EXHIBIT 10.35
SOFTWARE MAINTENANCE AGREEMENT
This Agreement ("Agreement") is made and entered into and effective
this 25th day of September, 1998 by and between TIBCO Finance Technology Inc.,
having its principal place of business at 0000 Xxxxxx Xxxxx, Xxxx Xxxx
Xxxxxxxxxx 00000, XXX ("TIBCO") and Instinct Corporation, having its principal
place of business at 000 Xxxxx Xxx., Xxx Xxxx, XX 00000 ("Client").
WHEREAS, TIBCO has provided to Client certain software as specified in
Exhibit A of this Agreement ("Covered Software") pursuant to a software license
agreement between the parties (the "License Agreement"); and
WHEREAS, Client wishes to have TIBCO provide maintenance and support
services pursuant to the terms and conditions of this Agreement;
NOW, THEREFORE, the parties agree as follows:
I. INCORPORATION OF DOCUMENTS
The following documents are attached hereto and, by this reference,
incorporated in this Agreement:
Exhibit A Covered Sites, Software & Configuration
Exhibit B Authorized Client Contacts
Exhibit C Services and Fees
II. COVERAGE
During the term of this Agreement, TIBCO agrees to provide maintenance
and support services for the Covered Software operating at the site(s) and on
the hardware configurations listed in Exhibit A ("Maintenance Services"). Unless
specifically listed in Exhibit A, Section II, Covered Software does not include
hardware vendor operating systems and other system software, Client-developed
software, and third-party software (except any third party software embedded in
the Covered Software).
III. DESCRIPTION OF MAINTENANCE SERVICES
A. Support Services. During the term of this Agreement, TIBCO will
provide the services described herein so as to maintain the Covered Software in
good working order, keeping it free from material defects so that the Covered
Software shall function properly and in accordance with the accepted level of
performance as set forth in the License Agreement.
(1) Service Response. TIBCO will make available to Client a
telephone number (the "Support Center HOTLINE") for Client to call requesting
service of the Covered Software. The Support Center HOTLINE operates during
business hours, 9:00 a.m. to 5:00 p.m., Monday through Friday, excluding legal
holidays. Extended coverage is available for an additional fee. The HOTLINE can
also be used to notify TIBCO of problems associated with the Covered Software
and related documentation.
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B. Remedial Support. Upon receipt by TIBCO of notice from Client
through the Support Center HOTLINE of an error, defect, malfunction or
nonconformity in the Covered Software, TIBCO shall respond as provided below:
Severity 1: Produces an emergency situation in which the Covered
Software is inoperable, produces incorrect results, or fails
catastrophically.
RESPONSE: TIBCO will provide a response by a qualified member of
its staff to begin to diagnose and to correct a Severity 1
problem as soon as reasonably possible, but in any event a
response via telephone will be provided within one (1) hour.
TIBCO will continue to provide best efforts to resolve Severity
1 problems in less than forty-eight (48) hours. The resolution
will be delivered to Client as a work-around or as an emergency
software fix. If TIBCO delivers an acceptable work-around, the
severity classification will drop to a Severity 2.
Severity 2: Produces a detrimental situation in which performance
(throughput or response) of the Covered Software degrades substantially
under reasonable loads, such that there is a severe impact on use; the
Covered Software is usable, but materially incomplete; one or more
mainline functions or commands is inoperable; or the use is otherwise
significantly impacted.
RESPONSE: TIBCO will provide a response by a qualified member
of its staff to begin to diagnose and to correct a Severity 2
problem as soon as reasonable possible, but in any event a
response via telephone will be provided within four (4) hours.
TIBCO will exercise best efforts to resolve Severity 2
problems within five (5) days. The resolution will be
delivered to Client in the same format as Severity 1 problems.
If TIBCO delivers an acceptable work-around for a Severity 2
problem, the severity classification will drop to a Severity
3.
Severity 3: Produces an inconvenient situation in which the Covered
Software is usable, but does not provide a function in the most
convenient or expeditious manner, and the user suffers little or no
significant impact.
RESPONSE: TIBCO will exercise best efforts to resolve Severity
3 problems in the next maintenance release.
Severity 4: Produces a noticeable situation in which the use is
affected in some way which is reasonably correctable by a documentation
change or by a future, regular release from TIBCO.
RESPONSE: TIBCO will provide, as agreed by the parties, a fix
or fixes for Severity 4 problems in future maintenance
releases.
C. Maintenance Services. During the term of this Agreement, TIBCO will
maintain the Covered Software by providing software updates and enhancements to
Client as the same are offered by TIBCO to its licensees of the Covered Software
under maintenance generally ("Updates"). All software updates and enhancements
provided to Client by TIBCO pursuant to the terms of this Agreement shall be
subject to the terms and conditions of the License Agreement between the
parties. Updates will be provided on an as-available basis and include the items
listed below:
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(1) Bug fixes;
(2) Enhancements to market data service software provided by
TIBCO to keep current with changes in market data services or as TIBCO makes
enhancements;
(3) Enhancements to keep current with the current hardware
vendor's OS releases, as available from TIBCO, provided that the current
hardware vendor's OS release is both binary and source-compatible with the OS
release currently supported by TIBCO; and
(4) Performance enhancements to Covered Software.
(5) Updates do not include:
(a) Platform extensions including product extensions
to (i) different hardware platforms; (ii) different windowing system platforms;
(iii) different operating system platforms; and
(b) New functions such as (i) new functionality in
the TIBTM or market data delivery infrastructure; (ii) new market data feeds;
(iii) new applications; and (iv) new presentation tools.
Updates will be provided in machine-readable format and updates to
related documentation will be provided in hard copy form. All such deliveries
shall be made by a single communication to a single Client designated
distribution point specified in Exhibit A. Duplication, distribution and
installation of Updates is the responsibility of Client. If requested, TIBCO
will provide on-site assistance in the installation of Updates on a time and
materials basis, plus expenses.
TIBCO will provide support services for previous releases for a minimum
period of six (6) months following the general availability of a new release or
software update. After this time, TIBCO shall have no further responsibility for
supporting and maintaining the prior releases.
TIBCO assumes no responsibility for the correctness of, performance of,
or any resulting incompatibilities with, current or future releases of the
Covered Software if the Client has made changes to the system hardware/software
configuration or modifications to any supplied source code which changes effect
the performance of the Covered Software and were made without prior notification
and written approval by TIBCO. TIBCO assumes no responsibility for the operation
or performance of any Client-written or third-party application.
D. Services Not Included. Maintenance Services do not include any of
the following: (1) custom programming services; (2) on-site support, including
installation of hardware or software; (3) support of any software not Covered
Software; (4) training; (5) out-of-pocket and reasonable expenses, including
hardware and related supplies; or (6) any other activity set forth in Articles
IV through VI of this Agreement.
IV. ON-SITE SUPPORT
As requested by Client, and upon reasonable notice and approval by
TIBCO, TIBCO shall maintain personnel at any of the Covered Sites. On-site
personnel will perform ongoing
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system administration, monitoring, reconfiguration and tuning, problem
diagnosis, and resolution, and interfacing with Client personnel on production
system issues, to the extent possible during normal business hours. These
personnel shall also be responsible for the installation of new TIBCO software
releases on the production system and the distribution of documentation updates.
In addition, on-site personnel will provide training to Client personnel on the
operation and administration of the Covered Software as time permits.
V. PER CALL SUPPORT
Visits by TIBCO engineers to the Covered Sites can be provided for
non-maintenance related activities to supplement the services provided under
this Agreement. Tasks performed under Per Call Support include, but are not
limited to, installation of additional hardware, training, and consulting for
non-TIBCO applications. At any time, Client may request Per Call Support. All
requests will be documented by a work order from Client to TIBCO and response by
TIBCO will be on a best efforts basis. The minimum call duration is two (2)
hours. Client will be billed for labor, including travel time, plus reasonable
expenses required for the performance of the requested service. Expenses for
travel and travel-related expenses and individual expenses in excess of US$500
require the prior approval of Client. Fees for Per Call Support are contained in
Exhibit C.
VI. TIME AND MATERIALS SERVICES
A. For Non-TIBCO Problems. In the event that Client notifies TIBCO of a
problem experienced by Client in connection with the operation of the Covered
Software, TIBCO shall respond as provided in Section III.B., above. If the cause
of such problem is not an error, defect or nonconformity in the Covered
Software, Client shall compensate TIBCO for all work performed by TIBCO in
connection therewith, on a time and materials basis at TIBCO's then current
standard rates, unless otherwise agreed by the parties in writing at the time,
plus expenses. Expenses for travel and travel-related expenses and individual
expenses in excess of US$500 require the prior approval of Client.
