Exhibit 10.11
CONFIDENTIAL TREATMENT
PORTIONS INDICATED BY A
[***] HAVE BEEN OMITTED
AND FILED SEPARATELY
WITH THE COMMISSION
PCQUOTE
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CO-BRANDING AGREEMENT
This agreement is made effective Oct. 11, 1996 by and between PC QUOTE,
INC. (hereinafter referred to as "PCQ"), a Delaware Corporation with its
principal place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
and AB Wately, Inc. (hereinafter referred to as "ABW") with its principal place
of business at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇. This agreement shall
apply to said ABW and all of its subsidiaries and related companies.
DEFINITIONS:
SOFTWARE
PC QUOTE 6.0-TM- for Windows on the Internet is a software application that
displays market data information, provided via the digital Hyperfeed, in the
form of quotes, charts, graphs, tables, board views, tickers and other
analytical tools.
HYPERFEED
The PC Quote proprietary digital data feed transmitted via satellite, land line,
or Internet with advanced compression technology, containing financial market
information obtained by PCQ from the institutions and exchanges listed in
Section 5 of this Agreement. This market data includes stock quotes, futures
and options trading, commodities, and other related information.
WITNESSETH:
NOW, THEREFORE, for good and valuable consideration, and in consideration of the
mutual covenants and conditions herein set forth, and with the intent to be
legally bound thereby, ABW and PCQ hereby agree to the following:
1. THE CO-BRANDED SERVICE
A. PCQ agrees to allow ABW to co-brand the PCQ SOFTWARE in order to
provide a value added service on ABW's World Wide Web site. The co-branded
SOFTWARE will be made available via ABW software housed at the ABW office listed
in this Agreement. The server will be accessed by all ABW subscribers in order
to download the SOFTWARE and receive the HYPERFEED.
B. PCQ will provide a continuous HYPERFEED to the ABW servers;
however, PCQ will control the receipt of the HYPERFEED by ABW clients via a
remote access server on PCQ's site that will authorize each new ABW account.
ABW agrees to sign up all new subscribers to the co-branded service,
including execution of all applicable service and exchange agreements, will
send to PCQ the executed subscriber agreements before access to the quote
servers will be provided to ABW clients by PCQ. PCQ shall have the sole
ability to authorize access to the market data contained in the HYPERFEED by
ABW clients.
D. PCQ and ▇▇▇▇▇▇▇▇ shall retain title and all copyrights or
proprietary rights to the SOFTWARE and HYPERFEED provided to ABW and ABW's
clients pursuant to the Agreement. ABW will not provide any unauthorized
access to the co-branded service, nor reproduce or redistribute the service
in any way.
E. ABW agrees to include the following in the co-branded pages displaying
quotes: "All quotes provided by PC Quote, Inc." ABW also agrees to include the
following disclaimer on the access page to the co-branded service:
"PC Quote is not subject to liability for truth, accuracy,
or completeness of the market data information nor is PC
Quote liable for errors, mistakes or omissions in the data
or for any delays or interruptions in the end user's receipt
of the data. PC Quote does not warrant that the data
provided may be relied upon for trading purposes."
2. TERM
A. The initial term of this License Agreement shall be two (2) years from
the effective date of this Agreement. The effective date for purposes of this
Agreement is the contract date as specified on the signature page of this
Agreement. Neither PCQ nor ABW shall terminate or alter this Agreement except
as stated herein.
B. At the conclusion of the initial term, this entire Agreement shall
automatically renew itself for an additional one (1) year term unless either
party sends notice at least sixty (60) days before the anniversary of the
effective date of this Agreement. Notice expressing a desire to terminate this
Agreement will be sent by certified mail to the address indicated above. Said
termination will be effective as of the last day of the month in which this
anniversary occurs.
C. Notwithstanding the provisions of (A), and (B) above, should a party
to this Agreement be in material breach of the Agreement, the other party may
terminate the Agreement thirty (30) days after notice of said material breach is
received, and only if such material breach is not cured within thirty (30) days
of receipt of notice.
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3. PAYMENT FOR SERVICE
A. Beginning with the date specified on the fee schedule attached
hereto as Schedule A, or upon completion of the Installation and testing of
all equipment and services, which ever is later. ABW will commence payment
of a monthly fee for the right to permit access by ABW's clients to said
SOFTWARE and HYPERFEED.
