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Software + Reciprocal Data License Agreement

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Sectors: Computer Software and Services
Governing Law: New York, View New York State Laws
Effective Date: June 01, 1995
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EXHIBIT 10.4


CONFIDENTIAL


SOFTWARE AND RECIPROCAL DATA LICENSE AGREEMENT


AGREEMENT, dated as of June 1, 1995, by and between REUTERS LIMITED, an English company with its principal offices at 85 Fleet Street, London EC4P 4AJ England ("Reuters"), and MULTEX SYSTEMS, INC., a Delaware corporation with its principal offices at 2 Journal Square Plaza, 4th Floor, Jersey City, New Jersey 07306 ("Multex").


W I T N E S S E T H:


WHEREAS, Multex has developed the Multex Technology, a software product that, among other things, is capable of displaying Final Product produced from Research supplied by Financial Institutions and displaying Final Product on Subscriber Keystations;


WHEREAS, Multex is currently engaged in the business of collecting Research from Financial Institutions, processing the same and distributing Multex Final Product to Multex Subscribers;


WHEREAS, the Reuter Group, among other things, supplies data to participants in the global capital markets;


WHEREAS, the Reuter Group proposes to engage in the business of collecting Research from Financial Institutions, processing and reformatting the same and distributing Reuter Final Product to Reuter Subscribers;


WHEREAS, Multex is willing to license the Multex Technology to Reuters, on behalf of the Reuter Group, and to undertake the development and support obligations with respect to the Multex Technology hereinafter described, and Reuters, on behalf of the Reuter Group, is willing to accept such licensee, all on the terms and subject to the conditions hereinafter set forth;


WHEREAS, Multex is willing to license the Multex Final Product to Reuters, on behalf of the Reuter Group, and Reuters, on behalf of the Reuter Group, is willing to accept such license, all on the terms and subject to the conditions hereinafter set forth;


WHEREAS, Reuters, on behalf of the Reuters Group, is willing to license the Reuter Final Product to Multex, and Multex is willing to accept such license, all on the terms and subject to the conditions hereinafter set forth;


NOW, THEREFORE, in consideration of the premises and the mutual agreements, covenants and warranties contained herein, the parties hereto agree as follows:


Article I


DEFINITIONS

1.1 Definitions. (a) As used in this Agreement, the following terms have the following respective meanings:


"Affiliate" means, with respect to any given Person, any other Person directly or indirectly Controlling, Controlled by or under common Control with such Person.


"Authorized Distributor" means any Person identified on Schedule 1.1 that is authorized to distribute Multex Technology or Multex Final Product by a member of the Reuter Group.


"Business Day" means any day other than a Saturday, a Sunday or a day on which banking institutions in the City of London or New York City are authorized or obligated by law, regulation or executive order to be closed.


"Commencement Date" means the date of this Agreement set forth above.


"Contract Month" means one of a series of consecutive months during the Term, each of which corresponds to a calendar month; provided, that the first Contract Month shall commence on the Commencement Date and end on the last day of the calendar month next succeeding the calendar month in which the Commencement Date falls, and the last Contract Month shall end upon expiration of the Term.


"Control" over a Person means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities or other equity interest, representation on its board of directors or body performing similar functions, by contract or otherwise. The terms "Controlling" and "Controlled" have corollary meanings.


"Final Product" means Multex Final Product, Reuter Final Product or both, as applicable.


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"Financial Institution" means any financial institution, broker, dealer, bank, investment bank, financial investment adviser or similar investment industry professional.


"Governmental Body" means any supranational body or organization, country or government (federal, state, local or foreign), any governmental or regulatory body thereof, any political subdivision thereof, any agency, instrumentality or authority thereof, any self-regulatory organization the rules and regulations of which are enforceable by law (including any such securities futures or commodity exchange), or any court of competent jurisdiction.


"Intellectual Property Right" means any patent, copyright, trademark, service mark (and any application or registration respecting the foregoing), trade secret, know-how and other intellectual property right of any type.


"Keystation" means a video-display terminal or other similar device that is capable of displaying data, whether such device is an "interactive" display or a "slave" display, and regardless of whether it is used, under common ownership or control, linked or "networked" with other similar devices.


"Multex Final Product" means all data formatted and displayed with the Multex Technology and based upon Multex Research.


"Multex Final Product Keystation" means a Keystation that Reuters has authorized to display Multex Final Product.


"Multex Group" means, collectively, Multex and each of its Affiliates.


"Multex Property" means the Intellectual Property Rights and other proprietary and property rights in or embodied in the Multex Technology, the Multex Research and the Multex Final Product.


"Multex Research" means Research supplied by a Financial Institution pursuant to a Research Agreement with a member of the Multex Group.


"Multex Subscriber" means (x) any Person that on or after the date hereof subscribes to and obtains any Reuter Final Product from Multex or (y) any Person with whom a member of the Multex Group is engaged in discussions with the intent that such Person become a Multex Subscriber within the meaning of clause (x).


"Multex Technology" means the technology heretofore marketed by Multex under the trade name MULTEX PUBLISHER(TM), together with any modifications, upgrades or enhancements required to be made thereto by Multex pursuant to the terms hereof.


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"Multex Technology Keystation" means a Keystation that Reuters has authorized to use the Multex Technology.


"Payment Date" means each March 31, June 30, September 30 and December 31 following the Commencement Date.


"Person" means any individual, corporation, partnership, firm, joint venture, association, joint-stock company, trust, unincorporated organization, Governmental Body, or other entity.


"Potential Subscriber" means a Person described in clause (y) of the definition of Multex Subscriber or a Person described in clause (y) of the definition of Reuter Subscriber, as applicable.


"Research" means data primarily in narrative form of the type commonly found in Financial Institutions' "research reports" and containing an analysis of the general affairs, business, prospects, management, financial position, stockholders' equity or results of operations of an issuer of securities.


"Research Agreement" means any written agreement between a Financial Institution and either (x) a member of the Multex Group or (y) a member of the Reuter Group, as applicable, pursuant to which, among other things, the Financial Institution agrees to supply Research for purposes of producing Final Product.


"Reuter Final Product" means all data formatted and displayed with the Multex Technology and based upon Reuter Research.


"Reuter Final Product Keystation" means a Keystation that a member of the Multex Group has authorized to display Reuter Final Product.


"Reuter Group" means, collectively, Reuters and all existing and future subsidiaries of Reuters Holdings PLC.


"Reuter Network" means any network, system or method (whether broadcast, electronic, digital or other) operated or used by the Reuter Group at any time for the distribution of Reuter products and services to Reuter Subscribers.


"Reuter Property" means the Intellectual Property Rights and other proprietary and property rights in or embodied in (w) the Reuter Research, (x) the Reuter Final Product, (y) any Upgrade identified under Part B of Exhibit 2.4 and (z) any product, feature, package or service (including computer software, "user interfaces" and other components).


(i) relating to access to, retrieval of information from, or the
operation of, the Reuter Network,


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(ii) relating to the use, generation, display, modification,
processing or manipulation of any data supplied or obtained over the Reuter
Network (except for any such computer software developed by Multex or by
any Person other than a member of the Reuter Group on behalf of Multex),


(iii) developed by and for, or on behalf of, the Reuter Group
(except for any such computer software developed by Multex or by any Person
other than a member of the Reuter Group on behalf of Multex) and used in
generating, displaying, modifying, processing or manipulating the Final
Product and


(iv) relating to compilations of data by the Reuter Group.


"Reuter Research" means Research supplied by a Financial Institution pursuant to a Research Agreement with a member of the Reuter Group.


"Reuter Subscriber" means (x) any Person that on or after the date hereof (1) subscribes to and obtains any Multex Technology or Multex Final Product from a member of the Reuter Group or (5) subscribes to and obtains any Multex Technology or Multex Final Product from any Authorized Distributor or (y) any Person with whom a member of the Reuter Group or any Authorized Distributor is engaged in discussions with the intent that such Person become a Reuter Subscriber within the meaning of clause (x).


"Subscriber" means either or both of a Multex Subscriber and a Reuter Subscriber.


"Subscriber Agreement" means any written agreement between, as applicable, (x) Multex and a Multex Subscriber, pursuant to which, among other things, such Subscriber is permitted to use Reuter Final Product or (y) a member of the Reuter Group (or a licensee thereof) and a Reuter Subscriber, pursuant to which, among other things, such Subscriber is permitted to use the Multex Technology or Multex Final Product.


