1
Confidential Materials omitted and filed separately with the Securities
and Exchange Commission. Asterisks denote omissions.
Exhibit 10.18
TELERATE
OPTIONAL SERVICE DELIVERY
AGREEMENT
THIS AGREEMENT, dated as of January 1, 1992, between TELERATE
SYSTEMS INCORPORATED, a New York corporation with offices at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Telerate"), and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇,
INC., a New York corporation with offices at ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ("Source").
INTRODUCTION
Telerate gathers from a multitude of sources prices, rates and
other data regarding the markets for, among other things, government securities,
equities, bonds, money market instruments, commodities and foreign currency, as
well as news, commentary and other information relevant to such markets, and
compiles such data and information in a dynamically updated computer database
(the "Information Base"). Telerate makes all or selected parts of the
Information Base available to subscribers to its several services (the "Telerate
Services"). Pursuant to an agreement with Source dated March 24, 1986, Telerate
has been making several of Source's financial information and advisory services
available to subscribers to the Telerate Services who also subscribe to Source's
services. Now, the parties wish to terminate their existing agreement and
replace it with the terms and conditions contained herein.
2
1. Agency; Limited Exclusivity; New Source Services.
(a) Agency.
(i) Appointment. Source hereby appoints Telerate, and Telerate
hereby agrees to serve as, an agent of Source for the term set forth in Section
8 for the purpose of distributing the services listed and described in Exhibit A
(the "Source Services") worldwide to Telerate Subscribers, as defined below, who
also subscribe to the Source Services ("Source Subscribers"), all in accordance
with the terms and conditions hereof. "Telerate Subscribers" shall mean those
persons or entities authorized by Telerate to access all or part of the
information and services contained in the Telerate Services through which one or
more of the Source Services are made available. Notwithstanding the foregoing,
Source shall have the right to direct Telerate in writing to not deliver the
Source Services to any Telerate Subscriber that competes directly with Source in
the business of providing financial information and advisory services.
(ii) No Implied Duties. The parties agree that Telerate's
duties as agent of Source shall be limited to those expressly set forth in this
Agreement. Telerate shall not be deemed to be a fiduciary of Source and shall
not have any implied duties that might otherwise be imposed upon an agent of
Source.
(b) Limited Exclusivity.
(i) Scope. Except as otherwise provided in this clause (i) or
pursuant to the provisions of clause (ii) of this subsection (b), Source agrees
that during the term of this Agreement Source will not itself distribute, nor
permit any
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3
other party to distribute, any Source Service or any other service substantially
similar to any Source Service anywhere in the world. Notwithstanding the
foregoing, Source may continue to permit the Financial Information Services
Division of Automatic Data Processing and Quotron Systems, Inc. to distribute
Money Watch and Corporate Watch pursuant to the agreements Source has with such
parties, but only through the end of the current terms thereof, which expire on
February 15, 1993 and December 15, 1993, respectively. If either such contract
is renewed or otherwise extended beyond its expiration date, Source shall be
deemed to have exercised its option under clause (ii) of this Section 1(b).
Notwithstanding any provision in this Agreement that may be to the contrary,
Source shall have the right to itself distribute the Source Services to markets
that Telerate and Source agree Telerate does not serve.
(ii) Source's Option. Source shall have the option,
exercisable by giving ninety (90) days prior written notice (the "Option
Notice") to Telerate at any time during the term of this Agreement, to itself
distribute or to permit a third party to distribute one or more of the Source
Services or services substantially similar thereto. Source, for whatever and any
reason and without any penalty, may revoke the Option Notice by sending written
notice of such revocation to Telerate at any time prior to the expiration of
forty-five (45) days after the date the Option Notice was given.
(c) New Source Services. Source hereby grants to Telerate an option to
distribute any electronically distributed information or advisory service
hereafter published by Source that is not listed in Exhibit A or that is not
substantially similar
- 3 -
4
to any service listed therein (a "New Source Service"). The terms and procedures
controlling this option are set forth in Exhibit B. If Telerate elects to
exercise its option under this subsection (c) with respect to a New Source
Service, such New Source Service shall fall within the definition of Source
Service under this Agreement, and the distribution of such New Source Service
shall be subject to the terms and conditions set forth in this Agreement.
2. Inputting; Accessibility; Display; Accuracy; Content Changes.
(a) Inputting and Use of Services.
