Preview
FILED: ROCKLAND COUNTY CLERK 05/27/2020 08:57 AM INDEX NO. 033739/2019
NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 05/27/2020
SUPREME COURT OF THE STATE OF NEW YORK
ROCKLAND COUNTY
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F&R INDIA PRODUCTS AND SERVICES PRIVATE : Index No. 033739/2019
LIMITED, : (Berliner, J.)
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Plaintiff-Counterclaim Defendant, :
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v. :
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OMNESYS TECHNOLOGIES, INC., :
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Defendant-Counterclaim Plaintiff. :
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VERIFIED REPLY OF PLAINTIFF-COUNTERCLAIM DEFENDANT TO
DEFENDANT-COUNTERCLAIM PLAINTIFF’S COUNTERCLAIMS
Pursuant to CPLR § 3011 and the Court’s Order dated May 4, 2020 and filed May 5, 2020,
Plaintiff-Counterclaim Defendant Refinitiv India Private Limited (“Refinitiv”)1 hereby replies to
the Counterclaims (“Counterclaims”) asserted in the Verified Second Amended Answer with
Counterclaims filed by Defendant-Counterclaim Plaintiff Omneys Technologies, Inc. (“OTI”) on
May 8, 2020 (NYSCEF No. 107).
To the extent Refinitiv does not specifically reply below to any allegation made in support
of OTI’s Counterclaims, including any allegation set forth in Paragraphs 1-98 of OTI’s Verified
Second Amended Answer with Counterclaims, such allegation is denied.
1
On August 13, 2019, pursuant to an approval from the Government of India, Ministry of
Corporate Affairs, Registrar of Companies in Mumbai, India, NYSCEF No. 91, Plaintiff-
Counterclaim Defendant changed its name from F&R India Products and Services Private Limited
to Refinitiv India Private Limited. This name change does not result in any change to the legal
entity.
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Refinitiv reserves the right to amend, supplement, and/or correct its reply, and to interpose
additional affirmative defenses, in the event that new or additional facts come to light as the
litigation progresses.
The language of OTI’s counterclaims is reproduced below in brackets, purely for ease of
reference.
AS AND FOR A FIRST COUNTERCLAIM
(Breach of Contract - Declaratory Judgment)
[Paragraph No. 99: Upon information and belief, the defendant repeats, reiterates and
realleges each and every admission, denial and other allegation set forth in Paragraphs “1” through
“4”, “8”, “10” through “11”, “92” and “95” of this verified second amended answer with the same
force and effect as though fully set forth herein at length.]
99. Paragraph 99 contains no allegation requiring a response from Refinitiv. To the
extent a response is required, admits that Refinitiv and OTI are parties to a New York law-
governed software license agreement entered into as of April 1, 2004 and amended as of August
13, 2013 (the “SLA”) pursuant to which Refinitiv licenses middleware software from OTI in
exchange for license fee payments, denies that Refinitiv has materially breached the SLA, denies
that every violation of § 2 of the SLA constitutes a material default that permits OTI to terminate
the SLA, and otherwise denies the allegations in Paragraph 99.
[Paragraph No. 100: Upon information and belief, the defendant entered into a written
License Agreement dated 01 April 2004, as amended as of 13 August 2013, by and between
defendant Omnesys Technologies, Inc. and Omnesys Technologies Pvt., Ltd., plaintiff’s assignor
and predecessor in interest (the “License Agreement”), and the defendant respectfully begs leave
of the Court to refer to the original legal document and writing at the trial of this action for its full
text and import. A complete copy of the License Agreement is annexed hereto as Exhibit “A”.]
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100. Admits the allegations in Paragraph 100.
[Paragraph No. 101: Upon information and belief, since August 13, 2013 and continuing
uninterrupted to the present time, plaintiff, by itself and/or as assignee of all predecessor rights,
obligations and liabilities under the License Agreement, has been, and continues to be, in material
breach of the provisions of License Agreement, including, but not limited to, License Agreement
Sections 2.b., 2.c., 5.a.i., 5.a.ii., 5.b., 5.f., 6.b.i., 6.b.ii., 6.b.iv., 8.c. and 8.d.ii.]
101. Denies the allegations in Paragraph 101.
[Paragraph No. 102: Upon information and belief, License Agreement Section 2.b.
provides in substance, that any re-license or redistribution of the Software or its Documentation
must be as an integral part of, and used only in conjunction with, the Composite Software and that
before plaintiff may re-license or redistribute the Software or its Documentation to any third-party
person or entity, plaintiff must deliver to the defendant a certified statement regarding each
agreement between plaintiff and such third-party, including the name of each customer, the
indicative pricing terms and the proposed duration of the re-licensing, re-distribution or use.
License Agreement Section 2.b. also requires that plaintiff deliver to OTI, within 30 days after the
end of each calendar quarter, a statement certified by plaintiff’s Signatory (as defined by License
Agreement Section 1.h.ii), identifying all plaintiff’s customers, their respective pricing terms and
the duration of plaintiff’s re-license or re-distribution to, or use of the Software by, each of
plaintiff’s customers during the calendar quarter just ended.]
102. Denies that Paragraph 102 sets forth a complete and accurate summary of the terms
of the SLA, respectfully refers to the SLA for a complete and accurate statement of its terms, and
otherwise denies the allegations in Paragraph 102.
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[Paragraph No. 103: Upon information and belief, that pursuant to License Agreement
Section 2.c., a breach of any of the provisions of License Agreement Section 2, including but not
limited to License Agreement Section 2.b. by plaintiff shall constitute a material breach of the
License Agreement and the defendant, at defendant’s sole discretion, may immediately terminate
the License Agreement and the use of the Software thereunder by the plaintiff.]
103. Denies that Paragraph 103 sets forth a complete and accurate statement of the terms
of the SLA, denies that every violation of § 2 of the SLA constitutes a material default that permits
OTI to terminate the SLA, respectfully refers to the SLA for a complete and accurate statement of
its terms, and otherwise denies the allegations in Paragraph 103.
[Paragraph No. 104: Upon information and belief, on June 24, 2018, plaintiff was in
material breach of the License Agreement due to plaintiff’s failure to comply with the provisions
of License Agreement 2.b.]
104. Denies the allegations in Paragraph 104.
[Paragraph No. 105: Upon information and belief, by Default Notice dated June 24, 2018,
the defendant advised Omnesys Technologies Pvt., Ltd. and plaintiff, as its successor in interest,
of its material default under the License Agreement due to its failure to deliver to the defendant no
later than thirty (30) days after the end of each calendar quarter, a statement pursuant to License
Agreement Section 2.b. certified on behalf of Omnesys Technologies Pvt., Ltd. and its successor
in interest by its Signatory (as defined by License Agreement Section 1.h.ii) regarding (a) each
agreement between Omnesys Technologies Pvt., Ltd. or its successor and all third-parties,
including certain specified details of each agreement and (b) identifying all customers of Omnesys
Technologies Pvt., Ltd. and its successor, the pricing terms and the duration of each re-license or
re-distribution by Omnesys Technologies Pvt., Ltd. and its successor to, or use of the Software by,
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each customer of Omnesys Technologies Pvt., Ltd. and its successor during the calendar quarter
just ended, and the defendant respectfully begs leave of the Court to refer to the original legal
document and writing at the trial of this action for its full text and import.]
105. Admits that OTI purported in the referenced document to notify Refinitiv of a
material default under the SLA, refers to the document for a complete and accurate statement of
its contents, denies that Refinitiv has materially breached the SLA, and otherwise denies the
allegations in Paragraph 105.
[Paragraph No. 106: Upon information and belief, that pursuant to License Agreement
Section 6.b.ii., the defendant may immediately terminate the License Agreement and the use of
the Software thereunder by the plaintiff in the event that plaintiff is in material default of License
Agreement Section 2.c. and such material default is not cured within 60 days after the defendant
gives plaintiff notice thereof.]
106. Denies that Paragraph 106 sets forth a complete and accurate statement of the terms
of the SLA, denies that every violation of § 2 of the SLA constitutes a material default that permits
OTI to terminate the SLA, respectfully refers to the SLA for a complete and accurate statement of
its terms, and otherwise denies the allegations in Paragraph 106.
[Paragraph No. 107: Upon information and belief, by Default Notice dated June 24, 2018,
the defendant advised Omnesys Technologies Pvt., Ltd. and plaintiff, as its successor in interest,
of its material default under License Agreement Section 2.c. and further gave the plaintiff notice
of plaintiff’s right to cure such material default within 60 days.]
107. Admits that OTI purported in the referenced document to notify Refinitiv of a
material default under the SLA, refers to the document for a complete and accurate statement of
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its contents, denies that Refinitiv has materially breached the SLA, and otherwise denies the
allegations in Paragraph 107.
[Paragraph No. 108: Upon information and belief, plaintiff has failed and refused to cure
its material default under the License Agreement within 60 days of the Default Notice dated June
24, 2018 and to the present time.]
108. Denies the allegations in Paragraph 108.
[Paragraph No. 109: Upon information and belief, on August 27, 2018, plaintiff was in
material breach of the License Agreement due to plaintiff’s failure to comply with the provisions
of License Agreement 2.b.]
109. Denies the allegations in Paragraph 109.
[Paragraph No. 110: Upon information and belief, by Default Notice dated August 27,
2018, the defendant advised Omnesys Technologies Pvt., Ltd. and plaintiff, as its successor in
interest, of its material default under the License Agreement due to its failure to deliver to the
defendant no later than thirty (30) days after the end of each calendar quarter, a statement pursuant
to License Agreement Section 2.b. certified on behalf of Omnesys Technologies Pvt., Ltd. and its
successor in interest by its Signatory (as defined by License Agreement Section 1.h.ii) regarding
(a) each agreement between Omnesys Technologies Pvt., Ltd. or its successor and all third-parties,
including certain specified details of each agreement and (b) identifying all customers of Omnesys
Technologies Pvt., Ltd. and its successor, the pricing terms and the duration of each re-license or
re-distribution by Omnesys Technologies Pvt., Ltd. and its successor to, or use of the Software by,
each customer of Omnesys Technologies Pvt., Ltd. and its successor during the calendar quarter
just ended, and the defendant respectfully begs leave of the Court to refer to the original legal
document and writing at the trial of this action for its full text and import.]
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110. Admits that OTI purported in the referenced document to notify Refinitiv of a
material default under the SLA, refers to the document for a complete and accurate statement of
its contents, denies that Refinitiv has materially breached the SLA, and otherwise denies the
allegations in Paragraph 110.
[Paragraph No. 111: Upon information and belief, that pursuant to License Agreement
Section 6.b.ii., the defendant may immediately terminate the License Agreement and the use of
the Software thereunder by the plaintiff in the event that plaintiff is in material default of License
Agreement Section 2.c. and such material default is not cured within 60 days after the defendant
gives plaintiff notice thereof.]
111. Denies that Paragraph 111 sets forth a complete and accurate statement of the terms
of the SLA, denies that every violation of § 2 of the SLA constitutes a material default that permits
OTI to terminate the SLA, respectfully refers to the SLA for a complete and accurate statement of
its terms, and otherwise denies the allegations in Paragraph 111.
[Paragraph No. 112: Upon information and belief, by Default Notice dated August 27,
2018, the defendant advised Omnesys Technologies Pvt., Ltd. and plaintiff, as its successor in
interest, of its material default under License Agreement Section 2.c. and further gave the plaintiff
notice of plaintiff’s right to cure such material default within 60 days.]
112. Admits that OTI purported in the referenced document to notify Refinitiv of a
material default under the SLA, refers to the document for a complete and accurate statement of
its contents, denies that Refinitiv has materially breached the SLA, and otherwise denies the
allegations in Paragraph 112.
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[Paragraph No. 113: Upon information and belief, plaintiff has failed and refused to cure
its material default under the License Agreement within 60 days of the Default Notice dated
August 27, 2018 and to the present time.]
113. Denies the allegations in Paragraph 113.
[Paragraph No. 114: Upon information and belief, on October 18, 2018, plaintiff was in
material breach of the License Agreement due to plaintiff’s failure to comply with the provisions
of License Agreement 2.b.]
114. Denies the allegations in Paragraph 114.
[Paragraph No. 115: Upon information and belief, by Default Notice dated October 18,
2018, the defendant advised Omnesys Technologies Pvt., Ltd. and plaintiff, as its successor in
interest, of its material default under the License Agreement due to its failure to deliver to the
defendant no later than thirty (30) days after the end of each calendar quarter, a statement pursuant
to License Agreement Section 2.b. certified on behalf of Omnesys Technologies Pvt., Ltd. and its
successor in interest by its Signatory (as defined by License Agreement Section 1.h.ii) regarding
(a) each agreement between Omnesys Technologies Pvt., Ltd. or its successor and all third-parties,
including certain specified details of each agreement and (b) identifying all customers of Omnesys
Technologies Pvt., Ltd. and its successor, the pricing terms and the duration of each re-license or
re-distribution by Omnesys Technologies Pvt., Ltd. and its successor to, or use of the Software by,
each customer of Omnesys Technologies Pvt., Ltd. and its successor during the calendar quarter
just ended, and the defendant respectfully begs leave of the Court to refer to the original legal
document and writing at the trial of this action for its full text and import.]
115. Admits that OTI purported in the referenced document to notify Refinitiv of a
material default under the SLA, refers to the document for a complete and accurate statement of
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its contents, denies that Refinitiv has materially breached the SLA, and otherwise denies the
allegations in Paragraph 115.
[Paragraph No. 116: Upon information and belief, that pursuant to License Agreement
Section 6.b.ii., the defendant may immediately terminate the License Agreement and the use of
the Software thereunder by the plaintiff in the event that plaintiff is in material default of License
Agreement Section 2.c. and such material default is not cured within 60 days after the defendant
gives plaintiff notice thereof.]
116. Denies that Paragraph 116 sets forth a complete and accurate statement of the terms
of the SLA, denies that every violation of § 2 of the SLA constitutes a material default that permits
OTI to terminate the SLA, respectfully refers to the SLA for a complete and accurate statement of
its terms, and otherwise denies the allegations in Paragraph 116.
[Paragraph No. 117: Upon information and belief, by Default Notice dated October 18,
2018, the defendant advised Omnesys Technologies Pvt., Ltd. and plaintiff, as its successor in
interest, of its material default under License Agreement Section 2.c. and further gave the plaintiff
notice of plaintiff’s right to cure such material default within 60 days.]
117. Admits that OTI purported in the referenced document to notify Refinitiv of a
material default under the SLA, refers to the document for a complete and accurate statement of
its contents, denies that Refinitiv has materially breached the SLA, and otherwise denies the
allegations in Paragraph 117.
[Paragraph No. 118: Upon information and belief, plaintiff has failed and refused to cure
its material default under the License Agreement within 60 days of the Default Notice dated
October 18, 2018 and to the present time.]
118. Denies the allegations in Paragraph 118.
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[Paragraph No. 119: Upon information and belief, on February 12, 2019, plaintiff was in
material breach of the License Agreement due to plaintiff’s failure to comply with the provisions
of License Agreement 2.b.]
119. Denies the allegations in Paragraph 119.
[Paragraph No. 120: Upon information and belief, by Default Notice dated February 12,
2019, the defendant advised Omnesys Technologies Pvt., Ltd. and plaintiff, as its successor in
interest, of its material default under the License Agreement due to its failure to deliver to the
defendant no later than thirty (30) days after the end of each calendar quarter, a statement pursuant
to License Agreement Section 2.b. certified on behalf of Omnesys Technologies Pvt., Ltd. and its
successor in interest by its Signatory (as defined by License Agreement Section 1.h.ii) regarding
(a) each agreement between Omnesys Technologies Pvt., Ltd. or its successor and all third-parties,
including certain specified details of each agreement and (b) identifying all customers of Omnesys
Technologies Pvt., Ltd. and its successor, the pricing terms and the duration of each re-license or
re-distribution by Omnesys Technologies Pvt., Ltd. and its successor to, or use of the Software by,
each customer of Omnesys Technologies Pvt., Ltd. and its successor during the calendar quarter
just ended, and the defendant respectfully begs leave of the Court to refer to the original legal
document and writing at the trial of this action for its full text and import.]