B. For Non-TIBCO Software. Upon request and reasonable notice from
Client, TIBCO will provide assistance in the installation of non-TIBCO software
on a time and materials basis, plus expenses. Non-TIBCO software consists of any
software not specifically listed in Exhibit A, Section II, including the
following:
1. New releases and updates to hardware vendor operating
systems and other system software not listed in Exhibit A;
2. Client-developed software; and
3. Third-party software (except third party software embedded
in the Covered Software).
VII. ACCESS
Software Maintenance is conditioned upon provision by Client to TIBCO
of reasonable appropriate access to the system(s) running the Covered Software,
including, but not limited to,
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passwords, system data, file transfer capabilities, and remote
log-in-capabilities. TIBCO will maintain security of the system and use such
access only for the purposes of this Agreement and will comply with Client's
standard security procedures. Information accessed by TIBCO agents or employees
as a result of accessing Client's system shall be deemed confidential
information pursuant to the terms of the Software License Agreement executed
concurrently between the parties hereto.
Client shall also use commercially reasonable efforts to provide an
active voice telephone line at each site which is available continuously when
required for support access.
VIII. PROBLEM REPORTING AND TRACKING PROCEDURES
Client may use the services described herein only by making reference
to the authorized support Agreement number. All such reports and requests will
be made through the authorized individuals (up to two [2] per site), designated
by Client in Exhibit B, who may be changed by Client from time to time by
written notice to TIBCO. A twenty-four (24) hour Support Center HOTLINE is
provided for problem reporting outside of normal business hours.
IX. FEES
A. Maintenance Fees. Fees for Maintenance Services provided under this
Agreement are contained in Exhibit C. Any time a site or software package is
added or deleted from Exhibit A, TIBCO will automatically adjust and/or amend
Exhibit A and Exhibit C accordingly. TIBCO will also perform a bi-annual audit
of all sections in Exhibit A. If changes have occurred, TIBCO will adjust and/or
amend Exhibit A and Exhibit C, and maintenance fees will be adjusted
accordingly.
Rates will be reviewed and adjusted accordingly when another site is
added and/or the workstation/server base increases (i.e., added equipment and/or
installed software) and/or software to be supported exceeds the Covered
Software.
B. Expenses. Client agrees to reimburse TIBCO for reasonable expenses
related to the performance of services. Expenses may include, but are not
limited to, charges for materials, freight, travel (including lodging and
associated expenses), printing and documentation, and other out-of-pocket
expenses reasonably required for performance. Expenses for travel and
travel-related expenses and individual expenses in excess of US$500 require the
prior approval of Client.
X. PAYMENT
A. Maintenance fees and fees for on-site support, if applicable, will
be invoiced annually, thirty (30) days in advance of the year.
B. The charges for time and materials services and any expenses as
described in this Agreement will be invoiced each month for charges (services,
material and expenses) incurred in the previous month.
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C. All undisputed invoices shall be due and payable within thirty (30)
days of the date of the invoice. A service charge of 1.5% per month or the
lawful prevailing rate, whichever is lower, will be applied to all invoices
which are past due. Such charges shall apply from the date Client is notified
that the amount is past due.
XI. SUPPORT AGREEMENT NUMBER
For purposes of problem notification, it is necessary for Client to utilize the
Agreement Number shown on page 1 of this Agreement.
XII. EXCLUSION OF LIABILITY
TIBCO MAKES AND CLIENT RECEIVES NO WARRANTY EXPRESS OR IMPLIED AND
THERE IS EXPRESSLY EXCLUDED ALL WARRANTIES OF MERCHANTIBILITY AND FITNESS FOR A
PARTICULAR PURPOSE. CLIENT ACKNOWLEDGES AND AGREES THAT THE MAINTENANCE FEES AND
OTHER CHARGES WHICH TIBCO IS CHARGING UNDER THIS AGREEMENT DO NOT INCLUDE ANY
CONSIDERATION FOR ASSUMPTION BY TIBCO OF THE RISK OF CLIENT'S CONSEQUENTIAL OR
INCIDENTAL DAMAGES OR OF UNLIMITED DIRECT DAMAGES. ACCORDINGLY, TIBCO SHALL HAVE
NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT FOR
CONSEQUENTIAL, EXEMPLARY, OR INCIDENTAL DAMAGES, EVEN IF IT HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES. EXCEPT IN THE CASE OF GROSS NEGLIGENCE OR
WILFUL MISCONDUCT, IN NO EVENT SHALL TIBCO BE LIABLE HEREUNDER TO CLIENT FOR
CUMULATIVE DIRECT DAMAGES IN ANY AMOUNT GREATER THAN THAT PAID BY CLIENT TO
TIBCO UNDER THIS AGREEMENT AS A MAINTENANCE FEE FOR THE TWELVE (12) MONTH PERIOD
IMMEDIATELY PRECEDING THE ACCRUAL OF THE CAUSE OF ACTION.
