Exhibit 10.5
REGULATORY SERVICES AGREEMENT
between
NASD REGULATION, INC.
and
THE NASDAQ STOCK MARKET, INC.
Dated as of June 28, 2000
TABLE OF EXHIBITS
Exhibit 1 Statement of Work
Exhibit 2 Change Control Procedures
THIS REGULATORY SERVICES AGREEMENT (Agreement), dated as of June
28, 2000 (Effective Date), is by and between NASD Regulation, Inc., a
Delaware nonprofit corporation with its principal place of business located
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Nasdaq Stock Market, Inc. (Nasdaq), a Delaware corporation with its
principal place of business presently located at ▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇.,
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇ [
W I T N E S S E T H:
WHEREAS, Nasdaq desires to procure effective and fair regulatory
services;
WHEREAS, NASD Regulation is uniquely qualified to provide such
services to Nasdaq; and
WHEREAS, NASD Regulation desires to provide to Nasdaq, and Nasdaq
desires to obtain from NASD Regulation, the regulatory and related services
described in this Agreement on the terms and conditions set forth in this
Agreement for Nasdaq.
NOW, THEREFORE, for and in consideration of the agreements set
forth below, Nasdaq and NASD Regulation hereby agree as follows:
SECTION 1 DEFINITIONS AND CONSTRUCTION.
1.01 Definitions. The following defined terms used throughout this
Agreement will have the meanings specified below. Additional definitions of
specific terms used in this Agreement may be found in subsequent Sections.
Affiliate will mean, as to any entity, any other entity that,
directly or indirectly, Controls, is Controlled by or is under
common Control with such entity.
Agreement will mean this Regulatory Services Agreement by and
between Nasdaq and NASD Regulation.
Century Compliant will mean, with respect to Software and Systems,
that such Software and Systems, respectively, will (1) operate and
produce data on and after January 1, 2000 (including taking into
effect that such year is a leap year), accurately and without
delay, interruption or error and (2) accept, calculate, process,
maintain, write and output, accurately and without delay,
interruption or error, all dates, whether before, on or after
12:00 a.m. January 1, 2000 (including taking into effect that such
year is a leap year), and any time periods determined or to be
determined based on any such dates.
Change(s) will mean any change in (1) the Services, (2) the
Systems that would materially alter the functionality, performance
standards or technical environment of the Systems, (3) the manner
in which the Services are provided, (4) the composition of the
Services or an applicable Service Tower, (5) the Fees, or (6)
relevant operating and security procedures.
Change Control Procedures will mean the written description that
defines how Changes will be implemented.
Change in Control will mean the (1) consolidation or merger of a
Party with or into any entity pursuant to which that Party is not
the surviving entity (2) sale, transfer or other disposition of
all or substantially all of the assets of a Party, (3) acquisition
by any entity, or group of entities acting in concert, of
beneficial ownership of 51 percent or more (or such lesser
percentage that constitutes Control) of the outstanding voting
securities or other ownership interests of a Party or (4) other
reorganization of a Party.
Claim will mean any (1) written demand or (2) civil, criminal,
administrative or investigative action or proceeding by a third
party against either Nasdaq or NASD Regulation.
Control will mean, with respect to any entity, the possession,
directly or indirectly, of the power to direct or cause the
direction of the management and policies of such entity, whether
through the ownership of voting securities (or other ownership
interest), by contract or otherwise.
Fees will mean the amounts payable by Nasdaq to NASD Regulation
under the terms of this Agreement for: (i) for the Services
provided; and (ii) any other amounts payable by Nasdaq to NASD
Regulation pursuant to NASD Regulation's performance of this
Agreement.
Governmental Authority will mean any Federal, state, municipal,
local, territorial, or other governmental department, regulatory
authority, judicial or administrative body, whether domestic,
foreign or international.
Intellectual Property. shall mean patents, patent applications,
registered and unregistered trade marks and service marks,
registered and unregistered copyrights, trade names, computer
programs, data bases, trade secrets, proprietary information and
include all rights in information created under laws governing
patents, copyrights, mask works, trade secrets, trademarks,
publicity rights, or any other law that permits a person,
independently of contract, to control or preclude another person's
use of the information on the basis of the rights holder's
interest in the information.
Interest will mean the prime commercial rate plus one percent per
annum as announced from time to time by Chase Manhattan Bank, or
its successors or assigns, at its principal office in the United
States.
Law will mean any declaration, decree, directive, legislative
enactment, order, ordinance, regulation, rule or other binding
restriction of or by any Governmental Authority.
Losses will mean any and all damages, fines, penalties,
deficiencies, losses, liabilities (including settlements and
judgments) and expenses (including interest, court costs,
reasonable fees and expenses of attorneys, accountants and other
experts and professionals or other reasonable fees and expenses of
litigation or other proceedings or of any Claim, default or
assessment) but not expenses of the indemnified party (except
those of cooperation set forth in Section 21.04(3)) if the
indemnifying Party is defending the indemnified Party.
Machines will mean computers and related equipment, including
central processing units and other processors, controllers,
modems, communications and telecommunications equipment (voice,
data and video), cables, storage devices, printers, terminals,
other peripherals and input and output devices, and other tangible
mechanical and electronic equipment intended for the processing,
input, output, storage, manipulation, communication, transmission
and retrieval of information and data and Related Documentation
used by the Parties in their performance of this Agreement.
Nasdaq will mean The Nasdaq Stock Market, Inc. and its subsidiaries
and affiliated entities.
Nasdaq Data will mean Nasdaq Market Data, but shall not include:
(1) data that NASD Regulation has obtained elsewhere or by
regulatory mandate, or is able to obtain elsewhere (including, but
not limited to, data obtained from NASD member firms on a
voluntary or prescribed basis) notwithstanding having obtained
such data from Nasdaq; (2) data derived by NASD Regulation using
Nasdaq Market Data; (3) NASD Regulation Confidential Information;
or (4) NASD Regulation proprietary information.
Nasdaq Market Data will mean certain data and other information
relating to: (i) securities or other financial instruments,
products, vehicles or devices traded in the Nasdaq Stock Market or
other markets operated by Nasdaq (including over-the-counter
Bulletin Board and any other third market facility) (ii) Persons
regulated by Nasdaq or the activities of such Persons; or (iii)
information gathered by Nasdaq from other sources that is
reasonably required by NASD REGULATION to provide the Services..
NASD Regulation will mean NASD Regulation, Inc. and other present
or future subsidiaries and affiliated organizations of the
National Association of Securities Dealers, Inc. (NASD) that
assist or facilitate NASD Regulation's provision of regulatory
services to Nasdaq.
Parties will mean Nasdaq and NASD Regulation, collectively.
Party will mean either Nasdaq or NASD Regulation, as the case may
be.
Person will mean a natural person, proprietorship, corporation,
partnership or other entity whatsoever.
Related Documentation will mean, with respect to Software, Systems
and Machines and related tools and utilities, all materials,
documentation, specifications, technical manuals, user manuals,
flow diagrams, file descriptions and other written information
that describes the function and use of such Software, Systems or
Machines, as applicable.
Services will mean, collectively, the regulatory and related
services provided by NASD Regulation to Nasdaq pursuant to this
Agreement, and any assistance provided to Nasdaq by NASD
Regulation after the termination or expiration of this Agreement.
Software will mean the object code and the source code versions of
any applications programs, operating system software, computer
software languages, utilities, other computer programs and Related
Documentation, in whatever form or media, including the tangible
media upon which such applications programs, operating system
software, computer software languages, utilities, other computer
programs and Related Documentation are recorded or printed,
together with all corrections, improvements, updates, upgrades,
versions and releases thereof used by the Parties in their
performance of this Agreement.
Systems will mean the Software, Machines and related tools,
utilities and equipment, collectively, used by a Party to perform
this Agreement.
Term will mean the Initial Term and any renewal of this Agreement
pursuant to Section 3.02 herein and, if applicable, the Extension
Period.
1.02 Incorporation and References. In this Agreement and
the Exhibits to this Agreement:
(1) the Exhibits to this Agreement are hereby incorporated into and
deemed part of this Agreement and all references to this Agreement
will include the Exhibits to this Agreement;
(2) references to an Exhibit, Section or Article will be to such Exhibit
to, or Section or Article of this Agreement unless otherwise provided;
(3) references to any Law will mean references to such Law in changed
or supplemented form or to a newly adopted Law replacing a
previous Law; and
(4) references to and mentions of the word "including" or the phrase
"e.g." will mean "including, without ---- limitation."
1.03 Headings. The Article and Section headings, Table of
Contents and Table of Exhibits are for reference and convenience only and
will not be considered in the interpretation of this Agreement.
1.04 Interpretation of Documents. Except as otherwise
expressly set forth in the body of this Agreement or in any of the
Exhibits, in the event of a conflict between the provisions in the body of
this Agreement and the Exhibits, the provisions in the body of this
Agreement will prevail.
SECTION 2 SERVICES.
2.01 Designated Services. Commencing as of the
Commencement Date and continuing throughout the Term and any period of
termination assistance pursuant to Section 20 herein, NASD Regulation will
provide to Nasdaq:
(1) full regulatory services including, without limitation, those
services currently being performed by NASD Regulation plus
specified Member Operations as set forth in the Statement of Work
between the Parties, a copy of which is attached hereto as Exhibit
1 and made a part of this Agreement;
(2) NASD Regulation administrative functions reasonably related
necessary for NASD Regulation's performance in connection with any
of the foregoing; and
(3) any services or responsibilities not specifically described in
this Agreement that are mutually agreed upon by the Parties. These
Services, however, will not include any services that are provided
by NASD Regulation pursuant to agreements governed by Section
17(d), Rule 17d-1, or Rule 17d-2 of the Securities Exchange Act of
1934.
2.02 Service Towers. NASD Regulation will organize all of
the Services that it provides to Nasdaq in performance of this Agreement
into a series of towers. Each tower will represent a collection of services
that NASD Regulation has determined to be related due to interrelationships
among the types of services to be provided and the different skill
requirements required to perform them (Service Tower). Nasdaq must purchase
all of the Services in a Service Tower from NASD Regulation. Nasdaq cannot
purchase some Services, but not others in the same Service Tower. The
existing Service Towers upon the Effective Date of this Agreement are: (i)
Member Operations; (ii) Surveillance, Examinations and Investigations;
(iii) Formal Disciplinary Process; and (iv) Dispute Resolution. A more
detailed description of each of these Service Towers is set forth in
Exhibit 1 attached hereto. Notwithstanding the attachment of Exhibit 1, the
Parties shall undertake a review of the Exhibit after the execution of the
Agreement to ensure the Exhibit's accuracy in anticipation of the
commencement of the provision of Services. Services shall commence upon the
effectiveness of Nasdaq's registration as a national securities exchange
("Commencement Date"). The Parties will, thereafter, amend Exhibit 1 as
often as may be reasonably necessary to accurately reflect the Services
being provided by NASD Regulation to Nasdaq.
2.03 ***** *
2.04 Nasdaq Services. Nasdaq will provide such specific
Nasdaq services to NASD Regulation as NASD Regulation may require to
provide the Services to Nasdaq under this Agreement. Nasdaq will provide
such services to NASD Regulation on such terms as the Parties may agree
upon.
SECTION 3 TERM.
