Corporate Services Agreement - Reuters Ltd. and Instinet Group Inc.
CORPORATE SERVICES AGREEMENT
This SERVICES AGREEMENT (the "Agreement"), dated as of May 16, 2001, is
between Reuters Limited, a company organized under the laws of England and Wales
("Reuters"), and Instinet Group Incorporated, a Delaware corporation
("Instinet") (each of Reuters and Instinet, a "Party," and together, the
"Parties").
W I T N E S S E T H
WHEREAS, Reuters indirectly owns all of the outstanding common stock
of Instinet;
WHEREAS, Reuters indirectly shall own greater than 85% of the outstanding
stock of Instinet immediately after the consummation of the initial public
offering of common stock of Instinet (the "IPO");
WHEREAS, Instinet has requested that certain support services be provided
to it and its subsidiaries after the consummation of the IPO and whereas Reuters
has agreed to provide, or cause to be provided, such support services to
Instinet and its subsidiaries;
WHEREAS, Reuters has requested that certain support services be provided
to it and its subsidiaries after the consummation of the IPO and whereas
Instinet has agreed to provide, or cause to be provided, such support services
to Reuters and its subsidiaries.
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements and other provisions contained herein, the Parties hereby agree as
follows:
ARTICLE I
SERVICES PROVIDED
1.1 Services. Upon the terms and subject to the conditions set forth in
this Agreement and the schedules hereto, each of which is made an integral part
of this Agreement, Reuters shall provide, or cause one or more of its
subsidiaries to provide, to Instinet or to any of the subsidiaries of Instinet
as Instinet may direct, and Instinet shall provide, or cause one or more of the
subsidiaries of Instinet to provide, to Reuters or to any of the subsidiaries of
Reuters as Reuters may direct, the services indicated to be provided, or caused
to be provided, by each of the Parties in each such schedule (a "Service" or
"Services," and each Party and its respective subsidiaries in its capacity as a
Service provider, a "Service Provider," and in its capacity as a recipient of a
Service, a "Recipient"). Subject to Section 2.2 hereto, each Party shall only be
required to provide those Services as specifically identified and contained in
this Agreement and the schedules hereto.
1.2 Personnel. In providing Services, each Service Provider, in its
capacity as a Service Provider and as it deems necessary or appropriate in its
reasonable discretion, may choose to provide such Services through its own
personnel or through the personnel of a third party (each, a "Third Party
Provider"). Each Party acknowledges that the other Party's ability to deliver
any Services may be conditional upon: (i) the delivering Party obtaining the
consent,
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where necessary, of any relevant Third Party Provider or (ii) any regulatory or
legal limitations imposed on the Recipient, the delivering Party or the
provision of Services, if any. If (i) such consent cannot be obtained or (ii)
such regulatory or legal limitations cannot be waived, the delivering Party
shall use commercially reasonable efforts to arrange for alternative methods of
delivering the Services. Unless otherwise agreed in writing, none of the
individuals providing Services to a Recipient will be deemed to be employees of
such Recipient for any purpose.
1.3 Level of Services. Each Service Provider providing Services shall use
commercially reasonable efforts to provide, or to cause a Third Party Provider
to provide, such Services in a satisfactory and timely manner and exercising the
same degree of care as it exercises in performing, or in obtaining from a Third
Party Provider, the same or similar services for its own account as of the date
of this Agreement, with priority equal to that provided to its own businesses or
those of any of its subsidiaries or divisions. Nothing in this Agreement shall
require any Service Provider to favor the businesses of any Recipient over its
own businesses or those of any of its affiliates, subsidiaries or divisions.
1.4 Modification of Procedures, Services and Third Party Providers. Each
Service Provider may, upon giving the relevant Recipient fifteen (15) days prior
written notice, make changes from time to time in its standards and procedures
for providing, or, if applicable, with respect to the relevant Third Party
Provider which provides, the Services for which it is responsible hereunder to
the degree it changes such Services or Third Party Provider for its own use,
including, without limitation, curtailment of all or part of such Services or
curtailment in obtaining all or part of any such Services from a Third Party
Provider.
1.5 No Obligation to Continue to Use Services. No Recipient shall have any
obligation to continue to use any Service. Any Recipient may elect to stop
receiving any Service from the relevant Service Provider at any time by giving
such Service Provider not less than ninety (90) days' written notice. If a
Recipient so elects and such election results in additional costs and/or
penalties imposed by a Third Party Provider or incurred by the Service Provider,
such Recipient shall be responsible for, and shall indemnify the relevant
Service Provider for, all such additional costs and/or penalties.
1.6 Provider Access. To the extent deemed by the relevant Service Provider
to be reasonably required for its personnel or third-party personnel to perform
the Services, each relevant Recipient shall cooperate with such personnel and
provide such personnel reasonable access, on an as needed basis, to its
equipment, office space, plants, telecommunications and computer equipment and
systems, and any other areas and equipment.
1.7 Cooperation. Each Recipient shall provide to the relevant Service
Provider and, if applicable, the relevant Third Party Provider, on a timely
basis any and all information which is reasonably necessary to provide the
applicable Services. Such Recipient shall be solely responsible for the timely
delivery of such information, and the accuracy and completeness thereof.
1.8 Liability for Damages. (a) A Service Provider shall not be liable
(including any liability for the acts and omissions of its employees, agents and
sub-contractors) to a Recipient
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except with respect to the Service Provider's willful misconduct or gross
negligence in performing its obligations under this Agreement.
(b) A Service Provider shall not in any event be liable for any
indirect, special, consequential or liquidated damages arising out of or in
connection with the provision of any Service or breach of the terms hereof, even
if the Recipient had been advised, knew or should have known the possibility
thereof including, but not limited to lost profits, lost business revenue,
failure to realize expected savings, other commercial or economic loss of any
kind, or for any claim against the Recipient by any other person except to the
extent the Service Provider has liability for such claims under Section 1.8(a)
above.
ARTICLE II
COMPENSATION
2.1 Consideration. For Services provided pursuant to Section 1.1 hereof,
the relevant Recipient shall pay the relevant Party fees (each, a "Service Fee")
equal to the direct costs incurred by the Service Provider relating to such
Services except as otherwise specifically provided for in the relevant schedules
hereto. During the period between execution of the Agreement and finalization of
the detailed description of the Services to be provided in the schedules,
Reuters shall continue to charge Instinet, and Instinet shall continue to pay
Reuters, the fees that are currently applicable to such Services as of the date
of this Agreement. Payment shall be made monthly, or at such other intervals as
are provided in the relevant schedule to this Agreement, based on an invoice
from the Service Provider or Third Party Provider to the relevant Recipient.
Each invoice shall be accompanied by documentation breaking out the costs
included in the Service Fee. Payment shall be made by immediately available
funds to such account as may be specified by the relevant Party within thirty
(30) days of the Recipient's receipt of an invoice from the Service Provider or
Third Party Provider. All overdue payments will be subject to interest at a rate
of 9.5% per annum. All payments shall be applied first to interest and then to
principal.
2.2 Detailed Description of Certain Services to Be Provided. (a) With
respect to Services to be provided hereunder, the Parties hereby undertake to
each other to use all reasonable efforts in good faith to agree, by no later
than September 30, 2001 (the "Start Date"), a detailed description of each
Service by territory, function and price, including without limitation detail as
to (i) the Service to be provided, (ii) the charging methodology used to
calculate the price payable for it and (iii) the extent and frequency which
individual prices can be adjusted by the Service Provider throughout this
Agreement. Each Party shall, and shall procure the appropriate member of their
personnel to, devote all resources reasonably necessary to achieve this
objective. In the event that the Parties shall not have agreed to a detailed
description with respect to any such Service by September 30, 2001, then a group
comprised of the Chief Executive Officer of Instinet, the Chief Financial
Officer of Instinet, the Finance Director of Reuters and the Chief Executive
Officer of Reuters America Inc. (the "Senior Executive Group") shall undertake
to meet (by telephonic meeting or otherwise) and use all reasonable efforts in
good faith to agree by October 15, 2001 on any remaining issues with respect to
the detailed description of such Service. If the Senior Executive Group shall
not have agreed to a detailed
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description for any such Service by October 15, 2001, then such Service shall
terminate effective on October 29, 2001.
