Agreement for OMXBBTM Index Related Derivative Products
Agreement for OMXBBTM Index Related Derivative Products
This agreement (“Agreement”), dated as of December ___ 2012 (“Effective Date”), is made by and between The NASDAQ OMX Group, Inc. (“NASDAQ OMX”), a Delaware Corporation (NASDAQ OMX and its affiliates are collectively referred to as the “Corporations”) whose principal offices are located at Xxx Xxxxxxx Xxxxx, 000 Xxxxxxxx, Xxx Xxxx, XX 00000 and The DMS Funds, a Pennsylvania business trust, (“Licensee”) whose principal offices are located at 2619 Leiscz’s Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxxxxxx 00000. NASDAQ OMX and Licensee are collectively referred to as the “Parties” and individually as a “Party”.
WHEREAS, NASDAQ OMX possesses certain rights to NASDAQ®, OMX®, NASDAQ OMX®, OMX Baltic BenchmarkTM Index, and OMXBBTM as trade names and registered trademarks (“Marks”);
WHEREAS, NASDAQ OMX determines the components of the OMXBB Index and the proprietary data contained therein (“Index”) and such efforts involve the considerable expenditure of time, effort, judgment and money; and
WHEREAS, NASDAQ OMX calculates, maintains, and disseminates the Index; and
WHEREAS, Licensee desires to use and NASDAQ OMX desires to license the right to use the Index as a benchmark, component of a pricing or settlement mechanism for the fund, financial instrument, derivative or other products noted in Attachment II (“Derivative Products”) to be issued, listed and/or traded by Licensee or its authorized affiliates and use the Marks solely in materials relating or referring to the Derivative Products; and
WHEREAS, Licensee is legally authorized to issue shares of the fund, or issue, enter into, write, sell, redeem, purchase and/or renew (“Issue”, “Issuing”, or “Issuance”) such Derivative Products, and each Derivative Product will be Issued as legally required under applicable law;
NOW THEREFORE, in consideration of the premises and the mutual covenants and conditions herein contained, Licensee and NASDAQ OMX, intending to be legally bound, agree as follows:
Section .
Term and Life of Agreement.
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The term (“Term”) of this Agreement for a particular Derivative Product is that stated for that Derivative Product in Attachment II. In the absence of a statement there, the Term for that Derivative Product is the period from the Effective Date until the end of one year therefrom; thereafter, the Term of this Agreement shall renew for subsequent one year terms, unless either Party gives Notice to the other at least ninety (90) days before the end of the present Term, or otherwise terminates the Term of this Agreement as provided herein.
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The life (“Life”) of this Agreement for a particular Derivative Product is that stated for that Derivative Product in Attachment II. In the absence of a statement there, the Life for that Derivative Product is until one year after the date of the expiration or cancellation of the last of that Derivative Product Issued under this Agreement.
Section .
Scope of License. NASDAQ OMX hereby grants Licensee a non-exclusive, non-transferable and non-sub-licensable (except as provided herein) license to use the Index to (i) utilize the composition of all or a significant part of the constituents in the Index; (ii) use the Index as a benchmark against which to measure investment performance; and (iii) use the Index as a component of a pricing or settlement mechanism for Derivative Products that are Issued by Licensee during the Term of this Agreement. NASDAQ OMX further grants Licensee the right to use the Marks solely in materials referring or relating to the Derivative Products during the Life of this Agreement. No license is granted to use the Index or Marks for any other use, including as part of a news service or for collateral products, without the Consent of NASDAQ OMX.
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Fees. Licensee shall pay NASDAQ OMX the fees specified in Attachment II (“Fees”), in immediately available United States funds. Where there are annual fees, such are due as of the effective date of this Agreement, or by the beginning date of any subsequent Term. Fees established as due by a particular date, are due by that date. All other Fees are due within thirty (30) days of the date established for the production of the report or date of the invoice upon which the Fee is based. Any amount not paid within thirty (30) days after its due date is subject to interest at the rate of one and one-half percent (1½ %) per month (or the highest rate permitted by law, whichever is lower) until paid, plus costs of collection, including reasonable in-house and outside attorneys' fees. Licensee shall also assume full and complete responsibility for the payment of any taxes, charges or assessments imposed on Licensee, any sub-licensee, or the Corporations by any foreign or domestic national, state, provincial, local or other government bodies, or subdivisions thereof, and any penalties or interest, (other than personal property or income taxes imposed on NASDAQ OMX) relating to this Agreement. All amounts are exclusive of value added tax (VAT). In addition, if Licensee is required by applicable law to deduct or withhold any such tax, charge or assessment from the amounts due NASDAQ OMX, then such amounts due shall be increased so that the net amount actually received by NASDAQ OMX after the deduction or withholding of any such tax, charge or assessment, will equal one hundred percent (100%) of the charges specified.
Section .
Audit Rights. During the Life of this Agreement, NASDAQ OMX shall have the right, with reasonable Notice to Licensee, during normal business hours, to audit on a Confidential basis, any relevant books and records of Licensee or its sub-licensees to ensure that the type and amount of Fees calculated or stated to be payable to NASDAQ OMX are complete and accurate. Licensee shall bear the costs of such audit (including reasonable in-house and outside accountant and attorneys' fees, if incurred) if NASDAQ OMX determines that Licensee (together with its sub-licensees) has not paid, calculated, and/or reported Fees of more than five percent (5%) of that due NASDAQ OMX under this Agreement.
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Review of Materials.
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Licensee shall submit to NASDAQ OMX for review a copy of any material submitted to any regulatory body or governmental agency, which is required in order to obtain approval for the Issuance or resale of any Derivative Product. To the extent practicable, such materials or a copy of the then best draft shall be given to NASDAQ OMX at least three (3) business days before their submittal to the body or agency (but in any event, a copy of the final document shall be sent by Notice to NASDAQ OMX no later than three (3) business days after submittal to the agency or body).
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Licensee shall give NASDAQ OMX a copy, within three (3) business days of receipt, of any notice, correspondence, process, or other material received from any regulatory body, governmental agency, or any court, during or after the approval process which indicates that any Derivative Product is or might be in violation of, or otherwise not subject to approval because of, any law, or any rule, regulation, or order of any applicable body or agency.
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For Derivative Product offerings which may be sold to the public, Licensee shall provide NASDAQ OMX with a copy of any informational or promotional materials referring or relating to such offering, including, any prospectus, offering memorandum, registration statement, circular, advertisement, or brochure at least three (3) business days prior to its initial dissemination to third parties. Licensee need not resupply a copy of any material that is substantially like material previously submitted to NASDAQ OMX and is identical as it describes the Corporations or their operations, the markets operated by the Corporations, the Index or the Marks, or the authorization, review, or endorsement of the Corporations of the Derivative Product. For all other Derivative Products, Licensee shall provide a description of such product to NASDAQ OMX within 3 business days of the initial Issue of such product, and upon reasonable request, provide NASDAQ OMX, on a Confidential basis, a copy of any materials or agreements related to such product.
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If NASDAQ OMX reasonably objects by Notice or fax transmission to Licensee to any material as it describes the Corporations or their operations, the markets operated by the Corporations, the Index or the Marks, or the authorization, review, or endorsement of the Corporations of the Derivative Product, Licensee shall alter or withdraw such material to NASDAQ OMX's satisfaction within thirty (30) days of receipt of NASDAQ OMX objection. If Licensee refuses to so alter or withdraw, NASDAQ OMX may terminate the Term of this License with regard to that Derivative Product, upon thirty (30) days Notice to Licensee, with an opportunity to cure within that period. For the avoidance of doubt, Licensee acknowledges and agrees that Licensee will not use the Marks in a manner which could reasonably be deemed to be false, misleading, disparaging to NASDAQ OMX in any way, or otherwise invalidate or impair the Marks, their reputation or value and that any such use of the Marks in such a manner shall be deemed reasonably objected to by NASDAQ OMX.
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Protection of Marks. NASDAQ OMX will use reasonable efforts to maintain and protect the value of its Index and Marks. However, nothing shall obligate NASDAQ OMX to undertake an action or settlement, or refrain from an action or settlement with respect to any particular potential, threatened, or actual infringement of its Index or Marks. Licensee shall, at NASDAQ OMX’s expense, cooperate with NASDAQ OMX in maintenance, registrations, and policing of NASDAQ OMX's rights in the Index and the Marks. Such cooperation is not a waiver of nor shall it require violation of its attorney/client, work product, or other privilege.
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Calculation of Index.
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Licensee agrees that the Index is a product of the selection, coordination, arrangement, and editing of NASDAQ OMX and that such efforts involve the considerable expenditure by NASDAQ OMX of time, effort, and judgment. As between the Parties, Licensee recognizes that NASDAQ OMX is the rightful licensor of the Index and the Marks. No license is granted to Licensee to calculate the Index. While NASDAQ OMX will use reasonable efforts based on sources deemed reliable in calculating the Index, NASDAQ OMX DOES NOT GUARANTEE THE ACCURACY OR COMPLETENESS OF THE INDEX OR OF THE DATA USED TO CALCULATE THE INDEX OR DETERMINE THE INDEX COMPONENTS, OR THE UNINTERRUPTED OR UN-DELAYED CALCULATION OR DISSEMINATION OF THE INDEX. NASDAQ OMX DOES NOT GUARANTEE THAT THE INDEX ACCURATELY REFLECTS PAST, PRESENT, OR FUTURE MARKET PERFORMANCE. NASDAQ OMX is free to pick and alter the components and method of calculation of the Index without Consent of Licensee.
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NASDAQ OMX shall give Licensee at least ninety (90) days Notice of the cessation of public calculation or dissemination of the Index. However, NASDAQ OMX shall either continue to provide Licensee with a calculation of the Index for the Life of this Agreement, or, on a Confidential basis, provide Licensee with the then applicable method of calculation of the Index. Licensee may terminate the Term of this Agreement on the date Noticed by NASDAQ OMX for the cessation or dissemination of the Index, and NASDAQ OMX shall refund Licensee a portion of the pre-paid Fees for that Term calculated according to Section 11.
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Marking of Licensee's Use.
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In any prospectus, offering memorandum, contract, or in some other conspicuous written manner, for each Derivative Product to each third party involved in such Issuance, Licensee shall insure that substantially the following language appears (in conspicuous type, such as at least eleven (11) point type and the second paragraph in bold) so as to be enforceable under applicable local law(s):
The Product(s) is not sponsored, endorsed, sold or promoted by The NASDAQ OMX Group, Inc. or its affiliates (NASDAQ OMX, with its affiliates, are referred to as the “Corporations”). The Corporations have not passed on the legality or suitability of, or the accuracy or adequacy of descriptions and disclosures relating to, the Product(s). The Corporations make no representation or warranty, express or implied to the owners of the Product(s) or any member of the public regarding the advisability of investing in securities generally or in the Product(s) particularly, or the ability of the OMXBB Index to track general stock market performance. The Corporations' only relationship to The DMS Funds (“Licensee”) is in the licensing of the NASDAQ®, OMX®, NASDAQ OMX®, OMX Baltic BenchmarkTM Index, and OMXBBTM registered trademarks and certain trade names of the Corporations and the use of the OMXBB Index which is determined, composed and calculated by NASDAQ OMX without regard to Licensee or the Product(s). NASDAQ OMX has no obligation to take the needs of the Licensee or the owners of the Product(s) into consideration in determining, composing or calculating the OMXBB Index. The Corporations are not responsible for and have not participated in the determination of the timing of, prices at, or quantities of the Product(s) to be issued or in the determination or calculation of the equation by which the Product(s) is to be converted into cash. The Corporations have no liability in connection with the administration, marketing or trading of the Product(s).
THE CORPORATIONS DO NOT GUARANTEE THE ACCURACY AND/OR UNINTERRUPTED CALCULATION OF THE OMXBB INDEX OR ANY DATA INCLUDED THEREIN. THE CORPORATIONS MAKE NO WARRANTY, EXPRESS OR IMPLIED, AS TO RESULTS TO BE OBTAINED BY LICENSEE, OWNERS OF THE PRODUCT(S), OR ANY OTHER PERSON OR ENTITY FROM THE USE OF THE OMXBB INDEX OR ANY DATA INCLUDED THEREIN. THE CORPORATIONS MAKE NO EXPRESS OR IMPLIED WARRANTIES, AND EXPRESSLY DISCLAIM ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE WITH RESPECT TO THE OMXBB INDEX OR ANY DATA INCLUDED THEREIN. WITHOUT LIMITING ANY OF THE FOREGOING, IN NO EVENT SHALL THE CORPORATIONS HAVE ANY LIABILITY FOR ANY LOST PROFITS OR SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES, EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES.
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In all other materials relating or referring to a Derivative Product, Licensee shall include at least this much of the above language, or similar formulation:
NASDAQ®, OMX®, NASDAQ OMX®, OMX Baltic BenchmarkTM Index, and OMXBBTM are registered trademarks and trade names of The NASDAQ OMX Group, Inc. (which with its affiliates is referred to as the “Corporations”) and are licensed for use by The DMS Funds. The Product(s) have not been passed on by the Corporations as to their legality or suitability. The Product(s) are not issued, endorsed, sold, or promoted by the Corporations. THE CORPORATIONS MAKE NO WARRANTIES AND BEAR NO LIABILITY WITH RESPECT TO THE PRODUCT(S).
