Business Services Agreement - Canon Business Services, Reuters America Inc. and Instinet Corp.
BUSINESS SERVICES AGREEMENT
This FACILITIES MANAGEMENT SERVICE AGREEMENT is made as of the 1 day of July
2001 by and among Canon Business Services (Canon) located at 125 Park Avenue, New
York, NY 10017, Reuters America Inc. ("Reuters"), a corporation located at The
Reuters Building, 3 Times Square, New York, New York 10036, and Instinet
Corporation ("Instinet"), with offices at 3 Times Square, New York, New York
10036 (Reuters and Instinet collectively, "Customer").
I. AGREEMENT TO PROVIDE SERVICES
CANON will provide to Customer the business services detailed in
Exhibit A (the "Services") in accordance with the terms and conditions
set forth herein. CANON will establish a Business Service Center at the
location set forth in Exhibit B (the "Business Service Center") using
the equipment set forth in Exhibit C (the "Equipment"). Prices are as
stated in Exhibit D (the "prices").
II. SERVICES TO BE PROVIDED
A. CANON will provide to Customer the management services
detailed in Exhibit A (the "Services"), which Exhibit A may be
amended from time to time by the parties hereto, in accordance
with the terms and conditions set forth herein and in
accordance with performance standards of the facilities
management industry and written performance standards agreed
to by Customer and CANON (which shall be attached hereto as
Exhibit E). The parties shall use commercially reasonable
efforts to develop such written performance standards within
thirty (30) days of the date of execution of this Agreement.
B. Subject to Section II.C., CANON reserves the right to adjust
any component of the Services based upon operational results,
after consultation with Customer. Customer and CANON may from
time to time agree by mutual writing that additional Services
are to be provided at a particular location or that the mix of
Services provided to a particular location is to change. Any
such change may be accompanied by an adjustment in the
pricing.
C. Notwithstanding anything herein to the contrary, neither CANON
nor Customer may unilaterally make changes to the Services or
any component thereof. Customer shall inform its personnel of
the need to consult with CANON prior to making any change that
may materially affect the performance of CANON.
D. CANON shall furnish the supplies necessary to perform the
Services and operate the Center as listed in Exhibit A.
E. All Services shall be performed solely by employees of CANON.
III. PERSONNEL
A. CANON will provide all personnel necessary to ensure that the
Services are performed in accordance with the terms set forth
in Exhibit A. CANON shall be solely responsible for the
supervision, daily direction and control of its employees, and
the maintenance of required payroll and personnel records. In
addition, CANON shall be responsible for payment of all
compensation, benefits and employer taxes relating to such
persons (including workers' compensation and disability), and
for making such other payroll deductions and payments as may
be appropriate.
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B. Customer shall grant CANON personnel access to its common
areas, including parking and cafeterias, as is required for
the performance of the Services hereunder. CANON personnel
shall observe the rules and regulations of Customer's facility
as provided to CANON, including executing the code of conduct
attached hereto as Appendix A. CANON shall, at its sole
expense, conduct background checks on all CANON personnel
providing Services under this Agreement in accordance with
Customer requirements.
C. While this agreement is in effect and for six months after
this Agreement ends, neither party to this Agreement will
solicit the other party's employees, without the express
written consent of the other party.
D. CANON personnel shall, under no circumstances, be eligible
either to participate in any employee benefit plans maintained
by Reuters, Instinet or any of their affiliates or to receive
any fringe benefits, nor shall they be deemed to be employees
of Reuters or Instinet for purposes of participating in any
such plans. CANON agrees to require its employees and
independent contractors to execute the acknowledgment attached
hereto as Appendix B.
IV. ESTABLISHMENT OF BUSINESS SERVICE CENTER FACILITY
A. Customer will make available to CANON, at no cost to CANON, an
area of the size and type agreed to by the parties as set
forth in Exhibit B at said facility for establishment of the
Business Service Center.