(i) Generally. Source shall input the Source Services into the
Information Base by means of one or more of the standard Telerate Service
terminals and the ESIP lines listed in Exhibit C. Telerate shall provide
subscriptions to the "basic" portion of the Telerate Services through the
terminals listed in Exhibit C for no charge other than installation and
communications charges, certain specified printer and monitor charges, and
charges levied by parties other than Telerate. Telerate shall also provide one
subscription to the Telerate Digital Page Feed ("TDPF") on the terms described
herein and in Exhibit C. Telerate may deny Source access to any information
ordinarily distributed as part of the "basic" portion of the Telerate Services
if requested to do so by the provider of such information. Source may not access
"optional" services available through such Telerate Services without the written
approval of Telerate and/or the providers of such optional services. Except as
otherwise provided herein, Source's use of any of the Telerate Services shall
- 4 -
5
be subject to the terms and conditions of the then-current version of the
applicable Telerate Service Agreement.
(ii) Use of Other Party's Proprietary Services.
Notwithstanding any provision of clause (i) that may be to the contrary,
Telerate shall have the right to deny access to information generated by
Telerate or any of its affiliates; provided that Telerate may exercise such
right with respect to any news service generated by Telerate or any of its
affiliates only in circumstances where Source uses such service in a way that
competes with the sale of such service by Telerate or any of its affiliates.
Telerate shall have the right to access the Source Services; provided that
Source shall have the right to deny Telerate access to any Source Service in
circumstances where Telerate uses such service in a way that competes with the
sale of such service by Source or any of its affiliates. A party desiring to
exercise its right under this clause (ii) must notify the other party in writing
at least thirty (30) days prior to the desired termination date and state the
action by the other party that gave rise to the termination right. If the party
receiving notification ceases such action prior to the desired termination date,
the notifying party may not deny the other party access to its service on the
basis of such cured action. The rights specified in this clause (ii) shall be in
addition to, and not in limitation of, any other remedies the parties may have.
(b) Accessibility of Source Services. Source acknowledges that certain
of the Telerate Services, such as Telerate TeleTrac(R), do not afford access to
all information in the Information Base and that, as of the date hereof, not all
of the Source Services are
- 5 -
6
available on all Telerate Services. Telerate will attempt to make the Source
Services available through the various Telerate Services whenever Telerate
determines it is commercially practical to do so. Distribution by Telerate of a
Source Service that is first made available through a Telerate Service after the
date hereof pursuant to the terms of this subsection (b) shall be subject to the
terms of this Agreement.
(c) Accuracy of Information. Source shall use commercially reasonable
efforts to (i) insure that the information in the Source Services is accurate,
complete and current, and (ii) correct inaccuracies, errors or defects in such
information promptly after discovery. Source shall monitor such information as
it is distributed through the Telerate Services and promptly shall inform
Telerate of any inaccuracies, errors or defects therein.
(d) Change in Nature. No substantial change in the nature of any Source
Service may be made without the prior written consent of Telerate, which consent
shall not be unreasonably withheld or delayed.
3. Promotion and Marketing.
(a) Efforts and Materials.
(i) Exclusive. Source and Telerate shall each exercise
commercially reasonable efforts to market and promote subscriptions to the
Source Services to be accessed through the Telerate Services. From time to time
during the term of this Agreement, but no less frequently than once a calendar
quarter, Telerate shall profile or otherwise promote the Source Services on the
Telerate Services or in promotional materials.
- 6 -
7
(ii) Non-Exclusive. Notwithstanding the provisions of
subsection (i), if Source exercises its option under Section 1(b)(ii),
Telerate's sole obligations with respect to marketing and promoting
subscriptions to the Source Services shall be to make periodic announcements on
the Telerate Services about the Source Services and to list the Source Services
in Telerate's optional service brochures as optional services available through
the Telerate Services.
(iii) Materials. Neither party shall publish or distribute any
advertising or promotional material regarding the availability of the Source
Services through the Telerate Services without the prior written consent of the
other, which consent shall not be unreasonably withheld. If the receiving party
has not notified the sending party of its disapproval of sample materials within
twenty (20) days after its receipt thereof, such materials shall be deemed
approved. Materials substantially similar to materials approved on an earlier
occasion shall also be deemed approved. Materials being sent to the other party
for approval pursuant to this subsection (a) shall be directed to the person(s)
designated in Exhibit D hereto.
(b) Subscriber List. To facilitate Source's promotional efforts,
Telerate shall provide to Source on a quarterly basis the list of Telerate
Subscribers located in the United States and Canada. Each month Telerate shall
also provide Source with the list of those persons and entities located in the
United States and Canada who became new Telerate Subscribers during such month.
