Testing and Certification Agreement - Instinet UK Ltd. and Effix SA
27-10-00
TESTING AND CERTIFICATION AGREEMENT
Date: November 7, 2000
1) Instinet UK Limited ("Instinet") of Commodity Quay, East Smithfield,
London E1W 1AZ
and
2) Effix SA ("Vendor") of 6 rue Godefroy, F-92821 Puteaux, Cedex, France
BACKGROUND
(A) Vendor has developed, on behalf of the Reuters Group, the software and/or
system(s) more fully described in Exhibit A attached hereto and made a part
hereof (the "Vendor Product(s)"); and
(B) Instinet has created, and provided to Vendor for evaluation, specifications
using the Financial Information Exchange ("FIX") protocol for the development or
enabling of access to the Instinet System (the "Fix Specifications") for
delivery by Instinet of the securities order entry and trade reporting services
described in the Specifications (the "Instinet Services") to mutual clients of
Reuters and Instinet; and
(C) Instinet and Vendor agree that Vendor may integrate Instinet's proprietary
OpenInstinet application, ("OpenInstinet") as more fully described in the
specification dated January 15, 2000, (the "OpenInstinet BookMark
Specification"); and
(D) Instinet is willing to grant Vendor a limited license to use the
OpenInstinet BookMark Specification for the sole purpose of integrating
OpenInstinet into the Vendor Products and a limited license to use the FIX
Specification for the sole purpose of testing and certifying the integration of
the Vendor product with the Instinet System to allow mutual clients of Instinet
and Reuters to access Instinet Services through the Vendor Product(s), all
subject to the terms and conditions contained in this Agreement;
AGREEMENT
1. VENDOR'S GENERAL OBLIGATIONS.
1.1 Development, Integration and Testing. Vendor shall provide the
ability to access the Instinet Services and OpenInstinet via the Vendor's
Product(s) and shall test the Vendor Product(s) to ensure that such access
operates in accordance with, and conforms to the Fix Specification and
OpenInstinet Specification (jointly, the "Specifications").
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Vendor shall be solely responsible for any and all costs and expenses
incurred in the development, testing and installation of the Vendor
Product(s). The Vendor Product(s), except for OpenInstinet, are and shall
remain the property of Vendor.
1.2 Acceptance. Upon completion of Vendor's testing pursuant to Section
1.1 of this Agreement, Vendor shall test the Vendor Product(s) with
Instinet (the "Acceptance Testing") until Instinet, in its sole
discretion, has certified the Vendor Product(s) for connection to the
Instinet System and provision of the Instinet Services and OpenInstinet
via the Vendor Product(s) to customers, ("Acceptance").
1.3 Upgrades and Alterations.
1.3.1 Vendor. Vendor shall notify Instinet in writing as promptly as
practicable prior to the release of any upgrade or alteration to the
Vendor Product(s) that would affect the architecture of the Vendor
Product(s) as it pertains to any order directed to Instinet by mutual
clients of Reuters and Instinet (the "Customer Orders"), the Instinet
Services and/or OpenInstinet. In the event any upgrade or modification to
the Vendor Product(s) causes any harm to Instinet or interferes in any way
with Customer Orders, the Instinet System, the Instinet Services, and/or
OpenInstinet Vendor shall either promptly (i) rectify the harm or (ii)
revert to the previously certified version of the Vendor Product(s) at
Instinet's request. Instinet shall have the right to perform Acceptance
Testing, in accordance with Section 1.2 herein, on all upgrades or
modifications of the Vendor Product(s) which pertain to Customer Orders,
the Instinet System, the Instinet Services and/or OpenInstinet, prior to
release of any such upgrade or modification.
1.3.2 Instinet. Instinet may upgrade and/or alter the Specifications, in
its sole discretion, from time to time during the term of this Agreement.
Instinet shall notify Vendor of such upgrade and/or alteration and provide
to Vendor revised Specifications reflecting such upgrade and/or alteration
(the "Revised Specifications") as promptly as practicable.