B. Customer shall be responsible for the following:
1. Preparation of the designated space in its facility
for the Business Service Center including, but not
limited to, Internet connectivity and e-mail access,
electric power and wiring, janitorial, telephone
service, and air ventilation and cooling required for
installation or operation of the Equipment.
2. Cost of the initial installation of the Equipment.
C. CANON shall advise Customer of the scheduled installation of
the Equipment and Customer shall complete the preparation of
the designated space in a timely manner. Customer shall
cooperate with CANON so that CANON can arrange to have all
Equipment installed in the Business Service Center in
sufficient time for CANON to begin scheduled operations under
this agreement.
D. Customer shall also provide, at its cost, such office
equipment as CANON shall deem reasonably necessary to operate
the Business Service Center, as shown in Exhibit C. Such
equipment shall include, without limitation, desks,
telephones, file cabinets, sorting bins, tables and chairs.
V. EQUIPMENT
A. The Business Service Center shall contain the Equipment listed
in Exhibit C. During the term of this Agreement, CANON may
replace and/or add Equipment to the Business Service Center in
order to ensure continued provision of the Services in
accordance with this Agreement. CANON shall consult with
Customer and receive Customer prior approval with respect to
such Equipment replacements and/or additions. Such
replacements and/or additions of Equipment shall be reflected
in an amendment to Exhibit C hereof.
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B. The Equipment shall at all times remain the property of CANON,
lessor, renter or of Customer as indicated in Exhibit C, it
being expressly understood that neither this Agreement nor its
performance shall transfer to CANON or to Customer any right,
title or interest whatsoever in or to any Equipment that is
not shown to be owned by such party in Exhibit C. With respect
to any Equipment owned by CANON, Customer agrees, by signing
this Agreement, that CANON may file a Form UCC-1 or similar
form with appropriate State authorities, giving notice of its
ownership of such Equipment.
C. During the duration of this Agreement, Customer shall continue
to hold maintenance and repair service contracts with respect
to any Equipment owned, leased or rented by Customer to be
used at the Center. Unless otherwise agreed to by the parties,
Customer authorizes CANON to contact said service providers as
is necessary to maintain or repair said Equipment so that the
operations of the Business Service Center may continue
uninterrupted. Customer shall inform said service providers of
Customer's authority and shall direct them to respond to CANON
requests for service. Customer shall be responsible for the
payment of costs associated with the repair and maintenance of
Customer's Equipment.
VI. ADDITIONAL INFORMATION TO BE PROVIDED
Customer shall provide CANON with floor plans, office directories, and
such other information and access to its personnel as is necessary for
CANON to provide the Services at the Business Service Center.
VII. HOURS OF OPERATION
A. CANON will provide the Business Service Center during the
hours specified in Exhibit A.
B. Additional hours of operation will be provided to Customer at
Customer's request and CANON will charge Customer for such
additional hours of operation according to the fee schedule
set forth in Exhibit D. All overtime work must receive prior
written approval from Customer.
VIII. CONTRACT ADMINISTRATOR
Customer shall designate a "Contract Administrator" for this Agreement
in Exhibit B. The Contract Administrator will serve as the liaison
between CANON and Customer. CANON will direct all questions to the
Contract Administrator. The Contract Administrator shall be the
authorized agent of the Customer.
IX. PRICES AND PAYMENT TERMS
A. Prices for Services to be provided hereunder are set forth in
Exhibit D, or if not set forth in Exhibit D shall be as agreed
upon in writing between the parties.
B. The prices for Services stated in Exhibit D shall be subject
to an annual increase equal to the annual Consumer Price Index
for the applicable metropolitan area.
C. All prices and other charges provided for in this Agreement
are exclusive of all federal, state, municipal or other
governmental excise, sales, use or similar taxes, which taxes
will also be billed to Customer if required to be collected
and remitted by CANON. Customer will not be responsible for
taxes levied on CANON's net income.