"Third Party Technology" means any component of the Multex Technology with respect to which Multex does not own all Intellectual Property Rights and other proprietary and property rights (including all computer software forming part of the Multex Technology that is licensed from Adobe Systems Incorporated or Fulcrum Technologies Inc.).


"Time and Materials Expenses" in relation to a given project means (x) the documented portion of a Multex employee's time allocated to a given project, times [Confidential Portion Omitted] per hour in the case of a programmer, [Confidential Portion Omitted] per hour in the case of a programming supervisor having responsibility for no more than 4 programmers and [Confidential Portion Omitted] per hour in the case of a programming manager having departmental responsibility (each of which hourly rates will increase by [Confidential Portion Omitted] on June 1, 1996 and on each anniversary thereof during the Term) and (y) Multex's


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documented out-of-pocket expenses reasonably incurred for materials consumed in connection with Multex's work on such project and for any related travel and lodging.


(b) Each of the following terms is defined in the Section indicated:


Audited Party 5.3
Auditing Party 5.3
Assertion 9.2
Claims Notice 9.2
Confidential
Information 6.4
Damages 9.1
Disclosing Party 6.4
Escrow Agent 4.9
Indemnitee 9.2
Indemnitor 9.2
Multex Permits 7.2
Multex Technology
Source Code 4.9
Other Party 8.2
Permissioning Upgrade 2.4
Receiving Party 6.4
Reuter Permits 7.1
Substantial Enhancement 2.6
Term 8.1
Terminating Party 8.2
Termination Date 8.1
Third Party Licensor 6.2
Upgrade 2.4


1.2 Rules of Construction. As used in this Agreement, neutral pronouns and any variations thereof shall be deemed to include the feminine and masculine and all terms used in the singular shall be deemed to include the plural, and vice versa, as the context may require. The words "herein," "hereof" and "hereunder" and other words of similar import refer to this Agreement as a whole, including the Exhibits and Schedules hereto, as the same may from time to time be amended or supplemented and not to any particular subdivision contained in this Agreement. The word "including" when used herein is not intended to be exclusive, or to limit the generality of the preceding words, and means "including, without limitation". References herein to "dollars" and "$" are to United States dollars. References herein to an Article, Section, subsection, clause, Exhibit or Schedule shall refer to the appropriate Article, Section, subsection, clause, Exhibit or Schedule in or to this Agreement. All references herein to times of the day are to the times of the day in New York City.


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Article II
THE MULTEX TECHNOLOGY


2.1 Multex Technology License.


(a) Multex hereby grants to Reuters on behalf of the Reuter Group, and Reuters on behalf of the Reuter Group hereby accepts from Multex,


(i) the worldwide, non-exclusive, fully paid-up and perpetual
right (subject to payment in accordance with Section 5.1 (a)) to use
and reproduce the Multex Technology, and


(ii) the worldwide, non-exclusive, fully paid-up right (subject
to payment in accordance with Section 5.1 (a)) during the Term to
market and distribute the Multex Technology and to grant to Reuter
Subscribers worldwide, non-exclusive, nontransferable (subject to
subsection (c)) and perpetual rights (or, in Reuters discretion, less
extensive rights; in either case subject to payment in accordance with
Section 5.1 (a)) to use the Multex Technology.


(b) Subject to the terms of this Agreement, the Reuter Group may, without further liability to Multex, use, reproduce, market or distribute the Multex Technology to provide (or in connection with providing) any Reuter Subscriber with any data or technology of any kind (except for technology that is incompatible with the Multex Technology), for any use and from any source whatsoever, all in accordance with applicable law, and as determined in the sole discretion of the Reuter Group (it being understood that if such Reuter Subscriber shall be permitted to use the Multex Technology in accordance herewith after expiration of the Term, the provisions of this subsection shall continue to apply).


