Exhibit 10.8(a)
MASTER AGREEMENT
FOR
ELECTRONIC DISTRIBUTION SERVICES
Dated as of: November 13, 1998
Between
MULTEX SYSTEMS, INC.
And
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
SCHEDULES
A. Merrill Lynch Online/Multex Service Request (1997)
B. Contribution and Distribution of Research
C. Multex Publisher for Internal Electronic Distribution Services
D. Merrill Lynch OnLine Trial Program Addendum
ATTACHMENTS
A. Form of Service Request
B. Multex or Merrill Lynch Provided Equipment
C. Third Party Software/License Requirements for End Users
D. Multex Subscriber Agreement
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MASTER AGREEMENT FOR
ELECTRONIC RESEARCH DISTRIBUTION SERVICES
THIS MASTER AGREEMENT FOR ELECTRONIC RESEARCH DISTRIBUTION SERVICES
("Agreement") is made and entered into as of the 13th day of November, 1998. by
and between MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, a Delaware
corporation with offices at Merrill Lynch World Headquarters, North Tower, World
Financial Center, 250 Vesey Street. New York, N.Y. 10281 (herein referred to as
"Merrill Lynch" or "Licensee"), and MULTEX SYSTEMS, INC. a Delaware corporation
with offices at 33 Maiden Lane, 5th Floor, New York, N.Y. 10038 (herein referred
to as "Multex"). Multex and Merrill Lynch shall be referred to herein as the
"Parties".
RECITALS
WHEREAS, Merrill Lynch and/or its subsidiaries and affiliates, create, produce
and develop various global research data and other financial information about
companies, industries and markets as further described in the Schedules and
Service Requests hereto.
WHEREAS, Multex has developed certain proprietary software, which electronically
receives and distributes various research data, including but not limited to
global equity, fixed income and economic market data, morning meeting notes,
earnings estimates, recommendations, full-text research reports and other
financial information and electronic documents.
WHEREAS. Multex and Merrill Lynch entered into an Agreement for Electronic
Distribution Services dated as of July 1, 1994, pursuant to which Multex agreed
to distribute certain Merrill Lynch proprietary research documents to approved
Merrill Lynch clients (the "1994 Agreement").
WHEREAS, Multex and Merrill Lynch entered into a Master Agreement for Internal
Electronic Distribution Services dated as of April 1, 1996 pursuant to which
Multex agreed to distribute Merrill Lynch research within Merrill Lynch in
accordance with the terms of that Master Agreement and additional Service
Requests to be entered into by the parties (the "1996 Master Agreement").
WHEREAS, Multex and Merrill Lynch executed a Merrill Lynch Online/Multex Service
Request dated as of February 28. 1997 for electronic distribution of Merrill
Lynch research via the Merrill Lynch system known as Merrill Lynch Online (the
"1997 Service Request") The 1994 Agreement, the 1996 Master Agreement and the
1997 Service Request are sometimes hereinafter referred to as the "Existing
Agreements".
WHEREAS, the parties desire to consolidate the terms and conditions relating to
the services provided pursuant to the Existing Agreements and for Multex to
provide to Merrill Lynch certain additional services, all as more fully
described in this Master
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Services Agreement and the Schedules and Attachments hereto.
NOW THEREFORE, in consideration of the foregoing, and other good and valuable
consideration, the parties agree as follows:
1. Definitions. As used in this Agreement and the Schedules and Attachments
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hereto, the following terms shall have the meanings set forth below:
(a) Approved Data Provider shall mean Data Providers as defined below
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authorized by Merrill Lynch
(b) Data Providers shall mean third party research providers who are in the
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business of producin9 or procuring research reports, market data and other
financial documents for sale or resale to the financial and corporate
markets, excluding clients of Merrill Lynch.
(c) Equipment shall mean the hardware and software (e.g., workstations,
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servers, operating software) required in order for Merrill Lynch to access
the Services, as more fully described in this Agreement and the Exhibits.
(d) External Users shall mean persons or entities other than employees of
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Merrill Lynch to whom the Research is provided by means of the Services
provided under this Agreement and are approved by Merrill Lynch.
(e) Internal Users shall mean the investment professionals and other
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employees of Merrill Lynch to whom the Research is provided by means of the
Services provided under this Agreement.
(f) Multex Software shall mean any of Multex's proprietary software which
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is provided to Merrill Lynch hereunder and which is used to receive and
distribute Research and otherwise to provide the Services hereunder. The
Multex Software includes, but is not limited to (i) Multex Publisher,
MultexNet, MuItexEXPRESS, Multex Research on Demand and Multex Investor
Network and (ii) certain software licensed from third parties (the "Third
Party Software"), as described on Attachment C. The Multex Software and the
Third Party Software are sometimes hereinafter referred to as the
"Software".
(g) Research shall mean the digitized or electronically transmitted data
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which is contributed to Multex by Merrill Lynch and/or distributed by
Multex to Merrill Lynch and Users as part of the Services to be provided
under this Agreement and the Schedules and Service Requests. The particular
formats, types and contents of the Research covered by this Agreement shall
be as set forth in the Schedules and Service Requests.
(h) Schedule or Schedules shall mean one or more Schedules attached to this
---------------------
Agreement or to a Service Request and made a part hereof which set forth
the Services to be provided by Multex to Merrill Lynch, and any terms and
conditions related to such Services.
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(I) Services shall have the meaning ascribed thereto in Section 2(a) below.
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(j) Service Request shall have the meaning ascribed thereto in Section 2(b)
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below.
(k) Subscribers shall mean an entity which has subscribed to and is
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receiving one or more research distribution services from Multex.