In addition, Telerate shall furnish to Source, from time to time, the list of
Telerate Subscribers located outside the United States and Canada promptly after
it receives at headquarters the
- 7 -
8
information necessary to develop such list. And, so long as Source has not
exercised its option under Section 1(b)(ii), Telerate shall share with Source
information Telerate has with regard to renewal dates for subscriptions to the
Source Services. Source agrees to keep such lists and renewal information
strictly confidential and to use them solely to solicit subscriptions to the
Source Services to be accessed through the Telerate Services. Source agrees to
honor requests from Telerate Subscribers not to send unsolicited mail to them or
make unsolicited calls on them.
(c) Authorized Distributors. Source acknowledges that Telerate utilizes
authorized distributors, which may or may not be affiliated with Telerate, to
distribute the Telerate Services ("Authorized Distributors"). Source agrees to
allow the Source Services to be distributed by the Authorized Distributors
subject to the terms and conditions hereof (except where prohibited by law or
limited by local business practices), and Telerate agrees to use commercially
reasonable efforts to persuade the Authorized Distributors to distribute the
Source Services.
(d) Demonstration Periods. Source agrees that, if Telerate deems it
advisable for promotional or marketing purposes, Telerate may, subject to the
terms contained in the last sentence of Section 1(a)(i), make one or more of the
Source Services available free of charge to Telerate Subscribers for up to
thirty (30) days. The preceding provision shall not be deemed to increase
Telerate's obligations to market and promote subscriptions to the Source
Services set forth in subsection (a) of this Section 3.
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9
4. Fees; Service Agreements.
(a) Billing; Fees. Source shall ▇▇▇▇ Source Subscribers in the United
States (Canada, Mexico, Central America and South America) (the "Americas
Region") on a regular basis for subscriptions to the Source Services. Telerate
shall ▇▇▇▇ Source Subscribers outside the Americas Region on a regular basis for
subscriptions to all Source Services. Fees for subscriptions to the Source
Services shall be determined by Source. Source agrees that it will make changes
in published subscription fees to the Source Services only once per year, which
shall be effective anywhere other than Japan on January 1 and in Japan on April
1, and will give Telerate no less than one hundred twenty (120) days' prior
written notice of any such change. If Source exercises its option under Section
1(b)(ii), Source agrees that it will not charge Source Subscribers any more
money for their subscriptions to the Source Services than it will charge any
subscribers to the Source Services or services substantially similar thereto
that receive such services by means other than through Telerate. The parties
agree that the billing party may terminate distribution of the Source Services
to Source Subscribers that are severely in arrears in paying their subscription
fees. Source Subscribers shall be deemed severely in arrears for purposes hereof
when they become six months behind in payments.
(b) Telerate Service Agreements. In those jurisdictions where Telerate
or an Authorized Distributor is billing Source Subscribers for their use of the
Source Services, Telerate or the applicable Authorized Distributor shall provide
the applicable Telerate Service Agreement to each New Source Subscriber (as
defined
- 9 -
10
below) and shall not grant any New Source Subscriber access to any Source
Service (except on a trial basis) until it has obtained an executed copy of the
applicable Telerate Service Agreement from such subscriber. For purposes of this
Agreement, the term "New Source Subscriber" shall mean a person or entity who
becomes, with respect to the Telerate Service through which such person or
entity accesses one or more of the Source Services, a new Telerate Subscriber
after the date of execution of this Agreement. Telerate Service Agreements
provided to New Source Subscribers shall disclaim, for the benefit of optional
service providers including Source (as well as for Telerate), all liability for
errors or omissions contained in the applicable Telerate Service. Copies of
representative Telerate Service Agreements currently being used are available
upon request Telerate shall provide Source with a copy of material amendments to
previously requested Telerate Service Agreements within ten (10) days after such
amendments are implemented. Source shall not make any statement regarding any
Telerate Service that is contradictory or inconsistent with the then-current
version of the applicable Telerate Service Agreement.
(c) Source's Service Agreement. In jurisdictions in which Source is
billing Source Subscribers for their use of the Source Services, Source may
provide the Source Services via a written or oral service Agreement. A copy of
the Service Agreement that Source initially will use in jurisdictions where it
will ▇▇▇▇ Source Subscribers for their use of the Source Services is attached as
Exhibit E.
- 10 -
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Confidential Materials omitted and filed separately with the Securities
and Exchange Commission. Asterisks denote omissions.
