shall promptly notify Source,
and Source shall defend such claim at Source's expense and
under Source's control. Source shall indemnify and hold
harmless KRF against any judgment, liability, loss, cost or
damage (including litigation costs and reasonable attorneys'
fees) arising from or related to such claim whether or not
such claim is successful. KRF shall have the right, at its
expense, to participate in the defense of such claim through
counsel of its own choosing; provided, however, that Source
shall not be required to pay any settlement amount that it has
not approved in advance.
-4-
30
(b) By KRF. In the event any claim is brought by any third party
against Source that relates to, arises out of or is based upon
any error, delay, interruption or other event caused by KRF,
its agents or its Authorized Distributors in installing,
supporting, maintaining or repairing the direct feed line or
in transmitting the Source Services, Source shall promptly
notify KRF, and KRF shall defend such claim at KRF's expense
and under KRF's control. KRF shall indemnify and hold harmless
Source against any judgment, liability, loss, cost or damage
(including litigation costs and reasonable attorneys' fees)
arising from or related to such claim, whether or not such
claim is successful. Source shall have the right, at its
expense, to participate in the defense of such claim through
counsel of its own choosing; provided, however, that KRF shall
not be required to pay any settlement amount that it has not
approved in advance.
6. Term; Termination.
(a) Term. The initial term of this Agreement shall commence
ninety-one (91) days subsequent to notice given by Source to
Telerate Systems Incorporated ("Telerate") pursuant to that
certain agreement dated as of January 1, 1992, between Source
and Telerate (the "Telerate Agreement") (the "Commencement
Date") and shall terminate at the end of the seventh year (the
"Initial Term"). Notwithstanding the foregoing, Source may
terminate this Agreement prior to its Commencement Date in the
event Source, in its sole discretion, retracts its notice to
Telerate under the Telerate Agreement. The term of this
Agreement shall automatically be extended for one or more
periods of one year (a "Renewal Term"), unless either party
sends to the other written notice of its election not to renew
at least ninety (90) days prior to the end of the Initial
Term, or any Renewal Term, as the case may be.
-5-
31
(b) Default. If either party shall default in the performance of
or compliance with any provision contained in this Agreement
including, but not limited to, any breach of a representation
or warranty, and such default shall not have been cured within
thirty (30) days after written notice thereof shall have been
given to the appropriate party, the party giving such notice
may then give further written notice to such other party
terminating this Agreement, in which event this Agreement and
any other rights granted hereunder shall terminate on the date
specified in such further notice.
(c) Insolvency. In the event that either party hereto shall be
adjudged insolvent or bankrupt, or upon the institution of any
proceedings by it seeking relief, reorganization or
arrangement under any laws relating to insolvency, or if an
involuntary petition in bankruptcy is filed against such party
and said petition is not discharged within sixty (60) days
after such filing, or upon any assignment for the benefit of
its creditors, or upon the appointment of a receiver,
liquidator or trustee of any of its assets, or upon the
liquidation, dissolution or winding up of its business (an
"Event of Bankruptcy"), then the party involved in any such
Event of Bankruptcy shall immediately give notice thereof to
the other party, and the other party at its option may
terminate this Agreement upon written notice.
(d) Effect of Termination. In the event of a termination of this
Agreement for any reason, KRF shall continue to support,
maintain and repair direct feed lines installed for Source
Subscribers before the effective date of any such termination
provided that such Source Subscriber continues to pay to KRF
the agreed upon Direct Feed Communications Charge.
-6-
32
7. Incorporation By Reference. The parties hereto agree that the following
sections of the Optional Service Delivery Agreement, a copy of which is
attached hereto and made part hereof as Exhibit C, are incorporate by
reference: 4(b), 5, 10, 12(a), (b), (d) (the reference in Section 12(d)
to Section 8 is hereby changed to Section 5), (e), (f), (g), (h), (i),
(j) and (k).
8. Survival. All covenants, obligations, representations, warranties,
indemnities and agreements contained in this Agreement shall survive
the execution and delivery of the Agreement and of any and all
documents or instruments delivered in connection herewith. Neither
Source nor KRF has made any representation or warranty to the other in
connection with the transaction contemplated herein except as contained
in this Agreement and any other instrument, agreement or writing
provided for or contemplated by this Agreement.
9. Definitions. Terms not otherwise defined herein shall have the meanings
ascribed to them in the Optional Service Delivery Agreement.
IN WITNESS WHEREOF, the undersigned parties have duly executed this
Agreement as of the ___________ day of _____________, 1993, to be effective as
set forth in Section 6 hereof.
XxXXXXXX, XXXXXXXX & XXXXXX, INC. XXXXXX-XXXXXX FINANCIAL, INC.
By:______________________________ By:________________________________
Name: XXXXXXX X. XXXXXXX Name: XX. XXXX X. XXXXXX
Title: PRESIDENT Title: PRESIDENT
-7-
33
Exhibit E
Contacts for Approval of Promotional Materials
For KRF:
Managing Director
Xxxxxx-Xxxxxx Financial/Americas
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
For Source:
Mr. Xxx Xxxxxx
XxXxxxxx, Xxxxxxxx & Xxxxxx, Inc.
00 Xxxxxxxx
Xxx Xxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Either party may change its designated "contact" person by giving written notice
to the other.
34
Exhibit F
Xxxxxx-Xxxxxx Financial, Inc. Service Agreements
See Attached
35
STANDARD TERMS AND CONDITIONS
1. BILLING. Subscriber shall pay all sales, use, privilege, excise, property and
other taxes, assessments or governmental charges, however, designated, now or
hereafter imposed with respect to any item or payment described in the
Subscription Schedule, which amounts will be added to Subscriber's invoice. Any
taxes, assessments or governmental charges in connection with installation
charges or security charges will be added to Subscriber's invoice for the first
month. Company will xxxx Subscriber monthly in advance and Subscriber agrees to
pay such invoice upon receipt. Charges for any fractional month will be
prorated. All payments not received by the 25th day of the month to which they
apply shall be subject to a late payment charge from such date until paid at a
rate equal to the lesser of the maximum rate permitted under applicable law or
18% per annum. The Company may increase the monthly fees if at any time any of
the following occurs: (I) the Company's cost of providing the Service (as
defined below) is increased because of (A) higher charges to the Company from
common carriers or others providing transmission facilities, (B) loss of other
customers sharing the cost of transmitting to Subscriber's location or (C) lower
cost transmission facilities no longer being available to the Company, (II)
exchanges and third party providers supplying information or data to the Company
increase their charges or (III) any sales, use, privilege, excise, property or
other taxes, assessments or governmental charges, however designated, are
imposed or increased.
2. SERVICE. The Company shall supply to Subscriber, at the installation address
set forth herein, the Basic Services and Optional Services listed in Sections A
and B (collectively the "Service") for the respective monthly fees set forth in
Sections A and B, subject to all the terms and conditions of this Agreement.
3. EQUIPMENT. The machines, hardware and other supplemental equipment listed in
Section C is required at Subscriber's location for Subscriber to receive the
Service from the Company. Any equipment provided by the Company ("Company
Equipment") and any equipment provided by Subscriber ("Subscriber Equipment") is
collectively referred to herein as the "Equipment". Any Equipment malfunctions
shall not entitle Subscriber to any abatement or reduction of the monthly fees
hereunder.
