IOE Agreement - Bridge Trading Co. and Instinet Corp.
IOE AGREEMENT
This Agreement (the "Agreement"), dated the 4th day of May, 2001 by and
between Bridge Trading Company ("Bridge") with its principal offices located at
717 Office Parkway, St. Louis, MO 63141 and Instinet Corporation ("BROKER") with
its principal offices located at 3 Times Square, New York, NY 10036, governs the
terms and conditions upon which Bridge will provide to BROKER the IOE System
("IOE System"), comprised of, but not limited to, the following features:
o Access to institutional order flow originating from the system currently
referred to as IOE/2 and transported via Bridge's frame relay network.
o Access to institutional order flow originating from third-party systems and
transported via Bridge's frame relay network
Additionally, as needed and on an individual basis, at the request of BROKER the
IOE System may be configured to include OrdPro ("OrdPro"), a proprietary order
processing system for order receipt, order delivery, order routing, trade
reporting, trade matching, and average pricing functions made available on a
real-time, on-line basis. If OrdPro is provided as part of the IOE System, then
the term "IOE System" as used in this Agreement includes OrdPro. Additional fees
and charges may apply for the provision of OrdPro as set forth in Rider A
hereto, for as long as OrdPro is used by BROKER.
1. Furnishing Service
(a) Bridge hereby grants a non-exclusive, non-transferable license to BROKER to
use the IOE System for so long as this Agreement is in effect. Use by BROKER of
the IOE System or acceptance of this license in no way grants any other right,
title or interest in the IOE System or any of its components to BROKER.
(b) The parties acknowledge that Bridge is acting as a vendor in licensing
BROKER to use the IOE System and not as a broker, that BROKER and not Bridge is
acting as the broker with respect to all orders directed to BROKER via the IOE
Network, and that Bridge's provision of the IOE System does not constitute the
business of buying and/or selling securities for BROKER's clients who direct
orders to BROKER via the IOE Network.
2. Payment
(a) BROKER agrees to pay the fees and charges, including
communications fees, set forth on Rider A attached hereto (as the same may be
amended by a writing executed by both parties from time to time in accordance
with the terms of this Agreement ) for its access to and use of the IOE System.
(b) BROKER also agrees to pay any taxes legally levied by any
governmental authority or specifically based upon its access to or use of the
IOE System other than income taxes of Bridge, ordinary property taxes assessed
against or payable by Bridge, and franchise taxes and other similar taxes on the
business of Bridge. Charges shall be invoiced to BROKER monthly. Each invoice
shall set forth in reasonable detail the calculation of the charges included
therein. Invoices shall be due and payable within thirty (30) days after receipt
by BROKER.
3. Amendments
Bridge may change the fees and charges pursuant to this Agreement upon not less
than 30 days' prior notice to BROKER effective at any time after the first
twelve months from the date of this Agreement. BROKER may terminate this
Agreement pursuant to Section 11(a) if an increase in Bridge's fees is
unacceptable to BROKER.
4. Warranty on the IOE System
(a) Bridge warrants that for the term of this Agreement the IOE
System will perform its functions during Bridge's regular business hours in
accordance with applicable specifications of the FIX protocol. Bridge's sole
obligation under this warranty shall be to exercise reasonable efforts to
promptly correct, at Bridge's cost and expense, any failure of the IOE System to
so perform such functions. Bridge further represents and warrants that it has
full power and authority to enter into this Agreement and to perform all
responsibilities, duties, and obligations for which it is responsible hereunder.
(b) Bridge further represents and warrants (i) that Bridge has and
will have all rights, titles, licenses, permissions, and approvals necessary to
perform its obligations hereunder, to provide the IOE System to BROKER as
contemplated by this Agreement and to grant BROKER the rights granted herein,
(ii) that the IOE System and the use thereof by BROKER and its affiliates does
not and will not infringe, violate or in any manner contravene, breach or
constitute an unauthorized use or misappropriation of any United States patent
issued prior to the date of this Agreement or any copyright, license or other
property or proprietary right or constitute the unauthorized use or
misappropriation of a trade secret and (iii) there are no claims, demands or
proceedings that have been instituted, or are pending or threatened, by any
person against Bridge or, to Bridge's knowledge, any customer of Bridge alleging
any matter contrary to the foregoing.
