EXHIBIT 10.12
CONFIDENTIAL TREATMENT HAS BEEN SOUGHT
FOR PORTIONS OF THIS EXHIBIT PURSUANT TO
RULE 406 UNDER THE SECURITIES EXCHANGE
ACT OF 1933, AS AMENDED
AGREEMENT FOR ELECTRONIC DISTRIBUTION SERVICES
THIS AGREEMENT FOR ELECTRONIC DISTRIBUTION SERVICES ("Agreement"), dated as of
June 30, 1998, is between CIBC Wood Gundy Securities, Inc., with offices at BCE
Place, 000 Xxx Xxxxxx, X.X. Xxx 000, Xxxxxxx, Xxxxxxx X0X 0X0 (hereinafter
referred to as the "Company"), and MULTEX SYSTEMS, INC., a Delaware Corporation
with offices at 00 Xxxxxx Xxxx, Xxx Xxxx, XX 00000 (hereinafter referred to as
"Multex").
WHEREAS, The Company and/or its independent branches and subsidiaries,
create, produce and develop various documents including but not limited to
Market Data, Morning Meeting Notes and/or Published Research Reports and other
financial documents.
WHEREAS, The Company desires that its financial documents be distributed
and made available to third parties such as institutional investors, funds and
other "buy side" entities;
WHEREAS, Multex provides research distribution services to institutional
investors, funds, and other "buy" side entities using its proprietary software;
and
WHEREAS, The Company desires that Multex provide document distribution
services, as more fully described in this Agreement, in order to enable the
company to distribute the documents as described above.
NOW THEREFORE, in consideration of the mutual promises and covenants
hereinafter contained, the parties hereto agree as follows:
1. Scope of Services.
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(a) The Company and/or its independent branches and subsidiaries create,
produce and develop various documents including but not limited to Market Data,
Morning Meeting Notes and/or Published Research Reports and other financial
documents covering, among others, the fixed income, equity, foreign and global
financial markets (all such documents being hereinafter collectively referred to
as "Research"). The Company agrees to provide and contribute to Multex the
Research that the Company provides to its other vendors or third party
distributors concurrently with the publication or distribution by the Company of
such Research to any other third party, including another Data Provider (as
defined below). The Company grants to Multex the nonexclusive, royalty free,
worldwide right to receive, obtain, store, market and distribute the Research to
(i) any entity, except as provided in Section 1(c), which has subscribed to and
is receiving research distribution services from Multex (collectively, the
"Subscribers") and/or (ii) third party data providers ("Data Providers") for the
purpose of redistributing the Research to the clients of such Data Providers
("Data Provider Clients"). The
Data Providers may include, but are not limited to, ADP, Bloomberg, Bridge,
Disclosure, Dow Xxxxx and Reuters. Notwithstanding anything herein to the
contrary, Company may at its sole discretion elect not to contribute certain
Research documents to Multex for distribution hereunder ("Excluded Documents"),
provided, however, that the Company will not contribute for distribution said
Excluded Documents to any other vendor (excluding Company's affiliates) or third
party distributor including without limitation any other research or document
distributor. Furthermore, Company may withdraw any Research previously provided
subject to Company withdrawing said Research from any other vendor or third
party distributor including without limitation, any other research or document
distributor (excluding Company affiliates).
(b) Multex agrees to receive the Research from the Company and to
distribute the Research to its Subscribers, the Data Providers and the Data
Provider Clients (collectively, the "Services"). As part of the Services, Multex
grants to the Company a non-exclusive, non-transferable license to use Multex's
proprietary software (the "Multex Software") solely for the purpose of
contributing the Research as provided in Section 1(a) above.
(c) Upon execution of this Agreement, Multex shall provide Company with a
list of its current Subscribers, Data Providers and Data Provider Clients.