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D. The monthly management fee will be billed on the 15th day of
each month for the current month. Charges for services in
excess of the minimum monthly fee, if any, will be billed in
the month following the month in which the charges were
incurred. Payments on all undisputed amounts are due not later
than thirty (30) days after receipt of invoice. All amounts
that become 60 days past due will be subject to a monthly
service charge of 1.0% of the outstanding balance.
E. In the event that Customer has a question or disagreement with
respect to amounts set forth on a given invoice, Customer
shall notify CANON in writing within thirty (30) days after
receipt of the invoice specifying in reasonable detail the
nature of the question or disagreement. The parties shall work
together in good faith and on a reasonable basis to resolve
the question or the disagreement and CANON shall provide to
Customer a corrected invoice reflecting the resolution reached
by the parties.
X. INSURANCE
CANON agrees to maintain in full force and effect, during the term of
this Agreement, all legally required workers compensation insurance
policies and comprehensive general liability insurance with a limit of
at least $1,000,000.
XI. INDEMNIFICATION
A. Notwithstanding any provisions herein to the contrary, CANON
does hereby agree to indemnify and hold Customer harmless from
all losses, claims of losses, damages and expenses (including
without limitation court costs and attorneys fees) asserted
against Customer by third parties (including CANON employees
and independent contractors) and directly and proximately
caused by the negligent acts or omissions or misconduct of
CANON, its officers, agents, employees or authorized
representatives.
B. Notwithstanding any provisions herein to the contrary,
Customer does hereby agree to indemnify and hold CANON
harmless from all losses, claims of losses, damages and
expenses (including without limitation court costs and
attorneys fees) asserted against CANON by third parties and
directly and proximately caused by the negligent acts or
omissions or misconduct of Customer, its officers, agents,
employees or authorized representatives.
C. Customer shall indemnify and hold harmless CANON, its agents
and employees from and against any and all suits, actions,
legal proceedings, claims, demands, or costs arising from the
copying, use or distribution of copyrighted materials at the
direct request or instructions of Customer.
XII. CONFIDENTIALITY AND PROTECTION OF INTELLECTUAL PROPERTY
A. CANON acknowledges that in providing the services hereunder it
may have access to or handle private, secret, confidential, or
proprietary information of Reuters, Instinet, or of their
clients. CANON agrees to use such information only to the
extent necessary to fulfill its obligations under this
Agreement and agrees to hold such information in confidence.
CANON agrees to have its employees and independent contractors
sign a Confidentiality Agreement in a form substantially
similar to that set forth in Appendix C.
B. CANON shall inform its employees, agents and independent
contractors, who require access to information of Reuters,
Instinet, their affiliates, or of their customers or clients
in order for CANON to perform the Services hereunder, of the
confidentiality obligations set forth above, and shall cause
them to abide by such obligations.
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C. CANON agrees that the data contained in records and reports
provided to Reuters or Instinet are the sole and exclusive
property of Reuters or Instinet, as case may be, and that it
shall keep confidential and secure all such data, records,
reports and information and all other information regarding
the business and operations of Reuters, Instinet and their
affiliates obtained from Customer or obtained as a result of
providing services.
D. Customer agrees that all proprietary information used by CANON
to provide services or created by CANON to provide services
shall be and remain the property of CANON, including software,
accounting systems, forms, report forms and like material used
by it to provide the services. Customer further agrees that it
shall not use such information for any purpose not directly
related to the provision of services by hereunder.
XIII. NON-PERFORMANCE BY CANON
In the event that CANON does not substantially perform the services set
forth in Exhibit A in a manner reasonably consistent with performance
standards of the facilities management industry and/or written
performance standards agreed to by Customer and CANON, Customer shall
so inform CANON in writing, specifying the manner in which Customer
believes the Services to be deficient, and CANON shall have a period of
[forty-five (45)] business days from receipt of such notice to correct
such deficiencies in performance. In the event that CANON does not
correct the deficiency within such period, Customer shall then have the
option of terminating this Agreement.