(b) To the extent that any such detailed description (including, but
without limitation, price) as referred to in Section 2.2(a) is agreed for any
Service and/or any territory, it shall be deemed to form part of this Agreement
with respect to such Service or territory and shall be effective the Start Date
and the relevant schedule shall be amended accordingly.
2.3 Change or Modification of a Service. Without prejudice to the
provisions of Section 2.2, if either Party makes a request to change or modify a
Service or to provide an additional service:
(a) the Parties shall meet promptly to discuss the proposed change
or additional service;
(b) each Party shall cooperate in good faith with all reasonable
requests of the other in connection with the evaluation and implementation of
such proposed change; and
(c) each Party shall use its reasonable efforts to agree and
implement the change or such additional service requested, as the case may be,
but shall not be required to do so without consenting in writing to it and
agreeing to the terms.
2.4 Audit Rights. Each Party in its capacity as a Service Provider shall
maintain books and records adequate for the Recipient to verify the costs
incurred with respect to each Service. The Service Provider shall retain such
books and records for at least one (1) year following the date on which this
Agreement is terminated. Each Party in its capacity as a Recipient shall have
the right, at reasonable times and on reasonable notice, but no more frequently
than twice a year, to audit such books and records of the Service Provider
insofar as they relate to the performance of the Services to ensure compliance
with this Agreement. Such audits shall be performed by an independent accounting
firm designated by the Recipient at Recipient's sole cost and expense. The
Service Provider shall, at its expense, reasonably cooperate with the auditing
party's representative to accomplish the audit as expeditiously as possible.
ARTICLE III
TERM AND TERMINATION
3.1 Term. Except as otherwise provided in this Article 3, in a schedule
hereto (with respect to a particular Service) or as otherwise agreed in writing
by the Parties, this Agreement shall have a term of eighteen months from the
date first written above. Notwithstanding the foregoing, this Agreement will
expire if the Parties have elected to stop, and to cause all other Recipients to
stop, receiving all of the Services in accordance with Section 1.5 above or this
Agreement is otherwise terminated in accordance with the provisions hereof. In
no event shall the termination of this Agreement pursuant to Section 1.5 above
or the expiration of this Agreement pursuant to this Section 3.1 affect (i) the
liability of a Party for breach of this Agreement, (ii) the obligations of the
Parties to have made, or to cause their respective
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subsidiaries to have made, payments when due hereunder or (iii) the provisions
contained in Section 2.1, Article IV, Sections 5.2 and Article VI, each of which
shall survive the termination or expiration of this Agreement.
3.2 Termination. (a) Instinet may terminate any Services or this Agreement
for any reason in Instinet's sole discretion at such time as Reuters Group PLC
("PLC") undergoes a Change of Control. For purposes of this section, "Change of
Control" means, with respect to PLC, either (i) the sale or transfer of all or
substantially all of PLC's assets to any Person or group (as defined under
Section 13(d)(3) of the United States Securities Exchange Act of 1934) of
Persons (other than an affiliate of PLC); (ii) the acquisition of PLC by another
Person by means of any transaction or series of related transactions (including,
without limitation, any reorganization, merger or consolidation, whether of PLC
with or into any other Person or Persons or of any other Person or Persons with
or into PLC, but excluding (x) any merger effected exclusively for the purpose
of changing the domicile of PLC or (y) any consolidation or merger following
which holders of equity securities outstanding immediately prior to such merger
or consolidation hold more than 50% of the equity securities of the entity
surviving such consolidation or merger or an entity controlling such surviving
entity after such consolidation or merger); (iii) a transaction or series of
transactions in which a Person or group of Persons acquires beneficial ownership
(as determined in accordance with Rule 13d-3 of the United States Securities
Exchange Act of 1934) of more than 50% of the voting power of PLC.
(b) Either party may terminate any Services or this Agreement for
any reason in its sole discretion at such time as Reuters shall cease to own
(directly or indirectly) more than fifty (50%) percent of the outstanding common
stock of Instinet and at any time thereafter by giving the non-terminating Party
the greater of (i) such period of notice as required by applicable law and (ii)
either (y) one hundred twenty (120) days prior written notice in the case of
schedules 1, 3, 5, 8 and 9 hereto or (z) sixty (60) days prior written notice in
the case of schedules 2, 4, 6 and 7 hereto.
(c) Either Party may terminate this Agreement by written notice to
the other Party if the other Party commits a material breach of any of the terms
or conditions of this Agreement and, if such breach may be cured, the breaching
party fails to remedy the breach within thirty (30) days of receiving such
notice.
(d) Upon termination or expiration of this Agreement, the Recipient
shall pay to the Service Provider all monies due to the Service Provider in
respect of Services provided prior to such termination or expiration.
ARTICLE IV
CONFIDENTIALITY
4.1 Definition of Confidential Information. For purposes of this
Agreement, "Confidential Information" of a Party means any information and
materials disclosed by such Party to the other Party during the Term in
connection with this Agreement, whether orally or in writing and whether or not
marked "Confidential" or "Proprietary", and includes any information developed
by reference to or use of any of such information and materials.
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4.2 Treatment of Confidential Information. (a) A Party receiving
Confidential Information shall treat as confidential all of the Confidential
Information it receives, and shall not use such Confidential Information except
as expressly permitted under this Agreement. Without limiting the foregoing, the
Party receiving Confidential Information shall use at least the same degree of
care that it uses to prevent the disclosure of its own confidential information
of like importance, but in no event less than reasonable care, to prevent the
disclosure of the Confidential Information it receives. Subject to the
foregoing, and except as may be specifically agreed from time to time by the
Parties, each Party shall not: (1) communicate or disclose, directly or
indirectly, any of the Confidential Information (or any part thereof) of the
other Party to any person other than to Third Party Providers, or to its own
personnel, agents or representatives who have a need for such information in
connection with performance under this Agreement and who have agreed in writing
to confidentiality obligations substantially similar to those set forth in this
Article IV; (2) use any Confidential Information (or any part thereof) in any
manner except as contemplated under this Agreement; or (3) take any other action
with respect to the Confidential Information (or any part thereof) of the other
Party inconsistent with the confidential and proprietary nature of such
information.
(b) Neither Party shall make or use more copies of any Confidential
Information than it shall reasonably deem necessary in connection with its
permitted use thereof. Each Party shall retain on its premises Confidential
Information of the other Party and shall not move any tangible embodiment of
such Confidential Information from its premises without express written consent
of the Party which disclosed the Confidential Information or as expressly
permitted hereunder. The Parties agree that any use that is made of Confidential
Information in the course of performance of, and to the extent permitted by, the
provisions of this Agreement (including by a Third Party Provider) shall not, in
and of itself, constitute a violation of the provisions of this Article IV.
Disclosure of any Confidential Information by either Party, however, shall not
be deemed to represent an assignment or grant of any right, title or interest in
such Confidential Information.
4.3 Exclusions. (a) Confidential Information shall exclude information
that: (i) was independently developed or conceived by the Party receiving
Confidential Information without use of or reference to Confidential Information
provided by the other Party, as demonstrated by the written records of the Party
receiving Confidential Information; (ii) became known to the Party receiving
Confidential Information, without restriction, from a third party who had a
right to disclose it without violation of any obligation of confidentiality;
(iii) was in the public domain at the time it was disclosed or enters the public
domain through no act or omission of the Party receiving Confidential
Information or of its affiliates; or (iv) was known to the Party receiving
Confidential Information at the time of disclosure as demonstrated by the
written records of the Party receiving Confidential Information.
(b) The restrictions set forth in Section 4.2 shall not apply to
Confidential Information that is required to be disclosed by the Party receiving
Confidential Information pursuant to an order or requirement of a stock
exchange, court, administrative agency, or other governmental body; provided,
however, that the Party receiving Confidential Information shall provide prompt
prior notice thereof to the other Party describing in reasonable detail all
Confidential Information to be so disclosed, and shall use reasonable efforts
and cooperate with
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the other Party at the other Party's expense to obtain a protective order or
otherwise prevent disclosure of such Confidential Information.
4.4 Confidentiality of Agreement. Each Party agrees that the terms and
conditions of this Agreement, but not the existence of this Agreement, shall be
treated as Confidential Information and that no reference to the terms and
conditions of this Agreement or to activities pertaining thereto shall be made
in any form of public or commercial advertising without the prior written
consent of the other Party; provided, however, that each Party may disclose the
terms and conditions of this Agreement: (i) as required by any court or other
governmental body; (ii) as otherwise required by law; (iii) to legal counsel of
the Parties; (iv) in connection with the requirements of any governmental or
securities exchange filing or a public offering; or (v) in confidence, to
accountants, banks and financing sources and their advisors and provided,
further, that either Party may disclose the terms and conditions of this
Agreement in confidence, to any prospective buyers of all or substantially all
of the assets, stock or business of, or prospective investors in, Instinet.
4.5 Remedies. Unauthorized use of Confidential Information will result in
irreparable harm to the Party which disclosed such Confidential Information.
Therefore, if a Party breaches any of its obligations with respect to
confidentiality and use of Confidential Information hereunder, the Party which
disclosed such Confidential Information, in addition to any rights and remedies
it may have, shall be entitled to seek equitable, including injunctive, relief
to protect its Confidential Information.
4.6 Return of Confidential Information. Upon termination of this Agreement
for any reason, each Party promptly shall return to the other Party all
Confidential Information of the other Party, including all copies thereof, under
its possession or control, or destroy or purge its own system and files of any
such Confidential Information and deliver to the other Party a written
certificate signed by an officer of such Party that such destruction and purging
have been carried out.
4.7 Legends. Each Party agrees that it will not remove, alter, deface or
obscure, any statutory copyright notice or other identification or evidence of
confidentiality contained on or included in any of the Confidential Information.
Each Party shall reproduce any such notice or identification on any reproduction
or modification of any of the Confidential Information.
4.8 Cooperation. Each Party agrees that, either upon learning of, or upon
a showing by the other Party of, any threatened or actual breach of the
provisions of this Article IV or of any threatened or actual unauthorized use or
disclosure of the Confidential Information by its officers, directors,
employees, agents or subcontractors, or in the event of any loss of, or
inability to account for, any of the Confidential Information or any such
information or materials, the Party learning of the threatened or actual breach
or the unauthorized use or disclosure shall notify the other Party thereof and
shall cooperate as reasonably requested by the other Party in conjunction with
the other Party's efforts to seek appropriate injunctive relief or otherwise to
prevent or curtail such threatened or actual breach or unauthorized use or
disclosure or to recover such Confidential Information.
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ARTICLE V
ADDITIONAL AGREEMENTS
5.1 Technology and Systems Architecture. (a) Instinet shall pursue
technology plans and systems architecture as it deems necessary or appropriate
in its sole discretion; provided, however, if commercially reasonable in light
of then existing circumstances and doing so would result in no material
additional cost or delay to Instinet, in each case as determined by Instinet in
its sole discretion, Instinet shall (i) use hardware and software suppliers
common to those used by Reuters; (ii) pursue open Application Program Interfaces
in order to facilitate possible connectivity with Reuters; and (iii) participate
in the Reuters Extensible Markup Language plan.
(b) To the extent necessary to implement any mutually agreed
architecture strategy, Instinet shall also share with Reuters documents relating
to Instinet's systems architecture strategy subject to the confidentiality
provisions set forth in this Agreement.
(c) Notwithstanding the foregoing, any of the foregoing obligations
assumed by Instinet in connection with technology plans and systems architecture
shall cease to be binding on Instinet on the first occasion on which Reuters
shall cease to own (directly or indirectly) more than fifty (50%) percent of the
outstanding common stock of Instinet.
5.2 Branding. (a) Instinet may discontinue for any reason in its sole
discretion the use of Reuters trademarks, service marks, logos and other
distinctive brand features of Reuters (the "Reuters Marks") on Instinet
proprietary materials which do not include any Reuters proprietary materials or
content.
(b) Instinet shall discontinue use of the Reuters Marks on any
materials specified by Reuters by written notice of not less than thirty (30)
days; provided, however, Instinet shall have a reasonable period, as determined
in Reuters sole discretion, and in any event no less than four (4) months, after
the receipt of such notice to use existing supplies and materials containing
Reuters Marks.
(c) The foregoing provisions in relation to the Reuters Marks are
subject to the Data Distribution Agreement between Reuters and Instinet, dated
May 17, 2001 (the "Data Distribution Agreement"). To the extent the foregoing
provisions are inconsistent with the Data Distribution Agreement, the terms of
the Data Distribution Agreement shall govern unless otherwise agreed to in
writing by the Parties.
(d) Instinet shall have the right to review and approve, prior to
such use, the use by Reuters in any Reuters materials of (i) any Instinet
trademarks, service marks, logos and other distinctive brand features of
Instinet (the "Instinet Marks") and (ii) any mention or description of Instinet.
Reuters shall have the right to review and approve, prior to such use, the use
by Instinet in any Instinet materials of any Reuters Marks and any mention or
description of Reuters. Neither Party's approval shall be unreasonably withheld.
5.3 Click-Through. Instinet shall place on the www.instinet.com home or
front page a Click-Through to the www.reuters.com website (or any successor
website), and Reuters shall
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place on the www.reuters.com home or front page a Click-Through to the
www.instinet.com website (or any successor website). Either Party may remove the
respective Click-Through from its home or front page at such time as Reuters
shall cease to own (directly or indirectly) more than fifty (50%) percent of the
outstanding common stock of Instinet. For purposes of this section,
"Click-Through" means a visible graphic or textual indication located on a
website which, when selected by a user's browser, directs the user's internet
browser connection to either the www.reuters.com website or the www.instinet.com
website, respectively.
ARTICLE VI
MISCELLANEOUS
6.1 Relationship of the Parties. Nothing contained in this Agreement, as
such, shall be construed as creating any agency, partnership, or other form of
joint enterprise between Instinet and Reuters. The relationship between Instinet
and Reuters shall at all times be that of independent contractors with respect
to the matters contemplated by this Agreement. Neither Instinet nor Reuters
shall have authority to contract for or bind the other in any manner whatsoever.
This Agreement confers no rights upon a Party except those expressly granted
herein.
6.2 Assignability, Enurement, etc. Except as expressly provided herein, no
Party to this Agreement shall have the right to assign or otherwise transfer its
rights or obligations under this Agreement, except with the prior written
consent of the other Party hereto, and any attempted assignment, transfer or
delegation without such prior written consent shall be voidable at the sole
option of such other Party. Notwithstanding the foregoing, Reuters may assign
this Agreement to any affiliate of Reuters. This Agreement shall be binding upon
and enure to the benefit of the Parties and their respective subsidiaries, all
of which shall be considered to be Parties to this Agreement and their
respective successors and permitted assigns.
6.3 Governing Law. This Agreement will be governed by and construed in
accordance with the substantive laws of the State of New York regardless of the
laws that might govern under applicable principles of conflicts of law thereof.
6.4 Headings. The Section and Article headings and captions of this
Agreement are included merely for convenience of reference. They are not to be
considered part of, or to be used in interpreting, this Agreement and in no way
limit or affect any of the contents of this Agreement or its provisions.
6.5 Notices. Any notice or other communication hereunder will, unless
otherwise expressly provided, be sufficiently given if in writing and delivered
(whether by facsimile transmission or otherwise):
(a) in the case of a notice to Instinet, addressed as follows:
Instinet Group Incorporated
Three Times Square
New York, New York 10036
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Attn: Paul Merolla, Senior Vice President and General
Counsel
Fax: 646-223-9017
(b) in the case of a notice to Reuters, addressed as follows:
Reuters Limited
85 Fleet Street
London, EC4P 4AJ
Attn: General Counsel
Fax: 011-44171-324-5406
With a copy to:
Reuters America Inc.
Three Times Square
New York, New York 10036
Attn: General Counsel
Fax: 646-223-4237
or, in each case, at such other address or number as the entity to which such
notice is to be given shall have last notified the entity giving the same in the
manner provided in this Section 6.5. Any such notice will be deemed to have been
given and received on the day it is received.
6.6 Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
6.7 Dispute Resolution. Any dispute, controversy or claim relating to this
Agreement shall initially be referred to the executive management of the Parties
who shall attempt to resolve such dispute in good faith. If the executive
management of each of the Parties are unable to resolve a dispute, controversy
or claim which has been referred to them within a period of sixty (60) days from
their receiving notice of the dispute, then either Party may submit such dispute
to a court for resolution. The Parties agree that any claim arising out of this
Agreement shall be brought in, and the Parties consent to personal and exclusive
jurisdiction of a venue in, the State and federal courts located within New York
City, New York.
6.8 Waiver or Delay. Any waiver of any kind or character by a Party of a
breach of this Agreement must be in writing, shall be effective only to the
extent set forth in such writing, and shall not operate or be construed as a
waiver of any subsequent breach of the other Party. No failure of a Party to
insist upon strict compliance by the other with any obligation or provision
hereunder, and no custom or practice of the Parties at variance with the terms
hereof, shall constitute a waiver of such Party's right to demand exact
compliance with the terms of this Agreement, nor shall a Party's delay or
omission in exercising any right, power or remedy upon a breach or default by
the other Party impair any such right, power or remedy. The exercise of any
right or remedy provided by this Agreement shall be without prejudice to the
right to exercise any other right or remedy provided by law or equity.
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6.9 Entire Agreement. This Agreement is the complete, entire, final and
exclusive statement of the terms and conditions of the agreement between the
Parties. This Agreement supersedes, and the terms of this Agreement govern, any
prior agreements, term sheets or letters of intent between the Parties with
respect to the subject matter hereof. This Agreement, including this Section
6.9, may not be modified except in a writing executed by duly authorized
representatives of the Parties.
6.10 Trademark. Except as otherwise provided herein, nothing in this
Agreement grants any Party any right to use any other Party's trademarks or
trade names in connection with any product, service, promotion or publication
without the prior written approval of the trademark or trade name owner.
6.11 Service Providers. Each of the Service Providers (other than the
Parties) may exercise any of the respective rights hereunder of the Party of
which such Service Provider is a subsidiary or perform any of such Party's
agreements, covenants and obligations hereunder; provided that such Party fully
and unconditionally guarantees the due and punctual performance and observance
of each and every such agreement, covenant and obligation, irrespective of any
circumstance, including any statute of limitations, that might otherwise
constitute a defense available to, or a discharge of, any such agreement,
covenant or obligation.
6.12 Severability. The provisions of this Agreement are severable and if
any one or more such provisions shall be determined to be invalid, illegal or
unenforceable, in whole or in part, the validity, legality and enforceability of
any of the remaining provisions or portions thereof shall not in any way be
affected or impaired thereby and shall nevertheless be binding between the
Parties hereto as long as the remaining provisions do not fundamentally alter
the relations among the Parties.
6.13 Sales Tax. The Parties shall reasonably cooperate with one another in
order to minimize sales and use taxes applicable to each of them as a result of
the transactions contemplated hereby, provided that neither Party shall be
required to act in a manner that is disadvantageous to itself.
6.14 Force Majeure. If by reason of labor disputes, strikes, lockouts,
riots, war, inability to obtain labor or materials, earthquake, fire or other
action of the elements, accidents, governmental restrictions, appropriation or
other cause beyond the reasonable control of a Party hereto, either Party is
unable to perform in whole or in part its obligations as set forth in this
Agreement, then such Party shall be relieved of those obligations to the extent
it is so unable to perform and such inability to perform shall not make such
Party liable to the other Party. Neither Party shall be liable for any loss,
injury, delay or damages suffered or incurred by the other Party due to the
above causes.
6.15 Survival. The obligations and agreements of the Parties in this
Agreement shall terminate upon termination of this Agreement pursuant to Section
3.2, except that any continuing obligations and agreements set forth in Article
IV shall survive termination of this Agreement for a period of three (3) years
from the date hereof.
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IN WITNESS WHEREOF, this Services Agreement has been duly executed on the
day and year first above written.
REUTERS LIMITED
By: /s/ David Grigson
_____________________________
Name: David Grigson
Title:
INSTINET GROUP INCORPORATED
By: /s/ Paul A. Merolla
_____________________________
Name: Paul A. Merolla
Title:
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