1.4 Support Services and Training. Vendor shall make available a
commercially reasonable number of personnel expertly trained to respond to
questions from Instinet regarding the Vendor's Product(s) as pertaining to
Customer Orders, the Instinet System, the Instinet Services and/or
OpenInstinet during Vendor's normal business hours
1.5 Access Parity. Vendor shall ensure that the Vendor Product(s)
provides access to Instinet Services and OpenInstinet in a manner that is
at least as favourable, both with respect to the time required to access
the Instinet Services and the mechanics by which the Instinet Services and
OpenInstinet are accessed, as the manner in which the Vendor Product(s)
provide such access to the services of any other broker-dealer, Electronic
Communication Network ("ECN") or other order entry or trade reporting
service or destination. In the event that Vendor becomes aware (through
notice from Instinet, a customer or otherwise) that access to Instinet
Services is not available in accordance with the foregoing sentence,
without limiting any remedies available under this
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Agreement or otherwise under law, Vendor shall use its best efforts to
make such access to Instinet Services compliant with the foregoing
sentence.
Notwithstanding the foregoing, nothing herein shall prevent Vendor from
entering into any strategic business alliance with any broker-dealer, ECN
or other order entry or trade reporting service or destination where the
specific terms and conditions of such alliance require Vendor to provide
access to the counterparty's destination in a manner that is more
favourable than the access Vendor provides to other destinations,
including the Instinet Services.
1.6 Order Handling. Vendor shall not do anything that would prevent the
Customer Orders being routed to Instinet in accordance with the
Specifications and identified to Instinet as the orders of the customers
from whom they originate. In no event shall Vendor allow the vendor
product or its integration to (i) redirect Customer Orders to any other
ECN, order entry system or any other destination, (ii) conglomerate or
aggregate Customer Orders with other Customer Orders or any other orders
whatsoever, (iii) use any information derived from the Customer Orders for
any purposes other than the fulfillment of its obligations under this
Agreement (iv) match or otherwise fill Customer Orders, or (v) take any
action that would compromise the anonymity of a Customer Order.
1.7 Instinet Branding. Vendor shall ensure that all access to the
Instinet Services through the Vendor Product(s) are clearly labeled as
connecting to Instinet ("Instinet Branding"). The Instinet Branding for
the Vendor Product(s) and/or any upgrade or modification thereto shall be
mutually agreed by Vendor and Instinet.
2. CONFIDENTIALITY.
2.1 Provision of Confidential Matter. During the term of this Agreement,
the Parties shall provide and/or disclose to each other certain
information, which may be written or oral, that the Parties, their
respective affiliates or their customers deem confidential and
proprietary, whether or not such information is labeled as confidential or
proprietary at the time it is provided or disclosed ("Confidential
Matter"). Confidential Matter also shall include information relating to
third party vendors or information that is proprietary to the disclosing
Party's customers or affiliates. (The Party providing Confidential Matter
is referred to in this Section 2 as the "Providing Party," and the Party
receiving Confidential Matter is referred to in this Section 2 as the
"Receiving Party").
For purposes of this Agreement, Confidential Matter shall not include (a)
information that was in the Receiving Party's possession, without
restriction, prior to its disclosure to the Receiving Party by the
Providing Party, (b) information that lawfully enters the public domain
without violation of this Section 2 by the Receiving Party, (c)
information that the Receiving Party lawfully receives from a third party
without restriction and without
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violation of any duty of confidentiality owed to the Providing Party, and
(d) information that is independently developed by the Receiving Party.
2.2 Non-Disclosure. Except (i) as set forth in Section 2.4, and (ii) as
may be required by law or any regulatory body or court (but only after
compliance with Section 2.6) the Receiving Party shall maintain as
confidential and shall not disclose Confidential Matter in whole or in
part, directly or indirectly, to any other individual, firm, corporation
or government authority.
2.3 Use of Confidential Matter. Following the receipt of Confidential
Matter, the Receiving Party shall (i) use at least the same degree of
care, but in no event less than reasonable care, to protect such
Confidential Matter as the Receiving Party uses with respect to its own
confidential and proprietary information; and (ii) use such Confidential
Matter only to fulfill its obligations under this Agreement and only in
accordance with the terms and conditions of this Agreement.
2.4 Representatives of the Receiving Party. Notwithstanding the
restrictions set forth in Section 2.2, the Receiving Party may furnish the
Confidential Matter to any of its directors, officers and employees
(collectively, "Representatives") who need to know such information for
the purposes set forth in Section 2.3; provided, however, that such
Representatives are instructed to keep such information confidential in
accordance with this Section 2. The Receiving Party shall be responsible
for any breach of this Section 2 by any of its Representatives 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 unauthorised disclosure or use of any Confidential Matter.