120. Admits that OTI purported in the referenced document to notify Refinitiv of a
material default under the SLA, refers to the document for a complete and accurate statement of
its contents, denies that Refinitiv has materially breached the SLA, and otherwise denies the
allegations in Paragraph 120.
[Paragraph No. 121: Upon information and belief, that pursuant to License Agreement
Section 6.b.ii., the defendant may immediately terminate the License Agreement and the use of
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the Software thereunder by the plaintiff in the event that plaintiff is in material default of License
Agreement Section 2.c. and such material default is not cured within 60 days after the defendant
gives plaintiff notice thereof.]
121. Denies that Paragraph 121 sets forth a complete and accurate statement of the terms
of the SLA, denies that every violation of § 2 of the SLA constitutes a material default that permits
OTI to terminate the SLA, respectfully refers to the SLA for a complete and accurate statement of
its terms, and otherwise denies the allegations in Paragraph 121.
[Paragraph No. 122: Upon information and belief, by Default Notice dated February 12,
2019, the defendant advised Omnesys Technologies Pvt., Ltd. and plaintiff, as its successor in
interest, of its material default under License Agreement Section 2.c. and further gave the plaintiff
notice of plaintiff’s right to cure such material default within 60 days.]
122. Admits that OTI purported in the referenced document to notify Refinitiv of a
material default under the SLA, refers to the document for a complete and accurate statement of
its contents, denies that Refinitiv has materially breached the SLA, and otherwise denies the
allegations in Paragraph 122.
[Paragraph No. 123: Upon information and belief, plaintiff has failed and refused to cure
its material default under the License Agreement within 60 days of the Default Notice dated
February 12, 2018 and to the present time.]
123. Denies the allegations in Paragraph 123.
[Paragraph No. 124: Upon information and belief, the defendant has no adequate remedy
at law.]
124. States that Paragraph 124 states a legal conclusion as to which no response is
required. To the extent a response is required, denies the allegations in Paragraph 124.
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[Paragraph No. 125: Upon information and belief, by reason of the foregoing material
uncured defaults of plaintiff, the defendant is entitled to a declaratory judgment from the Court
declaring the License Agreement duly terminated and of no further force and effect, and further
ordering plaintiff to immediately and permanently cease and desist from any and all re-licensing,
re-distribution or use of the Software by plaintiff or plaintiff’s customers, and further authorizing
the defendant to immediately terminate all re-licensing, re-distribution or use of the Software by
plaintiff and plaintiff’s customers through electronic means.]
125. States that Paragraph 125 states a legal conclusion as to which no response is
required. To the extent a response is required, denies that Refinitiv has materially breached the
SLA, denies that OTI is entitled to the requested relief or to any relief, and otherwise denies the
allegations in Paragraph 125.
AS AND FOR A SECOND COUNTERCLAIM
(Breach of Contract - Money Damages)
[Paragraph No. 126: Upon information and belief, the defendant repeats, reiterates and
realleges each and every admission, denial and other allegation set forth in Paragraphs “1” through
“4”, “8”, “10” through “11” and “100” through “123” of this verified second amended answer with
the same force and effect as though fully set forth herein at length.]
126. Paragraph 126 contains no allegation requiring a response from Refinitiv. To the
extent a response is required, admits that Refinitiv and OTI are parties to a New York law-
governed software license agreement entered into as of April 1, 2004 and amended as of August
13, 2013 (then “SLA”) pursuant to which Refinitiv licenses middleware software from OTI in
exchange for royalty payments, denies that Refinitiv has materially breached the SLA, denies that
every violation of § 2 of the SLA constitutes a material default that permits OTI to terminate the
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SLA, repeats, reiterates, and realleges its responses to Paragraphs 99 through 125 above, and
otherwise denies the allegations in Paragraph 126.
[Paragraph No. 127: Upon information and belief, in addition to the foregoing material
uncured defaults of plaintiff resulting in excessive underpayments of license fee and royalties to
the defendant, plaintiff also improperly deducted from payments delivered to the defendant since
on or about August 13, 2013 duties, taxes levies or fees allegedly imposed by the government of
India on the license or use of the Software or Marks licensed by the defendant to plaintiff and
failed to remit and pay to the defendant such duties, taxes levies or fees improperly deducted from
payment to the defendant (or to provide exemption documentation to the defendant), as required
by License Agreement Section 5.b.]
127. Denies the allegations in Paragraph 127.
[Paragraph No. 128: Upon information and belief, by reason of the foregoing material
uncured defaults and other breaches of the License Agreement by plaintiff, the defendant has
suffered damages in an amount to be determined at trial but believed to be not less than Two
Hundred Fifty Million Dollars ($250,000,000), and the defendant is entitled to judgment therefor.]
128. States that Paragraph 128 states a legal conclusion as to which no response is
required. To the extent a response is required, denies that Refinitiv has materially breached the
SLA, denies that OTI is entitled to the requested relief or to any relief, and otherwise denies the
allegations in Paragraph 128.
AS AND FOR A THIRD COUNTERCLAIM
(Breach of Contract - Accounting)
[Paragraph No. 129: Upon information and belief, the defendant repeats, reiterates and
realleges each and every admission, denial and other allegation set forth in Paragraphs “1” through
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“4”, “8”, “10” through “11”, “100” through “123” and “127” of this verified second amended
answer with the same force and effect as though fully set forth herein at length.]
129. Paragraph 129 contains no allegation requiring a response from Refinitiv. To the
extent a response is required, admits that Refinitiv and OTI are parties to a New York law-
governed software license agreement entered into as of April 1, 2004 and amended as of August
13, 2013 (then “SLA”) pursuant to which Refinitiv licenses middleware software from OTI in
exchange for royalty payments, denies that Refinitiv has materially breached the SLA, denies that
every violation of § 2 of the SLA constitutes a material breach that permits OTI to terminate the
SLA, repeats, reiterates, and realleges its responses to Paragraphs 99 through 128 above, and
otherwise denies the allegations in Paragraph 129.
[Paragraph No. 130: Upon information and belief, since at least August 13, 2013 and
continuing uninterrupted to the present time, plaintiff, by itself and/or as assignee of all
predecessor rights, obligations and liabilities under the License Agreement, has had a fiduciary
duty and obligation to the defendant under the License Agreement Section 2.b. to report and
account accurately, faithfully and with care to the defendant, no later than thirty (30) days after the
end of each calendar quarter, by means of a statement certified by plaintiff’s. Signatory (as defined
by License Agreement Section 1.h.ii), identifying all plaintiff’s customers, their respective pricing
terms and the duration of plaintiff’s re-license or re- distribution to, or use of the Software by, each
of plaintiff’s customers during the calendar quarter just ended.]
130. Denies that Paragraph 130 sets forth a complete and accurate statement of the terms
of the SLA, denies that Refinitiv owes fiduciary duties or obligations to OTI, respectfully refers to
the SLA for a complete and accurate statement of its terms, avers that OTI waived strict
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compliance with the terms of the SLA and has waived the right to terminate the SLA, and otherwise
denies the allegations in Paragraph 130.
[Paragraph No. 131: Upon information and belief, pursuant to the terms and conditions
of the License Agreement, the defendant relied upon plaintiff to deliver to the defendant statements
duly certified by plaintiff’s Signatory accurately including all information required by License
Agreement Section 2.b.]
131. Denies that Paragraph 131 sets forth a complete and accurate statement of the terms
of the SLA, denies that OTI relied upon Refinitiv to deliver all information required by § 2.b of
the SLA, avers that OTI waived strict compliance with the terms of the SLA and has waived the
right to terminate the SLA, and otherwise denies the allegations in Paragraph 131.
[Paragraph No. 132: Upon information and belief, since at least August 13, 2013 and
continuing uninterrupted to the present time, plaintiff has failed and refused to report and account
accurately, faithfully and with care to the defendant, and to deliver to the defendant statements
duly certified by plaintiff’s Signatory accurately including all information required by License
Agreement Section 2.b., as required by the License Agreement.]
