Exhibit 10.31
SERVICES AGREEMENT
by and between
R.R. DONNELLEY & SONS
COMPANY
111 SOUTH WACKER
DRIVE
CHICAGO, IL 60606
and
EDGAR ONLINE, INC.
50 WASHINGTON
STREET, 11 TH
FLOOR
NORWALK, CT 08654
TABLE OF CONTENTS
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PREAMBLE
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3
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1.
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DEFINITIONS
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3
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2.
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TERM
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4
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3.
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ORDERING
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4
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4.
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OWNERSHIIP
AND PROPRIETARY RIGHTS
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5
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5.
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FEES,
INVOICES AND PAYMENT
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5
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6.
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INDEPENDENT
CONTRACTORS
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6
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7.
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WARRANTIES
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7
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8.
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REPORTING
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8
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9.
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INDEMNIFICATION
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8
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10.
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TERMINATION
FOR CAUSE
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8
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11.
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CONFIDENTIALITY
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11
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12.
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SAFETY
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11
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13.
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NOTICES
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12
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14.
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EXCLUSIVITY/NON-SOLICITATION
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13
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15.
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OTHER TERMS
AND CONDITIONS
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14
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EXHIBIT A
– RATE SCHEDULE
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1
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EXHIBIT B
– SERVICES DESCRIPTION
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1
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Page 2
PREAMBLE
This Services
Agreement (hereinafter referred to as the “Agreement”),
dated as of the 30th day of September, 2008 (the “Effective
Date”), is made by and between R. R. Donnelley &
Sons Company, a Delaware corporation, having its principal place of
business at 111 South Wacker Drive, Chicago, IL 60606, and EDGAR
Online, Inc, a Delaware corporation, having its principal place of
business at 50 Washington Street, 11 th Floor, Norwalk, CT 08654
(“EOL”). This Agreement supersedes and replaces the
Services Agreement entered into between the parties on
January 30, 2006 and all amendments thereto.
As used in this Agreement the terms
listed below shall have the following definitions:
“Affiliate” means any company or entity that is controlling,
controlled by or under common control of R. R. Donnelley &
Sons Company. “Controlling”, “controlled
by”, or “under common control of” means either
the beneficial ownership under trust, or outright ownership of more
than fifty (50%) percent of the affiliate or business entity
itself or the affiliate’s or business entity’s
securities, or units if a limited liability company.
“ Authorized
Representative ” means the person identified by each
party in this Agreement who is authorized to give or receive any
notice or other communication required or permitted under this
Agreement on behalf of the authorizing party.
“ Change of Control
” means: (a) any consolidation or merger of a party
pursuant to which 51 percent or more of the outstanding voting
securities of the surviving or resulting company are not owned
collectively by the then current holders of such party’s
outstanding voting securities (the “Current Control
Group”) following such consolidation or merger; (b) any
sale, lease, exchange or other transfer (in one transaction or a
series of related transactions) of all, or substantially all, of
the assets of a party other than any sale, lease, exchange or other
transfer to any company where such party owns, directly or
indirectly, 100 percent of the outstanding voting securities of
such company after any such transfer; (c) any person (as such
term is used in Section 13(d) of the Exchange Act of 1934, as
amended), other than the Current Control Group, who shall acquire
or become the beneficial owner (within the meaning of Rule 13d-3
under the Exchange Act) whether directly, indirectly, beneficially
or of record, of 51 percent or more of outstanding voting
securities of a party; or (d) commencement by any entity,
person, or group (including any affiliate thereof, other than such
party) of a tender offer or exchange offer where the offeree
acquires more than 51 percent of the then outstanding voting
securities of such party.
“ Effective Date
” means the date set forth in the Preamble.
“ Price ” means
EOL’s total fees for the Services (as hereafter defined)
covered by an Order (as hereafter defined), which shall be
calculated in accordance with the Rate Schedule attached hereto as
Exhibit A (the “ Rate Schedule ”) and included
on the Order.
Page 3
“ Order ” means
those orders issued by RR Donnelley or its Affiliates, from time to
time, pursuant to this Agreement listing the Services to be
purchased by RR Donnelley, the Price and other appropriate details
of the order, which shall be the sole method of ordering Services
hereunder.
“ RR Donnelley ”
means R. R. Donnelley & Sons Company or any Affiliate that
issues an Order hereunder.
“ Services ”
means all services to be provided by EOL pursuant to an Order under
this Agreement, including, but not limited to, services or the
tasks described in the Order or Services Description (as hereafter
defined).
“ Services Description
” means the written summary of the Services attached hereto
as Exhibit B, including, as appropriate, any deliverables and a
schedule for completion.
This Agreement shall commence on the
Effective Date and shall continue in full force and effect for
three years (3) years therefrom (the “Initial
Term”). Unless earlier terminated, or unless a party gives
written notice to the other party of its intention not to renew in
accordance with Section 10(h) hereof, this Agreement shall
renew automatically for additional one (1) year terms, as set
forth in Section 10(h).
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b.
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a.
Orders – All Services to be purchased hereunder shall
be listed on one (1) or more Order(s) issued by RR Donnelley
or an Affiliate and accepted by EOL pursuant to this Agreement,
which upon acceptance by EOL, shall constitute a separate agreement
governed by the terms and conditions of this Agreement, together
with the terms and conditions of the applicable Order. Each Order
shall reference this Agreement and may include an addendum, if
appropriate. An Order shall be effective when accepted by EOL. The
name of the RR Donnelley entity (i.e., R. R. Donnelley &
Sons Company or one of its Affiliates) issuing the Order for
Services shall be set forth on the Order, and shall be considered
the contracting party in terms of the rights and obligations set
forth in this Agreement with respect to the Services purchased
under the applicable Order. Notwithstanding any provision to the
contrary contained herein, in the event RR Donnelley is not the
contracting party, RR Donnelley shall be jointly and severally
liable under each Order and this Agreement. Prevailing Terms and
Conditions – The terms and conditions contained in this
Agreement shall be applicable to and govern each Order. If there is
a conflict between the terms and conditions of an Order and the
terms and conditions of this Agreement, the terms of this Agreement
shall prevail unless otherwise specifically stated in such Order.
Any terms in an addendum shall supersede terms and conditions
contained herein which may be in conflict. Changes to an Order
shall be evidenced by a change order referencing the particular
Order to be amended and shall specifically set forth the required
change.
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Page 4
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c.
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Unless
otherwise provided in an Order, EOL shall perform all reasonable
operations to satisfactorily perform the Services.
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4.
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OWNERSHIIP
AND PROPRIETARY RIGHTS
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a.
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EOL has
created, acquired, owns or otherwise has rights in, and may, in
connection with the performance of Services under the Agreement,
use, provide, modify, create, acquire or otherwise obtain rights
in, concepts, ideas, methods, methodologies, procedures, processes,
know-how, techniques, models, templates and software (collectively,
the “EOL Property”). EOL retains all ownership and use
rights in the EOL Property. RR Donnelley shall acquire no rights or
interest in the EOL Property. EOL acknowledges that the EOL
Property shall not include any of RR Donnelley’s confidential
information, tangible or intangible property or operational
processes developed by RR Donnelley in the creation of the full
service XBRL translation solution, and EOL shall have no ownership
rights in such property.
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b.
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RR Donnelley
shall not have the right to copy, alter, modify, disassemble,
reverse engineer, decompile, or create the source code from the
object code of any computer software component of the Services
unless this Agreement expressly grants RR Donnelley the right to do
so.
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5.
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FEES,
INVOICES AND PAYMENT
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a.
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Currency;
Rate Schedule and Determination of Fees throughout the
Term – The Price
listed in each Order shall be in U.S. Dollars and shall be
reflected in an invoice that is submitted in accordance with the
Rate Schedule. The Rate Schedule attached hereto sets forth rates
for both Flat and Variable Fees for the first twelve
(12) months of the Initial Term (“Year One”) only.
Flat and Variable Fees for the second twelve (12) months of
the Initial Term (“Year Two”), and final twelve
(12) months of the Initial Term (“Year Three”)
shall be negotiated and determined by the parties commencing 120
days prior to each of Year Two and Year Three, respectively. If the
agreement extends beyond the initial three year term, the parties
will negotiate additional years commencing 120 days prior to the
end of each previous term year. The parties agree to factor in the
prior year’s results and current market demands when
negotiating Year Two, Year Three and renewal term Flat and Variable
Fees. If the parties cannot agree to revised Flat and Variable Fees
for Year Two and/or Year Three within sixty (60) days prior to
the end of each contract Year or renewal year, as applicable, then
either party shall have the right to terminate the agreement
pursuant to Section 10(h). In addition, if at any time during
any sixty (60) day period during the Agreement, the average
market price for XBRL translation services has deviated by [The
confidential material contained herein has been omitted and has
been separately filed with the Commission.] above or below the
prices set forth in Exhibit A’s Rate Schedule, the parties
agree to negotiate a new Rate Schedule. In the event the Final Rule
adopted by the SEC differs materially from the Proposed Rule, then
parties agree to negotiate a new fee schedule and XBRL Translation
Targets as set forth in Exhibit B.
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b.
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Taxes –
RR Donnelley shall pay or reimburse
EOL at cost for any sales, retailer’s occupation, service
occupation, value added, use or any other federal, state or local
tax, measured solely by the purchase price and required to be paid
by EOL by virtue of the sale and provision of the Services;
provided , however , that RR Donnelley shall not be
liable for any taxes of any nature based on the
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Page 5
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income of EOL. In case of doubt
by RR Donnelley as to EOL’s liability for any such tax, EOL
shall allow RR Donnelley, at its own expense, to assume control of
any litigation or proceeding relating to the determination and
settlement of such tax. RR Donnelley shall, upon final settlement
of such litigation and proceeding (after exhaustion of all appeals,
if any), reimburse EOL for any tax owing including in the amount to
be reimbursed, any interest charges and penalties accruing
thereon.
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c.
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Invoices – EOL shall issue invoices (referencing
the order number, and order line number) on or after the date(s)
specified in the Rate Schedule. Should the Order contain more than
one (1) item, EOL’s invoice shall make the proper
reference. EOL shall submit all invoices for Services to the
attention of the RR Donnelley Authorized Representative designated
by RR Donnelley in writing to EOL. . The RR Donnelley Authorized
Representative shall review such invoice and notify EOL of any
errors or forward the invoice to RR Donnelley Accounts
Payable.
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All non-invoice correspondence for
Accounts Payable should be mailed to:
RR Donnelley
Accounts Payable
PO Box 281588
Nashville, TN 37228
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d.
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Payment – All payment terms for Orders shall be
calculated based upon the date of invoice, and payment terms shall
be considered satisfied based upon the date of postmark of payment,
or if payment is made by electronic funds transfer, the date of
transmission. RR Donnelley shall receive invoices within five
(5) days of invoice date. Unless payment terms and timing are
otherwise stated herein, RR Donnelley (or the Affiliate specified
on the Order executed by such Affiliate) shall pay EOL’s
invoice amount not later than forty-five (45) days following
the date of said invoice.
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6.
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INDEPENDENT
CONTRACTORS
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a.
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Independent
Contractor – The
parties acknowledge that in performing their obligations hereunder,
each is acting as an independent contractor. Nothing in this
Agreement shall be construed to create a partnership, joint
venture, franchise or other similar arrangement between the
parties. Neither party has the authority to enter into any
agreement, or make any warranty or representation on behalf of the
other party, except where and to the extent specifically authorized
to do so in writing.
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b.
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EOL’s
Employees – The
personnel furnished by EOL in accordance with the provisions hereof
shall be, notwithstanding any provision hereof to the contrary,
EOL’s employees (such personnel being hereinafter called
“ Employee(s) ”) and shall not for any purpose
be considered RR Donnelley’s employees. EOL shall be solely
responsible for the payment of the salaries of such Employees and
matters relating thereto (including the withholding and/or payment
of all Federal, State and local income and other payroll taxes),
workmen’s compensation, disability benefits, and all such
additional legal requirements of like nature applicable to such
Employees.
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Page 6
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a.
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Limited
Warranty . EOL represents
and warrants that, the Services, as delivered, shall not infringe
upon the patent, copyright, trademark or trade secret rights of any
third party (the “Limited Warranty”). This Limited
Warranty is void if infringement results from
(i) modifications to any part of the Services or the results
thereof that were not made by EOL; (ii) the use of the
Services in connection with another product or service (the
combination of which caused the infringement); or
(iii) EOL’s compliance with RR Donnelley’s
specific instructions.
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b.
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LIMITATION
OF LIABILITY . THE
SERVICES ARE PROVIDED “AS IS” AND EOL MAKES NO CLAIMS
OR WARRANTIES WITH RESPECT TO THE ACCURACY, AVAILABILITY OR
RELIABILITY OF THE SERVICES. IN FURTHERANCE THEREOF, EOL EXPRESSLY
DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING: WARRANTIES (A) OF
MERCHANTABILITY, (B) OF FITNESS FOR A PARTICULAR PURPOSE,
(C) OF UNINTERRUPTED OR ERROR-FREE SERVICE, (D) THAT ANY
DESIRED RESULT MAY BE OBTAINED THROUGH USE OF ANY EOL SERVICE,
(E) RELATING TO THE OPERATION, PERFORMANCE, DESIGN, AND/OR
QUALITY OF THE SERVICE, OR (F) ARISING FROM A COURSE OF
DEALING, TRADE USAGE OR TRADE PRACTICE OF ANY NATURE OR KIND. IN NO
EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL,
PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING,
BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR
OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY,
FOR LOSS OF PRIVACY, ARISING OUT OF OR IN ANY WAY RELATED TO THE
USE OF OR INABILITY TO USE THE SERVICES OR OTHERWISE UNDER OR IN
CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, EVEN IN THE EVENT
OF FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND EVEN
IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
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c.
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Quality
– EOL warrants that
it shall perform the Services in a professional manner in
accordance with the Service Level Agreement set forth on Exhibit B
hereof.
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d.
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EOL
Compliance – RR
Donnelley shall have the right at all times during the term of this
Agreement to conduct such tests and inspections as it deems
necessary to assure EOL’s compliance with this Agreement. RR
Donnelley shall be supplied, as needed and requested, with data,
drawings, specifications, test results, quality documentation,
schedules and other documents and information as such.
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e.
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Defects
– RR Donnelley
shall give EOL prompt notice in writing in detail of all defects
known to it, either in-person to EOL’s on-site
representative, or by phone to EOL’s customer service
representative. In addition, RR Donnelley shall tender a Defective
Product Report to EOL confirming notice of such defects. Upon
receipt of such in-person notification, EOL shall promptly and
without undue delay notify RR Donnelley of its intentions and
preferences to effect repair of such product
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Page 7
EOL agrees to maintain accurate
business records, books, and account information relating to the
Services purchased by RR Donnelley under this Agreement, including
records relating to shipping, billing, payments and purchases from
vendors specified by RR Donnelley, and to retain the same for a
period of at least one (1) year from the date of the last
invoice for the applicable Services. All such records, books and
information may be audited or inspected by RR Donnelley
representatives upon reasonable notice at all reasonable times,
which may only be made upon fourteen (14) days prior written
notice.
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a.
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Indemnity – EOL shall indemnify and hold harmless RR
Donnelley, its Affiliates, directors, officers, agents, employees,
and shareholders from and against all claims, demands, disputes,
complaints, causes of action, suits, losses and damages (including
attorneys’ fees) for any breach of the Limited Warranty
specified in Section 7(a) above.
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b.
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Notification
of Claims – RR
Donnelley shall notify EOL promptly of any such action, suit or
proceeding and shall cooperate fully with EOL, at EOL’s
expense, in order to enable EOL to make a defense. EOL shall have
sole control of the defense of any such action and all negotiations
for its settlement or compromise, provided that such settlement or
compromise shall not interfere with RR Donnelley’s use, or
EOL’s provision of, the Services. RR Donnelley may
participate, at RR Donnelley’s expense, in the defense of any
such action.
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c.
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Enjoinment
of Services – If,
in any suit or proceeding, EOL is e
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