(c) Except as set forth in the foregoing provisions of this Section
4, BRIDGE MAKES NO WARRANTY EXPRESS OR IMPLIED ON THE IOE SYSTEM AND BRIDGE
DISCLAIMS ANY IMPLIED WARRANTY OF SUITABILITY, MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. In particular, and without limiting the generality of the
foregoing, Bridge makes no warranty that orders processed via the IOE System
will be properly executed.
5. Limitations of Liability
(a) Except for acts of gross negligence or willful misconduct, Bridge
and its affiliates, employees, officers and agents shall not be liable for any
special, incidental, indirect, or consequential damages, or for lost profits or
revenues which may arise out of any obligation of Bridge under this Agreement,
from any failure of Bridge or the IOE System to cause any order to be executed,
or to be executed properly, or from any other non-performance, defective
performance, or late performance of Bridge due to any cause whatsoever. BROKER
shall be responsible for verifying that all orders processed by the IOE System
have been executed. In no event will Bridge be liable for any incidental,
indirect, special or consequential damages, including, but not limited to, loss
of use, revenues, profits or savings, even if Bridge knew or should have known
of the possibility of such damages.
(b) In no event shall either party or its affiliates, officers,
agents, and employees be liable to the other or any third party in the aggregate
for direct damages arising out of or in connection with this Agreement or the
subject matter hereof, regardless of the form of action and regardless of
whether or not the other party has been informed of, or otherwise might have
anticipated the possibility of, such damages, in excess of the smaller of (1)
its actual and provable direct damages or (2) five months' fees actually paid by
the other party. In no event will the limitation of liability set forth in this
section apply to claims by either party for personal injury or damage to real
property or tangible personal property caused by the other party or for any
claims for fees due under section 2.
(c) The parties acknowledge that the limits on liability set forth in
this Section 5 are expressly intended to apply to any failure of the IOE System
to cause any order to be executed or to be executed properly and that, as
between BROKER and Bridge, BROKER shall be responsible for verifying that all
orders processed by the IOE System have been executed.
6. Indemnification by BROKER
BROKER at its expense, hereby agrees to indemnify, defend and hold harmless
Bridge and its affiliates and their respective directors, employees, officers
and agents from and against any claim, demand, cause of action, cost, loss,
damage, expense (including reasonable attorneys' fees) or liability, as
incurred, arising from or based on any claim by any of BROKER's clients on
behalf of whom BROKER uses the IOE System, to the extent that the claim arises
out of BROKER's use of the IOE System on behalf of any such client or material
breach of BROKER's obligations under this Agreement. The foregoing indemnity
shall be subject to Bridge notifying BROKER immediately of any such claim,
permitting BROKER to defend or settle the claim, and giving BROKER all available
information, reasonable assistance and authority to enable BROKER to do so. The
indemnification obligations described in this Section shall not apply to any
claim to the extent such claim is attributable to or caused by the willful
misconduct of Bridge or any of its affiliates, employees, officers or agents,
any claim subject to indemnification by Bridge hereunder.
7. Indemnification by Bridge
Bridge, at its expense, hereby agrees to indemnify, defend and hold harmless
BROKER and its affiliates and their respective directors, employees, officers
and agents from and against any claim, demand, cause of action, cost, loss,
damage, expense (including reasonable attorneys' fees) or liability, as
incurred, arising from or based on a claim (i) that Bridge does not have any
right, title, license, permission or approval necessary to perform its
obligations hereunder or to grant BROKER the rights granted herein, (ii) that
the IOE System or the use thereof by BROKER or its affiliates infringes,
violates or in any manner contravenes, breaches or constitutes an unauthorized
use or misappropriation of any United States patent issued prior to the date of
this Agreement or any copyright, license, trade secret or other property or
proprietary right or (iii) arising from the gross negligence or willful
misconduct of Bridge. Each of the foregoing indemnities shall be subject to
BROKER notifying Bridge promptly of any such claim, permitting Bridge to defend
or settle the claim, and giving Bridge all available information, reasonable
assistance and authority to enable Bridge to do so.