132. Avers that OTI waived strict compliance with the terms of the SLA and has waived
the right to terminate the SLA, and denies the allegations in Paragraph 132.
[Paragraph No. 133: Upon information and belief, plaintiff has benefitted from its
uncured material defaults and other breaches of the License Agreement by paying to the defendant
sums far less than required pursuant to the terms of the License Agreement and thereby saving
itself from paying large sums of money properly required to be paid.]
133. Denies the allegations in Paragraph 133.
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[Paragraph No. 134: Upon information and belief, by reason of the foregoing plaintiff is
subject to the burden of accounting to the defendant.]
134. States that Paragraph 134 states a legal conclusion as to which no response is
required. To the extent a response is required, denies that OTI is entitled to the requested relief or
to any relief, and otherwise denies the allegations in Paragraph 134.
[Paragraph No. 135: Upon information and belief, the defendant has no adequate remedy
at law.]
135. States that Paragraph 135 states a legal conclusion as to which no response is
required. To the extent a response is required, denies the allegations in Paragraph 135.
AS AND FOR A FOURTH COUNTERCLAIM
(Negligent Misrepresentation or Omission)
[Paragraph No. 136: Upon information and belief, the defendant repeats, reiterates and
realleges each and every admission, denial and other allegation set forth in Paragraphs “1” through
“4”, “8”, “10” through “11”, “100” through “123”, “127” and “130” through “133” of this verified
second amended answer with the same force and effect as though fully set forth herein at length.]
136. Paragraph 136 contains no allegation requiring a response from Refinitiv. To the
extent a response is required, admits that Refinitiv and OTI are parties to a New York law-
governed software license agreement entered into as of April 1, 2004 and amended as of August
13, 2013 (then “SLA”) pursuant to which Refinitiv licenses middleware software from OTI in
exchange for royalty payments, denies that Refinitiv has materially breached the SLA, denies that
every violation of § 2 of the SLA constitutes a material breach that permits OTI to terminate the
SLA, repeats, reiterates, and realleges its responses to Paragraphs 99 through 135 above, and
otherwise denies the allegations in Paragraph 136.
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[Paragraph No. 137: Upon information and belief, at all times set forth herein plaintiff
had a duty to impart and deliver correct and complete certified information to the defendant,
including but not limited to statements duly certified by plaintiff’s Signatory accurately including
all information required by License Agreement Section 2.b.]
137. Denies that Paragraph 137 sets forth a complete and accurate statement of the terms
of the SLA, respectfully refers to the SLA for a complete and accurate statement of its terms, avers
that OTI waived strict compliance with the terms of the SLA and has waived the right to terminate
the SLA, and otherwise denies the allegations in Paragraph 137.
[Paragraph No. 138: Upon information and belief, since on or about August 13, 2013
plaintiff negligently misrepresented information to the defendant, including but not limited to
information contained in uncertified statements delivered by plaintiff to the defendant upon which
the defendant justifiably relied.]
138. Denies the allegations in Paragraph 138.
[Paragraph No. 139: Upon information and belief, since on or about August 13, 2013
plaintiff negligently omitted material facts from uncertified statements delivered by plaintiff to the
defendant upon which the defendant justifiably relied.]
139. Denies the allegations alleged in Paragraph 139.
[Paragraph No. 140: Upon information and belief, plaintiff knew and expected the
defendant to rely upon the information contained in uncertified statements delivered by plaintiff
to the defendant when the defendant prepared and delivered invoices to plaintiff.]
140. Admits that Refinitiv knew and expected that OTI would use usage statements that
Refinitiv provided to OTI to prepare invoices to OTI, avers that § 5.d of the SLA gives OTI access
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to Refinitiv’s books and records to verify the accuracy of license fee payments, and otherwise
denies the allegations in Paragraph 140.
[Paragraph No. 141: Upon information and belief, plaintiff knew or should have known
that the information contained in uncertified statements delivered by plaintiff to the defendant was
false and inaccurate and was made with intent to induce the defendant to act upon the false and
inaccurate information when preparing and delivering to plaintiff invoices for Software use under
the License Agreement.]
141. Denies the allegations in Paragraph 141.
[Paragraph No. 142: Upon information and belief, the defendant justifiably relied upon
plaintiff’s misrepresentations and omissions.]
142. Denies the allegations in Paragraph 142.
[Paragraph No. 143: Upon information and belief, by reason of the foregoing and as a
direct and proximate result thereof, the defendant has suffered damages in an amount to be
determined at trial but believed to be not less than Two Hundred Fifty Million Dollars
($250,000,000), and the defendant is entitled to judgment therefor.]
143. States that Paragraph 143 states a legal conclusion as to which no response is
required. To the extent a response is required, denies that OTI is entitled to the requested relief or
to any relief, avers that under § 7.a of the SLA OTI has disclaimed special, consequential,
exemplary, or incidental damages, including lost profits, and otherwise denies the allegations in
Paragraph 143.
[Prayer for Relief: WHEREFORE, the defendant respectfully demands judgment as
follows:
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(a) Dismissing the verified complaint of the plaintiff herein in all respects, with
prejudice and costs; and
(b) With respect to the First Counterclaim, (i) declaring that plaintiff is in material
breach of the License Agreement, (ii) declaring the License Agreement duly terminated and of no
further force and effect, (iii) mandating, enjoining, directing and ordering plaintiff to immediately
and permanently cease and desist from any and all re- licensing, re-distribution or use of the
Software by plaintiff or plaintiff’s customers, and (iv) authorizing the defendant to immediately
terminate all re-licensing, re-distribution or use of the Software by plaintiff and plaintiff’s
customers through electronic means; and
(c) With respect to the Second and Fourth Counterclaims, damages in an amount to be
determined at trial but not less than Two Hundred Fifty Million Dollars ($250,000,000), and
granting the defendant judgment therefor; and
(d) With respect to the Third Counterclaim, ordering plaintiff to promptly perform
accountings and to fully account to the defendant; and
(e) Granting to the defendant costs, disbursements and reasonable attorney’s fees with
respect to this action, together with such other and further relief as to the Court may seem just and
proper.]
144. Response to Prayer for Relief: States that the Prayer for Relief states a legal
conclusion as to which no response is required. To the extent a response is required, denies that
OTI is entitled to the requested relief or to any relief, and avers that under § 7.a of the SLA OTI
has disclaimed special, consequential, exemplary, or incidental damages, including lost profits.
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AFFIRMATIVE DEFENSES TO COUNTERCLAIMS
145. Refinitiv states the following defenses without assuming the burden of proof on
such defenses that would otherwise rest on OTI:
146. OTI’s counterclaims fail to state any claim against Refinitiv on which relief can be
granted.
147. OTI’s counterclaims for damages are barred in whole or in part by § 7.a of the SLA,
pursuant to which OTI has disclaimed special, consequential, exemplary, or incidental damages,
including lost profits.
148. OTI has waived strict compliance with the SLA, by continuing to perform its
contractual obligations for several years, with full knowledge of the purported deficiencies in the
periodic reports that Refinitiv was providing to OTI.