5. Division of Charges.
(a) Telerate's Fee.
(i) Exclusive. Except as provided in clause (ii) below or in
subsection (b) of this Section 5, Telerate shall be entitled to a ************
********** of the amounts received from Source Subscribers (excluding all sales
or other similar taxes) by Source and by Telerate (or by Authorized
Distributors) in respect of subscriptions to the Source Services ("Subscription
Receipts"). All fees due Authorized Distributors in respect of their
distribution of the Source Services shall be paid out of Telerate's fee.
(ii) Non-Exclusive. If Source exercises its option under
Section 1(b)(ii) with respect to any one or more of the Source Services (and has
not revoked such notice pursuant to the terms of such section), Telerate shall
be entitled to, in lieu of the payments prescribed in clause (i), ********** of
the Subscription Receipts relating to all Source Services. Telerate agrees to
entertain proposals by Source to exercise its option under Section 1(b)(ii) with
respect to less than all Source Services and to increase Telerate's share of
Subscriber Receipts pursuant to this clause (ii) only with respect to those
Source Services as to which Source desires to exercise such option. Source
acknowledges that Telerate shall be under no obligation to accept any such
proposal. Any increase in Telerate's share of Subscriber Receipts pursuant to
Source's exercise of its option under this clause (ii) shall be effective as of
the end of the notice period for the Option Notice.
- 11 -
12
(iii) Adjustments. Each party acknowledges that they each make
initial calculations and payments of amounts due the other based on the amounts
they ▇▇▇▇ to Source Subscribers in respect of the Source Services, and
accordingly there may be post-payment adjustments to amounts remitted to the
other pursuant to this Section 5 to reflect (A) amounts the billing party billed
in error or credits it gave in the ordinary course of business to Source
Subscribers, and (B) amounts the billing party was unable to collect from Source
Subscribers.
(b) Sales Commission and Fee.
(i) Sales Commission. For each subscription to a Source
Service sold to a Telerate Subscriber by a salesperson working for Telerate or
an Authorized Distributor outside the Americas Region, Source shall pay to
Telerate an amount equal to the first month's fee charged to the Source
Subscriber ("Sales Commission"). The payment of the Sales Commission shall be in
lieu of any amounts that otherwise would be payable under subsection (a) of this
Section 5 for the first month of such subscription. The preceding provision
shall not be deemed to increase Telerate's obligations to market and promote
subscriptions to the Source Services set forth in Section 3(a).
(ii) Subscription Charge Increase Fee. If Source increases the
fee to subscribe to any of the Source Services in Japan (the "Japan Charges"),
Source shall pay to Telerate in respect of such increase a fee (the
"Subscription Charge Increase Fee") equal to the amount of one month's increase
in Japan Charges. The fee due
- 12 -
13
Confidential Materials omitted and filed separately with the Securities
and Exchange Commission. Asterisks denote omissions.
under this clause (ii) shall be in addition to, and not in lieu of, all other
fees due under this Agreement.
(c) Payment. Within sixty (60) days after the end of each calendar
quarter falling fully or partially within the term of this Agreement, each party
shall deliver to the other a report showing the Subscription Receipts for such
quarter, the fee due Telerate in respect thereof and the Sales Commissions and
Subscription Charge Increase Fees due Telerate and the amounts due Source,
together with a check payable to the other party for the ***********. All
payments shall be made in U.S. Dollars.
(d) Records. Each party shall maintain complete and accurate books and
records (collectively, the "Records") with respect to all amounts it billed to
Source Subscribers in respect of subscriptions to the Source Services and any
adjustments thereto made pursuant to subsection (a) of this Section 5 and all
Sales Commissions and all Subscription Charge Increase Fees due from Source.
Each party shall have the right upon at least thirty (30) days' prior written
notice to inspect the Records of the other during normal business hours no more
frequently than twice per year. All information gained by the inspecting party
from such inspection will be kept in strict confidence and will be used solely
for the purpose of verifying the accuracy of the computation of the amounts due
hereunder.
6. Copyright.
Source represents and warrants to Telerate that Source or its licensors
own the Source Services and the copyrights thereto, and that Source has the
right to authorize
- 13 -
14
Telerate to distribute the Source Services under this Agreement. Telerate agrees
it is not acquiring under this Agreement any proprietary interest in the Source
Services and agrees not to challenge the claim of Source or its licensors to the
ownership of the Source Services and the copyrights thereto. Telerate agrees to
implement reasonable measures requested by Source to make the copyright claim of
Source or its licensors known to Source Subscribers and to assist Source, at
Source's expense, in Source's defense or prosecution of any copyright
infringement claim.
