Agreement - North American Quotations Inc. and Axxess Inc.
NAQ NORTH AMERICAN QUOTATIONS, INC MASTER AGREEMENT
135 North Wabash, Suite 2019 10892
Chicago, Illinois 60601
312-782-6500 Fax 312-782-8503
Client Axxess Inc.
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Address 201 Park Place
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City Alamonte Springs State FL ZIP Code 32701
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SCOPE OF AGREEMENT
North American Quotations, Inc. (NAQ) agrees to provide Client (including any
Branch Office of Client), in accordance with the terms and conditions of this
Agreement, with (i) the services listed in the Schedules to this Agreement and
related equipment (the "Equipment") and (ii) the optional services offered by
NAQ which Client may, from time to time during the term of this Agreement,
request NAQ to provide it to (collectively the "Services").
TERM OF AGREEMENT
The initial term of this Agreement shall be for the period commencing the date
this Agreement is approved by an authorized officer of NAQ and ending on the
latest date specified in the Schedules to this Agreement (the "Initial Period").
The initial terms of the respective Schedules shall commence as of the
respective "Installation Date" (as defined below) and shall end the number of
months indicated on the Schedule after the first day of the first full month
after the installation date ("Initial Schedule Term"). Thereafter the term of
Scheduling shall automatically renew for periods of 12 months, hereby defined as
a "Renewal Term", unless client gives NAQ written notice of termination at least
90 days prior to the end of an Initial Schedule Term or at least 90 days prior
to the end of any Renewal Term. While such notice of termination may be given at
any time after the date hereof, it shall not, in any event, be effective prior
to the expiration of the Initial Period, or prior to the expiration of any
Renewal Term. Client's and NAQ's continuing obligations under the Agreement
including, without limitation those relating to "NAQ Products" and the
"Confidential Information" (all as defined below) shall survive the termination
of this Agreement. For the purposes hereof, "Installation Date" shall mean the
day following that on which (i) NAQ or its designee determine that the Equipment
has been placed in good working order or (ii) the Equipment is delivered. If
client fails to provide the suitable installation environment NAQ will notify
Client when the Equipment has been placed in good working order.
CHARGES
A. The initial charges for the Services commencing as of the Installation Date
shall be as set forth in the applicable Schedules. The total Monthly Charges
set for in section A, B and C of the Schedules will be prorated for the
number of calendar days remaining in the first calendar month of the Initial
Period set forth in the applicable Schedules. The Total Monthly Charges for
Exchange Fees collected by NAQ as set forth in section G of the Schedules
will be payable in full and not prorated for the first calendar month of the
Initial Schedule Term of such Schedules. All charges referred to in the two
preceding sentences are due and payable on the Installation Date.
Thereafter, such total monthly charges and fees will be payable in advance
on the first day of each calendar month following the Installation Date.
B. The Initiation Charge set forth in any Schedule is payable upon execution of
the applicable Schedule and is a non-refundable charge. Initiation Charges
do not include the cost of or installation of cable from room to room or in
walls, ceiling or floors. In all cases, Client shall be responsible for the
cost of cable and the cost of installing all cabling, projection systems,
electrical and other utilities specified in NAQ's then current environmental
specification ("Environmental Specification").
C. The charges set forth in the Schedules (except for Exchange Fees and
Communication Costs) shall remain unchanged during the Initial Schedule
terms set forth on theSchedule. Thereafter, NAQ may change any or all of
such charges from time to time upon prior written notice to Client given at
least 30 days prior to the effective date of price changes. Upon receipt of
any notice of a price increase in any of the Services being purchased by
Client, Client may, upon written notice to NAQ given prior to the date such
price increase is to take effect, terminate its purchase of the Services
covered by such price increase. Such termination to be effective 30 days
after its receipt and such price increase shall not apply to Client. The
charges included in Monthly Exchange Fees or Communication Costs may be
changed at any time after the date hereof, without prior written notice to
Client.