149. OTI has waived the right to terminate the SLA pursuant to the election-of-remedie
Preview
FILED: ROCKLAND COUNTY CLERK 05/27/2020 08:57 AM INDEX NO. 033739/2019 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 05/27/2020 SUPREME COURT OF THE STATE OF NEW YORK ROCKLAND COUNTY --------------------------------------------------------------------- X : F&R INDIA PRODUCTS AND SERVICES PRIVATE : Index No. 033739/2019 LIMITED, : (Berliner, J.) : Plaintiff-Counterclaim Defendant, : : : v. : : OMNESYS TECHNOLOGIES, INC., : : Defendant-Counterclaim Plaintiff. : : --------------------------------------------------------------------- X VERIFIED REPLY OF PLAINTIFF-COUNTERCLAIM DEFENDANT TO DEFENDANT-COUNTERCLAIM PLAINTIFF’S COUNTERCLAIMS Pursuant to CPLR § 3011 and the Court’s Order dated May 4, 2020 and filed May 5, 2020, Plaintiff-Counterclaim Defendant Refinitiv India Private Limited (“Refinitiv”)1 hereby replies to the Counterclaims (“Counterclaims”) asserted in the Verified Second Amended Answer with Counterclaims filed by Defendant-Counterclaim Plaintiff Omneys Technologies, Inc. (“OTI”) on May 8, 2020 (NYSCEF No. 107). To the extent Refinitiv does not specifically reply below to any allegation made in support of OTI’s Counterclaims, including any allegation set forth in Paragraphs 1-98 of OTI’s Verified Second Amended Answer with Counterclaims, such allegation is denied. 1 On August 13, 2019, pursuant to an approval from the Government of India, Ministry of Corporate Affairs, Registrar of Companies in Mumbai, India, NYSCEF No. 91, Plaintiff- Counterclaim Defendant changed its name from F&R India Products and Services Private Limited to Refinitiv India Private Limited. This name change does not result in any change to the legal entity. 1 of 22 FILED: ROCKLAND COUNTY CLERK 05/27/2020 08:57 AM INDEX NO. 033739/2019 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 05/27/2020 Refinitiv reserves the right to amend, supplement, and/or correct its reply, and to interpose additional affirmative defenses, in the event that new or additional facts come to light as the litigation progresses. The language of OTI’s counterclaims is reproduced below in brackets, purely for ease of reference. AS AND FOR A FIRST COUNTERCLAIM (Breach of Contract - Declaratory Judgment) [Paragraph No. 99: Upon information and belief, the defendant repeats, reiterates and realleges each and every admission, denial and other allegation set forth in Paragraphs “1” through “4”, “8”, “10” through “11”, “92” and “95” of this verified second amended answer with the same force and effect as though fully set forth herein at length.] 99. Paragraph 99 contains no allegation requiring a response from Refinitiv. To the extent a response is required, admits that Refinitiv and OTI are parties to a New York law- governed software license agreement entered into as of April 1, 2004 and amended as of August 13, 2013 (the “SLA”) pursuant to which Refinitiv licenses middleware software from OTI in exchange for license fee payments, denies that Refinitiv has materially breached the SLA, denies that every violation of § 2 of the SLA constitutes a material default that permits OTI to terminate the SLA, and otherwise denies the allegations in Paragraph 99. [Paragraph No. 100: Upon information and belief, the defendant entered into a written License Agreement dated 01 April 2004, as amended as of 13 August 2013, by and between defendant Omnesys Technologies, Inc. and Omnesys Technologies Pvt., Ltd., plaintiff’s assignor and predecessor in interest (the “License Agreement”), and the defendant respectfully begs leave of the Court to refer to the original legal document and writing at the trial of this action for its full text and import. A complete copy of the License Agreement is annexed hereto as Exhibit “A”.] 2 2 of 22 FILED: ROCKLAND COUNTY CLERK 05/27/2020 08:57 AM INDEX NO. 033739/2019 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 05/27/2020 100. Admits the allegations in Paragraph 100. [Paragraph No. 101: Upon information and belief, since August 13, 2013 and continuing uninterrupted to the present time, plaintiff, by itself and/or as assignee of all predecessor rights, obligations and liabilities under the License Agreement, has been, and continues to be, in material breach of the provisions of License Agreement, including, but not limited to, License Agreement Sections 2.b., 2.c., 5.a.i., 5.a.ii., 5.b., 5.f., 6.b.i., 6.b.ii., 6.b.iv., 8.c. and 8.d.ii.] 101. Denies the allegations in Paragraph 101. [Paragraph No. 102: Upon information and belief, License Agreement Section 2.b. provides in substance, that any re-license or redistribution of the Software or its Documentation must be as an integral part of, and used only in conjunction with, the Composite Software and that before plaintiff may re-license or redistribute the Software or its Documentation to any third-party person or entity, plaintiff must deliver to the defendant a certified statement regarding each agreement between plaintiff and such third-party, including the name of each customer, the indicative pricing terms and the proposed duration of the re-licensing, re-distribution or use. License Agreement Section 2.b. also requires that plaintiff deliver to OTI, within 30 days after the end of each calendar quarter, a statement certified by plaintiff’s Signatory (as defined by License Agreement Section 1.h.ii), identifying all plaintiff’s customers, their respective pricing terms and the duration of plaintiff’s re-license or re-distribution to, or use of the Software by, each of plaintiff’s customers during the calendar quarter just ended.] 102. Denies that Paragraph 102 sets forth a complete and accurate summary of the terms of the SLA, respectfully refers to the SLA for a complete and accurate statement of its terms, and otherwise denies the allegations in Paragraph 102. 3 3 of 22 FILED: ROCKLAND COUNTY CLERK 05/27/2020 08:57 AM INDEX NO. 033739/2019 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 05/27/2020 [Paragraph No. 103: Upon information and belief, that pursuant to License Agreement Section 2.c., a breach of any of the provisions of License Agreement Section 2, including but not limited to License Agreement Section 2.b. by plaintiff shall constitute a material breach of the License Agreement and the defendant, at defendant’s sole discretion, may immediately terminate the License Agreement and the use of the Software thereunder by the plaintiff.] 103. Denies that Paragraph 103 sets forth a complete and accurate statement of the terms of the SLA, denies that every violation of § 2 of the SLA constitutes a material default that permits OTI to terminate the SLA, respectfully refers to the SLA for a complete and accurate statement of its terms, and otherwise denies the allegations in Paragraph 103. [Paragraph No. 104: Upon information and belief, on June 24, 2018, plaintiff was in material breach of the License Agreement due to plaintiff’s failure to comply with the provisions of License Agreement 2.b.] 104. Denies the allegations in Paragraph 104. [Paragraph No. 105: Upon information and belief, by Default Notice dated June 24, 2018, the defendant advised Omnesys Technologies Pvt., Ltd. and plaintiff, as its successor in interest, of its material default under the License Agreement due to its failure to deliver to the defendant no later than thirty (30) days after the end of each calendar quarter, a statement pursuant to License Agreement Section 2.b. certified on behalf of Omnesys Technologies Pvt., Ltd. and its successor in interest by its Signatory (as defined by License Agreement Section 1.h.ii) regarding (a) each agreement between Omnesys Technologies Pvt., Ltd. or its successor and all third-parties, including certain specified details of each agreement and (b) identifying all customers of Omnesys Technologies Pvt., Ltd. and its successor, the pricing terms and the duration of each re-license or re-distribution by Omnesys Technologies Pvt., Ltd. and its successor to, or use of the Software by, 4 4 of 22 FILED: ROCKLAND COUNTY CLERK 05/27/2020 08:57 AM INDEX NO. 033739/2019 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 05/27/2020 each customer of Omnesys Technologies Pvt., Ltd. and its successor during the calendar quarter just ended, and the defendant respectfully begs leave of the Court to refer to the original legal document and writing at the trial of this action for its full text and import.] 105. Admits that OTI purported in the referenced document to notify Refinitiv of a material default under the SLA, refers to the document for a complete and accurate statement of its contents, denies that Refinitiv has materially breached the SLA, and otherwise denies the allegations in Paragraph 105. [Paragraph No. 106: Upon information and belief, that pursuant to License Agreement Section 6.b.ii., the defendant may immediately terminate the License Agreement and the use of the Software thereunder by the plaintiff in the event that plaintiff is in material default of License Agreement Section 2.c. and such material default is not cured within 60 days after the defendant gives plaintiff notice thereof.] 