Company shall review such list and advise Multex in writing of the entities
listed therein that it desires entitled and those entities it wants de-entitled
so that no Research shall be transmitted to any entity until it is entitled. The
Company may from time to time, but not more often than once in any calendar
month, request in writing a list of the current Subscribers, Data Providers and
Data Provider Clients accessing the Company's Research and Multex will provide
such list within 10 days after its receipt of the Company's written request. The
Company may upon at least 7 days prior written notice request that a Subscriber
or Data Provider be de-entitled from access to its Research, and may upon at
least 30 days prior written notice request that an entity be entitled, either as
a Subscriber of Multex or as a Data Provider Client, for purposes of receiving
the Company's Research. The Company may not request that a Subscriber be de-
entitled unless such Subscriber is also de-entitled from receiving the Research
from all other Data Providers or other third party research distribution vendors
to which the Company provides its Research. Multex shall use its best efforts to
effect such entitlements or de-entitlements within the applicable time frames,
provided that Multex shall not provide the Services to any entity that refuses
to execute, or which is in breach of, a Multex Customer Agreement or similar
agreement with a Data Provider. Multex shall not provide such services to any
Subscriber that refuses to execute, or that executes and then violates either
the Multex Customer Agreement, the Reuters Subscriber Agreement or Data Provider
Agreement.
2. Fees; Costs.
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(a) The Company shall be solely responsible for the costs relating to (i)
the preparation and development of the Research and (ii) the contribution and
delivery of the Research to Multex. Such costs include, but are not limited to,
costs for telecommunication
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lines, telephones, modems, computers, magnetic tape, magnetic tape delivery and
messenger services. This shall not include any equipment necessary for Multex to
receive the documents.
(b) Multex shall be solely responsible for all costs associated with
Multex Software and providing the Services.
3. Term; Termination; Remedies Upon Default.
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(a) The initial term ("Initial Term") of this Agreement shall commence on
the date of this Agreement and continue for a period of twelve (12) months from
the date that the Services are first provided under this Agreement (the
"Commencement Date"). Thereafter, this Agreement shall renew for successive one-
year periods, unless terminated by either party by written notice delivered at
least ninety (90) days prior to the expiration of the Initial Term or any
renewal period. Following the expiration of the Initial Term, the Company may
terminate this Agreement on thirty (30) days notice to Multex.
(b) Either party, by written notice to the other party, may terminate this
Agreement prior to the expiration of the Initial Term or any renewal term upon
the occurrence of an "Event of Default" by the other party. An "Event of
Default" shall mean: (i) the failure by a party to perform or observe any
material term, covenant, agreement or warranty contained in this Agreement
("Material Default") which is not cured within 30 days after written notice
thereof; provided, that if the Material Default cannot reasonably be cured
within 30 days and the defaulting party has commenced performance during such
thirty (30) day period and diligently pursues curing such default, the time for
curing such default shall be extended for such period as may be necessary to
cure the default but in no event more than an additional 30 days; or (ii) either
party ceasing to do business or the filing of a petition in bankruptcy
(voluntary or involuntary) with respect to a party, which in the case of an
involuntary petition, is not vacated within 60 days.
(c) The remedies contained in this Paragraph 3 are cumulative and are in
addition to all other rights and remedies available to either party under this
Agreement and the Exhibits hereto, by operation of law or otherwise.
4. Indemnity.
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(a) Multex shall indemnify and hold the Company harmless from and against
any costs, damages, expenses or liabilities (including reasonable attorney fees)
incurred by the Company as a result of any claim or action brought against the
Company based upon or arising out of any claim that the Company's use of the
Software in accordance with this Agreement infringes any patent, copyright or
proprietary right of any third party, and Multex shall defend or settle, at its
sole expense, any such claim; provided that (i) the Company shall have promptly
notified Multex in writing of such claim; (ii) Multex shall have sole control of
the defense and settlement of such claim; and (iii) the Company shall cooperate
fully with Multex in the defense of such claim. In the event that the Company is
enjoined or otherwise prohibited from using the Software, Multex shall, at its
option, substitute non-infringing, equally functional Software, procure for the
Company the right to continue using the Software, or terminate this Agreement.