XIII. TAXES
Client shall, in addition to the other amounts payable under this
Agreement, pay all sales and other taxes, national, state, or otherwise, however
designated, which are levied or imposed by reason of transactions contemplated
by this Agreement, except those which arise as a result of income, including
withholding taxes or similar deductions. Without limiting the foregoing, Client
shall promptly pay to TIBCO an amount equal to any such items actually paid, or
required to be collected or paid by TIBCO.
XIV. General
A. Each party acknowledges that it is bound by the terms of this
Agreement and further agrees that it is the complete and exclusive statement of
the Agreement between the parties, which supersedes and merges all prior
proposals, understandings and all other Agreement with respect to software
maintenance, oral and written, between the parties relating to this Agreement.
This Agreement may not be modified or altered except by a written instrument
duly executed by both parties.
B. This Agreement and performance hereunder shall be governed by and
construed in accordance with the laws of the State of California as applied to
transactions to be carried out
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wholly within California by California residents. Any and all proceedings
relating to the subject matter hereof shall be maintained in the state or
federal courts of Manhattan County, New York, which courts shall have exclusive
jurisdiction for such purpose. Each of the parties waives any objection to venue
or in personam jurisdiction, provided that service is effective.
C. If any provision of this Agreement shall be held to be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall in no way be affected or impaired thereby.
D. Neither party may assign, without the prior written consent of the
other, its rights, duties or obligations under this Agreement to any other
person or entity, in whole or in part.
E. The waiver or failure of either party to exercise in any respect any
right provided for herein shall not be deemed a waiver of any further right
hereunder.
F. This Agreement shall be binding upon and inure to the benefit of the
parties' respective 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, except that either party may assign this Agreement and/or any of its
rights and/or obligations hereunder, upon written notice to the other party to
another entity in the event of that party's merger or consolidation with another
entity, without the consent of the other party, provided that the assignee is
capable of fulfilling and intends to fulfill the obligations of the assigning
party under this Agreement. Notwithstanding the foregoing, Client may assign
this agreement to any Instinct company in the business of fixed income and
equities brokerage without the consent of TIBCO, provided that the assignee is
capable of fulfilling and intends to fulfill the obligations of Client under
this Agreement. Each party may terminate this Agreement in case there is a
change of control of the other party, but shall not be entitled to any refund
whatsoever and all amounts owing shall be immediately paid.
XV. TERM AND TERMINATION
The term of this Agreement shall be for three (3) years. Software
Maintenance service shall commence upon the expiration of the Warranty Period
set forth in the License Agreement and shall remain in effect for the original
three-year (3-year) term and, thereafter, for renewal terms on a year-to-year
basis until terminated (i) by Client in the event the Covered Software is taken
out of service and upon sixty (60) days' notice to TIBCO; (ii) by either party
upon sixty (60) days' notice prior to the expiration of the original three-year
(3-year) or any subsequent one-year (1-year) renewal term; (iii) by either party
upon a default of the other party, such default remaining uncured for thirty
(30) days from the date of written notice from the non-defaulting party to the
other specifying such default; (iv) upon the bankruptcy or insolvency of TIBCO;
or (v) the License Agreement is terminated. Upon such termination, TIBCO shall
refund to Client a portion of the maintenance fee prorated to reflect the date
of termination and neither TIBCO nor Client shall have any further obligations
hereunder.
XVI. SUPPORT OPTION ELECTION(S)
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By signing this Agreement, Client requests and TIBCO agrees to provide
the on-site support services indicated below in accordance with the terms set
forth in Exhibit C:
_________ Full-time, on-site support at five (5) days per week for a
period of [ ] months.
_________ Part-time, on-site support at [_1 days per week (on a
schedule to be mutually agreed upon) for a period of [ ] months.
