**Exhibit 10.1**

 

**CONFIDENTIAL**

 

**AGREEMENT**

 

THIS AGREEMENT (“Agreement”) is made as of this 30th day ofSeptember, 1993 and effective as of January 1, 1994 (the “Effective Date”),by and between Advent Software, Inc., with principal offices at 301Brannan Street, San Francisco, CA 94107 (“Advent”) and Interactive DataCorporation with principal offices at 95 Hayden Avenue, Lexington, MA 02173 (“Interactive”).

 

WITNESSETH THAT:

 

WHEREAS, Interactive is engaged in the development and marketing ofcomputer-based information services, one component of which is a communicationsenvironment know as (“Datafeed”);

 

WHEREAS, Advent has developed a group of computer software programsidentified on Exhibit A (collectively, the “Product”) that maintainrecords of investment portfolio transactions and prepare certain analyses andreports for investment instruments;

 

WHEREAS, Advent and Interactive market their separate services andproducts to others and wish to make this a non-exclusive agreement between thetwo parties;

 

WHEREAS, Advent and Interactive would like to continue making theProduct available in conjunction with Interactive’s information services bymeans of Interactive’s Datafeed product, all on the terms and conditions setforth below;

 

NOW THEREFORE, in consideration of the mutual promises hereinafter setforth, the parties agree as follows:

 

1.                                       **Development**. Interactive will continue to provide Adventwith those specifications of the Datafeed environment which are necessary forAdvent to develop routines in the Product that enable the Product to access andprocess the information contained in the various financial databases residingon Interactive’s computer system.

 

2.                                       **Offering of Services**. Interactive will allow the Product,modified to operate in the Datafeed communications environment, to enableAdvent’s clients using the Product to access, retrieve, and process financialinformation residing on Interactive’s computer system.  Sales of Interactive’s financial informationservices shall be made in accordance with the Price List in Exhibit B, asadjusted for periodic price changes. Interactive is authorized to use two copies of the Product provided byAdvent for training by Interactive of Interactive’s marketing and customersupport personnel, and other purely internal uses without being obligated topay Advent any compensation for such use. Interactive agrees to be bound by the terms of Advent’s standardsoftware license agreement.

 

3                                          **Commissions**. Interactive agrees to pay directly to Advent an amount equal to **[**]%** of all monthly revenue (as defined below), providedthat such revenue does not

 

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[**] Certain information on this page has been omitted and filedseparately with the commission. Confidential treatment has been requested withrespect to the omitted portions

 

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fall below $100,000.00 with respect to any month.  Should the monthly revenue fall below$100,000.00 for any month during the term of this Agreement or during thetwenty-four month period described in Section 13, then the commission paidfor that month only will be **[**]**%. Inaddition, during the twenty-four month period described in section 13, the **[**]**% rate referred to above shall be reduced to **[**]**% in the event that this Agreement has been terminatedby Advent.  Monthly revenue is defined asall amounts actually collected by Interactive with respect to any month fromAdvent’s clients whose use of the Product together with Datafeed enables themto access, retrieve, or process financial information residing on Interactive’scomputer system, which amounts may be reduced as set forth in the last sentenceof this Section.  Such revenue includes,without limitation, the collected amounts of initial sign-up fees, monthlyaccess charges, usage fees based on the types and quantities of informationretrieved from Interactive’s system by the client, monthly Local Area Networkfees, and any other current or future charges to Advent’s clients based uponthe establishment of their relationship with Interactive and their usage ofdata available via Interactive’s Datafeed product that is input into theProduct via the routines developed by Advent maintained in the Product.  Interactive will be able to offset themonthly revenue amount by the extraordinary costs of collection, anysubscription fees or other costs imposed by a third party supplier (includingany affiliate of Interactive) of data, and communication charges.