XIV. LIMIT OF LIABILITY
Except for acts of gross negligence or willful misconduct, or for CANON
indemnification obligations arising as a result of a breach by CANON of
its confidentiality obligations set forth in Article XII
("Confidentiality Obligations"), no party shall be liable for an amount
greater than the insurance amounts stated in Section X if such claim is
covered by insurance, or $1,000,000 if any such claim is not covered by
insurance, whichever is greater; except that in the event of physical
loss or damage of document, envelopes or packages, CANON's liability
shall be limited to $100 per document, envelope or package. Except for
any CANON indemnification obligations arising as a result of a breach
by CANON of its Confidentiality Obligations, and either party's gross
negligence or willful misconduct, in no event shall any party be liable
to the other for consequential or indirect damages.
XV. TERM AND TERMINATION
A. Unless sooner terminated pursuant to the terms hereof, this
Agreement shall continue for a period of five (5) years from
the date set forth in Exhibit A as the commencement date of
the Services. The term of this Agreement shall be
automatically renewed on a month-to-month basis unless
terminated by Customer or CANON by giving notice to CANON or
Customer, respectively, at least ninety (90) days prior to the
end of the initial term or thirty (30) days prior to the end
of any renewal term thereof.
B. In addition to any other rights that CANON may have, CANON
shall have the right to terminate this Agreement immediately,
at any time, if either of the following events occurs:
1. Customer fails to make timely payment of any amount
due hereunder, and default continues for a period of
ten (10) days after written notice of such default to
Customer; or
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2. Customer files a petition in bankruptcy, or is
adjudicated a bankrupt, or a petition in bankruptcy
is filed against Customer and not discharged within
thirty (30) days, or Customer becomes insolvent or
makes an assignment for benefit of its creditors or
an arrangement pursuant to any bankruptcy law, or a
receiver is appointed for it or its business.
C. In addition to any other rights that Customer may have,
Customer shall have the right to terminate this Agreement
immediately, at any time, if either of the following events
occurs:
1. CANON materially breaches its obligations under this
Agreement;
2. CANON does not substantially perform the services set
forth in Exhibit A in a manner reasonably consistent
with performance standards of the facilities
management industry and such performance is not cured
in accordance with Article XIII.
3. CANON files a petition in bankruptcy, or is
adjudicated a bankrupt, or a petition in bankruptcy
is filed against CANON and not discharged within
thirty (30) days, or CANON becomes insolvent or makes
an assignment for benefit of its creditors or an
arrangement pursuant to any bankruptcy law, or a
receiver is appointed for it or its business.
4. CANON fails to reasonably agree to the written
performance standards to be developed by CANON and
Customer governing the performance of Services
hereunder.
D. Upon termination of this Agreement for any reason, by either
party, the following shall apply with respect to the Business
Service Center and the Equipment.
1. If the Business Service Center is located at the
Customer's facility, CANON shall, within two weeks
after the effective date of termination, remove
Equipment owned by CANON from the Business Service
Center at its own cost and risk. Customer shall take
no action to prevent or delay CANON's removal of such
Equipment; provided that CANON shall comply with
Customer's reasonable policies and procedures when on
Customer's premises. After removing its equipment,
CANON shall have no further responsibility with
respect to the Business Service Center or Customer's
facility, except for those obligations that survive
termination of this Agreement.
2. Customer agrees to (i) assume all obligations of
CANON under any rent, lease, purchase or maintenance
agreements for Equipment held by CANON to provide the
Services; provided that Customer may retain control
and possession of such Equipment upon termination of
this Agreement; (ii) reimburse CANON for all costs of
supplies purchased to provide the Services, after
which reimbursement, said supplies shall be
transferred to and become the property of Customer;
and (iii) pay to CANON any other direct costs
incurred by CANON as a result of the termination of
this Agreement; provided that such termination does
not occur pursuant to Article XV.C. of this
Agreement.