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Sub-Licensees. Licensee may sub-license the use of the Index by the subsidiaries or affiliates listed in Attachment I. Licensee may, by Notice to NASDAQ OMX, request permission to sub-license other subsidiaries or affiliates under Licensee's control. NASDAQ OMX will not unreasonably refuse its Consent (as that term is further defined in Section 26 herein) to such a request. Licensee must also request NASDAQ OMX 's prior Consent to sub-license an entity that is a necessary participant in a Derivative Product (e.g., a corporation Issuing a corporate bond with the Licensee as underwriter and utilizing the Index as a pricing component). NASDAQ OMX, in its sole discretion, may Consent to such sub-license. The present list of sub-licensable entities is listed in Attachment I. However, Licensee shall assume all responsibility for and will hold harmless and indemnify the Corporations against any action or inaction by a sub-licensee as if such action or inaction were that of the Licensee. In order to sub-license any entity, Licensee must have obtained an agreement with the sub-licensee, which is enforceable under applicable local law and contains the provisions set forth in Attachment III, modified solely to make them enforceable under applicable local law(s). Licensee may not waive any provision of the sub-license or of this Agreement without Consent of NASDAQ OMX.
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Limited Warranty. NASDAQ OMX warrants that it will calculate the Index in accordance with its then applicable method for calculation of the Index. LICENSEE'S SOLE REMEDY IN EVENT OF A FAILURE OF THIS WARRANTY IS TO HAVE NASDAQ OMX RECALCULATE THE INDEX FOR THE AFFECTED TIMES ACCORDING TO NASDAQ OMX’S APPLICABLE METHOD FOR CALCULATION OF THE INDEX AT THE AFFECTED TIME(S). IN THE EVENT THAT NASDAQ OMX IS UNABLE OR UNWILLING TO RECALCULATE THE INDEX FOR AN AFFECTED PERIOD OF OVER SEVEN CONSECUTIVE BUSINESS DAYS, NASDAQ OMX WILL REFUND TO THE LICENSEE THE PORTION OF FEES CALCULATED IN SECTION 11. THE CORPORATIONS DO NOT REPRESENT OR WARRANT THAT THE INDEX OR THE MEANS BY WHICH NASDAQ OMX CALCULATES THE INDEX IS FREE OF DEFECTS. THE CORPORATIONS DO NOT REPRESENT OR WARRANT THE TIMELINESS, SEQUENCE, ACCURACY OR COMPLETENESS OF THE CALCULATION OF THE INDEX, OR THAT THE INDEX WILL MEET LICENSEE'S REQUIREMENTS. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL CONDITIONS OR WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED CONDITIONS OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE, ANY IMPLIED WARRANTY ARISING FROM TRADE USAGE, COURSE OF DEALING, OR COURSE OF PERFORMANCE, AND OF ANY OTHER WARRANTY OR OBLIGATION ON THE PART OF THE CORPORATIONS.
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Refunds. Where this Section is cross-referenced, the portion of Fees refunded will be calculated as follows. If an applicable Fee was paid for the right to Issue a Derivative Product during a period of time, then the amount of the Fee to be refunded shall be the amount of the Fee times the number of days remaining in the period for which the affected Derivative Product(s) were not permitted under this Agreement to be Issued, divided by the total number of days in the period. If a Fee was paid which related to Issuance of an entire Derivative Product, then the amount of the Fee to be refunded shall be the amount of the Fee actually paid which related to that portion of that Derivative Product that was affected.
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Indemnification.
.1.
NASDAQ OMX has registered the Marks in the United States, Europe, and certain other countries. In the United States, NASDAQ OMX warrants and represents that it has the right to grant the rights to use the Index and Marks specified in this Agreement and that the license shall not infringe the title or any patent, copyright, trade secret, trademark, service xxxx, or other proprietary (“Intellectual Property”) right of any third party. NASDAQ OMX will as its sole and entire liability and obligation to Licensee (and any third party or sub-licensee): defend, indemnify, and hold harmless (“Indemnify”) Licensee (including its and its sub-licensee's officers, directors, employees, and agents) against any and all claims, demands, actions, suits, or proceedings (“Disputes”) asserting that the Index or any Xxxx infringes any Intellectual Property right of any third party and NASDAQ OMX will pay the third party the total amount of any award, judgment, or settlement (including all damages however designated) awarded to such third party resulting from the Dispute to the extent caused by failure of NASDAQ OMX's warranty.