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(b) The Company shall indemnify and hold Multex harmless from and against
any costs, damages, expenses or liabilities (including reasonable attorney fees)
incurred by Multex as a result of any claim or action brought against Multex
based upon or arising out of (a) any claim that Multex's use of the Research in
accordance with this agreement infringes any patent, copyright or proprietary
right of any third party; (b) any libelous or slanderous statements contained in
the Research; or (c) a violation of any of the securities laws of the United
States (or any other jurisdiction in which the Services are provided) arising
out of the Research or the furnishing thereof to any party, and Company shall
defend or settle, at its sole expense, any such claim or action; provided that
(i) the Company shall have sole control of the defense and settlement of any
action; and (ii) Multex shall cooperate fully with the Company in the defense of
such action. In the event Multex is enjoined or otherwise prohibited from using
any Research document, Company shall, at its sole expense, procure for Multex
the right to continue using such document or substitute a non-infringing or non-
violating version of such document or remove that particular Research document.
5. Confidential Information.
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(a) "Confidential Information" shall mean the Multex Software and any other
information concerning Multex or the Company which is marked as confidential or
which, under the circumstances, should be treated as confidential.
(b) Each party shall hold the Confidential Information of the other party
in trust and confidence and shall not reproduce, disclose to any person, firm or
enterprise, or use for its own benefit, any such Confidential Information
(except as specifically permitted or contemplated by this Agreement). Each party
shall ensure that its employees and agents are aware of this clause, and shall
by instruction, agreement or otherwise cause such employees and agents to abide
by the terms of this clause.
(c) "Confidential Information" will not include any information that (i) is
already rightfully known to a party at the time it is obtained from the other
party, free from any obligation to keep such information confidential; (ii) is
or becomes publicly known through no wrongful act of either party; (iii) is
rightfully received from a third party without restriction and without breach of
this Agreement; (iv) is independently acquired or developed by a party without
breach of any obligation hereunder; (v) is required to be disclosed pursuant to
law, governmental regulation, or court order; or (iv) is in the public domain.
6. Limitation of Liability.
-----------------------
(a) MULTEX WILL MAKE EVERY REASONABLE EFFORT TO PROVIDE THE SERVICES, IT
BEING ACKNOWLEDGED AND AGREED THAT MULTEX CANNOT AND DOES NOT GUARANTEE THE
CONTENT, ACCURACY, TIMELINESS OR AVAILABILITY OF THE SERVICES OR THE RESEARCH AS
DISPLAYED OR PROVIDED THROUGH THE SERVICES. ACCORDINGLY, EXCEPT FOR MULTEX'S
FRAUD, WILLFUL MISCONDUCT OR GROSS NEGLIGENCE (INCLUDING IF THE DOCUMENTS ARE
ALTERED OR CHANGED AS A RESULT OF FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
THE COMPANY AGREES THAT MULTEX SHALL NOT HAVE ANY LIABILITY OR OBLIGATION TO THE
COMPANY OR ANY
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THIRD PARTY (WHETHER CAUSED DIRECTLY OR INDIRECTLY) RELATING TO OR ARISING OUT
OF (i) THE INTERRUPTION, DELAY OR FAILURE IN THE TRANSMISSION, DELIVERY OR
DISTRIBUTION OF THE SERVICES OR RESEARCH; (ii) THE UNAVAILABILITY OF MULTEX
SOFTWARE OR THE SERVICES; (iii) THE ACCURACY OF THE RESEARCH OR SECURITIES OR
COMMODITIES INFORMATION AND PRICES AS DISPLAYED, CARRIED OR FURNISHED BY OR
THROUGH THE SERVICES; (iv) ERRORS OR OMISSIONS IN CONNECTING, TRANSMITTING,
PROCESSING, DISSEMINATING, DISPLAYING OR DISTRIBUTING THE RESEARCH OR THE
INFORMATION CONTAINED THEREIN; OR (v) THE DISPLAYING OR FURNISHING OF THE
RESEARCH, INCLUDING THE INFORMATION CONTAINED THEREIN. MULTEX'S SOLE LIABILITY
TO COMPANY FOR ANY CLAIMS, NOTWITHSTANDING THE FORM OF SUCH CLAIMS (E.G.,
CONTRACT, NEGLIGENCE OR OTHERWISE), ARISING OUT OF ITEMS (i) THROUGH (iv) ABOVE,
SHALL BE TO USE REASONABLE EFFORTS TO RESUME THE SERVICES AND/OR TO MAKE THE
MULTEX SOFTWARE AVAILABLE TO COMPANY AS PROMPTLY AS REASONABLY PRACTICABLE.