B. The charges for the services set forth in this Agreement shall be
invoiced monthly. ABW agrees to pay said charges within thirty (30) days of
the monthly invoice date. ABW may issue a purchase order for billing
purposes. The invoices must reference that purchase order number and be sent
to the "▇▇▇▇ To" address stated on the purchase order. The terms of this
negotiated Agreement shall supercede those contained on that purchase order.
C. All payments will be made in US Dollars drawn on a US bank. ABW will
provide a complete list of all clients using the format described in Schedule B
with each payment.
D. Any payments which have not been received by PCQ within thirty (30)
days of the Invoice date shall be subject to a FINANCE CHARGE of 1.0% per month
which is a corresponding ANNUAL PERCENTAGE RATE of 12% on the outstanding
balance.
F. Any invoice submitted by PCQ shall be deemed correct unless ABW
advises PCQ in writing, within thirty (30) days of the receipt of the invoice,
that it disagrees with the invoice and specifies the nature of the disagreement.
G. Any sales, use, excise, value added and local property taxes will be
payable by ABW should such taxes be applicable.
H. In the event that any invoice is not paid by ABW within forty-five
(45) days after receipt, and when no discrepancy issues have been identified by
ABW which are in some stage of resolution, after giving notice to ABW, PCQ may
terminate this agreement and ABW's access to and use of SOFTWARE and HYPERFEED
provided hereunder unless ABW pays such invoice prior to the termination date
specified in the Termination Notice. The remedies contained herein are
cumulative and are in addition to all other rights and remedies available to PCQ
under this Agreement, by operation of law, or otherwise.
I. Upon termination as provided for in this Agreement, ABW will pay all
charges for services and fees for the entire month in which that termination
becomes effective.
4. TECHNICAL SUPPORT
A. ABW agrees to field all initial customer support requests and assist
its clients to the best of its knowledge and ability. If the support issue is
of a complex nature that ABW is unable to solve, ABW may forward the call on to
the PCQ technical support staff.
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5. EXCHANGE AUTHORIZATION
A. The ABW hereby acknowledges and agrees that the HYPERFEED provided
under this Agreement contains market information obtained, selected and
consolidated by PCQ under the authority of various agencies, including but
not limited to, the New York Stock Exchange, American Stock Exchange, Pacific
Stock Exchange, Midwest Stock Exchange, Chicago Board Options Exchange, the
Options Price Reporting Authority, the Consolidated Tape Association, Chicago
Board of Trade, Chicago Mercantile Exchange/International Monetary Market,
Kansas City Board of Trade, Minneapolis Grain Exchange, Commodities Exchange
Center, New York Futures Exchange, Mid-America Commodity Exchange, and
Consolidated Canadian Group and that the ABW's use of the service for
internal or external redistribution of date is authorized and regulated by
said agencies.
6. LIMITATIONS OF LIABILITY, REMEDIES ON DEFAULT
A. The information and data used in the HYPERFEED and SOFTWARE
provided under this Agreement, including option prices, stock prices,
commodity prices, dividends, dividend dates, volatilities, deltas and other
variables, are obtained by PCQ from the various exchanges and other sources
which are believed to be reliable and PCQ agrees to run reasonable control
checks thereon to verify that the data transmitted by PCQ is the same as the
data received from the various exchanges and other sources. However, PCQ
shall not be subject to liability for truth, accuracy, or completeness of the
information received by PCQ from the various exchanges and other sources and
conveyed to ABW or for errors, mistakes or omissions therein or for any
delays or interruptions of the HYPERFEED or SOFTWARE from whatever cause.
This agreement does not violate any agency requirements and PCQ has the right
to enter into this agreement from its information providers.
B. PCQ shall not be responsible for, nor be in default under this
Agreement due to delays or failure of performance resulting from Internet
Service Provider delivery problems or failure, or any communication or
delivery problems associated with the Internet in general. Furthermore, PCQ
and ABW shall not be responsible for nor in default due to acts or causes
beyond its control, including but not limited to: acts of God, strikes,
lockouts, communications line or equipment failures, power failures,
earthquakes, or other disasters. Should such an occurrence render the
HYPERFEED or SOFTWARE inoperable or unavailable for a period over ten (10)
days, then ABW shall have the right to discount their billing in proportion
to the delay.
C. LIABILITY UNDER THIS AGREEMENT FROM ANY AND ALL CAUSES, INCLUDING,
BUT NOT LIMITED TO, PROGRAM MALFUNCTION OR OPERATIONAL NEGLIGENCE, SHALL BE
LIMITED TO GENERAL MONEY DAMAGES IN AN AMOUNT NOT TO EXCEED THE TOTAL CHARGES
PAID BY ABW FOR THE SERVICES DURING THE MOST RECENT TWELVE (12) MONTHS OF THE
AGREEMENT. SUCH LIMITATION SHALL BE THE EXTENT OF PCQ OR ABW'S LIABILITY
REGARDLESS OF THE FORM IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT
AGAINST PCQ OR ABW, AND THE FOREGOING
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SHALL CONSTITUTE PCQ'S OR ABW'S SOLE REMEDY. IN NO EVENT WILL EITHER PARTY
BE RESPONSIBLE FOR LOST PROFITS OR SPECIAL INDIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES WHICH ABW OR PCQ INCUR OR EXPERIENCE ON ACCOUNT OF
ENTERING INTO OR RELYING ON THIS AGREEMENT, EVEN IF PCQ OR ABW HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7. EXCLUSION OF WARRANTIES
It is expressly understood and agreed to by the parties hereto that
EXCEPT AS SPECIFICALLY PROVIDED HEREIN, ALL WARRANTIES, EXPRESSED OR IMPLIED,
INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE, ARE HEREBY EXCLUDED.
8. CONFIDENTIALITY OF PROPRIETARY INFORMATION
A. ABW understands and acknowledges the proprietary nature of the
HYPERFEED and SOFTWARE provided by PCQ and that said HYPERFEED and SOFTWARE
have been developed as a trade secret of PCQ and at its expense. ABW agrees
to hold said information in the same manner as ABW deals with its own
proprietary information and trade secrets. Furthermore, ABW agrees not to
attempt any reverse engineering of the HYPERFEED to decode the signals used
by PCQ in transmitting the information.
B. PCQ understands the proprietary nature of any information belonging
to ABW, and recognizes the harm that can be occasioned to user by disclosure
of information relative to ABW's activities, PCQ agrees to hold such
information in the same manner as PCQ deals with its own proprietary
information and trade secrets.
C. PCQ acknowledges the confidential nature of ABW's use of the
SOFTWARE and HYPERFEED during the initial term of this agreement. Due to the
unannounced platform on which ABW shall make available its electronic service
to its client during this initial term, PCQ shall in no way disclose to other
parties the substance nor acknowledge the existence of this agreement. Any
advertising or disclosure of the relationship between the parties, use of
either's marks, names or reference by the other shall be approved by both
parties prior to release.
9. INDEMNIFICATION
A. ABW hereby agrees to defend, indemnify and hold harmless PCQ, its
employees, agents, successors and assigns, harmless, including reasonable
attorney's fees, from and against any of the following:
1. Any and all claims, liabilities, and obligations claimed by any
third party or parties against PCQ and arising directly out of ABW's use of
the Service.
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2. Any and all claims, liabilities, or obligations resulting from
ABW's misrepresentations, negligence, willful misconduct, breach of
warranty or non-performance of any of the covenants or obligations under
this Agreement or from any misrepresentations or omissions made by ABW to
PCQ, including specifically, but not limited to, any authority required of
ABW pursuant to Section 6 hereof.
B. Such indemnification by ABW shall only be effective if the claim,
liability or obligation claimed by the third party is in no way related to
PCQ's negligence, willful misconduct or failure to perform any of its
obligations under this Agreement.
C. PCQ hereby agrees to defend, indemnify and hold ABW harmless,
including reasonable attorney's fees, from and against any claim that the
SOFTWARE or HYPERFEED infringes on the patent, copyright or other proprietary
rights of another, including any and all claims, liabilities, or obligations
resulting from PCQ's negligence, willful misconduct, misrepresentations,
breach of warranty or non-performance of any of the covenants or obligations
under this Agreement.
D. Such indemnification by PCQ shall only be effective if:
1. The claim, liability or obligation claimed by the third party is
in no way related to ABW's negligence, willful misconduct or failure to
perform any of its obligations under this Agreement.
2. ABW notifies PCQ promptly in writing of any claim or threatened
claim against ABW and thereafter cooperates with PCQ so that PCQ will not
be prejudiced in the defense, settlement or other handling thereof and ABW
permits PCQ, at PCQ's option and expense, to control the defense,
settlement or other handling of such claim.
10. ASSIGNMENT
This Agreement or any rights or obligations granted hereunder may not be
assigned by ABW without the prior written consent of PCQ.