(a) Company Equipment. The Company hereby provides to Subscriber, for the
monthly fee set forth in Section C(1), the Company Equipment listed in Section
C(1). All Company Equipment shall remain items of personal property owned by the
Company, notwithstanding any attachment to other equipment, structures or real
property, and Subscriber shall not permit any liens or encumbrances against the
Company Equipment. Subscriber shall not make or permit any change, alternation,
addition, modification or connection to the Company Equipment, nor shall
Subscriber remove any Company Equipment from the place of original installation
by the Company. Upon expiration or termination of this Agreement for any reason,
Subscriber shall promptly make the Company Equipment available for return to the
Company in its original condition, ordinary wear and tear excepted. Subscriber
shall use the Company Equipment solely and exclusively in connection with the
Service and shall be responsible for and shall reimburse the Company for all
loss of or damage to the Company Equipment.
(b) Subscriber Equipment. Subscriber shall provide any Subscriber Equipment
listed in Section C(2). All Equipment owned by Subscriber must be approved by
and be compatible with the Company's specifications at all times during the term
of this Agreement.
(c) Supplies. Subscriber shall provide, at Subscriber's expense, all
necessary paper, ribbons and other supplies of standard grade for operation of
the Equipment.
4. SOFTWARE.
(a) License. "Software" means any computer software and documentation for
such software provided by the Company to enable Subscriber to receive and
display the Service. In consideration of the monthly fees paid to Company by
Subscriber, hereunder the Company hereby grants Subscriber a nontransferable,
nonexclusive license (the "License") to use the Software for so long as this
Agreement is in effect, subject to the terms and conditions set forth herein,
including without limitation the restrictions contained in Paragraph 8. The
Software is licensed "as is" and "with all faults." The Company will deliver to
Subscriber and install one copy of the Software. The Software shall be used
solely and exclusively in connection with the Service.
(b) No copies or Sublicense. Subscriber shall not copy, modify, sublicense
or otherwise transfer the Software or any part thereof, except for use on the
Equipment and for archive or emergency backup purposes, and Subscriber shall
maintain appropriate records of the number and location of all such permitted
copies and shall make such copies and records available to the Company upon
request. Subscriber shall take all reasonable precautions to safeguard the
Software and to prevent any copies or disclosures thereof in violation of this
Agreement and to prevent any unauthorized access thereto.
(c) Title, Termination, Return. All right, title and interest in and to the
Software and all parts and any copies thereof are and shall remain the sole and
exclusive property of the Company. The License shall terminate, and all copies
of the Software shall be immediately returned to the Company, upon written
request by the Company or upon expiration or termination of this Agreement for
any reason.
5. INSTALLATION.
(a) Installation Site. Subscriber shall prepare, provide and maintain the
site where the Equipment will be located and where the Service will be received
(the "Installation Site"), in a manner that complies with the Company's and
Equipment manufacturer's specifications, and the Company shall not be required
to install any Equipment or Software or provide any Service or Maintenance (as
defined herein) unless all Equipment and the Installation Site comply with the
Company's specifications and are approved by the Company. Subscriber is
responsible for obtaining all local permits.
(b) Site Preparation and Maintenance. Subscriber shall be responsible for
and shall bear all costs of, Installation Site preparation and maintenance,
including without limitation adequate space, furniture, electrical power,
circuits, power outlets, temperature and house telephone circuits. Further,
Subscriber shall be responsible for the installation of any necessary cable
required to complete installation of the Equipment, including without limitation
running cable through or securing cable to walls, conduit, baseboards or any
other portion of the Installation Site. Cable installation must be completed
prior to any installation of Equipment. All necessary cable will be provided by
the Company at Subscriber's expense. Subscriber shall be solely responsible for
obtaining any permission or consents required by landlords or other parties for
the installation of Equipment including without limitation running cable and
installing satellite receiving equipment and the Service. Subscriber shall
maintain the Installation Site as a suitable Installation Site throughout the
term of this Agreement.
(c) Installation. After a suitable Installation Site is available, the
Company shall install or cause to be installed any Company Equipment and any
Software. The Company shall have no duty to repair any holes or cuts in any
surfaces upon removal of any Equipment.
(d) Backup. If required by the Company, Subscriber shall install, pay for
and maintain a backup data line to be used in the event the data line to the
Equipment is subject to interruption, noise or any other problems not permitting
the Equipment or Software to function properly, in the Company's opinion.
(e) Installation Date. Installation shall be deemed to have occurred on the
earlier of the date on which either (i) the Company or its designee determines
that the Company Equipment and any Software have been placed in good working
order and the Service is available to Subscriber or (ii) the Company Equipment
has been delivered and the Service is available but Subscriber has failed to
provide a suitable Installation Site. The Company will notify Subscriber when
the Company Equipment and any Software and the Service is available to
Subscriber.
6. MAINTENANCE. In order to protect the quality and integrity of the Company's
systems and the Service, Subscriber agrees that during the term of this
Agreement the Company shall exclusively provide or
36
cause to be provided the service and maintenance as described herein
("Maintenance") for all Company Equipment and any Software installed pursuant to
this Agreement.
(a) Company Equipment. The Company shall make all necessary adjustments and
repairs to keep the Company Equipment in good operating condition during regular
business hours (8:00 a.m. to 5:00 p.m. Monday through Friday, excluding holidays
observed by the Company) and in accordance with the Company's specifications
then in effect. The Company's representatives shall have full access to the
Company Equipment in order to effect the necessary adjustments and repairs. The
Company shall determine preventive maintenance service required for the Company
Equipment. All remedial maintenance service shall be provided during regular
business hours within a reasonable time after Subscriber notifies the Company in
accordance with the Company's reporting procedures that the Company Equipment is
inoperative. Subscriber shall provide adequate storage space for spare parts and
test equipment and adequate work space, heat, light, ventilation, electric
current and outlets for use by the Company's maintenance representatives. All
spare parts, test and maintenance equipment, tools and documentation shall
remain the Company's property and may be removed by the Company at any time.
Parts removed from Company Equipment shall be the Company's property. Subscriber
shall not move or relocate, or permit to be moved or relocated, any Company
Equipment without the Company's prior written consent. Maintenance service does
not include any of the following: (i) providing supplies or equipment, (ii)
maintenance of accessories, attachments, machines or other devices not used in
connection with receipt of the Service, (iii) performing service connected with
the relocation of reinstallation of the Company Equipment or (iv) adding or
removing accessories, attachments and other devices. Any maintenance that, in
the opinion of the Company, results from other than normal operation of the
Company Equipment, including without limitation Subscriber's fault or misuse of
the Company Equipment or Subscriber's failure to provide the necessary
facilities or specified operating supplies or to meet the Company's
specifications, shall be invoiced to Subscriber as an additional charge. This
maintenance agreement is contingent upon proper use of the Company Equipment and
does not cover Company Equipment modified without the Company's approval or
subjected to unusual physical or electrical stress, or on which the original
identification marks have been removed or altered. The Company shall not be
responsible to Subscriber for loss of use of the Company Equipment or for any
other liabilities arising from alterations, additions, adjustments or repairs
made to the Company Equipment by other than authorized representatives of the
Company.
(b) Other Equipment. All Subscriber Equipment shall be maintained and serviced
by Subscriber at Subscriber's cost in order to keep it in good operating
condition and in compliance with the Company's specifications then in effect for
use in connection with receiving the Service. The Company shall have no duty to
perform any maintenance or repairs on Subscriber Equipment, but any maintenance
or repairs by the Company on Subscriber Equipment Equipment in order to make
Subscriber Equipment comply with the Company's specifications shall be invoiced
to Subscriber at the Company's standard time and material charges.
(c) Software. The Company shall use reasonable efforts to correct any
programming error in the Software significantly affecting use of the Software or
to replace the Software. Such correction or replacement shall be accomplished
promptly after Subscriber has identified and notified the Company of any such
error in accordance with the Company's reporting procedures. This Software
maintenance agreement shall not entitle Subscriber to receive any enhancements
or improvements developed for the Software. Further, any modifications in the
Software required as a result of Subscriber requesting a change in the Service
provided hereunder shall be performed by the Company at Subscriber's expense.
Subscriber agrees to provide the Company with data dumps, as requested, and with
sufficient support and test time on Subscriber's computer system to duplicate
the problem and to verify that the problem is with the Software and that the
problem has been corrected. Corrections for difficulties or defects traceable to
Subscriber's errors, modification of the Software by Subscriber or Subscriber
systems changes shall be invoiced to Subscriber at the Company's standard time
and material charges.
7. SECURITY DEPOSIT. As security for any Company Equipment, any Software and the
performance of Subscriber's duties and obligations hereunder, Subscriber shall
pay to the Company a security deposit in the amount set forth in Section F,
which amount must be paid in full prior to any installation of Equipment. If all
Company Equipment and Software has been returned to the Company as herein
required and Subscriber is not then in breach or default of any of its duties
and obligations under this Agreement, then the security deposit shall be
returned to Subscriber within 30 days after the expiration or termination of
this Agreement: otherwise, the Company may withhold all or any part of the
security deposit to the extent of its actual damages. The security deposit does
not constitute liquidated damages. The Company shall not be required to
segregate the security deposit from its own funds.
8. USE LIMITATIONS; CONFIDENTIALITY.
(a) Use Limitations. Subscriber shall use the Service, any Company
Equipment and any Software solely and exclusively for its own internal business
purposes. Without limiting the generality of the foregoing, Subscriber shall not
directly or indirectly sell, lease, redistribute, retransmit, broadcast,
download or otherwise provide or disseminate the Service or the Software or any
part of either of them or any information or data included therein, in any form
or by any means (including without limitation by making hard copies or by
electronic transfer) to any other person or entity (including without limitation
Subscribers' customers). Further, Subscriber shall not download the Service, any
Software or any part of either of them to Subscriber's or any third party's
facilities or network with Subscriber's or any third party's facilities to
enable any sharing of the Service, any Software or any part of either of them.
(b) Confidentiality. Subscriber acknowledges that the Service, any Software
and any information and data included therein (except for any information and
data distributed publicly without charge) and the form, format, mode or method
of compilation, configuration, presentation or expression thereof are the
_____________ and proprietary property information and data of the Company (the
"Confidential Property"). Subscriber shall receive and maintain the Confidential
Property as a confidential disclosure and shall not disclose the Confidential
Property or any part thereof to any other person or entity (except employees of
Subscriber with a need to know and employees of the Company) or use or permit of
use of the Confidential Property or any part thereof except as herein expressly
permitted at any time during the Initial Term and any renewal term
______________ for a period of three years after the expiration or termination
of this Agreement except as follows ___________ with the Company's prior written
consent in each ______________ of disclosure or ______________ if Subscriber is
required by law to disclose the __________________ Property but only after
notice to the Company and only to the extent required.
(c) Copyright. To the fullest extent permitted or available under
applicable _____ the Company hereby asserts and claims and Subscriber hereby
recognizes and acknowledges, copyright protection for the Service, any Software
and any ______ thereof including without limitation the form, format, mode or
method of compilation, configuration, presentation or expression thereof and of
any information or data included therein.
(d) Further Protection. In addition to Subscriber's other obligations in
this Paragraph 8, Subscriber shall prohibit any violation or breach of the terms
and conditions of this Paragraph 8 by its employees, agents and other persons or
___________ within Subscriber's control.
9. EXCHANGES AND THIRD PARTY PROVIDERS. Subscriber shall from time to time
execute such applications or agreements as may be required by, and ______
observe all restrictions and requirements imposed by any securities or
commodities exchange or third party provider with respect to any quotations,
market information or other information or data provided by such exchanges or
third party providers.
10. EXPRESS WARRANTIES; WARRANTIES LIMITED.
(a) Express Warranties. The Company warrants to Subscriber that the Company
(i) has the right to provide the Service and any quotations, market information
or other information or data furnished hereunder to Subscriber, (ii) has good
title to any Company Equipment
37
and any Software and (iii) will perform or cause to be performed any
installation of Company Equipment or Software and any Maintenance in a
workmanlike manner.
(b) Warranties Limited. EXCEPT AS EXPRESSLY SET FORTH IN PARAGRAPH 10(a),
(I) NEITHER THE COMPANY NOR ANY EXCHANGE OR OTHER THIRD PARTY PROVIDER OF
INFORMATION OR DATA ("Information Providers") OR SOFTWARE LICENSORS MAKES ANY
WARRANTY, REPRESENTATION OR GUARANTY AS TO THE SEQUENCE, ACCURACY, TIMELINESS OR
COMPLETENESS OF THE SERVICE OR ANY QUOTATIONS, MARKET INFORMATION OR OTHER
INFORMATION OR DATA FURNISHED HEREUNDER OR THAT ANY SUCH INFORMATION OR DATA
DISSEMINATED MAY BE RELIED UPON FOR TRADING PURPOSES (SUBSCRIBER SHALL
INDEPENDENTLY DETERMINE MARKET PRICES FOR TRADING PURPOSES THROUGH ITS OWN
CUSTOMARY TRADING CHANNELS), (II) THE COMPANY MAKES NO WARRANTY, REPRESENTATION
OR GUARANTY EITHER FOR ITSELF OR FOR ANY THIRD PARTY VENDORS OR MANUFACTURERS,
AS TO ANY EQUIPMENT (INCLUDING ANY COMPANY EQUIPMENT OR SUBSCRIBER EQUIPMENT);
(III) THE COMPANY MAKES NO WARRANTY, REPRESENTATION OR GUARANTY THAT ANY
SOFTWARE WILL MEET SUBSCRIBER'S REQUIREMENTS OR THAT OPERATION OF ANY SOFTWARE
WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ANY DEFECTS CAN BE CORRECTED AND THE
COMPANY MAKES NO WARRANTY, REPRESENTATION OR GUARANTY, EITHER FOR ITSELF OR FOR
ANY THIRD PARTY PROVIDER OF MAINTENANCE, AS TO ANY MAINTENANCE, FURTHER, EXCEPT
AS OTHERWISE EXPRESSLY SET FORTH IN PARAGRAPH 10(a), ANY AND ALL WARRANTIES,
REPRESENTATIONS AND GUARANTIES, EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED WITH
RESPECT TO THE SERVICE, THE EQUIPMENT (INCLUDING ANY COMPANY EQUIPMENT AND
SUBSCRIBER EQUIPMENT), ANY SOFTWARE AND ANY MAINTENANCE, INCLUDING WITHOUT
LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE,
WHICH ARE HEREBY EXPRESSLY DISCLAIMED. No employee, salesperson, vendor or other
agent or purported agent of the Company is authorized to make any warranties,
representations or guaranties to the contrary of the foregoing, and any such
proported warranties, representations or guaranties shall not be relied upon as
having been given by or on behalf of the Company.
11. LIABILITIES LIMITED.
(a) Sole Remedies. Except as permitted by Paragraph 11(b), Subscriber's
sole and exclusive remedies against the Company, any Information Provider or any
other third party provider of equipment, software or services for the Company __
with respect to the Service and any quotations, market information and any other
information and data and any errors, inaccuracy, omissions or delay therein or
thereof, shall be limited to issuing corrected information as soon as reasonably
practicable following the Company's receipt of written notice of such problem
from Subscriber in accordance with the Company's reporting procedures, (ii) with
respect to the Equipment, shall be limited to providing Maintenance in
accordance with Paragraph 6(a), and (iii) with respect to any Software, shall be
limited to providing Maintenance in accordance with Paragraph 6(c) and using
reasonable efforts to correct any interruptions, errors or other problems with
the software.
(b) Damages Limited. If the Company fails to provide the remedies in
Paragraph 11(a) or if the Company otherwise fails to perform its duties and
obligations under this Agreement and Subscriber can establish that as a direct
result thereof Subscriber has incurred any damages, liabilities, losses, fees,
costs or expenses, then the Company's liability to Subscriber for actual damages
for any cause whatsoever regardless of the form of action, whether in contract,
tort including negligence, strict liability or otherwise, shall not exceed in
the aggregate the lesser of (i) one month's total monthly fees as set forth in
Section 1, or as then in effect or (ii) $1,000 FURTHER, IN NO EVENT SHALL THE
COMPANY, ANY INFORMATION PROVIDER OR ANY OTHER THIRD PARTY PROVIDER OF
EQUIPMENT, SOFTWARE OR SERVICES FOR THE COMPANY BE LIABLE FOR ANY LOSS OF PROFIT
OR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL
DAMAGES SUSTAINED OR INCURRED IN CONNECTION WITH THE SERVICE, THE EQUIPMENT, ANY
SOFTWARE AND ANY MAINTENANCE PROVIDED OR PERFORMED OR TO BE PROVIDED OR
PERFORMED UNDER THIS AGREEMENT OR OTHERWISE ARISING UNDER THIS AGREEMENT,
REGARDLESS OF THE FORM OF THE ACTION AND WHETHER SUCH DAMAGES WERE FORESEEN OR
UNFORESEEN AND EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
(c) Commercial Transactions. The parties acknowledge that this Agreement
has been entered into as a commercial transaction and, further, that since any
proof of actual damages to Subscriber would be very difficult, imprecise and
inaccurate, the foregoing remedies and limitations on damages constitute fair,
reasonable and adequate remedies and limitations of any damages for any losses
that may be incurred by Subscriber.
12. INDEMNITY; SURVIVAL. Subscriber hereby indemnifies and agrees to defend and
hold harmless the Company, any Information Provider and any other third party
provider of equipment software or services for the Company from and against any
and all demands, claims, actions, proceedings, damages, liabilities, losses,
fees, costs or expenses "including without limitation reasonable attorneys fees
and the costs of any investigation) directly or indirectly arising from or in
any way connected with (i) use of or reliance on the Service, any Software or
any quotations, market information or other information or data supplied or to
be supplied to Subscriber under this Agreement (ii) any breach of or default
under the terms or conditions of this Agreement by Subscriber, (iii) the use or
possession of any Equipment by Subscriber or any third parties, (iv) any removal
of Company Equipment by the Company as permitted by this Agreement and (v) any
negligence, gross negligence or willful misconduct by or on behalf of Subscriber
or its employees or agents. Paragraphs 8, 10, 11 and 12 shall survive
termination of this Agreement for any reason.
13. AUTOMATIC RENEWAL. UNLESS EITHER PARTY GIVES THE OTHER PARTY WRITTEN NOTICE
OF TERMINATION AT LEAST 30 DAYS PRIOR TO THE EXPIRATION OF THE INITIAL TERM OR
ANY RENEWAL TERM THAN UPON EXPIRATION OF THE THEN EFFECTIVE TERM THIS AGREEMENT
SHALL AUTOMATICALLY RENEW FOR AN ADDITIONAL SUCCESSIVE TERM OF 12 MONTHS. In
addition to the changes permitted at any time by Paragraph 1, the Company may
modify or change the terms and conditions of this Agreement (including without
limitation any monthly fees) at any time after the initial term of this
Agreement by giving Subscriber at least 60 days notice of such modifications or
changes; provided, however if Subscriber does not agree to any such change,
Subscriber may terminate this Agreement by giving written
notice to the Company 30 days prior to the effective date of the change and this
Agreement shall terminate on such effective date unless the change is withdrawn
by the Company.
14. DEFAULT; TERMINATION. The occurrence of any of the following shall
constitute a default by Subscriber under this Agreement (i) Subscriber's failure
to pay any sum of money due hereunder, (ii) Subscriber's failure to fully
perform any of its other duties and obligation under this Agreement within 7
days after notice thereof is given by the Company, (iii) if Subscriber shall
become insolvent, commit any act of bankruptcy or become the subject of any
proceeding under bankruptcy or other similar laws for the protection of
creditors or (iv) any substantial part of Subscriber's assets becomes subject to
any levy, seizure, assignment or sale for the benefit of or by any creditor or
government agency. Upon the occurrences of any of the foregoing defaults by
Subscriber, the Company shall, in addition to all other rights available under
applicable law, have the right (then or any time thereafter during the
continuance of such default), at its sole option, to do all or any of the
following upon giving notice to Subscriber: (1) immediately terminate this
Agreement and as duties and obligation of the Company hereunder, (2) declare all
amounts due and thereafter to become due under this Agreement to be immediately
due and payable in full, (3) discontinue all Service to Subscriber and any
Maintenance, (4) take possession of or remove any Company Equipment and any
Software (and all copies thereof), wherever situated, and for such purpose to
enter upon premises without liability, (5) disconnect all power and data lines
and (6) sell, dispose of, hold, use or lease any or all of the Company Equipment
and any Software Subscriber shall pay and reimburse the Company for any and all
fees, costs and expenses (including without limitation reasonable attorney's
fees) incurred in connection with exercising any of the foregoing rights and the
collection of all amounts due hereunder.
38
15. MISCELLANEOUS.
(a) Assignment. Neither this Agreement nor any rights or duties hereunder
may be assigned, delegated, subleased or otherwise transferred by Subscriber.
This Agreement shall be binding upon and inure to the benefit of the parties and
respective successors and permitted assigns.
(b) Notice. Except for notices given because of Subscriber's failure to pay
any sum of money due hereunder (which notice may be oral) all notices or other
communications required to be given hereunder shall be in writing and shall be
mailed by first class mail or by telefacsimile or overnight delivery service or
personally delivered to the Company at its address set forth on page 1 and to
Subscriber at the billing address set forth on page 1, or to such other address
as may be hereafter designated by one party to the other in writing. Unless
otherwise provided herein, all notices shall be effective the earlier of three
days from the date of mailing or upon receipt.
(c) Severability. If any one or more of the provisions of this Agreement
shall be held to be invalid, illegal or unenforceable for any reason, then the
validity, legality or enforceability of the remaining provisions of this
Agreement shall not be affected thereby. To the extent permitted by applicable
law, the parties waive any provisions of law that renders any provision of this
Agreement invalid, illegal or unenforceable in any respect.
(d) Force Majeure. Due performance of any duty or obligation hereunder by
the Company shall be excused if prevented by acts of God, third party providers
of information, data or services, public enemy, fire or other casualty, labor
dispute or any other circumstance beyond the Company's reasonable control.
(e) Waiver or Consent. Any failure by either of the parties to comply with
any obligation, covenant, condition or agreement contained herein may be waived
in writing by the party entitled to the benefits thereat, but such waiver or
failure to insist on strict compliance with such obligation, covenant, condition
or agreement shall not operate as a waiver of or estoppel with respect to any
subsequent or other failure. Any consents to be effective must be in writing and
signed by an authorized representative of the party granting such consent.