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Licensee agrees to Indemnify Corporations (including its and their officers, directors, employees, and agents) from any and all Disputes as the result of Licensee (including any sub-licensee) failure to fulfill its obligations under this Agreement, any Licensee (including any sub-licensee) use of the Index or any Xxxx that is not expressly permitted by this Agreement, claims relating to or arising from a Derivative Product, or any other matter relating or arising out of this Agreement except to the extent directly caused by actions of the Corporations and will pay the third party the total amount of any award, judgment, or settlement (including all damages however designated) awarded such third party resulting from such Dispute except to the extent directly caused by actions of the Corporations.
.3.
The right to be Indemnified shall apply to a dispute only if:
(a)
the Party seeking indemnification promptly, and within no more than five (5) calendar days of its receipt of notice of such Dispute, gives Notice to the other Party of the Dispute;
(b)
the Party seeking to be Indemnified cooperates fully with the other in the defense thereof (such cooperation does not require and is without waiver by either Party of attorney/client, work product, or other privilege);
(c)
the Indemnifying Party has sole control of the defense and all related settlement negotiations.
.4.
In the event of a Dispute involving infringement or if in NASDAQ OMX's opinion such a Dispute is likely to occur, or if the use of the Index or Xxxx is enjoined, NASDAQ OMX may, at its sole option and expense, procure for Licensee the right to continue using the Index or Xxxx, replace or modify the Index or Xxxx to become non-infringing, or terminate the Term of the Agreement (with a refund of Fees for that Term calculated in Section 11).
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Limitation of Liability. EXCEPT FOR LIABILITY RESULTING FROM THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF THE CORPORATIONS AND EXCEPT TO THE EXTENT STATED IN SECTIONS 12, OR 16, THE TOTAL AMOUNT OF THE CORPORATIONS' LIABILITY FOR CLAIMS OR LOSSES BASED UPON, ARISING OUT OF, RESULTING FROM OR IN ANY WAY CONNECTED WITH THE PERFORMANCE OR BREACH OF THIS AGREEMENT, WHETHER BASED UPON CONTRACT, TORT, WARRANTY, OR OTHERWISE, SHALL IN NO CASE EXCEED THE GREATER OF ONE YEAR'S FEES UNDER THIS AGREEMENT OR $20,000. THE ESSENTIAL PURPOSE OF THIS PROVISION IS TO LIMIT THE CORPORATIONS' LIABILITY UNDER THIS AGREEMENT. BOTH PARTIES UNDERSTAND AND AGREE THAT THE TERMS OF THIS AGREEMENT REFLECT A NEGOTIATED AND REASONABLE ALLOCATION OF RISK AND LIMITATIONS GIVEN COMMERCIAL REALITIES OF THE TRANSACTION.
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Consequential Damages. EXCEPT AS NOTED IN SECTION 12 AND EXCEPT FOR A BREACH OF SECTION 16, THE CORPORATIONS SHALL NOT BE LIABLE TO THE LICENSEE, ANY SUB-LICENSEE, OR ANY OTHER PERSON FOR ANY LOST PROFITS, ANTICIPATED PROFITS, LOSS BY REASON OF SHUTDOWN IN OPERATION OR INCREASED EXPENSES OF OPERATION, LOSS OF GOODWILL, FOR LOSS CAUSED IN SALE OF, PURCHASE OF, OR BY THE DERIVATIVE PRODUCT, CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR SPECIAL DAMAGES, EVEN IF THE CORPORATIONS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
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Force Majeure. Notwithstanding any other term or condition of this Agreement, neither NASDAQ OMX nor Licensee shall be obligated to perform or observe its obligations undertaken in this Agreement if prevented or hindered from doing so by any circumstances beyond its control, including, without limitation, acts of God, perils of the sea and air, fire, flood, drought, war, explosion, sabotage, terrorism, embargo, civil commotion, acts of any governmental body, supplier delays, communications, or power failure, equipment or software malfunction, and labor disputes.
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Confidentiality. Each Party shall protect information declared by the other Party to be Proprietary or Confidential. In fulfilling its confidentiality obligations, each Party shall use a reasonable standard of care, at least the same standard of care that it uses to protect its own similar confidential or proprietary information. All proprietary or confidential information must be conspicuously marked Proprietary or Confidential. Information revealed orally becomes subject to protection when related to marked written materials or when designated as Proprietary or Confidential as long as the designation is confirmed in writing within ten (10) calendar days of the designation. Either Party (including the Corporations) may disclose information to the extent demanded by a court or a government agency with regulatory jurisdiction over the Party (including the Corporations) after Notice is given to the other Party, if practical, or in the Party's regulatory responsibilities over its members, associated persons, issuers, or others under the Exchange Act of 1934, or similar applicable law. The obligation of non-disclosure shall not extend to information which is: (a) already in the possession of the Party (including the Corporations) while not under a duty of non-disclosure; (b) generally known or revealed to the public or within the applicable industry; (c) revealed to the Party (including the Corporations) by a third party--unless the Party (including the Corporations) knows that such third party is under a duty of non-disclosure; or (d) developed by a Party (including the Corporations) independently of the disclosure. Each copy, including its storage media, shall be marked with all notices that appear on the original. The obligation of non-disclosure shall survive for a period of three (3) years from the date of disclosure. For the avoidance of doubt, the terms of this Agreement shall be considered Confidential Information.