11. APPLICABLE LAW AND VENUE
This Agreement shall be interpreted, construed and enforced in all
respects in accordance with the laws of the State of Illinois, except with
regards to its rules regarding choice of law. Each party irrevocably
consents to the jurisdiction of the courts of the State of Illinois and the
federal courts situated in the State of Illinois, in connection with any
action to enforce the provisions of this Agreement, to recover damages or
other relief for breach or default under this Agreement, or otherwise arising
under or by reason of this Agreement.
12. SEVERABILITY AND SURVIVAL
A. Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this
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Agreement shall be prohibited by or invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement.
B. The provisions dealing with indemnification and confidentiality and
any other section of this Agreement, unless specifically stated otherwise,
which may reasonably be interpreted or construed as surviving the completion,
expiration, termination or cancellation of this Agreement, shall survive the
completion, expiration, termination or cancellation of this Agreement.
13. MISCELLANEOUS PROVISIONS
A. The parties to this Agreement are independent contractors with
requisite corporate power and authority to enter into this Agreement and
carry out the transactions contemplated hereby. Neither party is a ABW or
representative of the other party. Neither party shall have any right, power
or authority to enter into any agreement for or on behalf of, or incur any
obligation or liability of, or to otherwise bind, the other party. This
Agreement shall not be interpreted or construed to create an association,
joint venture or partnership between the parties or to impose any partnership
obligation or liability upon either party.
B. Any notice, approval, request, authorization, direction or other
communication under this Agreement shall be given in writing and shall be
deemed to have been delivered and given for all purposes, (i) on the delivery
date if delivered personally to the party to whom the same is directed, or
(ii) three business days after the mailing date, whether or not actually
received, if sent by registered U.S. mail postage and charges prepaid, to the
address of the party to whom the same is directed as set forth in the
introductory paragraph of this Agreement. Either party may change its
address specified above by giving the other party notice of such change in
accordance with this Section 13.B.
All notices delivered to ABW shall be delivered to the address above,
attention:
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇
C. The failure of either party to insist upon or enforce strict
performance by the other party of any provision of this Agreement or to
exercise any right under this Agreement shall not be construed as a waiver or
relinquishment to any extent of such party's right to assert or rely upon any
such provision of right in that or any other instance; rather, the same shall
be and remain in full force and effect.
14. ENTIRE AGREEMENT
A. As used herein, the term "Agreement" includes any written amendments,
modifications or supplements made in accordance herewith.
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B. ABW and PCQ acknowledge that they have read this Agreement,
understand it, and agree to be bound by its terms and further acknowledge and
agree that it constitutes the entire agreement of the parties hereto and
supersedes all other proposals, oral or written, and all other communications
between the parties relating to the subject matter hereof and this Agreement
may not be modified or terminated orally. No amendment to this Agreement
shall be effective unless it is in writing and signed by duly authorized
representatives of both parties.
IN WITNESS WHEREOF, the parties hereto hereby execute this Agreement.
AGREED TO:
PC QUOTE, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. Chappeto
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. Chappeto
Title: Vice President
Date: 10-11-96
▇.▇. ▇▇▇▇▇▇, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Director
Date: 10-11-96
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SCHEDULE A
TO THE CO-BRANDING AGREEMENT BETWEEN
PC QUOTE, INC. AND ▇.▇. ▇▇▇▇▇▇, INC. DATED OCTOBER 11, 1996
SCHEDULE OF SERVICES AND FEES
I. Monthly Software and Hyperfeed per terminal fees payable by ABW to PCQ:
Level A. (equivalent to the PCW 6.0 Level 1) Includes [ *** ]
$[ *** ]/month/ABW client
Level B. (equivalent to PCW 6.0 Level II) Includes [ *** ]
$[ *** ]/month/ABW client
Level C. Includes [ *** ]
$[ *** ]/month/ABW client
plus $[ *** ]/trade executed via this level of
service
Level D. Includes [ *** ]
$[ *** ]/month/ABW client
The above schedule of monthly service fees includes [ *** ]. It
does not include [ *** ]. These ABW client fees will be paid to
PCQ on a monthly basis.
II. If an existing PCQ client migrates to the ABW service, or if PCQ brings an
Ultimate Trader client to ABW, ABW shall pay to PCQ an additional
$[ *** ] per executed trade for every trade conducted by this client
during the course of this Agreement.
By: PC Quote, Inc. By: ▇.▇. ▇▇▇▇▇▇, Inc.
/s/ ▇▇▇▇▇▇▇ ▇. Chappeto /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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[LOGO]
AMENDMENT TO SECTION 2, PART B OF THE CO-BRANDING AGREEMENT
This amendment to Section 2 (titled "Term"), Part B of the Co-Branding
Agreement is made effective December 9, 1996 by and between PC Quote, Inc.