7. Indemnification.
(a) By Source. In the event any claim is brought by any third party
against Telerate that relates to, arises out of or is based upon the Source
Services or the failure of Source to comply with any law, rule or regulation
(including, without limitation, the Investment Advisers Act of 1940 or the
Commodity Exchange Act), Telerate shall promptly notify Source, and Source shall
defend such claim at Source's expense and under Source's control. Source shall
indemnify and hold harmless Telerate against any judgment, liability, loss, cost
or damage (including litigation costs and reasonable attorneys' fees) arising
from or related to such claim whether or not such claim is successful. Telerate
shall have the right, at its expense, to participate in the defense of such
claim through counsel of its own choosing; provided, however, that Source shall
not be required to pay any settlement amount that it has not approved in
advance.
(b) By Telerate. In the event any claim is brought by any third party
against Source that relates to, arises out of or is based upon any error, delay
or other
- 14 -
15
event caused by Telerate in transmitting the Source Services, Source shall
promptly notify Telerate, and Telerate shall defend such claim at Telerate's
expense and under Telerate's control. Telerate shall indemnify and hold harmless
Source against any judgment, liability, loss, cost or damage (including
litigation costs and reasonable attorneys' fees) arising from or related to such
claim, whether or not such claim is successful. Source shall have the right, at
its expense, to participate in the defense of such claim through counsel of its
own choosing; provided, however, that Telerate shall not be required to pay any
settlement amount that it has not approved in advance.
8. Term; Termination.
(a) Term. The initial term of this Agreement shall commence as of the
date hereof and shall terminate on December 31, 1996 (the "Initial Term"). The
term of this Agreement shall automatically be extended for one or more periods
of two years (a "Renewal Term"), unless either party sends to the other written
notice of its election not to renew at least ninety (90) days prior to the end
of the Initial Term, or any Renewal Term, as the case may be. The term of this
Agreement shall also be extended in the event Telerate exercises its option
under subsection (e) of this Section 8.
(b) Default. If either party shall default in the performance of or
compliance with any provision contained in this Agreement and such default shall
not have been cured within thirty (30) days after written notice thereof shall
have been given to the appropriate party, the party giving such notice may then
give
- 15 -
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further written notice to such other party terminating this Agreement, in which
event this Agreement and any other rights granted hereunder shall terminate on
the date specified in such further notice.
(c) Change in Control. If there occurs during the term hereof any
change in the control of either party, as defined below, then the other party
may terminate this Agreement upon at least twenty (20) days' prior written
notice to the other. A change in the control of a party shall be deemed to have
occurred upon a change in the possession of the ultimate power to, directly or
indirectly, direct or cause the direction of the management or the policies of
such party, whether through the ownership of voting securities, by contract or
otherwise.
(d) Insolvency. In the event that either party hereto shall be adjudged
insolvent or bankrupt, or upon the institution of any proceedings by it seeking
relief, reorganization or arrangement under any laws relating to insolvency, or
if an involuntary petition in bankruptcy is filed against such party and said
petition is not discharged within sixty (60) days after such filing, or upon any
assignment for the benefit of its creditors, or upon the appointment of a
receiver, liquidator or trustee of any of its assets, or upon the liquidation,
dissolution or winding up of its business (an "Event of Bankruptcy"), then the
party involved in any such Event of Bankruptcy shall immediately give notice
thereof to the other party, and the other party at its option may terminate this
Agreement upon written notice.
(e) Telerate's Option to Extend Term. If Source exercises its right to
not renew the Agreement pursuant to subsection (a) of this Section 8, Telerate
shall have
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the option, exercisable by giving written notice to Source only during the
forty-five (45) day period following Telerate's receipt of Source's notice given
pursuant to such subsection (a), to extend the term of this Agreement for one
year (the "Option Year"). During the Option Year, Source shall have the right to
itself distribute, or to permit a third party to distribute, one or more of the
Source Services. Regardless of whether Source exercises such right, for the
Option Year Telerate shall be entitled to a fee determined in accordance with
Section 5(a)(i).
9. Miscellaneous.
(a) Notices. All notices hereunder shall be in writing and shall be
delivered in person, or sent by overnight courier service, to the address of the
party set forth below, or to such other addresses as may be stipulated in
writing by the parties pursuant hereto. Unless otherwise provided, notice shall
be effective on the date it is officially recorded as delivered.