2.5 No Other Rights. Nothing contained in this Section 2 shall be
construed as granting or conferring any rights by license or otherwise to
the Receiving Party in any Providing Party's Confidential Matter.
2.6 Required Disclosure. If a Receiving Party is requested or required
in any judicial or administrative proceeding or by any regulatory body or
court to disclose any Confidential Matter, such Receiving Party shall (i)
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 (ii) consult with the Providing Party as to the advisability of
taking legally available steps to resist or narrow such request or
requirement. The Receiving Party shall 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, however, that the Receiving Party shall 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, use its best efforts to
obtain reasonable assurances that confidential treatment will be accorded
to such Confidential Matter.
2.7 NOTWITHSTANDING THE FOREGOING, VENDOR IS EXPRESSLY PROHIBITED FROM
RELEASING THE IDENTITY OF ANY AUTHORISED CUSTOMER TO ANY OTHER AUTHORISED
CUSTOMER OR THIRD PARTY
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WITHOUT FIRST OBTAINING THE WRITTEN CONSENT OF SUCH AUTHORISED CUSTOMER
AND PROVIDING A COPY THEREOF TO INSTINET.
3. REPRESENTATIONS AND WARRANTIES.
3.1 Vendor Representations, Warranties and Covenants. Vendor represents,
warrants and covenants to Instinet that:
3.1.1 the execution and delivery by Vendor of this Agreement and the
performance of its obligations hereunder have been Authorised by all
necessary action, corporate and otherwise, and that this Agreement
constitutes a legal, valid and binding obligation of Vendor enforceable in
accordance with its terms, except to the extent that such enforceability
is subject to or limited by bankruptcy, insolvency or similar laws
relating to the enforcement of creditor's rights;
3.1.2 the execution and delivery by Vendor of this Agreement and the
performance of its obligations hereunder does not breach any law, rules or
regulations to which Vendor is subject or any agreement, obligation or
restriction by which Vendor is bound, and Vendor will not enter into or
assume any agreement, obligation or restriction that will interfere with
any of its obligations hereunder or the rights granted herein.
3.2 Instinet Representations, Warranties and Covenants. Instinet
represents, warrants and covenants to Vendor that:
3.2.1. the execution and delivery by Instinet of this Agreement and the
performance of its obligations hereunder have been Authorised by all
necessary action, corporate and otherwise, and this Agreement constitutes
a legal, valid and binding obligation of Instinet enforceable in
accordance with its terms, except to the extent that such enforceability
is subject to or limited by bankruptcy, insolvency or similar laws
relating to the enforcement of creditor's rights;
3.2.2 the execution and delivery by Instinet of this Agreement and the
performance of its obligations hereunder does not breach any law, rules or
regulations to which Instinet is subject or any agreement, obligation or
restriction by which Instinet is bound and Instinet will not enter into or
assume any agreement, obligation or restriction that will interfere with
any of its obligations hereunder or the rights granted herein; and
3.2.3 Instinet has the right and authority to grant the license to the
Specifications.
4. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY. EXCEPT AS SET
FORTH IN SECTION 3.1 OF THIS AGREEMENT WITH RESPECT TO VENDOR, AND
SECTION 3.2 OF THIS AGREEMENT WITH RESPECT TO INSTINET, (I) THE VENDOR
PRODUCT(S), WITH RESPECT TO VENDOR, AND (II) THE SPECIFICATIONS AND
INSTINET SERVICES, WITH RESPECT TO INSTINET, ARE PROVIDED "AS IS"
WITHOUT WARRANTY OF ANY KIND BY
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VENDOR OR INSTINET, RESPECTIVELY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT
WITH RESPECT TO THE INDEMNIFICATION OBLIGATIONS CONTAINED IN SECTION 5 OF
THIS AGREEMENT OR ANY INTENTIONAL MATERIAL BREACH OF THE CONFIDENTIALITY
OBLIGATIONS CONTAINED IN SECTION 2 OF THIS AGREEMENT, NEITHER PARTY SHALL
BE LIABLE TO THE OTHER OR ANY THIRD PARTY CLAIMING THROUGH THE OTHER, FOR
ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE
FURNISHING, PERFORMANCE, OR USE OF, OR INABILITY TO USE, THE
SPECIFICATIONS, THE VENDOR PRODUCTS(S) OR THE INSTINET SERVICES PROVIDED
UNDER THIS AGREEMENT.