D. Upon termination of the Agreement or any portion of the Service(s)/Equipment
covered by any Schedule by either party for any reason, Client shall
immediately pay to NAQ, a removal charge equal to the Initiation Charge for
such Service(s)/Equipment or at NAQ's then current notes for removal if no
Initiation Charge is listed on the Schedules in addition to any other
charges which may be due NAQ thereunder.
E. Any security deposit set forth on a Schedule shall be paid by Client to NAQ
concurrently with Client's execution of the respective Schedule. Such
security deposit will be refunded to Client without interest within 30 days
after the termination of the respective Schedule provided that Client has
fulfilled all the terms and conditions of this Agreement and the respective
Schedule.
F. Monthly charges for dedicated dial service do not include any local or long
distance telephone service charges at Client location. NAQ shall not be
liable for payment of such charges and Client shall not offset such charges
against the monthly charges payable to NAQ. NAQ is not liable for the
installation and maintenance of such dial-up connections.
G. If NAQ relocated any Equipment at client's request, Client shall pay NAQ's
then current charges for such relocation. Client shall give NAQ at least 30
business days prior written notice of any relocation.
H. Client, upon completion of installation, relocation or removal, shall pay all
applicable transportation charges incurred.
I. In the case of purchased Equipment, the purchase price shall be payable as
follows: the deposit indicated on the applicable Schedule is payable upon
execution of such Schedule by Client.
J. There shall be added to all payments thereunder amounts equal to any
applicable taxes levied or based on this Agreement, exclusive of taxes based
on NAQ's net income. All invoices shall be paid by Client within fifteen days
of receipt. If Client fails to pay any amount due under this Agreement
whether by acceleration or otherwise, Client shall, upon demand, pay interest
at the highest rate of interest allowable, but in no event more than 24% per
annum (or 2% per month) payable monthly, on such delinquent amount from the
due date until the date of payment. Client agrees to reimburse NAQ for any
and all expenses NAQ may incur, including reasonable attorneys' fees in
taking action to collect any amounts due NAQ thereunder.
OWNERSHIP, USE AND CONFIDENTIALITY: NAQ PRODUCTS
A. Client acknowledges that all computer programs, leased Equipment and systems
available as part of the Service (the "NAQ Products") are the exclusive and
confidential property of NAQ.
B. Client shall not copy, in whole or in part, any NAQ Products or related
documentation, whether in the form of computer media, printed or in any other
form. Client shall not make any alteration, change or modification to any
software without NAQ's prior written consent in each instance.
C. Client shall treat as confidential and will not disclose or otherwise make
available any of the NAQ Products or any trade secrets, processes,
proprietary data, information or documentation related thereto (collectively
the "Confidential Information") in any form to any person other than
employees of Client, except as may be otherwise permitted by Paragraph 2(B)
on the reverse side of this Agreement. Client will instruct its employees who
have access to the NAQ Products and the Confidential information to keep the
same confidential, by using the same care and discretion that Client uses
with respect to its own confidential property and trade secrets. Upon
termination of this Agreement for any reason, Client shall return to NAQ any
and all copies of the NAQ Products and the Confidential Information which are
in its possessions.
ADDITIONAL TERMS AND CONDITIONS
1. AVAILABILITY OF THE SERVICES
Hours for accessing the Services will be those hours of those days that the
Services are generally made available for NAQ. NAQ will advise Client from
time to time of such general accessibility periods. The Services may also be
available at other than NAQ designated general hours. In such event, Client
may use the Services at such other times for no additional charge.
2. USE OF THE SERVICES
A. Client agrees that it will use the Services in accordance with such rules
as may be established by NAQ from time to time as set forth in any
materials furnished by NAQ to Client.