Section .
Use Of Trade Names and Marks.
17.1.
Except as provided hereunder or in another written agreement between the Parties, Licensee shall not use the names “The NASDAQ OMX Group, Inc.”, “The Nasdaq Stock Market”, or “NASDAQ OMX” nor any other trade name, trademark, service xxxx, copyright, or patent of the Corporations, registered or unregistered, in any advertising or promotional media of Licensee without the prior review and written consent of NASDAQ OMX.
17.2.
NASDAQ OMX may disclose as part of its promotional and disclosure activities the fact that Licensee has licensed use of the Index from NASDAQ OMX and Licensee authorizes NASDAQ OMX to use Licensee’s corporate name and/or logo in such communication materials. Other than the rights granted here, NASDAQ OMX acknowledges that it has no other rights in Licensee’s corporate logos, trade names, and trade/service marks.
Section .
Survival Of Provisions. The terms of this Agreement shall apply to any rights that survive through the Life of this Agreement or the cancellation, termination, or rescission of this Agreement, namely—all warranties, indemnification and confidentiality obligations, and the Non-Use of NASDAQ OMX Names and Marks.
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Termination.
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Either Party may elect, without prejudice to any other rights or remedies, to terminate the Term this Agreement, upon thirty (30) days notice with an opportunity to cure within the stated period, if the other Party has failed to perform any material obligation under this Agreement.
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Either Party may elect, without prejudice to any other rights or remedies, to terminate the Term of this Agreement without notice, if a petition in bankruptcy has been filed by or against the other Party or the other Party has made an assignment for the benefit of creditors, or a receiver has been appointed for the other Party or any substantial portion of the other Party's property, or the other Party's or its officers or directors takes action approving or makes an application for any of the above.
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Licensee represents and warrants that at each time there is any Issuance of a Derivative Product, that it and each of its sub-licensees and involved entities shall have all applicable authority to Issue such Derivative Products and that each such Derivative Product is Issued strictly in accordance with all applicable legal requirements. NASDAQ OMX may elect, without prejudice to any other rights or remedies, to terminate the Term of this Agreement with reasonable notice with an opportunity to cure within such period, if NASDAQ OMX reasonably believes that any Derivative Product is illegal or has been illegally Issued, or if the Licensee or any sub-licensee or any involved entity does not have the power to Issue any of the Derivative Products which it has or is attempting to Issue.
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Either Party may elect, without prejudice to any other rights or remedies, to terminate the Term of this Agreement with thirty (30) days Notice (or in the event of an emergency, with such Notice as is practicable), if either Party's ability to perform its obligations under this Agreement is substantially impaired by any new statute, or new rule, regulation, order, opinion, judgment, or injunction of the Securities and Exchange Commission, a court, an arbitration panel, or governmental body or Self-Regulatory Organization with jurisdiction over the Party.
Section .
Subsequent Parties; Limited Relationship. The Agreement shall inure to the benefit of and shall be binding upon the Parties hereto and their respective permitted successors, or assigns. Licensee shall not assign this Agreement (including by operation of law) without the written consent of NASDAQ OMX. Nothing in the Agreement, express or implied, is intended to or shall (a) confer on any person other than the Parties hereto (and any of the Corporations), or their respective permitted successors or assigns, any rights to remedies under or by reason of this Agreement; (b) constitute the Parties hereto partners or participants in a joint venture; or (c) appoint one Party the agent of the other.
Section .
Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all prior negotiations, communications, writings, and understandings.
Section .
Governing Law. This Agreement shall be deemed to have been made in the United States, in the State of New York and shall be construed and enforced in accordance with, and the laws of the State of New York hereof shall govern the validity and performance, without reference to principles of conflicts of laws thereof. Licensee hereby consents to submit to the jurisdiction of the courts for or in the City and State of New York in connection with any action or proceeding instituted relating to this Agreement.
Section .
Authorization. This Agreement shall not be binding upon a Party unless executed by an authorized officer of that Party. Licensee, NASDAQ OMX, and the persons executing this Agreement represent that such persons are duly authorized by all necessary and appropriate corporate or other action to execute the Agreement on behalf of NASDAQ OMX or Licensee.
