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S-1/A - S-1 AMENDMENT 1 - LPL Financial Holdings Inc. | b80825a1sv1za.htm |
Exhibit 10.18
Thomson Transaction Services
MASTER SUBSCRIPTION AGREEMENT
MASTER SUBSCRIPTION AGREEMENT
This Master Subscription Agreement (this Agreement) is entered into by and between Thomson
Transaction Services (TTS), a division of Thomson Financial LLC, a Thomson Reuters company, 350
North Sunny Slope Road, Brookfield, WI 53005, and LPL Financial Corporation (Subscriber), 9785
Towne Centre Drive, San Diego, CA 92121, this 5th day of January, 2009.
WHEREAS, TTS owns the following proprietary computer programs:
TTS
Host provides back office processing support for securities brokerage firms
TTS
Link provides complete front-office integration with TTS Host
BL Server provides electronic access to TTS Link core applications
TTS
Access provides data delivery of mainframe data
XT
Server provides ability to receive real-time TTS Host transaction messages
(collectively, the TTS System)
WHEREAS, Subscriber desires to subscribe to this data processing service called the TTS System
offered by TTS, and to have the TTS System installed at certain offices of Subscriber;
NOW, THEREFORE, in consideration of the mutual promises and covenants exchanged herein, TTS
and Subscriber agree as follows:
1. | Purpose of Agreement. The purpose of this Agreement is to set forth the terms and conditions governing the mutual rights, duties and obligations of the parties hereto. | ||
2. | Services Provided. |
(a) TTS will provide Subscriber with the TTS System services which are set forth,
together with their charges, on Schedule A attached hereto and incorporated herein
by reference.
(b) TTS Host and TTS Link service provided hereunder shall be available on each
day that the New York Stock Exchange is open for trading. On such days TTS shall
make reasonable efforts to provide all TTS Host and TTS Link service hereunder
from 6:00 a.m. to 8:00 p.m., CST, and limited inquiry functions from 8:00 p.m. to
11:30 p.m., CST. TTS shall also make reasonable efforts to provide limited
inquiry functions on Saturdays from 6:00 a.m. to 6:00 p.m., CST, except that TTS
reserves the right to limit or curtail holiday or weekend availability when
necessary for system upgrades, adjustments, maintenance, or other operational
considerations.
BL Server service provided hereunder shall be available on each day that the New
York Stock Exchange is open for trading. On such days, TTS shall make reasonable
efforts to provide BL Server service hereunder from 6:00 a.m. to 6:00 p.m. CT and
inquiry and order entry functions from 6:15 p.m. to 6:00 a.m. CT. TTS shall also
make reasonable efforts to provide inquiry and order entry functions on weekends
except for 8:00 p.m. CT Saturday evening until 6:00 a.m. CT Sunday morning during
which time TTS will be performing maintenance on its mainframe computer systems.
(c) General enhancements to existing TTS Host service provided hereunder shall be
made available to Subscriber at no additional cost, but any new features or
services
[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission. |
that may be developed by TTS during the term of this Agreement may, at
TTSs option,
and subject to Subscribers acceptance, be made available to Subscriber at TTSs
then-current prices for such new features or services, and upon such other terms
as TTS may reasonably deem appropriate. Enhancements to existing TTS Host
services requested by Subscriber and which benefit less than a majority of TTSs
Subscribers at the time such enhancements are put into service may, at TTS option,
be billed to such benefiting Subscribers at TTS standard rates for programming
after discussion with Subscriber. All enhancements to the TTS Host service, and
any new features or services introduced by TTS, shall remain the exclusive
proprietary property of TTS.
3. | Equipment and Hardware. Subscriber shall be responsible for obtaining, installing at its premises, and maintaining all equipment and hardware, including telecommunications equipment, necessary for using the TTS System. TTS will assist Subscriber in developing an acceptable equipment list, and Subscriber shall, prior to installation, submit its equipment configuration to TTS for approval, which shall not be unreasonably withheld. | ||
TTS shall also provide reasonable prior written notice to Subscriber of any scheduled enhancements or modifications to hardware, software, databases, network protocols, security recovery efforts, and similar items that impact Subscriber or its users use of the products or services. TTS shall also provide to Subscriber, upon Subscribers request, a copy of TTSs change control process document. | |||
4. | Subscriber Data. |
(a) Subscriber will timely supply TTS, in a form acceptable to TTS, with all data
necessary for TTS to perform the ongoing services to be provided hereunder. It is
the sole responsibility of Subscriber to insure the completeness and accuracy of
such data.
(b) TTS acknowledges that all records, data, files and other input material
relating to Subscriber are confidential and shall take reasonable steps to protect
the confidentiality of such records, data, files and other materials. TTS will
provide reasonable security safeguards to limit access to Subscribers files and
records to Subscriber and other authorized parties.