(k) Users shall mean either the Internal Users or External Users.
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2. Scope of Services.
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(a) Multex Services. Multex agrees to provide Merrill Lynch and its
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affiliates, and Merrill Lynch agrees to receive from Multex, the
Services described in Section 2(d) below and the applicable Schedules
referred to therein, and any additional services as may from time to
time be requested by Merrill Lynch or its affiliates and agreed to by
the parties (collectively, the "Services"). Services for any individual
user or group of users shall be ordered by Merrill Lynch and its
affiliates pursuant to a service request ("Service Request") in
substantially the form attached hereto as Attachment A. The Service
Request shall include a description of the Services being ordered, the
Merrill Lynch department, division, affiliate or location ordering the
Services, the location(s) where invoices are to be sent, the fee for
the Services, the date or dates for the commencement and termination of
the Services, the equipment, if any, which is to be provided either by
Multex or Merrill Lynch, the permitted number of users, and any other
terms and conditions agreed to by the parties. Other than the Services
set forth in the Schedules hereto, Merrill Lynch shall have no
obligation to execute any Service Request or purchase any Services of
any kind by virtue of having executed this Agreement, nor shall Multex
be obligated to provide Services until a Service Request has been
executed.
(b) Merrill Lynch Contribution of Research. Merrill Lynch agrees to provide
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Multex, and Multex agrees to receive from Merrill Lynch, the Research
for distribution solely in accordance with the terms and conditions of
this Agreement and the Schedules, Service Requests and Attachments to
this Agreement.
(c) Service Requests. Each Service Request executed by both parties
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pursuant to this Agreement shall be deemed to include and incorporate
the provisions of this Agreement. In the event of a conflict or
ambiguity between the terms of this Agreement and any Service Request,
the provisions of the Service Request shall prevail with respect to the
Services that are the subject of such Service Request. Merrill Lynch's
affiliates may execute Service Requests pursuant to this Agreement; in
such event, the affiliate executing the Service Request shall be deemed
to be the customer under such Service Request and shall agree in such
Service Request to be bound by the restrictions of this Agreement and
shall be afforded the benefits, rights, and protections of this
Agreement. If
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an affiliate receives Services hereunder pursuant to a Service Request
which does not contain a written agreement to be bound by the terms and
conditions of this Agreement, then Merrill Lynch shall indemnify and
hold harmless Multex from and against any loss, liability, claim,
damage or expense arising from or in connection with (ii any action,
proceeding or claim made or brought against Multex by any such
affiliate to the extent that this Agreement bars or otherwise limits
Multex's liability with respect to the subject matter of such claim, or
(ii) the breach by any affiliate of any of the obligations of (and
prohibitions on) Merrill Lynch under this Agreement.
(d) Current Services. A description of the Services currently being
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provided to Merrill Lynch, and any additional terms and conditions
relating to such Services are set forth in Schedules A through 0 of
this Agreement, as described below:
(i) MuItexEXPRESS. Pursuant to the Merrill Lynch OnLine/Multex Service
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Request dated February 28,1 997, a copy of which is attached hereto as
Schedule A (the "Online Service Request"). Multex is providing to
Merrill Lynch internal distribution of the Research described in the
Online Service Request, all as more particularly set forth in the
Online Service Request. The parties agree that, effective as of the
date hereof, the Online Service Request shall be amended as set forth
below:
(A) Upon expiration of the current term of the Online Service
Request, which expires on February 28. 1999, the term of the Online
Service Request shall continue on a month-to-month basis until either
the parties enter into a renewal term or either party terminates such
Service Request on 30 days prior written notice to the other party.
(B) All references to the term "MultexNet" contained in the
Online Service Request shall be changed to the "MuItexEXPRESS", which
is the current name of the Multex service which is provided to Merrill
Lynch under the Online Service Request.
Except as specifically provided herein, all terms of the Online
Service Request shall remain in full force and effect.
(ii) Contribution and Distribution of Research. Merrill Lynch agrees
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to provide to Multex the Research described in the Merrill Lynch
Contribution and Distribution Services Schedule attached as Schedule B
for distribution of such Research only in accordance with the terms of
this Agreement and such Schedule B.
(iii) Multex Publisher for Internal Electronic Distribution Services.
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Pursuant to the Multex Publisher Internal Distribution Electronic
Distribution Services Schedule attached hereto as Schedule C, Multex
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will continue to distribute Research within Merrill Lynch by means of
Multex Publisher.
(iv) Merrill Lynch OnLine Trial Program. Attached hereto as Schedule
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D is copy of executed Merrill Lynch OnLine/Multex Trial Program
Addendum effective as of October 29, 1998 which amends the Merrill
Lynch Online/ Multex Service Request effective as of February 28. 1997
and continues in effect in accordance with its terms.
3. Equipment.
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Any equipment such as computers, servers, routers ("Equipment") to be
provided by Multex to Merrill Lynch shall be set forth in Attachment B or
in the applicable Service Request. Any Equipment provided to Merrill Lynch
under this Agreement shall remain the sole and exclusive property of Multex
and no right, title or interest in such Equipment is granted to Merrill
Lynch. (Except for that Equipment which is purchased by Merrill Lynch from
or through Multex in which case Multex shall transfer good and valid title
to such Equipment to Merrill Lynch). Merrill Lynch agrees to provide
physical facilities, access, and security as reasonably required for the
proper installation, operation and maintenance of the Equipment and to
surrender Multex's Equipment to Multex upon the termination or cancellation
of this Agreement in the sane condition as delivered, reasonable wear and
tear excepted. Physical risk of loss or damage to the Equipment while in
Merrill Lynch's possession shall be borne by Multex, excluding any damage
or loss caused by the gross negligence or willful misconduct of Merrill
Lynch. In no event shall Merrill Lynch's liability for loss or damage to
any Equipment exceed the depreciated value of the Equipment at the time of
loss or damage. Multex is responsible for recovering its Equipment within
thirty (30) days' after the cancellation or termination of this Agreement,
or any Order Schedule. Merrill Lynch shall not be responsible for any
Equipment in its possession more than thirty (30) days' after the date of
cancellation or termination of Services.