(f) Remedies Cumulative. Unless otherwise provided herein, all remedies
contained herein are cumulative and are in addition to all other rights and
remedies available under this Agreement, by law, in equity or by statute.
(g) Amendments. This Agreement may be amended only by a written instrument
signed by authorized representatives of each of the parties. This Agreement
constitutes the entire understanding of the parties with respect of the subject
matter hereof and supersedes and replaces all prior writings or oral
negotiations or other understandings with respect thereto.
(h) Headings, References. All headings of this Agreement are solely for
convenience of references and shall not affect its interpretation. References to
"Sections" shall be references to the Subscription Schedule on page 1 of this
Agreement and references to "Paragraphs" shall be references to these Standard
Terms and Conditions.
(i) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Kansas, without regard to its
principles of conflicts of laws.
39
Exhibit G
Source's Service Agreement and Worldwide Price Lists
See Attached
40
XxXxxxxx, Xxxxxxxx & Xxxxxx, Inc. ("MCM")
Subscription for Electronic Information Services
This Subscription Agreement (the "Agreement") made this _______ day of
_______________, 19___, (the "Effective Date") by and between XxXxxxxx, Xxxxxxxx
& Xxxxxx, Inc. (hereinafter ("MCM"), a New York corporation having offices at 00
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000 and _______________, a _______________
(hereinafter "Customer").
1. Services
Customer subscribes to, and MCM agrees to provide, the services set out
on the attached Supplement(s), Number(s) _______________ each, a "Service," (and
collectively, "Services") upon the terms and conditions set out below.
2. Term of Subscription; Fee
The initial subscription term for each Service shall be as set forth on
Supplement (the "Initial Term") attached hereto and made part hereof. For the
Services provided by MCM, Customer agrees to pay MCM the subscription fees
indicated on the relevant Supplement. Fees charged upon the renewal of any
subscription shall be those set forth on MCM's then current price lists. All
subscription fees shall be paid (monthly) [quarterly] in advance on the
commencement of the subscription term and thereafter on the first calendar
[month] [quarter]. Customer shall also pay in addition to any subscription fee,
any tax, however characterized, arising out of this subscription other than
taxes based on the net income of MCM.
3. Renewal
The subscription term for each Service shall be automatically renewed
for a term equal in length to the Initial Term unless either party gives the
other not less than sixty (60) days written notice of its intention not to renew
a particular Service prior to the end of the initial or any renewal of that
Service. Further, any renewal term shall be governed by the terms and conditions
of this Agreement, except for price, which shall be determined from MCM's then
current price list.
4. Use of Information
Services are for the sole use of Customer. Customer will not, without
MCM's prior written consent, cause or permit the Services or any information
including, without limitation reports, analyses, data, documentation made known,
sent or otherwise transmitted by MCM under this Agreement or any Service in
whole or in
2
41
part to be stored, modified, duplicated, reproduced or retransmitted in any form
either to third parties or to affiliated companies or branch offices of the
Customer except as otherwise permitted herein. If Customer makes use of any
information for which MCM has given its prior written approval, Customer shall
credit MCM as the source of such information. Customer acknowledges that all
such materials are and shall remain, the sole property of MCM, and that MCM is
the sole owner of all copyright and other commercial property rights therein.
Customer agrees not to create any derivative works (including data bases) based
on the Service(s) or the information contained therein. Customer will not use or
permit the use of the information contained in the Service for any illegal
purpose. MCM reserves to itself complete editorial freedom in the form and
content of the Service(s) and may alter the same from time to time.
5. Termination
(a) In addition to any other remedy available at law or in equity,
MCM may terminate this Agreement immediately, in whole or in
part, without further obligation to Customer in the event of:
(i) any breach by the Customer of Paragraph 4 or a breach
of the Customer's obligation to pay the subscription
fee as specified in this Agreement and Supplement(s)
hereto;
(ii) any other breach of this Agreement by the Customer
which cannot be remedied or is not remedied within
thirty (30) days of the Customer being requested to
do so;
(iii) any merger, consolidation, acquisition, or the sale,
lease or other transfer of all or substantially all
of the assets or shares of sock of the Customer, or
any other change in the control or ownership of the
Customer;
(iv) the Customer's making an assignment for the benefit
of its creditors or filing a voluntary petition under
any bankruptcy or insolvency law, under the
reorganization or arrangement provisions of the
United States Bankruptcy Code, or under the
provisions of any law of like import;
(v) the filing of an involuntary petition against the
Customer under any bankruptcy or insolvency law,
under the reorganization or arrangement provisions of
the United States Bankruptcy Code, or under any law
of like import; or
3
42
\ (vi) the appointment of a trustee or receiver for the
Customer or its property.
(b) Where the operation or delivery of the Service(s) or any part
thereof is dependent upon an agreement between MCM and a third
party and such agreement has expired or is terminated or
suspended in whole or in part for any reason, and MCM is
unable to enter into another equivalent agreement upon
reasonable terms. MCM may immediately terminate this Agreement
or the relevant part thereof, and upon termination MCM's only
obligation to the Customer will be to refund the proportionate
part of the subscription fee already paid for the portion of
the Service(s) not received by virtue of said termination.
(c) Without limitation of any other remedy available at law or in
equity, the Customer and MCM hereby agree that upon the
Customer's (i) breach of this Agreement, or (ii) terminating
this Agreement (except as permitted hereunder), MCM will be
entitled to recover from the Customer all subscription fees
due and payable at the time of termination.
(d) Customer agrees, in the event of a breach by it of any of its
obligations under this Agreement, MCM may seek temporary or
permanent injunctive relief, without the necessity of proving
actual damages or the posting of a bond, as well as other
equitable relief.
6. Disclaimer of Warranties and Liability
(a) MCM AND ITS AFFILIATES MAKE NO REPRESENTATION OR WARRANTY,
EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES,
INCLUDING, WITHOUT LIMITATION THE IMPLIED WARRANTIES OF
FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY, AND EACH
SPECIFICALLY DISCLAIMS ANY SUCH WARRANTY. MCM AND ITS
AFFILIATES EACH SPECIFICALLY DISCLAIM ANY KNOWLEDGE OF ANY
PURPOSE FOR WHICH THE SERVICES SHALL BE USED BY CUSTOMER.
MATERIAL SUPPLIED BY MCM IN THE SERVICES CONSTITUTES OPINION
AND NOT FACT. Such material supplied in the Services is based
upon information obtained by MCM from a number of sources and
MCM may be unable to verify the accuracy of that information.
Accordingly, neither MCM nor its affiliates shall be liable to
Customer for: (1) any faults in the delivery, transmission or
content of the Services, or for contingencies beyond their
control, in producing, supplying, or compiling,
transpositioning or delivering the Services; (2) any errors,
omissions, or inaccuracies in the information or analyses
4
43
contained in the Services or delays or interruptions in
delivery of a Service for any reason: (3) any decision made or
action taken by Customer in reliance upon the information or
analyses contained in the Services; (4) loss of business
revenues, loss profits, or any indirect, consequential,
special or incidental damages arising from any subscription,
including any claims related to the timeliness of deliveries
of the Services or the quality or accuracy of information upon
which a Service is based, whether in contract, tort or
otherwise, even if advised of the possibility of such damages;
(5) any claim that arose more than one (1) year prior to the
institution of suit therefor; or (6) any claim arising from
causes beyond MCM's reasonable control including, but not
limited to, Customers selection and use of its own computer
hardware system. CUSTOMER AGREES THAT MCM'S MAXIMUM LIABILITY
FOR ANY AND ALL CAUSES SHALL NOT EXCEED, IN THE AGGREGATE, THE
AMOUNT PAID BY CUSTOMER FOR THE SERVICES DURING THE FIRST
INITIAL TERM OF THIS AGREEMENT TO EXPIRE.
(b) Customer will indemnify and hold MCM and its affiliates and
its and their employees, agents, contractors and
subcontractors harmless from and against any loss, cost or
damage (including reasonable attorneys fees) in connection
with any claim or action which may be brought by any third
party, arising out of:
(i) any faults, interruptions or delays in the delivery
of the Services to Customer or in the placing of
inhibits (if applicable), or for any inaccuracies,
errors or omissions in the information contained in
the Services as supplied or contributed by the
Customer, however such faults, interruptions, delays,
inaccuracies, errors or omissions arise;
(ii) the furnishing, performance, maintenance, or use of,
or inability to use the Service and any other
materials furnished to Customer by or on behalf of
MCM notwithstanding that MCM has been advised of the
possibility that such loss, or damage may or will
arise.
7. Assignment
Neither party shall assign this Agreement without the prior written
consent of the other.
5
44
8. Securities Laws
Notwithstanding any other provision of this Agreement, nothing in this
Agreement shall be deemed to limit any responsibility or liability MCM may have
under applicable securities laws.
9. Force Majeure
Neither MCM nor Customer shall be responsible for delays or failures in
performance resulting from acts beyond the control of such party. Such acts
shall include but not be limited to acts of God, strikes, lockouts, riots, acts
of war, epidemics, governmental regulations superimposed after the fact, fire,
communication line failures, power failures, earthquakes or other disasters.
10. Disclosure
Pursuant to the provisions of the Investment Advisers Act of 1940, MCM
offers to supply Customer with Part II of the Form ADV upon written request of
Customer.
11. Severability
In the event that any court having competent jurisdiction shall
determine that one or more of the provisions contained in this Agreement shall
be unenforceable in any respect, then such provision shall be deemed limited and
restricted to the extent that such court shall deem it to be enforceable, and so
limited or restricted shall remain in full force and effect. In the event that
such provision or provisions shall be deemed wholly unenforceable, the remaining
provisions shall remain in full force and effect.
12. General
(a) This Agreement and any and all Supplements annexed hereto
represent the entire agreement of the parties. There are no
other oral or written collateral representations, agreements,
or understandings. In the event that the Customer issues a
purchase order or other instrument related to the Service(s),
it is understood and agreed that such document is for the
Customer's internal purposes only and will in no way
supersede, modify, add to or delete any of the terms and
conditions of this Agreement.
(b) All notices given hereunder will be in writing, delivered
personally or mailed by registered or certified mail, return
receipt requested, postage prepaid to the parties at the
address specified in this Agreement unless
6
45
either party gives notice in writing of a change of such
address in the manner provided herein for giving notice. All
notices will be deemed given when delivered personally, or if
mailed, five (5) days after the date of mailing.
(c) This Agreement will be deemed to have been executed and
delivered in the State of New York and it will be governed by
and construed in accordance with the laws of New York. The
parties hereby consent to the jurisdiction of the courts of
the State of New York for the purpose of any action or
proceeding brought by either of them on or in connection with
this Agreement or any alleged breach thereof.
(d) This Agreement will be binding upon and inure to the benefit
of the parties hereto, their respective heirs, personal
representatives, successors and assigns.
(e) This Agreement may not be amended, modified or superseded, nor
may any of its terms or conditions be waived unless expressly
agreed to in writing by both parties. The failure of either
party at any time or times to require full performance of any
provision hereof will in no manner affect the right of such
party at a later time to enforce the same.
(f) The section headings of the several clauses and paragraphs of
this Agreement are inserted for convenience of reference only
and will not affect the meaning or interpretation of this
Agreement.
(g) The Customer hereby waives personal service of any and all
process upon the Customer and consents that service of process
may be made by certified or registered mail at the Customer's
address set forth herein.
(h) If the Customer is a corporation, the Customer has the
corporate power to enter into this Agreement and to carry out
its obligations hereunder. The persons executing this
Agreement on behalf of the Customer hereby represent and
warrant that they have been duly authorized to execute this
Agreement for and on behalf of the Customer. This Agreement
constitutes the valid and binding obligation of the Customer
and is enforceable in accordance with its terms.
(i) The provisions of Section 4 hereof, and any and all
disclaimers and indemnities contained herein or in any
Supplements annexed hereto will survive the termination of
this Agreement.
7
46
IN WITNESS WHEREOF, the parties or their duly authorized representative
have hereunto set their hands on the day and year first above written.
XxXXXXXX, XXXXXXXX & XXXXXX, INC.
By:__________________________________________
Title:_______________________________________
Date:________________________________________
CUSTOMER:
By:__________________________________________
Title:_______________________________________
Date:________________________________________
8
47
Number_______________
Term__________________
Supplement to
XxXxxxxx, Xxxxxxxx & Xxxxxx, Inc.
Subscription for Electronic Information Services
This Supplement between XxXxxxxx, Xxxxxxxx & Xxxxxx, Inc. (MCM) and the Customer
(as set forth on the Subscription for Electronic Information Services) represent
those Services subscribed to by the Customer and to be provided by MCM, subject
to the terms and conditions set forth in the Subscription Agreement.
Dated _______________________
Services Fee [Monthly] [Quarterly]
Total:
Additional Locations/Departments:
XxXXXXXX, XXXXXXXX & XXXXXX, INC.
By:____________________________________________
Title:_________________________________________
Date:__________________________________________
CUSTOMER:
By:____________________________________________
Title:_________________________________________
Date:__________________________________________
48
MCM ELECTRONIC INFORMATION SERVICES
GERMANY/AUSTRIA (DM)
STANDARD SCREEN FEES
CORPORATEWATCH 450/month
CURRENCYWATCH 450/month
MONEYWATCH 450/month
YIELDWATCH 450/month
-------------------------------------------------------------------------------
MCM SWITCHING SYSTEM AND
DIGITAL FEED PRICING
* MINIMUM SITE FEES
CORPORATEWATCH 1800/month
CURRENCYWATCH 1800/month
MONEYWATCH 1800/month
YIELDWATCH 1800/month
Discounts may apply when customer uses multiple services.
* Site fees may vary based on system configuration or actual user counts.
(1993)
49
MCM ELECTRONIC INFORMATION SERVICES
SWITZERLAND (SFR)
STANDARD SCREEN FEES
CORPORATEWATCH 500/month
CURRENCYWATCH 500/month
MONEYWATCH 500/month
YIELDWATCH 500/month
-------------------------------------------------------------------------------
MCM SWITCHING SYSTEM AND
DIGITAL FEED PRICING
* MINIMUM SITE FEES
CORPORATEWATCH 2000/month
CURRENCYWATCH 2000/month
MONEYWATCH 2000/month
YIELDWATCH 2000/month
Discounts may apply when customer uses multiple services.
* Site fees may vary based on system configuration or actual user counts.