3. In the event that this Agreement expires by its terms
and is not renewed by the parties, Customer agrees to
assume all obligations of CANON under any rent,
lease, or maintenance agreements for Equipment held
by CANON to provide the Services that extend beyond
the date of expiration of this Agreement; provided
that Customer may retain control and possession of
such Equipment upon expiration of this Agreement.
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E. Termination of this Agreement shall not relieve either party
of the obligation to pay any amounts due, or to give any
credit due, for Services rendered prior to the effective date
of termination. Articles XI, XII, and XIV through XIX shall
survive termination of this Agreement.
XVI. FORCE MAJEURE
No party hereto shall be liable for delay or non-performance in the
delivery or the rendering of services hereunder which results from
causes beyond its control, including but not limited to natural
disasters, war, riot, civil unrest, labor disputes or other similar
types of situations.
XVII. EXHIBITS
The following Exhibits are attached hereto and are specifically make a
part hereof:
Exhibit A - Services
Exhibit B - Business Service Center
Exhibit C - Equipment
Exhibit D - Prices
Exhibit E - Performance Standards
Any Exhibit may be amended or augmented only by the mutual written
consent of the parties. Any such amended Exhibit shall be attached
hereto and shall form thereon be considered a part of this Agreement.
XVIII. NOTICES
All statements, notices and other communications to be given hereunder
(other than requests from Customer for Services) shall be in writing
and, unless otherwise provided, shall be deemed to have been duly given
when delivered in person or when deposited in the U.S. Mail, postage
prepaid, property addressed, registered or certified mail, return
receipt requested, to the address as set forth below, or to such other
address or addresses may be designated in writing by notice given to
the other party pursuant to this paragraph.
If to CANON:
Director
CANON Business Services
125 Park Avenue, 7th Floor
New York, NY 10017
If to Reuters:
Reuters America Inc.
The Reuters Building
Three Times Square
New York, New York 10036
Attn:
With a copy to: General Counsel
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If to Instinet:
Instinet Corporation
The Reuters Building
Three Times Square
New York, New York 10036
Attn:
XIX. Miscellaneous
A. This Agreement supersedes all prior written or verbal
agreements, understandings and discussions between the
parties. This Agreement is entire in and of itself and cannot
be changed or terminated orally. No modification of this
Agreement shall be binding unless signed by the party against
whom it is sought to be enforced.
B. If any provision of this Agreement is held to be invalid or
unenforceable, such invalidity or unenforceability shall not
invalidate this Agreement as a whole, but this Agreement shall
be construed as though it did not contain the particular
provision or provisions held to be invalid or unenforceable.
C. No waiver shall be deemed to be made by any party of any of
its rights hereunder unless the same shall be in a writing
signed by the waiving party, and any waiver shall be a waiver
only with respect to the specific instance involved and shall
in no way impair the rights or the obligations of any party in
any other respect at any other time.
D. The Agreement shall be governed and construed in accordance
with the laws for the State of New York.
E. No party shall make any public announcement regarding the
existence or subject matter of this Agreement without the
other parties' prior written approval and consent.
F. This Agreement and the rights granted and obligations
undertaken hereunder may not be transferred, assigned or
delegated, by operation of law or otherwise, in any matter by
either without prior written consent; provided, however, that
prior written consent will not be required if this Agreement
is assigned by Customer to a person or entity who acquires
substantially all of its assets, stock or business by sale,
merger or otherwise or to an affiliate of Customer.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
CANON BUSINESS SERVICES, INC.
By:
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Name: Valerie Belli
--------------------------------------------
Title: Director
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REUTERS AMERICA INC.