4. (a) Grant of Software License by Multex.
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As part of the Services provided by Multex under this Agreement and in
consideration of the mutual covenants contained herein, Multex hereby
grants to Merrill Lynch and it affiliates a non-exclusive, non-
transferable, worldwide license ("License") to use Multex Software for
the term of this Agreement, including the Third Party Software identified
in Attachment C. The Third Party Software is licensed to Merrill Lynch
and its affiliates in accordance with the provisions of Attachment C
(Third Party License Requirements for End Users) which is incorporated
herein and made a part of this Agreement. In the event of any conflict
between this Agreement and Attachment C, this Agreement shall control.
Merrill Lynch shall have the option of independently licensing Third
Party Software for use in connection with the Services pursuant to
separate licensing arrangements entered into between Merrill Lynch and
third party licensors. The number of users licensed to use Multex
Software shall be agreed to and set forth in
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the applicable Schedule or Service Request.
(b) Grant of License by Merrill Lynch.
---------------------------------
i. During the time Schedule B remains in effect, Merrill Lynch hereby
grants to Multex limited, non-exclusive, non-transferable
worldwide license to receive, store and distribute the Research
solely to (1) Internal Users; (2) External Users that have
executed a Multex Subscriber Agreement in the form Attached hereto
as Attachment D; (3) Subscribers who have executed a Multex
Subscriber Agreement; and (4) Approved Data Providers for the
purpose of redistributing the Research to the clients of such Data
Providers("Data Provider Clients"), provided that distribution to
External Users, Subscribers and Approved Data Providers is subject
to the entitlement provisions set forth in Section 4 of Schedule
B. The initial list of Approved Data Providers is attached as
Exhibit A to Schedule B, and Multex may not add any Data Providers
to this list without the prior written approval of Merrill Lynch
in each instance,.
ii. Merrill Lynch shall, in its sole discretion, retain editorial
control at all times over the selection and dispatch of its
Research to Multex for distribution. Merrill Lynch may elect in
its sole discretion to withhold certain Research or modify the
Research prior to submission to Multex. Merrill Lynch shall have
no obligation to provide any particular volume or quantity of
Research under this Agreement. Multex shall have the capacity to,
and Multex shall delete, block, remove or delay specified Research
reports in accordance instructions received from Merrill Lynch and
shall, to the extent feasible, immediately comply with all such
reasonable instructions. Merrill Lynch retains the unrestricted
right to distribute the Research or have the Research
simultaneously distributed by any other third party, over any
medium of Merrill Lynch's choice. In the event that any Schedule
or Service Request s terminated this license shall be deemed
terminated with respect to the Research, or portion thereof,
covered by said Schedule or Service Request. Notwithstanding
anything to the contrary contained herein, Merrill Lynch agrees
that the volume, quantity and content of the Research which
Merrill Lynch provides to Multex hereunder will be the same as
that provided to any other Data Provider to which Merrill Lynch
contributes Research, except for a Data Provider whose systems are
capable of entitling research by securities product (e.g., by
equity or fixed income), and Merrill Lynch will not modify,
withhold, delete, block, remove or delay the contribution of
Research to Multex unless it does so for all other Data Providers
(except those noted above).
5. Correction of Errors.
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Multex shall use reasonable efforts to promptly correct all material
errors, defects or bugs (collectively "Error 1 in the Multex Software
reported to Multex by Merrill Lynch or its affiliates or that Multex
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becomes aware of through any other means. With regard to the Third
Party Software, Multex will inform the appropriate Third Party of the
Error in its Third Party Software and seek prompt corrections of such
error in accordance with the Multex contract with such Third Party.
6. Independent Contractor.
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Multex (and its employees), in performance of this Agreement, is
acting as an independent contractor. Personnel supplied by Multex
hereunder are not Merrill Lynch's personnel or agents, and Multex
assumes full responsibility for their acts. Multex shall be solely
responsible for the payment of compensation, benefits, insurance and
taxes relating to Multex's employees assigned to perform services
hereunder. Notwithstanding the foregoing, Multex (and its employees)
shall abide by Merrill Lynch rules and regulations while visiting
Merrill Lynch's premises.
7. Cost/Fees.
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(a) Merrill Lynch is responsible for the costs relating to (i) the
development of the Research; (ii) the contribution and delivery of the
Research to Multex's central computer facilities, and (iii) the
distribution of the Merrill Research within the Merrill Lynch
organization (except as otherwise provided in a Service Request). Such
costs include the costs of Merrill Lynch's telecommunication lines,
telephones, modems, computers, magnetic tape, magnetic tape delivery
and messenger services.
(b) Except for the fees set forth in the Schedules. Multex shall be
responsible for all costs associated with the distribution of the
Services to its Subscribers and Data Providers, Such costs include,
without limitation, the costs of its own telecommunication lines,
telephones, modems, computers, magnetic tape, magnetic tape delivery
and messenger services.
(c) The fees for the Services are set forth in the applicable Schedules
and/or Service Requests.