(i) If to Telerate, to:
Telerate Systems Incorporated
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
with a copy to:
Telerate Systems Incorporated
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Legal Department
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(ii) If to Source, to:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Inc.
▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
with a copy to:
Van ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Holdings Corp.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
(b) Amendment; Assignment. This Agreement may not be amended except by
written instrument executed by Source and Telerate. Neither party may assign
this Agreement to any third party, other than an affiliate, without the prior
written consent of the other. Any assignment of this Agreement to an affiliate
shall not relieve the assigning party of any of its obligations or liabilities
under this Agreement.
(c) Survival of Certain Provisions. Notwithstanding the termination of
this Agreement, those provisions of this Agreement that by their nature are
intended to survive such termination shall survive, including without
limitation, the provisions of Sections 7 and 9.
(d) Consequential Damages. Except pursuant to Section 7, neither party
shall be liable for any consequential, indirect, incidental or special damages,
even if advised of the possibility of such damages.
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(e) Force Majeure. Performance by either party under this Agreement
shall be subject to and shall be excused to the extent that it shall be rendered
impossible by any event, condition or occurrence beyond the reasonable control
of such party.
(f) Entire Agreement. This Agreement contains the entire understanding
of the parties on the subject hereof and terminates and supersedes all previous
verbal and written agreements on such subject including without limitation the
Agreement dated March 24, 1986 between the parties.
(g) Relationship of the Parties. This Agreement does not and shall not
be deemed to constitute a partnership or joint venture between the parties and
neither party nor any of its directors, officers, employees or agents shall, by
virtue of the performance of their obligations under this Agreement, be deemed
to be an employee of the other.
(h) "Affiliate" Defined. For purposes of this Agreement, the term
"affiliate" and its derivatives shall mean, with respect to any individual or
entity, any other individual or entity directly or indirectly, through one or
more intermediaries, controlling, controlled by, or under common control with
such individual or entity. The term "control" and its derivatives, as used in
the immediately preceding sentence, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of an entity, whether through the ownership of voting securities, by
contract or otherwise.
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(i) Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York, without regard to the
choice of law principles thereof.
IN WITNESS WHEREOF, the undersigned parties have duly executed this
Agreement as of the 11th day of February, 1992, to be effective as of the date
first above written.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, INC. TELERATE SYSTEMS INCORPORATED
By: /s/ Lindely ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------ ------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: PRESIDENT Title: SENIOR VICE PRESIDENT
- 20 -
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Index to Exhibits
Name Description
---- -----------
A Description of Source Services
B Telerate's Option to Distribute New Source Services
C "Non-Chargeable" Telerate Equipment and Services
D Contacts for Approval of Promotional Materials
E Source's Service Agreement
22
Exhibit A
Source Services
Name Description
---- -----------
CurrencyWatch A foreign exchange market forecasting and
(Index Page 23300) analysis system combining live 24 hour
fundamental and technical analysis presented
as both commentary and live technical
trading pages, together with comprehensive
live EMS analysis.
YieldWatch Addresses European and Asia Pacific fixed
(Index Page 7870) income bond and futures markets. Information
is presented as live commentary, technical trading
blotters and spread analysis, together with
regional market briefings.
MoneyWatch Provides 24 hour fundamental and technical
(Index Page 7900) analysis of US Treasury, Agency and money
market securities. The service combines live
commentary and technical trading analysis with
detailed forecasts and analysis of the US economy.
CorporateWatch Principally provides rapid and comprehensive
(Index Page 7850-1) information on corporate securities, private
placements, equities and mortgage and
derivative product new issues.
23
Exhibit B
Telerate's Option to Distribute New Source Services
If, at any time during the term of this Agreement, Source desires to
electronically distribute, by itself or through a third party, a New Source
Service, as defined in Section 1(c), Source shall give a written notice to
Telerate that describes (i) the nature of such New Source Service and (ii)
whether Source desires to grant Telerate exclusive or non-exclusive distribution
rights with respect to such New Source Service. Whenever Source gives such
written notice, Telerate shall notify Source in writing, within twenty-one (21)
days following delivery of such written notice, whether it has the technical
capability to deliver the New Source Service under the then-current Telerate
delivery systems. If Telerate notifies Source that it has such capability,
Telerate shall have the option, exercisable by giving written notice to Source
within forty-five (45) days following the delivery of Source's notice, to agree
to distribute such New Source Service under the terms and conditions of this
Agreement (including the modifications set forth in this Exhibit B). If Telerate
fails to notify Source that it has the technical capability to deliver the New
Source Service under then-current Telerate delivery systems, then, subject to
the terms of the following paragraph, Source may distribute such New Source
Service and such distribution shall not be deemed an exercise of Source's option
under Section 1(b)(ii).