By:
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Name:
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Title:
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INSTINET CORPORATION
By:
--------------------------------------------
Name:
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Title:
--------------------------------------------
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BUSINESS SERVICES AGREEMENT
EXHIBIT A - SERVICES TO BE PROVIDED
================================================================================
1. GENERAL REQUIREMENTS
CANON will establish Business Services that will provide the following:
- Convenience Copier and Fleet Management
CANON will train and work with end users to ensure that the services
offered are fully utilized. CANON will provide personnel to ensure that
the services provided are performed in accordance with the Customer's
described requirements.
2. HOURS OF OPERATION
CANON will operate the Fleet Management from 9 A.M to 5 P.M. CANON
shall observe the Customer's holiday schedule.
CANON will provide personnel for overtime work or work beyond regular
working hours, when workload requires, on weekends and Customer's
holidays at rates set forth in Exhibit D.
3. COMMENCEMENT DATE
To be determined by mutual agreement with the Customer.
Fleet:
Date July 1, 2001_____________________________________
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BUSINESS SERVICES AGREEMENT
EXHIBIT B - BUSINESS SERVICE CENTER
================================================================================
LOCATION OF CENTER:
The Reuters Building
-------------------------------
3 Times Square
-------------------------------
New York, NY 10036
-------------------------------
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BUSINESS SERVICES AGREEMENT
EXHIBIT C - EQUIPMENT
================================================================================
1. EQUIPMENT TO BE PROVIDED BY CANON:
Fleet:
- 41 imageRUNNER 600's (Copy and Print Capabilities)
- 3 imageRUNNER 400's (Copy and Print Capabilities)
- 1 imageRUNNER 300's (Copy and Print Capabilities)
- 1 imageRUNNER 210 (Copy and Print Capabilities)
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BUSINESS SERVICES AGREEMENT
EXHIBIT D - PRICES
================================================================================
MONTHLY MANAGEMENT FEE FLEET: $21,641.00
----------
MONTHLY LABOR $ 2,663.00
----------
(REUTERS MANAGEMENT FEE FLEET: $10,478.00
LABOR $1,331.50)
(INSTINET MANAGEMENT FEE FLEET: $11,169.00
LABOR $1,331.50)
- All personnel (1 Site Representative)
- All staffing/benefits costs per employee
- All administrative costs associated with recruiting, hiring,
training and billing
- All performance standards developed between the Customer and CANON
- Operational procedures guide including performance standards,
activity reports, etc.
- Technology as described in EXHIBIT C
- 500,000 Black & White Impression Fleet
- Back-up support costs
- Management support costs
- All maintenance and toners included
VARIABLE PRICING:
- Black & White Overage @ $ .011
- Color Overage @ $N/A
- Customer approved overtime: Weekdays @ 24 per hour; weekends and
holidays @ 34 per hour
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EXHIBIT E
PERFORMANCE STANDARDS
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APPENDIX A
ACKNOWLEDGMENT
I, _______________________, [INSERT NAME] hereby agree that I will not
be eligible either to participate in any employee benefit plans maintained by
Customer (or any of its affiliates) or to receive any fringe benefits during the
period of time I am assigned by CANON to provide services for Customer, or with
respect to any of my assignments by CANON to Customer. I agree that even if a
court, government agency or any other tribunal determines that Customer and I
have had a common law employer-employee relationship, I will still be bound by
this Acknowledgment and will not be entitled to receive from Customer or have
Customer provide on my behalf any different or additional pay, or any benefits,
insurance coverage, tax payments, or withholding, or compensation of any kind. I
hereby knowingly and voluntarily waive any right to claim any such benefits or
payments on the ground of the performance of services for Customer through
CANON.
_____________________________
PRINT NAME
_____________________________
SIGNATURE
_____________________________
DATE
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APPENDIX B
CODE OF CONDUCT
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APPENDIX C
CONFIDENTIALITY AGREEMENT
CONFIDENTIALITY Agreement entered into as of ______________, 2001 by
and between __________________, and _______________ a ________ corporation, with
offices at ____________________________________, ("Canon Business Services").