 

4.                                       **Monthly Reports; Collection of Fees**.  Within forty-five (45) days after the end ofeach month, Interactive will provide Advent with a report produced byInteractive’s standard billing procedures showing the names of Advent’s clientswhich had access via Datafeed to the financial databases residing onInteractive’s computers during such month, their level of usage during themonth, and how much the client paid to Interactive for that month.  Interactive agrees to pay Advent thecommission required under section 3 above within forty-five (45) days after theend of each month.

 

5.                                       **Advent Access to Interactive’s Computer System**.  Advent will be assigned a unique User ID andpassword for the purpose of testing the Product/Datafeed interface and forsupport of clients.  Access toInteractive’s computer system by means of such User ID and password will bemade available at no charge up to limits periodically specified byInteractive.  Such use will be providedon an internal priority basis, which is the same basis on which use of thecomputer system is provided to Interactive’s own programmers, but which mayentail slower response time than the basis on which use of the computer systemis provided to customers.  Such use will,however, be provided on a customary basis, if requested, for marketingdemonstrations.

 

Advent will use computer system resources provided by Interactivepursuant to the provisions of this section only for the purposes specified andfor no other purposes.  Computerresources used by Advent for all other purposes or in excess of the amountsspecified by Interactive will be provided by Interactive and paid for by Adventat Interactive’s standard commercial charges for usage on a customer prioritybasis in accordance with Interactive’s standard customer terms and conditionsthen in effect.

 

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[**] Certain information on this page has been omitted and filedseparately with the commission. Confidential treatment has been requested withrespect to the omitted portions

 

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6.                                       **Marketing of the Product**. Interactive and Advent, each at its own expense, will cooperate inmarketing the use of the Product in conjunction with Interactive’s informationservices.  However, neither party shallhave any obligation to the other to undertake marketing efforts.  Advent shall be responsible for supplyingdocumentation to clients describing the necessary procedures to access theDatafeed interface and Interactive’s financial databases.  Interactive will supply Advent’s clients witha description of the Datafeed product and an outline description of the financialinformation to which they may have access.

 

7.                                       **Technical Support**. Advent, at its expense, will be responsible for the technical support ofclients with respect to their use of the Product.  Interactive, at its expense, will provideassistance to clients in interpreting Interactive’s financial data which wasaccessed by means of the Datafeed product.

 

8.                                       **Maintenance and Updating**. Advent, at its expense, will maintain a version of the Product in anoperational status ready for use by clients in conjunction with the Datafeedcommunications interface to Interactive’s financial databases.

 

9.                                       **Ownership of Services**. Interactive agrees that the Product is and will remain the sole propertyof Advent and agrees not to sell, transfer, distribute, or otherwise make theProduct, or any part thereof, or the use of the Product, or any part thereof,available at any person or organization, except as provided in thisAgreement.  Advent agrees that Datafeedis and will remain the sole property of Interactive and agrees not to sell,transfer, distribute, or otherwise make Datafeed, or any part thereof, or theuse of Datafeed, or any part thereof, available at any person or organization,except as provided in this Agreement.

 

10.                                 **Limitation on Use of Parties’ Names**.  Neither party shall use the name of the otherparty or any other name or mark owned by the other party except as expresslyauthorized in advance in writing by said other party.  All trade names, trademarks and servicemarks, and attendant goodwill, now owned by each party shall remain its soleproperty and all rights accruing from their use shall inure to the benefit ofthe owner party.

 

11.                                 **Confidentiality**.  Eachparty will preserve the “Confidential Information” of or pertaining to theother party and will not, without first obtaining the other’s written consent,disclose to any person or organization, or use for its benefit, anyConfidential Information of or pertaining to the other party during the term ofthis Agreement and after termination.