8. Term; Termination.
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(a) The term of this Agreement shall commence as of the date of this
Agreement (the "Effective Date") and shall remain in effect so long as
the Schedules and Service Requests issued pursuant to this Agreement
remain in effect. Each Schedule and Service Request executed hereunder
shall include such term and termination provisions as are mutually
agreed upon between the parties.
(b) Notwithstanding the term set forth above or in a Service Request, in
the event either party to this Agreement shall fail to perform or
observe any material term, covenant, agreement or warranty, the other
party may immediately terminate this Agreement and/or the applicable
Schedule or Service Request if such failure is not corrected within 30
days after
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delivery of written notice thereof to the other party (provided
however if the failure cannot reasonably be corrected within 30 days
and the defaulting party has commenced a cure of its performance
during such thirty (30) day period and proceeds to cure the default,
the time for curing such default shall be extended for such period as
may be necessary to cure the default).
(c) If, during the term of this Agreement either party shall cease doing
business or if a petition in bankruptcy shall be filed (voluntary or
involuntary) with respect to a party, the other party may terminate
this Agreement upon 10 days written notice to the other party.
(d) Multex shall be responsible for the payment of any and all taxes
(including but not limited to sales, use, withholding, gross receipts
or excise taxes) imposed on any Services or Research provided to third
parties. Merrill Lynch shall not be responsible, and Multex shall pay
or reimburse Merrill Lynch for payment of any tax related to Research
provided to any third party. Multex agrees to notify Merrill Lynch of
any tax liability or potential tax liability, and of any pending or
threatened tax audit or other proceeding that could lead to the
imposition of tax liability against Merrill Lynch and shall afford
Merrill lynch all reasonable opportunity to participate in any such
audit or proceeding affecting its interests. Merrill Lynch shall be
responsible for the payment of any and all taxes (including but not
limited to sales, use, withholding, gross receipts or excise taxes)
imposed on its receipt of any Services or Research provided hereunder.
(e) Should Merrill Lynch fail to pay when due any sum of money due under
this Agreement, the Schedules or a Service Request and such failure
shall continue for a period of thirty (30) days after notice thereof,
Multex, at its option, may, upon written notice thereof, (i) terminate
the applicable Schedule or Service Request. (ii) whether or not the
applicable Schedule or Service Request is terminated take immediate
possession of any or all of the items of Equipment owned by Multex not
fully paid for, wherever situated and for such purpose enter upon any
premises without liability for so doing. and (iii) sell, dispose of,
hold, use or lease any items of Equipment not fully paid for, as
Multex, in its sole discretion, may decide.
(f) Should Merrill Lynch fail to contribute the Research to Multex in
accordance with the terms of Section 4(b) of this Agreement and
Schedule B, and such failure continues for more than 10 days after
written notice thereof, then Multex shall have the right to terminate
this Agreement and all of the Services provided hereunder.
(g) The remedies contained in this Paragraph 8 are cumulative and are in
addition to all other rights and remedies available to either party
under this Agreement and the Schedules and Service Request hereto, by
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operation of law or otherwise.
9. Disposition of Software and other Materials.
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Upon the expiration or termination of this Agreement and all Service
Requests hereunder, for whatever reason, and upon the written request
of Multex. Merrill Lynch shall return to Multex the Multex Software
(including the magnetic or other physical media on which it was
originally or subsequently recorded or fixed) and all related
documentation, as well as all hardware and Equipment owned by Multex
in good condition, reasonable wear and tear and damage by the elements
excepted. At the written direction of Multex, the Multex Software may
be completely deleted, erased or otherwise destroyed by Merrill Lynch.
10. Unlawful Use.
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Merrill Lynch shall not use or permit any person or entity under its
control to use the Services for any unlawful purpose.
11. Distribution of Service.
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Except as set forth in the Schedules and Service Requests, Merrill
Lynch is not authorized or permitted to furnish the Services to any
person or firm other than its employees, affiliates and their
employees, for re-use, redistribution or retransmission without the
prior approval of Multex.
12. Limitation of Liability.
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(a) Multex will use its best efforts to provide the Services to Merrill
Lynch and its affiliates as described herein. However. Merrill Lynch
understands that Multex cannot and does not guarantee the content,
accuracy, timeliness or availability of the Services or the Research
as displayed or provided through the Services. ACCORDINGLY. MERRILL
LYNCH AGREES THAT UNLESS THE FOLLOWING ARE CAUSED BY THE GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT OF MULTEX. MULTEX SHALL NOT HAVE ANY
LIABILITY OR OBLIGATION TO MERRILL LYNCH OR ITS AFFILIATES (WHETHER
CAUSED DIRECTLY OR INDIRECTLY) RELATING TO (I) INTERRUPTION, DELAY OR
FAILURE IN THE TRANSMISSION, PROCESSING, DELIVERY OR DISTRIBUTION OF
THE SERVICES OR THE RESEARCH; (II) THE UNAVAILABILITY OF MULTEX
SOFTWARE OR THE SERVICES; (III) THE ACCURACY OF THE MERRILL LYNCH
RESEARCH; OR (IV) THE ACTS OR OMISSION OF MERRILL LYNCH.
(b) Except for Multex's liability under Paragraph 13(a) and 14(a) and
damages arising from the gross negligence or willful misconduct of
Multex, Multex's maximum liability hereunder for any other cause, not
exculpated hereunder, whether in tort or contract, shall not exceed
the
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lesser of actual damages or $100,000; provided, however, if the
fees paid to Multex pursuant to this Agreement in any one (1) calendar
year period exceed sioo,000; Multex's maximum liability shall be
raised from $100,000 to the amount of such fees paid over said-one (1)
year period.