3.01 Initial Term. The initial term of this Agreement will
commence on the Commencement Date and continue for a period of ten (10)
years from the Commencement Date (Initial Term) unless this Agreement is
terminated by the Parties prior to that date in accordance with the
provisions of Section 19 herein.
* ***** Confidential Treatment has been requested for the redacted
portions. The confidential redacted portions have been filed separately
with the Securities and Exchange Commission.
3.02 Renewal. Unless this Agreement is terminated earlier
pursuant to Section 19 herein, Nasdaq will provide NASD Regulation with
written notice of its intent to renew this Agreement at least one (1) year
prior to the expiration of the Initial Term of this Agreement. If Nasdaq
does not intend to renew this Agreement, this Agreement will expire at the
end of the Initial Term. The Parties may renew this Agreement for such
length of time and upon such revised terms as they may mutually agree upon.
3.03 Extension Period. If the notice from Nasdaq made
pursuant to Section 3.02 herein indicates that Nasdaq desires to renew this
Agreement and the Parties have not agreed on the terms and conditions
applicable to the renewal of this Agreement within thirty (30) days prior
to the expiration of the Initial Term of this Agreement then, upon notice
by Nasdaq delivered prior to the expiration of the Initial Term, the term
of this Agreement will be extended for such period as may be mutually
agreed upon by the Parties (Extension Period), upon the same terms and
conditions and charges as are in effect as of the expiration of the Initial
Term of this Agreement. If during the Extension Period the Parties are
unable to reach agreement on the terms and conditions applicable to a
renewal of this Agreement, this Agreement will expire at the end of the
Extension Period unless the Parties mutually agree in writing to a
continuation of the Extension Period.
SECTION 4 PROVISION OF SERVICES.
4.1 ***** *
4.02 *****
4.02.1 *****
4.02.2 Independent Report. Upon receipt of a proposal
pursuant to Section 4.02.1 herein, NASD Regulation may request that the
Parties retain an independent third party to analyze whether the services
being proposed are comparable in scope and quality to those being performed
by NASD Regulation. The Parties will share the cost of this analysis
equally. Such independent third party will have sixty (60) days to provide
a written analysis of its findings to the Parties.
4.02.3 *****
4.02.4 *****
4.02.5 ***** .
4.03 Bidding on Services. NASD Regulation will have the
right to bid on the provision of regulatory services to Nasdaq during the
Term of this Agreement.
Section 5 SHARING OF RESOURCES.
5.01 Use of Facilities. Either Party may allow the other
Party to use a portion of any of its office facilities to further the
performance of this Agreement. Such facilities may be either leased or
owned by the Parties. The use of such facility by another Party does not
constitute a leasehold interest in favor of such Party. The Parties further
agree that they will adhere to the following guidelines when using another
Party's facility:
* ***** Confidential Treatment has been requested for the redacted
portions. The confidential redacted portions have been filed separately
with the Securities and Exchange Commission.
(1) the facilities will be used in an efficient manner.
(2) the Party using the facility will keep the facilities in good
order, not commit or permit waste or damage to such facility, not
use such facility for any unlawful purpose and will comply with
all of the other Party's standard policies and procedures for the
use of the facility that are in effect from time to time,
including procedures for the physical security of the facility.
(3) the Party using the facility will not make any improvements or
changes involving structural, mechanical or electrical alterations
to it without the other Party's prior approval.
(4) when the facility is no longer required for performance of the
Services, the facility will be returned to the other Party in the
same condition as when such usage began, ordinary wear and tear
excepted.
(5) the Parties will evaluate whether such usage should continue on a
quarterly basis. If the Parties agree to increase the amount of
space to be allocated and the Party providing the facility is
unable to provide such additional space, then the Party using such
space will: (i) allocate the required amount of additional space
at one of its own facilities; or (ii) if the Party is unable to
provide such space at one of its own facilities, it may procure it
from a third party. The Party procuring such space from a third
party may request that the pricing methodology for the Services
provided through that space be adjusted to incorporate the
incremental cost of such space. All such requests must be
submitted for approval by the Operations Committee created
pursuant to Section 9.03 herein.
5.02. Use of Other Resources. The Parties may also agree to
provide any of their other respective resources to the other Party on a
temporary basis, upon such terms and conditions as the Parties may mutually
agree upon, to further the performance of this Agreement.
SECTION 6 SERVICE LEVELS.
6.01 Service Levels. NASD Regulation will perform the
Services in accordance with Section 2.03. NASD Regulation further agrees
that it will conform to the performance standards mutually agreed upon by
the Parties for any new Services.
6.02 Adjustment of Service Levels. NASD Regulation and Nasdaq
will review the performance standards for the provision of the Services at
least annually and make such adjustments as they deem reasonably necessary.
Either Party may, however, at any time upon notice to the other Party: (i)
initiate a review and propose adjustments to any performance standard that
such Party in good faith reasonably believes is incorrect; and (ii) propose
that the feasibility of specific cost reduction or limitation strategies be
considered by the Parties. Any modification or elimination of an existing
performance standard or addition of a new standard will not become
effective until agreed upon in writing by the Parties. Any disagreement
between the Parties about an existing or proposed performance standard will
be resolved through the dispute resolution procedures set forth in Section
18 herein.
6.03 Measurement Reporting. NASD Regulation will implement
such reporting mechanisms or tools or provide such reports as the Parties
believe may be reasonably necessary to effectively monitor NASD
Regulation's performance of the Services against applicable performance
standards. Such mechanisms will: (i) permit reporting at a level of detail
sufficient to verify NASD Regulation's compliance with applicable
performance standards; and (ii) be subject to audit by Nasdaq or its
designee pursuant to the provisions of Section 15 herein. NASD Regulation
will provide Nasdaq and its designees with access to such mechanisms and
procedures upon request, for inspection and verification purposes. The cost
of implementing and maintaining such mechanisms will be included in the
pricing methodologies for the Services.
SECTION 7 NASD REGULATION SERVICE LOCATIONS.
7.01 Service Locations. NASD Regulation will give Nasdaq prior
notice of any proposed addition, deletion, rearrangement or relocation of
the facilities used by NASD Regulation to provide the Services to Nasdaq.
7.02 Security Procedures. NASD Regulation will maintain and
enforce security procedures at the facilities used by NASD Regulation to
provide the Services that are at least equal to industry standards for
locations similar to the NASD Regulation facilities.
7.03 Data Security. NASD Regulation will establish and
maintain safeguards to protect the integrity and confidentiality of Nasdaq
Data (Data Safeguards) that will be no less rigorous than data security
policies in effect at comparable Nasdaq facilities within thirty (30) days
after the Commencement Date of this Agreement. NASD Regulation will revise
and maintain these Data Safeguards at Nasdaq's reasonable request. In the
event NASD Regulation intends to implement a change to the Data Safeguards
that was not requested by Nasdaq it will first notify Nasdaq and obtain its
written consent. In the event NASD Regulation discovers or is notified of a
breach or potential breach of security relating to Nasdaq Data, NASD
Regulation will immediately: (i) notify the Nasdaq Program Executive (as
defined in Section 9.02 herein) of such breach or potential breach; and
(ii) if the applicable Nasdaq Data was in the possession of NASD Regulation
at the time of such breach or potential breach, NASD Regulation will: (a)
investigate and remediate the effects of the breach or potential breach;
and (b) provide Nasdaq with reasonable assurances that such breach or
potential breach will not recur.
SECTION 8 PERSONNEL.
8.01 Conduct of Personnel. Each Party warrants that while
on-site at a facility of the other Party, its personnel (including
independent contractors) will comply with the sections of the other Party's
Employee Handbook related to Equal Employment Opportunities, Sexual
Harassment, and Substance Abuse Policies. Each Party will provide the other
Party with current copy of its Employee Handbook within ten (10) days after
the Commencement Date of this Agreement. Each Party will also promptly
provide the other Party with copies of any updates to its Employee
Handbook. Each Party will indemnify and hold the other harmless (including
its officers, directors, employees, subcontractors, and other agents)
against any third party claims related to violations of the indemnified
party's Equal Employment Opportunities, Sexual Harassment, and Substance
Abuse Policies.
8.02 Security. Each Party will instruct its personnel to
comply with the security regulations pertinent to each of the other Party's
facilities that they visit. Each Party will indemnify and hold the other
harmless (including its officers, directors, employees, subcontractors, and
other agents) against any Losses occurring as a result of failure to comply
with the indemnified party's security regulations.
8.03 Removal of Personnel. If either Party notifies the other
Party that it is not satisfied with the performance of an employee of that
Party, that Party will promptly (a) investigate the matter and take
appropriate action which may include: (i) removing the applicable person
from the provision of the services related to that Party's performance of
this Agreement and providing the notifying Party with prompt written notice
of such removal; and (ii) replacing the applicable person with a similarly
qualified individual; or (b) take such other action as it deems appropriate
to prevent a recurrence. For alleged breaches of security and violations of
confidentiality while a Party's personnel is on the other Party's site or
in instances where a Party reasonably believes that the other Party's
personnel poses a risk to the operation of its business while on that
Party's site, the Party may remove the personnel in question, provided,
that, it first notifies the other Party of its concerns if it is reasonably
feasible for it to do so. The Party whose personnel were removed will
promptly replace such personnel at its own cost.
8.04 Improper Securities Transactions and Holdings. In the
event that either Party suspects that any employee of the other Party who
has been involved in the performance of this Agreement has been involved in
improper, illegal or unethical use of any data or information gained from
such performance, it may notify the other Party of such involvement and
request that it conduct an investigation of such individual. The Party
requesting such investigation will provide such assistance to the other
Party in such Party's conduct of this investigation as that Party may
reasonably request.
SECTION 9 MANAGEMENT AND CONTROL. The Parties will: (i) each appoint their
representatives to the committees set forth in this Section 9 within thirty
(30) days after the Commencement Date of this Agreement; and (ii) promptly
notify the other Party of their selected representatives to each of these
committees. Each Party will have one vote on each committee. Either the
President of each Party or a Party's Program Executive may designate issues
for resolution on a "fast track" in committees, in mediation, and in
arbitration. The Parties will then undertake all reasonable efforts to
resolve such issues within thirty (30) days (within each phase) of the
other Party's receipt of notice that such issues have been designated as
"fast tracked."
9.01 Periodic Meetings. Each Party will appoint a manager who
will act as its liaison to the other Party. This individual will: (i)
attend periodic or ad hoc, but at least monthly, meetings, to resolve any
daily operational issues that may have arisen during the performance of
this Agreement; (ii) attend weekly and monthly status meetings; (iii) serve
as the Party's primary contact for the receipt of relevant information
about the performance of this Agreement; and (iv) report monthly to his or
her Party's Program Executive (as hereinafter defined) on any material
issues related to the performance of the Agreement that may have arisen
between the Parties. The Parties may change their representatives to this
committee at any time by providing the other Party with written notice of
such change.
9.02 Program Executives. Each Party will also appoint an
Executive Vice President level manager (Program Executive) who will serve
as the primary representative of that Party under this Agreement. Each
Party may, in its sole discretion, change its Program Executive at any time
upon notice to the other Party. Each Program Executive will: (i) have
overall responsibility for managing and coordinating the daily performance
of his or her Party's obligations under this Agreement; and (ii) be
authorized to act for and on behalf of his or her Party with respect to all
matters relating to this Agreement. Notwithstanding the foregoing, a
Program Executive may, upon notice to the other Party, delegate such of his
or her responsibilities to other employees of his or her Party as the
Program Executive deems appropriate. The Parties may change their
representatives to this committee at any time by providing the other Party
with written notice of such change.