 

“Confidential Information” means any proprietary information, technicaldata or know-how, including, but not limited to, that which relates toresearch, products, services, customer lists, markets, software, developments,inventions, processes, engineering, marketing or finances, which ConfidentialInformation is disclosed by either party directly or indirectly in writing,orally, or by inspection of software code, equipment, or 

 

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other materials.  ConfidentialInformation shall not include information that: (i) was generally knownand available in the public domain through no fault of the receiving party; (ii) wasknown to the receiving party at the time of the disclosure as shown by thefiles of the receiving party in existence immediately prior to the time ofdisclosure; (iii) is disclosed with the prior written approval of thedisclosing party; (iv) was independently developed by the receiving partywithout any use of the Confidential Information of the disclosing party, and byemployees or other agents of the receiving party who have not been exposed tothe Confidential Information of the disclosing party; (v)  becomes knownto the receiving party from a source other than the disclosing party withoutbreach of this Agreement by the receiving party and otherwise not in violationof the disclosing party’s rights; or (vi) is disclosed pursuant to theorder or requirement of a court, administrative agency, or other governmentbody; provided, that the receiving party shall provide prompt, advance noticethereof to enable the disclosing party to seek a protective order or otherwiseprevent such disclosure.

 

12.                                 **Term; Termination**. This Agreement shall become effective on the Effective Date and shallcontinue for an initial term of five (5) years.  Thereafter, it shall remain in effect forsuccessive twelve (12) month terms unless one party gives the other party noticethat it does not wish to renew the Agreement. In order to effectuate termination at the end of the initial term, aparty must give notice twenty-four (24) months prior to the last day of theinitial term.  After that a party mustgive notice twenty-four (24) months prior to the end of the implied extensionof the term as set forth above. For example, if one party gives notice twelvemonths prior to the end of the initial term, the term is implied to extend foran additional year after the initial term.

 

Notwithstanding the foregoing, either party may terminate thisAgreement at any time based upon material breach by the other party by givingthe other party at least ninety (90) days’ prior written notice.  “Material breach” shall include, withoutlimitation, a party’s admission in writing of its inability to pay its debts asthey become due, filing a petition in bankruptcy, taking advantage of any actfor the protection of debtor’s estates, or becoming the subject of a petitionunder the federal bankruptcy laws, unless such petition has been dismissed ordischarged within ninety days after filing. Termination for a material breach of this Agreement shall becomeeffective at the end of such 90-day period unless the breach shall have by thenbeen corrected.  The party in breachshall have 90 days to cure any condition that led to the material breach.

 

13.                                 **Rights and Obligations upon Termination**.  Upon termination of this Agreement for anyreason, Interactive and Advent shall discontinue all efforts to cause new clientsto subscribe to use of the Product in conjunction with Datafeed and Interactive’sfinancial databases.  Should existingclients who use the Product wish to continue use of the Product in conjunctionwith Datafeed and Interactive’s financial databases after termination of thisAgreement, they shall be permitted to do so for a period of twenty-four (24)months, and all the provisions of this Agreement shall remain in effect to theextent reasonably required or desirable to specify the duties and obligationsof the parties during the period of such continued use by clients, with theexception of section 8.

 

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After such twenty-four month period or upon termination if there are nosuch clients, each party shall destroy or return to the other party all copiesof documents, software, or other material containing Confidential Informationof or pertaining to the other party in its possession, custody or control, andneither party shall thereafter offer the use of the Product in conjunction withDatafeed or Interactive’s financial databases, or any part thereof, to anyperson or organization without the express, written consent of the other party.

 

14.                                 **No Infringement of Rights of Others**.  Advent represents and warrants to Interactivethat the Product, used as contemplated in this Agreement, does not infringe anycopyrights, trademarks, or other proprietary rights of any person onorganization; provided that Advent does not make any representationsherein with respect tothe infringement of patents.  Advent will defend at its expense any actionbrought against Interactive based on any claim of patent, copyright, trademark,or other proprietary right infringement and will pay any costs and damagesfinally awarded against Interactive in such action or constituting a settlementof such claim; provided, however, that Interactive notifies Advent promptly inwriting of such claim and permits Advent to have sole control of the defenseand/or settlement of such claim.  Shouldthe Product become, or in the opinion of Advent be likely to become, thesubject of a claim of infringement of any patent, copyright, trademark, orother proprietary right, then Advent may procure for Interactive the right tocontinue to use the Product, as contemplated in this Agreement, or to replaceor modify the Product to make it non-infringing.

