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Exhibit 10.43
MASTER AGREEMENT
BETWEEN
PAINEWEBBER INCORPORATED
AND
QUOTRON SYSTEMS, INC.
FEBRUARY 11, 1991
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TABLE OF CONTENTS
PAGE
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ARTICLE I -- DEFINITIONS............................................... 2
ARTICLE II -- PURPOSE AND TERM......................................... 5
ARTICLE III -- ORDERING SERVICES AND INSTALLATION OF OFFICES........... 7
ARTICLE IV -- SERVICES AND UPGRADES.................................... 10
ARTICLE V -- PRICE AND PAYMENT......................................... 14
ARTICLE VI -- OFFICE CLOSINGS.......................................... 22
ARTICLE VII -- MAINTENANCE............................................. 23
ARTICLE VIII -- PERFORMANCE CRITERIA................................... 27
ARTICLE IX -- SERVICE STANDARDS........................................ 34
ARTICLE X -- PURCHASE OPTION........................................... 38
ARTICLE XI -- SOFTWARE DEVELOPMENT AND SUPPORT; TRAINING............... 38
ARTICLE XII -- PROPRIETARY INFORMATION................................. 39
ARTICLE XIII -- DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY;
INDEMNIFICATION........................................ 40
ARTICLE XIV -- TERMINATION............................................. 44
ARTICLE XV -- MISCELLANEOUS PROVISIONS................................. 48
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TABLE OF CONTENTS
APPENDIX A -- PRICE LIST
APPENDIX B -- SERVICE AGREEMENTS
APPENDIX B1 -- EQUIPMENT LEASE AGREEMENT
APPENDIX C -- EQUIPMENT AND SERVICE SCHEDULE
APPENDIX D -- LIST OF PAINEWEBBER OFFICES
APPENDIX E -- CUSTOMER ENGINEERING MAINTENANCE SERVICE OFFERING
APPENDIX F -- SOFTWARE DEVELOPMENT
APPENDIX G -- TRAINING
APPENDIX H -- NON-DISCLOSURE AGREEMENT
APPENDIX I -- TRAVEL TIME SCHEDULE
APPENDIX J -- CATALOG OF SERVICES
APPENDIX K -- INTERNATIONAL SERVICE AGREEMENT
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THIS MASTER AGREEMENT ("Agreement") is made this ___ day of _____________, 1991
by and between PaineWebber Incorporated, a Delaware corporation, with its
principal place of business at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
("PWI") and Quotron Systems, Inc., a Delaware corporation, with its principal
place of business at ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("QSI").
WITNESSETH:
WHEREAS, QSI and PWI are Parties to a National Agreement dated February 5, 1988
pursuant to which QSI provides financial information services to PWI.
WHEREAS, PWI and QSI desire to enter into a new Master Agreement for the
continued provision of financial information services to PWI, including
upgrades of existing services.
NOW, THEREFORE, in consideration of the premises contained herein and other
good and valuable consideration, receipt of which is hereby acknowledged, QSI
and PWI agree as follows:
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ARTICLE I
DEFINITIONS
When used in this Agreement,
1.1 "ALTERNATIVE PLATFORM OR ALTERNATIVE EQUIPMENT" means Equipment other
than Q800 or Q1000 Equipment that may be made available by QSI to PWI.
1.2 "BUSINESS DAY" means any day on which the New York Stock Exchange is
open for trading.
1.3 "CABLING" means standard quad cabling utilized by QSI for installation
of Equipment.
1.4 "CE" means Customer Engineering personnel provided by QSI or its
designees.
1.5 "CPU" means a central processor unit.
1.6 "CSR" means a QSI Customer Service Request.
1.7 "EFFECTIVE DATE" means August 1, 1990.
1.8 "FIRST EXTENSION" has the meaning set forth in Section 2.2(b) hereof.
1.9 "SECOND EXTENSION" has the meaning set forth in Section 2.2(c) hereof.
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1.10 "EQUIPMENT" means the hardware provided to PWI by QSI used for the
delivery to PWI of Quotron financial information services.
1.11 "EXISTING OFFICE" means an Office installed with Services as of the
Effective Date.
1.12 "EXPIRATION DATE" has the meaning set forth in Section 2.2(a) hereof.
1.13 "EXPEDITED BASIS" means anytime outside of the standard QSI lead times
for tasks referred to in Article IX.
1.14 "FUTURE OFFICE" means an Office in which Services are installed after
the Effective Date and which do not receive any Services on the
Effective Date.
1.15 "INTERNATIONAL OFFICE" means a location outside the fifty (50) United
States and Puerto Rico where PWI, its parent, subsidiaries or affiliates
conduct its business and which is subject to an International Service
Agreement.
1.16 "MDS" means Quotron Market Data Services.
1.17 "OFFICE" means a location where PWI, its parent, subsidiaries or
affiliates conduct business in the fifty (50) United States and Puerto
Rico and which is subject to a Service Agreement executed by PWI.
1.18 "PARTY" means PWI or QSI, and "PARTIES" means both PWI and QSI.
1.19 "Q800" means a Quotron 800 Computer.
1.20 "Q1000" means a Quotron 1000 Computer.
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1.21 "RS/6000" means an IBM RS/6000 Model 320 server.
1.22 "RETAIL OFFICE" means a PWI branch Office engaged in the buying and
selling of securities for the general public and excludes PWI Capital
Markets.
1.23 "SERVICES" means one or more of those QSI Information Services (formerly
known as Quotron Financial Information and Offices Services)
categorized as MDS, Trading and Decision Support Services, and Branch
Office Services made available on QSI provided Equipment.
Classification of Services into each such category is set forth in
Appendix "J" hereto. "SERVICES" may also refer to Services made
available through a QSI provided Alternative Platform, Quotron QUOTDIAL
Service, personal computers, and Remote Information Services ("Remote
Services") formerly known as "Quotron Satellite Office Terminal
Service".
1.24 "SERVICE AGREEMENT" means the written agreements including Service
Orders between QSI and PWI pursuant to which QSI provides Services to
an Office. "SERVICE AGREEMENT" also includes the Equipment Rental
Agreement. "EQUIPMENT RENTAL AGREEMENT" means an agreement whereby the
Equipment is rented by PWI from QSI on a month-to-month basis. Service
Agreements include the Information Services Agreement, Equipment
Rental Agreement, Equipment Maintenance Agreement, PC Service
Agreement, Remote Information Services Agreement, Agreement for
QuotChart, QuotData and QuotTerm. Forms of the Service Order and
Service Agreements are attached hereto in Appendix "B".
1.25 "EQUIPMENT LEASE AGREEMENT" means an Agreement whereby the Equipment is
leased by PWI and QSI or a third party for a fixed term. A form of the
Quotron Equipment Lease Agreement is attached hereto in Appendix "B1".
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1.26 "EQUIPMENT RENTAL AGREEMENT" - see definition of Service Agreement.
1.27 "UPGRADE" means replacing Equipment installed in an Office with
different Equipment that makes possible the delivery to PWI of improved
or additional Services. Examples of an Upgrade would be replacing the
Q800 with the Q1000 or replacing the Q1000 with an Alternative
Platform.
ARTICLE II
PURPOSE AND TERM
2.1 PURPOSE. The Parties agree that the purpose of this Agreement is to set
forth the terms and conditions that together with the terms and
conditions contained in the Service Agreements, shall govern the
provision of Services to Offices. All such Service Agreements shall have
full force and effect, provided that in the event of a conflict of terms
between a Service Agreement and this Agreement, this Agreement shall
prevail. The National Agreement between the Parties dated February 5,
1988 is hereby superseded in whole by this Agreement as of the Effective
Date.
2.2 TERM.
(a) MASTER AGREEMENT. This Agreement shall be in effect until
August 1, 1995 (the "Expiration Date"), unless sooner
terminated by the Parties in accordance with Article XIV hereof
or extended by PWI pursuant to and in accordance with
Subsection (b) and/or (c) of this Section 2.2.
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(b) FIRST EXTENSION OF MASTER AGREEMENT. Unless either Party gives
written notice of termination to the other Party at least sixty
(60) days prior to the Expiration Date, PWI may exercise an
option to extend the term of this Agreement for a period of
three (3) years ("First Extension") by furnishing to Quotron
written notice at least sixty (60) days prior to the Expiration
Date, of PWI's intent to exercise its option to extend pursuant
to this Section.
(c) SECOND EXTENSION OF MASTER AGREEMENT. Unless either Party gives
written notice of termination to the other Party at least sixty
(60) days prior to the expiration date of the term of the First
Extension, PWI may exercise an additional option to extend the
term of this Agreement for a period of three (3) years ("Second
Extension") beyond the expiration of the term of the First
Extension by furnishing to Quotron written notice at least sixty
(60) days prior to the expiration of term of the First
Extension, of PWI's intent to exercise its option to extend
pursuant to this Section.
(d) TERM OF SERVICE AGREEMENT FOR OFFICES LISTED IN APPENDIX "D".
Commencing on the Effective Date, the terms of the Service
Agreements for all Existing Offices including Offices listed in
Appendix "D" shall be extended to the Expiration Date, and shall
be further extended to the end of the First Extension (if the
option under Section 2.2(b) is exercised) and further extended
to the end of this Second Extension (if the option under
Section 2.2(c) is exercised).
(e) TERM OF FUTURE SERVICE AGREEMENTS. The term of each Service
Agreement for Future Offices shall be, at PWI's option, either
(i) co-terminus with the Expiration Date (provided the term of
such Service Agreement is at least 12 months) or (ii) not
co-terminus, in which case PWI will specify for each such
Service Agreement a term of 12, 24, 36, 48 or 60 months. With
less than twelve (12) months remaining in the Agreement, PWI
shall have the option to select a term co-
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terminus with the Expiration Date at month-to-month pricing
described in Appendix "A".