8. Confidentiality
(a) BROKER acknowledges that the IOE System screens and layouts and
any documentation for the IOE System provided by Bridge to BROKER contain
confidential information of Bridge, and Bridge acknowledges that BROKER's use of
the IOE System may involve the furnishing of information to Bridge that is
regarded as confidential by BROKER or its affiliates or their respective
clients. Each party agrees, during the term of this Agreement and subsequent
thereto, to take reasonable steps as may be necessary to preserve the
confidentiality of that information, not to use any of the information except as
contemplated hereby for the purposes hereof, not to take any other action
inconsistent with the confidential nature of such information, and to prevent
disclosure of that information to third parties other than third parties to
which such information is intended to be provided by the party originally
supplying such information. Notwithstanding the foregoing, either party may
disclose any such information as may be required by applicable law, provided,
that prior to the disclosure, the party shall first advise the other party of
its intent to disclose such information, the reasons which it believes require
such information be disclosed and the entity to whom such information is
required to be disclosed. The other party shall have the right, with the
disclosing party's cooperation, to contest the disclosure of such information
and the disclosing partly shall withhold disclosure provided that the other
party provides it with an indemnification against loss or damage suffered as a
result of nondisclosure, and pays all fees and costs to defend that position.
Any such required disclosure shall be limited to the information requested.
(b) Each party acknowledges and agrees that the other party will
suffer irreparable injury not compensable by money damages for which such other
party will not have an adequate remedy at law in the event of a breach by such
party of the provisions of this Section 8, and therefore agrees that such other
party shall be entitled to seek injunctive relief to prevent or restrain any
such breach, threatened or actual. The foregoing shall be in addition and
without prejudice to or limitation on any other rights such other party may have
under this Agreement, at law or in equity.
(c) Bridge acknowledges and understands that Instinet and the Matador
Design are trademarks and service marks of BROKER, all rights reserved. Bridge
agrees, represents, and warrants that these and other graphics, logos, service
marks and trademarks of BROKER (the "Marks") may not be used, displayed, or
referenced in any manner without prior express written consent of BROKER.
Nothing in this Agreement should be construed as granting, by implication,
estoppel, or otherwise, any license, right, or authority to use the Marks.
9. Facilities and Equipment
(a) BROKER agrees that facilities and equipment used in connection
with the IOE System shall comply with Bridge's reasonable specifications as
provided to BROKER and other requirements which are provided to BROKER in
writing by Bridge and which do not conflict with this Agreement. BROKER
acknowledges that Bridge cannot and does not guarantee the compatibility of the
IOE System with BROKER equipment not recommended by Bridge.
(b) BROKER shall provide 30 days' notice to Bridge of its intention
to relocate any of the BROKER equipment used in connection with the IOE System
within the BROKER facilities if such relocation does not require Bridge to
arrange for changes in BROKER's communications links, and shall provide 30 days'
notice (or such longer notice as may be reasonably required to enable Bridge to
arrange for changes in BROKER's communications links) to Bridge of its intention
to relocate any of such BROKER equipment if such relocation involves the
relocation of the BROKER facilities or otherwise requires Bridge to arrange for
changes in BROKER's communications links. Bridge will provide assistance as
necessary in effecting any such relocation and will charge BROKER for such
assistance either at Bridge's then standard hourly rates or on a fixed fee
basis, as BROKER and Bridge may agree in writing.
(c) During the term of this Agreement. Bridge shall provide the
following support to BROKER, at no additional cost to BROKER:
(i) Bridge shall make available to BROKER all fixes, new releases,
versions, improvements, enhancements, extensions and other changes to
the IOE System, and all updates to the documentation for the IOE
System, which Bridge makes generally available to users of the IOE
System. In addition to and without limitation on the foregoing, if any
such fix, new release, version, improvement, enhancement, extension or
other change will modify the content of any data transmitted or affect
communication through the IOE System, Bridge shall provide BROKER with
at least 30 days' notice prior to implementing the change.
(ii) Bridge shall provide BROKER with notice of any problem, defect,
error or nonconformity in the IOE System which becomes known or is
reported to Bridge and which is identified by Bridge as materially
affecting BROKER's use of the IOE System, together with suggested
remedial action, if any.
(iii) Bridge shall provide BROKER, during Bridge's regular business
hours, telephone support to support BROKER's use of the IOE System.
10. Communications
Except as Bridge and BROKER may otherwise agree, BROKER shall be responsible for
providing wiring required to distribute the IOE System within its premises.
