1
Confidential Materials omitted and filed separately with the Securities
and Exchange Commission. Asterisks denote omissions.
EXHIBIT 10.26
OPTIONAL SERVICE DELIVERY
AGREEMENT
THIS AGREEMENT, dated as of 2/28/95, 1995 between MVIS CORPORATION, d/b/a Market
Vision, a Delaware Corporation with offices at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ ("MARKET VISION"), and ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, INC., a New York
corporation with offices at One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ ("Source").
WHEREAS, MARKET VISION prepares, operates and transmits financial data to
subscribers by means of a data feed and software necessary to receive
electronically distributed information services ("NETWORK"); and
WHEREAS, MARKET VISION markets and sells information and services under
various names, trademarks and servicemarks, including, but not limited to:
"MARKET VISION"; and
WHEREAS, Source publishes certain electronic information services including
those services listed and described in Exhibit A to this Agreement (the "Source
Services"); and
WHEREAS, Source currently distributes all or some of the Source Services via
other network vendors; and
WHEREAS, Source desires to provide the Source Services through the NETWORK to
current and potential subscribers of MARKET VISION as well as via direct feed to
third parties.
NOW THEREFORE the parties, in consideration of the premises and mutual covenants
contained herein, agree as follows:
1. Distributor; Non-Exclusivity; Additional Source Services.
(a) Distributor - Appointment. Source hereby appoints MARKET VISION and MARKET
VISION hereby agrees to serve as, a non-exclusive distributor of Source for the
term set forth in Section 11 for the limited purpose of marketing and
distributing the Source Services worldwide to MARKET VISION Subscribers, as
defined below, who also subscribe to the Source Services ("Source Subscribers"),
all in accordance with the terms and conditions hereof. "Subscribers" shall mean
those persons or entities authorized by MARKET VISION subject to the terms and
conditions hereof, to access all or part of the Source Services. Notwithstanding
the foregoing, MARKET VISION shall not deliver the Source Services to those
persons set forth in Exhibit B, as such exhibit is modified from time to time,
with any modifications being implemented by MARKET VISION as soon as possible,
but in no event later than thirty (30) days from the giving of written notice.
2
(b) Non-Exclusivity. The parties acknowledge and agree that the appointment of
MARKET VISION as distributor of Source for the purpose of distributing the
Source Services shall be on a non-exclusive basis. Source retains the right to
distribute itself or permit other third parties to distribute one or more of the
Source Services or services substantially similar thereto.
(c) Additional Source Services. In the event that the parties agree that MARKET
VISION may distribute other existing services of Source or any electronically
distributed information service hereafter developed by Source that are not
listed in Exhibit A or that are not substantially similar to any service listed
therein (an "Additional Source Service"), then such Additional Source Service
shall fall within the definition of Source Service under this Agreement, and the
distribution of such Additional Source Service shall be subject to the terms and
conditions set forth in this Agreement.
2. Inputting; Direct Feed; Accessibility; Display; Accuracy.
(a) Inputting and Use of Services.
(i) Generally. Source shall input the Source Services into the NETWORK by means
of a MARKET VISION protocol as set forth in Exhibit C. MARKET VISION shall
provide Source with subscriptions and software necessary to receive the Source
Services for no charge. MARKET VISION agrees to provide such additional software
and upgrades to existing software to Source from time to time during the term of
this Agreement and any extensions thereof, that are necessary for the Source to
receive the Source Services pursuant to this Agreement at no cost to Source.
Source shall be responsible for any costs associated with cabling or other
modifications necessary within its locations. Source shall be responsible for
all local communications costs between Source and MARKET VISION locations.
(ii) Direct Feed Agreement. MARKET VISION acknowledges that Source anticipates
providing the Source Services and its other Electronic Information Services on a
direct feed basis to certain of Source's subscribers. Together with the
execution of this Agreement, MARKET VISION and Source agree to enter into a
separate agreement, a copy of which is attached hereto as Exhibit D, pursuant to
which MARKET VISION will provide Source with a direct feed to any of Source's
subscribers, as Source from time to time designate whether or not said
subscribers are then current MARKET VISION customers. In such event, Source
Subscriber shall enter into a separate agreement with MARKET VISION pursuant to
which MARKET VISION will provide Source Subscribers a direct feed line.