(f) MONTH-TO-MONTH EXTENSION. Upon the expiration date of the fixed
term (which excludes any First Extension or Second Extension) of
a Service Agreement, such Service Agreement shall continue to be
extended one full month at a time, subject to termination by
either Party on at least sixty (60) days prior written notice
furnished to the other.
ARTICLE III
ORDERING SERVICE AND INSTALLATION OF OFFICES
3.1 ORDERS. QSI agrees to consult with PWI as QSI defines and implements
improvements in the process and procedures to be used in ordering QSI
Services and/or Equipment.
3.2 SERVICE AGREEMENTS. Upon execution of this Agreement, the Service
Agreements, to include the Information Service Agreement, the Equipment
Maintenance Agreement, and the Equipment Rental Agreement shall be
deemed to have been executed by both Parties and shall be in effect for
each Existing Office and for each new installation of Future Offices.
The Service Agreements executed or deemed to have been executed pursuant
to this Article shall supersede all prior Service Agreements between the
Parties.
3.3 INSTALLATION OF FUTURE OFFICES. To order Q1000 Service for any Future
Office during the term of this Agreement, PWI shall notify QSI that it
wishes to order Service and PWI shall execute for that Office an
Equipment and Service Schedule, per Appendix "C" attached
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hereto and incorporated by reference. QSI shall install Services in a
Future Office within sixty (60) days of receipt by QSI of a completed
Service Order and an executed Equipment and Service Schedule for that
Office. When requested by PWI in writing, QSI shall install Services in
an Office on a expedited basis, subject to payment by PWI of QSI and
third party expedite fees. The foregoing shall be subject in each case
to PWI supplying to QSI all necessary Service and communication
line-ordering information at the time the order is placed, and subject
to the availability of communication lines and facilities.
3.4 ACQUISITION OF A COMPETITIVE FIRM'S OFFICES. When requested by PWI in
writing, QSI shall install Services in an office of a firm which has
been acquired by PWI in order to replace a competitive vendor's system
with Services provided by QSI. QSI shall exert its best efforts to
install Services in such offices on an expedited basis subject in each
case to PWI supplying to QSI all necessary Service and communication
line-ordering information at the time the order is placed, and subject
to the availability of communication lines and facilities. QSI shall not
charge PWI for the QSI expedite fees when installation is to replace a
competitive vendor's system pursuant to this Section. PWI shall pay all
applicable third party (telco, air freight) expedite fees.
3.5 INSTALLATION OF INTERNATIONAL OFFICES. International Offices installed
with Services as of the Effective Date shall continue to be subject to
the terms and conditions, including pricing and discounts, which are
currently in effect for International Offices. To order Service for any
future International Offices during the term of this Agreement, PWI
shall notify the appropriate QSI International office that it wishes to
order Service and PWI
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shall execute for that International Office a separate International
Service Agreement per Appendix "K" for the applicable foreign country.
3.6 OFFICE RELOCATIONS. Relocation costs (including but not limited to all
applicable removal and installation costs) for any Office that is
relocated (and not designated a Temporary Office, as provided in Section
3.8 hereof) shall be paid by PWI. At PWI's option ("Relocation Option"),
QSI agrees to pay and amortize over the term of the Service Agreement
the costs associated with a relocation of an Office (to include
applicable removal and installation costs) provided PWI extends the term
of the Service Agreement for the new location by five (5) years. PWI
shall provide QSI with thirty (30) days notice, prior to the relocation,
that PWI elects to relocate pursuant to this Relocation Option. The
exercise by PWI of this Relocation Option shall automatically cause the
term of the Service Agreement for the Office to be relocated to be
extended for a period of five (5) years calculated from the first of the
month following the month in which the relocation occurred. If PWI
terminates Services to an Office after the relocation and prior to the
end of the five (5) year term, the term of twenty (20) months specified
in Article VI shall apply and PWI shall pay (i) unamortized costs of the
initial installation, if any, and (ii) unamortized installation costs
incurred as a result of the relocation.
3.7 CABLING OF FUTURE DESK UNITS. QSI shall install and pay for standard
quad cabling, as ordered, for projected desk units at the time QSI
installs cables for then current requirements. If the cabling for
projected desk units is not utilized in a Future Office within
twenty-four (24) months from the date of initial installation, PWI shall
pay the pro rata cost of the unused cabling. PWI will be charged and PWI
shall pay the price differential between standard quad cabling and other
type of cabling installed hereunder.
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3.8 TEMPORARY OFFICES. At the time a Service Agreement is executed for a
Future Office, PWI may specify on the Service Order that the location of
the Future Office is temporary ("Temporary Office") and is to be
relocated at a later date during the initial term of the Service
Agreement to a permanent Office located within 50 miles of this Temporary
Office or located in the same metropolitan area. Installation and actual
removal costs for any Temporary Office shall be the responsibility of
PWI, and costs of installation in the permanent Office of the Equipment
located in the Temporary Office shall be paid for by the Parties in
accordance with Section 5.1(g) hereof.
ARTICLE IV
SERVICES AND UPGRADES
4.1 AVAILABILITY OF SERVICE. QSI will provide Services specified by PWI in
the Service Agreement for any Office for which Services are ordered. QSI
will give notice and make available to PWI throughout the term of this
Agreement services and equipment on terms and conditions as favorable as
any made available to other QSI Customers (defined as any brokerage firm,
bank or financial service provider) that are subject to similar terms and
conditions and that have similar billing volume.
4.2 UPGRADING OF OFFICES.
(a) UPGRADING OF RETAIL OFFICES FROM Q800 TO Q1000. QSI will complete
the Upgrade of Retail Offices (including Lincoln Harbor - Weehawken
C/Ns 4750-139, 4750-223 and 4750-280, ▇▇▇ ▇▇▇▇▇▇▇▇ and the 1285
Retail Branch Offices) from MDS provided by Q800 Computers to MDS
plus Branch Office Services and Trading and
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Decision Support Services provided by Q1000 Equipment by January 1,
1991. QSI shall pay the QSI incurred installation costs associated
with such an Upgrade. QSI shall also pay the QSI incurred
installation charges for four (4) Offices to be relocated and
Upgraded to Q1000 Equipment after January 1, 1991. The four (4)
Offices are Akron, OH ▇/▇ ▇▇▇▇-▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇/▇ ▇▇▇▇-▇▇▇,
▇▇▇▇▇▇▇, ▇▇ C/N 4750-635 and Rochester, MN C/N 4750-715.
(b) UPGRADING OF RETAIL OFFICES, PWI CAPITAL MARKERS, AND SOFT DOLLAR
LOCATIONS FROM Q800 TO Q1000. PWI shall pay the QSI incurred
installation costs associated with the Upgrade from Q800 to Q1000
for (i) all PWI Capital Market and Soft Dollar Locations, at any
time, and (ii) for Retail Offices upgrading after January 1, 1991
(excluding the four (4) Offices and associated Soft Dollar Locations
referenced in Section (a) above).
(c) UPGRADE OF PWI OFFICES TO AN ALTERNATIVE PLATFORM. PWI may Upgrade
any Office from Q800/Q1000 to a QSI provided Alternative Platform
pursuant to a mutually agreed to installation schedule. Such
Upgrades are subject to the following terms and conditions:
(i) PWI shall pay actual costs of removal of the Equipment being
replaced including but not limited to labor, freight and
telco charges.
(ii) Notwithstanding anything to the contrary contained in the
Agreement, PWI shall sign a fixed term Equipment Lease
Agreement for each Office to be installed with the
Alternative Equipment supplied by QSI.
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(iii) If PWI acquires an Alternative Platform other than from QSI,
PWI will pay to QSI all costs associated with the
installation of software in the Alternative Platform and all
software licenses.
(iv) PWI shall not be required to pay any further Services charges
with regard to the Q800/Q1000 Equipment which is removed from
an Office as a result of an Upgrade to an Alternative
Platform.
4.3 SERVICE CHANGES.
(a) STANDARD. To order any additional Services or any change in
Services (including entitlement changes), PWI shall deliver a
written or electronic Customer Service Request ("CSR") to QSI's Los
Angeles Order Processing Department. Installation of, or reduction
in, equipment, keyboards, displays, expansion hardware or Services
shall be completed within standard lead time (as reflected in
Article IX below) days of receipt by QSI of a properly completed
CSR, subject to PWI supplying to QSI all necessary Service and
communication line-ordering information at the time the order is
placed, and to the availability of hardware, communication lines and
facilities. Service changes will be priced in accordance with
Appendix "A" hereto.
(b) ENTITLEMENT CHANGES. Software only entitlement changes not
requiring a visit to an Office by a CE shall be accomplished at no
charge to PWI.
(c) DESK UNIT ADDITIONS. Upon prior written or electronic notice, PWI
may add desk units. QSI shall install additional desk units at no
charge to PWI for the installation. QSI acknowledges that from time
to time PWI will have a need to have a desk unit added on an
expedited basis to accommodate a new broker. On an exception basis
QSI will exert its best efforts to exceed the standard lead times
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described in Article IX below in order to accommodate PWT's
requested install date. No QSI expedite fee will be charged for this
accommodation. QSI will maintain on an ongoing basis twelve 12"
cluster terminals with ▇▇-▇▇▇ ▇▇▇▇▇▇ keyboards, and a sufficient
number of C.I. boards and cable connectors, as determined by QSI,
for the exclusive use of PWI on an expedite basis.
(d) DESK UNIT REMOVALS AND RELOCATIONS. Upon prior written or electronic
notice, and at PWI's expense, PWI may remove desk units, or relocate
desk units at the same or different locations. The billing for
reductions in desk units and/or costs of relocation will appear on a
supplemental invoice retroactive to the date of removal and/or
relocation, provided, however, that monthly billing shall not be
reduced below the Firm-Wide Minimum Monthly Subscription
Requirement.
