Exhibit 10.38
7-24-00
VENDOR INTERFACE AGREEMENT
This VENDOR INTERFACE AGREEMENT (this "Agreement") is entered into as of by and
between Instinet UK Limited ("Instinet") and Reuters AG, ("Vendor"). (Instinet
and Vendor are sometimes referred to individually as a "Party" and collectively
as the "Parties").
W I T N E S S E T H:
WHEREAS, Vendor has the software and/or system(s) developed by one of the
Reuters Group companies. The software is more fully described in Exhibit A
attached hereto and made a part hereof (the "Vendor Product(s)"); and
WHEREAS, Instinet has created, and provided to Vendor for evaluation,
specifications using the Financial Information Exchange ("FIX") protocol for the
development or enabling of access to the Instinet System (the "Fix
Specifications": 4.0.d.9.0) for delivery by Instinet of the securities order
entry and trade reporting services described in the Fix Specifications (the
"Instinet Services") to a mutual client of Vendor and Instinet, SEB AG ("the
Customer"); and
WHEREAS, Instinet and Vendor agree that Vendor may integrate Instinet's
proprietary OpenInstinet application, ("OpenInstinet") as more fully described
in the specification dated January 15, 2000, (the "OpenInstinet BookMark
Specification"); and
WHEREAS, Instinet is willing to grant Vendor a limited license to use the
OpenInstinet BookMark Specification for the sole purpose of integrating
OpenInstinet into the Vendor Products and permitting the Customer to access
OpenInstinet and a limited license to use the FIX Specifications for the sole
purpose of permitting the Customer (as hereinafter defined) to access Instinet
Services through the Vendor Product(s), all subject to the terms and conditions
contained in this Agreement;
NOW THEREFORE, in consideration of these premises, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties agree as follows:
1. GENERAL OBLIGATIONS.
1.1 Development, Integration and Testing. Vendor shall provide the
ability to access the Instinet Services and OpenInstinet via the Vendor's
Product(s) and shall test the Vendor Product(s) to ensure that such access
operates in accordance with, and conforms to the Fix Specification and
OpenInstinet BookMark Specification (jointly, the "Specifications").
Vendor shall be solely responsible for any and all costs and expenses
incurred in the development, testing and installation of the Vendor
Product(s). The Vendor Product(s), except for OpenInstinet, are and shall
remain the property of Vendor.
1.2 Acceptance. Upon completion of Vendor's testing pursuant to Section
1.1 of this Agreement, Vendor shall test the Vendor Product(s) with
Instinet (the "Acceptance Testing") until Instinet, in its sole
discretion, has certified the Vendor Product(s) for connection to the
Instinet System and provision of the Instinet Services and OpenInstinet
via the Vendor Product(s) to the Customer ("Acceptance"). The Acceptance
Testing shall be based on the Test Document for Electronic Order Entry,
version 2.3, dated January 31, 2001. Instinet's certification of the
Vendor Product(s) and of any future version or upgrade to the Vendor
Product(s) shall be in writing.
1.3 Access to Instinet System Through Vendor Product(s). Upon Acceptance
and based on the terms and conditions contained in this Agreement, Vendor
may provide access to the Instinet Services and OpenInstinet through the
Vendor's Product(s) to the Customer.
1.4 Upgrades and Alterations.
1.4.1 Vendor. Vendor shall notify Instinet in writing as promptly as
practicable prior to the release of any upgrade or alteration to the
Vendor Product(s) that would affect the architecture of the Vendor
Product(s) as it pertains to any order directed to Instinet by the
Customer (the "Customer Orders"), the Instinet Services and/or
OpenInstinet. In the event any upgrade or modification to the Vendor
Product(s) causes any harm to Instinet or interferes in any way with
Customer Orders, the Instinet System, the Instinet Services, and/or the
OpenInstinet Book Vendor shall promptly revert to the previously certified
version of the Vendor Product(s) at Instinet's request. Vendor shall be
permitted to carry out testing of any upgrade or alternation to the Vendor
Product(s) in accordance with Section 1.1 Instinet shall have the right to
perform Acceptance Testing, in accordance with Section 1.2 herein, on all
upgrades or modifications of the Vendor Product(s) which pertain to
Customer Orders, the Instinet Services and/or OpenInstinet, prior to
release of any such upgrade or modification, provided that Instinet shall
carry out such testing promptly and with the intention of minimizing any
interruption to the launch or operation of the Vendor Product(s).