5. INDEMNIFICATION
5.1 Vendor Indemnification of Instinet. Subject to the limitations set
forth in this Section 5.1, Vendor, at its own expense, shall: (i)
indemnify, defend and hold Instinet and/or any of its affiliates and its
or their respective officers, directors, partners, employees, agents or
representatives (collectively, the "Instinet Indemnitees"), harmless from
and against (or at its option, but with Instinet's prior agreement,
settle) any claim, action, suit or proceeding against Instinet or any of
its affiliates and any of their respective officers, directors, partners,
employees, agents and representatives on the basis of (A) any alleged
infringement in whole or in part, of any third party's patent, copyright,
trade secret or other intellectual property rights by the Vendor
Product(s), and (B) any breach by Vendor of the obligations in Sections
1.5, 1.6, 1.7, or the representations, warranties or covenants set forth
in Section 3.1 of this Agreement; (ii) pay any final judgment entered or
settlement against Instinet and indemnify and defend and hold Instinet
harmless from and against all damages, liabilities, costs and expenses
incurred by Instinet arising out of or in connection with any such claim,
action, suit or proceeding. Vendor shall have no obligation to any of the
Instinet Indemnitees pursuant to this Section 5.1 unless: (A) Instinet
provides Vendor prompt written notice of the claim, action, suit or
proceeding after Instinet's discovery thereof; (B) Vendor is given the
right to control and direct the investigation, preparation, defense and
settlement of the claim, action, suit or proceeding; provided, however,
that Instinet shall retain the right to file an answer or take any other
action necessary to prevent the entry of a default judgment or injunction
against it and the right to consult with Vendor regarding the litigation
or settlement; and (C) Instinet gives Vendor reasonable assistance and
information at Instinet's expense in connection with such claim, action,
suit or proceeding.
5.2 Instinet Indemnification of Vendor. Subject to the limitations set
forth in this Section 5.2, Instinet, at its own expense, shall: (i)
indemnify, defend and hold Vendor and/or any of its affiliates and its or
their respective officers, directors, partners, employees, agents or
representatives (collectively, the "Vendor Indemnitees"), harmless from
and against (or at its option, but with Vendor's prior agreement, settle)
any claim, action, suit or proceeding against Vendor or any of its
affiliates and any of their respective officers, directors, partners,
employees, agents and representatives on the basis
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of (A) any alleged infringement in whole or in part, of any third party's
intellectual property rights by the Specifications (unless such
Specifications are jointly developed by Instinet and Vendor) (B) the
Instinet Services (unless such Instinet Services are modified or altered
by Vendor); and (C) any breach by Instinet of the representations,
warranties or covenants set forth in Section 3.2 of this Agreement; and
(ii) pay any final judgment entered or settlement against Vendor and
indemnify and defend and hold Vendor harmless from and against all
damages, liabilities, costs and expenses incurred by Vendor arising out of
or in connection with any such claim, action, suit or proceeding. Instinet
shall have no obligation to any of the Vendor Indemnitees pursuant to this
Section 5.2 unless: (A) Vendor provides Instinet prompt written notice of
the claim, action, suit or proceeding after Vendor's discovery thereof;
(B) Instinet is given the right to control and direct the investigation,
preparation, defense and settlement of the claim, action, suit or
proceeding; provided, however, that Vendor shall retain the right to file
an answer or take any other action necessary to prevent the entry of a
default judgment or injunction against it and the right to consult with
Instinet regarding the litigation or settlement; and (C) Vendor gives
Instinet reasonable assistance and information at Vendor's expense in
connection with such claim, action, suit or proceeding.
6. TERM, TERMINATION, EFFECT OF TERMINATION AND SURVIVAL.
6.1 Term. This Agreement shall be deemed effective as of 25th April 2000
and shall remain in effect until terminated by either Party pursuant to
this Section 6.