B. Client will use the Services only for its own internal and proper
business purposes and will not sell, lease or otherwise provide, directly
or indirectly, any of the Services or any portion thereof to any third
party. However, hard copy prints may be distributed by Client without
charge to its customers or to its branch office by mail or by other like
delivery services. All copies so distributed must bear the following
legend clearly imprinted on each of such prints. "ALL RIGHTS RESERVED, MAY
BE REPRODUCED ONLY BY PERMISSION OF NAQ.
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C. Client shall have received approval of or shall submit application to
and receive written approval from each and every entity whose approval
is required for the receipt of Services, including, but not limited to,
securities and commodities exchanges, associations of securities and/or
commodities dealers and federal, provincial and local governmental
entities. Client shall comply with any conditions, restrictions or
limitations imposed by any of the aforementioned entities and shall pay
all fees or charges such entities may impose. Failure of Client to
comply with the requirements of this Paragraph 2(C) shall constitute a
default.
3. SYSTEMS AND APPLICATIONS PROGRAMS
A. If the Equipment contains any systems software programs (the "Systems
Programs"), Client acknowledges that it will be deemed to be a
sublicensed from NAQ for such Systems Programs. Client accepts a
sublicense from NAQ for the Systems Programs upon the terms and
conditions set for below in this Paragraph 3.
B. The sublicense for the Systems Programs contained in the Equipment
conveys a personal, non-exclusive, non-transferable right and
sublicense to Client to use the Systems Programs on the equipment only.
Client shall not have any interest in the Systems Programs, except for
the sublicense granted it under this Agreement.
C. Client shall not copy, in whole or in part, any Systems Programs or
related documentation, whether in the form of computer magnetic media,
printed or in any other form; provided, however, that Client may make
one copy of each of the Systems Programs for back-up purposes only.
Client shall not make any alteration, change or modification to any
Systems Programs.
D. Client agrees not to provide or otherwise make available to any person
any of the Systems Programs sublicensed thereunder, or any related
documentation including, but not limited to, flow changes, logic
diagrams or source code, in any form.
E. Except for Systems Programs included in purchased Equipment, all
Systems Programs will be returned by Client to NAQ, in accordance with
NAQ's instructions, promptly after the termination of this Agreement.
F. If the Equipment contains any application software programs (the
"Application Programs"), Client acknowledges that it will be deemed to
be a licensee of NAQ for such Application Programs. Client accepts a
license from NAQ for the Application Programs upon the same terms,
conditions and limitations as apply to the Systems Programs including,
but not limited to, accepting such license on a personal, non-exclusive
and non-transferable basis for use on the Equipment only and solely for
Client's business usage. Not withstanding anything to the contrary
contained herein, all Application Programs will be returned by Client
to NAQ, in accordance with NAQ's instructions, promptly after the
termination of this Agreement.
G. Client's use of any Pre-Packaged Third Party Software will be governed
by the terms and conditions of the applicable third party license
agreements contained in the package delivered to Client thereunder in
which such Pre-Packaged Third Party Software is contained.
H. Client acknowledges that a breach of any provision of this Paragraph 3
will cause NAQ irreparable injury and damage and therefore may be
enjoined through injunctive proceedings in addition to any other
rights or remedies which may be available to NAQ at law or in equity.
4. INSTALLATION AND ENVIRONMENTAL SPECIFICATIONS
A. Client shall provide a suitable installation environment as described
in NAQ's then current Environmental Specifications and shall furnish
all labor required for unpacking and placing the Equipment in the
desired location under the supervision of NAQ or its designees. Client
shall also provide and install all wiring and cabling required for
installation of the Equipment, shall provide an ordinary telephone
extension within 10 feet of where the Equipment will be installed and
shall install all projection systems and electrical and other utilities
specified in NAQ's then current Environmental Specifications. The
Equipment shall be installed and placed in good working order by NAQ or
its designee.
B. Client will at all times maintain the location at which the Equipment
is installed in accordance with NAQ's then current Environmental
Specifications.