(iii) Use of Source's Proprietary Services. Notwithstanding any provision of
subsection (i) that may be to the contrary, MARKET VISION subject to the prior
written consent of Source, shall have the right to access the Source Services;
provided
2
3
that Source shall have the right to deny MARKET VISION access to any Source
Service in circumstances where MARKET VISION uses such service in an way that
competes with the sale of such service by Source or any of its affiliates. Prior
to exercising its right under this subsection (iii) Source agrees to notify
MARKET VISION in writing at least thirty (30) days prior to the desired
termination date and state the action by MARKET VISION that gave rise to the
termination right. If MARKET VISION ceases such action prior to the desired
terminate date, Source may not deny access to the Source Services on the basis
of such cured action. The rights specified in this subsection (iii) shall be in
addition to, and not in limitation of, any other remedies the parties may have.
(b) Accessibility of Source Services. MARKET VISION will attempt to make Source
Services available to its subscribers whenever MARKET VISION determines it is
commercially practical to do so. Distribution by MARKET VISION of a Source
Service that is first made available through the Network after the date hereof
pursuant to the terms of this subsection (b) shall be subject to the terms of
this Agreement.
(c) Accuracy of Information. Source shall use commercially reasonable efforts to
(i) insure that the information in the Source Services is accurate, (ii) correct
inaccuracies, errors or defects in such information promptly after discovery,
and (iii) insure that the information in the Source Services is provided on a
timely basis. Source shall monitor such information as it is distributed through
the Network and promptly correct any inaccuracies, errors or defects therein.
3. Promotion and Marketing.
(a) Efforts and Materials.
(i) Marketing. Source and MARKET VISION shall exercise commercially reasonable
efforts to market and promote subscriptions to the Source Services to be
accessed through the NETWORK. From time to time during the term of this
Agreement, but no less frequently than once a calendar quarter, MARKET VISION
shall profile or otherwise promote the Source Services on the NETWORK or in
MARKET VISION promotional materials.
(ii) Materials. Neither party shall publish or distribute any advertising or
promotional material regarding the availability of the Source Services through
the NETWORK without the prior written consent of the other, which consent shall
not be unreasonably withheld. If the receiving party has not notified the
sending party within twenty (20) days after its receipt thereof, such materials
shall be deemed approved. Materials being sent to the other party for approval
pursuant to this subsection (a)(ii) shall be directed to the person(s)
designated in Exhibit E hereto.
3
4
(b) Subscriber List. To facilitate Source's promotional efforts, MARKET VISION
shall provide to Source the following information and reports: (i) on a monthly
basis the list of MARKET VISION Subscribers located in the United States, if not
prohibited by any contract or agreement with any Subscriber, (ii) on a monthly
basis, the list of those persons and entities located in the United States who
became new MARKET VISION Subscribers during such month, if not prohibited by any
contract or agreement with any Subscriber, (iii) from time to time, but not less
frequently than quarterly, the list of new and existing MARKET VISION
Subscribers located outside the United States promptly after it receives at
headquarters the information necessary to develop such list, if not prohibited
by any contract or agreement with any Subscriber, (iv) upon request of Source,
information MARKET VISION has with regard to renewal dates for subscriptions to
the Source Services, and (v) on a monthly basis, access reports which shall,
among other things, set forth those persons taking the Source Services and
indicating which of those are being provided on a trail basis. MARKET VISION
represents and warrants that all reports shall be accurate and complete and
correctly reflect the number of subscriptions and those having access to the
Source Services.
(c) Demonstration Periods; Trade Shows. MARKET VISION agrees to promote and
market the Source Services, subject to the terms contained in the last sentence
of Section 1(a), by making one or more of the Source Services available free of
charge to MARKET VISION subscribers for up to thirty (30) days upon the request
of Source. The preceding provision shall not be deemed to increase MARKET
VISION's obligations to market and promote subscriptions to the Source Services
set forth in subsection (a)(i) of this Section 3. In addition, MARKET VISION
agrees to promote the Source Services at any trade show exhibits at which MARKET
VISION is a participant.