9.03 Operations Committee. A committee will be formed by the
Parties that will be composed of each Party's Program Executive and such
other individuals as each Party may appoint to this Committee (Operations
Committee). This committee will meet at least monthly and will have
responsibility for: (i) overseeing the Parties' performance of this
Agreement; (ii) evaluating proposals for new Services; (iii) determining
reporting requirements; (iv) approving expense variances related to the
provision of the Services; (v) evaluating and implementing Change Control
Procedures (as hereinafter defined); and (vi) such other functions as the
members of the committee deem necessary to ensure the effective performance
of this Agreement. The Program Executive of each Party will brief the
Executive Steering Committee (as hereinafter defined) about the issues
considered by the Operations Committee at least quarterly. The Parties may
change their representatives to this committee at any time by providing the
other Party with written notice of such change.
9.04 Executive Steering Committee. A Committee composed of
the President of each Party and/or their designees will meet at least
quarterly to: (i) resolve any material issues that may have arisen between
the Parties during the performance of this Agreement; and (ii) evaluate
and, if necessary, alter any existing policies or procedures of the Parties
to enhance their effectiveness in performing this Agreement. (Executive
Steering Committee). The members of the Executive Steering Committee may,
upon notice to the other Party, delegate such of their responsibilities
arising from their participation on this Committee to such other of their
employees as they deem appropriate.
9.05 Internal Committees. Each Party may be allowed to
provide representatives to such internal committees of the other Party as
the Parties may mutually agree upon. Each Party may, for example, be
represented on and consult with such internal committees of the other Party
as may be directly related to its performance of this Agreement.
9.06 Product Development Process. Each Party will be
represented and involved in the product development process of the other
Party for products that are directly related to the performance of this
Agreement. Each Party may also contract directly with the other Party for
the provision of specific additional services that are necessary for the
development of such products.
9.07 Change Control Procedures. NASD Regulation will notify
Nasdaq of any material non-emergency change in the provision of the
Services. NASD Regulation further agrees that it will follow the procedures
set forth in Exhibit 2 (Change Control Procedures) in notifying Nasdaq of
such material changes. The Parties will develop Exhibit 2 within ninety
(90) days after the Commencement Date of this Agreement and the Exhibit
will be attached hereto. Emergency changes will be implemented in
accordance with the procedures set forth in Section 9.08 herein. NASD
Regulation will submit any material change that is projected to result in a
direct and documented increase in NASD Regulation's cost of providing the
Services to the Operations Committee for its review and approval prior to
implementing such change.
9.08 Emergency Changes. NASD Regulation may make such
emergency changes to the Services, allocate such resources, and provide
such additional Services as it, in its reasonable judgment, determines must
be made immediately to ensure that: (i) the provision of the Services
remains fully operational; or (ii) other Services provided by NASD
Regulation that are critical to the operation of Nasdaq continue to be
provided without interruption. NASD Regulation may make such emergency
changes without following the procedures set forth in Exhibit 2, provided,
that, it notifies Nasdaq that it has made such changes, if material, as
soon as it is reasonably able to do so, but in no case more than two (2)
business days after NASD Regulation makes such changes. The Parties will
consult as to the need for such emergency changes if it is feasible for
them to do so.
9.09 Management Reports. NASD Regulation will provide Nasdaq
with such documentation and written reports as may be mutually agreed upon
by the Parties as reasonably required to efficiently monitor NASD
Regulation's provision of the Services.
SECTION 10 PROPRIETARY RIGHTS.
10.01 ***** *
10.02 *****
10.03 *****
10.04 Trademarks. Each Party will retain all right, title and
interest in and to its trademarks and service marks, registered or
unregistered (collectively, the Marks). Within sixty (60) days after the
Commencement Date of this Agreement, each Party will provide the other
Party with a then-current list of its Marks and further agrees to provide
the other Party with an updated list of its Marks on a periodic basis
during the Term of this Agreement. Neither Party will use the Marks of the
other Party in any of its materials, whether in printed or electronic
format, without the prior written consent of the other Party. Each Party
further agrees that it will use the other Party's Marks in a dignified
manner, consistent with the general reputation of the Marks and the other
Party, and in accordance with good trademark practice.
SECTION 11 DATA.
11.01 Ownership of Nasdaq Data. All Nasdaq Data is, or will
be, and will remain the property of Nasdaq and will be deemed Confidential
Information (as hereinafter defined) of Nasdaq.
---------
* ***** Confidential Treatment has been requested for the redacted
portions. The confidential redacted portions have been filed separately
with the Securities and Exchange Commission.
11.02 ***** *
11.03 Use of Nasdaq Market Data. NASD Regulation may use the
Nasdaq Market Data for regulatory purposes and to comply with any requests
for information from governmental agencies that oversee its operations.
NASD Regulation may also manipulate or process the Nasdaq Market Data to
produce such derivative information as may be necessary for NASD
Regulation's regulatory purposes. NASD Regulation will be the sole owner
of such derivative information. Nasdaq shall also be able to create such
derivative information and be the owner of such derivative information.
11.04 Nasdaq's Obligation to Correct Errors. With respect to
errors, gaps, or inaccuracies in the data and the reports delivered to NASD
Regulation under this Agreement, Nasdaq will monitor the data that it
provides to NASD Regulation and, and as promptly as reasonably practicable,
will correct such errors, gaps, or inaccuracies in such data and the
reports delivered to NASD Regulation under this Agreement that are
identified by NASD Regulation and communicated to Nasdaq. Nasdaq will be
solely responsible for the cost of such corrections. Nasdaq will also, as
promptly as reasonably practicable: (i) correct any other errors, gaps,
or inaccuracies in the Nasdaq Market Data or such reports upon its becoming
aware of such errors, gaps, or inaccuracies even if it has not been
notified of such items by NASD Regulation; and (ii) notify NASD Regulation
that it has undertaken such corrections at Nasdaq's expense.
11.05 MDS Information. Pursuant to the provisions of Section
10.03 herein, Nasdaq will be responsible for maintaining, supporting, and,
if necessary, changing such Nasdaq Systems as may be required by Nasdaq to
furnish such data to NASD Regulation as NASD Regulation may require for
regulatory purposes. Nasdaq will also allow representatives from NASD
Regulation to participate in any decisions involving the modification or
replacement of such Systems. Nasdaq will be solely responsible for the cost
of the maintenance and support of such Systems.
SECTION 12 CONTINUED PROVISION OF SERVICES.
12.01 Disaster Recovery Plan. Each Party will develop a
disaster recovery plan and provide a copy of such plan to the other Party
upon its completion.
12.02 Force Majeure. Neither Party will be liable for delay
or failure in performance of any of the acts required by this Agreement
when such delay or failure arises from circumstances beyond its reasonable
control (including, without limitation, acts of God, flood, war, explosion,
sabotage, terrorism, embargo, civil commotion, acts or omissions of any
government entity, supplier delays, communications failure, equipment or
software malfunction, or labor disputes), and without the gross negligence
or willful misconduct, of the Party. The Party prevented from performing
its obligations under this Agreement by such force majeure event will be
excused from such performance for as long as such: (i) force majeure event
continues; and (ii) such Party continues to use its best efforts to
recommence performance of its obligations under this Agreement whenever and
to whatever extent possible without delay, including through the use of
alternate sources, workaround plans or other means. If the period of
non-performance exceeds thirty (30) calendar days, then the party to whom
the performance is due shall have the right to terminate this Agreement on
fifteen (15) additional calendar days prior written notice.
---------
* ***** Confidential Treatment has been requested for the redacted
portions. The confidential redacted portions have been filed separately
with the Securities and Exchange Commission.
12.03 Payment for Unperformed Services. If NASD Regulation
fails to provide the Services in accordance with this Agreement due to the
occurrence of a force majeure event, the Fees will be adjusted in a manner
such that Nasdaq is not responsible for the payment of any Fees for
Services that NASD Regulation failed to provide.
SECTION 13 PAYMENTS AND INVOICING.
13.01 ***** *
13.02 *****
13.03 *****
13.04 *****
13.05 Payment Procedures. NASD Regulation will invoice Nasdaq
monthly for the cost of Services provided to Nasdaq during the preceding
month. NASD Regulation will also include the cost of specific disbursements
and incidental expenses incurred by NASD Regulation in its provision of the
Services to Nasdaq during the same period. The format of such invoices will
be mutually agreed upon by the Parties within sixty (60) days after the
Commencement Date of this Agreement. Nasdaq will pay all invoices not in
dispute within thirty (30) days of its receipt of such invoice. If Nasdaq
disputes any amount, it will notify NASD Regulation of its disagreement
within 10 business days of its receipt of such invoice. Each Party's
Program Executive will then attempt to resolve such disagreement. If the
Parties are unable to resolve any such disagreement within 15 business days
of Nasdaq's receipt of such invoice, then Nasdaq will pay all amounts not
then in dispute. The Parties will then resolve any remaining disagreements
through the dispute resolution procedures set forth in Section 18 herein.
Nasdaq will have no right of set-off for amounts due or alleged to be due
Nasdaq from NASD Regulation. All invoices may be paid by electronic funds
transfer.
13.06 Overdue Invoices. NASD Regulation may charge Nasdaq
Interest on any invoices that Nasdaq fails to pay within forty-five (45)
days of its receipt of such invoice. Such Interest may be assessed monthly.
13.07 Cost Savings. The parties will review and consider cost
saving measures at least annually during the term of the Agreement.
SECTION 14 TAXES.
14.01 Generally. The Fees paid to NASD Regulation for
Services in the United States will be inclusive of any applicable sales,
use, gross receipts, excise, or other taxes attributable to periods on or
after the Commencement Date based upon or measured by NASD Regulation's
cost in providing the Services to Nasdaq. Nasdaq, however, will not be
responsible for the payment of any tax assessed on the personal property or
net income of NASD Regulation. All other taxes for the Services (including
any non-United States tax) are the full liability of Nasdaq, and Nasdaq
will pay to NASD Regulation, or reimburse NASD Regulation for the payment
of, or pay directly to the taxing authority, any such taxes however
designated, imposed or levied. To the extent that any sales, use, gross
receipts, excise, value-added or services tax is required by Law to be
separately identified in NASD Regulation's ▇▇▇▇▇▇▇▇ to Nasdaq, NASD
Regulation will separately identify such tax.
---------
* ***** Confidential Treatment has been requested for the redacted
portions. The confidential redacted portions have been filed separately
with the Securities and Exchange Commission.
14.02 Taxes, Assessments and Real Property-Related Levies.
Nasdaq and NASD Regulation will each bear sole responsibility for all
taxes, assessments and other real property-related levies on its owned or
leased real property, unless NASD Regulation leases or buys property at the
request of Nasdaq, in which event, Nasdaq will be responsible for
applicable taxes.
SECTION 15 AUDITS.
15.01 Services. Upon reasonable prior notice from the other
Party, each Party will provide the other Party or its designee, and any of
the other Party's regulators with reasonable access to and any reasonable
assistance that they may require for the purpose of performing audits or
inspections of the Services and the business of the other Party relating to
the Services. The Party conducting an audit will do so in a manner that is
consistent with the provisions of Section 16 herein.
15.02 ***** *
15.03 Records. NASD Regulation will maintain complete and
accurate records in connection with this Agreement and all transactions
related thereto, including all records and supporting documentation that is
reasonably appropriate or necessary to document the Services and the Fees
paid or payable by Nasdaq under this Agreement.
15.04 Facilities. Each Party that is being audited under this
Section 15, will temporarily provide the Party conducting the audit and its
representatives with: (i) a reasonable amount of work space on its
premises; (ii) office furnishings (including lockable cabinets if
possible); (iii) telephone and facsimile services; (iv) utilities; and (v)
such office-related equipment and duplicating services as the Party
conducting the audit or its designated representatives may reasonably
require to perform the audits described in this Section.
---------
* ***** Confidential Treatment has been requested for the redacted
portions. The confidential redacted portions have been filed separately
with the Securities and Exchange Commission.
SECTION 16 CONFIDENTIALITY. The Parties will remain bound by the
confidentiality provisions set forth in this Section 16 unless they each
establish reasonable procedures to protect the confidential and proprietary
information of the other Party, that are acceptable to the other Party,
within thirty (30) days after the Commencement Date of this Agreement.
16.01 General Obligations. The Parties acknowledge and agree
that they may each be given access to confidential or proprietary
information of the other in performing their obligations under this
Agreement (Confidential Information). The prices charged by NASD Regulation
for the Services, the pricing structure, and the pricing methodology will
be deemed to be Confidential Information. Each Party will use such
information only in performance of its obligations under this Agreement;
will hold such information in confidence; and will not disclose, copy or
publish any such information without the prior written approval of the
owner of such information, provided, however, that each Party may disclose
such Confidential Information as may be required to comply with applicable
regulatory requirements or requests for information from governmental
agencies having oversight responsibilities over such Party. Any Party
disclosing such information in compliance with applicable regulatory or
oversight requirements will request confidential treatment of such
information. Notes, documents, summaries or reports which either Party
prepares from Confidential Information to the extent such specifically
refer or relate to Confidential Information are themselves Confidential
Information. The obligations of this Section will survive for a period of
ten (10) years after the expiration or termination of the Agreement.
16.02 Standard of Care. The Parties acknowledge the sensitive
and secret nature of the Confidential Information they will have access to
and agree that they will treat each such Confidential Information as
strictly confidential and will exercise the same degree of care in the
protection of the Confidential Information as they each exercise with
respect to their own proprietary property and trade secrets, but in no
event less than a reasonable degree of care given the nature of the
Confidential Information.
16.03 Permitted Disclosures. 18.2 The Party receiving
Confidential Information (Receiving Party) will be permitted to disclose
relevant aspects of the disclosing Party's (Disclosing Party) Confidential
Information to its officers, directors, agents, professional advisors,
subcontractors and employees and to the officers, directors, agents,
professional advisors, subcontractors and employees of its Affiliates, to
the extent that such disclosure is not restricted under this Agreement.
Such disclosure will only be permittedto the extent that it is reasonably
necessary for the performance of the Receiving Party's duties and
obligations or the determination, preservation or exercise of the Receiving
Party's rights and remedies under this Agreement; provided, that, the
Receiving Party will take all reasonable measures to ensure that
Confidential Information of the Disclosing Party is not disclosed or
duplicated in contravention of the provisions of this Agreement by such
officers, directors, agents, professional advisors, contractors,
subcontractors and employees. Notwithstanding the taking of such reasonable
measures, each Party will be responsible for the acts and omissions of its
officers, directors, agents, professional advisors, contractors,
subcontractors and employees. The Receiving Party may, however, lawfully
disclose such Confidential Information without the prior written approval
of the owner of such information if such information is: (1) lawfully
within the Receiving Party's possession prior to the Effective Date of this
Agreement; (2) voluntarily disclosed by a third party so long as that party
does not breach any obligation not to reveal such information; (3)
voluntarily disclosed to the public by the Disclosing Party; (4) is
generally known to the public; or (v) is independently developed by the
Receiving Party.
16.04 Compliance with Legal Process. The obligations in
this Section will not restrict any disclosure pursuant to any Law (provided
that the Receiving Party gives prompt notice to the Disclosing Party of
such order). In the event the Receiving Party receives a subpoena or other
validly issued administrative or judicial process requesting the Disclosing
Party's Confidential Information, the Receiving Party will provide prompt
actual notice of receipt and a copy of the subpoena or other document(s) to
the Disclosing Party. The Disclosing Party will have the opportunity to
intervene in the proceeding before any deadline for complying with the
subpoena or other process. The Receiving Party will not comply with such
subpoena or other process until the earlier to occur of receiving written
notification from the Disclosing Party that it may proceed, receiving an
order from a court or other administrative or judicial body not to
disclose, or the deadline for complying with any portion or all of the
process.
16.05 Unauthorized Acts. Without limiting either Party's
rights in respect of a breach of this Article, the Receiving Party will:
(1) promptly notify the Disclosing Party of any unauthorized
possession, use or knowledge, or attempt thereof, of the
Disclosing Party's Confidential Information by any person or
entity that may become known to Receiving Party;
(2) promptly furnish to the Disclosing Party full details of the
unauthorized possession, use or knowledge, or attempt thereof, and
assist the Disclosing Party in investigating or preventing the
recurrence of any unauthorized possession, use or knowledge, or
attempt thereof, of the Disclosing Party's Confidential
Information;
(3) reasonably cooperate with the Disclosing Party (at the Disclosing
Party's expense) in any litigation and investigation against third
parties deemed necessary by the Disclosing Party to protect its
proprietary rights (such cooperation will not require, nor shall
be deemed to be, a violation of any legal privilege); and
(4) promptly use its commercially reasonable efforts to prevent a
recurrence of any such unauthorized possession, use or knowledge,
or attempt thereof, of Confidential Information.
16.06 Return of Confidential Information. Each Party agrees
that all Confidential Information, including any copies thereof, will be
returned to the owner of such Confidential Information or destroyed within
ten (10) calendar days of the expiration or termination of the obligations
of the Parties pursuant to Section 16.01 herein. The Parties acknowledge
and agree that their obligations will continue for a period of ten (10)
years after the termination or expiration of the Agreement pursuant to
Section 16.01 herein. Notes and other documents referencing or relating to
Confidential Information may be made and kept by the Parties, but will
continue to be governed by the provisions of this Section 16 until they are
destroyed.
16.07 Intellectual Property. All intellectual property rights
associated with the Confidential Information, including without limitation,
patent, trademark, copyright, trade secret rights, and moral rights will
remain in the Party owning the Confidential Information.
16.08 Costs. Each Party will bear the cost it incurs as a
result of its compliance with this Section 16.
SECTION 17 REPRESENTATIONS AND WARRANTIES.
17.01 By Nasdaq. Nasdaq represents and warrants that:
(1) Nasdaq is a corporation duly incorporated, validly existing and in
good standing under the Laws of Delaware;
(2) Nasdaq has all requisite corporate power and authority to execute,
deliver and perform its obligations under this Agreement;
(3) the execution, delivery and performance of this Agreement by
Nasdaq (a) has been duly authorized by Nasdaq and (b) will not
conflict with, result in a breach of or constitute a default under
any other agreement to which Nasdaq is a party or by which Nasdaq
is bound;
(4) Nasdaq is duly licensed, authorized or qualified to do business
and is in good standing in every jurisdiction in which a license,
authorization or qualification is required for the ownership or
leasing of its assets or the transaction of business of the
character transacted by it, except where the failure to be so
licensed, authorized or qualified would not have a material
adverse effect on Nasdaq's ability to fulfill its obligations
under this Agreement;
(5) Nasdaq is, to the best of its knowledge, in compliance in all
material respects with all Laws applicable to Nasdaq, the
violation of which would have a material impact on Nasdaq's or
NASD Regulation's ability to fulfill its obligations under this
Agreement, and has obtained all applicable permits and licenses
required of Nasdaq in connection with its obligations under this
Agreement;
(6) except as permitted by Section 16 herein, Nasdaq has not disclosed
any Confidential Information of NASD Regulation;
(7) there is no outstanding litigation, arbitrated matter or other
dispute to which Nasdaq is a party which, if decided unfavorably
to Nasdaq, would reasonably be expected to have a material adverse
effect on NASD Regulation's or Nasdaq's ability to fulfill their
respective obligations under this Agreement;
(8) it has the right, free and clear of any liens or encumbrances to
grant the rights and deliver the Nasdaq Market Data (except that
part of the Nasdaq Market Data not initially compiled by Nasdaq,
for which Nasdaq will obtain the right prior to the commencement
of Services) to NASD Regulation and perform its obligations under
this Agreement. Further, Nasdaq warrants and represents that none
of the Nasdaq Market Data (except that part of the Nasdaq Market
Data not initially compiled by Nasdaq) provided to NASD Regulation
or other right granted violates any patent, copyright, trade
secret, trademark, trade dress, or other intellectual property
right of any third party. Nasdaq will defend NASD Regulation
against any and all third party claims relating to the
infringement of any patent, copyright, trade secret, trademark,
trade dress, or other proprietary right related to any item or
right granted by Nasdaq under this Agreement (except that part of
the Nasdaq Market Data not initially compiled by Nasdaq) and
agrees to hold harmless and indemnify NASD Regulation and its
officers, directors, subcontractors, employees and agents, against
any and all judgments finally awarded to and settlements reached
with such third party. Notwithstanding anything otherwise set
forth in this Agreement, if as a result of such third party claim,
Nasdaq can no longer provide the Nasdaq Market Data or provide a
regulatory System for providing regulatory Services to Nasdaq, but
Nasdaq is still receiving Services that require such Nasdaq Market
Data or such regulatory System, then, notwithstanding anything
otherwise set forth in this Agreement, Nasdaq shall, at its option
either replace such Nasdaq Market Data or such regulatory System
or be responsible to NASD Regulation for the cost of such
replacement. Indemnification will also extend to claims and losses
against NASD Regulation as an aider, abetter or contributing
infringer. Indemnification will be NASD Regulation's sole remedy
and Nasdaq's sole liability as to claims of infringement.
(9) Nasdaq will inform NASD Regulation of any known defects in any of
the Nasdaq Market Data or any System used by Nasdaq in the
performance of this Agreement which might interfere with the data
and services provided to NASD Regulation by Nasdaq during the term
of this Agreement. Nasdaq warrants and represents that it knows of
no defect in its Systems' security mechanisms, of any "Trojan
Horses" (code inserted by a manufacturer or Nasdaq, which is not
described in the documentation, whose purpose is to provide a
person or computer other than Nasdaq the ability to gain control
of all or some of the system on conditions set by or triggered by
any event or an unauthorized person), viruses (code embedded in
the system whose purpose is to halt effective operation or use of
the system on conditions set by or triggered by an event or an
unauthorized person), trap doors (means by which an unauthorized
user may circumvent the security protections of Nasdaq's Systems
or gain unauthorized access), and similar devices. Nasdaq will use
reasonable efforts to promptly notify NASD Regulation of any later
discovered defects in its security mechanisms, such as "Trojan
Horses," viruses, trap doors, or similar devices for a period of
the term of this Agreement plus ten (10) years thereafter.
(10) Nasdaq shall comply in all material respects with all Laws
applicable to Nasdaq and, except as otherwise provided in this
Agreement, will obtain all applicable permits and licenses
required of Nasdaq in connection with its obligations under this
Agreement.
(11) Nasdaq's ability to furnish the Nasdaq Market Data or otherwise
perform its obligations under this Agreement that are required by
NASD Regulation to provide the Services will not be adversely
affected by the failure of any Nasdaq System, or third party
System used by Nasdaq, to be Century Compliant.
17.02 By NASD Regulation. NASD Regulation represents and
warrants that:
(1) it is a corporation duly incorporated, validly existing and in
good standing under the Laws of Delaware;
(2) it has all requisite corporate power and authority to execute,
deliver and perform its obligations under this Agreement;
(3) the execution, delivery and performance of this Agreement by it
(a) has been duly authorized by it and (b) will not conflict with,
result in a breach of or constitute a default under and other
agreement to which it is a party or by which it is bound;
(4) it is duly licensed, authorized or qualified to do business and is
in good standing in every jurisdiction in which a license,
authorization or qualification is required for the ownership or
leasing of its assets or the transaction of business of the
character transacted by it, except where the failure to be so
licensed, authorized or qualified would not have a material
adverse effect on its ability to fulfill its obligations under
this Agreement;
(5) it, to the best of its knowledge, is in compliance in all material
respects with all Laws applicable to it, the violation of which
would have a material impact on Nasdaq's or its ability to fulfill
its obligations under this Agreement, and it has obtained all
applicable permits and licenses required of it in connection with
its obligations under this Agreement;
(6) except as permitted by Section 16 herein, it has not disclosed any
Confidential Information of Nasdaq; and
(7) there is no outstanding litigation, arbitrated matter or other
dispute to which it is a party which, if decided unfavorably to
it, would reasonably be expected to have a material adverse effect
on Nasdaq's or NASD Regulation's ability to fulfill their
respective obligations under this Agreement.
(8) it has the right, free and clear of any liens or encumbrances to
grant the rights and deliver the Services to Nasdaq and perform
its obligations under this Agreement. Further, NASD Regulation
warrants and represents that none of the Services provided to NASD
Regulation or other right granted violates any patent, copyright,
trade secret, trademark, trade dress, or other intellectual
property right of any third party. NASD Regulation will defend
Nasdaq against any and all third party claims relating to the
infringement of any patent, copyright, trade secret, trademark,
trade dress, or other proprietary right related to any Service
provided or right granted by NASD Regulation under this Agreement
and agrees to hold harmless and indemnify Nasdaq and its officers,
directors, subcontractors, employees and agents, against any and
all judgments finally awarded to and settlements reached with such
third party Notwithstanding anything otherwise set forth in this
Agreement, if as a result of such third party claim, NASD
Regulation can no longer provide the Services or provide the
Intellectual Property in Section 10.02 to Nasdaq, but, in the case
of Services, Nasdaq is still receiving Services and, in the case
of said Intellectual Property, Nasdaq is still using the
Intellectual Property, then, notwithstanding anything otherwise
set forth in this Agreement, NASD Regulation shall, at its option
either replace such Services or Intellectual Property or be
responsible to Nasdaq for the cost of such replacement.
Indemnification will also extend to claims and losses against
Nasdaq as an aider, abetter or contributing infringer.
Indemnification will be Nasdaq's sole remedy and NASD Regulation's
sole liability as to claims of infringement.
(9) NASD Regulation will inform Nasdaq of any known defects in any
System or other software developed or acquired by NASD Regulation
in providing the Services to Nasdaq which might materially
interfere with the Services provided to Nasdaq by NASD Regulation
during the term of this Agreement. NASD Regulation warrants and
represents that it knows of no defect in its Systems, that are
used to support the Services, security mechanisms, of any "Trojan
Horses" (code inserted by a manufacturer or NASD Regulation, which
is not described in the documentation, whose purpose is to provide
a person or computer other than NASD Regulation the ability to
gain control of all or some of the system on conditions set by or
triggered by any event or an unauthorized person), viruses (code
embedded in the system whose purpose is to halt effective
operation or use of the system on conditions set by or triggered
by an event or an unauthorized person), trap doors (means by which
an unauthorized user may circumvent the security protections of
the systems or gain unauthorized access), and similar devices.
NASD Regulation will use reasonable efforts to promptly notify
Nasdaq of any later discovered defects in its security mechanisms,
such as "Trojan Horses," viruses, trap doors, or similar devices
for a period of the term of the Agreement plus ten (10) years
thereafter.
(10) NASD Regulation will comply in all material respects with all Laws
applicable to NASD Regulation and, except as otherwise provided in
this Agreement, will obtain all applicable permits and licenses
required of NASD Regulation in connection with its obligations
under this Agreement
(11) NASD Regulation's ability to furnish the Services or otherwise
perform its obligations under this Agreement will not be adversely
affected by the failure of any NASD Regulation System, or any
third party System used by NASD Regulation, to be Century
Compliant.
17.03 DISCLAIMER. EXCEPT AS SPECIFIED IN SECTION 17.01
AND SECTION 17.02 HEREIN, NEITHER NASDAQ NOR NASD REGULATION MAKES ANY
OTHER WARRANTIES WITH RESPECT TO THE SERVICES PROVIDED UNDER THIS AGREEMENT
AND EACH EXPLICITLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
SPECIFIC PURPOSE.
SECTION 18 DISPUTE RESOLUTION.
18.01 Dispute Resolution. This Section governs any dispute,
disagreement, claim and/or controversy (hereinafter collectively referred
to as a Dispute) between the Parties arising out of or relating to this
Agreement, or breach thereof. A Party must file with the other, written
notice of any Dispute prior to the institution of the following dispute
resolution process:
18.02 Negotiation. In the event any Dispute arises out of or
relates to this contract, or the breach thereof, the Parties to this
Agreement shall use their best efforts to settle any Dispute through
negotiation. If the Parties do not reach a resolution of the Dispute
through negotiation within a period of thirty (30) business days from the
initial notification of this Dispute, then upon written notice by either
Party, all disputes will be submitted to mediation. The Parties will adhere
to the following procedures in conducting these negotiations:
18.02.1 Program Executive Negotiation. First, the
Dispute will be considered by the Program Executives selected by each Party
pursuant to Section 9 herein. These executives will meet and attempt to
resolve the Dispute within ten (10) business days of their being notified
of such matter. Each Dispute that is not settled within such ten (10) day
period will be referred to Operations Committee Negotiations pursuant to
the provisions of Section 18.02.2 herein.
18.02.2 Operations Committee Mediation. Second, the
Dispute will be considered by the Operations Committee created by the
Parties pursuant to Section 9 herein which will meet in an attempt to
resolve the Dispute within ten (10) business days of the completion of the
Program Executive Negotiation. Each Dispute that is not settled within such
ten (10) business day period will then be referred to Executive Steering
Committee Negotiations pursuant to the provisions of Section 18.02.3
herein.
18.02.3 Executive Steering Committee Negotiation. The
Dispute will then be considered by the Executive Steering Committee of the
Parties that was created pursuant to Section 9 herein. This committee will
meet in an attempt to resolve the Dispute within ten (10) business days of
the Operations Committee Negotiation. If the Dispute cannot be resolved by
the Executive Steering Committee, it will then be referred to mediation
pursuant to the provisions of Section 18.03 herein. The Program Executive,
Operations Committee, Executive Steering Committee Negotiations and the
NASD Board Option, as set forth below, will have been without prejudice to
the legal position of either Party, and will be considered settlement
discussions under applicable rules of evidence.
18.02.4 NASD Board Option. For Disputes involving
material new changes to the Services, if the Dispute cannot be resolved by
the Executive Steering Committee, a Party may then refer the Dispute to the
NASD Board in an attempt to resolve the Dispute.
18.03 Mediation. In the event that any Dispute fails to
settle through negotiation or the NASD Board Option, the Parties agree that
the Dispute will be submitted to mediation administered under the American
Arbitration Association's (AAA) Commercial Mediation Rules. If within
thirty (30) days after service of a written demand for mediation the
Parties fail to settle their dispute to their mutual satisfaction, any
remaining Dispute(s) shall be settled by arbitration. Any Dispute submitted
to mediation shall suspend the requirements for filing a notice of claim
until the conclusion of the mediation process.
18.04 Binding Arbitration. Absent settlement by negotiation
or mediation, the Parties agree that compulsory, binding arbitration will
be the exclusive means of dispute resolution. The Parties may not commence
arbitration of a Dispute until they have exhausted all reasonable efforts
to resolve such Dispute through negotiation and mediation pursuant to
Sections 18.02 and 18.03 herein The parties further agree that any
arbitration shall be held in Washington, DC, and will be administered by
the AAA in accordance with its Commercial Arbitration Rules, and that
judgment on the award of the arbitrator(s) may be rendered in any court
having jurisdiction thereof. Unless otherwise agreed by the Parties, the
arbitration shall be conducted using the following procedure:
(1) Either Party may serve upon the other a notice specifying the
nature of the Dispute, and demanding that the Dispute be submitted to
arbitration. The notice shall be made no later than the expiration of the
time set forth in Section 18.03 herein, or within thirty (30) days from the
date of the last mediation session. The Parties will not file a notice
after the date where applicable statutes of limitations or laches would bar
the institution of any proceedings. Each Party will use commercially
reasonable efforts (and shall allow the other Party to join) any third
party that the Parties have agreed is indispensable to the arbitration. The
arbitration shall proceed even if the third party refuses jurisdiction.
(2) In any Dispute involving aggregate damages of up to $500,000
(exclusive of Interest, attorneys' fees, and costs), the Parties will
attempt to agree on a single arbitrator within ten (10) days after receipt
of service of the notice referenced in Section 18.04(1) herein, or such
longer period as the Parties may agree. Absent such agreement, the
arbitrator will be selected by the AAA from its large and complex case
pool. Any Dispute in excess of $500,000 shall be decided by three (3)
arbitrators selected by the AAA from its large and complex case pool.
(3) The arbitrator(s) selected will have a background in, and
knowledge of, the subject matter of the Dispute. If arbitrator(s) with such
experience are not available, the arbitrator(s) will be selected by the AAA
from available arbitrators on its retired federal judge's pool.
(4) Consistent with the expedited nature of arbitration and this
Agreement, discovery shall be limited to requests for production of
documents, depositions and interrogatories. All discovery shall be
completed within ninety (90) days following the appointment of
arbitrator(s). The arbitrator(s) shall rule on any discovery disputes, and
their determination shall be conclusive.
(5) Interrogatories shall be limited to the identification by name,
last known address and telephone number of: (a) all persons having
knowledge of the Dispute and a brief summary of their knowledge; (b) any
experts who may be called as witnesses and a summary of their testimony;
and (c) any expert(s) used for consultation if such expert(s)' opinions
and/or impressions will be used by an expert witness.
(6) Depositions will be limited in time to three (3) hours for each
Party. All objections shall be reserved for the arbitration hearing except
for those based on privilege and proprietary or confidential information.
(7) The Agreement will not prohibit either Party from seeking judicial
review or confirmation of the arbitrator(s)' award. A Party shall file a
written request for judicial review or confirmation of the arbitrator(s)'
decision within 30 days of receipt of service of the award. Notice of
filing shall comply with requirements set forth in the Federal Rules of
Civil Procedure and the Federal Arbitration Act.