4.4 TECHNICAL COMPETITIVENESS. If PWI determines that for competitive
reasons it requires a feature or service added to Services then available
and if PWI provides QSI with a description and specifications for the
required feature or service, then in the event, within 60 calendar days,
QSI shall provide a proposal to develop and implement the new feature or
service, together with a proposed schedule. If PWI accepts QSI's
proposal, QSI shall develop and install the new feature or service in
accordance with the accepted proposal and schedule. If PWI does not
accept QSI's proposal for any reason, the Parties will submit PWI's
specifications and QSI's proposal to a mutually acceptable expert in the
financial information services field who shall determine whether QSI's
proposal adequately and reasonably meets reasonable competitive
requirements of PWI or, if not, how QSI's proposal should be modified. In
the event the Parties cannot agree on an expert the Parties agree that
each Party will choose an expert and the two experts will choose a third
expert and the three experts shall perform the evaluation of QSI's
proposal. The cost of the expert(s) shall be borne equally by the
Parties. PWI may then either accept QSI's proposal in its original form
or as modified pursuant to the expert's determination, or PWI may abandon
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its quest for the new feature or service. If PWI does accept QSI proposal
in either form, QSI shall develop and install the new feature or service
in accordance with the accepted proposal and schedule. If QSI meets the
accepted schedule for development and installation of the new feature or
service, or is not more than 30 calendar days delayed for reasons within
QSI's control, PWI shall either (i) subscribe and pay for the new feature
or service for the mutually agreed to minimum period and minimum number
of Orders or terminals reasonably deemed necessary to recoup QSI's
development costs for the new feature or service, or (ii) reimburse QSI
for its development costs for the new feature or service that were agreed
to by PWI pursuant to the QSI proposal. QSI agrees that the failure to
deliver on schedule the QSI proposal and have PWI approve the new feature
or service will subject QSI to penalties as provided in Article 8.4.
ARTICLE V
PRICE AND PAYMENT
5.1 PRICES FOR SERVICES.
(a) EXISTING OFFICES. Commencing on the Effective Date, the prices
applicable to Services in Existing Offices shall be as set forth on
the Price List attached hereto as Appendix "A". Effective with the
first recurring monthly billing following the execution of this
Agreement, (QSI shall be permitted to use an estimated amount on the
first monthly billing following execution of this Agreement provided
it is approximately 90% of the credit that would be due with the
second recurring monthly billing generating the remaining credit
based on active calculations), PWI will receive, as a credit against
future bills, an amount equal to the difference
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between actual Office ▇▇▇▇▇▇▇▇ and Office ▇▇▇▇▇▇▇▇ as calculated
using the prices and discounts as detailed in Appendix "A" for all
monthly ▇▇▇▇▇▇▇▇ from the Effective Date through the implementation
of the pricing and discounts of Appendix "A". QSI guarantees that
the annual recurring billing (excluding exchange fees, royalties,
taxes and surcharge) shall be no more than $17,491,938 based on 6878
retail terminals and 1676 non-retail terminals with existing Office,
Equipment and Services defined as PWA on Page 2-3 of Appendix "A"
located in PWI Offices and correspondent offices installed with
Services as of August 1, 1990. In the event that any of the stock,
commodity, futures or any other exchanges extend their hours beyond
those in effect as of the Effective Date, QSI may charge PWI for
QSI's increased costs of providing operation and (at PWI's request)
maintenance during the lengthened market day. The charge for QSI's
providing operation (but not maintenance) during such extended hours
shall be as mutually agreed upon by the Parties, but in no event
shall such charge be greater than the published list prices charged
to other customers. Such charge shall be discountable and subject to
the terms and conditions of Section 4.1 herein.
(b) FUTURE OFFICES AND RENEWALS. The prices applicable to Services in
Future Offices installed or renewed after the Effective Date during
the initial five (5) year term of this Agreement shall be those set
forth on the Price List attached thereto as Appendix "A".
(c) PRICE ADJUSTMENT DURING FIRST EXTENSION. On or after the
commencement date of the three (3) year term of the First Extension
(in the event the First Extension option is exercised by PWI), QSI
may raise any price set forth in Appendix "A" (exclusive of
Equipment) by an aggregate of eight percent (8%).
(d) PRICE ADJUSTMENT DURING SECOND EXTENSION. On or after the
commencement date
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of the three (3) year term of the Second Extensions (in the
event the Second Extension option is exercised by PWI), QSI may
raise any price set forth in Appendix "A" (exclusive of
Equipment) by an aggregate of an additional eight percent (8%)
over the level to which it was adjusted during the First
Extension.
(e) EQUIPMENT PRICING DURING FIRST EXTENSION. On the commencement
date of the three (3) year term of the First Extension (in the
event the Plant Extension option is exercised by PWI) the prices
applicable to five (5) year tests Equipment rental shall be
reduced by thirty percent (30%). The prices applicable to Leased
Equipment during the First Extension shall be adjusted subject
to negotiation by the Parties.
(f) MONTH-TO-MONTH EXTENSIONS. If PWI extends a Service Agreement on
a month-to-month basis for reasons other than a competitive
replacement or replacement with services provided by PWI, then
in that event, the prices applicable to Offices that are covered
by Service Agreements extended on a month-to-month basis shall
be one hundred ten percent (110%) of the prices before discount
being charged to PWI immediately prior to conversion to the
month to month terms. Notwithstanding anything contained herein
to the contrary, Offices extended on a month-to-month term basis
following a fixed term are eligible for continuation of
discounts. If at the end of the initial five (5) year term of
this Agreement, the Parties are in good faith contract
negotiations, PWI shall be subject to payment of one hundred
percent (100%) of PWI's prevailing prices and discount which
will remain in effect for six (6) months. If the Parties are not
in good faith contract negotiations, then PWI shall be subject
to QSI's then current published list prices at no discount.
(g) INSTALLATION COSTS FOR Q800 AND Q1000 SYSTEMS. QSI shall pay and
amortize over a period of 20 months, installation costs for Q800
or Q1000 systems for all Offices
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covered under a 12 month or longer term Service Agreement. PWI
shall pay installation costs for all Offices installed with a
term less than 12 months.
(h) INSTALLATION COSTS FOR UPGRADE TO ALTERNATIVE PLATFORM. For
Upgrades From Q800 or Q1000 Systems PWI will select one of the
following options:
(i) Pay the installation charges with a one-time payment.
(ii) PWI will arrange to include the installation charges as
part of the Equipment Lease for Alternative Platforms.
(iii) Commit to at least a 36 month extension of the Services
Agreement with QSI in which case QSI will pay the
installation charges and amortize them over the term
of the extension. If PWI closes the Office prior to the
end of the 36 month extension PWI shall pay to QSI the
unamortized portion of the installation charges.
(i) INSTALLATION COSTS - ALTERNATIVE PLATFORMS FOR NEW OFFICES. For
new Offices PWI will select one of the following options:
(i) Pay the installation charges with a one-time payment.
(ii) PWI will arrange to include the installation charges
as part of the Equipment Lease for Alternative
Platforms.
(iii) Commit to at least a 36 month term of the Service
Agreement with QSI in which case QSI will pay the
installation charges and amortize them over the term.
If PWI closes the Office prior to the end of the 36
month
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term PWI shall pay to QSI the unamortized portion of the
installation charges.
(j) MAINTENANCE CHARGES AND LABOR RATES. The charges applicable to
maintenance during the initial five (5) year term of this
Agreement shall be those set forth in Appendix "A". Labor rates
during the initial two (2) years of the Agreement shall be those
set forth in Appendix A. On August 1, 1992 QSI shall have the
right to increase labor rates specified in Appendix A by up to a
percentage by which the Federal Bureau of Labor Statistics All
Urban Consumers Figure (the "CPI") has increased from the
Effective Date to August 1, 1992. On each succeeding anniversary
date (twelve (12) month increments), QSI shall have the right to
increase labor rates by up to the percentage which the CPI has
risen from the immediately prior anniversary date.
5.2 DISCOUNTS. Commencing on the Effective Date, Offices covered under this
Agreement shall receive a twenty-seven percent (27%) discount off
discountable prices contained in Appendix "A". Exchange and News Fees,
Communication Charges, taxes, surcharge, data base services,
installation and removal costs, maintenance, Equipment Rental,
Equipment Lease and any billing for other than recurring monthly charges
for Services are not discountable. Discounted rates shall not survive
termination of this Agreement except as provided in Section 5.1 (f)
above.
5.3 FIRM-WIDE MINIMUM MONTHLY SUBSCRIPTION REQUIREMENT. Notwithstanding
anything to the contrary contained in this Agreement and the individual
Service Agreements, PWI shall, during the term of this Agreement, pay to
QSI a Firm-Wide Minimum Subscription Charge in an amount equal to
$500,000 per month for all Offices provided with Service (including for
this purpose, the Offices covered by the Agency Agreement between QSI
and Correspondent Services Corporation, a PWI wholly-owned subsidiary),
after discount and
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exclusive of taxes, surcharge, Exchange fees, Financial Data Base
Service, installation and removal charges, maintenance, Equipment Rental
and Equipment Lease charges, and any charges other than recurring
monthly charges for the Service makes a reduction below $500,000 results
from QSI's failure to meet the performance criteria reflected in Article
VIII and the exercise of PWI's rights thereunder.
5.4 TAXES. All sales, use, gross receipts, excise, transaction,
telecommunications consumption, Value Added (VAT), Goods and Services
(GST), utility, manage, personal property, intangible tax and any other
federal, state and local taxes, fees and charges, including interest and
other charges not due to any fault on the part of QSI thereon chargeable
by the taxing authorities, shall be paid by PWI. The foregoing provision
shall be construed such that PWI shall pay all taxes, fees and charges
applicable to the Service, Equipment, software and any other
pass-through charges provided by QSI to PWI, other than taxes imposed
upon the net income of QSI.