(c) TTS will take reasonable steps to protect against the loss or alteration of
Subscribers files, records and data retained by TTS, but Subscriber recognizes
that events beyond the control of TTS may cause such loss or alteration. TTS will
maintain backup file(s) containing all of the data, files and records related to
Subscriber in accordance with the terms of TTSs Disaster Recovery arrangement.
Subscribers file(s), records and data shall be released to Subscriber upon
termination of this Agreement or in the event of an occurrence that renders TTS
unable to perform hereunder.
(d) TTS acknowledges that all records, data, files and other input material
relating to Subscriber are the exclusive property of the Subscriber.
5. | Charges and Payments. |
(a) General. In addition to reimbursements required elsewhere in this
Agreement, Subscriber shall pay for services in accordance with Schedule A
attached hereto and as may be adjusted as provided herein. Charges for any
partial month of service shall be prorated on the basis of a 30-day month. Upon
each twelve (12) month anniversary of this Agreement, TTS may adjust its fees for
trade charges, charges for non-trade services and the TTS Host and TTS Fixed
Income monthly services minimums in accordance with the cumulative net change
in the consumer price index over the prior
[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission. |
year. TTS agrees that it will
continue to offer to and maintain for
Subscriber the HOLD module as currently utilized by Subscriber through October 15,
2011 at the same fees as contained in this Agreement.
(b) Billing. TTS shall invoice Subscriber monthly for all applicable
charges. If payment is not received by TTS within forty-five (45) days of the
invoice date, Subscriber agrees to pay TTS interest on the unpaid balance at the
rate of 8% per annum from the date of the invoice until paid in full. If payment
in full is not received within ninety (90) days of the date of the invoice, TTS
may, at its option, terminate this Agreement upon thirty (30) days written notice.
If Subscriber disputes all or a portion of an invoice in good faith, Subscriber
may withhold the disputed portion of the payment pending resolution of the
disputed amount pursuant to Paragraph 13 of this Agreement.
(c) Taxes, Utilities and Exclusions. All charges shall be exclusive of
any federal, state or local sales, use, excise, ad valorem or
personal property taxes levied, or any fines, forfeitures or penalties assessed in
connection therewith, as a result of this Agreement or the installation or use of
TTS Host hereunder. Any such taxes which may be applicable will be paid by
Subscriber or by TTS for Subscribers account, in which case Subscriber shall
reimburse TTS for amounts so paid. All electrical utility service necessary to
operate TTS Host at Subscribers offices shall be maintained in Subscribers own
account with such utility or service, and all charges for such services, including
installation charges in connection therewith, shall be paid by Subscriber. TTS
shall arrange for the installation of all telecommunications services necessary
for Subscribers use of the TTS System, which will be maintained in TTSs account
for Subscribers exclusive use. Subscriber shall promptly remit payment to TTS,
at TTS standard rates, for all charges in connection with such installation and
Subscribers use thereof.
6. | Term of Agreement. |
(a) This Agreement will be effective in the month following the month of execution
and will terminate sixty (60) months from January 1, 2009. TTS or Subscriber
shall give the other party twelve (12) months written notice of its intent not to
renew this Agreement upon its expiration. If such notice is given less than six
(6) months prior to the expiration date, then this Agreement shall remain in
effect for twelve (12) months from the giving of such notice.
(b) Unless TTS or Subscriber shall have given notice of non-renewal as provided in
Paragraph 7(a), in the event that no renewal, continuation or successor agreement
is signed by the parties prior to the expiration of this Agreement, this Agreement
may be extended automatically for successive periods of six (6) months until a
successor, renewal or continuation agreement is signed by the parties or until
Subscriber, upon six (6) months written notice to TTS, or TTS, upon six (6) months
written notice to Subscriber, elects to terminate this Agreement. During any
period of extension described in this subparagraph 7(b), the charge for the
services provided to Subscriber hereunder may, at TTSs option, be 105% of TTSs
then-current non-discounted rates.
7. | Termination. |
(a) If Subscriber cancels this Agreement after the effective date and prior to the
end of the term, Subscriber will pay a termination fee as set forth in Schedule A
equal to the monthly minimum per month times by the remaining months to end of
term. Such termination fee will be paid in one lump sum payment.
(b) In addition to termination rights as provided elsewhere herein, either party
may terminate this Agreement in the event that the other party commits a material
breach of any provision of this Agreement, provided the breaching party fails to
cure such
[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission. |
material breach within sixty (60) days of its receipt of written
notification thereof from the other party.
(c) Subscriber shall have the right to terminate this Agreement for a Chronic
Service Failure as set forth in Schedule 5 of the SLA, in which event all fees
for early termination of this Agreement will be waived, TTS will assist the
Subscriber in identifying any deconversion data files that are required, and TTS
will deliver those data files electronically without charge to Subscriber.