5. EQUIPMENT
A. RISK OF LOSS. NAQ shall assume all risk of loss or damage while the
Equipment is in transit to Client and, if the Equipment is leased to
Client, upon return from Client upon termination of this Agreement or
the applicable Schedule. At all other times (i) if Client pays NAQ the
insurance premium for the Equipment set forth in the applicable
Schedule, NAQ shall assume all risk of loss or damage to the Equipment
unless such loss or damage is due to the intentional or negligent acts
or omissions of Client or its employees or (ii) if Client provides
insurance on the Equipment, Client shall assume all risk of loss or
damage to the Equipment. No loss, theft or damage after delivery of the
Equipment to Client shall relieve Client from its obligations to pay
the charges due, or perform any of its obligations, under the
Agreement.
B. ALTERATIONS AND LOCATION. Client shall not make any alterations or add
attachments to leased Equipment whatsoever, nor shall Client remove the
leased Equipment from the place or original installation without NAQ's
prior written consent. NAQ shall have the right to enter Client's
premises to inspect leased equipment during normal business hours.
C. RETURN OF EQUIPMENT. Promptly upon the termination of this Agreement or
the applicable Schedule, Client shall make all leased Equipment
Available for return to NAQ, at Client's expense, in accordance with
NAQ's instruction. The leased Equipment will be returned to NAQ in as
good condition as received, less normal wear and tear.
D. TITLE. All items of leased Equipment shall remain the property of NAQ
and may be removed by NAQ at any time after the termination of this
Agreement or the applicable Schedule. All items of leased Equipment
are, and at all times shall remain, separate items of personal
property, notwithstanding their attachment to the equipment or real
property. Client shall furnish any waivers or consents reasonable
requested by NAQ to give full effect to the intent of the preceding
sentence. Title to purchased Equipment shall pass to Client upon
delivery of the Equipment.
6. MAINTENANCE.
NAQ, or its designee, shall provide the maintenance services described below for
the Equipment.
A. Preventive maintenance shall be provided as determined necessary by
NAQ, or its designee, and shall be performed during the hours specified
in Paragraph 6C below.
B. In the event Client experiences an Equipment failure, Client shall
notify NAQ's maintenance department by telephone and NAQ shall
determine whether such failure is to be corrected by either an on-site
remedial maintenance call or the shipment of a replacement component.
In the event of shipment of a replacement component, NAQ shall be
responsible for all associated shipment costs and Client shall be
responsible for returning the replaced component within 10 days after
receipt of the replacement component. If Client fails to return the
replaced component as set forth above, Client agrees to pay NAQ for the
replacement component.
C. NAQ, or its designee, shall provide on-site remedial maintenance
services during the hours of 9:00 A.M. to 5:00 P.M., local time, Monday
through Fridays excluding holidays.
D. Maintenance services include replacement of all unserviceable parts.
Replaced parts become the property of NAQ.
E. Maintenance services do not include:
i. electrical work external to the Equipment;
ii. repair of damage resulting from accident, transportation, neglect,
misuse, modifications made by Client without NAQ's prior consent,
unauthorized attempts by Client to repair the Equipment or failure
of electrical power, air conditioning or humidity control;
iii. furnishing supplies or accessories, painting or refinishing the
Equipment or furnishing material therefore; making specification
changes or performing Services connected with relocation of the
Equipment; or adding or removing accessories or attachments of
other devices;
iv. such services which are impracticable to render because of
alterations to the equipment or their connection by mechanical or
electrical means to other devices; and
v. systems engineering services, programming and operations
procedures of any sort.
F. Client shall permit NAQ, or its designee, to have complete access to
the Equipment during normal business hours.