18.05 Continuity of Services. Each Party acknowledges that
the timely and complete performance of its obligations pursuant to this
Agreement is critical to the business and operations of the other Party. In
the event of a dispute between Nasdaq and NASD Regulation, the Parties will
continue to perform their respective obligations under this agreement in
good faith during the resolution of such dispute unless and until this
Agreement expires or is terminated in accordance with its provisions.
Nothing in this Section 18.06 will interfere with a Party's right to
terminate this Agreement as set forth in this Agreement.
SECTION 19 TERMINATION.
19.01 Termination for Breach. Either Party may terminate this
Agreement due to a material breach by the other Party. The Party aggrieved
by the breach will give written notice to the other Party that this
Agreement will be terminated not earlier than thirty (30) calendar days
from receipt of such notice, and such notice will state with specificity
the grounds for termination. If the breach is curable, without adversely
affecting the performance of this Agreement, the Party in breach will have
the right to cure such breach, at its own expense, prior to the date stated
for termination, and, should the breach be cured and written notice of such
cure served on the aggrieved Party prior to the date stated for
termination, such notice will vacate the notice to terminate. If the breach
is not reasonably curable within this period, then termination will not
occur if the Party receiving the notice promptly commenced, and diligently
continued, to cure the default. Nasdaq will have 90 days from its written
receipt of a notice from NASD Regulation of its failure to provide the
Nasdaq Market Data under this Agreement to cure such failure. Nasdaq's
failure to provide the Nasdaq Market Data will not constitute a material
breach of this Agreement if such failure is cured within 90 days from its
written receipt of a notice from NASD Regulation as to its failure to
provide the Nasdaq Market Data. If the breach is not reasonably curable
within that 90 day period, then termination will not occur if Nasdaq
promptly has commenced, and diligently continued, to cure the default.
Disputes between the Parties as to whether Nasdaq's provision of Nasdaq
Market Data breaches this Agreement will be resolved through the dispute
resolution procedures set forth in Section 18 herein.
19.02 ***** *
19.03 Financial Weakness. If either Party's financial
condition at any time does not, in the reasonable judgment of the other
Party, justify continuance of this Agreement on the terms of payment set
forth in Section 13 herein, the Party that is concerned will be entitled to
request that the other Party provide it with adequate assurances of its
intent and ability to perform its obligations hereunder. If the Party that
has been requested to provide such assurances fails to provide such
reasonable assurances within thirty (30) days of the other Party's request,
the Party requesting such assurances will be entitled to terminate this
Agreement upon (15) additional calendar days prior written notice to the
other Party.
19.04 Bankruptcy or Insolvency. In the event of the
bankruptcy or insolvency of a Party, or in the event any proceeding is
brought against a Party and not dismissed within ninety (90) days, whether
voluntary or involuntary under the bankruptcy or insolvency laws, the other
Party will be entitled to terminate this Agreement upon thirty (30)
calendar days prior written notice at any time during the period for filing
claims against the estate.
19.05 Performance Until Termination. Notwithstanding the
delivery of a notice of default or notice of termination by either Party to
the other, all obligations to perform Services and to pay for such Services
will continue in effect and be duly observed and complied with by both
Parties until the effective date of any termination.
---------
* ***** Confidential Treatment has been requested for the redacted
portions. The confidential redacted portions have been filed separately
with the Securities and Exchange Commission.
19.06 Return of Documents. Upon termination of this Agreement
for any reason, each Party will, without additional cost to or demand from
the other Party, return to the other Party in an orderly and expeditious
manner all information, records, documentation, data, and other property
supplied to it by the other Party, and will certify in writing that it has
done so, provided, that, if any payments to a Party remain unpaid upon the
termination of this Agreement, the Party who is owed payment will place all
such property into escrow with an independent escrow agent until such
payments have been made. The Parties will each pay half of the cost of such
escrow arrangements. The Parties further agree that their return of
Confidential Information to the other Party will be governed by the
provisions of Section 16 herein.
19.07 ***** *
SECTION 20 TERMINATION FEES.
20.01 *****
20.02 Pricing Adjustment for Partial Termination. If either
Party terminates a portion of the Services pursuant to Section 19.02 herein
or any other provision of this Agreement, then NASD Regulation will make a
corresponding reduction in the future Fees that it charges Nasdaq pursuant
to Section 13 herein to reflect the termination of such Services.
20.03 Termination Fees. Except as otherwise specifically set
forth in this Section 20, no termination fees will be payable by Nasdaq in
connection with the expiration of this Agreement.
20.04 Termination Assistance Services. After the termination
or expiration of this Agreement, unless such termination is due to the
material breach of Nasdaq, NASD Regulation will provide such Services to
Nasdaq as Nasdaq may require at NASD Regulation's then-current rates on the
effective date of such termination. NASD Regulation will not be obligated
to provide such Services to Nasdaq if the cause of such termination is
Nasdaq's internalization of such Services.
SECTION 21 INDEMNIFICATION.
21.01 Indemnification. Each Party agrees to indemnify and
hold harmless the other Party against all judgments awarded to, or
settlements with, any third party relating to the breach of any terms,
provisions, covenants, warranties or representations contained herein
and/or in connection with the performance of this Agreement or any
provision hereof. NASD Regulation further agrees that it will indemnify and
hold harmless Nasdaq from and against all direct costs and expenses
incurred by Nasdaq (including Nasdaq's reasonable attorney's fees)
resulting from, related to or arising out of the Services furnished by NASD
Regulation under this Agreement to the extent that such costs and expenses
are incurred as a result of the negligence or willful misconduct of NASD
Regulation. NASD Regulation agrees to indemnify and hold harmless Nasdaq
against any and all claims, damages, losses and expenses (including
reasonable attorneys' fees) arising from or in connection with any claim,
demand or legal action by a third party, related directly to: (i) NASD
Regulation's misuse of Nasdaq Data or information furnished to NASD
Regulation by Nasdaq pursuant to the provisions of Section 11 herein.
---------
* ***** Confidential Treatment has been requested for the redacted
portions. The confidential redacted portions have been filed separately
with the Securities and Exchange Commission.
21.02 Physical Injuries. NASD Regulation will be solely
responsible for any physical injuries, including death, to persons and any
damage to tangible personal or real property occurring on account of or in
connection with its operations and in performance of the Agreement and will
indemnify and hold harmless Nasdaq from any and all loss and liability
related thereto, including: (i) liability for the payment of workers
compensation and disability benefits; (ii) any and all claims on account of
such injuries to persons or physical damage to property; and (iii) all
costs and expenses in suits (including reasonable attorney's fees and
costs) that may be brought against Nasdaq on account of any such injuries
to persons or physical damage to property, provided, however, that NASD
Regulation will not be obligated to indemnify and hold harmless Nasdaq from
any loss or liability arising out of injuries or damage caused by or
resulting from the negligence of Nasdaq, its agents. employees, officers or
subcontractors. Nasdaq will be solely responsible for any physical
injuries, including death, to persons and any damage to tangible personal
or real property occurring on account of or in connection with its
operations and will indemnify and hold harmless NASD Regulation from any
and all loss and liability related thereto, including, but not limited to,
liability for the payment of workers compensation and disability benefits,
any and all claims on account of such injuries to persons or physical
damage to property, and all costs and expenses in suits (including
reasonable attorney's fees and costs) that may be brought against NASD
Regulation on account of any such injuries to persons or physical damage to
property, provided, however, that Nasdaq will not be obligated to indemnify
and hold harmless NASD Regulation from any loss or liability arising out of
injuries or damage caused by or resulting from the negligence of NASD
Regulation, its agents. employees, officers or subcontractors.
21.03 This section intentionally left blank.
21.04 Procedures. (1). The Party claiming indemnification
under this Section 21 will promptly notify the other Party (and, in the
case of any action, suit, arbitration, or judicial or administrative
proceeding, will so notify no later than fifteen (15) calendar days after
the Party claiming indemnification has received notice thereof or has been
served with a complaint or other process) when it has knowledge of
circumstances or the occurrence of any events that are likely to result in
an indemnification obligation under this Section 21 or when any action,
suit, arbitration, or judicial or administrative proceeding is pending or
threatened that is covered by this subsection.
(2). Upon request, and to the extent permitted by applicable
law, the indemnifying Party will have the right to defend, settle, or
compromise any such suit or proceeding, at its expense, provided that: (A)
it demonstrates to the satisfaction of the Party claiming indemnification
that it is financially able to defend such action and to pay any
settlement, award or judgment; (B) counsel retained by it are reasonably
satisfactory to the Party claiming indemnification; and (C) that no
settlement will be made which imposes any obligations on (other than the
payment of money which is made by the indemnifying Party on behalf of the
indemnified Party), or is prejudicial to, the Party claiming
indemnification, without the prior consent of the Party claiming
indemnification, which consent will not be unreasonably withheld.
(3). The Party claiming indemnification will reasonably
cooperate with the other Party in the defense of any such suit or
proceeding, and the other Party will reimburse the Party claiming
indemnification for its reasonable expenses with respect thereto. Such
cooperation will include, but not be limited to, the making of statements
and affidavits, attendance at hearings and trials, production of documents,
assistance in securing and giving evidence and obtaining the attendance of
witnesses. The Party claiming indemnification will not be required to waive
its attorney-client or other privileges.
(4). Failure by the Party claiming indemnification to
promptly notify the other Party as required by this subsection will not
invalidate the claim for indemnification, unless such failure has a
material adverse effect on the settlement, defense, or compromise of the
matter that is the subject of the claim for indemnification. In addition,
the Party claiming indemnification will be responsible for any claims or
losses which could have been avoided or mitigated by prompt notice as
required by this subsection.
21.05 No Third Party Beneficiaries. Nothing in this Agreement
will entitle any person or entity to any rights as a third-party
beneficiary under this Agreement.
SECTION 22 DAMAGES.
22.01 Direct Damages. Neither of the Parties will be liable
to the other for any direct damages arising out of or relating to its
performance or failure to perform under this Agreement; provided, however,
that, notwithstanding anything otherwise set forth below in this Section
22.01, each of the Parties will continue to be liable for Claims or Losses
arising from or related to (i) damage to persons or property ; (ii) gross
negligence or willful misconduct; or (iii) the gross negligence or willful
misconduct of their officers, directors, employees, agents or
subcontractors.
Except as otherwise set forth in this Agreement for
indemnifying NASD Regulation from third party judgments or settlements and
for the exceptions set forth above, if Nasdaq is for any reason held liable
to NASD Regulation or to any other individual or entity, whether in
contract or in tort, the liability of Nasdaq within a single year of the
Agreement (from the Commencement Date of the Agreement) is limited to
$500.00.
22.02 Consequential Damages. Except as set forth in Sections
17.01 (8) and 17.02 (8), neither Nasdaq nor NASD Regulation will be liable
for the other`s, nor will the measure of damages include any, punitive,
indirect, incidental, special or consequential damages, including lost
profits or savings, arising out of or relating to its performance or
failure to perform under this Agreement, even if such Party has been
advised of the possibility of such losses or damages.
22.03 Exclusions. The limitations or exculpations of
liability set forth in Sections 22.01 and 22.02 herein will not apply to:
(i) reimbursable amounts; (ii) indemnification Claims, as set forth in
Section 21 herein; or (iii) breaches of Sections 14 or 16 herein.
