Exhibit 10.1


 


CONFIDENTIAL


 


AGREEMENT


 


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


 


WITNESSETH THAT:


 


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


 


WHEREAS, Advent has developed a group of computer software programs
identified on Exhibit A (collectively, the “Product”) that maintain
records of investment portfolio transactions and prepare certain analyses and
reports for investment instruments;


 


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


 


WHEREAS, Advent and Interactive would like to continue making the
Product available in conjunction with Interactive’s information services by
means of Interactive’s Datafeed product, all on the terms and conditions set
forth below;


 


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


 


1.                                       Development. Interactive will continue to provide Advent
with those specifications of the Datafeed environment which are necessary for
Advent to develop routines in the Product that enable the Product to access and
process the information contained in the various financial databases residing
on Interactive’s computer system.


 


2.                                       Offering of Services. Interactive will allow the Product,
modified to operate in the Datafeed communications environment, to enable
Advent’s clients using the Product to access, retrieve, and process financial
information residing on Interactive’s computer system.  Sales of Interactive’s financial information
services shall be made in accordance with the Price List in Exhibit B, as
adjusted for periodic price changes. 
Interactive is authorized to use two copies of the Product provided by
Advent for training by Interactive of Interactive’s marketing and customer
support personnel, and other purely internal uses without being obligated to
pay Advent any compensation for such use. 
Interactive agrees to be bound by the terms of Advent’s standard
software license agreement.


 


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


 






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


 

















 


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 the
twenty-four month period described in Section 13, then the commission paid
for that month only will be [**]%. In
addition, 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 terminated
by Advent.  Monthly revenue is defined as
all amounts actually collected by Interactive with respect to any month from
Advent’s clients whose use of the Product together with Datafeed enables them
to access, retrieve, or process financial information residing on Interactive’s
computer system, which amounts may be reduced as set forth in the last sentence
of this Section.  Such revenue includes,
without limitation, the collected amounts of initial sign-up fees, monthly
access charges, usage fees based on the types and quantities of information
retrieved from Interactive’s system by the client, monthly Local Area Network
fees, and any other current or future charges to Advent’s clients based upon
the establishment of their relationship with Interactive and their usage of
data available via Interactive’s Datafeed product that is input into the
Product via the routines developed by Advent maintained in the Product.  Interactive will be able to offset the
monthly revenue amount by the extraordinary costs of collection, any
subscription fees or other costs imposed by a third party supplier (including
any affiliate of Interactive) of data, and communication charges.


 


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


 


5.                                       Advent Access to Interactive’s Computer System.  Advent will be assigned a unique User ID and
password for the purpose of testing the Product/Datafeed interface and for
support of clients.  Access to
Interactive’s computer system by means of such User ID and password will be
made available at no charge up to limits periodically specified by
Interactive.  Such use will be provided
on an internal priority basis, which is the same basis on which use of the
computer system is provided to Interactive’s own programmers, but which may
entail slower response time than the basis on which use of the computer system
is provided to customers.  Such use will,
however, be provided on a customary basis, if requested, for marketing
demonstrations.


 


Advent will use computer system resources provided by Interactive
pursuant to the provisions of this section only for the purposes specified and
for no other purposes.  Computer
resources used by Advent for all other purposes or in excess of the amounts
specified by Interactive will be provided by Interactive and paid for by Advent
at Interactive’s standard commercial charges for usage on a customer priority
basis in accordance with Interactive’s standard customer terms and conditions
then in effect.


 






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


 

















 


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


 


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


 


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


 


9.                                       Ownership of Services. 
Interactive agrees that the Product is and will remain the sole property
of Advent and agrees not to sell, transfer, distribute, or otherwise make the
Product, or any part thereof, or the use of the Product, or any part thereof,
available at any person or organization, except as provided in this
Agreement.  Advent agrees that Datafeed
is and will remain the sole property of Interactive and agrees not to sell,
transfer, distribute, or otherwise make Datafeed, or any part thereof, or the
use 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 other
party or any other name or mark owned by the other party except as expressly
authorized in advance in writing by said other party.  All trade names, trademarks and service
marks, and attendant goodwill, now owned by each party shall remain its sole
property and all rights accruing from their use shall inure to the benefit of
the owner party.