A. Reuters / Instinet and Canon Business Services each will have
access to certain information concerning the operation of each other's business.
B. Each of Reuters / Instinet and Canon Business Services is
willing to provide the other Party with information concerning its business and
operations, provided that such other Party keeps any and all such information
confidential on the terms hereinafter set forth. (The Party providing such
information is sometimes referred to as a "Providing Party," and the Party
receiving such information is sometimes referred to as a "Receiving Party.")
NOW, THEREFORE, in consideration of the mutual premises and promises
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and as a condition to the
disclosure of the information, Reuters / Instinet and Canon Business Services
agree as follows:
1. Provision of Confidential Matter. The Providing Party expects to
provide and/or disclose to the Receiving Party certain information,
which may be written or oral, which the Providing Party deems
confidential and proprietary, including, without limitation, customer
names, business plans, financial information, projections, plans,
flowcharts, sketches, software, data, other technical or business
information and/or information relating to marketing plans and/or
forecasts, development plans and/or current, future, proposed or
unannounced products, and/or service capabilities, whether or not such
information is labeled as confidential or proprietary at the time it is
provided or disclosed (collectively, the "Confidential Matter.")
Confidential Matter does not include (a) information which was in the
Receiving Party's possession, without restriction, prior to its
disclosure to the Receiving Party by the Providing Party, as evidenced
in writing, (b) information which lawfully enters the public domain
without violation of this Confidentiality Agreement by the Receiving
Party, (c) information which the Receiving Party lawfully receives from
a third party without restriction, without violation by the Receiving
Party of this Confidentiality Agreement and (d) information which was
independently developed by the Receiving party without any use of the
Confidential Matter.
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2. Non-Disclosure. The Receiving Party shall maintain as confidential and
shall not disclose the Confidential Matter in whole or in part,
directly or indirectly, to any other individual, firm, corporation or
government authority, except (i) as set forth in Paragraph 4 and (ii)
as may be required by law or any regulatory body or court provided
that, prior to complying with any such judicial, administrative,
regulatory body or court proceeding, the Receiving Party will (a) use
its best efforts to give the Providing Party prompt notice of such
request so that it may seek an appropriate protective order or other
remedy and (b) consult with the Providing Party as to the advisability
of taking legally available steps to resist or narrow such a request.
The Receiving Party will cooperate fully with the Providing Party in
obtaining such an order or other remedy. If in the absence of an
appropriate protective order or other remedy the Receiving Party is
nonetheless legally required to disclose Confidential Matter, the
Receiving Party may make such disclosure without liability hereunder,
provided that the Receiving Party use its best efforts to give the
Providing Party written notice of the information to be disclosed as
far in advance of its disclosure as is practicable and, upon the
Providing Party's request and at its expense, shall use its best
efforts to obtain reasonable assurances that confidential treatment
will be accorded such information.
3. Use of Confidential Matter. Following the receipt of Confidential
Matter, the Receiving Party shall:
(a) use at least the same degree of care, but in no event less
than reasonable care, to protect the Confidential Matter as is used by
the Receiving Party with respect to its own confidential and
proprietary information; and
(b) use the Confidential Matter only for the following purpose or
as may subsequently be agreed between the Receiving Party and the
Providing Party:
4. Representatives of the Receiving Party. Notwithstanding the
restrictions set forth in Paragraph 2, the Receiving Party may furnish
the Confidential Matter to any of its directors, officers, employees,
agents or advisors (including, without limitation, attorneys,
accountants, consultants, bankers and financial advisors),
(collectively, "Representatives") who need to know such information for
the purpose set forth in Paragraph 3(b), provided that such
Representatives are instructed to keep such information confidential in
accordance with this Confidentiality Agreement. Reuters / Instinet may
furnish the Confidential Matter to any Representatives of its
Affiliates who need to know such information for the purpose set forth
in Paragraph 3(b) The Receiving Party shall be responsible for any
breach of this Confidentiality Agreement by any of its Representatives,
and in the case of Reuters / Instinet, Representatives of its
Affiliates, and agrees, at its sole expense, to take all reasonable
measures (including but not limited to court proceedings) to restrain
its Representatives from prohibited or unauthorized disclosure or use
of the Confidential Matter.