1.4.2 Instinet. Instinet may upgrade and/or alter the Specifications, in
its sole discretion, from time to time during the term of this Agreement.
Instinet shall make reasonable endeavours to consult with Vendor and
provide all technical information reasonably requested by Vendor in
relation to any proposed upgrade or modification to the Specifications.
Instinet shall notify Vendor of such upgrade and/or alteration and provide
to Vendor revised Specifications reflecting such upgrade and/or alteration
(the "Revised Specifications") as promptly as practicable.
1.5 Support Services and Training. Vendor shall make available a
commercially reasonable number of personnel expertly trained to respond to
questions from Instinet regarding the Vendor's Product(s) as pertaining to
Customer Orders, the Instinet System, the Instinet Services and/or
OpenInstinet during Vendor's normal business hours.
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1.6 Access Parity. Vendor shall ensure that the Vendor Product(s)
provide the Customer with access to Instinet Services and OpenInstinet in
a manner that is at least as favourable, both with respect to the time
required to access the Instinet Services and the mechanics by which the
Instinet Services and OpenInstinet are accessed, as the manner in which
the Vendor Product(s) provide such Customer with access to the services of
any other broker-dealer, Electronic Communication Network ("ECN") or other
order entry or trade reporting service or destination. In the event that
Vendor becomes aware (through notice from Instinet, the Customer or
otherwise) that access to Instinet Services is not available to the
Customer in accordance with the foregoing sentence, without limiting any
remedies available under this Agreement or otherwise under law, Vendor
shall use reasonable efforts to make the Customer's access to Instinet
Services compliant with the foregoing sentence. For clarity, Vendor
delivers Vendor's Product(s) without any routing preference. Vendor shall
not be responsible for any routing preferences of the Customer required
by, and implemented for, the Customer no matter by whom these preferences
are implemented.
Notwithstanding the foregoing, nothing herein shall prevent Vendor from
entering into any strategic business alliance with any broker-dealer, ECN
or other order entry or trade reporting service or destination where the
specific terms and conditions of such alliance require Vendor to provide
access to the counterparty's destination in a manner that is more
favourable than the access Vendor provides to other destinations,
including the Instinet Services.
1.7 Order Handling. Vendor shall ensure that the Customer Orders shall
be routed to Instinet in accordance with the Specifications and identified
to Instinet as the orders of the Customer. In no event shall Vendor (i)
redirect Customer Orders to any other ECN, order entry system or any other
destination, (ii) conglomerate or aggregate Customer Orders with other
Customer Orders or any other orders whatsoever, (iii) use any information
derived from the Customer Orders for any purposes other than the
fulfillment of its obligations under this Agreement (iv) match or
otherwise fill Customer Orders, or (v) take any action that would
compromise the anonymity of a Customer Order. However, Vendor shall not be
responsible if the Customer performs any of the above actions (i.e.
redirect, conglomerate or aggregate, match or fill or take action that
would compromise anonymity). Vendor is not responsible for any routine
preferences of the Customer required by, and implemented for, the
Customer.
1.8 Instinet Branding. Vendor shall ensure that all access to the
Instinet Services through the Vendor Product(s) are clearly labeled as
connecting to Instinet ("Instinet Branding"). The Instinet Branding for
the Vendor Product(s) and/or any upgrade or modification thereto shall be
mutually agreed by Vendor and Instinet.
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2. CUSTOMER.
2.1 Termination. Both of Instinet and Vendor, in their independent sole
discretion, shall have the right to terminate the Customer in accordance
with the terms of their respective agreement with the Customer. If either
Party terminates the Customer for breach by the Customer of its customer
agreement with Vendor or Instinet, such termination shall be effective in
accordance with the terms of the relevant customer agreement. The other
Party shall be provided with notice of any such termination.