106. Denies that Paragraph 106 sets forth a complete and accurate statement of the terms of the SLA, denies that every violation of § 2 of the SLA constitutes a material default that permits OTI to terminate the SLA, respectfully refers to the SLA for a complete and accurate statement of its terms, and otherwise denies the allegations in Paragraph 106. [Paragraph No. 107: Upon information and belief, by Default Notice dated June 24, 2018, the defendant advised Omnesys Technologies Pvt., Ltd. and plaintiff, as its successor in interest, of its material default under License Agreement Section 2.c. and further gave the plaintiff notice of plaintiff’s right to cure such material default within 60 days.] 107. Admits that OTI purported in the referenced document to notify Refinitiv of a material default under the SLA, refers to the document for a complete and accurate statement of 5 5 of 22 FILED: ROCKLAND COUNTY CLERK 05/27/2020 08:57 AM INDEX NO. 033739/2019 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 05/27/2020 its contents, denies that Refinitiv has materially breached the SLA, and otherwise denies the allegations in Paragraph 107. [Paragraph No. 108: Upon information and belief, plaintiff has failed and refused to cure its material default under the License Agreement within 60 days of the Default Notice dated June 24, 2018 and to the present time.] 108. Denies the allegations in Paragraph 108. [Paragraph No. 109: Upon information and belief, on August 27, 2018, plaintiff was in material breach of the License Agreement due to plaintiff’s failure to comply with the provisions of License Agreement 2.b.] 109. Denies the allegations in Paragraph 109. [Paragraph No. 110: Upon information and belief, by Default Notice dated August 27, 2018, the defendant advised Omnesys Technologies Pvt., Ltd. and plaintiff, as its successor in interest, of its material default under the License Agreement due to its failure to deliver to the defendant no later than thirty (30) days after the end of each calendar quarter, a statement pursuant to License Agreement Section 2.b. certified on behalf of Omnesys Technologies Pvt., Ltd. and its successor in interest by its Signatory (as defined by License Agreement Section 1.h.ii) regarding (a) each agreement between Omnesys Technologies Pvt., Ltd. or its successor and all third-parties, including certain specified details of each agreement and (b) identifying all customers of Omnesys Technologies Pvt., Ltd. and its successor, the pricing terms and the duration of each re-license or re-distribution by Omnesys Technologies Pvt., Ltd. and its successor to, or use of the Software by, each customer of Omnesys Technologies Pvt., Ltd. and its successor during the calendar quarter just ended, and the defendant respectfully begs leave of the Court to refer to the original legal document and writing at the trial of this action for its full text and import.] 6 6 of 22 FILED: ROCKLAND COUNTY CLERK 05/27/2020 08:57 AM INDEX NO. 033739/2019 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 05/27/2020 110. Admits that OTI purported in the referenced document to notify Refinitiv of a material default under the SLA, refers to the document for a complete and accurate statement of its contents, denies that Refinitiv has materially breached the SLA, and otherwise denies the allegations in Paragraph 110. [Paragraph No. 111: Upon information and belief, that pursuant to License Agreement Section 6.b.ii., the defendant may immediately terminate the License Agreement and the use of the Software thereunder by the plaintiff in the event that plaintiff is in material default of License Agreement Section 2.c. and such material default is not cured within 60 days after the defendant gives plaintiff notice thereof.] 111. Denies that Paragraph 111 sets forth a complete and accurate statement of the terms of the SLA, denies that every violation of § 2 of the SLA constitutes a material default that permits OTI to terminate the SLA, respectfully refers to the SLA for a complete and accurate statement of its terms, and otherwise denies the allegations in Paragraph 111. [Paragraph No. 112: Upon information and belief, by Default Notice dated August 27, 2018, the defendant advised Omnesys Technologies Pvt., Ltd. and plaintiff, as its successor in interest, of its material default under License Agreement Section 2.c. and further gave the plaintiff notice of plaintiff’s right to cure such material default within 60 days.] 112. Admits that OTI purported in the referenced document to notify Refinitiv of a material default under the SLA, refers to the document for a complete and accurate statement of its contents, denies that Refinitiv has materially breached the SLA, and otherwise denies the allegations in Paragraph 112. 7 7 of 22 FILED: ROCKLAND COUNTY CLERK 05/27/2020 08:57 AM INDEX NO. 033739/2019 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 05/27/2020 [Paragraph No. 113: Upon information and belief, plaintiff has failed and refused to cure its material default under the License Agreement within 60 days of the Default Notice dated August 27, 2018 and to the present time.] 113. Denies the allegations in Paragraph 113. [Paragraph No. 114: Upon information and belief, on October 18, 2018, plaintiff was in material breach of the License Agreement due to plaintiff’s failure to comply with the provisions of License Agreement 2.b.] 114. Denies the allegations in Paragraph 114. [Paragraph No. 115: Upon information and belief, by Default Notice dated October 18, 2018, the defendant advised Omnesys Technologies Pvt., Ltd. and plaintiff, as its successor in interest, of its material default under the License Agreement due to its failure to deliver to the defendant no later than thirty (30) days after the end of each calendar quarter, a statement pursuant to License Agreement Section 2.b. certified on behalf of Omnesys Technologies Pvt., Ltd. and its successor in interest by its Signatory (as defined by License Agreement Section 1.h.ii) regarding (a) each agreement between Omnesys Technologies Pvt., Ltd. or its successor and all third-parties, including certain specified details of each agreement and (b) identifying all customers of Omnesys Technologies Pvt., Ltd. and its successor, the pricing terms and the duration of each re-license or re-distribution by Omnesys Technologies Pvt., Ltd. and its successor to, or use of the Software by, each customer of Omnesys Technologies Pvt., Ltd. and its successor during the calendar quarter just ended, and the defendant respectfully begs leave of the Court to refer to the original legal document and writing at the trial of this action for its full text and import.] 115. Admits that OTI purported in the referenced document to notify Refinitiv of a material default under the SLA, refers to the document for a complete and accurate statement of 8 8 of 22 FILED: ROCKLAND COUNTY CLERK 05/27/2020 08:57 AM INDEX NO. 033739/2019 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 05/27/2020 its contents, denies that Refinitiv has materially breached the SLA, and otherwise denies the allegations in Paragraph 115. [Paragraph No. 116: Upon information and belief, that pursuant to License Agreement Section 6.b.ii., the defendant may immediately terminate the License Agreement and the use of the Software thereunder by the plaintiff in the event that plaintiff is in material default of License Agreement Section 2.c. and such material default is not cured within 60 days after the defendant gives plaintiff notice thereof.] 116. Denies that Paragraph 116 sets forth a complete and accurate statement of the terms of the SLA, denies that every violation of § 2 of the SLA constitutes a material default that permits OTI to terminate the SLA, respectfully refers to the SLA for a complete and accurate statement of its terms, and otherwise denies the allegations in Paragraph 116. [Paragraph No. 117: Upon information and belief, by Default Notice dated October 18, 2018, the defendant advised Omnesys Technologies Pvt., Ltd. and plaintiff, as its successor in interest, of its material default under License Agreement Section 2.c. and further gave the plaintiff notice of plaintiff’s right to cure such material default within 60 days.] 117. Admits that OTI purported in the referenced document to notify Refinitiv of a material default under the SLA, refers to the document for a complete and accurate statement of its contents, denies that Refinitiv has materially breached the SLA, and otherwise denies the allegations in Paragraph 117. [Paragraph No. 118: Upon information and belief, plaintiff has failed and refused to cure its material default under the License Agreement within 60 days of the Default Notice dated October 18, 2018 and to the present time.] 118. Denies the allegations in Paragraph 118. 9 9 of 22 FILED: ROCKLAND COUNTY CLERK 05/27/2020 08:57 AM INDEX NO. 033739/2019 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 05/27/2020 [Paragraph No. 119: Upon information and belief, on February 12, 2019, plaintiff was in material breach of the License Agreement due to plaintiff’s failure to comply with the provisions of License Agreement 2.b.] 119. Denies the allegations in Paragraph 119. [Paragraph No. 120: Upon information and belief, by Default Notice dated February 12, 2019, the defendant advised Omnesys Technologies Pvt., Ltd. and plaintiff, as its successor in interest, of its material default under the License Agreement due to its failure to deliver to the defendant no later than thirty (30) days after the end of each calendar quarter, a statement pursuant to License Agreement Section 2.b. certified on behalf of Omnesys Technologies Pvt., Ltd. and its successor in interest by its Signatory (as defined by License Agreement Section 1.h.ii) regarding (a) each agreement between Omnesys Technologies Pvt., Ltd. or its successor and all third-parties, including certain specified details of each agreement and (b) identifying all customers of Omnesys Technologies Pvt., Ltd. and its successor, the pricing terms and the duration of each re-license or re-distribution by Omnesys Technologies Pvt., Ltd. and its successor to, or use of the Software by, each customer of Omnesys Technologies Pvt., Ltd. and its successor during the calendar quarter just ended, and the defendant respectfully begs leave of the Court to refer to the original legal document and writing at the trial of this action for its full text and import.] 