(b) IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY FOR LOST PROFITS,
INDIRECT, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES, OF ANY XXXX ARISING OUT
OF OR ATTRIBUTABLE TO THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF THE
SAME.
(c) Multex agrees that it will not alter any Research in any way without
first obtaining the written consent of the Company. Otherwise, the content,
accuracy and completeness of the Research is the sole responsibility of the
Company. Multex conducts no review whatsoever and exercises no editorial control
over the Research, and accordingly, Multex shall have no liability whatsoever
(whether in contract or tort) for the content, completeness or accuracy of the
Research (including, without limitation, any security or commodity price
information contained in the Research). The foregoing sentence does not apply to
any alterations Multex makes to the Research without the Company's consent.
(d) Except for Multex's liability under Paragraphs 4 and 5, and any
liability arising from Multex's fraud, gross negligence or willful misconduct,
or breach of Multex's confidentiality obligation hereunder, Multex's maximum
liability hereunder for any cause, not exculpated hereunder, whether in tort or
contract, shall not exceed the lesser of (i) actual damages or (ii) $25,000.
(e) As used in this paragraph, the term "Multex" or Multex Software shall
include each third party who provides Multex with any portion of the Services.
Such third party shall not have any direct or indirect liability to Company for
monetary damage on account of the Services provided or to be provided by Multex
hereunder.
(f) The parties acknowledge and agree that the limitations of liability set
forth in this Section 6 are a condition of this Agreement, and that the
consideration for the Services reflects the allocations of risk set forth in
this Section 6.
7. Ownership Rights.
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(a) The Research is unique to the Company and shall remain the sole
property of the Company and Multex shall not acquire any rights in the Research,
other than the right to distribute the Research as set forth herein.
(b) The Software shall remain the sole property of Multex or its licensors.
The Company may use the Software only in conjunction with the Services. The
Company shall not copy, in whole or in part, the Software or related
documentation, whether in the form of computer media, printed or in any other
form; provided, however, that Company may make a reasonable number of copies of
the Software for back-up purposes only. Any copy of the Software shall contain
the copyright and other proprietary notice which appears on and in the Software.
(c) The Company is not authorized or permitted to furnish the Software to
any person or firm for re-use, redistribution or retransmission without the
prior written approval of Multex.
(d) THE COMPANY SHALL NOT MAKE ANY ALTERATION, CHANGE OR MODIFICATION TO
THE SOFTWARE. COMPANY MAY NOT RECOMPILE, DECOMPILE, DISASSEMBLE, OR REVERSE
ENGINEER THE SOFTWARE, OR OTHERWISE CREATE OR DERIVE SOURCE CODE FROM THE
SOFTWARE, OR MAKE OR DISTRIBUTE ANY OTHER FORM OF THE SOFTWARE.
(e) The Company may use the trademarks of Multex or its licensors, if at
all, only to identify printed output produced by the Software and only in
accordance with accepted trademark practice, including identification of the
relevant trademark owner's name. The use of any trademark as authorized herein
does not give the Company any rights of ownership or other rights relating to
the trademark, and all goodwill resulting from any such use shall inure to the
benefit of the relevant trademark owner.
(f) Multex may use the trademarks of the Company only in accordance with
such permission as may be granted from time to time. The use of any trademark as
authorized herein does not give Multex any rights of ownership or other rights
relating to the trademark, and all goodwill resulting from any such use shall
inure to the benefit of the relevant trademark owner.