The termination of the Customer pursuant hereto shall only affect
Instinet's provision of Instinet Services and OpenInstinet via the Vendor
Product(s) to the Customer. Such termination alone shall not affect any
agreement between the Customer and Instinet or any agreement between the
Customer and Vendor.
2.2 Third Party Beneficiaries. In no event shall this Agreement confer
any third party beneficiary rights upon the Customer or other clients of
Vendor, nor shall any agreement between Instinet and the Customer confer
any third party beneficiary rights upon Vendor.
3. CONFIDENTIALITY.
3.1 Provision of Confidential Matter. During the term of this Agreement,
the Parties shall provide and/or disclose to each other certain
information (including, without limitation, information concerning that
Party's business, products or technical systems), which may be written or
oral, that the Parties, their respective affiliates or their customers
deem confidential and proprietary, whether or not such information is
labeled as confidential or proprietary at the time it is provided or
disclosed ("Confidential Matter"). Confidential Matter also shall include
information relating to third party vendors or information that is
proprietary to the disclosing Party's customers or affiliates. (The Party
providing Confidential Matter is referred to in this Section 3 as the
"Providing Party," and the Party receiving Confidential Matter is referred
to in this Section 3 as the "Receiving Party").
For purposes of this Agreement, Confidential Matter shall not include (a)
information that was in the Receiving Party's possession, without
restriction, prior to its disclosure to the Receiving Party by the
Providing Party, (b) information that lawfully enters the public domain
without violation of this Section 3 by the Receiving Party, (c)
information that the Receiving Party lawfully receives from a third party
without restriction and without violation of any duty of confidentiality
owed to the Providing Party, and (d) information that is independently
developed by the Receiving Party.
3.2 Non-Disclosure. Except (i) as set forth in Section 3.4, and (ii) as
may be required by law or any regulatory body or court (but only after
compliance with Section 3.6) the Receiving Party shall maintain as
confidential and shall not disclose Confidential Matter in whole or in
part, directly or indirectly, to any other individual, firm, corporation
or government authority.
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3.3 Use of Confidential Matter. Following the receipt of Confidential
Matter, the Receiving Party shall (i) use at least the same degree of
care, but in no event less than reasonable care, to protect such
Confidential Matter as the Receiving Party uses with respect to its own
confidential and proprietary information; and (ii) use such Confidential
Matter only to fulfill its obligations under this Agreement and only in
accordance with the terms and conditions of this Agreement.
3.4 Representatives of the Receiving Party. Notwithstanding the
restrictions set forth in Section 3.2, the Receiving Party may furnish the
Confidential Matter to any of its directors, officers, employees,
subsidiaries, agents and sub-contractors (collectively, "Representatives")
who need to know such information for the purposes set forth in Section
3.3; provided, however, that such Representatives are instructed to keep
such information confidential in accordance with this Section 3. The
Receiving Party shall be responsible for any breach of this Section 3 by
any of its Representatives and agrees, at its sole expense, to take all
reasonable measures (including but not limited to court proceedings) to
restrain its Representatives from prohibited or unauthorised disclosure or
use of any Confidential Matter.
3.5 No Other Rights. Nothing contained in this Section 3 shall be
construed as granting or conferring any rights by license or otherwise to
the Receiving Party in any Providing Party's Confidential Matter.
3.6 Required Disclosure. If a Receiving Party is requested or required
in any judicial or administrative proceeding or by any regulatory body or
court to disclose any Confidential Matter, such Receiving Party shall (i)
use its best efforts to give the Providing Party prompt notice of such
request so that it may seek an appropriate protective order or other
remedy and (ii) consult with the Providing Party as to the advisability of
taking legally available steps to resist or narrow such request or
requirement. The Receiving Party shall cooperate fully with the Providing
Party (at the Providing Party's expense) in obtaining such an order or
other remedy. If in the absence of an appropriate protective order or
other remedy the Receiving Party is nonetheless legally required to
disclose Confidential Matter, the Receiving Party may make such disclosure
without liability hereunder; provided, however, that the Receiving Party
shall use its reasonable efforts to give the Providing Party written
notice of the information to be disclosed as far in advance of its
disclosure as is practicable and, upon the Providing Party's request and
at its expense, use its reasonable efforts to obtain reasonable assurances
that confidential treatment will be accorded to such Confidential Matter.