7. WARRANTY
A. NAQ represents and warrants to Client that, except as provided in
Paragraph 5E above, good title to the purchased Equipment shall be
transferred to Client thereunder free and clear of all liens, claims
encumbrances and security interests whatsoever and that the purchased
Equipment shall be free of defects in material and workmanship for a
period of 30 days after its Installation Date. NAQ represents and
warrants that Equipment which is maintained by NAQ or its designee will
perform in accordance with its manufacturer's published specifications
during the period it is maintained by NAQ thereunder. This warranty
shall not extend to Equipment that has been subjected to misuse,
neglect or accident or which shall have been altered or repaired (other
than by NAQ or its designee) in such a manner as to affect adversely
its performance, stability or reliability. Parts on Equipment not
covered by this warranty which are replaced by NAQ, or its designee,
shall be replaced by NAQ or its designee, at its then standard hourly
rates for such replacement service.
B. NAQ represents that the Software included in the Service will conform
to their design specifications as set forth in NAQ's current Services
User's Manual.
C. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THERE ARE NO WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8. LIMITATION OF LIABILITY
A. NAQ's sole liability to Client or any third party for claims,
notwithstanding the form of such claims (e.g., contract, negligence or
otherwise), arising out of errors or omissions in the Services
rendered, or to be rendered, by NAQ thereunder and caused by NAQ shall
be to furnish a corrected report or data, provided that client promptly
advises NAQ thereof.
B. NAQ will make every reasonable effort to have the Services available
during the hours set forth in Paragraph 1 above and by the Requested
Install Date indicated on the applicable Schedules. However, NAQ cannot
guarantee such availability. Accordingly, NAQ'S sole liability to
Client or any third party for claims arising out of the unavailability
of the NAQ system or interruption in or delay of the Services for any
reason, notwithstanding the form of such claim (e.g., contract,
negligence or otherwise), shall be to use its best efforts to make the
NAQ system available or resume the Services as promptly as reasonably
practicable.
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C. NAQ shall not have any liability under this Agreement for any money
damages resulting from claims made by Client or any third party for
errors, omissions, interruptions or delays in the Services provided
thereunder or for the unavailability of the Services provided or to be
provided. NAQ's sole liability for money damages resulting from claims
made by Client or any third party arising from or related to any and
all causes not covered by Paragraphs 8A and 8B above shall be limited
to the lesser of (i) the amount of actual damages incurred by Client of
(a) an amount which will not exceed one month's average total monthly
charges paid by Client for the applicable Service during the twelve
months preceding the month in which the damage or injury is alleged to
have occurred, or such lesser number of months if Client has not
received twelve months of the applicable Services. Notwithstanding the
foregoing, NAQ's sole liability for money damages resulting from claims
made by Client or any third party arising from or related to the
sequence, accuracy or completeness of any of the quotations market
information or other information furnished by any Exchange to NAQ shall
be limited to the lesser of (i) the amount of actual damages incurred
by Client or (ii) $50. Such damages shall be the full extent of NAQ's
monetary liability under this Agreement regardless of the form in which
any such legal or equitable claim or action may be asserted against NAQ
and shall constitute Client's sole monetary remedy.
D. NAQ's sole obligation in case of any breach of any of its
representations and warranties set forth in Paragraph 7A above shall be
to repair or replace, at NAQ's option, any defective item of Equipment.
NAQ's liability thereunder from any and all causes relating to the
maintenance services provided pursuant hereto shall be limited to
general money damages in an amount not to exceed the Total Monthly
Maintenance Charges for such Equipment for one month. The foregoing
limitations shall be the extent of NAQ's liability under this Agreement
(monetary or otherwise) for such breach regardless of the form in which
any legal or equitable action may be brought against NAQ (e.g.,
contract, negligence or otherwise) and the foregoing shall constitute
Client's sole remains.
E. NAQ shall not be liable or deemed to be in default for any breach,
delay or failure to perform under this Agreement or for any
interruption of the Services, resulting, directly or indirectly, from
any cause beyond NAQ's reasonable control including, without
limitation, change in ticker format, elimination of ticker service,
ticker or communications failure, changes in the governing regulations
of the applicable Exchanges or changes in the arrangements between NAQ
and the applicable Exchanges governing the content and distribution of
the information NAQ is able to provide to Client as part of the
Services.