Section .
Headings. Section Headings are included for convenience only and are not to be used to construe or interpret this Attachment.
Section .
Notices. All notices, invoices, and other communications required to be given in writing under this Agreement shall be directed to the persons identified in subsections (a) and (b) below and shall be deemed to have been duly given upon actual receipt by the Parties, or upon constructive receipt if sent by certified mail, return receipt requested (as of the date of signature or of first refusal of the return receipt), or by any other delivery method which obtains a signed delivery receipt, addressed to the person named below to the following addresses or to such other address as any Party hereto shall hereafter specify by written notice to the other Party or Parties hereto:
(a)
if to Licensee:
Senior Business Contact
Name:
Xxxxx X. Xxxxx
Title:
Chairman
Address:
The DMS Funds
2619 Leiscz’s Xxxxxx Xxxx, Xxxxxxxx XX 00000
Telephone #:
000 000-0000
E-mail:
xxxxxx@xxxxxxxxxxx.xxx
(b)
if to NASDAQ OMX:
Name:
Xxxx X. Xxxxxx
Title:
Executive Vice President
Address:
The NASDAQ OMX Group, Inc.
0000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Telephone #:
000.000.0000
With, in the event of notices of Dispute or default, a required copy to:
The NASDAQ OMX Group, Inc.
Office of the General Counsel
0000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: NASDAQ OMX Contracts Group
Section .
Amendment, Waiver, and Severability. Except as otherwise provided herein, no provision of this Agreement may be amended, modified, or waived, unless by an instrument in writing executed by a duly authorized officer of the Party against whom enforcement of such amendment, modification, or waiver is sought (“Consent”).
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No failure on the part of NASDAQ OMX or Licensee to exercise, no delay in exercising, and no course of dealing with respect to any right, power, or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power, or privilege preclude any other or further exercise thereof or the exercise of any other right, power, or privilege under this Agreement.
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If any of the provisions of this Agreement, or application thereof to any person or circumstance, shall to any extent be held invalid or unenforceable, the remainder of this Agreement, or the application of such terms or provisions to persons or circumstances other than those as to which they are held invalid or unenforceable, shall not be affected thereby and each such term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
Section .
Counterparts. The Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and such counterparts together shall constitute but one and the same instrument.
Section .
Schedule of Attachments. The following Attachments are referred to in this Agreement and are incorporated as if set forth in full herein. In the event of a conflict between the Attachments and this Agreement, the Attachments shall govern:
Attachment I
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Sub-Licensees
Attachment II
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Definition of Derivative Product(s) and Fees
Attachment III
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Sub-License Agreement
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their duly authorized officers.
The DMS Funds (“Licensee”)
By:
__________________________________________
Name:
__Peter R. Kohli_____________________________
Title:
__Chairman_________________________________
AUTHORIZED OFFICER
The NASDAQ OMX Group, Inc. (NASDAQ OMX)
By:
__________________________________________
Name:
Xxxx X. Xxxxxx
Title:
Executive Vice President
2
ATTACHMENT I
Permitted Sub-Licensees of The DMS Funds:
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Series funds that may be established by The DMS Funds that utilize a licensed Index
ATTACHMENT II
DEFINITION OF DERIVATIVE PRODUCTS AND FEES
In any country or geographic region in which NASDAQ OMX may own, operate, or be affiliated with an organized trading market venue on which the Derivative Product would be eligible to be listed, such NASDAQ OMX trading market venue shall be considered as a trading venue for the Derivative Product before the Derivative Product may be listed or traded on another exchange or market.
Description of Derivative Product(s)
The Derivative Product is a U.S. registered open end mutual fund that seeks to replicate the OMX Baltic Benchmark Index (“the Fund”).
ISIN: Not available
Start Date: Second Quarter of 2013
Fees
Licensee shall pay to NASDAQ OMX an annual license Fee of the greater of $3,000 (the “Annual Minimum Fee”) or five basis points (0.05%) of the average daily net assets under management of the Fund, calculated and paid annually in accordance with the following:
1.
At the end of each calendar year (ending December 31), Licensee shall calculate the average daily net asset value of the Fund during such year by (i) adding together the daily net asset values of the Fund, as determined by the Administrator of the Fund on each calendar day during the year, and then (ii) dividing such sum by the number of days in such calendar year. The resulting average daily net asset value is then multiplied by 0.0005, resulting in the yearly payment to be paid to NASDAQ OMX.