5.5 PAYMENT. Payment is due on receipt of invoice ("Due Date"). Monthly
charges will be computed from the first day that Service is provided,
and will be invoiced each calendar month in advance. PWI's failure to
pay any amount within sixty (60) days after the Due Date, (subject to
satisfactory completion and acceptance by PWI of Phases I, II and III of
the billing projects described in Appendix "F" at which time invoices
will be due within thirty (30) days after the Due Date) shall constitute
a default and entitle QSI to terminate the Service and exercise its
rights pursuant to provisions hereof. If PWI fails to pay any amount on
or before thirty (30) days after the Due Date, PWI shall pay a late
charge at the rate of 1-1/2% per month (or the maximum lawful rate,
whichever is lower) on each such delinquent amount from the applicable
Due Date for such amount to the date of receipt of payment thereof by
QSI.
5.6 INTERNATIONAL OFFICES. International Offices shall be billed on an
office-by-office basis in local currency. All International Office
invoices shall be paid by PWI in local currency.
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5.7 GENERATION OF INVOICES. QSI will generate invoices by the month
following completion of installation of Service and change management
activities such as commitment changes, relocations and reductions of
Services. The Parties acknowledge and agree that in order to generate
invoices in a timely manner QSI shall provide PWI with estimated billing
for third party invoiced activities such as charges incurred from taxes,
connectors, freight.
5.8 CONTESTED BILLING.
(a) RESOLUTION OF CONTESTED BILLING. QSI and PWI agree that
negligible effort will be made by both Parties to resolve any
billing disputes within ninety (90) days after receipt by QSI of
written notification from PWI which specifies the items
contested. PWI shall pay all uncontested amounts upon receipt of
invoice in accordance with Section 5.5 hereof. That portion of
PWI's balance which is contained will not incur a late charge
from the date of PWI's written notification until such time as
PWI's claim is rejected in full or in part by QSI. At that time,
the items contested shall become due and payable. If payment is
not received on or before thirty (30) days after the claim has
been rejected, QSI retains the right to assess late charges on
all or part of PWI's rejected claim effective the date PWI has
been notified that the claim was rejected ("Rejection Date").
The notification shall contain the reason the claim was rejected
and any relevant documentation and shall be forwarded to PWI's
Chief Information Officer ("CIO"). If PWI's CIO does not agree
with QSI's rejection of the claim, the CIO may escalate such
claim to QSI's Chief Financial Officer ("CFO"). QSI's CFO and
PWI's CIO shall have a thirty (30) day period in which to
determine the validity of such claim. If the determination is
made that the charges are valid, PWI shall be invoiced and shall
pay all late charges commencing as of the Rejection Date. If the
determination is made that the claim is not valid then PWI shall
not be obliged to pay any late charges (if invoiced).
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The Parties agree to assist each other in their investigation
and to provide appropriate documentation as requested by either
Party.
(b) FUTURE BILLING MATTERS. Any QSI invoice which PWI does not
notify QSI (as being in dispute) within six months of its
receipt thereof shall irrevocably be deemed correct and PWI
waives its right to challenge the convection of same. Similarly,
any QSI invoice which QSI does not notify PWI (as being
incorrect) within six months of its effective date shall
irrevocably be deemed correct and QSI waives its right to
challenge or change same. This section shall not apply to the
pass through of taxes referenced in Section 5.4 herein. This
clause shall not become effective until administrative projects
Phase I, II and III of Appendix F are completed and functioning
at PWI.
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ARTICLE VI
OFFICE CLOSINGS
6.1 OFFICE CLOSINGS. PWI at any time after the Effective Date, may close any
Office, provided such closing is not for the purpose of replacing the
Service with similar services provided by PWI or a third party. For
purposes of this Article an Office shall be deemed closed when all
business at that location is terminated and no new Office or Offices are
opened in the same general geographic area under circumstances that
indicate an Office relocation. The following provisions shall apply to
the termination of Service to an Office as a result of the closing of
that Office.
(a) THIRTY DAYS NOTICE. PWI shall furnish QSI with thirty (30) days
written notice of each Office closing. PWI shall pay full
monthly billing for the Service during the notice period.
(b) UNAMORTIZED INSTALLATION COSTS. PWI shall pay in a lump sum upon
termination, unamortized installation costs for any Office
installed with Service for less than 20 months.
(c) EQUIPMENT RENTAL AGREEMENT. PWI shall pay Equipment rental
charges to the conclusion of the thirty (30) day written notice
period or any extension requested in writing by PWI.
(d) EQUIPMENT LEASE AGREEMENT. PWI shall continue to pay full lease
charges for the duration of the lease or the net present value
of the remaining lease
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payment and title remains with the lessor covering Equipment
installed under an Equipment Lease Agreement.
(e) MAINTENANCE AGREEMENT. PWI's obligations under the Equipment
Maintenance Agreement for a specific Office shall extend to the
date of removal or to the completion of the thirty (30) days
written notice period, whichever is later.
(f) ACTUAL COST OF REMOVAL. PWI shall pay actual costs of removal
including but not limited to labor, freight and telco charges.
(g) FIRM-WIDE MINIMUM MONTHLY SUBSCRIPTION REQUIREMENT. Nothing in
this Article shall relieve PWI of its Firm-Wide Minimum Monthly
Subscription Requirement as described in Section 5.3.
ARTICLE VII
MAINTENANCE
7.1 MAINTENANCE. QSI or a third party designated by QSI shall perform
maintenance on the Equipment. Normal hours of maintenance are during
Business Days as shown below ("Business Hours"):
8:00 AM - 5:00 PM Eastern Time
7:00 AM - 4:00 PM Central and Mountain Time
6:00 AM - 3:00 PM Pacific Time
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QSI and/or representatives designated by QSI shall have access to the
Equipment at all reasonable times for the purposes of installation,
maintenance, repair and removal thereof. Maintenance requested by PWI
shall be as set forth in the Equipment Maintenance Agreement attached
hereto in Appendix "B". If a call-repair maintenance action is in
progress as a result of a service request made by PWI during Business
Hours, then such a service request action will be completed beyond
Business Hours. Such a service action shall be at no charge to PWI. If
PWI requests that maintenance start after Business hours, PWI will pay
for service billable at the QSI standard hourly overtime rate then in
effect. Such deferred service actions shall be excluded from performance
criteria calculations. PWI shall have the option to have such service
action commence the following Business Day. QSI shall provide a normal
level of maintenance and performance for terminals covered by the
Equipment Maintenance Agreement, provided that PWI complies with QSI's
then current site planning and installation requirements. Normal level
of maintenance means "the same level of maintenance QSI provides to
other similarly situated commercial customers who subscribe to the
Service." Any support activities and/or maintenance required because of
problems caused by PWI-provided software as identified by QSI and agreed
to by PWI, shall be paid by PWI at QSI's standard hourly rates then in
effect. The cost of maintenance requested by PWI to be accomplished
after Business Hours or on weekends or holidays will be paid by PWI at
QSI's hourly rates then in effect, subject to availability of CEs.
7.2 DEDICATED CE MAINTENANCE. QSI or its designee will provide dedicated CE
maintenance coverage at PWI's designated site, currently 1285 Avenue of
the Americas Office, during Business Hours on Business Days, excluding
lunch periods and breaks. QSI will select and assign a qualified
technician to remain at the Office and provide all necessary maintenance
functions. PWI reserves the right to request the replacement of the
assigned CE. QSI shall not unreasonably withhold its consent to such
request. During periods of vacation, training, sickness or for other
business reasons, QSI will assign other qualified personnel. It is QSI's
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intentions to keep such personnel changes to a minimum. In the event of
an unplanned employee absence, QSI will exert its reasonable efforts to
supply on site replacement coverage by 9:00 a.m. of the day affected.
Each morning the assigned CE will report directly to the Office and
verify the operation of the Equipment. Any malfunctions will be
responded to immediately. In order to maintain records and ensure system
performance, QSI requires that all trouble reports made by PWI's staff
be reported to the QSI Call-in Center. Installation work will continue
to be coordinated and performed by QSI's Installation Department and
billed accordingly. The cost for this dedicated CE maintenance service
is based upon a formula that attempts to recover only the excess cost of
dedicated personnel who would normally be available to service other
accounts. The monthly charges shall be the greater of (i) a minimum
monthly charge, as specified in the following sentence, or (ii) six
percent of the difference between $140,000 and regular monthly site
billing. The minimum monthly charge during the initial twelve (12)
months following the Effective Date of this Agreement shall be $500 per
month, and may be increased thereafter up to a maximum amount of $1,000
per month. Maintenance charges are not eligible for discounts.
7.3 SERVICE REQUEST AVERAGE RESPONSE TIME. PWI's Help Desk shall request
maintenance for an Office by telephoning QSI's Call-In Center or the
designated QSI representative (within the time frames then set in QSI's
service policies). QSI shall guarantee response time to service
requests under all conditions subject to the provisions of Section 14.3.
Travel time shall be calculated by city in accordance with QSI's Travel
Time Schedule per Appendix "I" attached hereto and incorporated by
reference. Appendix "I" will remain in effect for the term of the
Agreement. A written or electronic Service Report describing the details
of the outage is forwarded to QSI, Los Angeles for purposes of
verification, record keeping and monitoring. To provide PWI with a
maximum effort of support, the CE will call for additional support after
working on the problem unsuccessfully for approximately one hour, and
must notify PWI before loading file systems or replacing a disc drive.
QSI current
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service policy per Appendix "E" entitled "Quotron Systems, Inc. Customer
Engineering Maintenance Service Offering" is attached hereto and
incorporated by reference. In the event QSI selects another maintenance
provider, the Parties agree to review and as mutually agreed to modify
or supplement the existing Appendix "I".