(hereinafter referred to as "PCQ") and ▇.▇. ▇▇▇▇▇▇, Inc. (hereinafter
referred to as "ABW"), who are also the parties contracted in the
aforementioned Co-Branding Agreement. This Amendment shall apply to said PCQ
and ABW and all of their subsidiaries and related companies.
Provided both PCQ and ABW agree to a renewal of the entire Co-Branding
Agreement for a third year: at the conclusion of the third year, the entire
Co-Branding Agreement shall automatically review itself for an additional one
(1) year term unless either party sends notice at least sixty (60) days
before the third anniversary of the effective date of this Agreement. Notice
expressing a desire to terminate this Agreement or change any of the terms of
this Agreement will be sent by certified mail to the address indicated in the
Agreement. Said termination will be effective as of the last day of the
month in which this anniversary occurs.
Provided both PCQ and ABW agree to a renewal of the entire Co-Branding
Agreement for a fourth year: at the conclusion of the fourth year, the
entire Co-Branding Agreement shall automatically renew itself for an
additional one (1) year term unless either party sends notice at least sixty
(60) days before the fourth anniversary of the effective date of this
Agreement. Notice expressing a desire to terminate this Agreement or change
any of the terms of this Agreement will be sent by certified mail to the
address indicated in the Agreement. Said termination will be effective as of
the last day of the month in which this anniversary occurs.
AGREED TO BY:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------- ----------------------------------
▇.▇. ▇▇▇▇▇▇, Inc. PC Quote, Inc.
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Director President
Date: 12/5/96 Date: 12/12/96
[LOGO]
SECOND AMENDMENT
TO
CO-BRANDING AGREEMENT
THIS SECOND AMENDMENT TO CO-BRANDING AGREEMENT (this "Amendment") is
made and entered into, effective for all purposes and in all respects as of
the 23rd day of February, 1998, by and between PC QUOTE, INC., with its
principal place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ("PCQ") and ▇.▇. ▇▇▇▇▇▇, Inc., with its principal place of business at
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("ABW").
WHEREAS, PCQ and ABW have executed that certain Co-Branding Agreement
dated October 11, 1996, as amended on December 10, 1996 (as so amended, the
"Agreement");
WHEREAS, the parties hereto desire to further amend the Agreement to
modify the provisions of the Agreement regarding automatic renewal of the
term thereof; and
WHEREAS, the parties hereto desire to set forth herein the terms and
conditions of their agreements and understandings with respect to the
foregoing.
NOW, THEREFORE, in consideration of the foregoing, of the mutual
promises for the parties contained herein and of other good valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto, intending legally to be bound, hereby covenant and agree
as follows:
1. The preamble hereto is incorporated herein and, by this reference, is
made a substantive part hereof.
2. The text of Section 2.A. and B. of the Agreement is hereby deleted in
its entirety and the following language is inserted in its stead:
A. The initial term of this License Agreement shall expire
on December 31, 2000. Neither PCQ nor ABW shall terminate
or alter this Agreement except as stated herein.
B. Unless written notice of non-renewal is given by one
party to the other not later than December 31, 1999, this
Agreement shall be automatically renewed until December 31,
2001. Thereafter, unless written notice of non-renewal is
given by one party to the other not later than each one-year
anniversary of December 31, 1999, this Agreement shall be
automatically renewed for a further two (2) year term. By
way of example: (i) if notice of non-renewal is not
received by December 31, 2000, this Agreement shall be in
full force and effect through December 31, 2002 and (ii) if
notice of non-renewal is not received by December 31, 2001,
this Agreement shall be in full force and effect through
December 31, 2003 and so on. Notice expressing a desire to
terminate this Agreement at the end of the then-current term
will be sent via certified mail to the address specified in
this Agreement.
3. To the extent, if any, that provision of this Agreement conflicts with
or differs from any provision of the Agreement, such provision of this Second
Amendment shall prevail and govern for all purposes and in all respects.
4. Except as modified hereby, the Agreement and its terms and provisions
are hereby ratified and confirmed for all purposes and in all respects.
5. This Second Amendment may be executed in several counterparts, each of
which shall be deemed an original but all of which collectively shall constitute
the same instrument.
IN WITNESS WHEREOF, the undersigned parties have hereunto affixed their
signatures and seals as of the day and year first above written.
PC QUOTE, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: VP
▇. ▇. ▇▇▇▇▇▇, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: President