4. MARKETING.
4.1 VENDOR IS EXPRESSLY PROHIBITED FROM RELEASING THE IDENTITY OF THE
CUSTOMER TO ANY THIRD PARTY WITHOUT FIRST OBTAINING THE WRITTEN CONSENT OF
THE CUSTOMER AND PROVIDING A COPY THEREOF TO INSTINET.
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5. REPRESENTATIONS AND WARRANTIES.
5.1 Vendor Representations, Warranties and Covenants. Vendor represents,
warrants and covenants to Instinet that:
5.1.1 the execution and delivery by Vendor of this Agreement and the
performance of its obligations hereunder have been authorised by all
necessary action, corporate and otherwise, and that this Agreement
constitutes a legal, valid and binding obligation of Vendor enforceable in
accordance with its terms, except to the extent that such enforceability
is subject to or limited by bankruptcy, insolvency or similar laws
relating to the enforcement of creditor's rights;
5.1.2 the execution and delivery by Vendor of this Agreement and the
performance of its obligations hereunder does not breach any law, rules or
regulations to which Vendor is subject or any agreement, obligation or
restriction by which Vendor is bound, and Vendor will not enter into or
assume any agreement, obligation or restriction that will interfere with
any of its obligations hereunder or the rights granted herein.
5.2 Instinet Representations, Warranties and Covenants. Instinet
represents, warrants and covenants to Vendor that:
5.2.1. the execution and delivery by Instinet of this Agreement and the
performance of its obligations hereunder have been authorised by all
necessary action, corporate and otherwise, and this Agreement constitutes
a legal, valid and binding obligation of Instinet enforceable in
accordance with its terms, except to the extent that such enforceability
is subject to or limited by bankruptcy, insolvency or similar laws
relating to the enforcement of creditor's rights;
5.2.2 the execution and delivery by Instinet of this Agreement and the
performance of its obligations hereunder does not breach any law, rules or
regulations to which Instinet is subject or any agreement, obligation or
restriction by which Instinet is bound and Instinet will not enter into or
assume any agreement, obligation or restriction that will interfere with
any of its obligations hereunder or the rights granted herein; and
5.2.3 Instinet has the right and authority to grant the license to the
Specifications.
6. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY. EXCEPT AS SET FORTH
IN SECTION 5.1 OF THIS AGREEMENT WITH RESPECT TO VENDOR, AND SECTION 5.2
OF THIS AGREEMENT WITH RESPECT TO INSTINET, (I) THE VENDOR PRODUCT(S),
WITH RESPECT TO VENDOR, AND (II) THE SPECIFICATIONS AND INSTINET SERVICES,
WITH RESPECT TO INSTINET, ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY
KIND BY VENDOR OR INSTINET, RESPECTIVELY, INCLUDING BUT NOT LIMITED TO ANY
IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
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PARTICULAR PURPOSE. EXCEPT WITH RESPECT TO THE INDEMNIFICATION OBLIGATIONS
CONTAINED IN SECTION 7 OF THIS AGREEMENT OR ANY INTENTIONAL MATERIAL
BREACH OF THE CONFIDENTIALITY OBLIGATIONS CONTAINED IN SECTION 3 OF THIS
AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER OR ANY THIRD PARTY
CLAIMING THROUGH THE OTHER, FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL
DAMAGES ARISING OUT OF THE FURNISHING, PERFORMANCE, OR USE OF, OR
INABILITY TO USE, THE SPECIFICATIONS, THE VENDOR PRODUCTS(S) OR THE
INSTINET SERVICES PROVIDED UNDER THIS AGREEMENT.