Within fifteen (15) calendar days after the end of each calendar year, Licensee shall file a report with NASDAQ OMX setting forth the license Fee calculations as specified in (1) above. Upon receipt of such calculations, NASDAQ OMX will determine whether Licensee shall pay the Annual Minimum Fee or the Fee calculated based off the basis points as specified in (2) for that calendar year and provide Licensee with an invoice for the relevant yearly Fee payment.
ATTACHMENT III
Sub-License Agreement
This agreement (“Agreement”), is made by and between [Insert Name of Licensee] (“Licensee”), whose principal offices are located at ____________________________________
and who is a Licensee of The NASDAQ OMX Group, Inc. (“NASDAQ OMX”), whose principal offices are located Xxx Xxxxxxx Xxxxx, 000 Xxxxxxxx, Xxx Xxxx, XX 00000 and __________________________ (“Sub-Licensee”), whose principal offices are located at ____________________________________________.
WHEREAS, NASDAQ OMX possesses certain rights to NASDAQ®, OMX®, NASDAQ OMX®, OMX Baltic BenchmarkTM Index, and OMXBBTM as trade names and registered trademarks (“Marks”);
WHEREAS, NASDAQ OMX determines the components of the OMXBB Index and the proprietary data contained therein (“Index”) and such efforts involve the considerable expenditure of time, effort, judgment and money; and
WHEREAS, NASDAQ OMX calculates, maintains, and disseminates the Index; and
WHEREAS, NASDAQ OMX and Licensee have previously entered into a separate agreement concerning use of the Index and Marks in relating to certain Derivative Products (“License Agreement”); and
WHEREAS, Sub-Licensee is either: (1) an affiliate or subsidiary under the control of Licensee which desires to use the Index as a component of a pricing or settlement mechanism for the Derivative Products; or (2) a necessary participant in a Derivative Product (e.g., a corporation Issuing a corporate bond with the Licensee as underwriter and utilizing the Index as a pricing component) Issued by Licensee or an authorized Sub-Licensee affiliate or subsidiary under the control of Licensee; and
WHEREAS, Licensee is legally authorized to issue shares of the fund, or issue, enter into, write, sell, purchase and/or renew (“Issue”, “Issuing”, or “Issuance”) such Derivative Products, and each Derivative Products will be Issued as legally required under applicable law;
NOW THEREFORE, in consideration of the premises and the mutual covenants and conditions herein, Licensee and Sub-Licensee, intending to be legally bound, agree as follows:
Section .
Scope of Sub-License. Sub-Licensee hereby acknowledges that it has received, reviewed, and understands the License Agreement entered into between Licensee and NASDAQ OMX relating to use of the Index and Marks. Except as noted herein, Sub-Licensee hereby agrees to obligate itself to all the terms, conditions, and obligations of that License Agreement as if Sub-Licensee were the Licensee. Sub-Licensee agrees that NASDAQ OMX may exercise any rights against Sub-Licensee (including, for example, limitation of liability, indemnification, or audit rights) NASDAQ OMX has against the Licensee to the same extent as if Sub-Licensee were directly contracting with NASDAQ OMX. Sub-Licensee agrees it will not assert against NASDAQ OMX any defense, claim, or right Sub-Licensee may have against Licensee, including those of set-off, abatement, counter-claim, contribution, or indemnification.
Section .
No Further Sub-License. All references in the License Agreement to sub-licenses and sub-licensees, including any right of sub-licensee to grant further sub-licenses or to permit further sub-licensees are not applicable to this Sub-Licensee Agreement and are as if deleted from the License Agreement.
Section .
Term. The Term of this Sub-License Agreement automatically terminates, without Notice, if the Term of the License Agreement terminates for any reason.
Section .
General Provisions. The provisions of the License Agreement govern this Sub-License Agreement. All terms and definitions used in this Sub-License Agreement, unless otherwise indicated, have the same meanings and definitions as in the License Agreement. LICENSEE HAS NO AUTHORITY TO WAIVE, RENEGOTIATE, OR FORGIVE ANY PROVISION OF THE LICENSE AGREEMENT AS IT APPLIES TO SUB-LICENSEE.
IN WITNESS WHEREOF, the Parties hereto have caused this Sub-License Agreement to be executed by their duly authorized officers.
[Insert Name of Licensee] (“Licensee”)
By:
______________________________________________
Name:
______________________________________________
Title:
______________________________________________
AUTHORIZED OFFICER
Date:
______________________________________________
[Insert Name of Sub-Licensee] (“Sub-Licensee”)
By:
______________________________________________
Name: ______________________________________________
Title:
______________________________________________
AUTHORIZED OFFICER
Date:
______________________________________________