22.04 Allocation of Risk. THE PARTIES UNDERSTAND AND AGREE
THAT THE PRICING UNDER THIS AGREEMENT, INCLUDING THE PRICING FOR THE
SERVICES AND THE NASDAQ MARKET DATA, REASONABLY REFLECTS THE ALLOCATION OF
RISK AND LIMITATION OF LIABILITY SET FORTH IN THIS AGREEMENT.
22.05. Nasdaq Data Not Initially Compiled by Nasdaq. NASDAQ
SHALL NOT BE LIABLE TO NASD REGULATION OR TO ANY OTHER INDIVIDUAL OR ENTITY
FOR THE UNAVAILABILITY, INTERRUPTION, DELAY, INCOMPLETENESS OR INACCURACY
OF NASDAQ MARKET DATA NOT INITIALLY COMPILED BY NASDAQ, EXCEPT AS SET FORTH
IN THIS AGREEMENT FOR THE PROVISION OF SERVICES.
SECTION 23 INSURANCE.
23.01 General Insurance Requirements. Within ten days of
execution of this agreement, each Party will furnish the Other with
certificate(s) of insurance on standard Accord forms, executed by a duly
authorized representative of each insurer evidencing compliance with the
insurance requirements set forth herein. Manuscript certificates of
insurance shall not be deemed acceptable evidence of insurance. All
certificates shall provide for thirty (30) days' written notice to prior to
the cancellation or material change of any insurance referred to therein.
Failure of either Party to demand a certificate of insurance or other
evidence of full compliance with these insurance requirements or failure of
either Party to identify a deficiency from evidence provided will not be
construed as a waiver of the obligation to maintain the requisite
insurance. Each Party will keep in full force and effect during the term of
the agreement the required insurance coverage.
23.01.1 Adequacy of Coverage. By requiring insurance herein,
neither Party represents that coverage and limits will necessarily be
adequate to protect the other, and such coverage and limits shall not be
deemed as a limitation on each Party's liability under the indemnities
granted in this contract.
23.01.2 Cross-Liability Coverage. If each Party's liability
policies do not contain the standard ISO separation of insureds provision,
or a substantially similar clause, they shall be endorsed to provide
cross-liability coverage.
23.01.3 Deductibles & Self-Insured Retention Levels. Each
Party alone will determine the appropriate deductible or self-insured
retention level for each of its required insurance policies. Each party is
responsible for paying the full amount for the self-insured retention level
or reimburse the insurer for any deductibles. If the other Party incurs any
cost due to the first's deductible or self-insured retention level, the
first party will reimburse the other for the full amount incurred.
Deductibles and self-insured retention levels will be provided on the
Accord form for the required insurance.
23.01.4 Acceptability of Insurers. Insurers must be licensed
in the state where service is provided and have a policy holder rating
("Best Rating") of at least a "A- minus" and a financial size category of
at least a "Class VII" as rated in the most recent edition of "Best's Key
Rating Guide" for insurance companies. During the term of the agreement, if
the insurer's Best ratings are revised below the minimum carrier ratings,
the appropriate Party must obtain acceptable insurance within ninety (90)
days. Self-insurance by either Party is not deemed acceptable.
23.02 NASD Regulation Insurance Requirements. NASD Regulation
will maintain the following insurance coverage during the Term of this
Agreement:
Commercial General and Umbrella Liability Insurance.
a) NASD Regulation shall maintain Commercial General
Liability (CGL) insurance and, if necessary, Commercial
Umbrella insurance with a limit of not less than $10,000,000
each occurrence.
i) CGL insurance will cover liability arising from
premises, operations, independent contractors, T
products-completed operations, personal injury and
advertising injury, and liability assumed under an
insured contract including the tort liability of
another assumed in a business contract.
ii) Nasdaq shall be included as an additional insured
under the CGL and under the commercial umbrella, if
any. This insurance shall apply as primary insurance
with respect to any other insurance or self-insurance
programs afforded to Nasdaq. There shall be no
endorsement or modification of the CGL to make it
excess over other available insurance; alternatively,
if the CGL states that it is excess or pro rata, the
policy shall be endorsed to be primary with respect to
the additional insured.
iii) Waiver of Subrogation. NASD Regulation waives all rights
against the Nasdaq and its agents, officers, directors
and employees for recovery of damages to the extent
these damages are covered by the commercial general
liability or commercial umbrella liability insurance
maintained pursuant to this paragraph.
b) Automobile and Umbrella Liability Insurance
i) NASD Regulation shall maintain automobile liability
and, if necessary, commercial umbrella liability
insurance with a limit of not less than $2,000,000 each
accident.
ii) Such insurance shall cover liability arising out of any
auto (including owned, hired, and non-owned autos).
iii) Coverage shall be written on Insurance Standards
Office Form CA 0001, or a substitute form providing
equivalent liability coverage. If necessary, the policy
shall be endorsed to provide contractual liability
coverage equivalent to that provided in the 1990 and
later editions of CA 0001.
(iv) Waiver of Subrogation. NASD Regulation waives all
rights against Nasdaq and its agents, officers,
directors and employees for recovery of damages to the
extent these damages are covered by the business auto
liability or commercial umbrella liability insurance
obtained by NASD Regulation pursuant to this Agreement
or under any applicable auto physical damage coverage.
c) Workers Compensation Insurance.
i) NASD Regulation shall maintain workers compensation
and employers liability insurance. The commercial
umbrella and/or employers liability limits shall not be
less than $5,000,000 each accident for bodily injury by
accident or $5,000,000 each employee for bodily injury
by disease.
ii) Waiver of Subrogation. NASD Regulation waives all rights
against Nasdaq and its agents, officers, directors, and
employees for recovery of damages to the extent these
damages are covered by the workers compensation and
employers liability or commercial umbrella liability
insurance obtained by Tenant pursuant to this
Agreement.
d) Fidelity/Crime Policy
i) NASD Regulation shall maintain a fidelity bond or
commercial crime policy in the amount of $25,000,000
for each loss or series of related losses to cover the
dishonest acts of its employees. The policy will
include coverage for fidelity, on premises, in transit,
forgery or alterations and securities coverages to
include endorsements for independent contractors,
facsimile transmission, unauthorized signatures, and
wire transfers.
ii) NASD Regulation's fidelity bond shall be endorsed
to name Nasdaq as a Loss Payee as its interests may
apply. However, losses otherwise payable to Nasdaq
under such Crime insurance will be reduced by fifty
percent (50%) whenever such covered dishonest acts
involve both NASD Regulation employees and Nasdaq
employees.
e) Computer Crime Policy
i) NASD Regulation shall maintain a Computer Crime
policy in the amount of $10,000,000 to cover its
employees, agents and third party for computer systems
fraud, data processing service operations fraud, voice
initiated transfer fraud, facsimile transfer fraud,
destruction of data or programs by hacker, destruction
of data or programs by virus .
ii) NASD Regulation's Computer Crime policy shall be
endorsed to name Nasdaq as a Loss Payee as its
interests may apply. However, losses otherwise payable
to Nasdaq under such insurance will be reduced by fifty
percent (50%) whenever such covered dishonest acts
involve both NASD Regulation employees and Nasdaq
employees.
f) Professional Liability Insurance
i) NASD Regulation shall maintain a professional liability
insurance covering the errors and omissions of NASD
Regulation, its officers, directors, employees and
agents, committed in connection with this Agreement in
an amount not less than $10,000,000.
g) Commercial Property Insurance.
i) NASD Regulation will maintain Property insurance to
cover the replacement cost of its personal property,
decorations, trade fixtures, furnishings, improvements
and betterments, and supplies without deduction for
depreciation, and business interruption/extra expense
for a period of indemnity not less than twelve(12)
months. Nasdaq shall not be liable for any damage to or
loss of personal property sustained by NASD Regulation,
whether or not it is insured, unless such loss was
caused by the gross negligence or willful misconduct of
Nasdaq, its employees, officers, directors, or agents.
ii) Waiver of Subrogation. NASD Regulation hereby
waives any recovery of damages against Nasdaq, its
employees, officers, directors, agents, or
representatives for loss or damage to the building,
tenant improvements and betterments, fixtures,
equipment, and any other personal property to the
extent covered by the commercial property insurance.
23.03 Nasdaq Insurance Requirements.
Commercial General and Umbrella Liability Insurance.
a) Nasdaq shall maintain CGL insurance and, if necessary,
Commercial Umbrella insurance with a limit of not less than
$10,000,000 each occurrence.
i) CGL insurance will cover liability arising from
premises , operations, independent contractors,
products-completed operations, personal injury and
advertising injury, and liability assumed under an
insured contract including the tort liability of
another assumed in a business contract.
ii) NASD Regulation shall be included as an additional
insured under the CGL and under the commercial
umbrella, if any. This insurance shall apply as primary
insurance with respect to any other insurance or
self-insurance programs afforded to NASD Regulation.
There shall be no endorsement or modification of the
CGL to make it excess over other available insurance;
alternatively, if the CGL states that it is excess or
pro rata, the policy shall be endorsed to be primary
with respect to the additional insured.
iii) Waiver of Subrogation. Nasdaq waives all rights
against the NASD Regulation and its agents, officers,
directors and employees for recovery of damages to the
extent these damages are covered by the commercial
general liability or commercial umbrella liability
insurance maintained pursuant to this paragraph.
b) Automobile and Umbrella Liability Insurance
i) Nasdaq shall maintain automobile liability and, if
necessary, commercial umbrella liability insurance with
a limit of not less than $2,000,000 each accident.
ii) Such insurance shall cover liability arising out of any
auto (including owned, hired, and non-owned autos).
iii) Coverage shall be written on Insurance Standards
Office Form CA 0001, or a substitute form providing
equivalent liability coverage. If necessary, the policy
shall be endorsed to provide contractual liability
coverage equivalent to that provided in the 1990 and
later editions of CA 0001.
iv) Waiver of Subrogation. Nasdaq waives all rights
against NASD Regulation and its agents, officers,
directors and employees for recovery of damages to the
extent these damages are covered by the business auto
liability or commercial umbrella liability insurance
obtained by Nasdaq pursuant to this Agreement or under
any applicable auto physical damage coverage.
c) Workers Compensation Insurance.
i) Nasdaq shall maintain workers compensation and
employers liability insurance. The commercial umbrella
and/or employers liability limits shall not be less
than $5,000,000 each accident for bodily injury by
accident or $5,000,000 each employee for bodily injury
by disease.
ii) Waiver of Subrogation. Nasdaq waives all rights
against NASD Regulation and its agents, officers,
directors, and employees for recovery of damages to the
extent these damages are covered by the workers
compensation and employers liability or commercial
umbrella liability insurance obtained by Tenant
pursuant to this Agreement.
d) Fidelity/Crime Policy
i) Nasdaq shall maintain a fidelity bond or commercial
crime policy in the amount of $5,000,000 for each loss
or series of related losses to cover the dishonest acts
of its employees. The policy will include coverage for
fidelity, on premises, in transit, forgery or
alterations and securities coverages to include
endorsements for independent contractors, facsimile
transmission, unauthorized signatures, and wire
transfers.
e) Computer Crime Policy
i) Nasdaq shall maintain a Computer Crime policy in
the amount of $10,000,000 to cover its employees,
agents and third party for computer systems fraud, data
processing service operations fraud, voice initiated
transfer fraud, facsimile transfer fraud, destruction
of data or programs by hacker, destruction of data or
programs by virus.
ii) Nasdaq's Computer Crime policy shall be endorsed
to name NASD Regulation as a Loss Payee as its
interests may apply. However, losses otherwise payable
to NASD Regulation under such insurance will be reduced
by fifty percent (50%) whenever such covered dishonest
acts involve both NASD Regulation employees and Nasdaq
employees.
f) Professional Liability Insurance
i) Nasdaq shall maintain a professional liability
insurance covering the errors and omissions of Nasdaq,
its officers, directors, employees and agents committed
in connection with this Agreement in an amount not less
than $10,000,000.
g) Commercial Property Insurance.
i) Nasdaq will maintain Property insurance to cover
the replacement cost of its personal property,
decorations, trade fixtures, furnishings, improvements
and betterments, and supplies without deduction for
depreciation, and business interruption/extra expense
for a period of indemnity not less than twelve(12)
months. NASD Regulation shall not be liable for any
damage to or loss of personal property sustained by
Nasdaq, whether or not it is insured, unless such loss
was caused by the gross negligence or willful
misconduct of NASD Regulation, its employees, officers,
directors, or agents.
ii) Waiver of Subrogation. Nasdaq hereby waives any
recovery of damages against NASD Regulation, its
employees, officers, directors, agents, or
representatives for loss or damage to the building,
tenant improvements and betterments, fixtures,
equipment, and any other personal property to the
extent covered by the commercial property insurance.
