HOSTING AND SERVICES AGREEMENT

Exhibit 10

 

 

HOSTING AND SERVICES AGREEMENT ¹

 

between

 

A.G. EDWARDS TECHNOLOGY GROUP, INC.

 

and

 

BETA SYSTEMS,

 

a division of

 

THOMSON FINANCIAL INC.

 

Dated October 4, 2004

 

1	[***] indicates that text has been deleted which is the subject of a confidential treatment request. This text has been filed separately with the SEC.

 

Confidential and Proprietary Information of AGE and BETA

 

 

TABLE OF CONTENTS

 

 

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TABLE OF CONTENTS

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TABLE OF CONTENTS

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TABLE OF CONTENTS

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TABLE OF EXHIBITS

 

 

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This HOSTING AND SERVICES AGREEMENT , dated October 4, 2004 (the “ Agreement Date ”), is between AGE and BETA .

 

ARTICLE I

 

DEFINITIONS

 

The terms with initial capital letters used in this Agreement shall have the meanings specified in Exhibit 1 .

 

ARTICLE II

 

TERM

 

Section 2.01 Pre-Conversion Agreement .

 

(a) This Agreement supersedes and replaces in its entirety the Pre-Conversion Agreement as it relates to BETA Deferred Gaps only, effective as of the Agreement Date. The other terms of the Pre-Conversion Agreement remain in effect. By executing this Agreement, neither Party will be deemed to have waived, or to have released the other Party from, any obligation, claim, issue, dispute, indemnity or liability in connection with the services provided under the Pre-Conversion Agreement, whether arising, becoming known or discovered or asserted before or after the Agreement Date, and any damages arising therefrom shall not be subject to the limitations of liability set forth in Article XIX hereof, but shall be subject to the limitations set forth in the Pre-Conversion Agreement.

 

(b) The license and ownership rights and obligations set forth in the Pre-Conversion Agreement shall survive any termination or expiration of the Pre-Conversion Agreement.

 

Section 2.02 Initial Term .

 

The initial term of this Agreement shall commence on the Agreement Date and continue until 23:59 (Central Time) on the Initial Agreement Expiration Date, or such earlier date upon which this Agreement may be terminated in accordance with its terms (the “ Initial Term ”).

 

Section 2.03 Renewals and Extensions .

 

Unless this Agreement is terminated earlier in accordance with its terms, AGE shall notify BETA at least 180 days prior to any Expiration Date as to whether AGE desires to renew this Agreement. If AGE provides BETA with notice that it does not desire to renew this Agreement, then this Agreement shall terminate at 23:59 (Central Time) on the applicable Expiration Date. If AGE fails to provide BETA with any notice regarding renewal, or provides BETA with notice that it desires to renew this Agreement, then the term of this Agreement shall extend for a period selected by AGE (the “ Extension Period ”) of up to twelve (12) months from the applicable Expiration Date (the “ Renewal Term ”), at the terms and conditions (including the Fees) in effect as of the applicable Expiration Date.

 

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ARTICLE III

 

SERVICES

 

Section 3.01 Designated Services .

 

(a) Commencing on the Agreement Date (or such later date as is specified in this Agreement), and continuing throughout the Term and, to the extent requested by the AGE, during any Termination Assistance Period, BETA shall be responsible for providing to AGE and, as directed by AGE, to AGE Companies and AGE Agents, all of the following:

 

(1) the Conversion Services (including the services, functions, responsibilities and projects described in Exhibit 2 );

 

(2) the Hosting Services (including the services, functions, responsibilities and projects described in Exhibit 3 , Exhibit 4 and Exhibit 21 );

 

(3) the Development Services (including the services, functions, responsibilities and projects described in Exhibit 3 );

 

(4) the services, functions and responsibilities that are of a nature and type that would ordinarily be performed by an organization, or part of an organization performing services similar to the Services within a company, in the brokerage and financial services industry, even if not specifically described in this Agreement; and

 

(5) any services, functions or responsibilities not specifically described in this Agreement, but which are inherent to, or customary or required as part of the proper performance and delivery of, all of Services (clauses (1) through and including (5) of this Section, the “ Designated Services ”).

 

(b) Except as otherwise provided in this Agreement, BETA shall be responsible for providing all facilities, personnel, Software, Tools, Equipment, Systems, supplies and other resources necessary to provide the Services.

 

(c) Except as may otherwise be provided in this Agreement, Exhibit 3 or an applicable Work Authorization, the Services shall be provided on a 24x7x365basis. Notwithstanding the foregoing, products set forth on Exhibit 16 shall be available only as set forth in Exhibit 16 .

 

(d) Upon AGE’s prior written approval not to be unreasonably withheld or delayed, BETA may limit the availability set forth in Section 3.01(c) for system upgrades, maintenance or other operational considerations. For avoidance of doubt, the foregoing shall not relieve BETA from the obligation to perform the Services in accordance with the Service Levels. BETA will, upon request from AGE, use reasonable efforts to extend the hours of system availability, or as otherwise agreed by the parties through the Change Management Procedures.

 

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(e) BETA acknowledges that its provision of the Services will require significant cooperation with third parties and BETA shall cooperate with third parties to the extent specified in this Agreement or otherwise requested by AGE, provided, however, that (i) any such third party is bound by confidentiality requirements between the third party and either AGE or BETA obligating it to keep confidential BETA confidential information consistent with the confidentiality requirements under this Agreement, and (ii) AGE shall obtain BETA’s approval in advance to the extent that AGE desires BETA to cooperate with any of the third parties listed on Exhibit 10 (“ BETA Direct Competitors ”), which approval will not be unreasonably withheld. BETA acknowledges that it will cooperate and work with (x) [                 ***                 ] in connection with [***] print and mail of AGE client-related materials (including trade confirmations, tax documentation, account statements and other miscellaneous documentation related to AGE’s provision of services to its clients) and electronic storage and online delivery of such client-related materials and (y) any other BETA Direct Competitor reasonably required by AGE to receive the Services from BETA (and only to the extent necessary for AGE to receive the Services from BETA). Such cooperation shall include providing to such third parties, to the extent specified by this Agreement or otherwise requested by AGE: (1) applicable written information concerning the usability and interoperability of the proprietary systems, data, computing environment and technology used in providing the Services; (2) reasonable assistance and support services to third party service providers of AGE; and (3) access to and use of the Systems, Software, Equipment, Tools and data used to provide the Services to the extent reasonably required for the activities of such third party providers. Notwithstanding the foregoing, in the event that such cooperation shall require BETA to incur any third party fees or expenses, BETA will obtain AGE’s written consent prior to incurring such third party fees and expenses and AGE will reimburse BETA for such pre-approved third party fees and expenses.

 

(f) AGE may increase or decrease the amount (including volume of transactions processed) and types of the Services it uses or receives under this Agreement, subject, in the event of a decrease, to the payment of the minimum amounts set forth in Exhibit 5 . To the extent any additional Services requested by AGE are New Services, such New Services will be agreed to in accordance with Article V , Exhibit 3 and Exhibit 17 .

 

(g) AGE and BETA have agreed to the BETA Deferred Gap Project Plan, which may be amended from time to time by mutual agreement to the parties in accordance with the PCR process set forth in Exhibit 3 , for (i) implementation of all businesses of AGE at the dates set forth therein and (ii) conversion of all files designated by AGE to the BETA Core Systems, in each case in accordance with Exhibit 2 and the Pre-Conversion Agreement as applicable. During the conversion period, beginning on the Agreement Date and ending upon the Conversion Effective Date, BETA and AGE will cooperate to ensure that the transition will occur according to the BETA Deferred Gap Project Plan. Both parties acknowledge that BETA is responsible for leading the efforts under the BETA Deferred Gap Project Plan, and that certain aspects of either party’s ability to properly perform its obligations hereunder and in Exhibit 2 and the Pre-Conversion Agreement as applicable in a timely manner is conditioned upon the other party’s proper and timely performance of certain obligations specified in Exhibit 2 and the Pre-Conversion Agreement as applicable, provided, however, that BETA shall use all commercially reasonable efforts to perform its obligations notwithstanding AGE’s failure to perform. Each party will notify the other party of any failure by its personnel to complete any such obligations; provided, however, that neither party shall have any responsibility to notify the other party of any failure that is

 

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unknown to it and the failure to provide such notice to the other party shall not relieve a party of any of its obligations hereunder or under Exhibit 2 or the Pre-Conversion Agreement. Both parties agree to staff their respective project teams with personnel of high professional ability, to replace departing personnel with substantially similar professional replacements as soon as practical after departure and to commit reasonable management support for the successful completion of the BETA Deferred Gap Project Plan. BETA acknowledges and agrees that in order for the BETA Deferred Gap Project Plan to be successful, the BETA Core Systems and associated Services and products must be fully functional in all material respects and appropriately integrated with AGE’s internal and third party related systems prior to the Conversion Effective Date. The BETA Deferred Gap Project Plan shall include detailed processes on implementing the integration of AGE’s internal and third party related systems. BETA and AGE also agree to use all commercially reasonable efforts to convert to the BETA Core Systems as expeditiously as possible those other businesses or portfolios identified by AGE to BETA from time to time.

 

Section 3.02 Additional Recipients of Services .

 

(a) AGE reserves the right to designate additional AGE Companies and AGE Agents to receive Services under this Agreement and BETA shall provide Services to such AGE Companies and AGE Agents, provided, however, that (i) any AGE Agent is bound by confidentiality requirements between the AGE Agent either AGE or BETA obligating it to keep confidential BETA confidential information consistent with the confidentiality requirements under this Agreement, and (ii) AGE shall obtain BETA’s approval in advance to the extent that AGE desires BETA to provide any Services to BETA Direct Competitors, which approval will not be unreasonably withheld. AGE shall share such information with BETA as may be necessary for BETA to determine which resources are required to meet AGE’s needs for AGE Companies and AGE Agents. AGE shall not be obligated to obtain the Services from BETA with respect to any AGE Companies or AGE Agents.

 

(b) For purposes of this Agreement, Services provided to AGE Companies and AGE Agents shall be deemed to be Services provided to AGE. As used in this Agreement, to the extent an AGE Company or AGE Agent is receiving Services under this Agreement, references to (1) the business, operations, policies, procedures and the like of AGE include such AGE Company or AGE Agent and (2) Services being performed for or received by AGE shall include the performance of such Services for and receipt of such Services by such AGE Company or AGE Agent.

 

(c) For purposes of clarity, Services provided to AGE Companies and AGE Agents are for the purpose, among other things, of enabling the AGE Companies and AGE Agents to enable AGE customers to benefit from the Services.

 

Section 3.03 BETA Strategic Direction .

 

BETA acknowledges that AGE has entered into this Agreement in reliance on BETA’s plans and strategies set forth in Exhibit 6 and BETA agrees to comply with the provisions of Exhibit 6 . BETA agrees to enhance the Systems in accordance with the BETA Strategic Directive set forth in Exhibit 6 .

 

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Section 3.04 BETA User Groups .

 

(a) As a recipient of the Designated Services, BETA will ensure that AGE shall be entitled to membership in the BETA User Committee (“ BUC ”) and shall have the option to participate in all BUC activities. BUC activities provide BETA customers with opportunities for input about ideas for changes and improvements to BETA’s services and to receive communications about the status of new developments, forthcoming changes and other matters of common concern to users. BETA will ensure that the AGE Account Executive or such other person designated by AGE shall be allowed to participate in all strategic planning sessions that the BUC holds.

 

(b) BETA will publish to the BUC its initiatives and strategic priorities for growing and improving the BETA platform and the related Services, and will review the same with AGE at least annually. Such initiatives and priorities will be subject to reasonable changes in the process in the future.

 

Section 3.05 Non-exclusive and Not Requirements Contracts .

 

Notwithstanding anything to the contrary contained in this Agreement, BETA acknowledges and agrees that (a) this is not a requirements contract and AGE shall not be required to obtain its requirements for any of the Services from BETA and (b) BETA is not the exclusive provider to AGE of any of the Services and AGE may at any time itself and/or through a third party provide and/or obtain any services (including services to supplement, replace or render unnecessary the Services). Each Party acknowledges that the other Party may enter into other transactions with companies that may be competitors, suppliers or customers of the other Party.

 

Section 3.06 Technical Architecture .

 

The BETA Core Systems shall be able to connect with and operate in conjunction with AGE’s information management technical architecture set forth in Exhibit 11 , as the same may be modified by AGE upon 30 days’ notice to BETA, or such other period of time as may be agreed by AGE and BETA in good faith.

 

Section 3.07 Knowledge Sharing; Post Conversion Training .

 

At least once every Contract Year, and on request after at least 30 days’ notice from AGE, BETA shall meet with representatives of AGE in order to (a) explain how the Systems work and should be operated (including Bingo and Webex presentations), (b) explain how the Services are delivered and provided and (c) provide a briefing and overview and such documentation as AGE may require to understand and operate the Systems and understand and provide the Services itself, [                            ***                             ]. Upon AGE’s reasonable request, BETA will provide post-Conversion training to AGE employees on the use of the BETA Core Systems and new applications as set forth in Exhibit 3 (including the Fees, if any, specified to be paid therein), unless otherwise agreed by the Parties, which training may include at AGE’s request “train the trainer” training.

 

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Section 3.08 Improved Technology and Processes .

 

BETA shall cause the Services to evolve and be enhanced, modified, replaced and supplemented as necessary for the Services to maintain a level of technology that allows AGE to take advantage of technological advances. In providing the Services to AGE, BETA shall [                                                                                        ***                                                                   ] changes and proven processes and methodologies and implement technology changes and proven processes and methodologies, and (b) at the meetings provided for in Exhibit 12 , [         ***         ] any new improvements, enhancements, modifications, updates, releases and revisions to the Systems [                                                                              ***                                     

                                                                     ].

 

Section 3.09 Governmental Consents .

 

BETA shall obtain, maintain and comply with all of its Governmental Consents. AGE shall obtain, maintain and comply with all of its Governmental Consents. Each Party shall cooperate with the other Party in obtaining and maintaining its Governmental Consents.

 

Section 3.10 BETA Private Consents .

 

BETA shall obtain, maintain and comply with all of the BETA Private Consents.

 

Section 3.11 Changes in Law .