(1993)
50
MCM ELECTRONIC INFORMATION SERVICES
DENMARK (DKK)
STANDARD SCREEN FEES
CORPORATEWATCH 2400/month
CURRENCYWATCH 1600/month
MONEYWATCH 1600/month
YIELDWATCH 1600/month
-------------------------------------------------------------------------------
MCM SWITCHING SYSTEM AND
DIGITAL FEED PRICING
* MINIMUM SITE FEES
CORPORATEWATCH 11900/month
CURRENCYWATCH 9500/month
MONEYWATCH 9500/month
YIELDWATCH 9500/month
Discounts may apply when customer uses multiple services.
* Site fees may vary based on system configuration or actual user counts.
(1993)
51
MCM ELECTRONIC INFORMATION SERVICES
FINLAND (FIM)
STANDARD SCREEN FEES
CORPORATEWATCH 1025/month
CURRENCYWATCH 1025/month
MONEYWATCH 1025/month
YIELDWATCH 1025/month
-------------------------------------------------------------------------------
MCM SWITCHING SYSTEM AND
DIGITAL FEED PRICING
* MINIMUM SITE FEES
CORPORATEWATCH 6200/month
CURRENCYWATCH 6200/month
MONEYWATCH 6200/month
YIELDWATCH 6200/month
Discounts may apply when customer uses multiple services.
* Site fees may vary based on system configuration or actual user counts.
(1993)
52
MCM ELECTRONIC INFORMATION SERVICES
NORWAY (NOK)
STANDARD SCREEN FEES
CORPORATEWATCH 1600/month
CURRENCYWATCH 1600/month
MONEYWATCH 1600/month
YIELDWATCH 1600/month
-------------------------------------------------------------------------------
MCM SWITCHING SYSTEM AND
DIGITAL FEED PRICING
* MINIMUM SITE FEES
CORPORATEWATCH 9500/month
CURRENCYWATCH 9500/month
MONEYWATCH 9500/month
YIELDWATCH 9500/month
Discounts may apply when customer uses multiple services.
* Site fees may vary based on system configuration or actual user counts.
(1993)
53
MCM ELECTRONIC INFORMATION SERVICES
SWEDEN (SEK)
STANDARD SCREEN FEES
CORPORATEWATCH 1600/month
CURRENCYWATCH 1600/month
MONEYWATCH 1600/month
YIELDWATCH 1600/month
-------------------------------------------------------------------------------
MCM SWITCHING SYSTEM AND
DIGITAL FEED PRICING
* MINIMUM SITE FEES
CORPORATEWATCH 9450/month
CURRENCYWATCH 9450/month
MONEYWATCH 9450/month
YIELDWATCH 9450/month
Discounts may apply when customer uses multiple services.
* Site fees may vary based on system configuration or actual user counts.
(1993)
54
MCM ELECTRONIC INFORMATION SERVICES
SPAIN (PTA)
STANDARD SCREEN FEES
CORPORATEWATCH 30,000/month
CURRENCYWATCH 30,000/month
MONEYWATCH 30,000/month
YIELDWATCH 30,000/month
-------------------------------------------------------------------------------
MCM SWITCHING SYSTEM AND
DIGITAL FEED PRICING
* MINIMUM SITE FEES
CORPORATEWATCH 135,000/month
CURRENCYWATCH 135,000/month
MONEYWATCH 135,000/month
YIELDWATCH 135,000/month
Discounts may apply when customer uses multiple services.
* Site fees may vary based on system configuration or actual user counts.
(1993)
55
MCM ELECTRONIC INFORMATION SERVICES
ITALY (ITL)
STANDARD SCREEN FEES
CORPORATEWATCH 325,000/month
CURRENCYWATCH 325,000/month
MONEYWATCH 325,000/month
YIELDWATCH 325,000/month
-------------------------------------------------------------------------------
MCM SWITCHING SYSTEM AND
DIGITAL FEED PRICING
* MINIMUM SITE FEES
CORPORATEWATCH 1,500,000/month
CURRENCYWATCH 1,500,000/month
MONEYWATCH 1,500,000/month
YIELDWATCH 1,500,000/month
Discounts may apply when customer uses multiple services.
* Site fees may vary based on system configuration or actual user counts.
(1993)
56
MCM ELECTRONIC INFORMATION SERVICES
FRANCE (FRF)
STANDARD SCREEN FEES
CORPORATEWATCH 2,200/month
CURRENCYWATCH 2,200/month
MONEYWATCH 2,200/month
YIELDWATCH 2,200/month
-------------------------------------------------------------------------------
MCM SWITCHING SYSTEM AND
DIGITAL FEED PRICING
* MINIMUM SITE FEES
CORPORATEWATCH 8,000/month
CURRENCYWATCH 8,000/month
MONEYWATCH 8,000/month
YIELDWATCH 8,000/month
Discounts may apply when customer uses multiple services.
* Site fees may vary based on system configuration or actual user counts.
(1993)
57
MCM ELECTRONIC INFORMATION SERVICES
PRICING FOR AUSTRALIA (AUD A$)
STANDARD SCREEN FEES
CORPORATEWATCH A$ 425/month
CURRENCYWATCH A$ 300/month
MONEYWATCH A$ 300/month
YIELDWATCH A$ 300/month
-------------------------------------------------------------------------------
MCM SWITCHING SYSTEM AND
DIGITAL FEED PRICING
* MINIMUM SITE FEES
CORPORATEWATCH A$ 1300/month
CURRENCYWATCH A$ 680/month
MONEYWATCH A$ 780/month
YIELDWATCH A$ 680/month
Discounts may apply when customer uses multiple services.
* Site fees may vary based on system configuration or actual user counts.
(1993)
58
MCM ELECTRONIC INFORMATION SERVICES
CONTINENTAL EUROPE/GULF REGION PRICING (US $)
STANDARD SCREEN FEES
CORPORATEWATCH $ 375/month
CURRENCYWATCH $ 275/month
MONEYWATCH $ 275/month
YIELDWATCH $ 275/month
-------------------------------------------------------------------------------
MCM SWITCHING SYSTEM AND
DIGITAL FEED PRICING
* MINIMUM SITE FEES
CORPORATEWATCH $1875/month
CURRENCYWATCH $1500/month
MONEYWATCH $1500/month
YIELDWATCH $1500/month
Discounts may apply when customer uses multiple services.
* Site fees may vary based on system configuration or actual user counts.
(1993)
59
MCM ELECTRONIC INFORMATION SERVICES
AMERICAS REGION PRICING (US $)
STANDARD SCREEN FEES
** CORPORATEWATCH(R) $ 450/montH
CURRENCYWATCH(R) $ 300/montH
MONEYWATCH(R) $ 250/month
YIELDWATCH(R) $ 200/month
-------------------------------------------------------------------------------
MCM SWITCHING SYSTEM AND
DIGITAL FEED PRICING
* MINIMUM SITE FEES
** CORPORATEWATCH(R) $3000/montH
CURRENCYWATCH(R) $1750/montH
MONEYWATCH(R) $1500/month
YIELDWATCH(R) $1000/month
Discounts may apply when customer uses multiple services.
* Site fees may vary based on system configuration or actual user counts.
** Includes MCM's Private Placement "Market Talk."
(1993)
60
MCM ELECTRONIC INFORMATION SERVICES
PRICING FOR JAPAN (JPY Y)
STANDARD SCREEN FEES
CORPORATEWATCH Y55,000/month
CURRENCYWATCH Y40,000/month
MONEYWATCH Y40,000/month
YIELDWATCH Y40,000/month
-------------------------------------------------------------------------------
MCM SWITCHING SYSTEM AND
DIGITAL FEED PRICING
* MINIMUM SITE FEES
CORPORATEWATCH Y250,000/month
CURRENCYWATCH Y250,000/month
MONEYWATCH Y250,000/month
YIELDWATCH Y250,000/month
Discounts may apply when customer uses multiple services.