(c) Any right granted during the Term to a Reuter Subscriber pursuant to subsection (a)(ii) may, at the Reuter Group's option, (x) inure to the benefit of such Reuter Subscriber and any successor of, and any assignee of a material portion of the business of, such Reuter Subscriber (each of which successors and assigns shall be deemed to be a Reuter Subscriber and shall execute a Subscriber Agreement) and (y) be renewed after the Term. that:


2.2 Certain Representations and Warranties.


(a) Multex represents and warrants that:


(i) it is not subject to any contractual or other obligation or
restriction, that prohibits or would prohibit, or impairs or would impair,
its grant of licenses and rights hereunder upon the terms and conditions
provided herein;


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(ii) it has all rights, titles, licenses, permissions and
approvals necessary to grant the licenses and rights it grants hereunder
upon the terms and conditions provided herein (including all necessary
rights, titles, licenses, permissions and approvals in respect of the Third
Party Technology);


(iii) the Multex Technology, the use, reproduction, marketing
and distribution thereof by the Reuter Group upon the terms and conditions
provided herein and the use thereof by Reuter Subscribers upon the terms
and conditions provided herein does not in any manner contravene, breach or
constitute an unauthorized use or misappropriation of any Intellectual
Property Right or any other property or proprietary right of any Person
(including the owners of all such rights in the Third Party Technology);


(iv) the licenses and rights granted by it hereunder are free and
clear of any liens, claims or encumbrances whatsoever, however and whenever
arising, that would, in the aggregate, have a material adverse effect on
the ability of the Reuter Group and the Reuter Subscribers fully to use
such licenses and rights in accordance with the terms hereof;


(v) the Multex Technology has been and will have been developed
in a professional manner and properly displays Final Product; and


(vi) Multex is not aware that the Multex Technology contains any
"computer virus" or "Trojan horse," and has taken and will take
commercially reasonable steps in the development of the Multex Technology
to ensure that no such "computer virus" or "Trojan horse" is otherwise
contained in the Multex Technology.


(b) Without prejudice to any of the rights or remedies of Reuters hereunder, Multex covenants and agrees that it will take such action as is necessary to cause its representations and warranties set forth in this Section to be true and correct throughout the Term, and thereafter until such further time as Reuters royalty-payment obligation under Section 5. I (a) shall have ceased, as if made continuously throughout the Term and until such further time.


(c) This Section shall survive the termination of this Agreement for any reason until such time as Reuters royalty-payment obligation under Section 5.l(a) shall have ceased.


2.3 Reuters to Receive Benefit of Upgrades, Discharge of Liens. Multex covenants and agrees that:


(a) subject to Section 2.6, Multex will upgrade and enhance the computer software delivered to Reuters hereunder so that, unless directed otherwise by Reuters in a specific case, the Multex Technology is at all times at least as useful, upgraded and enhanced


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as the most useful, upgraded and enhanced Financial Institution research technology supplied by Multex to any Person (provided that the foregoing will not apply to any enhancement made for the sole benefit of a third party who funded the development expenses related thereto, as long as Multex offered Reuters the opportunity to participate in such development on the same terms as were offered to such third party, and Reuters rejected such offer), and


(b) if Multex shall become aware of the existence of any liens, claims or encumbrances with respect to the Multex Technology or Multex Final Product that shall arise at any time, and any such liens, claims or encumbrances would, in the aggregate, have a material adverse effect on the ability of the Reuter Group or the Reuter Subscribers fully to use the Multex Technology or the Multex Final Product in accordance with the terms hereof, Multex will cause such liens, claims or encumbrances to be removed, discharged or terminated as promptly as possible, or will as promptly as possible post a bond or other security such that no such lien, claim or encumbrance will affect such ability of the Reuter Group or the Reuter Subscribers.


Subsection (b) shall survive the termination of this Agreement for any reason until such time as Reuters royalty-payment obligation under Section 5.1(a) shall have ceased.


2.4 Required Multex Technology Upgrades.


(a) From time to time during the Term, Reuters may elect that Multex upgrade, modify and enhance the Multex Technology theretofore delivered to Reuters so that it has each of the capabilities described on Exhibit 2.4 (each separately numbered upgrade, modification or enhancement described on Exhibit 2.4, under Part A or Part B, being referred to as an "Upgrade"). Reuters shall give Multex written notice of each such election specifying the relevant Upgrade whereupon Multex will use commercially reasonable efforts to ensure that such Upgrade is delivered to Reuters as soon as practicable and that it functions to the specifications agreed to by the parties. It is understood that, except as provided in subsection (c), Reuters is under no obligation to make any election pursuant to this Section. From time to time during the Term, the parties may by mutual agreement add additional Upgrades to Schedule 2.4 in accordance with Section 10.6.