6.2 Termination.
6.2.1 Termination by Instinet. Instinet may terminate this Agreement and
the limited license granted hereunder in its sole discretion, at any time,
with or without cause, by giving thirty (30) days' prior written notice to
Vendor. Instinet may terminate this Agreement and the limited license
granted hereunder without prior notice, effective immediately, in the
event that (A) Vendor commits a material breach of its obligations under
this Agreement, (B) Instinet determines that the continued provision of
the Instinet Services via the Vendor Product(s) would be detrimental to
Instinet or any of its customers, or (C) Vendor fails to meet its
obligations under Section 1.5, 1.6, 1.7 hereof.
6.2.2 Termination by Vendor. Vendor may terminate this Agreement and the
limited license granted hereunder (i) in its sole discretion, with or
without cause, upon 30 days' prior written notice, or (ii) without prior
notice, effective immediately, in the event Instinet commits a material
breach of its obligations under this Agreement.
6.3 Effect of Termination and Survival.
6.3.1 Instinet and Vendor. Upon termination of this Agreement pursuant to
this Section 8, the Parties shall promptly return to the other Party any
tangible Confidential Matter in its possession, purge all Confidential
Matter from its electronic records, and immediately
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cease all marketing efforts, including any use of the other Party's name,
trademark, service mark or logo.
6.3.2 Survival. Sections 2, 4, 5, and 7.6 of this Agreement shall survive
any termination of this Agreement for any reason.
7. MISCELLANEOUS.
7.1 Equitable Relief. The Parties agree that the remedy at law for any
breach by either Party of the terms of Sections 2 and 1.7hereof will be
inadequate and that, accordingly, in addition to any remedies either Party
may have at law, both Parties will be entitled to apply for and obtain
equitable relief in any court of competent jurisdiction to restrain the
breach or threatened breach of, or otherwise to specifically enforce such
terms.
7.2 Notices. All notices which are required to be given pursuant to this
Agreement shall be in writing and shall be hand delivered, sent by
overnight courier (such as Federal Express), or sent by facsimile
transmission, with a confirming copy sent by first class mail, postpaid,
or sent by registered or certified mail, return receipt requested, to the
following address or to such other address as a Party may from time to
time designate by notice. Such notices shall be deemed given upon receipt
if hand delivered, on the next business day if sent by overnight courier,
upon receipt of a confirmation of transmission if sent via facsimile or
three (3) business days after mailing if sent via registered or certified
mail:
If to Instinet: Commodity Quay,
East Smithfield
London E1W 1AZ
Attention: Ruth Liggett
With a copy to: Address as above
Attention: European General Counsel
If to Vendor: 6, rue Godefroy
92821 PUTEAUX CEDEX
FRANCE
7.3 Entire Agreement and Amendment. This Agreement, including the
Exhibits, if any, contains the entire agreement between the parties with
respect to the subject matter hereof and supersedes all other prior or
contemporaneous oral or written communications, proposals, agreements and
representations with respect to the subject matter. No amendment or
modification to this Agreement shall be binding, unless it is in writing
and executed by each Party.
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7.4 Assignment. 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 manner by Vendor.
7.5 Waiver of Compliance and Severability. Any waiver of any provision
of this Agreement, or any delay by either party in the enforcement of any
right hereunder, shall neither be construed as a continuing waiver nor
create an expectation of non-enforcement of that or any other provision or
right. In the event any one or more of the provisions of this Agreement
shall for any reason be held to be invalid, illegal or unenforceable, the
remaining provisions of this Agreement shall be unimpaired, and the
Parties shall negotiate in good faith to substitute a provision of like
economic intent and effect.
7.6 Governing Law and Choice of Forum. This Agreement is made under and
shall be governed by and construed in accordance with the laws of England
and Wales. Both parties consent to the jurisdiction of the courts of
England and Wales, and agree to institute any and all actions relating to
this Agreement in such courts.
7.7 Interpretation. The section headings contained in this Agreement are
solely for the purpose of reference, are not part of the agreement between
the parties and shall not in any way affect the meaning or interpretation
of this Agreement.
7.8 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and both of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the authorised officers of the parties hereto have
executed this Vendor Interface Agreement as of the date first written above.
EFFIX SA INSTINET UK LIMITED
By: By:
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Name: Name:
Title: Title:
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EXHIBIT A
DESCRIPTION OF VENDOR PRODUCT(S)
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