(c) Third Parties who provide portions of the Services to Multex shall not
have any direct or indirect liability under this Agreement to Merrill
Lynch for monetary damage on account of the Services provided or to be
provided by Multex hereunder.
(d) Multex conducts no review whatsoever and exercises no editorial
control over the Research. and accordingly, Multex shall have no
liability to Merrill Lynch whatsoever (whether in contract or tort)
for the content, completeness or accuracy of the Research.
(e) Multex understands that Merrill Lynch cannot and does not guarantee
the content or accuracy of the Research or any related data,
information or documentation provided by Merrill Lynch hereunder.
ACCORDINGLY, MULTEX AGREES THAT MERRILL LYNCH SHALL NOT BE LIABLE FOR
ANY LOSS, DAMAGE, INJURY OR EXPENSE, CAUSED BY ITS NEGLIGENCE OR
OTHERWISE, ARISING DIRECTLY OR INDIRECTLY, IN CONNECTION WITH THE
RESEARCH UNLESS CAUSED BY ITS OWN WILLFUL OR INTENTIONAL MISCONDUCT OR
GROSS NEGLIGENCE AND MERRILL LYNCH SHALL NOT BE LIABLE FOR ANY LOSS,
DAMAGE. INJURY OR EXPENSE CAUSED BY OR ARISING FROM ANY ACTION OR
INACTION OF MULTEX or ANY USER. Except for Merrill Lynch's liability
under Paragraph 13(b) and 14(b) and damages arising from the gross
negligence or willful misconduct of Merrill Lynch, Merrill Lynch's
maximum liability hereunder for any other cause, not exculpated
hereunder, whether in tort or contract, shall not exceed the lesser of
actual damages or $100,000; provided, however, if the fees paid to
Multex pursuant to this Agreement in any one (1) calendar year period
exceed $100,000, Merrill Lynch's maximum liability shall be raised
from $100,000 to the amount of such fees paid over said one (1) year
period.
(f) NEITHER PARTY SHALL BE LIABLE FOR ANY, INDIRECT CONSEQUENTIAL,
INCIDENTAL OR SPECIAL DAMAGES EVEN IF IT HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES, OR FOR ANYTHING BEYOND ITS REASONABLE
CONTROL. FOR THE PURPOSES OF THIS SECTION, DAMAGES PAYABLE TO A THIRD
PARTY IN AN ACTION FOR WHICH A PARTY IS INDEMNIFIED UNDER SECTION 13
OF THIS AGREEMENT SHALL NOT BE DEEMED CONSEQUENTIAL, INDIRECT OR
SPECIAL DAMAGES.
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(g) The parties acknowledge and agree that the limitations of liability
set forth in this Section 12 are a condition of this Agreement, and
that the Fees reflect the allocations of risk set forth in this
Section 12.
13. Indemnity.
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(a) Multex shall defend and/or handle at its own cost and expense any
claim or action brought by a third party against Merrill Lynch, its
parent company, and its or their subsidiaries and/or affiliated
companies (also referred to collectively as Merrill Lynch
"affiliates"), for actual or alleged infringement of any patent,
copyright, trademark or other proprietary right, including, but not
limited to, misappropriation of trade secrets (collectively,
Proprietary Rights} based on any software, programs. Equipment.
Services, and/or other materials furnished to Merrill Lynch by Multex
pursuant to the terms of this Agreement (including, without
limitation, Multex Software and the Third Party Software included
therein) or the use thereof by Merrill Lynch or its affiliates in
accordance with the terms of this Agreement;, provided, however, that
Multex shall have the sole right to control the defense and settlement
of such action and all rights of appeal, and shall not be liable to
Merrill Lynch or its affiliates for any costs, settlements,
compromises or legal fees of any kind incurred or entered into by
Merrill Lynch or its affiliates without Multex's prior written
approval. Multex shall indemnify and hold harmless Merrill lynch and
its affiliates, from and against all liabilities, losses, damages,
costs and expenses (including but not limited to, attorneys' fees,
costs and disbursements) associated with any such claim or action In
the event any Services, Software or materials provided hereunder are
deemed to & suspected to infringe the Proprietary Rights of any third
party, Multex may immediately terminate this Agreement, or, subject to
Merrill Lynch's approval, substitute non-infringing, equally
functional software, materials or services. Any such termination of
this Agreement shall not relieve Multex of its obligations pursuant to
this Section 13(a). In the event of such termination, Multex shall
refund to Merrill Lynch all prepaid fees for Services not rendered or
received. Multex's obligations hereunder shall be contingent upon
Merrill Lynch promptly notifying Merrill Lynch of any such claim and
cooperating, at Multex's expense, in the litigation.
(b) Merrill Lynch shall defend and/or handle at its own cost and expense
any claim or action brought by a third party against Merrill Lynch for
actual or alleged infringement of Proprietary Rights based on the
Research as provided by Merrill Lynch provided, however, that Merrill
Lynch shall have the sole right to control the defense and settlement
of such action and all rights of appeal, and shall not be liable to
Multex for any costs, settlements, compromises or legal fees of any
kind incurred or entered into by Multex without Merrill Lynch's prior
written approval. Merrill Lynch shall indemnify and hold harmless
Multex and its affiliates
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from and against all liabilities, losses, damages, costs and expenses
(including but not limited to, attorneys' fees, costs and
disbursements) associated with any such claim or action. Merrill
Lynch's obligations hereunder shall be contingent upon Multex promptly
notifying Merrill Lynch of any such claim and cooperating, at Merrill
Lynch's expense, in the litigation.