11. Termination
(a) Either party may terminate this Agreement upon notice to the
other party following the material breach by such other party of any provision
of this Agreement which such other party has failed to cure within 30 days after
actual receipt of written notice describing the breach. Either party may
terminate this Agreement for any reason at any time upon 30 days' notice to the
other party, provided, however, that Bridge will refund the initial startup fee
paid by BROKER if Bridge terminates this Agreement pursuant to this sentence in
the first twelve months after the date of this Agreement. BROKER may terminate
this Agreement on the effective date of an increase in Bridge's fees and charges
if the increase is not acceptable to BROKER. A termination of this Agreement
shall not prejudice any other remedy available to the terminating party.
(b) Neither party shall have any further obligation to the other
party after any termination of this Agreement, except that BROKER shall remain
obligated to pay all amounts owed to Bridge then accrued and unpaid, and each
party shall remain subject to the requirements of Sections 5, 6, 7 and 8
applicable to it.
12. General
(a) This Agreement and the Rider hereto, which is hereby incorporated
herein by reference, supersede in full all prior discussions and agreements
(oral or written) between the parties relating to the subject matter hereof,
constitute the entire agreement between the parties relating thereto, and,
except as provided in paragraph 3 with respect to fees, may be amended, modified
or supplemented only by a written document signed by an authorized
representative of each party.
(b) This Agreement shall be governed by and construed in accordance
with the laws of the State of New York without giving effect to any conflict of
law provisions and each party hereby consents to the exclusive jurisdiction of,
and venue in, any federal or state court of competent jurisdiction located in
the Borough of Manhattan, New York City.
(c) This Agreement will inure to the benefit of and be binding on the
parties, their successors, permitted assigns and legal representatives. Neither
party may assign any of its rights or obligations under this Agreement (in whole
or in part) without the prior written consent of the other party, provided,
however, that either party may assign this Agreement at any time to a parent or
affiliate or any person or entity that acquires all or substantially all of the
assets, stock or business of such party by sale merger or otherwise. Any
purported assignment in violation of this paragraph shall be void.
(d) The parties acknowledge and agree that each is an independent
contractor and not an agent, joint venturer or partner of the other party. This
Agreement shall not be construed as constituting either party as a partner of
the other party or to create a joint venture or any other form of legal
association that would impose liability upon one party for the act or failure to
act of the other party or as providing either party with the right, power or
authority (express or implied) to create any duty or obligation on behalf of the
other party.
(e) Bridge agrees to cooperate with BROKER in obtaining any exchange
approvals which may be required to enable BROKER to use the IOE System.
(f) Unless otherwise expressly specified, all notices and other
communications required or permitted hereunder shall be in writing and shall be
deemed to have been duly given if and when delivered by hand or certified or
registered mail with postage prepaid, to the address of Bridge or BROKER first
set forth above, or to such other person or address as Bridge or BROKER shall
furnish to the other in writing. Notices by certified or registered mail will be
deemed to be received three (3) business days after being sent or on proof of
delivery, if earlier. Communications via electronic mail or through the
Administrative Messages Function do not, under any circumstance, constitute
effective notice for any purpose under this Agreement.
(g) This Agreement and all applicable and agreed to riders, exhibits
and schedules hereto, as may be amended from time to time by a writing executed
by both parties, are incorporated in and made a part of this Agreement to the
same extent as if set forth in full herein. (h) The headings of the Sections of
this Agreement are inserted for convenience only and shall not constitute a part
hereof or affect in any way the managing or interpretation of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first written above.
BROKER Bridge Trading Company
Name: Name:
Title: Title:
Date: Date:
<PAGE>
Rider A
Broker/Dealer Fees and Charges
for IOE
STARTUP CHARGE
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1. $15,000 to join IOE Network with a FIX interface
MONTHLY IOE TRAFFIC CHARGES FOR U.S. SECURITIES
-----------------------------------------------
1. For executed orders
1/10 cent/share, with a $10.00 per order maximum, and a $1.00 per
order minimum.
2. Discount Schedule for Monthly IOE Charges
Total Monthly Charge Discount
$10,001 - $25,000 20% on portion inside this range
$25,000 - $50,000 30% on portion inside this range
$50,000 or more 50% on portion in this range
BROKER Bridge Trading Company
Name: Name:
Title: Title:
Date: Date: