COMSTOCK SERVICE MARKETING
REPRESENTATIVE AGREEMENT
AGREEMENT, made as of January 29, 1998 ("Effective Date"), by and
between S&P ComStock, Inc. ("SPC"), a New York corporation with offices at 600
Mamaroneck Avenue, Harrison, New York 10528, and A.B. Watley, Inc.
(Representative"), having an office at 33 W. 17th St. New York, N.Y. 10011-5511
WHEREAS, SPC desires to grant a license to Representative to market
SPC's proprietary ComStock on the Net Internet Service to subscribers to such
Service which are located in the United States and Canada.
WHEREAS, Representative desires to obtain such license on the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, the parties mutually agree as follows:
1. Definitions.
In this Agreement, the following terms shall have the meanings set
forth herein:
(a) "SPC Datafeed": SPC's proprietary real-time broadcast data feed of
commodities, futures, options, securities and other financial information, in
the SPC format, and described in Schedule 2, attached hereto and incorporated
herein.
(b) "ComStock Service": The SPC Datafeed distributed through the Internet,
distributed as a package service under the name "S&P ComStock".
(c) "Sources": All exchanges and other third party sources of
information included in the SPC Datafeed.
(d) "The Territory": The United States, Canada and International users.
(e) "Subscribers": End-users of the ComStock Service located in the
Territory who have executed SPC's Subscription Agreement.
2. Marketing License.
(a) Subject to the terms and conditions of this Agreement,
Representative is hereby granted for the term of this Agreement a nonexclusive,
nontransferable right and license to market ComStock on the Net solely to
offices of Subscribers, provided that such offices are located in the Territory.
Representative agrees and understands that it is not permitted to market, sell,
or support the ComStock Service or any component thereof to any third party
which is not a Subscriber as defined herein nor is it permitted to market, sell,
or support the ComStock Service or any component thereof to any Subscriber's
offices which are located outside the Territory without the express prior
written permission of SPC. Representative agrees and understands that it is not
permitted to market, sell or support the ComStock Service to any SPC customer.
Representative further agrees and understands that it is not permitted to
sublicense, transfer, or assign its rights hereunder.
(b) Prior to the receipt of access to the S&P ComStock Service by each
Subscriber, Representative shall obtain from each such Subscriber an executed
copy of the Subscription Agreement for a minimum subscription term of one (1)
month, and shall promptly forward the same to SPC for acceptance by SPC together
with any applicable Source agreements executed by Subscribers; it is understood
by Representative that no access to the ComStock Service shall be provided to a
Subscriber until Representative is notified in writing by SPC that such
acceptance has been granted and that all necessary Source permissions for such
Subscriber have been obtained. The granting of any and all entitlements to
components of the SPC Datafeed to each and every Subscriber are at the sole
discretion of SPC and its Sources. Representative agrees and understands that it
is not authorized to make any material alterations or amendments to the
Subscription Agreement without the express prior written consent of SPC. SPC
shall provide Representative with an adequate supply of copies of its
then-current Subscription Agreement; Representative shall promptly destroy any
unused copies of versions of the Subscription Agreement which are subsequently
superseded.
(c) Representative understands that the equipment which is comprised of
the dedicated phone line, network connection, and any other equipment needed for
said service shall be installed at Representatives site and such equipment and
service management and support shall be performed by A.B. Watley
(d) Representative shall notify SPC of any action by any Subscriber
which comes to its attention which is a material breach of any of the provisions
of the license from Representative or the Subscription Agreement. Representative
shall honor all reasonable requests by SPC to protect SPC's rights in the
ComStock Service in the event of a breach of any of such provisions which
threatens such rights. Representative shall not institute legal proceedings
against any Subscriber relating to SPC's proprietary rights in the ComStock
Service without the prior written permission of SPC, such permission not to be
reasonably denied.
(e) Representative shall be responsible at its own expense for all
billings to and collections from Subscribers, in accordance with the terms and
conditions of the applicable licenses and such reasonable instructions as it may
receive from SPC from time to time. At Representative's expense, SPC shall honor
all reasonable requests by Representative to protect Representative's rights
vis-a-vis subscribers in the event of a breach of any provision of a
subscriber's contract with the Representative, such obligation shall be limited
to Representative's services at the subscribers location.
3. Permissions from Sources.
(a) Representative shall obtain, or require its Subscribers to obtain
any necessary permissions and licenses and shall have executed in advance any
and all necessary documents, which may be required of Representative or its
Subscribers by the various Sources with respect to the Representative's
marketing of the ComStock Service; SPC shall advise Representative in this
regard, upon request. Representative shall obtain from Subscribers and forward
to SPC executed copies of all necessary Source agreements/permissions as may be
required; it shall be the responsibility of SPC to determine what Source
agreements/permissions are necessary in each case. SPC may discontinue provision
of the SPC Datafeed (or portions thereof) hereunder, without notice, whenever
the terms of SPC's agreements with the Sources require such discontinuance. If
in its reasonable judgment SPC finds a breach by Representative or its
Subscribers of any of the provisions of this Agreement, then SPC may discontinue
provisions of the SPC Datafeed (or portions thereof) hereunder, provided
Representative entitled to a ten (10) business day cure period prior to any
termination by SPC pursuant to foregoing.
(b) It shall be the sole obligation of Representative to determine the
requirements for and to obtain any necessary permissions and licenses, and to
execute any necessary documents which may be required of Representative or its
Subscribers by the various Sources with respect to Representative's Software.
4. Indemnifications and Representations.
(a) Representative agrees to indemnify and hold SPC and its affiliates
harmless from and against any and all losses, damages, liabilities, costs,
charges and expenses, including reasonable attorneys' fees, arising out of: any
failure on the part of Representative with respect to any obligations to obtain
prior approvals from appropriate Sources and to comply with any applicable
conditions, restrictions or limitations imposed by such Sources.
(b) SPC represents and warrants that it has the rights and licenses
necessary to transmit the SPC Datafeed to Representative and its Subscribers as
provided hereunder, subject to paragraph 5(c) below, and that the license
granted to Representative hereunder does not infringe any proprietary right of
any third party. Each party shall indemnify and hold harmless the other party
with respect to any and all losses, damages, liabilities, costs, charges and
expenses, including reasonable attorneys' fees, arising out of any breach of the
foregoing warranties respectively made by such party.
(c) SPC makes no representation that all portions of the SPC Datafeed
may be distributed to any given Subscriber. It shall be the responsibility of
SPC to confirm with the applicable Sources whether or not all or such portions
of the SPC Datafeed as are selected by each Subscriber pursuant to its
Subscription Agreement may in fact be provided to such Subscriber.
5. Transmission of ComStock Service to Subscribers.
(a) During the term of the Agreement SPC shall distribute the SPC
Datafeed to Subscribers via the Internet, such Data Delivery Equipment to be
installed at A.B. Watley. S&P ComStock shall not be responsible for any Data
Delivery Equipment failures that may occur while in the direct control of A B.
Watley.
(b) Representative shall assist SPC in obtaining any permissions,
licenses, or approvals required in connection with deliveries of the SPC
Datafeed by SPC to Subscribers directly or via third party delivery systems.
(c) A bona fide order must include a fully executed Subscription
Agreement, an advance payment as described herein at paragraph 6(c), and a
completed order form substantially similar to Exhibit A.
(d) Representative shall inform SPC in writing of any changes requested
by Subscribers regarding access to the S&P ComStock Service or access to Sources
provided through the S&P ComStock Service.
(e) Representative understands and agrees that it will take a minimum
of one (1) business day upon receipt of an Executed Subscriber Agreement and/or
notice of a change in service for installing a Subscriber and/or making changes
to Subscriber or Representative service, as long as signed Source agreements
have been received by SPC.
6. Payments.
In consideration for the license granted to Representative by SPC under
this Agreement, Representative shall make the following payments to SPC:
(a) Representative shall pay to SPC a monthly service charge, payable
on the l5th day of the service month, for a minimum of one (1) month for each
subscriber (client service representatives (Watley) not included), for access to
the ComStock Service as set forth in Exhibit A. The fees set forth at Exhibit A
are exclusive of any fees or charges which may be imposed by any Sources, (if
any) which fees shall be paid by Representative or its Subscribers directly to
any Sources which request such direct payment or, alternatively, billed by SPC
to Representative as set forth at paragraph 6(c) below. It is understood and
agreed that Source fees are subject to change at any time, without notice. SPC
will make every reasonable effort to notify Representative of any such change
within 15 days following the receipt of such fee change notice by SPC.
Representative shall be responsible for the collection and payment to SPC or
directly to the Sources of any and all applicable fees charged to Subscribers by
Sources for such Subscribers' access to the SPC Datafeed. Representative shall
be responsible for payment of any Subscriber's Source fees to SPC or directly to
the Sources in the event of any default by any Subscriber, if any source fees
are applicable.
(b) Representative shall not have to pay to SPC an Advance Fee of
$1,000 for each Subscription location at which the ComStock Service is to be
installed as long as Representative submits payment on a timely basis to SPC. If
Representative becomes delinquent with payments to SPC, then SPC reserves the
right to request direct agreements with Subscribers for payment of SPC's
services. Furthermore, SPC reserves the right to institute an Advance Fee in the
event that Representative becomes delinquent to SPC. This fee shall be remitted
by Representative to SPC at the time of placing any new order, and shall be
applied as a credit against the payments otherwise owing for the installation
and first month's service at that Subscribers location as determined and set
forth at paragraph 6 (a) above.
(c) SPC shall invoice Representative on a monthly basis in advance, for
all fees owing under paragraph 6 (a), including any fees owed to any Sources
which do not bill Representative or Subscriber directly. SPC will be informed in
writing of any charges disputed by Representative within fifteen (15) days from
receipt of invoice by Representative. Both parties will make every reasonable
effort to resolve any disputes related to the invoice within twenty-five (25)
days from receipt of invoice by Representative. Invoices will be due and payable
on the 15th day of the service month noted on the invoice.
(d) Any amounts payable to SPC by Representative hereunder which are
more than thirty (30) days past due shall bear interest at the rate of 1-1/2%
per month. Any invoice submitted by SPC shall be deemed correct unless
Representative advises SPC in writing or e-mail within 30 days of receipt of
invoice that it disagrees with the invoice and specifies the nature of the
disagreement. While such invoice is under documented dispute interest shall be
suspended until such dispute is resolved. In addition, in the event invoices are
not paid within 30 days of receipt, and such payment is not received by SPC
within five (5) days of notice by SPC to Representative, not withstanding
written notice submitted by Representative disputing such invoice SPC may
discontinue ComStock Service to Representative and all Subscribers. SPC reserves
the right to impose and collect security deposits for any new orders submitted
by Representative to SPC subsequent to any such discontinuance and restoration
of ComStock Service for nonpayment as set forth herein.
(e) Representative shall be responsible for any sales, use, property,
value added, or other similar taxes imposed on any transactions hereunder,
except for taxes based upon income and taxes if the Representative furnishes an
exception certificate. Representative shall be responsible for any customs and
import duties imposed by any U.S. or foreign governmental agency on any
transactions hereunder.
7. Disclaimers; Limitation of Liability.
(a) NEITHER SPC, NOR ANY OF ITS AFFILIATES, NOR ANY SOURCES, MAKE ANY
EXPRESS OR IMPLIED WARRANTIES (INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE) WITH RESPECT TO THE
S&P COMSTOCK SERVICE OR ANY COMPONENTS THEREOF. NEITHER SPC, NOR ANY OF ITS
AFFILIATES, NOR ANY SOURCES WARRANT THAT THE S&P COMSTOCK SERVICE OR ANY OF ITS
COMPONENTS WILL BE UNINTERRUPTED OR ERROR-FREE. REPRESENTATIVE EXPRESSLY AGREES
THAT ITS USE AND ITS SUBSCRIBERS USE OF THE S&P COMSTOCK SERVICE IS AT THE SOLE
RISK OF REPRESENTATIVE AND ITS SUBSCRIBERS. SPC, ITS AFFILIATES, AND ALL SOURCES
INVOLVED IN CREATING OR PROVIDING THE S&P COMSTOCK SERVICE OR ANY OF ITS
COMPONENTS WILL IN NO WAY BE LIABLE TO REPRESENTATIVE OR ANY SUBSCRIBERS OR
OTHER THIRD PARTIES FOR ANY INACCURACIES, ERRORS OR OMISSIONS, REGARDLESS OF
CAUSE, IN THE SPC DATAFEED OR FOR ANY DEFECTS OR FAILURES IN THE TID HARDWARE OR
THE TID SOFTWARE, OR FOR ANY DAMAGES (WHETHER DIRECT OR INDIRECT, OR
CONSEQUENTIAL, PUNITIVE OR EXEMPLARY, EVEN IF SPC HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES) RESULTING THEREFROM. THE LIABILITY OF SPC AND ITS
AFFILIATES IN ANY AND ALL CATEGORIES, WHETHER ARISING FROM CONTRACT, WARRANTY,
NEGLIGENCE, OR OTHERWISE SHALL, IN THE AGGREGATE, IN NO EVENT EXCEED THE AVERAGE
MONTHLY SERVICE CHARGE (AS SET FORTH IN EXHIBIT C) WHICH IS PAID BY
REPRESENTATIVE TO SPC DURING THE TERM OF THIS AGREEMENT. REPRESENTATIVE AGREES
THAT ITS USE AND ITS SUBSCRIBERS USE OF TAL REAL TRADE ORDER ENTRY SERVICE SHALL
IN NO WAY BE AFFILIATED WITH S&P COMSTOCK AND ITS COMSTOCK ON TO NET SERVICE AND
USE OF TAL'S REAL TRADE ORDER ENTRY SERVICE IS AT THE SOLE RISK OF
REPRESENTATIVE AND ITS SUBSCRIBER.
(b) The provisions of this Section shall survive any termination of
this Agreement.
8. Term.
(a) This Agreement shall take effect upon its execution by an
authorized representative of SPC and of Representative.
(b) The initial term of this Agreement shall expire on February 1,
2000. Neither SPC nor Representative shall terminate or alter this Agreement
except as stated herein unless written notice of non-renewal is given by one
party to other not later than November l, 1999, this Agreement shall be
automatically renewed until February 1, 2001. Thereafter, unless written notice
of non-renewal is given by one party to the other not later than each one year
anniversary of November 1, 1999, this Agreement shall be automatically renewed
for a further two (2) year term. By way of example (i) if notice of non-renewal
is not received by November l, 2000, this Agreement shall be in full force and
effect through February 1, 2002 and (ii) if notice of non-renewal is not
received by November 1, 2001, this Agreement shall be in full force and effect
through February 1, 2003 and so on. Notice expressing a desire to terminate this
Agreement at the end of the then-current term will be sent by certified mail to
the address specified in this Agreement.
(c) Watley has the right to terminate contract up to 60 days after
installation if service is not satisfactory. Service pertains to accuracy of
data, delivery speed of data, and overall performance of S&P ComStock's
datafeed.
9.Termination; Right to Injunctive Relief.
(a) Either party shall have the right to terminate this Agreement for
material breach by the other party by giving thirty (30) days prior written
notice, such termination to take effect unless the breach is cured or corrected
within such notice period.
(b) If a receiver is appointed for either party's business or if either
party petitions under any bankruptcy and is adjudicated a bankrupt, declared an
insolvent, or makes an assignment for the benefit of creditors, then the other
party shall, upon thirty (30) days prior written notice, have the right to
terminate this Agreement.
(c) In addition to and notwithstanding the above, if Representative, or
any of its employees, agents or representatives, shall attempt to use or dispose
of the S&P ComStock Service or any component thereof, or any confidential
information of SPC, in a manner contrary to the terms of this Agreement, SPC
shall have the right, in addition to such other remedies as may be available to
it, to injunctive relief enjoining such acts or attempt, it being acknowledged
by Representative that legal remedies are inadequate.
10. Prevention of Performance.
Neither party shall have any liability for any default or delay
resulting from force majeure, which shall be deemed to include any circumstances
beyond its control. Such circumstances shall include, but are not limited to,
acts of the government, fires, flood, strikes, power failures or communications
line or network failures.
11. Assignment.
This Agreement may not be assigned, sublicensed or otherwise
transferred by either party, except to a wholly owned subsidiary, without the
written consent of the other party, such consent not to be unreasonably
withheld, provided, however, that no such consent shall be required with respect
to any assignment by SPC to its parent company, or to any SPC affiliates.
12. General.
(a) This Agreement and its Exhibits embodies the entire agreement
between the parties hereto. There are no promises, representations, conditions
or terms other than those herein contained. No modification, change or
alteration of this Agreement shall be effective unless in writing and signed by
the parties hereto.
(b) The failure of either party to exercise any of its rights under
this Agreement for a breach hereof shall not be deemed to be a waiver of such
rights nor shall the same be deemed to be a waiver of any subsequent breach.
(c) All notices under this Agreement shall be given in writing to the
parties as follows:
To: S&P ComStock, Inc.
600 Mamaroneck Avenue
Harrison, NY 10528
Attn: Paul Zinone
Vice President
To: A B. Watley, Inc.
33 W. 17th St
New York, N.Y. 10011-5511
Attn.: Robert Malin
President
(d) This Agreement shall be governed by the laws of the State of New
York and shall be subject to the jurisdiction of the courts of that State.
IN WITNESS WHEREOF, Representative and SPC have caused this Agreement
to be executed by their duly authorized respective officers, as of the day and
year above written.
S&P COMSTOCK, INC. REPRESENTATIVE
By: /s/ Paul Zinzonc By: /s/ Robert Malin
Title: V.P. of Sales Title: President
Date: 2/19/98 Date: 1/28/98
SCHEDULES AND EXHIBITS
Schedule 1: S&P ComStock Subscriber Agreement
Schedule 2: Information Definition
Exhibit A: Monthly Service Charge
SCHEDULE I
SCHEDULE 2
Exhibit B. Addendums
DATA COVERAGE
NORTH AMERICA
Equity Exchanges -
Alberta Stock Exchange
American Stock Exchange (AMEX)
Canadian OTC Automated Trading System
(COATS)
Montreal Stock Exchange
NASDAQ
(NMS, OTC Bulletin Board, Mutual Funds, Money Markets, Level II*)
New York Stock Exchange (NYSE)
(Boston, Philadelphia, Cincinnati, Instinet, Midwest, NASD, NYSE
Toronto Stock Exchange
Vancouver Stock Exchange
Future Exchanges -
Chicago Board of Trade (CBT)
Chicago Mercantile Exchange (CME)
Commodities Exchange Center (CEC)
Kansas City Board of Trade
Mid-America Commodity Exchange
Minneapolis Grain Exchange
New York Mercantile Exchange (NYMEX)
New York Commodity Exchange (COMEX)
Winnipeg Commodity Exchange
Option Exchanges -
Option Price Reporting authority
(Equities & Indices: AMEX, CBOE
NYSE, Pacific, Philadelphia, Foreign Currency: Philadelphia)
INTERNATIONAL
Equity Exchanges -
Amsterdam Stock Exchange
Basle Stock Exchange
Berlin Stock Exchange
Bremen Stock Exchange
Dusseldorf Stock Exchange
Frankfurt Stock Exchange
Hamburg Stock Exchange
Hanover Stock Exchange
Geneva Stock Exchange
London Stock Exchange
Milan Stock Exchange
Munich Stock Exchange
Paris Stock Exchange
SEAQ International
Stutgart Stock Exchange
Zurich Stock Exchange
Future Exchanges -
Amsterdam Futures Association
Hong Kong Futures
International Petroleum Exchange (IPE)
London Commodities Exchange (LCE)
London Int'l Financial Futures Exchange & London Traded Options
(LIFFE)(LTO)
London Metals Exchange (LME)
Mase Westpac Ltd.
MATIF
Rudolf Wolff
Singapore Int'l Monetary Exchange (SIMEX)
Swiss Options & Financial Futures (SOFFEX)
Sydney Futures Exchange
Zurich Futures Exchange
Option Exchanges
Deutsche Terminborse
(DTB)
News Sources
Equity Analysis -
S&P MarketScope
S&P MarketScope Europe
S&P Fundamental Data
S&P Index Alert
Fixed Income
Bear Stearns/Street Software
Equity News -
Dow Jones Broadtape
S&P MarketScope Alert
Energy Analysis -
Platt's Global Alert
Future News -
Futures World News
Foreign Currency -
S&P ComStock FOREX
MMS Currency
EXHIBIT A
MONTHLY FEES:
MONTHLY FEES:
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[*]
ONE-TIME FEES:
Installation $ 0
Dial Backup Installation $ 0
Shipping $ 0
Equipment Deposit $ 0
[*]
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*Confidential treatment requested.
EXHIBIT B
Addendum
Revenue Sharing
For each client transferred or referred from ComStock on the Net, A.B. Watley
agrees to pay ComStock an additional fee of $.25 per trade executed by the
transferred/referred client ("transfer fee").
Mutual Marketing Agreement
S&P ComStock agrees to the following marketing commitments with A.B. Watley
(Internet Financial Services).
1. Reciprocal site Links and Registration Pages- Watley will provide
ComStock with a link (upon S&P ComStock web site completion) to
registration page that ComStock constructs in order to most
accurately track individuals interested in ComStock's service.
Watley will prominently display the ComStock link on A.B. Watley's
site. In reciprocity, ComStock will provide Watley with a prominent
position on their site (upon S&P ComStock web site completion), such
position to be decided by S&P ComStock, also featuring a process, if
possible, by which potential clients may receive information on
Watley and our products.
2. Contacting existing clients- Watley will provide brochures and
information packets outlining products and services. Brochures and
other collateral material should reflect the current co-branding
relationship and highlight the benefits. This information will be
included in a direct mail piece to be sent to S&P ComStock's
ComStock on the Net clients.
3. Joint Participation in Trade Shows- Watley will have the
opportunity to display with ComStock at (2) two trade shows. The
shows will be determined by Watley but advance notice is required
for any given show. S&P ComStock's responsibility at such shows is
to provide its brand name, representation and marketing literature.
4. Marketing Collateral- Watley will create a one page fact sheet
describing their services to be included in our outgoing materials.