14. Confidential Information.
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(a) "Confidential Information" shall mean (i) with respect to Merrill
Lynch, any information obtained by Multex (or its employees or agents)
from, or disclosed to Multex (or its employees or agents) by, Merrill
Lynch, or its affiliates or clients, which is marked as confidential
or which ought reasonably to be understood to be confidential
concerning the past or present business activities of said entities,
and/or their clients, including, but not limited to, any information
relating to the Merrill Research, pricing, methods, strategies,
processes, financial data, investments, accounts, assets, lists,
technical data, software programs, apparatus, statistics, research,
multimedia programs and strategies, programs, specifications,
documentation, development plans, or related information, and the
results from the provision of the Services performed by Multex under
this Agreement and (ii) with respect to Multex, the Multex Software
and any related documentation or specifications, and any other
information obtained by Merrill Lynch or its affiliates (or its or
their employees or agents) which is marked as confidential, or which
ought reasonably to be understood to be confidential, concerning
Multex's business and operations and financial condition; the
software, systems, data bases, hardware and information services used
by Multex to conduct its business, including the configurations
hereof; and Multex's customer lists and prospects.. Notwithstanding
the foregoing, the internal distribution of Research to Merrill Lynch
employees pursuant to a Service Request by Multex in accordance with
the terms of this Agreement shall not be deemed a breach of this
paragraph 14 (a).
(b) Multex shall protect the confidentiality of the Research and shall not
disclose such Research to any entity or person except as expressly
permitted herein. Multex shall refrain from (i) making any
representations or warranties of any kind concerning the Research or
(ii) modifying, amending, editing, or otherwise revising, in any
manner, the content or format of the Research. The Research shall be
transmitted as described herein in their entirety (including all
accompanying disclaimers and proprietary notices) and without revision
by Multex. Multex shall use reasonable efforts to prevent
interception, inappropriate disclosure, or use of the Research by
unauthorized persons. Towards that end, Multex will ensure that its
employees abide by the provisions of this Agreement and do not
illegally trade on or wrongfully disclose or use any information given
to Multex by Merrill
13
Lynch.
(c) Each party shall hold the Confidential Information of the other party
in trust and confidence for the other party and shall not reproduce,
disclose to any person, or firm or enterprise, or use for its own
benefit, any such Confidential Information (except as specifically
permitted or contemplated by this Agreement). Notwithstanding the
foregoing, it is agreed that neither party shall not have any
liability for breach of any confidentiality obligation by its clients
or other third parties not under such party's control.
(d) Without limiting the generality of the foregoing, Confidential
Information will not include information that (i) is already
rightfully known to a party at the time it is obtained from the other
party, free from any obligation to keep such information confidential;
(ii) is or becomes publicly known through no wrongful act of either
party; (iii) is rightfully received from a third party without
restriction and without breach of this Agreement; (iv) is
independently acquired or developed by a party without breach of any
obligation hereunder; or (v) is required to be disclosed pursuant to
law, governmental regulation, or court order.
15.Ownership Rights.
----------------
(a) The Research shall remain the sole and exclusive property of Merrill
Lynch and/or its affiliates and Multex shall not acquire any rights in
the Research.
(b) The Multex Software shall remain the property of Multex. Merrill Lynch
and its affiliates may use the Multex Software only in conjunction
with the Services. Merrill Lynch shall not permit the Multex Software
to be used by more than the number of users as may be agreed to
between Merrill Lynch and Multex. Merrill Lynch shall not copy, in
whole or in part, the Multex Software or related documentation,
whether in the form of computer media, printed or in any other form;
provided, however, that for each Service Request, Merrill Lynch and
its affiliates may make one(1) copy of the Software for back-up
purposes only.
(c) The License granted herein is for the limited purposes of enabling
Merrill Lynch and its affiliates to contribute the Research to Multex,
and to receive the Services and distribute the Merrill Research and
other research materials provided by Multex within Merrill Lynch and
its affiliates.
(d) MERRILL LYNCH SHALL NOT MAKE ANY ALTERATION, CHANGE OR MODIFICATION TO
THE MULTEX SOFTWARE. MERRILL LYNCH MAY NOT RECOMPILE, DECOMPILE.
DISASSEMBLE. OR REVERSE ENGINEER THE MULTEX SOFTWARE OR MAKE OR
DISTRIBUTE ANY OTHER FORM OF THE MULTEX SOFTWARE.
14
(e) Merrill Lynch may use the trademarks of Multex or its licensors only
to identify printed output produced by the Multex Software and only in
accordance with accepted trademark practice, including identification
of the relevant trademark owner's name. The use of any trademark as
authorized herein does not give Merrill Lynch any rights of ownership
or other rights relating to the trademark, and all goodwill resulting
from any such use shall inure to the benefit of the relevant trademark
owner.
(f) Multex may use the trademarks of Licensee and Merrill Lynch & Co., Inc
only as necessary to identify the source of the Research and only in
accordance with accepted trademark practice, including identification
of the relevant trademark owner's name. The use of any trademark as
authorized herein does not give Multex any rights of ownership or
other rights relating to the trademark, and all goodwill resulting
from any such use shall inure to the benefit of the relevant trademark
owner.
16.Warranties.
----------
(a) Multex hereby represents, warrants, and covenants to Merrill Lynch and
its affiliates as follows:
(i) Multex is a corporation duly organized, validly existing
and in good standing under the laws of the State of
Delaware with full authority to enter into this Agreement
and shall comply with applicable laws;
(ii) Multex Software and the Services provided to Merrill Lynch
and its affiliates shall not infringe the Proprietary
Rights of any third party;
(iii) Multex has the legal right and authority to license Multex
Software (including, without limitation, the Third Party
Software included therein) to Merrill Lynch and its
affiliates as described herein; and
(iv) The medium on which Multex Software is furnished is
warranted to be free of detects in materials and
workmanship under normal use for a period of thirty (30)
days from the date of delivery of Multex Software pursuant
to each Service Request.