8. | Representations and Warranties. |
(a) Title and Non-Infringement.
(1) TTS hereby represents, warrants and covenants to Subscriber that it has
and at all
times will have the full legal right to provide the TTS System and all TTS
Services provided by under this Agreement, and TTS has no knowledge of any claim,
litigation or proceeding pending or threatened against TTS with respect to such
TTS Services or the TTS System, or any component thereof, alleging infringement of
any patent or copyright or violation of any trade secret or any other proprietary
right of any person.
(2) Subscriber hereby represents, warrants and covenants to TTS that it has
and at all times will have the full legal right to provide the data to TTS as
contemplated herein and Subscriber has no knowledge of any claim, litigation or
proceeding pending or threatened against Subscriber with respect to data, alleging
infringement of any patent or copyright or violation of any trade secret or any
other proprietary right of any person.
(b) Compliance with Law.
(1) TTS hereby represents, warrants and covenants to Subscriber that in
performing its obligations and exercising its rights under this Agreement, TTS
will comply (and shall require all of its personnel providing Services hereunder
or otherwise involved in TTSs performance under this Agreement to comply) with
all applicable Laws (and all changes in Laws) applicable to TTS and the Services
it provides hereunder, and that TTS will obtain and maintain all permits,
licenses, and consents required in connection therewith. For the purposes of this
Agreement, Law shall mean a declaration, decree, directive, legislative
enactment, statute, order, ordinance, regulation, rule or other binding action of
or by an Federal, state, municipal, local, territorial or other government
department, regulatory authority, judicial or administrative body.
(2) Subscriber hereby represents warrants and covenants to TTS that
Subscriber is in compliance with all Laws applicable to it and will obtain and
maintain all permits, licenses, and consents required in connection with its
obligations under this Agreement.
(c) Business Continuation. TTS hereby represents, warrants and covenants
to Subscriber that it has and shall maintain a disaster recovery plan (including
designating specific protocols for declaring a disaster) and business continuation
plan (including recovery time objectives) that shall enable TTS to provide the
Services and the System in accordance with this Agreement and that it shall test
the operability of such plan at least once every 12 months and revise such plan as
necessary to ensure continued operability. TTS shall permit Subscriber to
participate in such testing and shall provide the results of such annual testing
to Subscriber. TTSs agrees that its business continuation plan shall be reviewed
and approved by the TTS senior management team annually. Subscriber may request a
summary of TTSs disaster recovery plan on a quarterly basis. Twice per year
Subscriber may review at TTS a current copy of the full TTS disaster recovery
plan which includes confidential information and which may not be removed from the
premises.
[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission. |
(d) Audit. Controls. Security. All passwords and all Subscriber
Confidential Information stored, cached, or otherwise maintained on TTSs laptops
or other portable
media shall be stored in an encrypted format. At any time during the term of this
Agreement, but no more than once per year, Subscriber may request copies of
Privacy and Security Policies and Procedures, and SAS-70, including a Type II
SAS-70. Subscriber may recommend to TTS additional reasonable controls to be
added to the SAS-70. TTS shall use its best efforts to deliver to Subscriber the
SAS-70 by December 15 of each year of the term of this Agreement. If TTS agrees
with such recommendations and its other subscribers consent, TTS will implement
the recommendations. TTS shall annually complete Subscribers Standardized
Information Gathering Questionnaire. TTS agrees that it shall perform periodic
penetration testing of all internet facing applications.
9. | Confidentiality. |
(a) Confidentiality Obligation. Each party (in such capacity the
Receiving Party) shall hold the Confidential Information (as defined
below) of the other party (in such capacity the Disclosing Party) in
strict confidence. The Receiving Party shall have the limited right to use the
Confidential Information only for the purposes of fulfilling its commitments and
obligations to the Disclosing Party under this Agreement and for no other purpose.
Except as permitted in the foregoing sentence or by prior written consent of the
Disclosing Party, the Receiving Party shall not use, disclose or distribute to any
person, firm or entity any Confidential Information and shall not permit any
person, firm or entity to use, disclose or distribute any Confidential
Information; provided that the Receiving Party may disclose or distribute
such Confidential Information to the following: (i) its officers, employees and
directors who have a business need to know such Confidential Information; and (ii)
its attorneys, accountants, consultants, agents, independent contractors or
professional advisors (the Receiving Party Agents) who (x) have a
business need to know such Confidential Information and (y) are subject to
fiduciary, professional or written obligations of confidentiality substantially
similar to, and no less restrictive than, the obligations set forth herein. The
Receiving Party shall be responsible for ensuring that the Receiving Party Agents
comply with the terms of this Agreement and shall remain ultimately responsible
for the use, disclosure or distribution of Confidential Information by the
Receiving Party Agents. Any failure by the Receiving Party Agents to comply with
the terms hereof shall constitute a material breach of this Agreement by the
Receiving Party. Except in connection with the purposes identified above, the
Receiving Party shall not copy or otherwise reproduce, or permit to be copied or
otherwise reproduced, all or any part of Confidential Information without the
prior written consent of the Disclosing Party.