4. Fees; Service Agreement.
(a) Billing; Fees. Source shall ▇▇▇▇ Source Subscribers in the United States on
a regular basis for subscriptions to the Source Services. MARKET VISION shall
▇▇▇▇ Source Subscribers outside the United States, on a regular basis for
subscriptions to all Source Services. Fees for subscriptions to the Source
Services shall be determined by Source in its respective geographic regions in
its sole discretion and shall be in addition to any fees charged to MARKET
VISION Subscribers by MARKET VISION. Source agrees that it will make changes in
published subscription fees to the Source Services only once per year, which
shall, except as set froth below, be effective anywhere other than Japan on
January 1 and in Japan on April 1, and will give MARKET VISION no less than one
hundred twenty (120) days' prior written notice of any such change.
Notwithstanding the foregoing, all new Source Subscribers who became Source
Subscribers within said one hundred twenty (120) day pre-effective period, shall
be charged the new subscription fees. MARKET VISION covenants that it will
inform all Source Subscribers of the new fees and shall implement the new fee
4
5
schedule at the times provided for herein. Source agrees that it will not charge
a Source Subscriber any more money for its subscription to the Source Services
delivered pursuant to this Agreement than it will charge said Source Subscriber
for the Source Services received by other third party vendors. The parties agree
that Source may require MARKET VISION to terminate distribution of the Source
Services to Source Subscribers that are severely in arrears in paying their
subscription fees. Source Subscribers shall be deemed severely in arrears for
purposes hereof when they become six months behind in payments. The parties
agree that the party responsible for billing shall comply with all applicable
County, State and local laws and regulations, including, but not limited to the
taxing laws and regulations. With respect to accounts billed by MARKET VISION,
MARKET VISION shall use its best efforts to collect fees due to Source for the
Source Services.
(b) MARKET VISION Service Agreements. In those jurisdictions where MARKET VISION
is billing Source Subscribers for their use of the Source Services, MARKET
VISION shall provide the applicable MARKET VISION Service Agreement to each
subscriber to the Source Services and shall not grant any subscriber access to
any Source Service (except on a trial basis) until it has obtained an executed
copy of the applicable MARKET VISION Service Agreement from such subscriber.
MARKET VISION Service Agreement provided to Source Subscribers shall contain a
representation and warranty that the Source Subscribers an institutional
investor (including high net worth individuals), financial institution, broker
or dealer or similar institution and shall further provide that Source
Subscribers shall not modify, reproduce in any form, redesseminate, republish,
re-present or re-distribute Source Services without the prior written consent of
Source which consent shall be at Source's sole discretion and shall contain such
other provisions as reasonably requested by Source. Copies of representative
MARKET VISION Service Agreements currently being used are attached as Exhibit F.
MARKET VISION shall provide Source with a copy of material amendments to said
MARKET VISION Service Agreements within ten (10) days after such amendments are
implemented. Source shall not make any statement regarding any MARKET VISION
Service that is contradictory or inconsistent with the then-current version of
the applicable MARKET VISION Service Agreement. MARKET VISION agrees to allow
Source's marketing representatives to use and present to potential and existing
subscribers the MARKET VISION Service Agreement and to require MARKET VISION's
marketing and sales representatives to coordinate all marketing and sales
efforts with Source's marketing representatives and cooperate with Source's
marketing representatives in presenting to potential and existing subscribers
the Source Services.
(c) Source's Service Agreement. In jurisdictions in which Source is billing
Source Subscribers for their use of the Source Services, Source may provide the
Source Services via a written or oral service Agreement. A copy of Source's
written Service Agreement to be used in jurisdictions where Source will ▇▇▇▇
Source Subscribers for their use of the Source Services and a copy of Source's
price lists currently in effect
5
6
Confidential Materials omitted and filed separately with the Securities
and Exchange Commission. Asterisks denote omissions.
are attached as Exhibit G. Source will notify MARKET VISION in writing or by
facsimile of all new Source Subscribers in jurisdictions in which Source is
billing Source Subscribers.
5. Charges/Fees
(a) MARKET VISION's Fee. ******************************************************
*******************************************************************************
******************************************************************************.
(b) Sales Commission and Fee. MARKET VISION shall not be entitled to any fee or
commission for subscriptions to a Source Service sold to a MARKET VISION
Subscriber by a salesperson working for MARKET VISION unless Source deems the
payment of a fee or commission appropriate.