On-Site support at any level (full-time or part-time) may be extended
or changed to another level upon sixty (60) days' written notice to TIBCO by
Client. Renewals will be at the then-current rates.
IN WITNESS WHEREOF, each party has caused a counterpart of the original
of this Agreement to be executed as of the date first written above by its duly
authorized representative.
INSTINET CORPORATION TIBCO FINANCE TECHNOLOGY INC.
Signed: ________________________ Signed: ___________________________
Print Name: ____________________ Print Name: _______________________
Title: __________________________ Title: ____________________________
Date: __________________________ Date: _____________________________
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EXHIBIT A
COVERED SITES, SOFTWARE AND CONFIGURATION
A. Covered Sites.
This Agreement covers the following Client sites
000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000
B. Covered Software.
This Agreement covers the following software components at each site
listed in Exhibit A, Section A:
ACTIVE ENTERPRISE COMPONENTS - (up to 1000 simultaneous licenses)
(Platform support for HP/SUN/Windows NT)
- TIB/Rendezvous PRO (Server)
- TIB/Rendezvous PRO (Client)
- TIB/Rendezvous Routing Daemon (RVRD)
- TIB/HAWK
- TIB/ObjectBus
- TIB/MessageBroker
MarketData Distribution System (MDDS) - (Support for up to 300
simultaneous MDDS users/licenses)(Platform support for HP/SUN/Windows
NT)
- MarketSheet for Windows (including runtimes)
- TIBCO Interactive Feed Handler TIC
- TIBCO Entitlements -Version 4
- TIBNews Database Server
- Reuters News 2000 Feed Handler
- Reuters Select Feed Plus (RSFP) --4 RDF (TBD)
- Global Services Manager (GSM)
- TIB/Rendezvous Standard Run-time
- ciServer Run-times
- TIB/Automation
- TIBRouter +
C. Covered Configuration.
This Agreement covers the following configuration:
____1000___ workstation licenses of Covered Software purchased by
Client and installed on ____1000 ______ workstations.
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D. Update Distribution Point.
Updates to software and documentation shall be distributed as per the
terms of the Agreement to the following Client distribution point:
Address: _____________________________________________
Contact: _____________________________________________
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EXHIBIT B AUTHORIZED
CLIENT CONTACTS
For purposes of this Agreement, the following individuals shall be designated
per site as the authorized Client support contacts:
SITE #1 at 000 Xxxxx Xxx,, Xxx Xxxx, XX 00000:
Name Title Phone #
Contact: ____________________ ________________________ __________________
Contact: ____________________ ________________________ __________________
SITE #2 at __________________:
Name Title Phone #
Contact: ____________________ ________________________ __________________
Contact: ____________________ ________________________ __________________
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EXHIBIT C
SERVICES AND FEES
A. Maintenance Fee
Maintenance Services for the applications and configuration listed in Exhibit A
will be provided for a fee of $270,000.00 per year for the first year of this
Agreement. This fee will be adjusted at each anniversary date of this Agreement
to the then current pricing. Should additional software be licensed and
installed at the Covered Site(s), the fee will be adjusted to reflect the
additional software.
B. On-Site Support
This option provides on-site TIBCO staff to address system-related tasks
including:
Ongoing system administration, monitoring, reconfiguration and tuning.
Problem Diagnosis and Resolution User and system level training.
Installation of new software purchased from TIBCO. Installation of new
software releases and documentation. System customization - User
accounts, real-time spreadsheets, MarketSheet customization, Page
Shredding, etc.
Other value-added consulting as time permits. These activities would
include in-house application integration support, integration of third
party UNIX applications, general UNIX consulting and support, etc.
Fees for the above services for the first year of this Agreement, depending on
the level of on-site support, are as follows:
Level 1: Full-time on-site support (five [5] days
per week, Monday through Friday): $_________/month
Level 2: Part-time on-site support (three [3] days
per week): $_________/month
Expenses related to the performance of the services described herein are in
addition to the above fees. For non-full-time support options, on-site support
will be performed in accordance with a mutually agreed schedule.
C. Per-Call Support
The labor rate for support on a per-call basis during regular business hours,
Monday through Friday, 9:00 a.m. to 5:00 p.m. according to the local time of the
Covered Site seeking per-call support, is $200.00 per hour with a two (2) hour
minimum.
The above rates are subject to change from time to time at TIBCO's sole
discretion.
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