F. IN NO EVENT WILL NAQ BE RESPONSIBLE FOR SPECIAL, INDIRECT, INCIDENTAL
OR CONSEQUENTIAL DAMAGES WHICH CLIENT MAY INCUR OR EXPERIENCE ON
ACCOUNT OF ENTERING INTO OR RELYING ON THIS AGREEMENT, EVEN IF NAQ HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9. DEFAULT BY CLIENT; REMEDIES UPON DEFAULT
Should Client (a) default in the payment of any sum of money thereunder, (b)
default in the performance of any of its other obligations under this Agreement,
or (c) commit an act of bankruptcy or become the subject of any proceeding under
the Bankruptcy Act or become insolvent, or if any substantial part of Client's
property becomes subject to any levy, seizure, assignment, application or sale
for or by any creditor or governmental agency, then, in any such event, NAQ, at
its option, may, upon written notice thereof, (i) terminate this Agreement, (ii)
declare all amounts due and to become due immediately due and payable, (iii)
whether or not this Agreement is terminated, take immediate possession of any or
all of the items of leased Equipment, or purchased Equipment not fully paid for,
wherever situated, and for such purpose enter upon any premises without
liability for so doing, and (iv) sell, dispose of, hold, use or lease any items
of leased Equipment, or purchased Equipment not fully paid for, as NAQ in its
sole discretion may decide. Client agrees to reimburse NAQ for any and all
expenses NAQ may incur, including reasonable attorney fees, in taking any of the
foregoing actions. The remedies contained in this Paragraph 9 are cumulative and
in addition to all other rights and remedies available to NAQ under the
Agreement, by operation of law or otherwise.
10. GENERAL
A. This Agreement may not be assigned by Client, without NAQ's prior
written consent. This Agreement shall be binding upon and shall inure
to the benefit of the parties, their successors and permitted assigns.
B. Client acknowledges that it has not been induced to enter into the
Agreement by any representations of warranties, oral or written, which
are not contained in the Agreement. The Agreement contains the
full understanding of the parties with respect to its subject matter
and supersedes all existing agreements and all other oral, written or
other communications between them concerning the subject matter hereof.
This Agreement may not be modified in any way except by a writing,
signed by a duly authorized representative of Client and an officer of
NAQ.
C. All notices shall be in writing and shall be mailed by first class mail
or personally delivered to the parties at the addresses set forth on
the reverse side of this Agreement or to any other address designated
in writing hereafter. Such notices shall be effective upon receipt. Any
notice to NAQ shall be sent Attention: President and shall include a
copy to North American Quotations, Inc., 185 North Wabash, Suite 2019,
Chicago, Illinois 60601.
D. All headings of the Agreement are solely for convenience of reference
and shall not affect its interpretation.
E. If any provision of this Agreement shall be held to be invalid, illegal
or unenforceable, the validity, legality or enforceabilty of the
remaining provision shall not in any way be affected or impaired
thereby.
F. No waiver by either party or any breach by the other of any provision
or condition of this Agreement to be performed by such party shall be
deemed a waiver of a breach of a similar or dissimilar provision or
condition at the same time or any prior or subsequent time or of the
provision or condition itself.
G. This Agreement shall be governed by the laws of the State of Illinois
applicable to agreements entered into and performed entirely within
such State.
NAQ CLIENT
By: By: /s/ Kevin Lichtman
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(Signature-Authorized Representative) (Signature-Authorized Representative)
Name: Name: Kevin Lichtman
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(Print or type) (Print or type)
Title: Title: President
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(Print or type) (Print or type)
Date: Date: 2/24/98
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(Print or type) (Print or type)
THIS AGREEMENT SHALL BECOME EFFECTIVE UPON BEING SIGNED BY AN AUTHORIZED
REPRESENTATIVE OF NAQ. NO OTHER PERSON HAS AUTHORITY TO BIND NAQ.