7. INDEMNIFICATION
7.1 Vendor Indemnification of Instinet. Subject to the limitations set
forth in this Section 7.1, Vendor, at its own expense, shall: (i)
indemnify, defend and hold Instinet and/or any of its affiliates and its
or their respective officers, directors, partners, employees, agents or
representatives (collectively, the "Instinet Indemnitees"), harmless from
and against (or at its option, but with Instinet's prior agreement,
settle) any claim, action, suit or proceeding against Instinet or any of
its affiliates and any of their respective officers, directors, partners,
employees, agents and representatives on the basis of (A) any alleged
infringement in whole or in part, of any third party's patent, copyright,
trade secret or other intellectual property rights by the Vendor
Product(s), and (B) any breach by Vendor of the obligations in Sections
1.6, 1.7, 1.8, or the representations, warranties or covenants set forth
in Section 5.1 of this Agreement; (ii) pay any final judgment entered or
settlement against Instinet and indemnify and defend and hold Instinet
harmless from and against all damages, liabilities, costs and expenses
incurred by Instinet arising out of or in connection with any such claim,
action, suit or proceeding. Vendor shall have no obligation to any of the
Instinet Indemnitees pursuant to this Section 7.1 unless: (A) Instinet
provides Vendor prompt written notice of the claim, action, suit or
proceeding after Instinet's discovery thereof; (B) Vendor is given the
right to control and direct the investigation, preparation, defense and
settlement of the claim, action, suit or proceeding; provided, however,
that Instinet shall retain the right to file an answer or take any other
action necessary to prevent the entry of a default judgment or injunction
against it and the right to consult with Vendor regarding the litigation
or settlement; and (C) Instinet gives Vendor reasonable assistance and
information at Instinet's expense in connection with such claim, action,
suit or proceeding.
7.2 Instinet Indemnification of Vendor. Subject to the limitations set
forth in this Section 7.2, Instinet, at its own expense, shall: (i)
indemnify, defend and hold Vendor and/or any of its affiliates and its or
their respective officers, directors, partners, employees, agents or
representatives (collectively, the "Vendor Indemnitees"), harmless from
and against (or at its option, but with Vendor's prior agreement, settle)
any claim, action, suit or proceeding against Vendor or any of its
affiliates and any of their respective officers, directors, partners,
employees, agents and representatives on the basis of (A) any alleged
infringement in whole or in part, of any third party's intellectual
property rights by the Specifications (unless such Specifications are
jointly developed by
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Instinet and Vendor) (B) the Instinet Services (unless such Instinet
Services are modified or altered by Vendor); and (C) any breach by
Instinet of the representations, warranties or covenants set forth in
Section 5.2 of this Agreement; and (ii) pay any final judgment entered or
settlement against Vendor and indemnify and defend and hold Vendor
harmless from and against all damages, liabilities, costs and expenses
incurred by Vendor arising out of or in connection with any such claim,
action, suit or proceeding. Instinet shall have no obligation to any of
the Vendor Indemnitees pursuant to this Section 7.2 unless: (A) Vendor
provides Instinet prompt written notice of the claim, action, suit or
proceeding after Vendor's discovery thereof; (B) Instinet is given the
right to control and direct the investigation, preparation, defense and
settlement of the claim, action, suit or proceeding; provided, however,
that Vendor shall retain the right to file an answer or take any other
action necessary to prevent the entry of a default judgment or injunction
against it and the right to consult with Instinet regarding the litigation
or settlement; and (C) Vendor gives Instinet reasonable assistance and
information at Vendor's expense in connection with such claim, action,
suit or proceeding.
8. TERM, TERMINATION, EFFECT OF TERMINATION AND SURVIVAL.
8.1 Term. This Agreement shall be effective as of the date first written
above and shall remain in effect until terminated by either Party pursuant
to this Section 8.
8.2 Termination.
8.2.1 Termination for breach. Either Party may terminate this Agreement ,
by giving written notice to the other Party in the event that the other
Party commits a material breach of its obligations under this Agreement
which (if capable of remedy) is not remedied within 30 days of receipt of
a notice requesting that the breach be remedied,
8.2.2 Termination for insolvency. Either Party may terminate this
Agreement immediately and without notice if the other Party makes an
assignment for the benefit of its creditors, files or has filed against it
a petition under any bankruptcy, insolvency, reorganization or similar
law, has a trustee or receiver appointed over any of its property or
commences (by resolution or otherwise) the liquidation or winding-up of
its affairs.