 

**15.**                               **WARRANTY DISCLAIMER. EXCEPT ASEXPRESSLY PROVIDED IN THIS AGREEMENT, INTERACTIVE AND ADVENT MAKE NOREPRESENTATIONS OF WARRANTIES, EXPRESS OR IMPLIED, AND EACH PARTY SPECIFICALLYDISCLAIMS ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSEWITH RESPECT TO THE PERFORMANCE OF THE PRODUCT, OF DATAFEED OR OF INTERACTIVE’SCOMPUTER SYSTEM.**

 

**16.****                               LIMITATIONOF LIABILITY.  NEITHER PARTY SHALLHAVE ANY LIABILITY RESULTING FROM PERFORMANCE OF ANY FAILURE TO PERFORM OFTHE PRODUCT, DATAFEED, OR INTERACTIVE’S COMPUTER SYSTEM.  IN NO EVENT SHALL EITHER PARTY BE LIABLE FORANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF IT HAS BEENADVISED OF THE POSSIBILITY OF SUCH DAMAGES.**

 

17.                                 **Independent Contractors**. Nothing in this Agreement shall be deemed to create an agency, jointventure or partnership relationship between Advent and Interactive.  Except as expressly set forth in thisAgreement, neither party shall have authority to act on behalf of or bind theother party in any way.

 

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18.                                 **Non-exclusivity**.  Bothparties agree that the relationship set forth in this Agreement innon-exclusive.  Nothing contained hereinshall preclude either party from entering into arrangements or agreements withthird parties including such arrangements or agreements similar to thisAgreement.

 

19.                                 **Notices**.   All noticesand other communications hereunder shall be in writing and shall be delivered, inperson, by overnight courier, or mailed first-class mail, registered orcertified, postage prepaid, (a) if to Interactive, to the attention ofLegal Department, Interactive Data Corporation, 95 Hayden Avenue, Lexington, MA02173 and (b) if to Advent, to the attention of President and CEO, AdventSoftware, Inc., 301 Brannan Street, San Francisco, California 94107.  All notices shall be effective upon receipt.

 

20.                                 **Severability**.  Theterms and conditions of this Agreement are severable.  If any term or condition of this Agreementother than a provision relating to warranty, disclaimer or warranty orlimitation of liability is deemed by a court of competent jurisdiction to beillegal or unenforceable under any rule of law, then this Agreement andall other terms and conditions shall remain in force, unless continuation woulddeprive a party of its economic benefit under this Agreement.

 

21.                                 **Entire Agreement**.  Theparties hereto agree that this Agreement represents the complete and exclusivestatement of the agreement between the parties, and supersedes all prior proposals,agreements, communications and understandings, oral or written, relating to thesubject matter of this Agreement.

 

22.                                 **Modification of the Agreement**.  This Agreement may be amended only by awriting executed by the authorized representatives of both of the partieshereto.

 

23.                                 **Effectiveness of Waiver**. Failure or delay by either party in enforcing any provision of thisAgreement shall not be deemed to be a waiver of that provision or of any otherprovision of this Agreement.  No waivershall be effective unless in writing and executed by an authorizedrepresentative of the party to be bound thereby and no waiver shall beeffective with respect to any occurrence, circumstance or matter other than asexpressly set forth therein.

 

24.                                 **Force Majeure**.  Neither party shall be responsible for anydelay or failure in performance resulting from events beyond the control ofsuch party.  Such events shall include,but not be limited to, an act of God, war, riot, epidemic, fire, flood, naturaldisaster, act of government or strike.