(b) Reuters will reimburse Multex in accordance with Section 6.8 for its Time and Materials Expenses incurred in connection with each Upgrade identified on Exhibit 2.4, provided that


(x) with respect to any such Upgrade identified under Part A of
Exhibit 2.4 Reuters may, in accordance with Section 5.2(c), but
subject to Section 6.8(e), off-set all related expenses reimbursed to
Multex under this subsection (b) against future royalty payments owing
from Reuters to Multex pursuant to Section 5.1 (a) or (b); and


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(y) if Multex subsequently incorporates any such Upgrade
identified under Part B of Exhibit 2.4 into a product or service that
Multex provides to a Person other than a member of the Reuter Group,
Multex will give Reuters notice thereof, and in any event Reuters may,
in accordance with Section 5.2(c), but subject to Section 6.8(e), off-
set all related expenses reimbursed to Multex under this subsection
(b) against future royalty payments owing from Reuters to Multex
pursuant to Section 5.1 (a) or (b).


(c) Reuters hereby elects Upgrade No. 1 identified under Part A of Exhibit 2.4 (the "Permissioning Upgrade"). Multex will use commercially reasonable efforts to ensure that the Permissioning Upgrade functions to Reuters specifications and has been delivered to Reuters as soon as practicable.


2.5 Error Correction.


(a) Multex will use commercially reasonable efforts to correct errors occurring in the Multex Technology for the benefit of Reuters and the Reuter Subscribers, provided that with respect to any Third Party Technology, if Multex does not have the right to correct errors in the same, Multex will promptly notify the relevant licenser and use commercially reasonable efforts to procure that such error is corrected as promptly as possible in accordance with the relevant licensing agreement.


(b) To the extent that any Multex Technology is replaced with upgraded or enhanced Multex Technology, Multex will continue to correct errors in the replaced Multex Technology in accordance with this Section for so long as such replaced Multex Technology is being used by any Reuter Subscriber.


(c) Multex will not be responsible for (but will at the expense and reasonable request of Reuters cooperate with Reuters in remedying) (i) any error in the Reuter Network, in a Reuter Subscriber's network or in the operating or telecommunications environment of Reuters or any Reuter Subscriber, (ii) any error in any software other than the Multex Technology, (iii) any error caused by the use of any faulty or defective equipment, or any equipment, platform, system or configuration that is incompatible with the Multex Technology (it being agreed that Multex will fully cooperate with Reuters in determining whether any equipment, platform, system or configuration is or would be incompatible therewith), (iv) any error arising out of any use of the Multex Technology not in accordance with the terms hereof, (v) any error in the Multex Technology caused by the use of faulty, defective or incompatible third-party software (other than Third Party Technology) or (vi) any error caused by the misconduct of any third party than Multex personnel).


(d) If Reuters at any time discovers an error in the Multex Technology, Reuters may give Multex a written report thereof. Each such error report will include a description of the relevant error and of the operating environment (hardware or software) in


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which the Multex Technology was running when such error was discovered, and, if practicable, a test case which demonstrates the error.


(e) If Multex cannot reproduce a reported error in its own operating environment, Multex will send a member of its support staff to observe the error in the Reuter (or Reuter Subscriber) operating environment, and the parties will evenly share any related travel expenses and Time and Materials Expenses (provided that if the parties subsequently agree that Multex was not responsible for the reported error in accordance with subsection (c), Reuters shall be solely responsible for such expenses).


(f) Subject to subsections (a) and (c), Multex will use reasonable commercial efforts to correct each reported error as soon as practicable, giving due regard to the seriousness of such error (and in any event no later than the next generally available release of the Multex Technology), provided that if Reuters informs Multex that correction of such error is critical to the use or operation of the Technology, or if such error involves substantial loss of the ability to process or display Final Product, or continuous and repeated failure of the Multex Technology, Multex will use best efforts to correct such error as promptly as practicable. Multex will respond to each error report within 7 days (or 5 days, in the case of any error referred to in the preceding proviso), either correcting such error or providing a plan for correcting the same together with an estimated time frame for correction.


(g) Except as otherwise provided in subsections (c) and (e), Multex will be solely responsible for any costs and expenses incurred by it under this Section (it being understood that the parties will equitably apportion the expenses relating to any error that involves a combination of one or more factors specified in subsection (c) and one or more factors outside the scope of subsection (c)).


(h) This Section shall survive the termination of this Agreement for any reason until s
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