120. Admits that OTI purported in the referenced document to notify Refinitiv of a material default under the SLA, refers to the document for a complete and accurate statement of its contents, denies that Refinitiv has materially breached the SLA, and otherwise denies the allegations in Paragraph 120. [Paragraph No. 121: Upon information and belief, that pursuant to License Agreement Section 6.b.ii., the defendant may immediately terminate the License Agreement and the use of 10 10 of 22 FILED: ROCKLAND COUNTY CLERK 05/27/2020 08:57 AM INDEX NO. 033739/2019 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 05/27/2020 the Software thereunder by the plaintiff in the event that plaintiff is in material default of License Agreement Section 2.c. and such material default is not cured within 60 days after the defendant gives plaintiff notice thereof.] 121. Denies that Paragraph 121 sets forth a complete and accurate statement of the terms of the SLA, denies that every violation of § 2 of the SLA constitutes a material default that permits OTI to terminate the SLA, respectfully refers to the SLA for a complete and accurate statement of its terms, and otherwise denies the allegations in Paragraph 121. [Paragraph No. 122: Upon information and belief, by Default Notice dated February 12, 2019, the defendant advised Omnesys Technologies Pvt., Ltd. and plaintiff, as its successor in interest, of its material default under License Agreement Section 2.c. and further gave the plaintiff notice of plaintiff’s right to cure such material default within 60 days.] 122. Admits that OTI purported in the referenced document to notify Refinitiv of a material default under the SLA, refers to the document for a complete and accurate statement of its contents, denies that Refinitiv has materially breached the SLA, and otherwise denies the allegations in Paragraph 122. [Paragraph No. 123: Upon information and belief, plaintiff has failed and refused to cure its material default under the License Agreement within 60 days of the Default Notice dated February 12, 2018 and to the present time.] 123. Denies the allegations in Paragraph 123. [Paragraph No. 124: Upon information and belief, the defendant has no adequate remedy at law.] 124. States that Paragraph 124 states a legal conclusion as to which no response is required. To the extent a response is required, denies the allegations in Paragraph 124. 11 11 of 22 FILED: ROCKLAND COUNTY CLERK 05/27/2020 08:57 AM INDEX NO. 033739/2019 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 05/27/2020 [Paragraph No. 125: Upon information and belief, by reason of the foregoing material uncured defaults of plaintiff, the defendant is entitled to a declaratory judgment from the Court declaring the License Agreement duly terminated and of no further force and effect, and further ordering plaintiff to immediately and permanently cease and desist from any and all re-licensing, re-distribution or use of the Software by plaintiff or plaintiff’s customers, and further authorizing the defendant to immediately terminate all re-licensing, re-distribution or use of the Software by plaintiff and plaintiff’s customers through electronic means.] 125. States that Paragraph 125 states a legal conclusion as to which no response is required. To the extent a response is required, denies that Refinitiv has materially breached the SLA, denies that OTI is entitled to the requested relief or to any relief, and otherwise denies the allegations in Paragraph 125. AS AND FOR A SECOND COUNTERCLAIM (Breach of Contract - Money Damages) [Paragraph No. 126: Upon information and belief, the defendant repeats, reiterates and realleges each and every admission, denial and other allegation set forth in Paragraphs “1” through “4”, “8”, “10” through “11” and “100” through “123” of this verified second amended answer with the same force and effect as though fully set forth herein at length.] 126. Paragraph 126 contains no allegation requiring a response from Refinitiv. To the extent a response is required, admits that Refinitiv and OTI are parties to a New York law- governed software license agreement entered into as of April 1, 2004 and amended as of August 13, 2013 (then “SLA”) pursuant to which Refinitiv licenses middleware software from OTI in exchange for royalty payments, denies that Refinitiv has materially breached the SLA, denies that every violation of § 2 of the SLA constitutes a material default that permits OTI to terminate the 12 12 of 22 FILED: ROCKLAND COUNTY CLERK 05/27/2020 08:57 AM INDEX NO. 033739/2019 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 05/27/2020 SLA, repeats, reiterates, and realleges its responses to Paragraphs 99 through 125 above, and otherwise denies the allegations in Paragraph 126. [Paragraph No. 127: Upon information and belief, in addition to the foregoing material uncured defaults of plaintiff resulting in excessive underpayments of license fee and royalties to the defendant, plaintiff also improperly deducted from payments delivered to the defendant since on or about August 13, 2013 duties, taxes levies or fees allegedly imposed by the government of India on the license or use of the Software or Marks licensed by the defendant to plaintiff and failed to remit and pay to the defendant such duties, taxes levies or fees improperly deducted from payment to the defendant (or to provide exemption documentation to the defendant), as required by License Agreement Section 5.b.] 127. Denies the allegations in Paragraph 127. [Paragraph No. 128: Upon information and belief, by reason of the foregoing material uncured defaults and other breaches of the License Agreement by plaintiff, the defendant has suffered damages in an amount to be determined at trial but believed to be not less than Two Hundred Fifty Million Dollars ($250,000,000), and the defendant is entitled to judgment therefor.] 128. States that Paragraph 128 states a legal conclusion as to which no response is required. To the extent a response is required, denies that Refinitiv has materially breached the SLA, denies that OTI is entitled to the requested relief or to any relief, and otherwise denies the allegations in Paragraph 128. AS AND FOR A THIRD COUNTERCLAIM (Breach of Contract - Accounting) [Paragraph No. 129: Upon information and belief, the defendant repeats, reiterates and realleges each and every admission, denial and other allegation set forth in Paragraphs “1” through 13 13 of 22 FILED: ROCKLAND COUNTY CLERK 05/27/2020 08:57 AM INDEX NO. 033739/2019 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 05/27/2020 “4”, “8”, “10” through “11”, “100” through “123” and “127” of this verified second amended answer with the same force and effect as though fully set forth herein at length.] 129. Paragraph 129 contains no allegation requiring a response from Refinitiv. To the extent a response is required, admits that Refinitiv and OTI are parties to a New York law- governed software license agreement entered into as of April 1, 2004 and amended as of August 13, 2013 (then “SLA”) pursuant to which Refinitiv licenses middleware software from OTI in exchange for royalty payments, denies that Refinitiv has materially breached the SLA, denies that every violation of § 2 of the SLA constitutes a material breach that permits OTI to terminate the SLA, repeats, reiterates, and realleges its responses to Paragraphs 99 through 128 above, and otherwise denies the allegations in Paragraph 129. [Paragraph No. 130: Upon information and belief, since at least August 13, 2013 and continuing uninterrupted to the present time, plaintiff, by itself and/or as assignee of all predecessor rights, obligations and liabilities under the License Agreement, has had a fiduciary duty and obligation to the defendant under the License Agreement Section 2.b. to report and account accurately, faithfully and with care to the defendant, no later than thirty (30) days after the end of each calendar quarter, by means of a statement certified by plaintiff’s. Signatory (as defined by License Agreement Section 1.h.ii), identifying all plaintiff’s customers, their respective pricing terms and the duration of plaintiff’s re-license or re- distribution to, or use of the Software by, each of plaintiff’s customers during the calendar quarter just ended.] 130. Denies that Paragraph 130 sets forth a complete and accurate statement of the terms of the SLA, denies that Refinitiv owes fiduciary duties or obligations to OTI, respectfully refers to the SLA for a complete and accurate statement of its terms, avers that OTI waived strict 14 14 of 22 FILED: ROCKLAND COUNTY CLERK 05/27/2020 08:57 AM INDEX NO. 033739/2019 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 05/27/2020 compliance with the terms of the SLA and has waived the right to terminate the SLA, and otherwise denies the allegations in Paragraph 130. [Paragraph No. 131: Upon information and belief, pursuant to the terms and conditions of the License Agreement, the defendant relied upon plaintiff to deliver to the defendant statements duly certified by plaintiff’s Signatory accurately including all information required by License Agreement Section 2.b.] 131. Denies that Paragraph 131 sets forth a complete and accurate statement of the terms of the SLA, denies that OTI relied upon Refinitiv to deliver all information required by § 2.b of the SLA, avers that OTI waived strict compliance with the terms of the SLA and has waived the right to terminate the SLA, and otherwise denies the allegations in Paragraph 131. [Paragraph No. 132: Upon information and belief, since at least August 13, 2013 and continuing uninterrupted to the present time, plaintiff has failed and refused to report and account accurately, faithfully and with care to the defendant, and to deliver to the defendant statements duly certified by plaintiff’s Signatory accurately including all information required by License Agreement Section 2.b., as required by the License Agreement.] 