7.4 MAINTENANCE PROVIDERS. The Parties acknowledge that QSI or a third party
designated by QSI ("Designee") shall perform maintenance on the
Equipment. QSI shall have sole discretion in the selection of any
Designee organization which shall perform maintenance on the Equipment.
QSI agrees to consider, and review written input from PWI as to the
selection of such a Designee. QSI's commitment to consider, and review
PWI's input is intended to be a good faith expression of QSI's intent to
reasonably and diligently give weight to PWI's concerns in the Designee
selection process. PWI shall have the right to renegotiate the
Maintenance Section of this Agreement, including any Equipment
Maintenance Agreements hereunder two years from the Effective Date of
this Agreement. QSI agrees to renegotiate in good faith if PWI exercises
its right to renegotiate. The Parties shall negotiate terms and
conditions applicable to the providing of maintenance on Alternative
Equipment.
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ARTICLE VIII
PERFORMANCE CRITERIA
8.1 DEFINITIONS. As of the Effective Date, QSI shall provide MDS to PWI in
accordance with the performance criteria set forth in this Article for
all Offices located in the contiguous forty-eight (48) United States,
Hawaii, and Puerto Rico. Offices outside of the contiguous forty-eight
(48) United States and Hawaii will be maintained on a best effort basis
with response no later than 24 hours after receipt of service call from
PWI. Offices located in Puerto Rico will be maintained with response no
later than six (6) hours after receipt of a service call from PWI.
(a) DEFINITIONS. For purposes of this Article VIII, outages mean,
when calculating performance for QSI provided terminals,
terminal hardware failure and/or the total inability to obtain
quotes on the Quoteline ("Outages"). Optional and customized
services and PWI developed software shall be excluded. For
purposes of this Section "Optional Services" mean Services other
than Market Data Services such as Trading and Decision Support
Services, Branch Office Services and Network Services. Optional
Services are listed in Appendix "J" attached hereto and
incorporated by reference. "Customized Services' means services
developed at the request of PWI by QSI for use in conjunction
with the Service or with PWI application software. Outages which
are caused in whole or in part, by PWI non-compliance with
QSI-provided environmental criteria or policies regarding the
connection of devices not approved by QSI to the systems, PWI
provided software, PWI provided hardware, communications
circuits and/or modems, communications circuits provided by a
telephone company or communications carrier and/or any telephone
company or communications carrier problem, or by force majeure
as
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described in Section 14.3 herein, shall be excluded from performance
criteria calculations pursuant to this Article. Additionally, Outages
caused by failure of data vendor feeds such as News, Exchanges, Database
vendors, and other third party providers of services, shall be excluded.
"Downtime" starts when PWI's notification of an Outage is received and
logged at PWI's Help Desk by the QSI person assigned to the Help Desk,
or in his absence or non-availability, logged in at QSI's Call-In
Center. "Uptime" is any other time. QSI agrees to have a person ▇▇▇▇▇▇▇
PWI's Help Desk on Business days during Business Hours. Business Hours
are defined in Section 7.1.
(b) CALCULATION OF PERFORMANCE. On Business Days, the QSI provided terminals
shall be subject to, and QSI obligates itself to meet, the performance
levels stated in this Section. Uptime shall be calculated by multiplying
the number of QSI provided terminals installed by 9 hours, and
multiplying the result by the number of Business Days in that month. The
resulting answer shall be divided into the number of QSI provided
terminals are available for operation use during that same period of
time. The answer to these calculations equals actual performance.
As an example, if ten (10) terminals worked a nine (9) hour day and
there were twenty (20) Business Days in that month, and there were no
failures that month, then the calculation would be:
10 x 9 x 20 = 1800 Available Hours
10 x 9 x 20 = 1800 Performance Hours
1800
----
1800 = 100% up-time performance
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If, using the above example, there had been eighty-one (81) hours of
Outages during the month, the result would be:
1719
----
1800 = 95.5% Performance
For the average to fall below 99% Uptime, a minimum of twenty (20)
terminal hours would have to be lost because of Downtime as shown below.
1780
----
1800 = 98.9% up-time performance
(c) UPTIME PERFORMANCE REQUIREMENT. On Business days during Business Hours
("Business Hours" are defined in Article VII herein), each Office shall
be subject to and QSI obligates itself to meet the Uptime performance
figure of ninety-nine percent (99%).
(d) PERFORMANCE DEFAULTS; PENALTIES. If the performance as defined and
calculated above, falls below the 99% level described above, for two (2)
consecutive months, and it is not due to PWI failing to meet any of its
obligations, then PWI shall have the option to give QSI written notice
that QSI is in default of its performance level. Upon receipt of such
notice from PWI, QSI shall have a period of thirty (30) days in which to
bring the performance to an acceptable level. If at the end of the
thirty (30) day period the performance equals or exceeds the 99%
performance level, as calculated above, then QSI will no longer be
considered in default of the performance criteria. At this time a new
two (2) month period of calculation of performance shall commence.
However, at the end of such thirty (30) day period
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QSI will provide PWI a retroactive credit for the two (2) months QSI
missed the 99% performance level. PWI shall be entitled to receive a
credit for that Office in an amount equal to double the percentage
difference between the performance level QSI is obligated to meet and
the performance level actually attained off monthly discountable Service
▇▇▇▇▇▇▇▇ retroactive to the commencement of the two (2) month period
when QSI was first in default. If the performance level falls below 90%,
PWI shall receive a credit equal to four (4) times the percentage
difference rather than the doubling referred to above. For example, if
the applicable performance level QSI is obligated to meet is 99% and the
QSI level of performance actually attained is 95%, PWI shall be entitled
to receive a monthly credit of eight percent (8%) off monthly
discountable Service ▇▇▇▇▇▇▇▇ at the affected Office retroactive to the
commencement of the two (2) month period when QSI was first in default
and continuing until the relevant performance standard is met. In
addition if, within a twelve (12) month period, PWI receives credits
during three (3) or more months due to QSI's failure to meet the
relevant performance levels at a particular Office, then upon ten (10)
calendar days' prior written notice, PWI may terminate the Service
Agreement for that Office, without penalties or removal costs to PWI.
Nothing in this Article shall relieve PWI of its obligations under an
Equipment Lease Agreement for Alternative Platforms.
(e) PERFORMANCE MONITORING. All calculation pursuant to this Article shall
be based on information logged in and recorded at QSI's Call-In Center,
("Records") and PWI's Reports ("Reports") of Outages. In the event of a
difference between QSI's Records and PWI's Reports for a particular
Office, an attempt shall be made by the Parties to resolve those
differences before performance is calculated for that Office. PWI shall
have the right to check QSI's Records in order to reconcile any
differences in calculations of performance. QSI shall have the right to
check PWI's Reports after PWI gives notice of default to QSI, and the
Parties shall attempt in
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good faith to reconcile any differences. QSI will provide PWI with a
monthly management report showing Uptime performance detailed by Office.
8.2 SYSTEM RESPONSE TIME. QSI and PWI will initiate a joint effort by
9/30/91 to establish a base line of QSI Services, PWI services and the
Q1000 hardware configuration including the number of desk units
("Mutually Agreed Upon Configuration") which will ensure the following
response times ("Acceptable Response Time") can be met:
Quote Response Less than 2 Seconds
3270 Recognition of Request Less than 1 Second
Q1000 BOS Load Time Less than 10 Seconds
Q1000 BOS Recognition of Request 1 Second
Q1000 BSS Load Less than 15 Seconds
QSI will complete an investigation of methodologies to reduce BSS Load
Time by approximately 50% no later than the end of first quarter of
1991. In the same time frame QSI will determine the feasibility of
modifying the BSS Load in such a manner that Response Time can be
measured by Recognition of Request. For the purpose of determining any
such Acceptable Response Time, in the Mutually Agreed Upon
Configuration, no more than 32 host connections including terminals,
printers and programmatic interfaces shall have terminal emulation. By
way of explanation, "Response Time" means the length of time a terminal
inquiry transaction takes from proper key entry until the first line of
data appears on the screen. "Recognition of Request Time" means the
length of time screen response indicating CPU action takes when a key is
depressed. Acceptable Response Time shall be maintained while any
mutually agreed upon combination of available Services identified in
Appendix "J" hereof are operating on the Q1000. QSI shall demonstrate
the attainability of the Acceptable Response Time through testing of the
Mutually Agreed Upon Configuration at QSI's SIT lab and at a PWI
Office, such testing
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to be monitored by PWI. The attainability of the Acceptable Response Time shall
be further demonstrated through trial at three Offices among the first several
to be upgraded which have the Mutually Agreed Upon Configuration. Response Time
shall be monitored manually through mutual observation of PWI and QSI. If a
Q1000 cannot maintain an Acceptable Response Time during any three (3) Business
Day test period and after a fourteen (14) Business Day cure period and such
failure is not due to Equipment or communications circuits outside the affected
Office, QSI shall increase capacity of the affected CPU or provide additional
CPU's, at QSI's expense, including the cost of additional CPU base charges,
until an Acceptable Response Time is maintained. Any additional Equipment
installed by QSI pursuant to the preceding sentence shall be for a term equal to
the longest term remaining of the equipment where capacity is to be expanded,
and PWI shall have no obligation to extend the term of Service Agreement
therefor. If the failure to maintain an Acceptable Response Time is determined
to be due to PWI applications used in excess of the defined capacity limits, or
if PWI adds new applications, PWI shall reimburse QSI for the additional costs
of maintaining a Response Time acceptable to PWI (including QSI's expenses
incurred in determining the impact of either of the foregoing on Response Time),
and shall pay the installation costs of any additional Equipment required to
maintained such Response Time. If such Equipment is installed in connection with
additional applications desired by PWI. PWI shall be required to extend the term
of Service Agreement in respect of such Equipment for at least the minimum term
required for such application.