 

(a) BETA shall (i) use commercially reasonable efforts to promptly identify and notify AGE of any changes in Law, including Regulatory Requirements, that BETA has actual knowledge of and that relate to AGE’s receipt or use of the Services and (ii) promptly identify and notify AGE of any changes in Law, including Regulatory Requirements, that may relate to BETA’s delivery or provision of the Services. AGE may notify BETA of any changes in Law applicable to AGE’s receipt or use of the Services. BETA and AGE shall work together to identify the impact of such changes on how AGE receives and uses, and BETA delivers and provides, the Services, and attempt in good faith to reach agreement on how BETA implements the changes required to comply with Law.

 

(b) BETA shall be responsible for modifying and/or enhancing the BETA Core Systems and Services to comply with all such changes in Law as requested by the BUC to the extent that it relates to BETA’s delivery or provision of the Services. In the event that AGE requests changes or modifications that are in addition to those requested by the BUC, AGE shall be responsible for any additional costs or expenses for BETA to implement such changes or modifications (which changes or modifications may be provided by the [***] FTEs set forth in Section 3.16). By way of example, if a Regulatory Requirement is enacted which requires that a transaction or trade be processed a certain way, then BETA shall be responsible for ensuring that the BETA Core Systems process the transactions or trades as required by the new Regulatory Requirement, as requested by the BUC and AGE shall be responsible for any changes or modifications in addition to those requested by the BUC.

 

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(c) BETA shall be responsible for all fines and penalties arising from BETA’s noncompliance with Laws relating to BETA’s delivery or provision of the Services, to the extent such noncompliance was not caused by AGE or a breach of this Agreement by AGE. AGE shall be responsible for any fines and penalties arising from any noncompliance by AGE with any Law relating to AGE’s receipt or use of the Services, to the extent such noncompliance was not caused by BETA or a breach of this Agreement by BETA.

 

(d) BETA shall perform the Services regardless of any changes in Law, including Regulatory Requirements. The foregoing shall not require BETA to provide the Services in violation of Law. If such changes in Law prevent BETA from lawfully performing its obligations under this Agreement, BETA shall develop [        ***        ], and with AGE’s cooperation, implement a suitable workaround (which workaround may have been identified or requested by the BUC) until such time as BETA can perform its obligations under this Agreement in compliance with Law without such workaround. In the event that BETA is unable to perform the Services as a result of any change(s) in Law because such performance is impossible (i.e., for which no workaround is available, or which otherwise materially exceeds the scope of the Services provided by BETA at such time), then BETA shall provide AGE with written notice thereof as soon as practicable and AGE thereupon may terminate this Agreement (within 90 days of receipt of such notice) without payment of Termination Fees, provided that BETA shall not be responsible for any damages or penalties for such failure to deliver the Services in compliance with such change in Law, and BETA shall provide Termination Assistance Services (to the extent it can legally do so) at no cost to AGE. If AGE does not timely exercise its termination right set forth in the preceding sentence, then the Parties shall implement an equitable adjustment to the applicable Fees relating solely to that portion of the Services no longer provided by BETA as a result of the changes in Law.

 

Section 3.12 Reports .

 

(a) BETA shall prepare and provide to AGE, in a form acceptable to AGE, the reports specifically set forth in Exhibit 2 , Exhibit 3 , and Exhibit 4 and upon AGE’s request, all or fewer of the standard reports maintained by the BETA Core Systems. In addition, such standard reports shall be deemed to include any additional reports created or developed as part of the BETA Deferred Gap Resolutions or any future enhancements to the BETA Core Systems or other new applications. AGE may request that BETA prepare and provide to AGE other reports in addition to the aforementioned standard reports. Such request may be made either through the Change Management Procedures or as a request for New Services. The Parties shall use good faith efforts to agree on the fees (if any) for, and the scope and content of, such reports. AGE shall pay any additional charges for the preparation and provision of such additional reports that are mutually agreed through the Change Management Procedures or the request for New Services. For avoidance of doubt, there shall be no charge for such additional reports to the extent they are prepared by the Full Time Equivalents set forth in Section 3.16.

 

(b) With respect to BETA’s reporting of its provision of the Conversion Services, BETA will provide AGE with a report in a form to be agreed upon by the Parties concerning the progress of the Conversion Services, including (1) the achievement of, or failure or anticipated failure to achieve, any milestones set forth in the BETA Deferred Gap Project Plan or otherwise agreed by the Parties, by the 10th day of each month (or if such day is not a business day then on

 

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the next business day) during BETA’s provision of the Conversion Services and (2) such documentation and other information as AGE may request.

 

Section 3.13 Sale or Transfer of Equipment .

 

BETA shall not sell, remove or otherwise dispose of any property of AGE, including AGE Equipment, without AGE’s consent.

 

Section 3.14 Subcontractors .

 

[                                                                                                                                                                                                                                                                                                                         ***                                                                                                                                                                                                                                                        ] No subcontracting shall release BETA from its responsibilities or obligations under this Agreement. BETA shall be responsible and liable for the work and activities of each of the BETA Agents, including compliance with the terms of this Agreement. BETA shall be responsible for all payments to its subcontractors. BETA shall promptly pay for all services, materials, equipment and labor used by BETA in providing the Services and BETA shall keep AGE’s premises, AGE Equipment, AGE Software and AGE Tools free of all liens.

 

Section 3.15 Conduct of BETA Personnel .

 

While at the AGE Service Locations, BETA and BETA Agents shall (a) comply with the reasonable requests and standard rules and regulations of AGE regarding safety and health, personal and professional conduct (including adhering to general safety practices or procedures) generally applicable to such AGE Service Locations (provided that AGE notifies BETA of such rules and regulations) and (b) otherwise conduct themselves in a professional and businesslike manner. BETA shall cause the Project Staff having access to AGE Confidential Information to maintain and enforce the confidentiality provisions of this Agreement. If AGE notifies BETA that a particular member of the Project Staff is not conducting himself or herself in accordance with this Agreement, BETA shall promptly (1) investigate the matter and take appropriate action which may include (i) removing the applicable person from the Project Staff and providing AGE with prompt notice of such removal and (ii) replacing the applicable person with a similarly qualified individual, or (2) take other appropriate disciplinary action to prevent a recurrence of such conduct. In the event of multiple violations of this Agreement by a particular member of the Project Staff, BETA shall promptly remove the individual from the Project Staff.

 

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Section 3.16 Development and Project Services; FTEs .

 

(a) Commencing after the four-month anniversary of the Conversion Effective Date, BETA shall, [                     ***                      ], provide [ *** ] Full Time Equivalents per Contract Year to provide certain development and other project services on behalf of AGE as and when requested by AGE, provided that such services relate to the Services or New Services. [                

 

***

 

                                                                                                                                                                                                            ]

The development and other project Services provided by these Full Time Equivalents will not be deemed New Services unless such Services meet the definition of New Services. The services performed by these [***] FTEs may include the following types of services (but it is understood and agreed that any project or special services will be performed as requested by AGE, including any special projects set forth in this Agreement or New Services [

***                                              ]: (1) enhancements intended to support operational improvements or efficiencies, (2) enhancements required to support product integration with other AGE application systems; and (3) new development intended to provide AGE with a competitive advantage in the market. The FTEs shall also provide project management, database administration, network design, environmental support and similar services. AGE will work with BETA to define the required skill sets that BETA will use to support AGE projects, on a project by project basis. [

 

***

 

                                                                                 ]

 

(b) Any work to be provided by the FTEs hereunder shall be requested by AGE and agreed to by the Parties in accordance with the SCR/PCR processes set forth in Exhibit 3 . BETA shall be responsible for monitoring and reporting to AGE on a monthly basis AGE’s use of the [ *** ] FTEs, and shall report such usage to AGE in sufficient detail to enable AGE to confirm compliance with this Section.

 

(c) BETA may, in its sole and absolute discretion, elect to make available to its other customers those enhancements to the BETA Core Systems developed by the [ *** ] FTEs. BETA acknowledges that there may be appropriate circumstances in which AGE should receive a credit in consideration of AGE’s original development costs of certain enhancements. Any such credit shall occur only upon the good faith mutual agreement of the Parties. [                         

                                                                              ***                                                   

            ].

 

(d) To the extent that any development costs are to be credited to AGE pursuant to this Section 3.16, such credit shall be in scope and form as may be mutually agreed by the Parties.

 

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(e) The Parties acknowledge that the [***] FTEs provided to AGE pursuant to this Section 3.16 of the Agreement shall not be used or otherwise applied towards BETA’s development and completion of the BETA Deferred Gap Resolutions.

 

(f) [***]

 

Section 3.17 Facilities Management and Other Arrangements .

 

(a) During the term of this Agreement and upon any expiration or termination, AGE may at is option elect to enter into one of two alternative arrangements to obtain all or part of the BETA Core Systems and other new products developed during the term of the Agreement as set forth herein. Under the first option, AGE shall have the ability to license BETAHost directly from BETA, and BETA will provide and manage all facilities, equipment, and third party software necessary for AGE to receive the Services (the “ Facilities Management Option ”). Under the second option, AGE shall have the ability to license the BETA Core Systems and other new products developed during the term of the Agreement directly from BETA, and AGE will provide and manage all facilities, equipment, and third party software necessary for AGE to operate the BETA Core Systems and other new products developed during the term of the Agreement (the “ Licensing Option ”). In the event that AGE exercises either of these two options, BETA will deposit the source code to the software (and any updates thereto) and the Parties will mutually agree upon the escrow terms pursuant to which such source code will be updated and released.

 

(b) In the event that AGE exercises the Facilities Management Option, AGE shall pay BETA the amount set forth in Exhibit 5 under the heading “Facilities Management/Purchase License”, less the applicable credits identified in Exhibit 5 in such section. The Monthly Trade Processing Fees shall be reduced as set forth in Exhibit 5 , effective upon AGE’s payment of the license fee set forth in Exhibit 5 . All other terms and conditions of this Agreement (including all Exhibits and Attachments) shall remain in full force and effect during the remainder of the Term and any period of Termination Assistance Services. Effective upon AGE’s payment of the license fee set forth in Exhibit 5 , BETA grants to AGE a global, limited, perpetual, irrevocable, non exclusive, non transferable license to access and use (as set forth herein), and sublicense to permit a third party to access and use (as set forth herein) solely in connection with providing goods or services to or purchasing goods or services from AGE, the BETAHost software (the “ BETAHost Software ”). AGE (and its permitted third parties) may access and use the BETAHost Software only to provide back office processing for its own brokerage operations, which include the operations of each of AGE’s correspondent brokerage firms for which AGE provides clearing services. Any use of the BETAHost Software by any correspondent of AGE is deemed use by AGE, and all terms, conditions, limitations, and restrictions on the use of the BETAHost Software imposed by this Agreement are applicable to use of the BETAHost Software by AGE’s correspondents. Other than as specifically authorized by this license grant, AGE may not relicense, sublicense, sell, lease, or in any other manner convey rights in, grant permission to use, provide access to, or make available the BETAHost Software without BETA’s express written consent. AGE may not publish, disclose, display, provide access to or otherwise make available any part of the BETAHost Software, or any screens, formats, reports, or printouts used, provided, produced, or supplied from or in connection therewith, to any person or entity other than an employee of AGE without the prior written consent of, and on terms acceptable to,

 

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BETA; provided, however, that AGE may disclose to governmental or regulatory agencies or to customers of AGE such information as the BETAHost Software specifically generates for disclosure to such governmental or Regulatory Authorities or to such customers; and further provided that AGE may make such copies of the documentation as are necessary for AGE’s use of BETAHost.

 

(c) In the event that AGE determines to exercise the Licensing Option, the Parties will terminate this Agreement and will negotiate and execute a mutually acceptable agreement addressing AGE’s license rights (which shall be consistent in all material respects with the license set forth is Section 3.17(b)) and BETA’s obligations to provide maintenance for such BETAHost (and BETA Core Systems, if agreed) and such other provisions as mutually agreed by the Parties. The fees payable for BETAHost shall be as set forth in Exhibit 5 under the heading “Facilities Management/Purchase License”, less the applicable credits identified in Exhibit 5 in such section. The Parties shall agree upon the license fees for the other components of the BETA Core Systems (if applicable). In addition, upon AGE’s request, BETA shall (a) assist AGE to determine any New Equipment necessary for AGE to operate the BETA Core Systems and other new products developed during the term of the Agreement itself and identify suppliers with the most favorable terms (including the lowest cost) available to BETA for any such New Equipment and (b) upon AGE’s request, acquire the New Equipment on AGE’s behalf by: arranging for a third party to lease, such New Equipment to AGE arrange for a third party to license, such New Equipment to AGE. AGE shall pay to the supplier, third party lessor or third party licensor, as applicable, the lease or license fees, as applicable, in respect of the New Equipment requested by AGE. Except as otherwise agreed by the Parties or as otherwise provided in this Agreement (i) all rights in and title to any New Equipment purchased by BETA on behalf of AGE and paid for by AGE shall belong to AGE and (ii) all New Equipment shall be entirely new.

 

(d) In the event that AGE exercises the Facilities Management Option, such exercise itself shall not require AGE to pay Termination Fees at the time of election, but the Termination Fees shall remain in effect during the remainder of the Term. In the event that AGE exercises the Licensing Option, Termination Fees will be mutually agreed by the Parties at that time.

 

Section 3.18 BETALink APIs .

 

[

 

***

 

                                    ]

 

Section 3.19 Deferred Gap Schedule .

 

(a) BETA agrees to complete all BETA Deferred Gap Resolutions by [        ***        ], in accordance with Exhibit 2 . Prior to [        ***        ], the Parties will meet and confer to further define and finalize the BETA Deferred Gap Project Plan for completion of the BETA Deferred Gap Resolutions (including modifying the BETA Deferred Gap Project Plan to account

 

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for scope changes and additional BETA Deferred Gaps identified after the Agreement Date). In the event the Parties are unable to agree on a final BETA Deferred Gap Project Plan for completion of the BETA Deferred Gap Resolutions by [                     ***                     ], the matter shall be escalated pursuant to Exhibit 12 . The final BETA Deferred Gap Project Plan shall be used for calculating the additional credits for failure to deliver the BETA Deferred Gap Resolutions on time as set forth in Section 3.19(b).

 

(b) Within 10 days after the end of each calendar quarter commencing on [             ***              ], and continuing until the BETA Deferred Gaps Resolutions are all completed and delivered to AGE or otherwise promoted to production, BETA shall deliver to the AGE Account Manager, for escalation to AGE’s executive group, a description of BETA’s compliance with the BETA Deferred Gap Project Plan and the delivery of BETA Deferred Gap Resolutions thereunder.

 

(c) In the event that BETA fails to deliver 100% of the scheduled BETA Deferred Gap Resolutions scheduled for delivery by [              ***             ], and BETA, after a 20-day grace period, does not deliver such BETA Deferred Gap Resolutions, AGE shall be entitled to a credit against future Monthly Trade Processing Fees equal to [                                    

 

***

 

                                    ]. For avoidance of doubt, if BETA has delivered by [            ***             ] all of the BETA Deferred Gap Resolutions scheduled to be delivered by [             ***             ], AGE will not be entitled to a credit under this subsection (c).

 

(d) In the event that BETA fails to deliver 100% of the scheduled BETA Deferred Gap Resolutions scheduled for delivery by [         ***        ] (no grace period), AGE shall be entitled to a credit against future Monthly Trade Processing Fees equal to [                

 

***

 

                            ].

 

(e) A BETA Deferred Gap Resolution will be considered to be “delivered” by BETA for purposes of this Section 3.19 if BETA has made the BETA Deferred Gap Resolution available to AGE prior to or on the applicable date set forth in subsections (c) or (d) above, and such BETA Deferred Gap Resolution has all functionality described in the applicable Deferred Gap Functional Specification. The Parties agree that the determination of whether a particular BETA Deferred Gap Resolution was “delivered” for purposes of this Section 3.19 may occur after the dates set forth in subsections (c) or (d) above occurred depending on AGE’s testing schedule as governed by the BETA Deferred Gap Project Plan. AGE will be entitled to the credits described above for BETA’s failure to deliver the required BETA Deferred Gap Resolutions regardless of whether the Parties discover the failure before or after the applicable date in accordance with the preceding sentence. Further, BETA is required to correct the deficient BETA Deferred Gap and re-deliver to AGE in no more than four (4) weeks from AGE’s notice of the deficiency in the BETA Deferred Gap.

 

(f) If BETA’s failure to deliver a BETA Deferred Gap Resolution prior to the dates set forth in subsections (c) or (d) above in which it was due was because AGE failed to comply with its obligations as set forth in the BETA Deferred Gap Project Plans, then such applicable

 

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BETA Deferred Gap shall be excluded when determining the number of BETA Deferred Gap Resolutions delivered on schedule.

 

(g) The BETA Deferred Gap Project Plan will be subject to the PCR Process set forth in Exhibit 3 .

 

Section 3.20 File Transmissions .

 

BETA will deliver to AGE or the designated third parties the files to be transmitted set forth in Exhibit 4 or otherwise agreed to by the Parties within the timeframes set forth in Exhibit 4 or otherwise agreed by the Parties. The lists of files and transmission times by category are set forth in Attachment 4-G to Exhibit 4 . The file transmission times will be extended to the levels set forth in Attachment 4-G for the following days: PIPS, Dividends, and Month End. The parties shall mutually agree, in good faith, on the final list of files and transmission times for inclusion in Attachment 4-G by the Conversion Effective Date; in each case the files and the transmission times shall be established such that AGE is able to operate its business without disruption. For any new files that BETA created for AGE, the Parties will mutually agree in good faith, within 90 days after the Conversion Effective Date, to adjust the file transmission times (up or down), taking into account continuing improvements in BETA’s provision of the Services to AGE as BETA further understands and integrates the Services with AGE’s systems.

 

ARTICLE IV

 

CONVERSION

 

The rights and obligations of the Parties concerning BETA Deferred Gaps shall be as set forth in Exhibit 2 . BETA will provide other pre-Conversion services in accordance with the Pre-Conversion Agreement.

 

ARTICLE V

 

NEW SERVICES

 

Section 5.01 New Services .

 

The rights and obligations of the Parties concerning New Services shall be as set forth in Exhibit 3 under Applications Software Development Life Cycle (but only to the extent requested by AGE) and Exhibit 17 and shall be subject to the execution of a Work Authorization or other documentation required by Exhibit 3 , as applicable. The parties acknowledge that New Services may include additional Services provided by BETA for which there may be an additional monthly Fees for such New Services, as may be agreed in accordance with Exhibit 3 . To the extent that AGE requests the enhancement, such work will either be included as part of the [***] FTEs provided by BETA to AGE [         ***        ], or through the execution of a Work Authorization as part of a New Services request.

 

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ARTICLE VI

 

SERVICE LOCATIONS

 

Section 6.01 Service Locations .

 

(a) The Services shall be provided to AGE from the BETA Service Locations set forth in Exhibit 7 , as may be modified by BETA from time to time. The addition, deletion, replacement, relocation or use of any location from which Services are to be provided shall not be subject to AGE’s approval, subject to the restrictions below. BETA [                                             

                                                      ***                                                                  ]. BETA shall not relocate its data center or disaster recovery sites to any data center or disaster recovery site that does not have, at a minimum, physical safety and security features and data processing capabilities as the BETA Service Locations on Exhibit 7 , and such relocation will not result in a degradation of the Services. Unless requested by AGE, BETA shall not permit any personal identifiable AGE customer information nor any confidential or proprietary information associated with AGE (including non-disclosed financial information, employee information, broker names or confidential product information, etc.) to be transmitted to or reside [                                             

                                             ***                                              ].

 

(b) Incremental costs incurred by AGE as a result of a relocation to, or use or discontinuance of the use of, any location other than the locations set forth on Exhibit 7 shall, [***].

 

(c) BETA and BETA Agents may not provide or market services to a third party from, or conduct any other activities not directly supporting the Services at, an AGE Service Location. The Parties acknowledge that the foregoing shall not prohibit BETA and BETA Agents from conducting incidental activities at AGE Service Locations which do not support the Services, such as answering cell phone calls unrelated to the Services.

 

Section 6.02 Safety and Operational Procedures .

 

BETA shall provide the Services in accordance with the Safety and Operational Procedures set forth in Exhibit 13 . In addition, BETA will comply with AGE’s safety and security procedures while at AGE Service Locations that AGE may provide to BETA from time to time.

 

Section 6.03 Security Relating to Competitors .

 

If BETA intends to provide the Services from a Service Location that is shared with (a) a third party or (b) any part of the business of BETA or any of its Affiliates that is competitive with AGE’s businesses, then prior to providing any of the Services from such a Service Location, BETA shall develop physical and logical security measures, subject to AGE’s prior approval, not to be unreasonably withheld or delayed, to restrict access in any such shared Service Location to AGE’s Confidential Information so that BETA’s other customers do not have access to AGE’s Confidential Information.

 

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ARTICLE VII

 

SERVICE LEVELS

 

Section 7.01 Designated Service Levels .

 

BETA shall perform the Services at least in accordance with the Service Levels set forth in Exhibit 4 . All Services for which there are no defined Service Levels shall be performed at levels that a provider of similar services would provide to its customers.

 

Section 7.02 New Service Levels .

 

BETA shall provide the New Services in accordance with the Service Levels applicable to such New Services in accordance with Exhibit 4 .

 

Section 7.03 Service Level Credits .

 

In the event of a failure to provide the Services in accordance with the Service Levels, BETA shall incur the Service Level Credits identified in and calculated according to Exhibit 4 , in recognition of the diminished value of the Services resulting from BETA’s failure to meet the Service Levels, and not as a penalty. The Service Level Credits shall not limit or affect AGE’s right to recover, in accordance with this Agreement, all damages incurred by AGE as a result of such failure, or limit or affect any recourse AGE may have under this Agreement, at law or in equity regarding such failure.

 

ARTICLE VIII

 

CONTINUED PROVISION OF SERVICES

 

Section 8.01 Disaster Recovery Plan .

 

(a) BETA shall provide Disaster Recovery Services in accordance with the BETA Disaster Recovery Plan and the procedures set forth in Exhibit 3 (Description of Services).

 

(b) BETA shall provide information and will participate in industry and exchange testing necessary for AGE to comply with all regulatory requirements concerning disaster recovery readiness. In the event of a Disaster or if the BETA Core System is otherwise inoperative, BETA shall implement its Disaster Recovery Plan and restore the Services to AGE in accordance with the terms of the Disaster Recovery Plan and this Agreement. BETA agrees to recover the BETA Core Systems [             ***             ] the declaration of a Disaster and 100% of AGE’s Services within [         ***          ] of the declaration of a Disaster (including all reporting and printing services). BETA will employ industry standard best-practice third party products to maintain replicated copies of AGE Data at the recovery center (WDC2). This AGE Data will be an appropriately current copy of data at BETA’s primary data center, managed to the Service Levels. A recoverable copy (defined as the production data that will be used for recovery in the event a Disaster is declared during batch processing) of production data will be created before the start of batch processing each processing day at a recovery site. BETA will provide a Rapid

 

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Order Recovery capability by [          ***          ]. The Rapid Order Recovery System will have the functionality as set forth in Exhibit 3 .

 

(c) In addition, BETA will have full network capacity established for AGE and will be able to meet contracted Service Levels when recovered. If BETA’s recovery facility is utilized, BETA shall continue to provide the Services to AGE from the BETA recovery facility until the BETA primary site is fully operational again. At least semi-annually, BETA shall conduct a test of the Disaster Recovery Plan as set forth in the Disaster Recovery Plan. BETA will permit AGE to participate in such disaster simulations as described in the Disaster Recovery Plan. BETA agrees to send AGE all updates or changes to the current Disaster Recovery Plan and service levels as they occur (provided that such changes shall not reduce, degrade, or otherwise adversely impact the Disaster Recovery Plan and the recovery times and levels of service set forth herein). If at any time BETA becomes aware that it is not in compliance with its Disaster Recovery Plan, BETA will notify AGE in writing.

 

(d) In the event a disaster, crisis or other force majeure event occurs with respect to AGE’s internal operations, BETA’s will provide order management assistance to AGE to mitigate the effects to AGE of such disaster, crisis or force majeure event. For avoidance of doubt, such assistance shall not include BETA taking or entering orders.

 

(e) BETA agrees to provide AGE with a detailed summary description of BETA’s current Disaster Recovery Plan and, upon request, allow AGE to review the detailed Disaster Recovery Plan at BETA’s Brookfield Service Location. BETA shall provide the summary of the Disaster Recovery Plan to AGE on or before the Conversion Effective Date. The Parties shall incorporate the summary of the BETA Disaster Recovery Plan as Exhibit 18 to this Agreement upon delivery by BETA to AGE. In addition, the Parties agree to promptly update Exhibit 18 with a summary of any additions or deletions to the Disaster Recovery Plan, including in connection with BETA’s migration to the Rapid Order Recovery System. The summary of the Disaster Recovery Plan will include a description for BETA’s recovery capabilities for BETA Host (including BETA Mess (wire) and BETAHost (MF) with terminal emulator), BETAConnect, BETALink, BETA Access, BL Server, XT Server, and Standard Reports, and which processes will be replicated continuously to the Disaster Recovery site.

 

Section 8.02 Force Majeure .

 

If and to the extent that a Party’s performance of any of its obligations pursuant to this Agreement is prevented, hindered or delayed by fire, flood, earthquake, elements of nature or acts of God, acts of war, terrorism, riots, civil disorders, rebellions or revolutions, or any other similar cause beyond the reasonable control of such Party (each, a “ Force Majeure Event ”), and such non-performance, hindrance or delay could not have been prevented by reasonable precautions, then the non-performing, hindered or delayed Party shall be excused for such non-performance, hindrance or delay, of those obligations affected by the Force Majeure Event for as long as such Force Majeure Event continues and such Party continues to use its best efforts to recommence performance whenever and to whatever extent possible without delay, including through the use of alternate sources, workaround plans or other means. The Party whose

 

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performance is prevented, hindered or delayed by a Force Majeure Event shall immediately notify the other Party of the occurrence of the Force Majeure Event and describe in reasonable detail the nature of the Force Majeure Event and the proposed steps such Party will take to recommence performance of its obligations under this Agreement. The occurrence of a Force Majeure Event does not excuse, limit or otherwise affect BETA’s obligation to provide either normal recovery procedures or any other disaster recovery services described in this Agreement (including in Section 8.01).

 

Section 8.03 Alternate Source .

 

(a) Other than for Acts of God, natural disaster, fire, acts of war, terrorism, riots, civil disorders, rebellions or revolutions, or any other similar cause beyond the reasonable control of BETA that impacts both BETA’s primary production site and Disaster Recovery site at the same time or within close proximity in time such that BETA could not have reasonably recovered from the first such event, and provided that, if possible, BETA has executed its Disaster Recovery Plan, and subject to the limitations of liability provisions set forth in Section 19.01(a)(III), if any Force Majeure Event prevents, hinders or delays performance of the Services for [***] continuous hours during NYSE business days in the case of Services for which there is a Critical Service Level for the Service Level Category “Availability”, or more than [***] days in the case of all other Services, then without limiting or affecting AGE’s rights under this Agreement, AGE may provide the Services itself or procure such Services from an alternate source [

 

***

 

                                    ]. After the occurrence of a Force Majeure Event, AGE and BETA shall work together in good faith to minimize such costs for AGE to provide the Services itself or procure such Services from an alternate source, and to transition the Services to AGE or another third party. If the Force Majeure Event continues to prevent, hinder or delay performance of the Services for more than [***] continuous hours during NYSE business days in the case of Services for which there is a Critical Service Level for the Service Level Category “Availability”, or more than [***] days in the case of all other Services, AGE may terminate this Agreement, in whole or in part, as of a date specified by AGE in a termination notice to BETA (which notice must be delivered to BETA within [***] days after the occurrence of such event), without regard to Section 21.05(a).

 

(b) In the event BETA does not provide any Service in accordance with this Agreement as a result of a breach of this Agreement by BETA or BETA Agents, then without limiting or affecting AGE’s rights under this Agreement, AGE may after providing notice to BETA either (1) provide such Services itself or procure such Services from an alternate source [

 

***

 

                                                                                                              ].

 

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Section 8.04 Allocation of Resources .

 

Whenever a Force Majeure Event, disaster or other event causes BETA to allocate limited resources between or among BETA’s customers, BETA shall not provide to any other customers of BETA priority over AGE or otherwise treat AGE less favorably than its other customers. In addition, in no event shall BETA redeploy or reassign any Key Personnel in the event of a Force Majeure Event, disaster or other event.

 

ARTICLE IX

 

AGE SATISFACTION SURVEYS

 

Section 9.01 AGE Satisfaction Survey .

 

(a) No more than once each Contract Year during the Term, BETA shall, upon AGE’s request and at AGE’s expense, engage an unaffiliated third party approved by AGE and BETA who specialize in conducting satisfaction surveys to conduct an AGE satisfaction survey in respect of those aspects of the Services designated by mutual agreement of the Parties (the “ Satisfaction Surveys ”). Such Satisfaction Survey shall, at a minimum, cover a representative sampling of End Users and senior management of AGE, as agreed by the Parties. The timing, content, scope and method of the survey shall be mutually agreed by the Parties. The Parties acknowledge that the Satisfaction Surveys may cover questions regarding (i) the levels of Service provided by BETA, (ii) BETA’s and AGE’s competitiveness in the marketplace (including the products and services BETA competitors have and AGE competitors have), (iii) competitiveness of BETA technology, and (iv) the evolution of the existing core business of BETA (including with respect to the evolution of the System Narrative and the Strategic Direction).

 

(b) [

 

***

 

]            

 

(c) In the event that BETA fails to reach the agreed upon threshold in any category of the Satisfaction Survey, BETA will implement all commercially reasonable recommendations from the Satisfaction Survey to address and correct such deficiencies within a reasonable timeframe.

 

ARTICLE X

 

GOVERNANCE, PROJECT STAFF, MANAGEMENT AND ADDITIONAL

PROVISIONS REGARDING SERVICES

 

The rights and obligations of the Parties concerning the management and control of the Services and the relationship between the Parties under this Agreement shall be as set forth in Exhibit 12 .

 

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ARTICLE XI

 

DISPUTE RESOLUTION

 

Section 11.01 Continuity of Services .

 

BETA acknowledges that the timely and complete performance of its obligations pursuant to this Agreement is critical to the business, operations and prospects of AGE. Accordingly, in the event of a dispute between AGE and BETA, BETA shall continue to so perform its obligations under this Agreement and AGE shall continue to make payments in accordance with this Agreement during the resolution of such dispute unless and until this Agreement has expired or is terminated in accordance with its provisions and, in either case, all applicable Termination Assistance Periods have expired.

 

Section 11.02 Dispute Resolution .

 

The informal dispute resolution provisions and the arbitration provisions set forth in Exhibit 12 shall apply to all disputes arising under or related to this Agreement, except as otherwise specified in Exhibit 12 .

 

Section 11.03 Expedited Dispute Resolution .

 

Notwithstanding anything to the contrary contained in this Agreement, in the event of a dispute relating to or arising out of a Default Notice, the dispute resolution process described in Section 11.02 must be commenced and completed within the applicable Default Cure Period.

 

ARTICLE XII

 

PROPRIETARY RIGHTS

 

Section 12.01 BETA Software and Software .

 

Effective upon the first Use by BETA of any BETA Software to provide the Services, BETA hereby grants to AGE a global, irrevocable (during the Term and during any Termination Assistance Period), non-exclusive, non-transferable license to Use, and sublicense and to permit a third party to Use solely in connection with providing goods or services to or purchasing goods or services from AGE, (a) the BETA Proprietary Software (including BETA Deferred Gap Resolutions owned by BETA and BETA Development Work) and (b) to the extent permissible under the applicable third party agreements, the BETA Third Party Software.

 

Section 12.02 BETA Tools and Tools .

 

Effective upon the first Use by BETA of any BETA Tools in connection with the Services, BETA hereby grants to AGE a global, irrevocable (during the Term and during any Termination Assistance Period), non-exclusive, non-transferable license to Use, and sublicense and to permit a third party to Use solely in connection with providing goods or services to or

 

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purchasing goods or services from AGE, the BETA Tools, including Software if not licensed separately.

 

Section 12.03 BETA Deferred Gap Resolutions .

 

All copyrights, patents, trade secrets, and other intellectual property and proprietary rights associated with any BETA Deferred Gap Resolutions (including design documents, source code, object code, and other work product related to a BETA Deferred Gap Resolution, but excluding any AGE Work Product which has been incorporated into the BETA Deferred Gap Resolutions or any design documents, source code, object code and other work product owned by AGE), shall be owned exclusively by BETA, provided that BETA has incorporated such BETA Deferred Gap Resolutions into the production environments of the BETA Core Systems. For all BETA Deferred Gap Resolutions that are not incorporated into the BETA Core Systems, AGE shall own all copyrights, patents, trade secrets, and other intellectual property and proprietary rights associated therewith and BETA hereby irrevocably assigns, transfers and conveys, and shall cause BETA Agents to assign, transfer and convey, to AGE, at the time of creation of such BETA Deferred Gap Resolutions, and without any requirement of further consideration, all right, title, and interest it or they may have in such BETA Deferred Gap Resolutions, including any copyrights, patents, trade secrets, and other intellectual and proprietary property rights associated therewith. Upon request of AGE, BETA shall take such further actions, and shall cause BETA Agents to take such further actions, including execution and delivery of instruments of conveyance, as may be appropriate to give full and proper effect to such assignment, at AGE’s expense.

 

Section 12.04 AGE Conversion Gap Resolutions .

 

All copyrights, patents, trade secrets, and other intellectual property and proprietary rights associated with any AGE Conversion Gap Resolutions created in connection with the BETA Deferred Gaps (including design documents, source code, object code, and other work product related to an AGE Conversion Gap Resolution, but excluding any BETA Work Product which has been incorporated into the BETA Deferred Gap Resolutions or any design documents, source code, object code or other work product owned by BETA), shall be owned exclusively by AGE. BETA hereby irrevocably assigns, transfers and conveys, and shall cause BETA Agents to assign, transfer and convey, to AGE, at the time of creation of such AGE Conversion Gap Resolutions, and without any requirement of further consideration, all right, title, and interest it or they may have in such AGE Conversion Gap Resolutions, including any copyrights, patents, trade secrets, and other intellectual and proprietary property rights associated therewith. Upon request of AGE, BETA shall take such further actions, and shall cause BETA Agents to take such further actions, including execution and delivery of instruments of conveyance, as may be appropriate to give full and proper effect to such assignment, at AGE’s expense.

 

Section 12.05 BETA License .

 

AGE shall have and BETA hereby grants to AGE a royalty-free, fully paid-up, non-exclusive, perpetual, irrevocable, world-wide right to Use and sublicense any BETA Work Product, BETA Deferred Gap Resolutions and BETA Development Work or BETA Documentary Work Product that is incorporated into any AGE Conversion Gap Resolution,

 

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AGE Work Product, AGE Development Work or AGE Documentary Work Product (the “ BETA Incorporated Materials ”) solely for the internal use of AGE and the AGE Group.

 

Section 12.06 AGE Work Product License .

 

BETA shall have and AGE hereby grants to BETA a royalty-free, fully paid-up, non-exclusive, perpetual, irrevocable, world-wide right to Use and sublicense any AGE Work Product that is incorporated into any BETA Deferred Gap Resolution as long as such BETA Deferred Gap Resolution has been incorporated into the production environments of the BETA Core Systems.

 

Section 12.07 BETA Development Work and AGE Development Work .

 

Unless otherwise agreed by the Parties prior to the commencement of the development work (including in accordance with Section 3.16), with regard to any development work created by BETA pursuant to this Agreement (whether through New Services, the use of the [ *** ] FTEs per Contract Year or otherwise) and which is intended to be incorporated into the production environments of the BETA Core Systems and BETA’s proprietary systems (including Thomson One), BETA shall own all copyrights, patents, trade secrets, and other intellectual property and proprietary rights associated with such development work, including design documents, source code, object code, or other work product related to such development work, but excluding any AGE Work Product which has been incorporated into such development work or any design documents, source code, object code or other work product owned by AGE, regardless whether BETA or AGE has funded such development work or whether the FTEs have performed such development work (the “ BETA Development Work ”). With respect to any development work created by BETA pursuant to this Agreement (whether through New Services, the use of the [ *** ] FTEs per Contract Year or otherwise) which is not intended to be incorporated into the production environments of the BETA Core Systems and BETA’s proprietary systems (including Thomson One) and which is intended to be incorporated into AGE’s systems (including Client One), AGE shall exclusively own all copyrights, patents, trade secrets, and other intellectual property and proprietary rights associated with such development work, including design documents, source code, object code, and other work product related to such development work, but excluding any BETA Work Product which has been incorporated into such development work or any design documents, source code, object code or other work product owned by BETA (“ AGE Development Work ”) and BETA hereby irrevocably assigns, transfers and conveys, and shall cause BETA Agents to assign, transfer and convey, to AGE, at the time of creation of such AGE Development Work, and without any requirement of further consideration, all right, title, and interest it or they may have in such AGE Development Work, including any copyrights, patents, trade secrets, and other intellectual and proprietary property rights associated therewith.

 

Section 12.08 Documentary Work Product .

 

(a) Literary works or other works of authorship created by BETA under this Agreement, including manuals, training materials and documentation, but excluding (i) Software and Related Documentation, and (ii) any design documents, trade secrets, intellectual property or other work product owned by AGE (“ BETA Documentary Work Product ”), shall be owned by BETA. BETA shall exclusively own all right, title and interest, including worldwide ownership

 

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of patent, copyright, trade secret and other intellectual property and proprietary rights, in, to and under the BETA Documentary Work Product and all copies made therefrom. AGE hereby irrevocably assigns, transfers and conveys, and shall cause AGE Agents to assign, transfer and convey, to BETA, without any requirement of further consideration, all of its and their right, title and interest in and to such BETA Documentary Work Product, including all rights of patent, copyright, trade secret or other intellectual property and proprietary rights in such materials. Upon request of BETA, AGE shall take such further actions, and shall cause AGE Agents to take such further actions, including execution and delivery of instruments of conveyance, as may be appropriate to give full and proper effect to such assignment, at BETA’s expense.

 

(b) Literary works or other works of authorship created by AGE under this Agreement, including manuals, training materials and documentation, but excluding (i) Software and Related Documentation and (ii) any design documents, trade secrets, intellectual property or other work product owned by BETA (“ AGE Documentary Work Product ”), shall be owned by AGE. AGE shall exclusively own all right, title and interest, including worldwide ownership of patent, copyright, trade secret and other intellectual property and proprietary rights, in, to and under the AGE Documentary Work Product and all copies made therefrom. BETA hereby irrevocably assigns, transfers and conveys, and shall cause BETA Agents to assign, transfer and convey, to AGE, without any requirement of further consideration, all of its and their right, title and interest in and to such AGE Documentary Work Product, including all rights of patent, copyright, trade secret or other intellectual property and proprietary rights in such materials. Upon request of AGE, BETA shall take such further actions, and shall cause BETA Agents to take such further actions, including execution and delivery of instruments of conveyance, as may be appropriate to give full and proper effect to such assignment, at AGE’s expense. AGE agrees that it will not sell or license training materials incorporating such intellectual property to third parties for the purpose of instructing or training such third parties in the use or operation of the BETA Core Systems. For avoidance of doubt, the foregoing shall not prohibit AGE from disclosing such intellectual property to its third party contractors for the purpose of enabling AGE, AGE Entities and End Users to use the BETA Systems and to receive the Services.

 

Section 12.09 Permissions; Training Materials.

 

BETA grants AGE all rights and licenses necessary to allow AGE and AGE Agents (including online course developers and contract trainers) to capture and reproduce screen shots from BETA Core Systems and use and distribute them for AGE’s online training courses, training materials, job aids and user’s manual. BETA further grants AGE all rights and licenses necessary to allow AGE and AGE Agents to reproduce BETA online documentation and training manuals, or portions thereof, to be redistributed and/or incorporated into AGE’s training manuals and other training materials for training AGE employees and training contractors of AGE, in each case for the purpose of enabling AGE, AGE Entities and End Users to use the BETA Systems and to receive the Services.

 

Section 12.10 Residual Rights .

 

Notwithstanding anything to the contrary herein, the Parties and shall be free to use and employ their general skills, know-how, and expertise and to use, disclose and employ any generalized ideas, concepts, know-how, methods, techniques, or skills gained or learned (but not

 

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intentionally memorized) during the course of any project between the Parties (“ Residuals ”), so long as they acquire and apply such information without disclosure of any Confidential Information or other proprietary information of the other party and without any unauthorized use or disclosure of the other party’s Work Product.

 

Section 12.11 No Implied Rights .

 

Except as expressly specified in this Agreement, nothing in this Agreement shall be deemed to grant to one Party, by implication, estoppel or otherwise, any rights in any intellectual property.

 

ARTICLE XIII

 

DATA AND CONFIDENTIALITY

 

Section 13.01 Ownership of AGE Data .

 

As between AGE and BETA, all AGE Data is, or upon creation will be, and shall remain the property of AGE. Without AGE’s approval (in its sole discretion), AGE Data shall not be (a) used by BETA or BETA Agents other than in connection with providing the Services, (b) disclosed, sold, assigned, leased, licensed or otherwise provided or made available in any manner to third parties by or through BETA or BETA Agents, or (c) commercially or otherwise used or exploited by or on behalf of BETA or BETA Agents. Any archival tapes or records containing AGE Data shall be used by BETA and BETA Agents solely for back-up purposes. BETA hereby irrevocably assigns, transfers and conveys, and shall cause BETA Agents to assign, transfer and convey, to AGE without any requirement of further consideration all of its and their right, title and interest in, to and under AGE Data. Upon request by AGE, BETA shall execute and deliver, and shall cause BETA Agents to execute and deliver, any documents that may be necessary or desirable under any Law to protect, preserve, or enable AGE to enforce, its rights with respect to AGE Data. BETA shall, and shall cause BETA Agents to, process AGE Data in accordance with the terms of this Agreement. AGE hereby instructs BETA to, and BETA shall cause BETA Agents to, take such steps in the processing of AGE Data as are necessary or desirable for the performance of its obligations under this Agreement. BETA shall, and shall cause BETA Agents to, provide AGE with such assistance, information and cooperation as AGE may request to enable AGE to allow any client, person or entity to exercise any of its, his or her or its rights under Law in relation to the AGE Data in BETA’s possession.

 

Section 13.02 Correction of Errors .

 

BETA shall as soon as practicable correct or resolve all errors or inaccuracies in, and damage to, AGE Data and the reports delivered to AGE under this Agreement, to the extent caused by BETA or BETA Agents of which BETA has notice of or otherwise becomes aware, in the manner determined by AGE. At AGE’s request and AGE’s reasonable direction as to how to correct such error, BETA shall as soon as practicable correct or resolve all other errors or inaccuracies in, and damage to, AGE Data or such reports, and AGE shall reimburse BETA for its reasonable actual direct costs therefor.

 

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Section 13.03 Return of Data .

 

Upon written request by AGE at any time or upon expiration or termination of this Agreement, BETA shall (a) promptly return to AGE or its designee, in BETA’s standard data structure format and on the media selected by BETA, all or any part of the AGE Data at the costs set forth in Exhibit 5 (Deconversion Files), and (b) erase or destroy all or any part of the AGE Data in BETA’s or BETA Agents’ possession or control, in each case to the extent so requested by AGE, and upon AGE’s written request, deliver to AGE written certification of such erasure or destruction signed by an authorized signatory of BETA. Notwithstanding the foregoing, in the event that AGE terminates this Agreement for cause, BETA shall return to AGE or its designee, in BETA’s standard data structure format and on the media selected by AGE, one copy of all or any part of the AGE Data without charge to AGE.

 

Section 13.04 Data Security .

 

(a) BETA shall comply with all Data Protection Laws, as applicable to the processing of AGE Data under this Agreement. BETA shall establish, implement and maintain, and shall ensure the BETA Agents implement and maintain, technical and organizational safeguards against the disclosure, access, destruction, loss, damage or alteration of AGE Data in the possession of BETA (the “ Data Safeguards ”) that shall be no less rigorous than the data security safeguards attached hereto as Exhibit 3 , Exhibit 13 and Exhibit 23 . BETA shall revise the Data Safeguards upon AGE’s reasonable request that such Data Safeguards do not adequately protect AGE Data. In the event BETA intends to implement a change to the Data Safeguards (including pursuant to AGE’s request), BETA shall notify AGE and, [             ***              ], implement, and ensure that BETA Agents implement, such change. Notwithstanding anything to the contrary contained herein, BETA agrees that (i) it shall not disclose or use any AGE Data except to the extent necessary to carry out its obligations hereunder and for no other purpose, (ii) it shall not disclose AGE Data to any third party, including its third party data suppliers without the prior consent of AGE and an agreement in writing from such party to use or disclose such AGE Data only to the extent necessary to carry out BETA’s obligations under this Agreement and for no other purposes, and (iii) it shall maintain, and shall require all third parties approved under subsection (ii) to maintain, effective information security measures to protect AGE Data from unauthorized disclosure or use.

 

(b) Without limiting or affecting AGE’s rights under this Agreement, in the event BETA or BETA Agents discover or are notified of a breach or potential breach of the Data Safeguards or any Data Protection Laws, BETA shall immediately (1) notify the AGE Account Executive of such breach or potential breach and (2) if the applicable AGE Data was in the possession of BETA or BETA Agents at the time of such breach or potential breach, BETA shall promptly (A) investigate and remediate the effects of the breach or potential breach and (B) provide AGE with assurance satisfactory to AGE that such breach or potential breach will not recur.

 

Section 13.05 General Confidentiality Obligations .

 

Each Party acknowledges and agrees that title to, ownership of and use rights in Confidential Information shall remain with the Party who disclosed the Confidential Information,

 

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and that the Confidential Information disclosed in connection with this Agreement is confidential and proprietary and constitutes valuable trade secret information of the disclosing Party. All Confidential Information shall be held in confidence by the receiving Party to the same extent and in at least the same manner as the recipient protects its own Confidential Information. Neither AGE nor BETA shall disclose, publish, release, transfer or otherwise make available Confidential Information of, or obtained from, the other in any form to, or for the use or benefit of, any person or entity without the disclosing Party’s consent, when permissible under Law. Each of AGE and BETA shall, however, be permitted to disclose relevant aspects of the other’s Confidential Information to its officers, directors, agents, professional advisors (including attorneys and consultants), contractors, subcontractors and employees and to the officers, directors, agents, professional advisors, contractors, subcontractors and employees of its Affiliates, to the extent such disclosure is not independently restricted under any BETA Private Consents or Governmental Consents and only to the extent that such disclosure is necessary for the performance of its duties and obligations or the determination, preservation or exercise of its rights and remedies under this Agreement; provided, however, that the recipient shall take all reasonable measures to ensure that Confidential Information of the disclosing Party is not disclosed or duplicated in contravention of the provisions of this Agreement by such officers, directors, agents, professional advisors, contractors, subcontractors and employees. The obligations in this Section shall not restrict any disclosure required under Law or by any Governmental Authority (provided that the receiving Party shall (a) notify the disclosing Party of any actual or threatened disclosure of which it has knowledge, of any legal compulsion of disclosure, and of any actual legal obligation of disclosure immediately upon becoming so obligated and (b) cooperate with the disclosing Party’s reasonable, lawful efforts to resist, limit or delay disclosure at the disclosing Party’s expense). Without limiting the foregoing, the Parties recognize that AGE may be required and shall be permitted to provide disclosure regarding this Agreement to Regulatory Authorities, including in connection with AGE filings with the Securities and Exchange Commission, the National Association of Securities Dealers, Inc., the New York Stock Exchange, Inc. and/or regulatory or oversight bodies in the United States or other countries (collectively, the “ Securities Authorities ”), and Securities Authorities copies of this Agreement; provided , however , that AGE informs BETA as soon as reasonably practicable of any such disclosure (if permitted by Law and if such disclosure is a voluntary disclosure that may be made public) and agrees to request that each Securities Authority allow AGE to redact all pricing or similar proprietary information from all disclosures to the Securities Authorities that are intended to be made public and further agrees to request that the relevant Securities Authorities not divulge any information provided in any such disclosure and that such Securities Authorities keep such information confidential.

 

Section 13.06 Unauthorized Acts .

 

Without limiting either Party’s rights in respect of a breach of this Article, each Party shall:

 

(a) promptly notify the other Party of any unauthorized possession, use or knowledge, or attempt thereof, of the other Party’s Confidential Information by any person or entity that may become known to such Party;

 

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(b) promptly furnish to the other Party full details of the unauthorized possession, use or knowledge, or attempt thereof;

 

(c) assist the other Party in investigating or preventing the recurrence of any unauthorized possession, use or knowledge, or attempt thereof, of Confidential Information;

 

(d) reasonably cooperate with the other Party in any litigation and investigation against third parties deemed necessary by the other Party to protect its proprietary rights; and

 

(e) promptly use its best efforts to prevent a recurrence of any such unauthorized possession, use or knowledge, or attempt thereof, of Confidential Information.

 

Each Party shall bear the cost it incurs as a result of compliance with this Section; provided, however, that the Party by or through whom the unauthorized possession, use or knowledge, or attempt thereof, occurred shall bear the costs the other Party incurs as a result of compliance with clauses (c), (d) and (e).

 

Section 13.07 Policy for Securities Transactions and Holdings .

 

BETA acknowledges that AGE and its Affiliates are involved in regulatory activities in the financial industries and that AGE maintains a policy requiring its personnel to disclose to AGE certain information regarding their personal securities and commodities accounts. If AGE suspects that any member of the Project Staff who has or had access to AGE Data or AGE Service Locations (the “ Identified Member ”) has been involved in improper, illegal or unethical use of AGE Data, then AGE may notify BETA of such use, and BETA shall conduct an investigation of such Identified Member and AGE will fully cooperate in BETA’s investigation. If BETA’s investigation determines that such Identified Member has been involved in improper, illegal or unethical use of AGE Data, BETA shall, if permitted by Law, notify AGE of such use, and shall provide AGE with assurance satisfactory to AGE that such use will not recur.

 

ARTICLE XIV

 

FEES AND INVOICING

 

Section 14.01 Fees Generally .

 

(a) In consideration of AGE’s receipt of the Services, and in accordance with Section 14.02, AGE shall pay to BETA the Fees.

 

(b) Except as expressly set forth in this Agreement, (1) there shall be no charges, fees, expenses, costs or other amounts payable by AGE in respect of BETA’s performance of its obligations pursuant to this Agreement and (2) all charges, fees, expenses, costs and other amounts relating to the Services (including those related to the acquisition, maintenance, enhancement, deployment, replacement, disposal and Use of the Systems, Software, Tools and Equipment) are included in the Fees and shall not be charged to or reimbursed by AGE.

 

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Section 14.02 Invoices .

 

(a) BETA shall invoice the Fees in U.S. Dollars. The Fees for the first month of the Term shall be due and payable to BETA within 60 days after the Agreement Date. The Fees for each subsequent month during the Term shall be due and payable to BETA within 30 days after the later of (1) the end of the month in which BETA provided the Services and (2) the date that AGE receives BETA’s invoice therefor.

 

(b) BETA shall not invoice AGE for, and AGE shall not be obligated to pay, any Fees (or other amounts expressly set forth in this Agreement) that are not properly invoiced [                 ***                  ] after the end of the month to which such Fees (or other amounts) correspond, provided, however, that this provision shall only apply to Fees under BETA’s invoicing control (e.g., not pass-through expenses or taxes, which may possibly be invoiced by third parties to BETA outside the three-month period).

 

Section 14.03 Time of Payment .

 

(a) Any sum not disputed by AGE in good faith due BETA pursuant to this Agreement for which payment is not otherwise specified shall be due and payable 30 days after receipt by AGE of an invoice from BETA. Should AGE fail to pay any undisputed sums payable hereunder within thirty (30) days after they become due, such unpaid sums shall bear interest at the annual broker call rate or the maximum rate allowed by law, whichever is less, from the date due until paid in full.

 

(b) In the event that AGE in good faith disputes any Fees set forth in any invoice, AGE shall promptly notify BETA (in any event, within thirty (30) days of the receipt of such disputed invoice) of such dispute in writing setting forth the basis for such dispute. If BETA disputes all or a portion of such disputed amount, BETA shall promptly notify AGE (in any event, within ten (10) days of the receipt of such notice from AGE) in writing setting forth the basis for BETA’s objection. The Parties shall thereafter expedite the resolution of such dispute in accordance with the dispute resolution set forth in Exhibit 12 , and shall use their best efforts to resolve such dispute within 60 days after AGE’s receipt of BETA’s objection notice. In the event that it shall be determined that AGE is responsible for all or a portion of such disputed Fees, AGE shall pay to BETA within ten (10) days of such determination the Fees payable by AGE to BETA, with interest at the annual broker call rate or the maximum rate allowed by law, whichever is less, from the date such Fees were initially due until paid in full.

 

Section 14.04 Detailed Invoices .

 

BETA shall provide all invoices with varying degrees of detail, as requested by AGE, including as necessary to satisfy AGE’s internal accounting and charge back requirements, and to allow AGE to accurately allocate charges by legal entity, business unit, department, and project. A form of standard invoice is attached hereto as Exhibit 20 .

 

Section 14.05 Adjustments to Fees .

 

There shall be no periodic adjustments to the Fees, unless expressly set forth in Exhibit 5 or Section 14.09.

 

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Section 14.06 Rights of Set-Off .

 

With respect to any amount that (a) should be reimbursed to AGE or (b) is otherwise payable to AGE pursuant to this Agreement, in either case which amount has been agreed upon by the Parties and appropriately documented in accordance with this Agreement, or held to be due and owing by a final court judgment, AGE may deduct the entire amount owed to AGE against the Fees or against other amounts owed by AGE to BETA under this Agreement.

 

Section 14.07 Proration .

 

All periodic Fees, if any, under this Agreement are to be computed on a calendar month basis and shall be prorated on a per diem basis for any partial month.

 

Section 14.08 Unused Credits .

 

Any unused credits against future payments owed to either Party by the other pursuant to this Agreement shall be paid to the applicable Party within 30 days after the earlier of the expiration or termination of this Agreement.

 

Section 14.09 Pricing Discussions .

 

[

 

***

 

].    

 

ARTICLE XV

 

TAXES

 

Section 15.01 Fees Exclusive of Taxes .

 

All Fees payable to BETA hereunder shall be exclusive of any federal, state or local sales, use, excise, or ad valorem taxes levied, or any fines, forfeitures or penalties assessed in connection therewith, on BETA’s provision of the Services or AGE’s use of the BETA Core Systems hereunder. Any such taxes which may be applicable will be paid by AGE or by BETA for AGE’s account, in which case AGE shall reimburse BETA for amounts so paid. The Fees paid to BETA are inclusive of any applicable personal property or other taxes attributable to periods on or after the Agreement Date based upon or measured by BETA’s cost in acquiring equipment, materials, supplies or services used by BETA in performing or furnishing the Services, including all personal property and sales or use taxes, if any, due on the BETA Equipment. BETA shall be responsible for and AGE shall have no liability for BETA’s income, franchise or employment withholding taxes. To the extent that any tax is required by Law to be separately identified in BETA’s billings to AGE, BETA shall separately identify the tax and

 

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assume any and all responsibility for non-compliance, including fees, interest and penalty assessments.

 

Section 15.02 Taxes Assessed for Relocating or Rerouting Services .

 

Any taxes assessed, as determined by AGE, including a gross-up thereon, on the provision of the Services resulting from BETA’s relocating or rerouting the delivery of Services to, from or through a location other than the Service Locations used to provide the Services as of the Agreement Date shall be paid by AGE and AGE shall receive a credit with respect to the Fees invoiced under this Agreement equal to such payments made pursuant to this subsection.

 

Section 15.03 Taxes on Owned or Leased Real or Personal Property .

 

AGE and BETA shall each bear sole responsibility for all taxes, assessments and other real property-related levies on its owned or leased real or personal property.

 

Section 15.04 Cooperation Regarding Taxes .

 

AGE and BETA shall cooperate to segregate the Fees into the following separate payment streams by tax jurisdiction: (1) those for taxable Services; (2) those for nontaxable Services; (3) those for which a sales, use or other similar tax has already been paid; and (4) those for which BETA functions merely as a paying agent for AGE in receiving goods, supplies or services (including leasing and licensing arrangements) that otherwise are nontaxable or have previously been subject to tax. In addition, each of AGE and BETA shall cooperate with the other to more accurately determine a Party’s tax liability and to minimize such liability, to the extent legally permissible. Each of AGE and BETA shall provide and make available to the other any resale certificates, information regarding out-of-state sales or use of equipment, materials or services, and any other exemption certificates or information requested by a Party.

 

ARTICLE XVI

 

AUDITS

 

Section 16.01 SAS 70 .

 

BETA undergoes an annual SAS 70 audit with the scope of such audit to be determined by the BETA User Group. AGE shall have the right to audit the facilities and systems of BETA and/or any BETA subcontractor to verify BETA’s compliance with the security and operational requirements of this Agreement if either or both of the following occur: (1) the then current SAS 70 audit report does not address BETA’s compliance or noncompliance [                                                                  ***                                                                  ]; and/or (2) the then current SAS 70 audit report reflects BETA’s noncompliance [                                         ***                                           ]. Such audit shall include an inspection of facilities, access to the BETA or BETA Agent systems, a review of records and a review of policies and procedures. Such audit will be conducted at AGE’s expense and will be performed in conjunction with the annual SAS 70 audit, by the same audit firm conducting the SAS 70 audit, provided the BETA User Group agrees to allow AGE to expand the scope of the SAS 70 audit to include the issues auditable by AGE under this provision. If the

 

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BETA User Group does not so agree, AGE’s separate audit will be conducted at a mutually agreed upon time that shall not be less than 10 business days from the date requested by AGE by an independent third party retained by AGE. Any deficiencies with the security or operational requirements of BETA’s facilities or systems will be promptly corrected and resolved at BETA’s expense.

 

Section 16.02 Assistance With Regulatory Compliance.

 

(a) In addition to the rights set forth in this Article 16, upon notice from AGE, BETA and BETA Agents shall provide AGE, AGE Agents and any of AGE’s regulators, accountants and auditors (collectively, “ AGE Auditors ”) with timely access to, and timely assistance and information they may require with respect to, the Service Locations, Systems and Services as necessary to enable AGE to comply with any and all current and future Regulatory Requirements that AGE is subject to.

 

(b) For the purpose of this Section 16.02, such Regulatory Requirements include, but are not limited to, internal control documentation and testing as it relates to financial reporting as required by Sections 302 and 404 of the Sarbanes-Oxley Act of 2002.

 

(c) If AGE notifies BETA of any deficiency that impairs AGE’s ability to comply with Regulatory Requirements, BETA shall and shall cause BETA Agents to promptly take actions to correct such deficiency.

 

Section 16.03 Services .

 

(a) Upon at least ten (10) business days’ notice from AGE, but no more than once per Contract Year, and without unreasonably interfering with BETA’s business operations, BETA and BETA Agents shall provide AGE, AGE Agents and AGE Auditors with reasonable access to, and any reasonable assistance and information that they may require with respect to, the Service Locations, Systems and Services as necessary to enable AGE to confirm BETA’s compliance with this Agreement and Law and to the extent not covered as part of the audit(s) described in Sections 16.01, 16.02 and 16.04. If AGE notifies BETA that any audit of BETA identifies a bona fide problem in BETA’s general controls or security policies and procedures, then BETA shall promptly correct such problem at BETA’s expense. If any audit by AGE Auditors results in BETA being notified that BETA or BETA Agents are not in compliance with Law or any audit requirement, BETA shall, and shall cause BETA Agents to, promptly take actions to comply with such Law or audit requirement. BETA shall bear the costs of any such response that is (a) required by a Law or audit requirement relating to BETA’s business or (b) necessary due to BETA’s noncompliance with any Law or audit requirement imposed on BETA. AGE acknowledges that audits of BETA Services may cause significant disruption to BETA Services and operations. AGE must use all commercially reasonable efforts in connection with its audits to rely on audits conducted at the direction of the BUC whenever possible and without physical examination whenever possible. If AGE in order to meet its regulatory or internal policy requirements determines that it is necessary to conduct supplemental audits AGE shall be responsible for the cost of such audit including, but not limited to, the reasonable out of pocket costs borne by BETA in facilitating the audit plus the costs of additional personnel as well as the commercially reasonable impact on disrupted Services, provided that BETA uses

 

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commercially reasonable efforts to reduce or minimize such costs (it being acknowledged that BETA’s costs billed to AGE shall not include any profit element or other element designed to dissuade AGE from conducting such audit)

 

Section 16.04 Fees .

 

Upon at least ten (10) business days’ notice from AGE, but no more than once per Contract Year, and without unreasonably interfering with BETA’s business operations, BETA shall provide AGE Auditors with access to such additional records and supporting documentation as may be reasonably necessary and requested by AGE Auditors to audit the Fees charged to AGE to determine if such Fees are accurate and in accordance with this Agreement, including Section 14.10. If, as a result of such audit, AGE determines that BETA has overcharged AGE, AGE shall notify BETA of the amount of such overcharge and BETA shall promptly pay to AGE the amount of the overcharge, plus Interest calculated from the date of receipt by BETA of the overcharged amount until the date of payment to AGE. In addition, if any such audit reveals an overcharge to AGE of five percent (5%) or more of Fees charged, BETA shall, at AGE’s option, issue to AGE a credit for the reasonable cost of such audit against the Fees or reimburse AGE for the reasonable cost of such audit.

 

Section 16.05 Other Audits .

 

To the extent such materials or reviews may be supplied by BETA without breach of its obligations to third parties, BETA shall promptly make available to AGE the results of any material reviews of audits conducted by BETA, its Affiliates or their subcontractors relating to BETA’s operating practices and procedures to the extent relevant to the Services, AGE or this Agreement. In addition, BETA shall promptly make available to AGE the results of any reviews or audits conducted by BETA’s, or its Affiliates’ or subcontractors’, external auditors relating to BETA’s operating practices and procedures to the extent relevant to the Services, AGE or this Agreement.

 

Section 16.06 Record Retention .

 

BETA shall retain records and supporting documentation sufficient to document the Services and the Fees paid or payable by AGE under this Agreement in accordance with applicable Laws and in accordance with this Agreement and BETA’s record retention procedures set forth in Exhibit 23 . BETA shall (a) maintain an inventory, index and status of all records pertaining to the processing of transactions for AGE so as to allow retrieval by BETA within a reasonable period of time and (b) maintain standard BETA records in secure on-site or off-site locations which provide at a minimum for secure storage protecting against unauthorized access, fire, moisture and destruction. BETA shall not be responsible for compliance with any record retention rules applicable to AGE promulgated by any government, exchange or regulatory body, except as applicable to BETA as a service provider to AGE. BETA shall make its policies available to AGE upon reasonable notice. Notwithstanding anything to the contrary contained in this Agreement, upon mutual agreement of the parties, BETA shall maintain and retain certain Vital Records through the use of a means other then paper copies (e.g., CD-ROM or microforms). To the extent that AGE requests AGE data outside BETA’s standard records

 

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retention periods policy, AGE shall pay to BETA the Fees for record requests set forth in Exhibit 5 .

 

Section 16.07 Facilities .

 

BETA shall provide to AGE Auditors on BETA’s premises (or, if the audit is being performed of a BETA Agent, the BETA Agent’s premises if necessary), space, office furnishings (including lockable cabinets), telephone and facsimile services, utilities and office-related equipment and duplicating services as the AGE Auditors may require to perform the audits described in this Article.

 

ARTICLE XVII

 

INSURANCE

 

Section 17.01 Insurance .

 

During the Term and the Termination Assistance Period, BETA shall obtain and maintain at its own cost, and require BETA Agents to obtain and maintain at their own cost or BETA’s cost, insurance of the type and in the amounts set forth below:

 

(a) statutory workers’ compensation in accordance with Law;

 

(b) employer’s liability insurance in an amount not less than [     ***     ] per occurrence, covering bodily injury by accident or disease, including death;

 

(c) Commercial General Liability (including contractual liability insurance) in an amount not less than [     ***     ] per occurrence;

 

(d) Comprehensive Automobile Liability covering all vehicles that BETA owns, hires, leases or uses in an amount not less than [     ***     ] (combined single limit for bodily injury and property damage);

 

(e) Excess or Umbrella Liability coverage in an amount not less than [     ***     ] in excess of the coverage as set forth in the immediately preceding clauses (b), (c) and (d);

 

(f) Professional Liability (also known as Errors and Omissions Liability) insurance covering acts, errors and omissions arising out of BETA’s operations or Services in an amount not less than [     ***     ] per claim;

 

(g) Employee Dishonesty (Fidelity) and Computer Crime coverage (for losses arising out of or in connection with any fraudulent or dishonest acts committed by Project Staff, acting alone or in collusion with others) in an amount not less than [     ***     ]; and

 

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(h) All Risk Property insurance coverage in an amount not less than the higher of the (1) fair market value, (2) AGE’s book value or (3) replacement cost of AGE Equipment used by BETA at BETA Service Locations.

 

Section 17.02 Insurance Documentation .

 

All policies for the coverages set forth in Section 17.01 shall be primary, and any insurance maintained by AGE shall be excess and noncontributory. Each insurance policy shall be maintained with an insurer acceptable to AGE and BETA shall promptly notify AGE in the event of any adverse modification or cancellation of such policies if BETA does not replace such policy with a similarly acceptable insurance company. BETA shall furnish AGE with certificates of insurance evidencing that all coverages referenced in Section 17.01 are maintained and in force, and naming AGE as an “additional insured” under the Commercial General Liability and Comprehensive Automobile Liability and as a loss payee under the All Risk Property. Any cancellation or material alteration of such insurance policies shall not relieve BETA of its continuing obligation to maintain insurance coverage in accordance with this Article.

 

Section 17.03 Risk of Loss .

 

BETA is responsible for the risk of loss of, or damage to, any property of AGE at a BETA Service Location (if any), unless such loss or damage was caused by the acts or omissions of AGE or an AGE Agent. AGE is responsible for the risk of loss of, or damage to, any property of BETA at an AGE Service Location (if any), unless such loss or damage was caused by the acts or omissions of BETA or a BETA Agent. Where BETA procures items for AGE, including under Section 3.17, BETA is responsible for the risk of loss of, or damage to, any such property until delivered and accepted by AGE. In no event shall BETA sell, remove or otherwise dispose of any property of AGE, including AGE Equipment, without AGE’s consent.

 

ARTICLE XVIII

 

REPRESENTATIONS AND WARRANTIES

 

Section 18.01 By AGE .

 

AGE represents, warrants and covenants that:

 

(a) AGE is a corporation duly incorporated, validly existing and in good standing under the Laws of Missouri;

 

(b) AGE has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement;

 

(c) the execution, delivery and performance of this Agreement by AGE (1) has been duly authorized by AGE and (2) will not conflict with, result in a breach of or constitute a default under any other agreement to which AGE is a party or by which AGE is bound;

 

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(d) AGE is duly licensed, authorized and qualified to do business and is in good standing in every jurisdiction in which a license, authorization or qualification is required for the ownership or leasing of its assets or the transaction of business of the character transacted by it, except where the failure to be so licensed, authorized or qualified would not have a material adverse effect on AGE’s ability to fulfill its obligations under this Agreement;

 

(e) AGE is in compliance with all Laws applicable to AGE and has obtained all Governmental Consents required of AGE in connection with its obligations under this Agreement;

 

Section 18.02 By BETA .

 

BETA represents, warrants and covenants that:

 

(a) Thomson Financial Inc. is a corporation duly incorporated, validly existing and in good standing under the Laws of New York;

 

(b) Thomson Financial Inc. has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement;

 

(c) the execution, delivery and performance of this Agreement by BETA (1) has been duly authorized by BETA and (2) will not conflict with, result in a breach of or constitute a default under any other agreement to which BETA is a party or by which BETA is bound;

 

(d) BETA is duly licensed, authorized and qualified to do business and is in good standing in every jurisdiction in which a license, authorization or qualification is required for the ownership or leasing of its assets or the transaction of business of the character transacted by it, except where the failure to be so licensed, authorized or qualified would not have a material adverse effect on BETA’s ability to fulfill its obligations under this Agreement;

 

(e) BETA is in compliance with all Laws applicable to BETA and has obtained all Governmental Consents and BETA Private Consents required of BETA in connection with its obligations under this Agreement;

 

(f) the BETA Software, BETA Tools, BETA Equipment, BETA Work Product, Developed Software, Systems, Services and any enhancements or modifications to the AGE Software, AGE Tools or AGE Equipment performed by BETA or BETA Agents, or any other resources or items provided by BETA or BETA Agents, do not and shall not infringe upon the rights (including any proprietary rights) of any third party;

 

(g) to BETA’s knowledge no Destructive Element has been coded or introduced into the BETA Software, BETA Tools or BETA Equipment, BETA will not code or introduce Destructive Elements into the BETA Software, BETA Tools or BETA Equipment and BETA uses and will use industry standard software to detect and remove Destructive Elements from all BETA Software, BETA Tools and BETA Equipment or

 

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make such Destructive Element inoperative. If BETA becomes aware that a Destructive Element has been introduced into the Services, Systems or Developed Software, BETA shall use commercially reasonable efforts (i.e., those in the industry suffering similar attacks would deploy) to assist AGE in reducing the effects of the Destructive Element and, if the Destructive Element causes a loss of operational efficiency or loss of data, reasonably assist AGE to the same extent to mitigate and restore such losses. With respect to any Destructive Elements that may be part of Services, Systems or Developed Software, BETA shall not, nor authorize any other third party to, invoke such Destructive Elements at any time, including upon expiration, termination or a partial termination of this Agreement without AGE’s consent;

 

(h) all Services will be performed in a professional and workmanlike manner using Project Staff who are properly educated, trained, skilled, experienced and fully qualified for the Services they are to perform;

 

(i) the Work Product will conform to and perform in all material respects accordance with their respective specifications and acceptance criteria, including as set forth in Exhibit 2 , Exhibit 3 or an applicable Work Authorization; and

 

(j) the Services will be provided and the Systems, Developed Software, Work Product, BETA Software, BETA Tools, BETA Equipment, and any enhancements or modifications to the AGE Software, AGE Tools or AGE Equipment will function in all material respects in accordance with the System Narrative set forth in Exhibit 21 (as may be enhanced as set forth in such Exhibit) and the modifications set forth in the BETA Deferred Gap Project Plan.

 

(k) the Fees charged to AGE for Disaster Recovery set forth in Exhibit 5 represent recovery of the incremental costs of establishing and maintaining an enhanced Disaster Recovery facility in Wisconsin over the costs to run BETA’s current recovery site in New York, and the amounts charged to AGE are based on the same rates charged to each of BETA’s other customers under the Disaster Recovery Fees (i.e., the same fixed and variable fees).

 

Section 18.03 DISCLAIMER .

 

EXCEPT AS SPECIFIED IN THIS ARTICLE, SET FORTH IN EXHIBIT 2, EXHIBIT 3 OR OTHERWISE SET FORTH IN WRITING (INCLUDING IN A WORK AUTHORIZATION), NEITHER AGE NOR BETA MAKES ANY OTHER WARRANTIES WITH RESPECT TO THE DESIGNATED SERVICES OR THE SYSTEMS OR OTHERWISE HEREUNDER AND EACH EXPLICITLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A SPECIFIC PURPOSE WITH REGARD TO THE DESIGNATED SERVICES.

 

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ARTICLE XIX

 

LIMITATION OF LIABILITY; DAMAGES

 

Section 19.01 Limitation of Liability .

 

(a) (I) IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS) EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES,

 

(II) IN NO EVENT SHALL EITHER PARTY’S LIABILITY FOR DIRECT DAMAGES EXCEED AN AMOUNT IN ANY ONE CONTRACT YEAR EQUAL TO THE FEES PAID (OR WHICH WOULD HAVE BEEN PAID BUT FOR THE APPLICATION OF APPLICABLE CREDITS UNDER THIS AGREEMENT OR THE PRE-CONVERSION AGREEMENT) BY AGE DURING THE PRECEDING CONTRACT YEAR OR, IN THE EVENT THE CLAIMS ARISE PRIOR TO THE END OF THE FIRST CONTRACT YEAR, AN AMOUNT EQUAL TO THE FEES PAID DURING THE FIRST CONTRACT YEAR (OR WHICH WOULD HAVE BEEN PAID BUT FOR THE APPLICATION OF APPLICABLE CREDITS UNDER THIS AGREEMENT OR THE PRE-CONVERSION AGREEMENT), AND

 

(III) IN NO EVENT SHALL BETA’S LIABILITY UNDER SECTION 8.03(a) FOR ANY FAILURE TO PROVIDE SERVICES DUE TO A FORCE MAJEURE EVENT EXCEED THE COVER LIABILITY.

 

(b) The limitations and exculpations set forth in Section 19.01(a) shall not apply to (A) payments for the Services required to be paid by AGE pursuant to Article 14 or (B) credits payable by BETA (including Service Level Credits and Credits under the Pre-Conversion Agreement).

 

(c) The limitations and exculpations set forth in Section 19.01(a) shall not apply to any Losses suffered or incurred by AGE for any claim:

 

(1) for which BETA has agreed to indemnify AGE hereunder;

 

(2) relating to any duties or obligations of BETA or BETA Agents in respect of a third party (including any subcontractor), it being understood that the foregoing shall not increase any standard applied to BETA’s conduct under this Agreement;

 

(3) relating to the inaccuracy, untruthfulness or breach of any representation or warranty set forth in Section 18.02(a) through (f) and the first and second sentence of 18.02(g) under this Agreement;

 

(4) relating to BETA’s failure to obtain, maintain or comply with the BETA Private Consents or its Governmental Consents;

 

(5) relating to BETA’s failure to have in effect a Disaster Recovery Plan as required by Section 8.01 and Exhibit 3 and to implement such Disaster Recovery Plan as

 

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required hereunder and under the Disaster Recovery Plan in all material respects, except to the extent that such implementation is impossible under the circumstances (it being understood that the forgoing shall not be deemed to require BETA’s operation under the Disaster Recovery Plan to be error-free);

 

(6) relating to any amounts, including taxes, interest and penalties, assessed against AGE that are the obligation of BETA pursuant to Article 15 ;

 

(7) relating to BETA’s breach of Article 13 ; and

 

(8) resulting from gross negligence, fraud or willful misconduct of BETA or BETA’s rejection of the Agreement.

 

(d) The limitations and exculpations set forth in Section 19.01(a) shall not apply to any Losses suffered or incurred by BETA for any claim:

 

(1) for which AGE has agreed to indemnify BETA hereunder;

 

(2) relating to any duties or obligations of AGE or AGE Agents in respect of a third party (including any subcontractor), it being understood that the foregoing shall not increase any standard applied to AGE’s conduct under this Agreement;

 

(3) relating to the inaccuracy, untruthfulness or breach of any representation or warranty under this Agreement;

 

(4) relating to any amounts, including taxes, interest and penalties, assessed against BETA that are the obligation of AGE pursuant to Article 15 ;

 

(5) relating to AGE’s breach of Article 13 ; and

 

(6) resulting from gross negligence, fraud or willful misconduct of AGE or AGE’s rejection of the Agreement (for which AGE shall only be responsible for the Termination Fees set forth in Exhibit 5 ).

 

Section 19.02 Acknowledged Direct Damages.

 

The following shall be considered direct damages and neither Party shall assert that they are indirect, incidental, collateral, consequential or special damages or lost profits to the extent they result directly from either Party’s failure to perform in accordance with this Agreement:

 

(a) Third party claims asserted against either AGE or BETA for which a Party has agreed to indemnify the other hereunder or that directly arise from or are related to a Party’s breach of this Agreement.

 

(b) Payments, fines, penalties or interest imposed by a governmental body or Regulatory Authority for failure to comply with requirements or deadlines; and

 

(c) Costs of cover for AGE to obtain similar services to the Services.

 

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ARTICLE XX

 

INDEMNITIES

 

Section 20.01 Indemnity by AGE .

 

AGE shall at its sole cost and expense indemnify and hold harmless BETA from and against, all Losses suffered, incurred or sustained by BETA or to which BETA becomes subject, resulting from, arising out of or relating to any claim:

 

(a) that the AGE Proprietary Software on or in the ClientOne Terminals provided to BETA infringes upon the rights (including proprietary rights) of any third party (except to the extent caused by BETA or BETA Agents); and

 

(b) relating to personal injury (including death) or any property loss or damage resulting from AGE’s or AGE Agents’ acts or omissions.

 

AGE shall indemnify BETA from any costs incurred in connection with the enforcement of this Section.

 

Section 20.02 Indemnity by BETA .

 

BETA shall at its sole cost and expense indemnify and hold harmless AGE from and against, all Losses suffered, incurred or sustained by AGE or to which AGE becomes subject, resulting from, arising out of or relating to any claim:

 

(a) that the Services, Systems, Developed Software, Work Product, BETA Documentary Work Product, BETA Software, BETA Tools, BETA Equipment, any enhancements or modifications to AGE Software, AGE Tools or AGE Equipment performed by BETA or BETA Agents or any other resources or items provided or used by BETA or BETA Agents (the “ BETA IP ”) infringe upon the rights (including all intellectual property and proprietary rights) of any third party (except as may have been caused by AGE or AGE Agents); and

 

(b) relating to personal injury (including death) or any property loss or damage resulting from BETA’s or BETA Agents’ acts or omissions.

 

BETA shall indemnify AGE from any costs incurred in connection with the enforcement of this Section.

 

Section 20.03 Indemnification Procedures .

 

If any third party claim is commenced against a Party entitled to indemnification under Section 20.01 or Section 20.02 (the “ Indemnified Party ”), notice thereof shall be given by the Indemnified Party to the other Party (the “ Indemnifying Party ”) as promptly as practicable. Any delay by the Indemnified Party in providing such notice shall not limit the Indemnifying Party’s obligations pursuant to Section 20.01 or Section 20.02 except to the extent of any Losses caused by such delay. If, after such notice, the Indemnifying Party acknowledges that this Agreement

 

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applies with respect to such claim, then the Indemnifying Party shall be entitled, if it so elects, in a notice promptly delivered to the Indemnified Party to immediately take control of the defense and investigation of such claim and to employ and engage attorneys acceptable to the Indemnified Party to handle and defend the same, at the Indemnifying Party’s cost. The Indemnified Party shall cooperate, at the cost of the Indemnifying Party, with the Indemnifying Party and its attorneys in the investigation, trial and defense of such claim and any appeal arising therefrom; provided, however, that (a) the Indemnified Party may, at its own cost, participate, through its attorneys or otherwise, in such investigation, trial and defense of such claim and any appeal arising therefrom and (b) the Indemnified Party may settle such claim at any time subject to the Indemnifying Party’s reasonable consent to the financial terms of any such settlement. The Indemnifying Party shall have no authority, without the prior consent of the Indemnified Party, to (1) make any admission on behalf of the Indemnified Party, (2) settle any claim that involves a remedy other than the payment of money by the Indemnifying Party or (3) enter into any settlement that does not provide the Indemnified Party with a full and unconditional release. After notice by the Indemnifying Party to the Indemnified Party of its election to assume full control of the defense of any such claim, the Indemnifying Party shall not be liable to the Indemnified Party for any legal fees and expenses incurred thereafter by such Indemnified Party in connection with the defense of that claim. If the Indemnifying Party does not assume full control over the defense of a claim subject to such defense as provided in this Section, the Indemnifying Party may participate in such defense, at its cost, and the Indemnified Party shall have the right to defend the claim in such manner as it may deem appropriate, at the cost of the Indemnifying Party.

 

Section 20.04 Infringement .

 

If the BETA IP becomes, or in BETA’s reasonable opinion is likely to become, the subject of an infringement or misappropriation claim or proceeding, then BETA shall promptly notify AGE of such claim or proceeding and at BETA’s expense take the following actions in the following priority order: (i) secure the right to continue using the item; (ii) replace or modify the item to make it non-infringing, provided that any such replacement or modification is functionally equivalent; or (iii) if neither (i) or (ii) is readily available to BETA, then AGE may in its sole discretion (a) require BETA to remove the item from the Services and the Parties shall thereafter use good faith efforts to mutually agree upon an equitable adjustment to the Fees to adequately reflect such removal or (b) terminate the Agreement or the affected portion of the Services.

 

Section 20.05 Subrogation .

 

With respect to any claim for which a Party is entitled to indemnification from the other Party pursuant to Section 20.01 or Section 20.02, the Indemnified Party shall only be entitled to seek, or actually obtain, indemnification from the Indemnifying Party if, prior to seeking such indemnification, the Indemnified Party agrees that the Indemnifying Party shall be subrogated to the rights of the Indemnified Party with respect to the claims and defenses to which such indemnification relates.

 

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ARTICLE XXI

 

TERMINATION

 

Section 21.01 Termination for Convenience prior to Conversion .

 

Prior to Conversion, AGE may terminate this Agreement for convenience effective as of any date by giving BETA notice of the termination at least 30 days prior to the termination date specified in the notice.

 

Section 21.02 Termination for Convenience after Conversion .

 

After Conversion, AGE may terminate this Agreement for convenience effective as of any date by giving BETA notice of the termination at least 180 days prior to the termination date specified in the notice.

 

Section 21.03 [Reserved]

 

Section 21.04 Termination for Change in Control of BETA .

 

Upon the earlier of any public or general announcement of the intent for a Change in Control of BETA or an actual Change in Control of BETA in one or more series of transactions (in each case other than by, to or with an Affiliate of BETA), AGE may terminate this Agreement in whole by giving BETA notice of the termination at least 90 days prior to the termination date specified in the notice. AGE may upon becoming aware that such Change in Control will not occur, rescind its notice of termination provided pursuant to this Section.

 

Section 21.05 Termination for Cause .

 

(a) Without limiting, obviating or qualifying any other termination rights AGE may have under this Agreement or Law, if BETA defaults in the performance of any of its material obligations (or repeatedly defaults in the performance of any of its other obligations that collectively constitute a material breach) under this Agreement which is capable of being cured and does not cure such default within 30 days (the “ BETA Default Cure Period ”) after receipt of written notice of default from AGE (the “ BETA Default Notice ”), then AGE may, by giving written notice to BETA, terminate this Agreement, in whole or in part, as of the termination date specified in the BETA Default Notice. Notwithstanding the foregoing, AGE may immediately terminate this Agreement, in whole or in part, in the event BETA defaults in the performance of any of its material obligations (or repeatedly defaults in the performance of any of its other obligations) under this Agreement which is not capable of being cured.

 

(b) Notwithstanding anything to the contrary in this Agreement, if Conversion has not occurred by the last date for Conversion as set forth in the Deferred Gap Project Plan specified by the Pre-Conversion Agreement, as may be modified as set forth therein, then AGE may terminate this Agreement upon notice to BETA effective as of the termination date specified in the notice with no cure period.

 

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(c) If AGE fails to pay BETA any amount when due and payable under this Agreement and fails to make such payment within 30 days after receipt of an initial notice from BETA specifying the failure to make such payment (the “ AGE Default Notice ”, and the 30 day period after the AGE Default Notice being referred to herein collectively as the “ AGE Default Cure Period ”), then BETA may, by giving written notice to AGE, terminate this Agreement as of the termination date specified in such notice.

 

Section 21.06 Specific Termination Events .

 

(a) If BETA fails to provide any Services for which there is a Critical Service Level for the Service Level Category “Availability” for [***] continuous hours during NYSE business days, then AGE may, upon notice to BETA, terminate this Agreement, in whole or in part, as of the termination date specified in the notice.