(b) Merrill Lynch represents, warrants and covenants to Multex that:
(i) Merrill Lynch is the owner of and has the right to provide
the Research to Multex for distribution as provided herein;
(ii) Merrill Lynch has the right to internally distribute the
Research;
(iii) To the best of its knowledge, the Research does not
infringe the Proprietary Rights of any third Party;
(iv) Merrill Lynch will comply with all laws and regulations
applicable to the use and internal distribution of the
Merrill Research, and will comply with the laws relating to
the preparation of the Research of the jurisdiction in
which such Research is prepared.
(c) THE EXPRESS WARRANTIES AND LIMITATIONS SET FORTH
15
HEREIN CONSTITUTE THE ONLY WARRANTIES OF MULTEX AND MERRILL LYNCH (AND
ITS AFFILIATES) AND ARE IN LIEU OF ALL OTHER WARRANTIES, WRITTEN OR
ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO
THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE. MULTEX AND
ITS LICENSORS DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS
MERRILL LYNCH OR ITS AFFILIATES OR CLIENTS MAY OBTAIN BY USE OF MULTEX
SOFTWARE OR THE SERVICES. THE MERRILL RESEARCH IS PROVIDED TO MULTEX
ON AN "AS IS" BASIS, WITH ALL FAULTS AND DEFECTS CONTAINED THEREIN,
MERRILL LYNCH DOES NOT MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, AS TO
MERCHANTABILITY. FITNESS FOR A PARTICULAR USE OR ANY OTHER MATTER WITH
RESPECT TO THE RESEARCH AND EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT, NO REPRESENTATION OR STATEMENT SHALL BE BINDING UPON
MERRILL LYNCH AS A WARRANTY OR OTHERWISE.
17. Insurance.
---------
Multex shall procure and maintain for itself and its employees all
insurance coverages as required by Federal or State law, including
workers' compensation insurance. Multex shall procure and maintain for
itself: (i) Employers' Liability Insurance coverage including bodily
injury coverage, with a minimum of $100,000 for each employee; (ii)
general liability coverage of at least $1,000,000 and (iii) automobile
liability coverage of at least $500,000. Upon request, Multex shall
provide evidence of such policies (including certificates of
insurance) to Merrill Lynch. Such policies shall contain an express
waiver of any right of subrogation.
18. Advertising.
-----------
Neither party shall use the name or marks of the other or its parent
or any subsidiary or affiliated company in any publicity release,
advertising, or publicly displayed or distributed materials without
securing the prior written consent of the party whose name is to be
used, which may be withheld in said party's sole discretion.
Notwithstanding the foregoing, Multex may disclose the fact of and
terms of this Agreement (but not Merrill Lynch Confidential
Information) to its directors, officers, employees, and representative
and potential investors of Multex. Merrill Lynch may reference
Multex's name in reports, analyses, and other materials in the
ordinary course of its business. Multex may include Merrill Lynch's
name as a contributor to Multex's distribution services.
19. Successors and Assigns.
----------------------
This Agreement shall be binding upon the parties respective
16
successors and permitted assigns. Neither party may assign this
Agreement and/or any of its rights and/or obligations hereunder
without the prior written consent of the other party, and any such
attempted assignment shall be void.
20. Governing Law.
-------------
The validity of this Agreement, the construction and enforcement of
its terms, and the interpretation of the rights and duties of the
parties shall be governed by the laws of the State of New York.
21. Modifications.
-------------
No modification, amendment, supplement to or waiver of this Agreement
or any Service Request or Attachment hereunder, or any of their
provisions shall be binding upon the parties hereto unless made in
writing and duly signed by both parties.
22. Waiver.
------
A failure or delay of either party to this Agreement to enforce at any
time any of the provisions hereof, or to exercise any option which is
herein provided, or to require at any time performance of any of the
provisions hereto shall in no way be construed to be a waiver of such
provisions of this Agreement.
23. Exhibits.
--------
The terms and conditions of any and all Exhibits and Attachments to
this Agreement are incorporated herein by this reference and shall
constitute part of this Agreement as if fully set forth herein.
24. Compliance with Law.
-------------------
Multex shall comply with all applicable U.S., state and local laws and
regulations in its performances of its obligations hereunder and the
Services will comply with applicable law.
25. Heading.
-------
The headings herein are for convenience of reference only and shall
not impact the meaning of this Agreement.
26. Entire Agreement.
----------------
This Agreement constitutes the entire Agreement between the parties
concerning the subject matter hereof and shall supersede all prior
agreements or understandings concerning such subject matter.
27. Survival.
--------
Notwithstanding any termination of this Agreement, the provisions of
Section 3,6, 8 (e), 9, 12. 13, 14, 15, 16, 18, 19, 27, and 31 shall
survive termination.
28. Access.
------
17
Merrill Lynch shall provide Multex with reasonable access to its
premises to perform the obligations set forth herein. Multex shall
abide by the site regulations and security procedures applicable to
each site.