If Telerate fails to advise Source within such twenty-one (21) day
period that it has the capability to deliver the New Source Service under the
then-current Telerate delivery systems or if Telerate fails to exercise its
option within such forty-five (45) day period, and if distribution of such New
Source Service does not commence within the ninety (90) day period following the
expiration of such twenty-one (21) or forty-five (45) day period (whichever is
applicable), proposals by Source to electronically distribute such New Source
Service shall again become subject to the provisions of this Agreement.
24
Exhibit C
"Non-Chargeable" Telerate Equipment and Services
See Attached
In addition to the Equipment and Services described in the
attachment to this Exhibit C, Telerate shall provide to Source one subscription
to the Telerate Digital Page Feed (current capacity for 32 workstations) on the
terms set forth below:
1. Telerate will charge Source a fee of $650 per month for such
subscription. This fee does not include communications charges (currently $350
per month), which Source shall pay. Telerate shall have the right to raise the
communications charge to Source in the same amount it increases such charge to
other TDPF customers and at the same time it imposes such increases on them.
2. Source will be responsible for paying all applicable optional
service and exchange fees.
3. Source agrees to comply with all terms of the TDPF subscriber
agreement other than those modified by the terms of this Agreement (including
this Exhibit C).
4. Telerate has the right to review these terms during the first six
months after the TDPF line is installed at Source's premises to ensure that
Telerate's applicable costs are covered. If Telerate finds that its applicable
costs are not being covered, it has the right to so notify Source in writing
within thirty (30) days after the end of such six (6) month period. If Source
receives such a notice, it agrees to reopen discussions with Telerate on this
point, although Telerate agrees that Source shall have no obligation to accept
any other arrangement.
25
Attachment to
Exhibit C
Account No. ID No. Comments
----------- ------ --------
331689 ▇▇-▇▇▇-▇▇ Standard System
331689 ▇▇-▇▇▇-▇▇ Standard System
334086 ▇▇-▇▇▇-▇▇ ESIP
338763 ▇▇-▇▇▇-▇▇ ESIP
330562 ▇▇-▇▇▇-▇▇ Standard System - Charge
for 23" monitor
335862 ▇▇-▇▇▇-▇▇ Standard System - Charge
for printer
338763 ▇▇-▇▇▇-▇▇ ESIP
330562 22-64-11 Standard System
Two additional ESIP lines will be provided.
26
Exhibit D
Contacts for Approval of Promotional Materials
For Telerate:
▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telerate Systems Incorporated
Harborside Financial Center
▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone #▇▇▇-▇▇▇-▇▇▇▇
Facsimile #▇▇▇-▇▇▇-▇▇▇▇
For Source:
Mr. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Inc.
▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone #▇▇▇-▇▇▇-▇▇▇▇
Facsimile #▇▇▇-▇▇▇-▇▇▇▇
Either party may change its designated "contact" person by giving written notice
to the other.
27
Exhibit E
Source's Service Agreement
See Attached
28
ATTACHMENT TO
EXHIBIT E
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Inc. (MCM)
Subscription for Electronic Information and Research Services
This Subscription Agreement (the "Agreement") made this ____ day of __________,
19__ (the "Effective Date") by and between ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Inc.
(hereinafter "MCM"), a New York corporation having offices at ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ and ________________________ (hereinafter "customer").
1. Services
Customer subscribes to, and MCM agrees to provide, the services
("Services") set out on the attached Supplement(s), Number(s) _____________ upon
the terms and conditions set out below.
2. Terms of Subscription; Fee
The subscription term for each Service shall be set forth on the
relevant Supplement(s). The term of this Agreement shall be from the "Effective
Date" until the expiration of the last expiring subscription. For the Services
provided by MCM, Customer agrees to pay MCM the subscription fee indicated. Fees
charged upon the renewal of any subscription shall be those set forth on MCM's
then current price lists. All subscription fees shall be paid in advance at the
commencement of the subscription term. Customer shall also pay in addition to
any subscription fee, any tax, however characterized, arising out of this
subscription other than net income taxes on MCM.