(c) Payment. Within sixty (60) days after the end of each calendar quarter
falling fully or partially within the term of this Agreement, MARKET VISION
shall deliver to Source a report showing the Subscription receipts for such
quarter, and the amounts due Source, and, except as set forth in the following
sentence, a check payable to Source for the gross amount of said subscription
receipts. For those MARKET VISION Subscribers which MARKET VISION bills for
Source Services outside the United States, MARKET VISION will remit payment
within thirty (30) days of receipt of payment from said MARKET VISION
Subscriber. All payments made hereunder shall be made in U.S. Dollars. If MARKET
VISION is required by applicable law to pay or withhold any taxes for the
subscription fees collected on behalf of Source, MARKET VISION shall be entitled
to deduct and withhold income or excise taxes or other taxes, withholdings or
governmental charges ("Taxes") from any subscription fees collected. In the
event that MARKET VISION withholds Taxes from amounts payable to Source
hereunder, it shall remit to Source the subscription receipts net of any Taxes
and shall provide a statement setting forth the amount of Taxes withheld, the
applicable rate and other information which may be reasonably requested relating
to the Taxes.
(d) Adjustments. Source acknowledges that MARKET VISION may make initial
calculations and payments of amounts due Source based on amounts billed to
Source Subscribers in respect of Source Services, and accordingly there may be
post payment adjustments to amounts remitted by MARKET VISION to Source pursuant
to subsection 5(c) hereof to reflect (i) amounts MARKET VISION billed in error
for credits MARKET VISION gave in the ordinary course of business to Source
Subscribers, and (ii) amounts MARKET VISION was unable to collect from Source
Subscribers.
(e) Records. MARKET VISION shall maintain complete and accurate books and
records (collectively, the "Records") with respect to all amounts it billed to
Source Subscribers in respect of subscriptions to the Source Services. Source
shall have the
6
7
right upon at least thirty (30) days' prior written notice to inspect such
Records during normal business hours no more frequently than twice per year. All
information gained by Source from such inspection will be kept in strict
confidence and will be used solely for the purpose of verifying the accuracy of
the computation of the amounts due hereunder.
6. Copyright.
Source represents and warrants to MARKET VISION that Source or its licensors to
the best of its and their knowledge own the Source Services and the copyrights
thereto, and that Source has the right to authorize MARKET VISION to distribute
the Source Services under this Agreement. MARKET VISION agrees it is not
acquiring under this Agreement any proprietary interest in the Source Services
and agrees not to challenge the claim of Source or its licensors to the
ownership of the Source Services and the measures requested by Source to make
the copyright claim of Source or its licensors known to Source Subscribers and
to assist Source, at Source's expense, in Source's defense or prosecution of any
copyright infringement claim.
7. Maintenance and Circumstances Beyond Parties' Control. Subject to the
provisions set forth in Section 8, neither MARKET VISION nor Source will be
deemed in default or liable hereunder if, as a result of any cause or
circumstance beyond such party's reasonable control or any repair work or
routine maintenance, there occurs a delay in or failure or interruption of (i)
service to any Source Subscriber, or (ii) transmission of the Source Services.
So long as any such failure continues, the party responsible for such service or
transmission will use its reasonable best efforts to eliminate such conditions
and will keep the other party fully informed at all times concerning the matters
causing such delay or default and the prospects for their termination.
8. Indemnification.
(a) By Source. In the event any claim is brought by third party against MARKET
VISION that relates to, arises out of or is based upon the Source Services, the
failure of Source to comply with any law, rule or regulation, or the permanent
disconnection of the Source Services by Source to any Source Subscriber, MARKET
VISION shall promptly notify Source, and Source shall defend such claim at
Source's expense and under Source's control. Source shall indemnify and hold
harmless MARKET VISION against any judgment, liability, loss, cost or damage
(including litigation costs and reasonable attorney's fees) arising from or
related to such claim whether or not such claim is successful. MARKET VISION
shall have the right, at is expense, to participate in the defense of such claim
through counsel of its own choosing; provided, however, that Source shall not be
required to pay any settlement amount that is has not approved in advance.
7
8
(b) By MARKET VISION. In the event any claim is brought by any third party
against Source that relates to, arises out of or is based upon any error, delay,
interruption or other event caused by MARKET VISION or its employees in
transmitting the Source Services, Source shall promptly notify MARKET VISION,
and MARKET VISION shall defend such claim at MARKET VISION's expense and under
MARKET VISION's control. MARKET VISION shall indemnify and hold harmless Source
against any judgment, liability, loss, cost or damage (including litigation
costs and reasonable attorneys' fees) arising from or related to such claim,
whether or not such claim is successful. Source shall have the right, at its
expenses, to participate in the defense of such claim through counsel of its own
choosing; provided, however, that MARKET VISION shall not be required to pay any
settlement amount that is has not approved in advance.