8.3 Effect of Termination and Survival.
8.3.1 Instinet and Vendor. Upon termination of this Agreement pursuant to
this Section 8, the Parties shall promptly return to the other Party any
tangible Confidential Matter in its possession, purge all Confidential
Matter from its electronic records, and immediately cease all marketing
efforts, including any use of the other Party's name, trademark, service
▇▇▇▇ or logo.
8.3.2 Survival. Sections 3, 4.2, 6, 7, 8.3.2, and 9.6 of this Agreement
shall survive any termination of this Agreement for any reason.
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9. MISCELLANEOUS.
9.1 Equitable Relief. The Parties agree that the remedy at law for any
breach by either Party of the terms of Sections 3 and 4 and 1.7 hereof
will be inadequate and that, accordingly, in addition to any remedies
either Party may have at law, both Parties will be entitled to apply for
and obtain equitable relief in any court of competent jurisdiction to
restrain the breach or threatened breach of, or otherwise to specifically
enforce such terms.
9.2 Notices. All notices which are required to be given pursuant to this
Agreement shall be in writing and shall be hand delivered, sent by
overnight courier (such as Federal Express), or sent by facsimile
transmission, with a confirming copy sent by first class mail, postpaid,
or sent by registered or certified mail, return receipt requested, to the
following address or to such other address as a Party may from time to
time designate by notice. Such notices shall be deemed given upon receipt
if hand delivered, on the next business day if sent by overnight courier,
upon receipt of a confirmation of transmission if sent via facsimile or
three (3) business days after mailing if sent via registered or certified
mail:
If to Instinet: Commodity Quay,
East Smithfield
London E1W 1AZ
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
With a copy to: Address as above
Attention: European General Counsel
If to Vendor: Alexander Tuis
Reuters Consulting
Messeturm
▇▇▇▇▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ ▇▇
▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address as above
9.3 Entire Agreement and Amendment. This Agreement, including the
Exhibits, if any, contains the entire agreement between the parties with
respect to the subject matter hereof and supersedes all other prior or
contemporaneous oral or written communications, proposals, agreements and
representations with respect to the subject
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matter. No amendment or modification to this Agreement shall be binding,
unless it is in writing and executed by each Party.
9.4 Assignment. This Agreement and the rights granted and obligations
undertaken hereunder may not be transferred, assigned or delegated, by
operation of law or otherwise, by either Party without the consent of the
other Party (which consent shall not be unreasonably withheld or delayed),
provided that each Party may assign or transfer this Agreement to any
other member of its respective group without consent.
9.5 Waiver of Compliance and Severability. Any waiver of any provision
of this Agreement, or any delay by either party in the enforcement of any
right hereunder, shall neither be construed as a continuing waiver nor
create an expectation of non-enforcement of that or any other provision or
right. In the event any one or more of the provisions of this Agreement
shall for any reason be held to be invalid, illegal or unenforceable, the
remaining provisions of this Agreement shall be unimpaired, and the
Parties shall negotiate in good faith to substitute a provision of like
economic intent and effect.
9.6 Governing Law and Choice of Forum. This Agreement is made under and
shall be governed by and construed in accordance with the laws of England
and Wales. Both parties consent to the jurisdiction of the courts of
England and Wales, and agree to institute any and all actions relating to
this Agreement in such courts.
9.7 Interpretation. The section headings contained in this Agreement are
solely for the purpose of reference, are not part of the agreement between
the parties and shall not in any way affect the meaning or interpretation
of this Agreement.
9.8 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and both of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the authorised officers of the parties hereto have
executed this Vendor Interface Agreement as of the date first written
above.
REUTERS AG, Frankfurt am Main Instinet UK LIMITED
By: By:
--------------------------- ------------------------------
Name: Name:
Title: Title:
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EXHIBIT A
DESCRIPTION OF VENDOR PRODUCT(S)
Effix FIX-Gateway, version V2.4.1.L5 and the SEB Commission Trader Foreign
Font-end GUI.
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