* Site fees may vary based on system configuration or actual user counts.
(1993)
61
MCM ELECTRONIC INFORMATION SERVICES
UNITED KINGDOM PRICING (US $)
STANDARD SCREEN FEES
CORPORATEWATCH $ 375/month
CURRENCYWATCH $ 275/month
MONEYWATCH $ 275/month
YIELDWATCH $ 275/month
-------------------------------------------------------------------------------
MCM SWITCHING SYSTEM AND
DIGITAL FEED PRICING
* MINIMUM SITE FEES
CORPORATEWATCH $1875/month
CURRENCYWATCH $1500/month
MONEYWATCH $1500/month
YIELDWATCH $1500/month
Discounts may apply when customer uses multiple services.
* Site fees may vary based on system configuration or actual user counts.
(1993)
62
MCM ELECTRONIC INFORMATION SERVICES
ASIA PACIFIC REGION PRICING (EXCLUDING JAPAN) (US $)
STANDARD SCREEN FEES
CORPORATEWATCH $ 325/month
CURRENCYWATCH $ 250/month
MONEYWATCH $ 230/month
YIELDWATCH $ 230/month
-------------------------------------------------------------------------------
MCM SWITCHING SYSTEM AND
DIGITAL FEED PRICING
* MINIMUM SITE FEES
CORPORATEWATCH $1000/month
CURRENCYWATCH $ 900/month
MONEYWATCH $ 800/month
YIELDWATCH $ 800/month
Discounts may apply when customer uses multiple services.
* Site fees may vary based on system configuration or actual user counts.
(1993)
63
INSTRUCTIONS: Please sign, initial and return all copies.
IMPORTANT: Please read Standard Terms and Conditions on pages 2 and 3.
XXXXXX-XXXXXX BUSINESS ACCOUNT NO.________________________
INFORMATION SERVICES New //
Renewal //
-------------------------------------------------------------------------------
SERVICES AGREEMENT
-------------------------------------------------------------------------------
Check applicable division:
// XXXXXX-XXXXXX FINANCIAL IN
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000)000-0000
// COMMODITY NEWS SERVICES
Xxxx Xxxxxx Xxx 0000
Xxxxxxx, XX 00000
Telephone: (000)000-0000
Subscriber______________________________________________________________
Installation Address_____________________________________________________
City__________________________________________State_______Zip___________
User/Contact Name__________________________________Phone#____________
Communications/Contact Name_______________________Phone#____________
Billing Address_________________________________________________________
City___________________________________________State_______Zip__________
Contact Name________________________________________Phone#____________
-------------------------------------------------------------------------------
THIS AGREEMENT (the "Agreement") is by and between Commodity News Services,
Inc., acting through its division(s) designated above (the "Company"), and the
customer designated above ("Subscriber").
SUBSCRIPTION SCHEDULE
The Company agrees to provide the Basic Services, Optional Services and
Equipment set forth below to Subscriber on the terms and conditions set forth in
this Agreement.
SECTION A. BASIC SERVICES
Quantity Description Monthly Fee
------------------------------ $----------
------------------------------ $----------
------------------------------ $----------
------------------------------ $----------
------------------------------ $----------
------------------------------ $----------
TOTAL BASIC SERVICES FEE...........................................$__________
SECTION B. OPTIONAL SERVICES
Quantity Description Monthly Fee
------------------------------ $----------
------------------------------ $----------
------------------------------ $----------
------------------------------ $----------
------------------------------ $----------
------------------------------ $----------
TOTAL OPTIONAL SERVICES FEE........................................$__________
SECTION C. EQUIPMENT
Quantity Equipment Monthly Fee
// Provided by the Company
------------------------------ $----------
------------------------------ $----------
------------------------------ $----------
------------------------------ $----------
------------------------------ $----------
TOTAL EQUIPMENT FEES................................................$__________
// Provided by the Subscriber
SECTION D. ESTIMATED EXCHANGE FEES
Exchange Monthly Fee
Chicago Board of Trade...............................................$_________
Chicago Mercantile Exchange..........................................$_________
Commodity Exchange Center, Inc.......................................$_________
Kansas City Board of Trade...........................................$_________
London Futures and Options Exchange..................................$_________
London Int'l Financial Futures Exchange..............................$_________
London Metal Exchange................................................$_________
Minneapolis Grain Exchange...........................................$_________
__________________________...........................................$_________
__________________________...........................................$_________
__________________________...........................................$_________
TOTAL ESTIMATED EXCHANGE FEES
BILLED BY COMPANY....................................................$_________
Billed directly by Exchange: American Stock Exchange,
Canadian Exchange Group Data, NASDAQ, New York
Stock Exchange, OPRA _______________________________
64
SECTION E. MONTHLY LINE CHARGES.....................................$__________
SECTION F. INSTALLATION/SECURITY DEPOSIT CHARGES
Subscriber shall pay the following one-time
standard installation charge and security
deposit charge concurrently with Subscriber's
signing of this
Agreement.
Standard Installation Charge.........................................$__________
Security Deposit.....................................................$__________
TOTAL INSTALLATION/SECURITY
DEPOSIT CHARGES......................................................$__________
SECTION G. TOTAL MONTHLY FEES/INITIAL CHARGES
(1) Total Monthly Fees
Section A. Basic Services.....................................$__________
Section B. Optional Services..................................$__________
Section C. (1) Equipment Provided By
Company..........................................$__________
Section D. Exchange Fees Billed By
Company.........................................$__________
Section E. Line Charges.......................................$__________
TOTAL MONTHLY FEES...................................................$__________
(2) Total Initial Charges
Section F. Installation/Security Deposit......................$__________
SECTION H. TERM OF AGREEMENT
The Initial term (the "Initial Term") of
this Agreement shall commence on the date
accepted by the Company and shall continue
for the number of months set forth below
after the installation date, subject to earlier
termination by the Company or automatic renewal
(as provided in Paragraphs 13 & 14 of the
Standard Terms and
Conditions).
NUMBER OF MONTHS.....................................................____ Months
SECTION I. REMOVAL CHARGE
Subscriber shall pay the Company the following removal
charge upon expiration or termination of this Agreement
for any reason.
REMOVAL CHARGE.......................................................$__________
SECTION J. ADDENDA
Check the applicable box below if any of the
following Addenda are applicable to this Agreement.
// Redistribution Addendum
// Multiple Location Addendum
SECTION K. ADDITIONAL TERMS
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
The undersigned acknowledge and agree that, in addition to the Subscription
Schedule above, THIS AGREEMENT INCLUDES THE STANDARD TERMS AND CONDITIONS SET
FORTH ON PAGES 2 AND 3 ATTACHED, ALL OF WHICH ARE APPLICABLE TO THIS AGREEMENT
AND BY THIS REFERENCE ARE INCORPORATED HEREIN AND MADE A PART HEREOF.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed below
by their respective authorized representatives, and this Agreement shall be
effective as of the date of, and shall be binding on the parties only upon,
acceptance on behalf of the Company.
Commodity News Services, Inc.
By:___________________________________________________
Name:_____________________________________________
Title: ______________Date of Acceptance__________
______________________________________________________
(Name of Subscriber)
By:___________________________________________________
Name:_____________________________________________
Title: ________________________Date:______________
(Initials of Subscriber's authorized representative
acknowledging receipt and review of the Standard
Terms and Conditions