9. Representations and Warranties of the Parties. Each party represents,
covenants and warrants to the other as follows:
(i) It has full power and authority (including full corporate power and
authority) to execute and deliver this Agreement and to perform its obligations
hereunder. This Agreement constitutes the valid and legally binding obligation
of such party, enforceable in accordance with its terms and conditions.
(ii) That the parties will comply with all codes, regulations and laws
applicable to the provision of the services under this Agreement, and has
obtained or will obtain all necessary permits, licenses and other authorizations
necessary for its performance of services under this Agreement.
(iii) That the execution, delivery and performance of this Agreement
and the transactions contemplated hereby do not conflict with or violate in any
material respect; (a) a party's charter or by-laws; (b) any contract or
agreement to which it is a party; (c) any order, decree or judgment of any court
or government authority; and (d) any federal or New York State statute, rule or
regulation.
10. Confidentiality.
(a) The following materials and information and all copies thereof of whatever
nature are designated as "confidential" and are the proprietary information and
trade secrets of MARKET VISION.
(i) the computer software possessed by MARKET VISION and all source
documents relating to such computer software;
(ii) proprietary business information of MARKET VISION (including, without
limitation, the names and addresses of Subscribers, information providers and
8
9
suppliers), and business information that MARKET VISION does not generally make
available to the public;
(iii) the methods, means, personnel, equipment and software by and with which
MARKET VISION provides the NETWORK; and
(iv) any other information that MARKET VISION reasonable designates, by notice
in writing delivered to Source, as being confidential or a trade secret.
(b) The following materials and information and all copies thereof of whatever
nature are designated as "confidential" and are the proprietary information and
trade secrets of Source:
(i) proprietary business information of Source, (including, without limitation,
the names and addresses of Source Subscribers, information providers and
suppliers), and business information that Source does not generally make
available to the public; and
(ii) any other information that Source reasonably designates, by notice in
writing delivered to MARKET VISION as being confidential or a trade secret.
(c) All such proprietary or confidential information of MARKET VISION or Source
shall be kept secret by the Source or MARKET VISION, as the case may be, to the
degree it keeps secret its own confidential or proprietary information. Such
information belonging to either party shall not be disclosed by the other party
to its employees except on a need-to-know basis or to agents or contractors of
such other party, but may be disclosed by such other party to state or federal
agencies, authorities or courts upon their order or request provided prompt
notice of such order or requests is given by such other party to the party to
which such information belongs, if such notice is legally permitted. Upon
termination of this Agreement, all copies of such information shall be returned
to the party to which such information belongs and no copies thereof shall
remain in the possession, custody or control or such other party.
(d) No information that would otherwise be proprietary or confidential for the
purposes of this Agreement pursuant to subsections (a) or (b) above shall be
subject to the restrictions on disclosure imposed by this section in the event
and to the extent that (i) such information is in, or becomes part of, the
public domain otherwise than through the fault of the party to which such
information does not belong, (ii) such information was known to such party prior
to the execution of this Agreement, or (iii) such information was revealed to
such party by a third party.
11. Term; Termination.
9
10
(a) Term. The initial term of this Agreement shall commence as of the date first
above written and shall terminate at the end of the seventh year (the "Initial
Term"). The term of this Agreement shall automatically be extended for one or
more periods of one year (a "Renewal Term"), unless either party send to the
other written notice of is election not to renew at least ninety (90) days prior
to the end of the Initial Term, or any Renewal Term, as the case may be.
(b) Default. If either party shall default in the performance of or compliance
with any provision contained in this Agreement and such default shall not have
been cured within thirty (30) days after written notice thereof shall have been
given to the appropriate party, the party giving such notice may then give
further written notice to such other party terminating this Agreement, in which
event this Agreement and any other rights granted hereunder shall terminate on
the date specified in such further notice. The parties agree that any breach of
a representation or warranty contained in this Agreement shall result in its
immediate termination. MARKET VISION and Source each agree, in the event of a
breach by either party of any of their respective obligations under this
Agreement, such other party may seek temporary or permanent injunctive relief,
without the necessity of proving actual damages or the posting of a bond, as
well as other equitable relief, and will be entitled to commence an action for
any such relief in any court of competent jurisdiction.