(g) The Company will not export (or re-export) the Software without the
appropriate United States or foreign government licenses, and the consent of
Multex.
8. Warranties.
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(a) Multex hereby represents and warrants to Company as follows: (i) Multex
is a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware with full authority to enter into this Agreement;
(ii) the Multex Software and the Services do not infringe the proprietary rights
of any third party; (iii) Multex has the legal right and authority to license
the Multex Software to Company; (iv) the medium on which the Software shall be
free of defects in materials and workmanship under normal use for a period of
thirty (30) days from the date of delivery; and (v) the Multex Software will,
under normal use and service, record, store, process and present calendar dates
falling on or after January 1, 2000, in the same manner, and with the same
functionality, data integrity and performance, as the Multex Software records,
stores, processes and presents calendar dates on or before December
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31, 1999; will lose no functionality with respect to the introduction of records
containing dates falling on or after January 1, 2000, and will be interoperable
with other software used by the Company which may deliver records to, or
interact with, the Multex Software, including but not limited to back-up and
archived data.
(b) The Company represents and warrants to Multex that (i) the Company is
the owner of and has the right to provide the Research to Multex for
distribution as provided herein; (ii) the Research does not contain any libelous
or slanderous statements, and does not infringe the proprietary rights of any
third party; and (iii) the Company will comply with all laws and regulations
applicable to the creation and distribution of the Research and its use of the
Services, including without limitation all securities law of the United States
and any other jurisdiction in or into which the Services are to be provided.
Except as to warranties set forth above, Multex accepts the Research on an "as
is" basis.
9. Limitation of Warranties.
------------------------
THE COMPANY ACKNOWLEDGES AND AGREES THAT EXCEPT FOR THE WARRANTIES
SPECIFIED IN PARAGRAPH 8, MULTEX MAKES NO OTHER WARRANTIES WHATSOEVER, WRITTEN
OR ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY
WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY, CONCERNING
THIS AGREEMENT, THE SERVICES OR EQUIPMENT, THE MULTEX SOFTWARE, THIRD PARTY
SOFTWARE OR THE DOCUMENTATION. MULTEX DOES NOT GUARANTEE THE ACCURACY, VALIDITY
OR COMPLETENESS OF THE RESEARCH AS DISPLAYED OR PROVIDED THROUGH THE SERVICES.
MULTEX AND ITS THIRD PARTY LICENSORS DO NOT AND CANNOT WARRANT THE PERFORMANCE
OR RESULTS THE COMPANY MAY OBTAIN BY THE USE OF THE SOFTWARE OR SERVICES.
MULTEX ACKNOWLEDGES AND AGREES THAT EXCEPT FOR THE WARRANTIES SPECIFIED IN
PARAGRAPH 8. THE COMPANY MAKES NO OTHER WARRANTIES WHATSOEVER, WRITTEN OR ORAL,
EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF
FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY, CONCERNING THIS AGREEMENT
OR THE RESEARCH. THE COMPANY DOES NOT GUARANTEE THE ACCURACY, VALIDITY OR
COMPLETENESS OF THE RESEARCH AS DISPLAYED OR PROVIDED THROUGH THE SERVICES. THE
COMPANY DOES NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS MULTEX, ITS
SUBSCRIBERS, DATA PROVIDERS OR THEIR CLIENTS MAY OBTAIN BY THE USE OF THE
RESEARCH.
10. Inaccuracy.
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(a) The Company shall notify Multex promptly after discovery by Company of
any suspected inaccuracies in the Research or the Services.
(b) Multex shall notify the Company promptly after discovery by Multex of
any suspected inaccuracies in the Research or the Services.
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11. Compliance with Law.