3. Renewal
Each Service, and term thereof, shall automatically continue for a term
equal in length to the original term, unless either party gives the other, not
less than sixty (60) days written notice prior to the end of the term of that
Service. Any new term shall be governed by the terms and conditions of this
Agreement, except for price, which shall be determined from MCM's then current
price list.
4. Information Provided
Services are for the sole use of Customer. Customer will not (without
MCM's prior written consent) duplicate or reproduce (except for use by its own
employees at the above location) any information including (but not limited to)
reports, data, ratings, documentation made known, sent or otherwise transmitted
by MCM under this Agreement or any Service. But, Customer may publish, without
such consent, such analyses and reports of the Services in amounts which in the
aggregate are totally insignificant relative to that portion of the report,
rating or documentation
29
containing the information, and so long as no fee is charged for such analyses
and reports. Customer acknowledges that all such matter is and shall remain the
sole property of MCM, and that MCM is the sole owner of all copyright and other
Commercial property rights therein. The obligations of Customer under this
Paragraph 4 shall survive termination of this Subscription Agreement for any
reason and shall be enforceable by injunctive or other equitable relief. If
Customer makes any permitted use of any information described in this Paragraph,
Customer shall credit MCM as the source of such information.
5. Termination for Non Payment of Fees, Insolvency or Violation of
Paragraph 4
Customer's failure to pay any fee or installment thereof, within thirty
(30) days after the date set for such payment or Customer's violation of
paragraph 4 therein, shall entitle MCM, in addition to its other remedies at law
or in equity, to terminate all or any Service(s) and/or this Agreement. If
Customer becomes insolvent, has a receiver appointed over all or any of its
assets, or enters into any form of liquidation this Agreement will terminate
automatically, without prejudice to MCM's right to claim for payments which have
become due and payable at the time of termination.
6. Exclusion of Warranties and Liability
MCM MAKES NO REPRESENTATION OR WARRANTY, EITHER EXPRESS OR IMPLIED WITH
RESPECT TO THE SERVICES, INCLUDING (BUT NOT LIMITED TO) THE IMPLIED WARRANTIES
OF FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY. MCM shall not be liable
to Customer, for any loss or damage claimed to have resulted from MCM's supply
or customer's use of the Services, except for direct loss or damage resulting
from MCM's gross negligence or willful default. MCM shall not be liable for (1)
indirect, consequential or incidental damages arising from any Subscription,
including any claim related to timeliness of deliveries of Services or the
quality or accuracy of information upon which a Service is based, (2) any claim
that arose more than (1) year prior to the institution of suit therefor, or (3)
any claim arising from causes beyond MCM's reasonable control. MCM's maximum
liability for any and all causes shall, in the aggregate, not exceed the amount
paid by Customer for the Services during the initial term of this Agreement.
7. Assignment
MCM shall not assign this Agreement without the prior written consent
of Customer. Customer shall not assign this Agreement without the prior written
consent of MCM.
30
8. Force Majeur
MCM excludes liability for any direct or consequential loss or damage
to Customer which results from interruption or loss of the Services due to acts
and events beyond MCM's control.
9. Disclosure
Pursuant to the provisions of the Investment Advisers Act of 1940, MCM
offers to supply Customer with Part II of the Form ADV upon written request of
Customer.
10. Miscellaneous
This Agreement and Supplement(s) hereto constitute the entire and final
written expression of all terms and said agreement. No modification or
amendments shall be made or effective unless they are writing and signed by the
parties. The Agreement and Supplement(s) shall be governed by the laws of the
State of New York.
IN WITNESS WHEREOF, the parties or their duly authorized representative
have hereunto set their hands on the day and year first above written.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, INC.
By:_________________________________
Title:_______________________________
Date:_______________________________
CUSTOMER
By:_________________________________
Title:_______________________________
Date:_______________________________
31
Number _________
Term ___________
Supplement to
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Inc.
Subscription for Electronic Information and Research Services
This Supplement between ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Inc. (MCM) and the Customer
(as set forth on the Subscription for Electronic Information and Research
Services) represent those Services subscribed to by the Customer and to be
provided by MCM, subject to the terms and conditions set forth in the
Subscription Agreement.
Dated___________________
Services Annual Fee
-------- ----------
Total:
Additional Locations/Departments:_____________________________________________
______________________________________________________________________________
______________________________________________________________________________
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, INC.
By:_________________________________
Title:_______________________________
Date:_______________________________
CUSTOMER______________________________
By:_________________________________
Title:_______________________________
Date:_______________________________