 

25.                                 **Binding Effect; Assignment**. This Agreement shall be binding on the parties and their successors,permitted assignees and legal representatives. Neither party may assign this Agreement in whole or in part without theprior written consent of the other party whose consent may not be unreasonablywithheld.  Notwithstanding the foregoing,Interactive may assign this Agreement to an affiliate of Interactive withoutthe consent of Advent; provided that Interactive shall have given Adventnot less that 30 days’ prior written notice of an assignment of this Agreementto an affiliate and Advent shall not 

 

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have informed Interactive in good faith within 20 days after receipt ofsuch notice that such affiliate is a competitor of Advent.

 

26.                                 **Governing Law**.  ThisAgreement shall be governed by, and construed in accordance with the laws ofthe United States and the State of New York, without reference to its conflictof law principles.  In the event a partyhereto brings suit to enforce any provision of this Agreement, such suit shallbe brought in the federal court for the district in which the other party’sprincipal place of business is located. Advent and Interactive hereby consent to be a subject to the personaljurisdiction of the aforesaid federal court.

 

27.                                 **No Third Party Beneficiaries**.  Except as expressly provided herein, no otherperson or entity is intended, or shall be deemed to be beneficiary of anyprovision of this Agreement.

 

28.                                 **Audit Rights**.  Adventshall have the right, but not the obligation, to direct a recognizedindependent accounting firm to conduct, during normal business hours, once inany calendar year, an audit of (and to copy) the appropriate records ofInteractive to verify (a) the accuracy if Interactive’s reports to Adventdetailing the usage and associated charges to Advent’s clients and the amountscollected from Advent’s clients, (b) Interactive’s compliance with theterms of this Agreement, and (c) any other such routines, reports, orprocedural matters directly relating to the fees due to Advent from Interactiveor the amounts collected by Interactive from Advent’s clients.  Representatives of the accounting firm shallprotect the confidentiality of Interactive’s Confidential Information and abideby Interactive’s reasonable security regulations while on Interactive’spremises. If the audit determines that the amount due to Advent is misstated bymore than 5% then Interactive will pay the reasonable expenses associated withthe audit, in addition to the fee adjustment.

 

29.                                 **Termination of Clients upon Request of Advent**.  In the event that Advent informs Interactivein writing that a client has an unauthorized version of the Product andinstructs Interactive promptly to terminate delivery to such client of any datacontained on Interactive’s database accessed in conjunction with the Product,Interactive shall terminate delivery of such data to such client afterInteractive has provided such client thirty (30) days’ prior written notice oftermination.  Advent agrees to indemnifyand hold Interactive harmless from any claims, demands, liabilities, actions,suits or proceedings asserted or claimed by any party as a result ofInteractive’s following Advent’s written instructions set forth above, and Adventagrees to undertake the cost of defending same, including reasonable attorneys’fees.  Interactive agrees to give Adventtimely notice of, and shall have the option to undertake and conduct thedefense of, any such claim, demand, liability, action, suit or proceeding.

 

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IN WITNESS WHEREOF, the parties have caused this Agreement to beexecuted, all as of the day and year first above written.

 
| ADVENT SOFTWARE, INC. |                     | INTERACTIVE DATA CORPORATION |
|-----------------------|--------------------------|------------------------------|
|                  |                     |                         |
|                  |                     |                         |
| By:              | /s/ Stephanie DiMarco    |                         | By:  | /s/ Judith Y. Hogan |
|                  |                     |                         |
| Name:            | Stephanie DiMarco        | ** **                   | Name:  | Judith Y. Hogan |
|                  |                     |                         |
| Title:           | President & CEO |                         | Title:  | Director-Third Party Mktg |
|                  |                     |                         |
| Date:            | 10/6/93                  |                         | Date:  | 9/30/93 |
|                       |                          |                              |  |  |  |  |  |  |

 

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**Exhibit A**

 

**Known product names as of September 30, 1993**

 

**The Professional Portfolio, Level I**

**The Professional Portfolio, Level II**

**AXYS**

**OMS**

**Geneva**

 

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