(c) Insolvency. In the event that either party hereto shall be abjudged
insolvent or bankrupt, or upon the institution of any proceedings by its seeking
relief, reorganization or arrangement under any laws relating to insolvency, or
if an involuntary petition in bankruptcy is filed against such party and said
petition is not discharged within sixty (60) days after such filing, or upon any
assignment for the benefit of its creditors, or upon the appointment of a
receiver, liquidator or trustee of any of its assets, or upon the liquidation,
dissolution or winding up of its business (an "Event of Bankruptcy"), then the
party involved in any such Event of Bankruptcy shall immediately give notice
thereof to the other party, and the other party at its option may terminate this
Agreement upon written notice.
12. Miscellaneous.
(a) Notices. All notices hereunder (except as provided for in Section 4(c)
hereof) shall be in writing and shall be delivered in person, or sent by
overnight courier service, to the address of the party set forth below, or to
such other addresses as may be stipulated in writing by the parties pursuant
hereto. Unless otherwise provided, notice shall be effective on the date it is
officially recorded as delivered.
(i) If to MARKET VISION to:
MVIS Corporation
10
11
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, President
(ii) If to Source, to:
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Inc.
One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
with a copy to:
▇▇▇ ▇▇▇▇▇▇ American Capital, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
(b) Amendment; Assignment. This Agreement may not be amended except by written
instrument executed by Source and MARKET VISION. Neither party may assign this
Agreement to any third party, other than an affiliate, without the prior written
consent of the other. Any assignment of this Agreement to an affiliate shall not
relieve the assigning party of any of its obligations or liabilities under this
Agreement.
(c) Survival of Certain Provisions. Notwithstanding the termination of this
Agreement, those provisions of this Agreement that by their nature are intended
to survive such termination shall survive, including without limitation, the
provisions of Sections 8, 9 and 10.
(d) Consequential Damages. Except pursuant to Section 8, neither party shall be
liable for any consequential, indirect, incidental or special damages, even if
advised of the possibility of such damages. In no event shall either party or
any affiliates, directors, officers, managers, agents or employees be liable to
the other or to any customers thereof, under any theory of liability for
punitive or exemplary damages arising from or related to this Agreement.
(e) Entire Agreement. This Agreement contains the entire understanding of the
parties on the subject hereof and terminates and supersedes all previous verbal
and written agreements on such subject.
(f) Relationship of the Parties. The parties agree that MARKET VISION will act
as an independent contractor in the performance of its duties under this
Agreement. This Agreement does not and shall not be deemed to constitute a
partnership or joint
11
12
venture between the parties and neither party nor any of its directors,
officers, employees or agents shall, by virtue between the parties and neither
party nor any of its directors, officers, employees or agents shall, by virtue
of the performance of their obligations under this Agreement, be deemed to be an
employee of the other. MARKET VISION has no authority to make any
representations on behalf of or to bind Source in connection with the provision
of Source Services in the course of performing any of its obligations under this
Agreement or otherwise. Source has no authority to make any representations on
behalf of or to bind MARKET VISION in connection with the provisions of Source
Services relating to this Agreement.
(g) "Affiliate" Defined. For purposes of this Agreement, the term "affiliate"
and its derivatives shall mean, with respect to any individual or entity or
directly or indirectly, through one or more intermediaries, controlling,
controlled by, or under common control with such individual or entity. The term
"control" and its derivatives, as used in the immediately preceding sentence,
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of an entity, whether through the
ownership of voting securities, by contract or otherwise.
(h) Severability. In the event any provision of this Agreement or application
hereof to any party or in any circumstances shall be determined to be invalid,
unlawful, or unenforceable to any extent, the remainder of this Agreement, and
the application of any provision to parties or circumstances other than those as
to which it is determined to be unlawful, invalid or unenforceable, shall be
affected thereby, and each remaining provision of this Agreement shall continue
to be valid and may be enforced to the fullest extent permitted by law.
(i) Non-Waiver. No delay or failure by either party in exercising any right
under this Agreement, and no partial or single exercise of that right, shall
constitute a waiver of that or any other right.