TTS agrees that all information related to Subscribers customers that it becomes
aware of as a result of this Agreement is confidential and proprietary in nature,
that by law this information must be protected and kept confidential, and that
said information shall not be divulged by TTS to any third parties (except as may
be required by Law or pursuant to an order of any court or administrative body in
accordance with the proviso set forth in Section 9(c) below) or used in any manner
other than in connection with the terms of this Agreement. Vendor shall (1)
establish procedures to protect the security and confidentiality of this
information, (2) protect against any anticipated threats or hazards to the
security or integrity of the customer information, (3) protect against
unauthorized access to or use of such information that could result in substantial
harm or inconvenience to customers; and (4) otherwise comply with Laws applicable
to TTS and the Services it provides hereunder.
[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission. |
(b) Confidential Information. As used in this Agreement, Confidential
Information shall mean (i) the subject and terms of any and all potential or
binding business transactions between the parties, and (ii) all oral or written
information, of whatever kind and in whatever form, and whether or not marked as
confidential, of the Disclosing Party, its employees, suppliers, or customers,
including the identities thereof, that may
be obtained from any source as a result of or in connection with this Agreement,
as well as all such other information designated by the Disclosing Party as
confidential including past, present or future business and business activities,
financial or technical information; products, services, research and development;
processes, techniques; designs; financial planning practices; client information
(including clients identities and any client related data or information); and
marketing plans.
(c) Exceptions. As used in this Agreement, the term Confidential
Information shall not include any information which the Receiving Party can
demonstrate (i) is in the public domain through no fault or breach of
confidentiality by such Receiving Party, (ii) was known by the Receiving Party
prior to its disclosure by the Disclosing Party and was not obtained in such
circumstances subject to a requirement of confidentiality, or (iii) was developed
independently of, and without the use of or access to, any Confidential
Information exchanged pursuant to this Agreement. Despite the obligations of this
Section 9, the Receiving Party may disclose the Confidential Information of the
Disclosing Party to the limited extent such Confidential Information is required
to be disclosed by the Receiving Party by Law or pursuant to an order of any court
or administrative body; provided that the Receiving Party (i) shall
provide the Disclosing Party with prompt notice of such request or order,
including copies of subpoenas or orders requesting such Confidential Information,
(ii) shall cooperate reasonably with the Disclosing Party in resisting the
disclosure of such Confidential Information via a protective order or other
appropriate legal action, and (iii) shall not make disclosure pursuant thereto
until the Disclosing Party has had a reasonable opportunity to resist such
disclosure, unless the Receiving Party is ordered otherwise. Notwithstanding the
foregoing, TTS may review and use Confidential Information internally on an
aggregated anonymous basis to improve the System and its Services.
(d) Ownership. All Confidential Information shall be and remain the sole
and exclusive property of the Disclosing Party or its employees, suppliers or
customers, as the case may be. Except as otherwise set forth in this Agreement,
neither Party acquires any Intellectual Property Rights, including any rights to
create derivative works of any Confidential Information, under this Agreement,
except the limited right to use such Confidential Information in accordance with
this Agreement. For the purposes of this Agreement, Intellectual
Property shall mean a partys patents, trade marks, service marks, trade and
service names, copyrights, database rights and design rights (whether or not any
of them are registered and including applications for registration of any of
them), rights in know-how, moral rights, trade secrets and all rights or forms of
protection of a similar nature or having similar or equivalent effect to any of
them which may subsist anywhere in the world now existing or hereafter arising.
Except as expressly provided herein, without Subscribers prior written approval
(in its sole discretion), Subscriber Confidential Information shall not be (i)
used by TTS other than is necessary for TTSs performance of its obligations under
this Agreement, (ii) disclosed, sold, assigned, leased or otherwise provided to
third parties by TTS, or (iii) commercially exploited by or on behalf of TTS.
(e) Unauthorized Disclosure. The Receiving Party shall (i) promptly
notify the Disclosing Partys Chief Security Officer if the Receiving Party
discovers or is notified of an unauthorized disclosure or release of, or access
to, the Disclosing Partys Confidential Information (each, an Unauthorized
Disclosure) to or by any person obtaining or reasonably believed to have
obtained such Confidential Information, or access to such Confidential
Information, from or through the Receiving Party, (ii) reasonably assist the
Disclosing Party in any action taken against the person(s) responsible for such
Unauthorized Disclosure, and (iii) take immediate corrective action
[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission. |
to cease the
existing Unauthorized Disclosure and prevent any other or future Unauthorized
Disclosures. In the event of a breach of confidentiality under this Section 9, TTS
and Licensee will negotiate appropriate remediation efforts in good faith.
(f) Return of Confidential Information. Upon written request by the
Disclosing Party at any time, the Receiving Party shall: (i) turn over to the
Disclosing Party all
Confidential Information, all documents or media containing the Confidential
Information, and any and all copies or extracts thereof, or (ii) destroy the
Confidential Information, and any and all copies or extracts thereof, and provide
the Disclosing Party with written certification of such destruction signed by an
authorized representative of the Receiving Party. Notwithstanding the foregoing,
each Party acknowledges that the Receiving Party shall not be required to comply
with the foregoing to the extent that (i) the Confidential Information resides on
the Receiving Partys backup, disaster recovery or business continuity systems, or
(ii) the Receiving Party is obligated by applicable Law or industry or
governmental regulations to retain such Confidential Information, or (iii) with
respect to Subscriber, any such Confidential Information is licensed to
Subscriber. In addition, upon termination or expiration of this Agreement, TTS
shall (i) shred all documents containing Customer Data prior to disposal and (ii)
destroy all copies of the Customer Data and certify in writing to Subscriber that
TTS has complied with the requirements contained herein.
(g) Trademarks, Trade Names, and Publicity. Except as is reasonably
necessary to provide or utilize the Services hereunder, TTS agrees not to use the
name(s), trademarks, trade names, service marks, and other marks (collectively,
Marks) of Subscriber, whether registered or not, in publicity releases
or advertising or in any other manner, including company lists, marketing lists or
client lists, without securing the prior written approval of a managing director
or higher ranking officer of Subscriber. Further, TTS shall not provide any
Subscriber contact or key person information to any Affiliate of TTS or any third
party, unless Subscriber has approved such in advance. For the purposes of this
Agreement, Affiliate means (i) any entity that, from time to time,
directly or indirectly controls, is controlled by, or is under common control with
either TTS or Subscriber, or that is a successor (whether by change of name,
dissolution, merger, consolidation, reorganization, sale or other disposition) to
any such entity or its business and assets; or Thomson Reuters Corporation,
Thomson Reuters PLC and any of their current parent entities or subsidiaries from
time to time. An entity will be deemed to control another entity if it has the
power to direct or cause the direction of the management or policies of such
entity, whether through the ownership of voting securities, by contract, or
otherwise.
(h) Additional Remedies. The Receiving Party acknowledges and agrees that
due to the unique nature of the Confidential Information and the Marks, there may
be no adequate remedy at Law for a breach by the Receiving Party of its
obligations under this Section 9 and that such breach may cause irreparable harm
to the Disclosing Party. Therefore, upon any such breach or any threat thereof,
the Disclosing Party shall be entitled to seek appropriate equitable relief in
addition to whatever remedies it may have at Law.
10. | Indemnification. |
(a) Obligation to Defend and Indemnify. TTS shall defend Subscriber, its
Affiliates, and their respective directors, officers, employees, agents,
contractors, successors, and assigns (each, an Indemnified Party) from
and against any and all claims, demands, investigations, and causes of actions by
third parties (each, a Claim) to the extent such Claims are based on or
arise from (i) any allegations that any of the System or the Services infringes
upon or misappropriates the Intellectual Property Rights of a third party, (ii)
any bodily injury (including death) or damage to or loss of any tangible personal
or real property caused by the actions or omissions of TTS, its Affiliates, or any
of their respective directors, officers, employees, agents, contractors,
[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission. |
successors, or assigns, (iii) any allegation that any of TTSs personnel is an
employee of Subscriber by virtue of performing any Services under this Agreement
or otherwise, or (iv) any expenses, including any taxes, which were the
responsibility of TTS hereunder. In addition, TTS shall indemnify and hold each
Indemnified Party harmless from and against any and all damages, losses, fines,
penalties, costs, and other amounts (including reasonable attorneys fees and
expenses) incurred or suffered by any such Indemnified Party in connection with
any such Claims. Notwithstanding the
foregoing TTS shall not be liable nor have any obligation to indemnify if such
Claims were caused by Subscriber.
(b) Additional Remedy. If Subscriber is enjoined or otherwise prohibited,
or is reasonably likely in the opinion of Subscribers counsel to be enjoined or
otherwise prohibited, from using any of the System, the Services or any portion
thereof, based on a Claim covered by TTSs indemnification obligations under
Section 10(a) above, then TTS shall, at its sole expense and option and in
addition to fulfilling its obligations under Section 10(a): (i) obtain for
Subscriber the right to use the infringing portion(s) of the System or affected
Services (as applicable), (ii) modify the infringing portion(s) of the System or
affected Services so as to render them non-infringing without substantially
diminishing or impairing their functionality, (iii) replace the infringing portion
of the System or affected Services with non-infringing items of substantially
similar functionality, or (d) promptly refund to Subscriber an equitable amount
paid by Subscriber for the System or affected Services.
(c)
Subscribers Indemnity Obligation. Subscriber shall defend TTS, its
Affiliates, and their respective directors, officers, employees, agents,
contractors, successors, and assigns (each, an Indemnified Party) from
and against any and all Claims to the extent such Claims are based on or arise
from (i) any allegations that any of any Subscriber tools or services provided by
Subscriber to TTS infringes upon or misappropriates the Intellectual Property
Rights of a third party, (ii) any bodily injury (including death) or damage to or
loss of any tangible personal or real property caused by the actions or omissions
of Subscriber, its Affiliates or any of their respective directors, officers,
employees, agents, contractors, successors, or assigns, (iii) any allegation that
any of Subscribers personnel is an employee of TTS by virtue of receiving any
Services under this Agreement or otherwise, or (iv) any expenses, including any
taxes, which were the responsibility of Subscriber hereunder. In
addition, Subscriber shall indemnify and hold each Indemnified Party harmless from
and against any and all damages, losses, fines, penalties, costs, and other
amounts (including reasonable attorneys fees and expenses) incurred or suffered
by any such Indemnified Party in connection with any such Claims. Notwithstanding
the foregoing, Subscriber shall not be liable nor have any obligation to indemnify
if such Claims were caused by TTS.
11. | Disclaimer of Warranties and Limitations of Liability. |
(a) Disclaimer of Warranty. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THERE
ARE NO, AND TTS SYSTEMS EXPRESSLY DENIES, REJECTS AND DISCLAIMS ANY, WARRANTIES,
EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR WARRANTIES OF THE
CORRECTNESS, ACCURACY, PRECISION, TIMELINESS OR COMPLETENESS OF ANY INFORMATION OR
SERVICES PROVIDED THROUGH THE TTS SYSTEM.
(b) Limitation of Liability. TTS SYSTEMS, ITS AFFILIATES,
EMPLOYEES, OFFICERS AND AGENTS SHALL NOT BE LIABLE TO SUBSCRIBER OR TO ANY THIRD
PARTY FOR ANY LOSS OR DAMAGE, WHETHER DIRECT OR INDIRECT, RESULTING FROM DELAYS OR
INTERRUPTIONS OF SERVICE DUE TO MECHANICAL, ELECTRICAL OR WIRE DEFECTS OR
DIFFICULTIES, STORMS, STRIKES, WALK-OUTS, EQUIPMENT OR SYSTEMS FAILURES, OR OTHER
[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission. |
CAUSES OVER WHICH TTS SYSTEMS, ITS AFFILIATES, EMPLOYEES, OFFICERS, OR AGENTS
AGAINST WHOM LIABILITY IS SOUGHT, HAVE NO REASONABLE CONTROL, OR FOR LOSS OR
DAMAGE, DIRECT OR INDIRECT, RESULTING FROM INACCURACIES, ERRONEOUS STATEMENTS,
ERRORS OF FACT, OMISSIONS, OR ERRORS IN THE TRANSMISSION OR DELIVERY OF THE TTS
SYSTEM, OR ANY DATA PROVIDED AS A PART OF THE TTS SYSTEM PURSUANT TO THIS
AGREEMENT. IN ALL OTHER CASES, THE LIABILITY OF TTS SYSTEMS SHALL BE LIMITED TO,
AND SUBSCRIBER AGREES NOT TO
MAKE ANY CLAIM EXCEEDING, TTS SYSTEMS ACTUAL CHARGE TO SUBSCRIBER FOR THE
PARTICULAR TRANSACTION OR TRANSACTIONS FOR WHICH ANY CLAIM OF DAMAGE IS BEING
MADE. IN NO EVENT, SHALL EITHER PARTY SHALL BE LIABLE TO THE OTHER
PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE
DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST SAVINGS, OR LOSS OF
GOOD WILL) ARISING UNDER OR IN CONNECTION WITH A BREACH OR ALLEGED BREACH OF THIS
AGREEMENT, EVEN IF SUCH OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
(c) Time for Making Claims. ANY SUIT OR ACTION BY SUBSCRIBER AGAINST TTS
SYSTEMS, IT AFFILIATES, OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, SUCCESSORS OR
ASSIGNS, BASED UPON ANY ACT OR OMISSION ARISING OUT OF OR RELATING TO THIS
AGREEMENT, OR SERVICES PERFORMED HEREUNDER, OR ANY ALLEGED BREACH THEREOF, SHALL
BE COMMENCED WITHIN ONE (1) YEAR OF THE FIRST OCCURRENCE GIVING RISE TO SUCH CLAIM
OR BE FOREVER BARRED. THIS PROVISION DOES NOT MODIFY OR OTHERWISE AFFECT THE
LIMITATION OF TTS SYSTEMS LIABILITY SET FORTH IN PARAGRAPH 11(b) OR ELSEWHERE IN
THIS AGREEMENT.
12. | Use of the TTS System. |
(a) Subscriber acknowledges that the software systems utilized by TTS hereunder,
including all enhancements thereto, and all screens and formats used in connection
therewith, are the exclusive proprietary property of TTS, and Subscriber shall not
publish, disclose, display, provide access to or otherwise make available any of
the TTS Systems software or products thereof, 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 employees or consultants or vendors of
Subscriber without the prior written consent of, and on terms acceptable to, TTS,
which consent shall not be unreasonably withheld; provided, however, that
Subscriber may disclose to a governmental or regulatory agency or to customers of
Subscriber any information expressly prepared and acknowledged in writing by TTS
as having been prepared for disclosure to such governmental or regulatory agency
or to such customers. Neither party shall disclose Subscribers use of the TTS
System in any advertising or promotional materials without the prior written
consent to such use, and approval of such materials, by the other. For so long as
TTS operates the TTS System for Subscriber, all methods of data access to, or
interactive or batch file transfer of, data on TTS Systems mainframe computer
must be authorized by TTS, and any unauthorized interactive or batch file transfer
of data on TTS Systems mainframe computer via a program automated workstation or
computer is explicitly prohibited.
(b) Subscriber agrees that it will use the services provided hereunder only in
connection with its own or its Affiliates brokerage business and it will not,
without the express written permission of TTS, sell, lease, or otherwise provide
or make available the TTS System to any third party. For purposes of the
foregoing, Subscribers own brokerage business shall include Subscribers bona
fide correspondents.
(c) The obligations of this Paragraph 12 shall survive termination of this
Agreement. Subscriber understands that the unauthorized publication or disclosure
of any of TTSs
[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission. |
software or copies thereof, or the unauthorized use of the TTS
System would cause irreparable harm to TTS for which there is no adequate remedy
at law. Subscriber therefore agrees that in the event of such unauthorized
disclosure or use, TTS may, at its discretion and at Subscribers expense,
terminate this Agreement, obtain immediate injunctive relief in a court of
competent jurisdiction, or take such other steps as it deems necessary to protect
its rights. If TTS, in its reasonable, good faith judgment, determines that there
is a material risk of such unauthorized disclosure or use, it may demand immediate
assurances, satisfactory to TTS, that there will be no such unauthorized
disclosure or use. In the absence of such assurance, TTS may
immediately terminate this Agreement and take such other steps as it deems
necessary. The rights of TTS hereunder are in addition to any other remedies
provided by law.
13. | Dispute Resolution. The parties shall initially attempt to resolve informally any dispute arising out of or relating to this Agreement, including with respect to the interpretation of any provision of this Agreement and with respect to the performance by TTS hereunder, in accordance with this Section. |
(a) Upon the written notice by a party to the other party of a dispute hereunder
(Dispute Date), each party shall appoint a designated representative
with authority to resolve the dispute (who, if the parties so mutually agree, does
not devote substantially all of his or her time to performance under this
Agreement), whose task it will be to meet for the purpose of endeavoring to
resolve such dispute.
(1) | The designated representatives shall meet as often as the parties reasonably deem necessary in order to gather and furnish to the other party all information with respect to the dispute which information the parties believe to be appropriate and germane in connection with its resolution. The representatives shall discuss the problem and attempt to resolve the dispute without the necessity of any formal proceeding. The specific format for the discussions shall be left to the discretion of the designated representatives. During the course of discussion, all reasonable requests made by a party to the other party for non-legally privileged information reasonably related to this Agreement shall be honored in order that a party may be fully advised of the other partys position. | ||
(2) | If the parties are unable to resolve a dispute informally within sixty (60) days of the applicable Dispute Date, either party may commence any litigation in accordance with the terms of paragraph 14(a). |
14. | Applicable Law, Venue and Severability. |
(a) This Agreement shall be construed and enforced in accordance with the law of
the State of New York without giving effect to any choice of law or conflict of
law provisions. Any disputes arising under this Agreement will be brought and
heard in the appropriate Federal or state court located in New York County in the
State of New York and each of the parties hereby irrevocably consents to the
jurisdiction of such courts.