-------------------
(a) The Company shall be responsible (i) for compliance with all laws and
governmental regulations affecting its business and (ii) for any use it may make
of the Services or the Research to assist it in complying with such laws and
governmental regulations, and Multex shall not have any responsibility relating
thereto (including, without limitation, advising the Company of its
responsibilities in complying with any laws or governmental regulations
affecting the Company's business). The Company shall not use or permit anyone to
use the Services, the Software or the Research for any unlawful purpose.
(b) Multex shall comply with all applicable laws and regulations in its
performance of its obligations hereunder.
(c) If after the date hereof any modifications to the Services shall be
legally required, Multex shall, except to the extent such changes may be beyond
the capability of Multex to implement, modify the Services appropriately. If
providing any of the Services to the Company hereunder violates, or in Multex's
opinion is likely to violate, any laws or governmental regulations, Multex may,
upon written notice to Company, immediately cease providing the affected
Services to the Company.
12. Advertising.
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Neither party shall use the name or marks of the other or its parent
company or any subsidiary or affiliated company in any publicity release,
advertising, or publicly displayed or distributed materials without securing the
prior written consent of the party whose name is to be used, which consent shall
not be unreasonably withheld or delayed. Notwithstanding the foregoing, Multex
and the Company may disclose the fact of this Agreement.
13. Independent Contractors.
-----------------------
Multex and the Company are independent contractors. Personnel supplied by
Multex hereunder, if any, are not Company's personnel or agents, and Multex
assumes full responsibility for their acts. Multex shall be solely responsible
for the payment of compensation, benefits, insurance and taxes relating to
Multex's employees assigned to perform services hereunder. Notwithstanding the
foregoing, Multex (and its employees) shall abide by Company rules and
regulations while visiting Company's premises.
14. General.
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(a) Neither party may assign its interest in this Agreement without first
obtaining the written consent of the other. Otherwise, this Agreement shall be
binding upon the parties' respective successors and permitted assigns.
(b) The validity of this Agreement, the construction and enforcement of
its terms, and the interpretation of the rights and duties of the parties shall
be governed by the laws of the State of New York.
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(c) No modification, amendment, supplement to or waiver of this Agreement
or any Schedule or Exhibit hereunder, or any of their provisions shall be
binding upon the parties hereto unless made in writing and duly signed by both
parties.
(d) A failure or delay of either party to this Agreement to enforce at any
time any of the provisions hereof, or to exercise any option which is herein
provided, or to require at any time performance of any of the provisions hereto
shall in no way be construed to be a waiver of such provisions of this
Agreement.
(e) The terms and conditions of any and all Exhibits and Schedule to this
Agreement are incorporated herein by this reference and shall constitute part of
this Agreement as if fully set forth herein.
(f) The headings herein are for convenience of reference only and shall
not impact the meaning of this Agreement.
(g) The provisions of Sections 4, 5, 6, 7, 8 and 9 shall survive
termination or expiration of this Agreement.
(h) Company shall provide Multex with reasonable access to its premises to
perform the obligations set forth herein. Multex shall abide by the site
regulations and security procedures applicable to each site.
(i) This Agreement constitutes the entire Agreement between the parties
concerning and the subject matter hereof and shall supersede all prior
agreements or understandings concerning such subject matter.
(j) Multex will not change any Research without first obtaining the
written consent of the Company.
IN WITNESS WHEREOF, the parties hereto, each acting under due and proper
authority, have executed this Agreement as of the date first above written.
MULTEX SYSTEMS, INC. CIBC WOOD GUNDY SECURITIES INC.
By: /s/ Xxxxxx Xxxxxxxxx By: /s/ Xxxxx Xxxxxx
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Name: X. Xxxxxxxxx Name: Xxxxx Xxxxxx
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Title: CFO Title: Managing Director-Economic &
-------------------------- Financial Markets Research
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Date: July 8, 1998 Date: July 7, 1998
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CIBC WOOD GUNDY SECURITIES INC.
By: /s/ Xxxxxx Xxxxxxxx
---------------------------------
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Name: Xxxxxx Lansbery
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Title: Managing Director
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Date: July 7, 1998
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