23.04 Subcontractors Insurance Requirements. Each Party is
responsible for ensuring that its agents, third parties (but not those
third parties which initially compile Nasdaq Market Data) or subcontractors
used in the performance of this Agreement are adequately insured. The
contracting Party with the agent will ensure that its insurance is excess
of the agent's insurance to provide adequate coverage to the other Party.
Each party will ensure that its agents maintain the following minimum
insurance coverages and limits:
Workers Compensation - Statutory limits required in the state
where services are performed.
Employers Liability - $500,000 per accident, $500,000 per
employee disease and $500,000 policy limit for disease.
Automobile Liability - $1,000,000 each person/each accident
including owned, hired, and non-owned autos).
Commercial General Liability Policy will include Broad Form
Contractual Liability, Bodily Injury, Property Damage,
Personal Injury and Completed Operations with a minimum limit
of $1,000,000 combined single limit per occurrence and
$2,000,000 aggregate.
Umbrella Liability - Minimum required coverage is $5,000,000.
Higher umbrella limits may be used to offset lower levels of
underlying insurance requirements. The policy must reference
each of the above policies.
SECTION 24 MISCELLANEOUS PROVISIONS.
24.01 Assignment. Neither Party may assign this Agreement
without the prior written consent of the other Party, which consent will
not be unreasonably withheld, conditioned or delayed, provided, however,
that either Party may assign this Agreement to a corporation controlling,
controlled by or under common Control with the assigning Party. The consent
of a Party to any assignment of this Agreement will not constitute such
Party's consent to further assignment. This Agreement will be binding on
the Parties and their respective successors and permitted assigns. Any
assignment in contravention of this subsection will be void.
24.02 Notices. All notices and other communications required
or permitted to be given under this Agreement will be in writing and will
be deemed to have been duly given upon (i) actual receipt by the notified
Party or (ii) constructive receipt (as of the date marked on the return
receipt) if sent by certified mail or overnight delivery service, return
receipt requested, to the following addresses:
(a) If to NASD Regulation:
***** *
With, in the case of notice of breach or default, a required
copy to: *****
(b) If to Nasdaq:
*****
With, in the case of notice of breach or default, a required
copy to: *****
Either Party may change its address for notification purposes by giving the
other Party ten (10) days prior written notice of its new address.
24.03 Counterparts. This Agreement may be executed in any
number of counterparts, each of which will be deemed an original, but all
of which taken together shall constitute one single agreement between the
Parties.
24.04 Relationship. The Parties intend to create an
independent contractor relationship and nothing contained in this Agreement
will be construed to make either Nasdaq or NASD Regulation partners, joint
venturers, principals, agents or employees of the other. NASD Regulation
and its personnel, in performance of this Agreement, are acting as
independent contractors and not as employees or agents of Nasdaq. Neither
Party will have any right, power or authority, express or implied, to bind
the other. NASD Regulation will provide all insurance coverage required by
applicable laws, regulations, or employment agreements, including, without
limitation, medical and ▇▇▇▇▇▇▇'▇ compensation. NASD Regulation will be
responsible for payment of all unemployment, social security, and other
payroll taxes and all benefits of all individuals who are engaged in the
performance of the Services. If, at any time, any liability is asserted
against Nasdaq for unemployment, social security or any other payroll tax
related to NASD Regulation or any individuals or subcontractors employed by
or associated with NASD Regulation, then NASD Regulation will indemnify and
hold harmless Nasdaq from any such liability, including, without
limitation, any such taxes, any interest or penalties related thereto, and
reasonable attorney's fees and costs.
---------
* ***** Confidential Treatment has been requested for the redacted
portions. The confidential redacted portions have been filed separately
with the Securities and Exchange Commission.
24.05 Consents, Approvals and Requests. Except as
specifically set forth in this Agreement, all consents and approvals to be
given by either Party under this Agreement will not be unreasonably
withheld, conditioned or delayed.
24.06 Severability. If any provision of this Agreement is
held by a court of competent jurisdiction to be contrary to Law, then the
remaining provisions of this Agreement, if capable of substantial
performance, will remain in full force and effect.
24.07 Waiver. No failure on the part of NASD Regulation or
Nasdaq to exercise, no delay in exercising, and no course of dealing with
respect to any right, power, or privilege under this Agreement will operate
as a waiver thereof, nor will any single or partial exercise of any such
right, power, or privilege preclude any other or further exercise thereof
or the exercise of any other right, power, or privilege under this
Agreement.
24.08 Remedies Cumulative. No right or remedy herein
conferred upon or reserved to either Party is intended to be exclusive of
any other right or remedy, and each and every right and remedy will be
cumulative and in addition to any other right or remedy under this
Agreement, or under applicable law, whether now or hereafter existing.
24.09 Entire Agreement. This Agreement and the Exhibits to
this Agreement represent the entire agreement between the Parties with
respect to its subject matter, and there are no other representations,
understandings or agreements between the Parties relative to such subject
matter.
24.10 Amendments. No amendment to, or change, waiver or
discharge of, any provision of this Agreement will be valid unless in
writing and signed by an authorized representative of each of the Parties.
24.11 Survival Of Provisions. The terms of this Agreement
apply to those rights that survive any cancellation, termination, or
rescission, namely-- Confidentiality, Intellectual Property rights and
Indemnification sections of this Agreement, the provision and receipt of
Nasdaq Data, disclaimers of warranties, limitations of liability and any
warranties. Payment obligations of one Party to the other arising prior to
the cancellation, termination or recession of this Agreement will survive
the expiration of termination of this Agreement.
24.12 Governing Law. This Agreement will be deemed to have
been made in the State of New York and will be construed and enforced in
accordance with, and the validity and performance hereof will be governed
by, the laws of the State of New York, without reference to its principles
of conflicts of laws. The Parties hereby consent to submit to the
jurisdiction of the federal or state courts of or for the State of New York
in connection with any action or proceeding instituted relating to this
Agreement.
24.13 Covenant of Further Assurances. Nasdaq and NASD
Regulation covenant and agree that, subsequent to the execution and
delivery of this Agreement and, without any additional consideration, each
of Nasdaq and NASD Regulation will execute and deliver any further legal
instruments and perform any acts that are or may become necessary to
effectuate the purposes of this Agreement.
24.14 Export. Nasdaq and NASD Regulation agree that they each
will comply with all applicable export laws and regulations of the United
States. Each Party will cooperate with the other Party in connection the
requirements of this Section, including promptly furnishing any end-user
certificates, affidavits regarding re-export or other applicable
certificates or documents.
24.15 ***** *
24.16 Approvals. Each Party warrants that it will, at its
sole expense, comply with all applicable laws, regulations, and
requirements, and that its performance of the Agreement will not cause it
to violate any State, Federal or local Laws. Each Party will at all times
exercise due care, prudence and diligence in carrying out its duties and
responsibilities under the Agreement. Each Party will 24.1 obtain and
maintain all necessary licenses, permits or government approvals as may be
necessary for it to perform the Agreement. Each Party further warrants that
it will cooperate with and assist the other Party in obtaining and
maintaining any such approvals as applicable, to the extent reasonably
possible if: (i) requested to do so by the other party in writing; and (ii)
without limiting the requesting Party's obligations under this Agreement.
24.17 Publicity. Each Party will: (i) submit to the other
Party all advertising, written sales promotions, press releases and other
publicity matters relating to this Agreement in which the other Party's
name or ▇▇▇▇(s) is/are mentioned or which contains language from which the
connection of said name or marks may be inferred or implied (in each
instance, including the Marks); and (ii) not publish or use such
advertising, sales promotions, press releases or publicity matters without
the other Party's prior written consent.
24.18 Error Correction. The Fees are based on information and
data furnished by the Parties during the negotiation of this Agreement. The
Parties acknowledge that they have to the extent possible, verified and
validated such information and data and that the Parties believe that it is
reflective of conditions in existence as of the Effective Date of this
Agreement. If, however, at any time during the first twelve (12) months
after the Commencement Date of this Agreement, either Party identifies a
material error in the information or data used to calculate these Fees,
then the Parties will negotiate an equitable adjustment to the Fees. In
addition, if in the time period stated above either Party identifies a
material error in an assumption in the description of a tower of NASD
Regulation Services that was approved by Nasdaq prior to the Commencement
Date of this Agreement that would have a material impact on NASD
Regulation's costs to provide the Services included in such tower, then the
parties will negotiate an equitable adjustment to the Fee for NASD
Regulation's provision of the Services in such tower to Nasdaq.
24.19 Authorization. This Agreement will not be binding upon
the Parties unless executed by an authorized officer of NASD Regulation and
Nasdaq. Nasdaq and NASD Regulation and the persons executing this Agreement
represent that such persons are duly authorized by all necessary and
appropriate corporate or other action to execute this Agreement on behalf
of NASD Regulation and Nasdaq.
* ***** Confidential Treatment has been requested for the redacted
portions. The confidential redacted portions have been filed separately
with the Securities and Exchange Commission.
24.20 Interpretation. The masculine, feminine or neuter
gender and the singular or plural number will be deemed to include the
other gender or numbers where the context so indicates or requires. Unless
otherwise expressly provided, references to days, months or years are to
calendar days, months or years. Person or persons includes individuals,
partnerships, corporations, government agencies or other entities.
IN WITNESS WHEREOF, the Parties hereto have each caused this
Agreement to be signed and delivered by their duly authorized
representative.
NASD Regulation, Inc. The Nasdaq Stock Market, Inc.
(NASD Regulation) (Nasdaq)
By: By:
----------------------------- -----------------------------
Name: Name:
----------------------------- -----------------------------
Title: Title:
----------------------------- -----------------------------
EXHIBIT 1
***** *
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* ***** Confidential Treatment has been requested for the redacted
portions. The confidential redacted portions have been filed separately
with the Securities and Exchange Commission.