(j) Captions. The captions used herein are for convenience only, and constitute
no part of this Agreement.
(k) Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, without regard to the choice
of law principles thereof.
IN WITNESS WHEREOF, the undersigned parties have duly executed this Agreement as
of the date set forth above.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, INC.
12
13
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
MVIS CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President
13
14
Exhibit A
Source Services
Name Description
---- -----------
CorporateWatch(R) Principally provides rapid
and comprehensive
information on corporate
securities, private
placements, equities and
mortgage and derivative
product new issues.
MoneyWatch(R) Provides 24 hour fundamental and
technical analysis of US Treasury,
Agency and money market securities.
The service combines live commentary
and technical trading analysis with
detailed forecasts and analysis of the
US economy.
(R) Denotes a registered trademark of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Inc.
14
15
Exhibit B
The following subscribers should be restricted from access to the Source
Services pursuant to Section 1(a)(i) of the Agreement:
Alert/OASYS Money Market Services Investment Dealers Digest
AMG Data Services IPO Financial
Asset Backed Securities Group ▇.▇. ▇▇▇▇▇▇ & Company
Atlas ▇▇▇▇▇▇▇ ▇▇▇▇▇ International
AutEx Liberty Brokerage Inc.
Bank Valuation Loan Pricing Corp.
BondData ▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital Consultants
Bondware Market Data Corporation
BondWeek Market News Service
Business Week MBSIS
Capital Management McGraw Hill
Capital Techniques Money Line Corporation
▇▇▇▇▇ Money Market Services (MMS)
CDA Investment Technologies MoneyData
Chronometrics ▇▇▇▇▇'▇
Commscan MortgageData
CORIS MRL Publishing
Corporate Financial Weekly ▇▇▇▇▇▇ Data
Corporate Service Municipal Markets Data
Dalcomp Inc. Munifacts/American Banker
Data Resources Inc. Newsware/Newswatch
Dow ▇▇▇▇▇ Capital Markets Report North American Economist
Dow ▇▇▇▇▇ News Services ▇'▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇▇ & ▇▇▇▇▇▇ ▇▇▇▇▇ Group
▇▇▇▇ & Bradstreet Optima Futures
Elders Applies Research Pegasus Econometrics
Electronic Joint Ventures (EJV) Pensions & Investments Age
Elliot Wave International Pit Info Corp.
Equidesk ▇▇▇▇▇▇▇▇'▇ ▇▇▇▇▇▇ Wave Int'l
Eurobond Service Predex
Euromoney Princeton Economics
▇▇▇▇▇ Economics Public Securities Assoc. (PSA)
Fin ▇▇▇▇ Research ▇.▇. ▇▇▇▇▇▇▇▇▇
First Call Ried, ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ Investments
Foreign Exchange Analytics (FXA) SDC Publishing
Forex Chartist Securities Data Company
Forex Watch Securities Industry Assoc. (SIA)
▇▇▇▇▇▇▇▇ Technical Dimensions Securities Information Center
15
16
Fund Data Sheshunoff
FX 24 Software Division
FXO Stone, ▇▇▇▇▇▇▇▇
Global Market Information Technical System
Gov pix Technical Data (All Services)
▇▇▇▇▇▇ & Santow Telekurs
High Frequency Economics Ltd. Telerate Corporate Market Service
I.F.R. CorporateEye ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
I.F.R. (Intl. Financing Review) Thomson Financial Networks
I.F.R. Japan Watch Thomson Research
I.F.R. LatAm ▇▇▇▇▇ & Company
IDEA Valorinform
ILX ▇▇▇▇▇
Indepth Data ▇▇▇▇▇▇▇▇▇ & Co.
Institutional Investor Magazine ▇▇▇▇▇▇ Auction Systems
Investext
16
17
Exhibit C
"Non-Chargeable" MARKET VISION Equipment and Services
I. Equipment to be supplied by MARKET VISION to Source for use by Source at
Source's locations including but not limited to:
One MARKET VISION data feed and software necessary to receive Source
Services at Source's site in New York.
II. Electronic means of delivering Source's information to MARKET VISION in a
timely and reliable manner to include but not limited to sufficient MARKET
VISION data lines with the necessary software with dial back-up at Source's
primary site as well as at disaster recovery site.
17
18
Exhibit D
Direct Feed Delivery Agreement
18