132. Avers that OTI waived strict compliance with the terms of the SLA and has waived the right to terminate the SLA, and denies the allegations in Paragraph 132. [Paragraph No. 133: Upon information and belief, plaintiff has benefitted from its uncured material defaults and other breaches of the License Agreement by paying to the defendant sums far less than required pursuant to the terms of the License Agreement and thereby saving itself from paying large sums of money properly required to be paid.] 133. Denies the allegations in Paragraph 133. 15 15 of 22 FILED: ROCKLAND COUNTY CLERK 05/27/2020 08:57 AM INDEX NO. 033739/2019 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 05/27/2020 [Paragraph No. 134: Upon information and belief, by reason of the foregoing plaintiff is subject to the burden of accounting to the defendant.] 134. States that Paragraph 134 states a legal conclusion as to which no response is required. To the extent a response is required, denies that OTI is entitled to the requested relief or to any relief, and otherwise denies the allegations in Paragraph 134. [Paragraph No. 135: Upon information and belief, the defendant has no adequate remedy at law.] 135. States that Paragraph 135 states a legal conclusion as to which no response is required. To the extent a response is required, denies the allegations in Paragraph 135. AS AND FOR A FOURTH COUNTERCLAIM (Negligent Misrepresentation or Omission) [Paragraph No. 136: Upon information and belief, the defendant repeats, reiterates and realleges each and every admission, denial and other allegation set forth in Paragraphs “1” through “4”, “8”, “10” through “11”, “100” through “123”, “127” and “130” through “133” of this verified second amended answer with the same force and effect as though fully set forth herein at length.] 136. Paragraph 136 contains no allegation requiring a response from Refinitiv. To the extent a response is required, admits that Refinitiv and OTI are parties to a New York law- governed software license agreement entered into as of April 1, 2004 and amended as of August 13, 2013 (then “SLA”) pursuant to which Refinitiv licenses middleware software from OTI in exchange for royalty payments, denies that Refinitiv has materially breached the SLA, denies that every violation of § 2 of the SLA constitutes a material breach that permits OTI to terminate the SLA, repeats, reiterates, and realleges its responses to Paragraphs 99 through 135 above, and otherwise denies the allegations in Paragraph 136. 16 16 of 22 FILED: ROCKLAND COUNTY CLERK 05/27/2020 08:57 AM INDEX NO. 033739/2019 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 05/27/2020 [Paragraph No. 137: Upon information and belief, at all times set forth herein plaintiff had a duty to impart and deliver correct and complete certified information to the defendant, including but not limited to statements duly certified by plaintiff’s Signatory accurately including all information required by License Agreement Section 2.b.] 137. Denies that Paragraph 137 sets forth a complete and accurate statement of the terms of the SLA, respectfully refers to the SLA for a complete and accurate statement of its terms, avers that OTI waived strict compliance with the terms of the SLA and has waived the right to terminate the SLA, and otherwise denies the allegations in Paragraph 137. [Paragraph No. 138: Upon information and belief, since on or about August 13, 2013 plaintiff negligently misrepresented information to the defendant, including but not limited to information contained in uncertified statements delivered by plaintiff to the defendant upon which the defendant justifiably relied.] 138. Denies the allegations in Paragraph 138. [Paragraph No. 139: Upon information and belief, since on or about August 13, 2013 plaintiff negligently omitted material facts from uncertified statements delivered by plaintiff to the defendant upon which the defendant justifiably relied.] 139. Denies the allegations alleged in Paragraph 139. [Paragraph No. 140: Upon information and belief, plaintiff knew and expected the defendant to rely upon the information contained in uncertified statements delivered by plaintiff to the defendant when the defendant prepared and delivered invoices to plaintiff.] 140. Admits that Refinitiv knew and expected that OTI would use usage statements that Refinitiv provided to OTI to prepare invoices to OTI, avers that § 5.d of the SLA gives OTI access 17 17 of 22 FILED: ROCKLAND COUNTY CLERK 05/27/2020 08:57 AM INDEX NO. 033739/2019 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 05/27/2020 to Refinitiv’s books and records to verify the accuracy of license fee payments, and otherwise denies the allegations in Paragraph 140. [Paragraph No. 141: Upon information and belief, plaintiff knew or should have known that the information contained in uncertified statements delivered by plaintiff to the defendant was false and inaccurate and was made with intent to induce the defendant to act upon the false and inaccurate information when preparing and delivering to plaintiff invoices for Software use under the License Agreement.] 141. Denies the allegations in Paragraph 141. [Paragraph No. 142: Upon information and belief, the defendant justifiably relied upon plaintiff’s misrepresentations and omissions.] 142. Denies the allegations in Paragraph 142. [Paragraph No. 143: Upon information and belief, by reason of the foregoing and as a direct and proximate result thereof, the defendant has suffered damages in an amount to be determined at trial but believed to be not less than Two Hundred Fifty Million Dollars ($250,000,000), and the defendant is entitled to judgment therefor.] 143. States that Paragraph 143 states a legal conclusion as to which no response is required. To the extent a response is required, denies that OTI is entitled to the requested relief or to any relief, avers that under § 7.a of the SLA OTI has disclaimed special, consequential, exemplary, or incidental damages, including lost profits, and otherwise denies the allegations in Paragraph 143. [Prayer for Relief: WHEREFORE, the defendant respectfully demands judgment as follows: 18 18 of 22 FILED: ROCKLAND COUNTY CLERK 05/27/2020 08:57 AM INDEX NO. 033739/2019 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 05/27/2020 (a) Dismissing the verified complaint of the plaintiff herein in all respects, with prejudice and costs; and (b) With respect to the First Counterclaim, (i) declaring that plaintiff is in material breach of the License Agreement, (ii) declaring the License Agreement duly terminated and of no further force and effect, (iii) mandating, enjoining, directing and ordering plaintiff to immediately and permanently cease and desist from any and all re- licensing, re-distribution or use of the Software by plaintiff or plaintiff’s customers, and (iv) authorizing the defendant to immediately terminate all re-licensing, re-distribution or use of the Software by plaintiff and plaintiff’s customers through electronic means; and (c) With respect to the Second and Fourth Counterclaims, damages in an amount to be determined at trial but not less than Two Hundred Fifty Million Dollars ($250,000,000), and granting the defendant judgment therefor; and (d) With respect to the Third Counterclaim, ordering plaintiff to promptly perform accountings and to fully account to the defendant; and (e) Granting to the defendant costs, disbursements and reasonable attorney’s fees with respect to this action, together with such other and further relief as to the Court may seem just and proper.] 144. Response to Prayer for Relief: States that the Prayer for Relief states a legal conclusion as to which no response is required. To the extent a response is required, denies that OTI is entitled to the requested relief or to any relief, and avers that under § 7.a of the SLA OTI has disclaimed special, consequential, exemplary, or incidental damages, including lost profits. 19 19 of 22 FILED: ROCKLAND COUNTY CLERK 05/27/2020 08:57 AM INDEX NO. 033739/2019 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 05/27/2020 AFFIRMATIVE DEFENSES TO COUNTERCLAIMS 145. Refinitiv states the following defenses without assuming the burden of proof on such defenses that would otherwise rest on OTI: 146. OTI’s counterclaims fail to state any claim against Refinitiv on which relief can be granted. 147. OTI’s counterclaims for damages are barred in whole or in part by § 7.a of the SLA, pursuant to which OTI has disclaimed special, consequential, exemplary, or incidental damages, including lost profits. 148. OTI has waived strict compliance with the SLA, by continuing to perform its contractual obligations for several years, with full knowledge of the purported deficiencies in the periodic reports that Refinitiv was providing to OTI. 149. OTI has waived the right to terminate the SLA pursuant to the election-of-remedie