15. | In the event that any court having competent jurisdiction over the interpretation of this Agreement shall determine that one or more of the provisions contained in this Agreement shall be unenforceable in any respect, then such provision shall be deemed limited and restricted to the extent that such court shall deem it to be enforceable, and, as so limited or restricted, shall remain in full force and effect. In the event that any |
[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission. |
such provision or provisions shall be deemed wholly unenforceable, such provision shall be deemed deleted from this Agreement, and the remaining provisions shall remain in full force and effect. Any such judicial interpretation requiring limitation or deletion of a provision shall be valid only in the jurisdiction in which such interpretation is made. |
16. | General. |
(a) Waiver of Breach. The fact that one (1) party excuses or overlooks a
breach of any provision of this Agreement by the other party does not mean that
that party
excuses any other breach or waives its right to remedy any other breach by the
other party.
(b) TTS shall not assign this Agreement (by operation of law or
otherwise), or any of its rights or obligations hereunder, without the prior
written consent of Subscriber, provided that, notwithstanding the foregoing, upon
prior written notice, TTS may assign this Agreement to an Affiliate. In addition,
TTS shall not delegate or subcontract any of its rights or obligations hereunder
to a third party without the prior written consent of Subscriber. In the event
such delegation or subcontracting is consented to by Subscriber, the third party
to which such rights or obligations are delegated or subcontracted shall be bound
by the terms and conditions of this Agreement applicable to TTS (including, but
not limited to, the terms of Section 9, Confidentiality, hereof), and any failure
by such third party to comply with the terms hereof shall constitute a breach of
this Agreement by TTS. TTS shall also be solely responsible for all payments due
to such third party. Any assignment, transfer, delegation or subcontracting of
rights or obligations hereunder in contravention of this Section 16(b) shall be
null and void. All terms and conditions of this Agreement shall be binding upon
and shall inure to the benefit of and be enforceable by the parties hereto and
their respective successors and permitted assigns.
(c) Any notice required to be given under this Agreement shall be in writing
and shall be deemed to have been given if served personally, or if sent by
certified mail, postage prepaid, to the parties at the address shown below, or
such other address as either party may hereafter designate by notice to the other.
To TTS, a division of Thomson Financial, LLC:
Thomson Transaction Services
350 North Sunny Slope Road
Brookfield, Wisconsin 53005
Attn: Mr. Jeffrey D. Vorpahl
350 North Sunny Slope Road
Brookfield, Wisconsin 53005
Attn: Mr. Jeffrey D. Vorpahl
To Subscriber:
LPL Financial Corporation
One Beacon Street, 22nd Floor
Boston, Massachusetts 02108
Attn: Stephanie L. Brown
Managing Director General Counsel
One Beacon Street, 22nd Floor
Boston, Massachusetts 02108
Attn: Stephanie L. Brown
Managing Director General Counsel
(d) Contact information for the Subscribers Chief Security Officer is set forth
below for the purposes of Section 9(e) of this Agreement:
Marc Loewenthal
SVP, Chief Security Officer
9785 Towne Centre Drive
San Diego, CA 92121
SVP, Chief Security Officer
9785 Towne Centre Drive
San Diego, CA 92121
[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission. |
marc.loewenthal@lpl.com
858-450-9606
858-450-9606
(e) The headings in this Agreement are for convenience only and shall not be used
to alter or limit the interpretation of any provision hereof.
(f) This Agreement, together with all Schedules, Exhibits and amendments hereto,
constitute the entire agreement of the parties and supersede all prior discussion
and correspondence between them with respect to the subject matter hereof. No
modification of this Agreement shall be effective unless the same is in writing
and signed by both parties.
(g) This Agreement, all schedules attached hereto, and all terms and conditions
herein, are confidential and shall not be disclosed by Subscriber except as
required by law.
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[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission. |
IN WITNESS WHEREOF, we have set our hand as of the date first noted above.
THOMSON TRANSACTION SERVICES, a division of Thomson Financial LLC, a Thomson Reuters company
By:
|
/s/ Gordon J. Fox | 1/5/09 | ||||
Signature | Date | |||||
Managing Director | ||||||
Title | ||||||
Gordon J. Fox | ||||||
/s/ Jeffrey Vorpahl | 1/5/09 | |||||
Signature | Date | |||||
CFO | ||||||
Title | ||||||
Jeffrey Vorpahl | ||||||
LPL FINANCIAL CORPORATION: | ||||||
By:
|
/s/ Stephanie L. Brown | 1/5/09 | ||||
Signature | Date | |||||
Managing Director, General Counsel | ||||||
Title | ||||||
Stephanie L. Brown | ||||||
[**] = | Portions of this exhibit have been omitted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission. |
Schedule A
[**]
[**] = | Portions of this exhibit have been omitted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission. |
Thomson Transaction Services
LPL Financial Services Schedule B
LPL Financial Services Schedule B
[**]
[**] = | Portions of this exhibit have been omitted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission. |