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8.3 FOREIGN DEVICES. PWI agrees that linking or attaching non-Quotron
Equipment to Quotron Equipment shall be subject to compliance with QSI's
"Policy for Connecting Foreign Devices to Quotron User Computers."
Exceptions to the policy will be mutually agreed upon. Non-Quotron
equipment shall be construed to mean any equipment not bearing QSI's
name or which is not marketed by or on behalf of QSI or connected
without QSI approval. Both Parties are in agreement that and all non-QSI
approved foreign devices connected with and to the Q1000 shall be
excluded from performance criteria calculations in Article VIII.
8.4 SOFTWARE COMMITMENTS; PENALTIES. In the event QSI shall fail in any
material respect to meet the software development deliverable dates as
specified in Appendix F and subsequent software development projects
that are mutually agreed upon by QSI and PWI, QSI shall be subject to
penalties as outlined in this Section subject to the following terms and
conditions. QSI shall not be subject to penalties to the extent such
failure is due to reasons beyond QSI's control or to the extent such
failure is caused by PWI. Examples or failures caused by PWI include but
are not limited to (i) PWI requests a delay in completion of a schedule
date, (ii) PWI fails to provide requirements, deliverables or sign off
on the specifications, and/or (iii) PWI changes in deliverables or
delivery dates.
(a) PWI RESPONSIBILITIES. The schedules applicable to the
deliverables in Appendix F are subject to PWI satisfying the
commitments reflected or required by Appendix F or as mutually
agreed upon in connection with future projects. PWI shall
provide to QSI written documentation evidencing QSI's failure to
meet a deliverable date. Upon receipt of such notice. QSI shall
have a period of 30 days in which to provide the deliverable. If
at the end of the 30 days QSI is unable to provide the
deliverable, QSI shall be deemed to be in default
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hereunder and shall be subject to the penalties listed below.
The penalties shall commence at the conclusion of the 30 days
notice period.
PENALTIES PER DELIVERABLE MISSED
DELIVERABLE PERIOD MONTHLY PENALTY
------------------ ---------------
0-6 months 2.0 x $7000 x VT
7-12 months 1.5 x $7000 x VT
Greater than 12 months 1.1 x $7000 x VT
"VT" shall mean variable term. If the deliverable period missed is 2 months
then VT equals 1. The VT will increase by .5 for each additional month missed.
The penalty is cumulative.
ARTICLE IX
SERVICE STANDARDS
9.1 SERVICE STANDARDS. To order additional Services or changes in Service, PWI
shall deliver to QSI's Los Angeles Order Processing Department a
written/electronic QSI Change request form or PC Order Form ("Change
Order") (a form of which is attached hereto in Appendix "B") detailing the
action requested. Service changes shall be subject to the Service Standards
set forth below. QSI shall exert its reasonable efforts to ensure that
ninety-
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seven point seventy-five percent (97.75%) of all Service requests will meet
these Service Standards (excluding travel time) and subject to the following
terms and conditions:
(a) Individual Change Orders must be written for each CPU.
(b) Service Standards shall commence after receipt of a valid
written/electronic Change Order at QSI's Los Angeles, Order Processing
Department.
(c) Service Standards are subject to PWI providing all necessary Service and
communication line-ordering information at the time the Change Order is
placed.
(d) Standards are subject to the availability of non-QSI hardware,
communication lines and facilities.
SERVICE ACTIVITY SERVICE STANDARDS
---------------- -----------------
RCC Entitlements One (1) Business Day
(Quoteline entitlements)
Software Only Two (2) Business Days
(i.e. Monitor Line)
Inside Moves Five (5) Business Days
(terminal)
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SERVICE ACTIVITY SERVICE STANDARDS
---------------- -----------------
Hardware Only or Hardware Fourteen (14) Business Days
with Software (terminal (See Section 4.3(c) for special
additions, etc.) situations).
NEW INSTALLATION/RELOCATIONS:
-----------------------------
SIT/SOT OR PC Orders Twenty-five (25) Business Days
(Remote)
CPU Installation Thirty-five (35) Business Days
Ten (10) Business Days shall be added to performance Service Standards
involving such non-standard Change Order requests as CPU relocations,
rewires and major reconfigurations. QSI hardware availability will be
subject to quarterly forecasts (subject to modification by PWI once within
the quarter) from PWI of hardware requirements as defined by PWI. QSI will
honor such forecast. If, due to normal growth conditions (normal growth
conditions exclude PWI requirements as a result of an acquisition of
another firm), Q1000 Equipment is not available within the Standards
outlined above, QSI will provide equivalent Equipment at no additional cost
to PWI including installation in accordance with Section 5.1(g).
9.2 PERFORMANCE MONITORING OF SERVICE STANDARDS. QSI agrees to provide PWI
with a monthly work completion report. In the event that PWI believes that
QSI has failed to meet the standard delivery times on more than 2.25% of
the orders for a calendar month PWI will notify QSI in writing that QSI is
in default of the Service Standards. Based upon mutual agreement as to the
correctness of the claim, QSI will issue to PWI credits equal in value to
the supplemental ▇▇▇▇▇▇▇▇ for the orders requesting the addition of
hardware and/or Services that were not completed to Standard within that
calendar month. In the case of
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orders for removal of hardware and/or Services QSI will ensure that billing
ceases as of the date determined by the Service Standards.
9.3 ENVIRONMENTAL CRITERIA. PWI shall meet the power, environmental and space
specifications for the Q1000 set forth in the "QUOTRON 1000 System Site
Preparation Guide," QSI Document Number SY-0002-04-00, for every Office
installed or to be installed with Q1000 Services. PWI shall meet the power,
environmental and space specifications for each Office installed with QSI
provided Alternative Equipment as set forth in the applicable Quotron
Systems Site Preparation Guide.
9.4 QSI ACCESS TO PWI OFFICES. Any person or persons designated in writing by
QSI shall have access to such Equipment at all reasonable hours on a
non-disruptive basis for the purpose of installation, inspection,
maintenance, repair, removal and replacement thereof. PWI shall safekeep
QSI's Equipment and software using the same degree of care as its uses to
safekeep its own equipment and software and shall permit access thereto
only by persons authorized in writing by QSI. QSI shall give PWI reasonable
notice by telephone of the date and time of which QSI personnel will arrive
at any Office to perform maintenance, and PWI shall not unreasonably deny
access to QSI personnel at the requested time and place.
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ARTICLE X
PURCHASE OPTION
10.1 The Parties Agree that PWI will have the following options when acquiring
QSI provided Alternative Platforms:
a) Make an outright purchase,
b) Lease the Alternative Platform through QSI,
c) Lease the Alternative Platform from a third party.
ARTICLE XI
SOFTWARE DEVELOPMENT, SUPPORT, TRAINING AND DOCUMENTATION
11.1 SOFTWARE DEVELOPMENT AND SUPPORT. QSI shall provide software development
support to PWI in accordance with, and subject to charges set forth in
Appendix "F" hereto.
11.2 TRAINING. QSI will provide training programs and support as described in
Appendix "G" hereto.
11.3 DOCUMENTATION. QSI will provide available technical documentation to PWI
relating to API's, BSS, Terminal Emulation, SNA and BOS within three (3)
months after the signing of this Agreement.
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ARTICLE XII
PROPRIETARY INFORMATION
12.1 PROPRIETARY INFORMATION. PWI acknowledges that certain information
received through the Service is derived by QSI from proprietary
information of third party information sources, exchanges, associations,
news disseminating entities, data base vendors and other sources
("Sources"). PWI agrees that no proprietary right or title to the
information received from the Service is transferred to PWI. PWI
acknowledges that QSI's agreements with the Sources require that
information received from the Sources not be resold and will be used only
in PWI's business at the Office where Services are installed. PWI will not
furnish such information to any person, firm or branch office for re-use.
PWI agrees that no display nor subset of display of any Service may be
interfaced, re-used or retransmitted with any other equipment and/or via a
local area network or data feed without the express written consent of
QSI and the written authorization of each Source providing proprietary
data to PWI. PWI will not furnish such information to any newspaper, press
association or service or permit connection of any other display and
keyboard or computer to the communication circuit used to provide Services
except with the prior written approval of QSI. PWI shall be responsible
for furnishing the Sources with a description of each proposed use of any
Services and PWI shall obtain all necessary authorizations from each
Source, and will pay all charges (either directly, or to QSI's PWI
account) required by such Sources in respect of PWI's use of the Service.
12.2 RIGHT TO INFORMATION. QSI agrees to provide PWI with answers to technical
questions, all published product documentation, and technical notes on a
timely basis. In addition, PWI development personnel will be given access
at all reasonable hours on a non-disruptive basis to QSI development sites
(Los Angeles) and associated personnel; such access to be mutually agreed
upon by both Parties. PWI acknowledges QSI's proprietary products, and
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QSI acknowledges PWI's proprietary business information. This Agreement
serves as an extended non-disclosure agreement where specified PWI
individuals will have access on a confidential basis to detailed
information about QSI's current and planned products that are deemed
important by PWI for PWI's development and ongoing business needs. This
non-disclosure agreement is attached as Appendix "H".
ARTICLE XIII
DISCLAIMER OF WARRANTIES:
LIMITATION OF LIABILITY: INDEMNIFICATION
13.1 DISCLAIMER. THE PARTIES HERETO AGREE THAT THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ALL OTHER
WARRANTIES, EITHER EXPRESSED OR IMPLIED, EXCEPT AS OTHERWISE EXPRESSLY
PROVIDED IN THIS AGREEMENT, ARE EXCLUDED FROM ANY TRANSACTION UNDER THIS
AGREEMENT. QSI SHALL NOT BE LIABLE IN ANY EVENT FOR LOSS OF ANTICIPATED
PROFITS, LOSS BY REASON OF SHUTDOWN, NONOPERATION OR INCREASED EXPENSES
OF OPERATION OF OTHER EQUIPMENT, OR OTHER CONSEQUENTIAL LOSS OR DAMAGE
OF ANY NATURE ARISING FROM ANY CAUSE WHATSOEVER EXCEPT AS OTHERWISE
EXPRESSLY PROVIDED FOR IN THIS AGREEMENT.