29. Force Majeure.
-------------
In no event shall either party be liable to the other for any delay or
failure to perform hereunder (other than a failure to pay any amounts
due hereunder), which delay or failure to perform is due to causes
beyond the reasonable control of said party including, but not limited
to, acts of God; acts of a public enemy; acts of the United States of
America; fires, floods; epidemics; quarantine restrictions; strikes;
and freight embargoes. In every case, the delay or failure to perform
must be beyond the control and without the fault or negligence of the
party claiming excusable delay, and the party claiming excusable delay
must promptly notify the other party of such delay. Without limiting
the foregoing, strikes or other labor discord by a party's employees
or the employees of its agents or subcontractors will not excuse such
party's delay or failure to perform.
30. Computer Security Guidelines; Merrill Lynch Firewalls.
-----------------------------------------------------
(a) Multex represents and, warrants that under the terms of this
Agreement: (i) all Multex interconnectivity to Merrill Lynch and its
affiliates' computing systems and/or networks and all attempts at.
same shall be only through Merrill Lynch's security gateways
and/firewalls; (ii) it will not access, and will not permit
unauthorized persons or entities to access. Merrill Lynch computing
systems and/or networks without Merrill Lynch's express written
authorization and any such actual or attempted access shall be
consistent with any such authorization; and (iii) it will use a virus
detection/scanning program or connect to Merrill Lynch or its
affiliates via a virus clean environment prior to any attempts to
access any of Merrill Lynch's computing systems and/or networks and
upon detecting a virus, all attempts to access Merrill Lynch's
computing and/or networks shall immediately cease and shall not resume
until any such virus has been eliminated.
(b) Merrill Lynch uses front end computers known as firewalls (the
"Firewalls") to insure network security. The Firewalls have the
ability to alter and cancel data transmissions based on internal
Merrill Lynch specifications. Multex will deliver Research
electronically to the Firewalls and shall be responsible for document
integrity to the Firewalls and to any Merrill Lynch test sites
provided for in the Schedules. Merrill Lynch shall be solely
responsible for document integrity from the Firewalls throughout
Merrill Lynch.
31. Notices.
-------
Except as otherwise expressly provided herein or in any Service
18
Request, any notice or other communication required or permitted shall
be in writing and shall be delivered via overnight delivery service,
personal delivery, or certified mail, return receipt requested
addressed as follows:
If to Multex: Multex Systems, Inc.
33 Maiden Lane
5th Floor
New York, New York 10038
Attention: President
If to Merrill Lynch: Merrill Lynch, Pierce, Fenner & Smith,
Incorporated
250 Vesey Street, 17th Floor
New York, New York 10028
Attention; Jack Roehrig
Merrill Lynch, Pierce, Fenner & Smith.
Incorporated
222 Broadway222 Broadway, 17th Floor
New York, New York 10038
Attention: Corporate Law Department
Or so such other address as shall be given by either party to the
other in writing.
32. Import/Export Restrictions.
--------------------------
(a) This Agreement is made subject to any laws, regulations. orders or
restrictions on the export of the Services, Multex Software, and
Equipment that may be imposed at any time or from time to time by the
U.S. Government or other governmental authorities with jurisdiction
over the parties. Both parties (i) shall comply with all such laws,
regulations, permits, orders and other restrictions to the extent that
they are applicable to the Services, Equipment, and/Multex Software
and (ii) shall not directly or indirectly, export or re-export (as
defined in the United States Export Administration Regulations) the
Services, Multex Software, or Equipment to any country for which the
U.S. Government, or any agency thereof, requires an export license or
other governmental approval without first obtaining the same. With
respect to all Multex Software. Equipment and related Services
exported outside of the United States pursuant to the is Agreement,
except as otherwise provided on a Service Request. Multex shall act as
the exporter of record for purposes of the Export Administration Act
of 1979. as amended, and all other relevant laws or regulations.
33. Foreign Corrupt Practices Act.
-----------------------------
Multex represents, warrants and covenants to Merrill Lynch and its
19
affiliates that it is aware of and familiar with the provisions of the
Foreign Corrupt Practices Act of 1977. as amended (the FCPA"), and its
purposes will take no action and make no payment in violation of, or
which might cause Multex or Merrill Lynch or any its affiliates or its
and their respective directors, officers, employees or agents to be in
violation of, the FCPA. Multex will act in full compliance with the
FCPA. Multex further represents and warrants that no person employed
by it in connection with the performance of its obligation under this
Agreement is an official of the government of any foreign country, or
any agency thereof, and that no part of any monies or consideration
paid hereunder shall accrue for the benefit of any such official.
Notwithstanding anything to the contrary, if Multex takes any action
that could constitute a violation of the FCPA, Merrill Lynch may, at
its sole option, immediately terminate this Agreement. Furthermore,
for the purposes of reasonably ensuring compliance with the FCPA,
Multex agrees that, upon request by Merrill Lynch at any time during
the term of this Agreement. Multex will make available for audit by an
accounting firm designated by Merrill Lynch which is reasonably
acceptable to Multex, Multex's books, records and other documentation
relevant to its business activities conducted pursuant to this
Agreement. The accounting firm shall provide to Merrill Lynch only
such information obtained from such review that relates to a possible
violation of the FCPA. Merrill Lynch shall pay any and all costs of
any such requested audit.
34. Former Agreements.
-----------------
This Agreement replaces and supersedes the 1994 Agreement and the 1996
Master Agreement, which agreements are deemed cancelled as of the date
hereof.
IN WITNESS WHEREOF, the parties hereto, each acting under due and proper
authority, have executed this Agreement as of the date first above written.
MERRILL LYNCH, PIERCE, FENNER MULTEX SYSTEMS, INC
& SMITH INCORPORATED
/s/ /s/
By:________________________ By:________________________
Name:______________________ Name:______________________
Title:_____________________ Title:_____________________
Date:______________________ Date:______________________
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