5. No Other Rights. Nothing contained in this Confidentiality Agreement
shall be construed as granting or conferring any rights by license or
otherwise in any Confidential Matter.
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6. Announcements and Publicity.
Canon Business Services and Reuters / Instinet shall not publicly
announce or disclose to any other party, corporation, organization or
person of any kind the existence or terms of this Confidentiality
Agreement without the prior written consent of the other Party.
7. Return of Confidential Matter. At any time after termination of
discussions by either Party to this Confidentiality Agreement with
respect to a possible transaction, upon the Providing Party's request,
the Receiving Party will promptly (and in no event later than five (5)
days after such request) redeliver or cause to be redelivered to the
Providing Party all copies of written Confidential Matter furnished to
the Receiving Party or its Representatives and destroy or cause to be
destroyed all summaries, compilations or extracts of all Confidential
Matter in the possession of the Receiving Party or its Representatives
(such destruction to be confirmed in writing) provided that, if the
Receiving Party's work papers contain any Confidential Matter, such
work papers shall not be required to be returned or destroyed but the
Receiving Party shall maintain and use such work papers in accordance
with Paragraphs 2 and 3 of this Agreement.
8. Remedies. The Receiving Party acknowledges that the remedies at law for
the breach of the covenants contained in this Confidentiality Agreement
are inadequate and that the Providing Party shall be entitled to
injunctive relief for any such breach. Nothing contained herein shall
be construed as limiting the Providing Party's right to any other
remedies at law, including the recovery of damages.
9. Severability. In the event that any court having competent jurisdiction
shall determine that one or more of the covenants contained in this
Confidentiality Agreement shall be unreasonable in any respect, then
such covenant shall be deemed limited and restricted to the extent that
such court shall deem it to be reasonable, and as so limited or
restricted shall remain in full force and effect. In the event that any
such covenant or covenants shall be deemed wholly unenforceable, the
remaining covenants shall remain in full force and effect. The Parties
intend that the terms and provisions of this Confidentiality Agreement
be given the broadest possible interpretation to protect the interests
of the Providing Party hereunder.
10. Assignment. This Confidentiality Agreement shall not be assigned
without the prior written consent of the other Party, the grant or
withholding of which shall be in such Party's sole discretion, and any
purported assignment in violation hereof shall be null and void.
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<PAGE>
11. Governing Law. This Confidentiality Agreement shall be governed and
construed in accordance with the laws of the State of New York without
regard to the choice of law principles thereof and shall benefit and be
binding upon the Parties and their respective successors and permitted
assigns. Each of the Parties agrees to submit to the jurisdiction of
the federal courts for the Southern District of New York and of the
Supreme Court of the State of New York for New York County with respect
to any action or proceeding arising out of this Confidentiality
Agreement. The Parties agree that any service of process to be made
with respect to any action or proceeding arising out of this
Confidentiality Agreement may be made by certified mail, return receipt
requested, addressed to the Party at the address set forth at the
beginning of this Confidentiality Agreement.
12. Term. The Parties agree that this Confidentiality Agreement binds the
Parties from the date set forth on page one of this Confidentiality
Agreement and shall continue indefinitely.
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IN WITNESS WHEREOF, the signatory for each Party has signed this
Confidentiality Agreement in duplicate originals and certifies that he or she
has the authority to bind such Party to this Confidentiality Agreement.
[Reuters / Instinet]
By: ________________________________
NAME:
TITLE:
[Canon Business Services]
By: ________________________________
NAME:
TITLE:
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