13.2 LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING HEREIN TO THE
CONTRARY, QSI SHALL HAVE NO LIABILITY, CONTINGENT OR OTHERWISE. FOR
ACCURACY OF THE INFORMATION FURNISHED, OR OF PWTS COMMUNICATIONS
TRAFFIC, RETRIEVED FROM, TRANSPORTED THROUGH
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OR STORED IN QSI NETWORK AND DATA BASES, FOR LOSS OF DATA, OR FOR LOSS
OF DATA CONFIDENTIALITY (EXCEPT FOR LOSS OF DATA CONFIDENTIALITY
OCCASIONED BY QSI'S NEGLIGENT ACTS OR MISCONDUCT) OR FOR DELAYS OR
OMISSIONS THEREIN, OR FOR INTERRUPTIONS OF ANY SERVICE FROM WHATEVER
CAUSE, AND QSI SHALL NOT BE LIABLE FOR DAMAGES ARISING FROM THE USE OR
PRESENCE OF QSI'S EQUIPMENT ON PWI'S PREMISES EXCEPT WHERE SUCH DAMAGES
ARE THE DIRECT RESULT OF QSI'S NEGLIGENCE IN ASSEMBLING OR MAINTAINING
ITS EQUIPMENT.
13.3 INDEMNIFICATION.
(a) With regard to physical property damage and personal injury,
PWI agrees that, at its sole expense, it shall protect, defend,
hold harmless and indemnify QSI, its parent, subsidiary and
affiliate companies, and all directors, officers and employees
of QSI and its parent, subsidiary and affiliate companies, as
applicable, (collectively, the "QSI Indemnified Parties") from
and against any and all claims, demands, suits or other
proceedings by a third party against any QSI Indemnified Party,
any damages, losses, expenses and any other liabilities of any
nature whatsoever, including without limitation, reasonable
attorneys' fees, incurred by any QSI Indemnified Party and
arising out of, in connection with, or resulting from PWI's
negligence or misconduct hereunder.
(b) With regard to physical property damage and personal injury,
QSI agrees that, at its sole expense, it shall protect, defend,
hold harmless and indemnify PWI, its parent, subsidiary and
affiliate companies, and all directors, officers and employees
of PWI and its parent, subsidiary and affiliate companies, as
applicable, (collectively, the "PWI Indemnified Parties") from
and against any and all claims, demands, suits or other
proceedings by a third party against any PWI Indemnified Party,
any damages, losses, expenses and any other liabilities of any
nature whatsoever,
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including without limitation, reasonable attorneys' fees,
incurred by any PWI Indemnified Party and arising out of, in
connection with, or resulting from QSI's negligence or
misconduct hereunder.
(c) QSI further agrees that, at its sole expense, its shall
protect, defend, hold harmless and indemnify all PWI Indemnified
Parties from and against any and all claims, demands, suits or
other proceedings against any PWI Indemnified Party, any
damages, losses, expenses and any other liabilities of any
nature whatsoever, including without limitation, reasonable
attorneys' fees, incurred by any PWI Indemnified Party and
arising out of, in connection with or resulting from any
infringement or alleged infringement by any PWI Indemnified
Party of any United States or other patent or copyright covering
or alleged to cover the QSI Equipment, the QSI software or any
training manuals and technical documents related to the Service
provided by QSI to PWI hereunder (collectively, "Covered Item")
or the use of any of the foregoing as contemplated by this
Agreement. QSI agrees that it shall pay all sums which, by final
judgment or decree in any such suits or proceedings, may be
assessed against any PWI Indemnified Party on account of any
such Infringement.
Should any Covered Item or any portion thereof become, or in
QSI's opinion by likely to become the subject of a claim of such
infringement, PWI shall permit QSI at QSI's option, either (i)
to obtain for PWI the right to use such Covered Item; (ii)
replace or modify the Covered Item so that it becomes
non-infringing; or (iii) grant PWI a credit for such Covered
Item less depreciation (an equal amount per year over the life
of the Covered Item as established by QSI) for use, damage, and
obsolescence and accept its return. However, QSI shall have no
liability for any infringement or claim thereof, based upon (i)
the use of any Covered Item in combination with any other
device, software, or data not supplied by QSI where the
combination and not the Covered Item alone caused the
infringement, (ii) use
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of the Covered Item in practicing any non-QSI process; (iii) PWI's
non-standard use of any information, data or service provided by QSI
where such non-standard use and not the information, data or service
caused the infringement; and (iv) alteration of the Covered Items not
made by QSI. No expense shall be incurred for the account of QSI without
QSI's consent.
(d) The Parties agrees that this right to indemnification under paragraphs
(a), (b) and (c) hereunder shall be subject to:
(i) written notice by the Party seeking indemnification to the
Party from whom indemnification is sought of the claim, demand,
suit or other proceeding requiring indemnification; and
(ii) the Parties agree that the Party from whom indemnification is
sought is authorized to assume, at its own expense, the sole
defense thereof through its own counsel and to compromise or
settle, at its own expense, any such claim, demand, suit or
other proceeding. So far as this may be done without prejudice
to the rights of the Party seeking indemnification or such
Party's reputation and standing in the business community and
among members of the general public who may utilize such Party's
services. Prior to final settlement of any claim, demand, suit
or proceeding hereunder, the indemnified Party shall be
consulted and if it determines that the proposed settlement is
not in its best interest, it may assume its defense from that
point forward and the indemnifying Party's liability for that
claim, demand, suit or other proceeding shall be limited to the
amount of the proposed settlement.
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ARTICLE XIV
TERMINATION
14.1 FAILURE TO MEET PAYMENT OBLIGATIONS. In the event PWI shall fail to
meet its payment obligations as provided in this Agreement with respect
to any Office, QSI may terminate the Service Agreement with respect to
such Office if such failure is not corrected within thirty (30) days of
delivery of written notice thereof to PWI.
14.2 BANKRUPTCY AND BUSINESS TERMINATION. If either Party shall cease doing
business as a going concern (and without assigning its obligations
hereunder pursuant to Section 15.1 hereof), make an assignment for the
benefit of creditors, admit in writing its inability to pay its debts as
they become due, file a voluntary petition in bankruptcy, be adjudicated
a bankrupt or an insolvent, file a petition seeking for itself any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar arrangement under any present or future statue,
law or regulation or file an answer admitting the material allegations
of a petition filed against it in any such proceeding or consent to or
acquiesce in the appointment of a trustee, receiver or liquidator of it
or of all or any substantial part of its assets or properties, or if it
shall take any action designed to obtain its dissolution or liquidation,
or within 60 days after the commencement of any proceedings against it
seeking reorganization, arrangement, readjustment, liquidation,
dissolution or similar relief under any present or future statue, law or
regulation, fail to have such proceedings dismissed, or if within 60
days after the appointment, without that party's consent or
acquiescence, or any trustee, receiver or liquidator of its or of all
or any substantial part of its assets or properties, such appointment
shall not be vacated, the other Party may immediately terminate this
Agreement.
14.3 FORCE MAJEURE. In the event that the performance of either Party
hereto is prevented or
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delayed by reason of any cause or causes beyond the reasonable control
of and without fault of such Party, and cannot be overcome by due
diligence (such events shall include, without limitation, strikes,
riots, floods, fires, acts of God, or acts of any third party not under
the control of the Parties hereto, unless a labor interruption, job
action, or other delay has been precipitated by either Party's
negligence, misconduct or failure to act in accordance with the terms
hereof) such Party shall be excused from performance to the extent of
and during the continuance of any such happening or event. Any
performance obligations affected by such force majeure shall be tolled
for the duration thereof.
14.4 BUSINESS DISRUPTION. QSI's intent is to provide PWI with reasonable
reimbursement for unplanned expenses that could occur as a result of
unilateral actions taken by QSI or Citicorp during the course of the
contract. The following scenarios define those unilateral actions which
could be taken and the reimbursement values.
(a) QUOTRON CEASES TO CONDUCT BUSINESS. QSI will provide PWI with
six (6) months prior written notice of QSI's intent to cease
operations. PWI can select and manage a new vendor and all four
reimbursement options provided below would apply. Citicorp will
provide PWI full reimbursement of the cost differential for like
Services for this alternative vendor for the duration of the QSI
contract up to a maximum of $15.00 per desk unit per month for
each remaining month in the term. PWI shall have the right of
first refusal with regard to the purchase of the QSI Equipment
installed in PWI Offices. Citicorp reserves the right to review
the cost differential that results from the selection by PWI of
an alternative vendor, and in the absence of the exercise of
good faith by PWI, to challenge the amount of the cost
differential. PWI shall cooperate in such review.
(b) QUOTRON IS SOLD. PWI can select and manage a new vendor and
all four reimbursement options would apply. As an alternative
option, services would continue to be provided by the new
entity. Any system or operational changes
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will be furnished at no cost. Retraining, application changes
and evaluation will be covered as described below. PWI shall
have the option to proceed with Reimbursement Option (d)(iii)
below and, if desired, can then proceed to continue with Options
(d)(i), (d)(ii), and (d)(iv).
(c) QUOTRON ENGAGES WITH ANOTHER COMPANY AS A JOINT VENTURE. If QSI
retains 60% or more of the joint venture and it is not with a
significant PWI competitor, no change. Otherwise, PWI can
proceed with Reimbursement Option (d)(iii) below and can then
proceed to continue with Options (d)(i), (d)(ii) and (d)(iv).
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(d) REIMBURSEMENT OPTIONS. Citicorp reserves the right to review the
actual cost incurred under (ii), (iii) and (iv) below and in the
absence of good faith by PWI to challenge the validity of
expenses.