 

(b) If BETA fails to meet either (i) [***] Expected Service Levels or (ii) [***] Minimum Service Levels in any 12-month period (without application of any earnback or other reset provision) for any Services for which there is a Critical Service Level for the Service Level Categories “Availability”, “Performance” or “File Transmission” (in each case set forth in Exhibit 4 ), then AGE may, upon notice to BETA, terminate this Agreement, in whole or in part, as of the termination date specified in the notice. For purposes of Section 21.06(b)(ii) only, BETA shall be deemed to have missed only one Minimum Service Level for up to each three failures of Minimum Service Levels in any given month. For example, (x) in the event that BETA fails to achieve [***] Minimum Service Levels in a given month, such failures shall only count as 1 failure to meet the Minimum Service Level for calculating the number of Minimum Service Levels in clause (ii) above, (y) in the event that BETA fails to achieve [***] Minimum Service Level in a given month, such failure shall count as one failure to meet the Minimum Service Level for calculating the number of Minimum Service Levels in clause (ii) above, and (z) in the event that BETA fails to achieve [***] Minimum Service Levels in a given month, such failure shall only count as [***] failures to meet the Minimum Service Level for calculating the number of Minimum Service Levels in clause (ii) above. In the event that AGE adds additional Critical Service Levels for the Service Level Categories “Availability”, “Performance” or “File Transmission”, then the Parties will (1) increase the number of Minimum Service Levels for which there is a failure that will trigger the termination right herein such that the number is not greater than [***] of the total number of Minimum Service Levels during a given year [                 ***                 ]and (2) increase the number of Expected Service Levels for which there is a failure that will trigger the termination right herein such that the number is not greater than [***] of the total number of Expected Service Levels during a given year [                 ***                 ]. In addition, the Parties shall mutually agree whether a new Critical Service Level for the Service Level Categories “Availability”, “Performance” or “File Transmission” will count toward the termination right set forth herein.

 

(c) If the Service Level Credits accrued exceed an amount equal to [***] of the average monthly “At Risk Amount” (calculated in accordance with Exhibit 4 ) for the previous 12 months in any 12-month period, AGE may, upon notice to BETA, terminate this Agreement, in whole or in part, as of the termination date specific in the notice.

 

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(d) In the case of Section 21.06(a), (b) or (c) above, AGE must exercise its option to terminate the Agreement within 90 days of the termination right becoming available to AGE.

 

(e) Without limiting Section 23.01 or any other provision of this Agreement, BETA shall not permit the occurrence of a BETA Divestiture unless the acquirer (or if there is more than one acquirer, all of the acquirers (the “ BETA Acquirer ”)) agrees in writing to be bound by this Agreement (including with respect to BETA’s obligation to provide the Services in accordance with the terms and conditions of this Agreement). Notwithstanding any such BETA Divestiture, if BETA (or any entity Controlled by BETA) continues to control any assets that were being used to provide the Services prior to a BETA Divestiture, then BETA shall remain bound by this Agreement in accordance with its terms until completion of the final Termination Assistance Period. BETA shall notify AGE promptly, and in any event within three days, of any public or general announcement of a proposed BETA Divestiture. BETA shall notify AGE of the date the proposed BETA Divestiture is expected to be legally consummated (the “ AGE Option Date ”; provided that if such date is not at least three months after the date upon which BETA provided AGE notice of the proposed BETA Divestiture, then the “AGE Option Date” shall be the date three months after BETA provided AGE notice of the proposed divestiture). Prior to or on the AGE Option Date, AGE shall notify BETA of whether AGE, in its sole discretion, has elected the terms of either the clause (1) or clause (2) below:

 

(1) BETA Acquirer shall provide the Services, and for a period of one year following the later of the actual legal consummation of the BETA Divestiture and the date the BETA Acquirer in such BETA Divestiture commences providing the Services under this Agreement, AGE shall have the right, by giving notice to the BETA Acquirer at such address provided by BETA, terminate this Agreement, in whole or in part, effective as of the date set forth in such notice; or

 

(2) BETA shall continue to provide the Services for a period of up to two years (but not longer than the term of the Agreement) after the actual legal consummation of the BETA Divestiture, provided that such period may be extended by AGE if AGE is making reasonable efforts to provide the Services itself and/or transition the Services to a third party.

 

(f) Nothing in this Section shall be deemed to limit, obviate or qualify AGE’s right to terminate this Agreement pursuant to Section 21.05(a) or AGE’s ability to make monetary claims in connection with a termination by AGE of this Agreement, including a termination claim based upon BETA’s failure to meet Service Levels.

 

Section 21.07 [Reserved]

 

Section 21.08 Termination for Insolvency .

 

In the event that Thomson Financial Inc.:

 

(a) shall admit in writing its inability to, or be generally unable to, pay its debts as such debts become due; or

 

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(b) shall (1) apply or consent to the appointment of, or the taking of possession by, a receiver, custodian, trustee, examiner or liquidator of itself or of all or a substantial part of its property or assets, (2) make a general assignment for the benefit of its creditors, (3) commence a voluntary case under the Title 11 of the United States Code, 11 U.S.C. Sections 101 – 1330, as amended (the “ Bankruptcy Code ”), (4) file a petition seeking to take advantage of any other law relating to bankruptcy, insolvency, reorganization, liquidation, dissolution, arrangement or winding-up, or composition or readjustment of debts, (5) fail to controvert in a timely and appropriate manner, or acquiesce in writing to, any petition filed against it in an involuntary case under the Bankruptcy Code or (6) take any corporate action for the purpose of effecting any of the foregoing;

 

then AGE may, if allowed by Law, by giving notice thereof to BETA, terminate this Agreement as of the date specified in such termination notice.

 

Section 21.09 Other Terminations .

 

In addition to the provisions of this Article, AGE may terminate this Agreement as provided expressly in this Agreement.

 

Section 21.10 AGE’s Breach .

 

AGE’s failure to perform any of its responsibilities set forth in this Agreement (other than as provided in Section 21.05(c)) shall not be deemed to be grounds for termination by BETA, and BETA hereby expressly waives any such termination right it may have under Law. BETA’s nonperformance of its obligations under this Agreement shall be excused if and to the extent (a) such nonperformance is a direct result of acts or omissions of AGE not contemplated or permitted by this Agreement and (b) BETA provides AGE with prior notice of such nonperformance and uses commercially reasonable efforts to perform notwithstanding AGE’s failure to perform to the extent practicable under the circumstances.

 

ARTICLE XXII

 

TERMINATION FEES

 

Section 22.01 Calculation of Termination Fees prior to Conversion .

 

If this Agreement is terminated by AGE prior to Conversion pursuant to Section 21.01, AGE shall not be responsible for payment of any termination charges or fees pursuant to Exhibit 5 . For avoidance doubt, the termination provisions of the Pre-Conversion Agreement continue in effect.

 

Section 22.02 Calculation of Termination Fees after Conversion .

 

Set forth in Exhibit 5 are the only termination fees that would be payable to BETA if this Agreement is terminated pursuant to Section 21.02. Any termination fees payable in accordance

 

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with this Article shall be due and payable on the last day that BETA provides Services to AGE, including any Termination Assistance Services.

 

Section 22.03 Partial Termination Fee Adjustment .

 

If AGE terminates a portion of the Services pursuant to Section 21.01 or Section 21.02 or any other provision of this Agreement, then the termination fees and the Fees shall be adjusted in accordance with Exhibit 5, or in the absence of any provisions in Exhibit 5 , the termination fees and the Fees shall be equitably reduced.

 

Section 22.04 Termination Fees .

 

Except as otherwise specifically set forth in this Agreement, no termination fees or other similar termination amounts shall be payable by AGE in connection with any termination of this Agreement. For avoidance of doubt, AGE shall remain responsible for the Fees for continued provision of Services prior to the effective date of termination, additional Fees that may be payable for Termination Assistance Services or additional Fees for BETA’s return of AGE Data upon AGE’s termination for convenience, in each case to the extent specifically set forth in this Agreement.

 

ARTICLE XXIII

 

TERMINATION ASSISTANCE

 

Section 23.01 Termination Assistance Services .

 

BETA shall, upon AGE’s request during a Termination Assistance Period, provide the Termination Assistance Services. The Fees for BETA to provide the Termination Assistance Services are set forth in Exhibit 5 under the heading “Deconversion Charges”. These are the only Fees payable by AGE to BETA for Termination Assistance Services. To the extent possible, the 20 FTEs provided for in Section 3.16 shall be used to provide Termination Assistance Services and AGE shall not be required to pay separate Fees for the Termination Assistance Services provided by such FTEs. The quality and level of Services during a Termination Assistance Period shall not be degraded and BETA shall provide the Termination Assistance Services without causing any material disruptions to the business of AGE. After the expiration of a Termination Assistance Period, BETA shall (a) answer questions from AGE regarding the Services on an “as needed” basis at the applicable rates set forth in Exhibit 5 and if not so set forth, at BETA’s then standard rates then in effect immediately prior to the occurrence of the Assistance Event and (b) upon AGE’s request, deliver to AGE any remaining AGE-owned reports and documentation still in BETA’s possession.

 

Section 23.02 Termination Rights .

 

(a) Upon termination of this Agreement, each party shall promptly return to the other party all Confidential Information of the other party and/or erase or destroy all other Confidential Information of the other party in its possession. Each party shall, upon the other party’s written request, certify to the other party that all such Confidential Information has been destroyed or

 

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erased. Without limiting the foregoing, BETA shall (i) deliver to AGE all AGE Data and a copy of all of the (a) AGE Work Product (to the extent not incorporated into any BETA Deferred Gap Resolution as provided in Section 12.06), (b) AGE Development Work, (c) Documentary Work Product, (d) AGE Conversion Gap Resolutions and (e) BETA Incorporated Materials, in each case, in the form then in use and (ii) destroy or erase all other applicable copies of the AGE Development Work, the AGE Work Product (except to the extent incorporated in any BETA Deferred Gap Resolution as provided in Section 12.06), the Documentary Work Product and the AGE Conversion Gap Resolutions in BETA’s possession or control.

 

(b) Until the later of the effective date of termination of the Agreement and the last day of any period of Termination Assistance Services, AGE shall have the option to exercise either of the options set forth in Section 3.17 (Facilities Management and Other Options).

 

Section 23.03 Termination Assistance Services Upon Partial Termination .

 

If there is a partial termination of this Agreement, or a resourcing or insourcing under this Agreement, then Section 23.02 shall apply only with respect to those resources and other items referred to in Section 23.02, which are associated with the Services being terminated, insourced or resourced. As soon as possible after the occurrence of an Assistance Event, BETA shall notify AGE of any such resources or other items that are necessary for the continued provision of the Services and that cannot be replaced by BETA, in which case AGE and BETA shall agree on, or failing prompt agreement AGE shall specify, an appropriate allocation of such resources and other items.

 

ARTICLE XXIV

 

MISCELLANEOUS PROVISIONS

 

Section 24.01 Assignment .

 

(a) This Agreement and the rights, obligations and remedies hereunder (including any amounts to be paid or received hereunder) shall not be assignable or transferable by either Party (whether by merger, asset or stock sale, operation of Law or otherwise) without the prior consent of the other Party (to be given in its sole discretion), except that AGE may assign and transfer this Agreement to an Affiliate or pursuant to a reorganization or Change in Control of AGE without such consent. Upon AGE’s assignment of this Agreement and unless otherwise agreed by the Parties, AGE shall remain responsible for all obligations and liability under this Agreement. The consent of a Party to any assignment of this Agreement shall not constitute such Party’s consent to further assignment. This Agreement shall be binding on the Parties and their respective successors and permitted assigns. Any assignment in contravention of this subsection shall be void.

 

(b) Upon an AGE Divestiture, and only at AGE’s request, BETA shall, for a period of up to 12 months, as designated by AGE in its sole discretion, from the effective date of such AGE Divestiture, continue to provide the Services to the entities or business units that are the

 

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subject of the AGE Divestiture at the Fees and Service Levels and other terms and conditions in effect under this Agreement, provided that the acquirer of the entities or business units that are the subject of the AGE Divestiture is not a BETA Direct Competitor.

 

(c) If during the term of this Agreement, AGE shall acquire control of an entity which has an agreement with BETA that covers or relates to Services provided pursuant to this Agreement, AGE, at its option, may either (i) keep the acquired entity’s existing contract in effect until the date of termination of the existing contract, after which, such acquired entity may receive the benefits of this Agreement as an AGE Company, or (ii) may with prior notice, terminate any such existing contract without the payment by AGE or the acquired entity of any termination fees and the acquired entity may receive the benefits of this Agreement as an AGE Company, which termination shall be effective upon the earlier of (A) one year after AGE’s delivery of notice to BETA or (B) the date the entities’ trading operations are consolidated. If during the term of this Agreement, AGE shall come under the control of an entity which has an agreement with BETA that covers or relates to Services provided pursuant to this Agreement, AGE, at its option, may either (i) keep this Agreement in effect until the end of the term, after which, AGE may receive the benefits of the acquiring entity’s agreement, or (ii) may with prior notice, terminate this Agreement without the payment by AGE or the acquiring entity of any termination fees and AGE may receive the benefits of the acquiring entity’s Agreement as an AGE Company, which termination shall be effective upon the earlier of (Y) one year after AGE’s delivery of notice to BETA or (Z) the date the entities’ trading operations are consolidated.

 

Section 24.02 Notices .

 

Except as otherwise expressly specified in this Agreement, all notices, requests, consents, approvals, agreements, authorizations, acknowledgments, waivers and other communications required or permitted under this Agreement shall be in writing and shall be deemed given immediately when sent by Facsimile to the Facsimile number specified below with receipt of confirmation of a successful transmission or immediately when delivered by hand to the address specified below, 5 days following deposit of the notice into the United States mail, or 1 business day following delivery by express overnight delivery service. A copy of any such notice shall also be sent by express overnight delivery on the date such notice is transmitted by Facsimile to the address specified below:

 

In the case of AGE:

 

A.G. Edwards Technology Group, Inc.

One North Jefferson

St. Louis, Missouri 63103

Attention: Vice Chairman

Facsimile No.: (314) 955-5793

and

Attention: President

Facsimile No.: (314) 955-5524

 

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In the case of BETA:

 

BETA Systems, a division of Thomson Financial Inc.

350 North Sunny Slope Road

Brookfield, Wisconsin 53005

Attn: Chief Financial Officer

Facsimile No.: (262) 789-4848

and

Attn: Managing Director

Facsimile No.: (262) 789-4848