 


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


 


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


 

















 


other materials.  Confidential
Information shall not include information that: (i) was generally known
and available in the public domain through no fault of the receiving party; (ii) was
known to the receiving party at the time of the disclosure as shown by the
files of the receiving party in existence immediately prior to the time of
disclosure; (iii) is disclosed with the prior written approval of the
disclosing party; (iv) was independently developed by the receiving party
without any use of the Confidential Information of the disclosing party, and by
employees or other agents of the receiving party who have not been exposed to
the Confidential Information of the disclosing party; (v)  becomes known
to the receiving party from a source other than the disclosing party without
breach of this Agreement by the receiving party and otherwise not in violation
of the disclosing party’s rights; or (vi) is disclosed pursuant to the
order or requirement of a court, administrative agency, or other government
body; provided, that the receiving party shall provide prompt, advance notice
thereof to enable the disclosing party to seek a protective order or otherwise
prevent such disclosure.


 


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


 


Notwithstanding the foregoing, either party may terminate this
Agreement at any time based upon material breach by the other party by giving
the other party at least ninety (90) days’ prior written notice.  “Material breach” shall include, without
limitation, a party’s admission in writing of its inability to pay its debts as
they become due, filing a petition in bankruptcy, taking advantage of any act
for the protection of debtor’s estates, or becoming the subject of a petition
under the federal bankruptcy laws, unless such petition has been dismissed or
discharged within ninety days after filing. 
Termination for a material breach of this Agreement shall become
effective at the end of such 90-day period unless the breach shall have by then
been corrected.  The party in breach
shall 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 any
reason, Interactive and Advent shall discontinue all efforts to cause new clients
to subscribe to use of the Product in conjunction with Datafeed and Interactive’s
financial databases.  Should existing
clients who use the Product wish to continue use of the Product in conjunction
with Datafeed and Interactive’s financial databases after termination of this
Agreement, 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 the
extent reasonably required or desirable to specify the duties and obligations
of the parties during the period of such continued use by clients, with the
exception of section 8.


 

















 


After such twenty-four month period or upon termination if there are no
such clients, each party shall destroy or return to the other party all copies
of documents, software, or other material containing Confidential Information
of or pertaining to the other party in its possession, custody or control, and
neither party shall thereafter offer the use of the Product in conjunction with
Datafeed or Interactive’s financial databases, or any part thereof, to any
person or organization without the express, written consent of the other party.


 


14.                                 No Infringement of Rights of Others.  Advent represents and warrants to Interactive
that the Product, used as contemplated in this Agreement, does not infringe any
copyrights, trademarks, or other proprietary rights of any person on
organization; provided that Advent does not make any representations
herein with respect tothe infringement of patents.  Advent will defend at its expense any action
brought against Interactive based on any claim of patent, copyright, trademark,
or other proprietary right infringement and will pay any costs and damages
finally awarded against Interactive in such action or constituting a settlement
of such claim; provided, however, that Interactive notifies Advent promptly in
writing of such claim and permits Advent to have sole control of the defense
and/or settlement of such claim.  Should
the Product become, or in the opinion of Advent be likely to become, the
subject of a claim of infringement of any patent, copyright, trademark, or
other proprietary right, then Advent may procure for Interactive the right to
continue to use the Product, as contemplated in this Agreement, or to replace
or modify the Product to make it non-infringing.


 


15.                               WARRANTY DISCLAIMER. EXCEPT AS
EXPRESSLY PROVIDED IN THIS AGREEMENT, INTERACTIVE AND ADVENT MAKE NO
REPRESENTATIONS OF WARRANTIES, EXPRESS OR IMPLIED, AND EACH PARTY SPECIFICALLY
DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE
WITH RESPECT TO THE PERFORMANCE OF THE PRODUCT, OF DATAFEED OR OF INTERACTIVE’S
COMPUTER SYSTEM.