(i) EQUIPMENT DEINSTALLATION AND INSTALLATION. Citicorp will
manage the entire process of removing the QSI equipment
and installing new hardware in accordance with a
mutually agreeable schedule between both Parties
recognizing that time is of essence. Citicorp will
absorb this entire cost.
(ii) CONVERSION AND TRAINING COSTS. Citicorp will reimburse
PWI actual costs incurred up to $1,500,000 including
overtime and other costs as it relates to the
conversion.
(iii) NEW VENDOR EVALUATION COSTS. Citicorp will reimburse PWI
actual costs up to $300,000 for vendor evaluation.
(iv) PWI APPLICATIONS. Citicorp will pay PWI actual costs up
to $1,000,000 for conversion costs for PWI applications.
(e) PERFORMANCE PROTECTION GUARANTEE. Citicorp shall guarantee
performance of all contractual terms stated herein during the
term of this Agreement. Notwithstanding anything to the contrary
contained herein, Citicorp's liability resulting from this
guarantee of performance shall in no event exceed fourteen
million dollars. Citicorp's obligation to continue the guarantee
of all contractual terms shall cease effective on the event of a
Business Disruption as defined in this Article. Notwithstanding
anything to the contrary contained herein, Citicorp's liability
as a result of these business disruption provisions shall in no
event exceed eleven million dollars.
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(f) REPRESENTATIONS BY CITICORP.
(i) Citicorp acknowledges that it is currently the parent of
QSI and it has committed to the above Performance
Protection and Business Disruption provisions for the
term of this Agreement.
(ii) Citicorp acknowledges receipt of a copy of this
Agreement and the commitments made hereunder.
(iii) Citicorp represents and warrants that it has full
authority to make the Performance Protection and
Business Disruption commitments reflected in this
Agreement and to execute the Agreement as a guarantor.
ARTICLE XV
MISCELLANEOUS PROVISIONS
15.1 ENTIRE AGREEMENT. This Agreement, together with all written amendments,
schedules, exhibits, appendices, attachments and the individual Service
Agreements for each Office, constitute the entire agreement between PWI
and QSI with respect to the subject matter addressed herein and therein.
This Agreement cannot be modified or supplemented by oral statements
made either before or after execution of this Agreement and such
statements do not constitute warranties. No collateral or prior
statements, representations, understandings, agreements or warranties
(express or implied) are part of this Agreement. This Agreement shall be
binding upon and inure to the benefit of the Parties, their successors,
legal representatives and assigns. This Agreement may not be assigned by
either Party without the written consent of the other Party. However,
either Party shall have the
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right to assign this Agreement to its parent, subsidiary or an affiliate
under the common control of its parent, or to any person, entity or
organization which holds or acquires control of the assigning Party. QSI
and PWI intend this Agreement to be a valid legal instrument, and no
provision of this Agreement which shall be deemed unenforceable shall in
any way invalidate any other provision or provisions of this Agreement,
all of which shall remain in full force and effect.
15.2 USE OF TRADE NAMES, TRADEMARKS OR SERVICE MARKS. Neither Party shall use
any trade name, trademark or service ▇▇▇▇ of the other Party without the
prior written approval of the other Party. QUOTRON, QUOTRON 800, QUOTRON
1000, QUOTRON 5300, PC800, PC1000, QUOTREND, QUOTEVUE, QUOTYPE,
QUOTDIAL, QUOTRON F/X TRADER, QUOTTERM, QUOTCHART, QUOTDATA, SATELLITE
OFFICE TERMINAL are trademarks of QSI.
15.3 NOTICES. Unless otherwise provided herein or in any Service Agreement,
all notices, requests, demands and other communications under this
Agreement shall be in writing and shall be delivered by hand or sent by
prepaid registered or certified mail with return receipt requested or
sent by confirmed facsimile with the original sent by mail and shall be
deemed to have been duly delivered when delivered by hand or when
received, addressed as follows (or to such other address as may be
designated by a Party, in writing, pursuant hereto);
(a) IF TO QUOTRON:
Quotron Systems, Inc.
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Vice President & General Counsel
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(b) IF TO PWI:
PaineWebber Incorporated
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Chief Information Officer
WITH COPY TO:
PaineWebber Incorporated
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
(c) IF TO CITICORP:
Citicorp
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇, ▇▇▇▇ 1
Attn: ▇▇▇▇ ▇▇▇▇▇
Executive Vice President (Legal)
15.4 GOVERNING LAW. This Agreement is made and entered into in the State of
New York and shall be governed by the laws of that State, The Parties
hereto, their successors and assigns, consent to the jurisdiction of the
courts of the State of New York in respect to any legal proceedings that
may result from a dispute as to the interpretation or breach of any of
the terms or conditions of this Agreement.
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15.5 WAIVER. No delay or failure of either Party in exercising any right or
power hereunder and no partial or single exercise thereof shall impair
or preclude exercise of any such right or power or shall be deemed to
constitute a waiver of such right or powers or any other rights or
powers hereunder.
15.6 DUE AUTHORIZATION. Each of QSI and PWI represents and warrants that it
is authorized to enter into this Agreement and that there are no
outstanding commitments, agreements or understandings, express or
implied, which may or can in any way defeat or modify the rights
conveyed or obligations undertaken by it under this Agreement.
15.7 COUNTERPARTS; SEVERABILITY. This Agreement and any amendments, waivers,
consents or supplements may be executed in two or more counterparts each
of which when executed shall be deemed to be an original and all of such
counterparts shall be deemed to be one and the same instrument. If any
provision of this Agreement shall be invalid, illegal or unenforceable
in any jurisdiction, the validity, legality and enforceability of the
remaining provisions, or of such provision in any other jurisdiction,
shall not in any way be affected or impaired thereby.
15.8 HEADINGS. The heading of each Article and Section of this Agreement is
for the purpose of convenience only and shall not affect the
interpretation of any provision hereof.
15.9 CONFIDENTIALITY.
(a) PWI and QSI each agree that all of the information contained
herein, including without limitation, all of the information
contained in the Attachments hereto, as well as all of the
information obtained by the Parties in connection with their
performance hereunder (collectively, "Information"), is
proprietary and confidential.
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(b) PWI and QSI further each agree:
(i) to hold all such Information in confidence, using the same
degree of care as each Party uses to maintain the
confidentiality of its own information;
(ii) not make use thereof other than for the performance of this
Agreement;
(iii) to release such Information only to employees reasonably
requiring such Information; and
(iv) not to release or disclose any such Information to any third
party without the prior written consent of the Party to whom
the Information is proprietary.
(c) The Parties acknowledge that disclosure or use of the Information
contrary to the terms of this Agreement may cause harm to the Parties
that may be irreparable by money or damages and therefore, either of
the Parties shall have the right in addition to any other remedies
available to it to seek to enjoin such disclosure or use.
(d) The provisions of paragraph (b) above shall not apply to:
(i) any Information which is in the public domain;
(ii) Information which is rightfully obtained from any third party
or developed independently; or
(iii) the release of Information by either of the Parties hereto when
such disclosure is required by a self-regulatory agency,
applicable law, regulation,
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subpoena or other legal requirement, but in any such instance
the disclosing Party shall, to the extent practicable, provide
the other Party with notice of such disclosure. Nothing
contained herein shall prevent either Party from disclosing
such Information to its parent, subsidiary or affiliate
companies, subcontractors or agents, or attorneys or
accountants, as applicable, when reasonably required in
connection with the performance of services hereunder, provided
each Party shall take reasonable steps to ensure that any
person or entity receiving any such Information treats all such
Information confidentially, using the same degree of care as
such person or entity uses with respect to its own, like
information. The obligations set forth in this section 15.9
shall survive the termination of this Agreement and continue
for as long as either Party hereto is in possession of
Information protected hereunder.
15.10 WARRANTY OF TITLE. QSI warrants that it has full title to the Equipment
to be sold hereunder and the full title or right to license the software
to be licensed hereunder, free of all liens and encumbrances, of any
nature, whatsoever.
15.11 THIRD PARTY BENEFICIARIES. The Parties intend that the Correspondent
Services Corporation ("CSC"), a wholly-owned subsidiary of PWI be a
third party beneficiary of this Agreement as provided for in an Agency
Agreement between QSI and CSC in particular, CSC shall receive the
benefits provided for in Articles 4.1, 4.3, 5.7, 5.8, 7.1, 7.3, 8.1,
8.2, 9.1, 9.2, 11.2. Except as provided herein, the provisions of
this Agreement are for the exclusive benefit of the Parties hereto and
not for the benefit of any third Party.
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IN WITNESS WHEREOF, each of the Parties hereto has caused this
Agreement to be executed by its duly authorized officer.
QUOTRON SYSTEMS, INC. PAINEWEBBER INCORPORATED
/s/ ▇▇▇▇ ▇. Glan
________________________________ ________________________________
By ▇▇▇▇ ▇. Glan By
________________________________ ________________________________
Title President Title
________________________________ ________________________________
Date 2/11/91 Date
CITICORP
________________________________
By
________________________________
Title
________________________________
Date
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IN WITNESS WHEREOF, each of the Parties hereto has caused this
Agreement to be executed by its duly authorized officer.
QUOTRON SYSTEMS, INC. PAINEWEBBER INCORPORATED
/s/ ▇▇▇▇▇▇ ▇. Bonmosche
---------------------------- --------------------------------
By By ▇▇▇▇▇▇ ▇. Bonmosche
Executive Vice President
---------------------------- --------------------------------
Title Title
February 11, 1991
---------------------------- --------------------------------
Date Date
CITICORP
/s/ ▇▇▇▇▇▇▇▇ ▇. Small
----------------------------
By ▇▇▇▇▇▇▇▇ ▇. Small
Vice Chairman
----------------------------
Title
2/11/91
----------------------------
Date
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