 


16.                               LIMITATION
OF LIABILITY.  NEITHER PARTY SHALL
HAVE ANY LIABILITY RESULTING FROM PERFORMANCE OF ANY FAILURE TO PERFORM OF
THE PRODUCT, DATAFEED, OR INTERACTIVE’S COMPUTER SYSTEM.  IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR
ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF IT HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.


 


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


 

















 


18.                                 Non-exclusivity.  Both
parties agree that the relationship set forth in this Agreement in
non-exclusive.  Nothing contained herein
shall preclude either party from entering into arrangements or agreements with
third parties including such arrangements or agreements similar to this
Agreement.


 


19.                                 Notices.   All notices
and other communications hereunder shall be in writing and shall be delivered, in
person, by overnight courier, or mailed first-class mail, registered or
certified, postage prepaid, (a) if to Interactive, to the attention of
Legal Department, Interactive Data Corporation, 95 Hayden Avenue, Lexington, MA
02173 and (b) if to Advent, to the attention of President and CEO, Advent
Software, Inc., 301 Brannan Street, San Francisco, California 94107.  All notices shall be effective upon receipt.


 


20.                                 Severability.  The
terms and conditions of this Agreement are severable.  If any term or condition of this Agreement
other than a provision relating to warranty, disclaimer or warranty or
limitation of liability is deemed by a court of competent jurisdiction to be
illegal or unenforceable under any rule of law, then this Agreement and
all other terms and conditions shall remain in force, unless continuation would
deprive a party of its economic benefit under this Agreement.


 


21.                                 Entire Agreement.  The
parties hereto agree that this Agreement represents the complete and exclusive
statement of the agreement between the parties, and supersedes all prior proposals,
agreements, communications and understandings, oral or written, relating to the
subject matter of this Agreement.


 


22.                                 Modification of the Agreement.  This Agreement may be amended only by a
writing executed by the authorized representatives of both of the parties
hereto.


 


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


 


24.                                 Force Majeure.  Neither party shall be responsible for any
delay or failure in performance resulting from events beyond the control of
such party.  Such events shall include,
but not be limited to, an act of God, war, riot, epidemic, fire, flood, natural
disaster, 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 the
prior written consent of the other party whose consent may not be unreasonably
withheld.  Notwithstanding the foregoing,
Interactive may assign this Agreement to an affiliate of Interactive without
the consent of Advent; provided that Interactive shall have given Advent
not less that 30 days’ prior written notice of an assignment of this Agreement
to an affiliate and Advent shall not 


 

















 


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


 


26.                                 Governing Law.  This
Agreement shall be governed by, and construed in accordance with the laws of
the United States and the State of New York, without reference to its conflict
of law principles.  In the event a party
hereto brings suit to enforce any provision of this Agreement, such suit shall
be brought in the federal court for the district in which the other party’s
principal place of business is located. 
Advent and Interactive hereby consent to be a subject to the personal
jurisdiction of the aforesaid federal court.


 


27.                                 No Third Party Beneficiaries.  Except as expressly provided herein, no other
person or entity is intended, or shall be deemed to be beneficiary of any
provision of this Agreement.


 


28.                                 Audit Rights.  Advent
shall have the right, but not the obligation, to direct a recognized
independent accounting firm to conduct, during normal business hours, once in
any calendar year, an audit of (and to copy) the appropriate records of
Interactive to verify (a) the accuracy if Interactive’s reports to Advent
detailing the usage and associated charges to Advent’s clients and the amounts
collected from Advent’s clients, (b) Interactive’s compliance with the
terms of this Agreement, and (c) any other such routines, reports, or
procedural matters directly relating to the fees due to Advent from Interactive
or the amounts collected by Interactive from Advent’s clients.  Representatives of the accounting firm shall
protect the confidentiality of Interactive’s Confidential Information and abide
by Interactive’s reasonable security regulations while on Interactive’s
premises. If the audit determines that the amount due to Advent is misstated by
more than 5% then Interactive will pay the reasonable expenses associated with
the audit, in addition to the fee adjustment.


 


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


 

















 


IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed, 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

  
									



 

















 


Exhibit A


 


Known product names as of September 30, 1993


 


The Professional Portfolio, Level I


The Professional Portfolio, Level II


AXYS


OMS


Geneva