SUBLICENSE AGREEMENT
Exhibit (h)(4)
This Sublicense Agreement (“AGREEMENT”) is entered into as of by and between Invesco PowerShares Capital Management, LLC, a Delaware corporation with offices at 000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxx, XX 00000 (“POWERSHARES”), and PowerShares Exchange-Traded Fund Trust II (“LICENSEE”).
WHEREAS, PowerShares, through licenses with index providers (each an “Index Provider”), has the right to license the Indexes and Marks listed in Exhibit A, for use in connection with the financial products listed in Exhibit A (“PRODUCTS”);
WHEREAS, Licensee desires to use the Indexes and Marks in connection with the distribution of Products and PowerShares is willing to grant Licensee a license for such use.
NOW, THEREFORE, in consideration of the premises and the mutual promises hereinafter set forth, and for good and valuable consideration set forth in the Agreement, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
1. GRANT OF LICENSE. PowerShares grants Licensee a non-exclusive, non-transferrable right and license to use and refer to the Indexes and Marks in connection with the creation, issuance, trading and marketing of Products pursuant to the terms and conditions of this Agreement.
2. OWNERSHIP AND VALIDITY. Licensee acknowledges Index Providers’ ownership of the entire right, title and interest in and to the Indexes and Marks and Licensee’s use shall inure to the sole benefit of the applicable Index Provider.
3. QUALITY CONTROL. PowerShares shall have the right to monitor the quality of the Products offered by Licensee pursuant to this Agreement. Licensee agrees that the nature and quality of the Products using the Indexes and Marks shall meet or exceed the standards set by PowerShares or Index Provider. Licensee’s failure to conform to such quality controls may result in the termination of this Agreement.
Licensee shall include, unless a substitute is approved by PowerShares, in which case such substitute shall be included, the following notice in all informational materials relating to the licensed Indexes and Marks, and agrees upon request to furnish a copy (copies) thereof to PowerShares:
The [Specification of applicable Index] Indexes ( the “Indexes”) are trademarks of [Specification of applicable Index Provider] (the “Index Provider”) which are licensed for use by [Licensee] in connection with [specification of applicable Products] (the “Products”). The Products are not sponsored or endorsed by the Index Provider and the Index Provider makes no warranty or representation as to the accuracy and/or
completeness of the Indexes or the results to be obtained by any person from the use of the Indexes or the trading of the Products.
4. TERM. This Agreement shall become effective upon signatures of both parties and remain in effect unless terminated by either party as provided herein.
5. TERMINATION. Licensee may terminate this Agreement upon sixty (60) days prior written notice. PowerShares may terminate this Agreement upon sixty (60) days prior written notice or immediately upon Licensee’s breach of this Agreement.
6. FEES. Licensee shall pay PowerShares a license fee for each product as set forth in Exhibit A. The fee shall be equal to or less than the license cost paid by PowerShares to the Index Provider. The fee shall be paid based on the schedule as set forth below:
Licensee shall calculate the fees payable to PowerShares under this Agreement on a calendar quarterly basis and remit to PowerShares the amount due within thirty (30) days following the close of each quarter, with a statement of account signed by a duly authorized officer. Each payment shall be accompanied by a full accounting of the basis for the calculation of the fee. Licensee shall keep accurate books and records of such account as are necessary to document all amounts due to PowerShares hereunder and PowerShares, or its authorized agent, shall have the right at its own expense and not more frequently than twice a year, to examine such books of account and records to verify the payment due hereunder, provided, however, if PowerShares determines that it has been underpaid by five percent (5%) or more with respect to the payments being audited, the cost of the audit shall be paid by Licensee. If such examination discloses an overpayment or underpayment of the amounts due hereunder, an adjusting payment shall be made within thirty (30) business days to correct such overpayment or underpayment. Such audit right shall continue for twelve (12) months following termination of this Agreement.
7. ENTIRE AGREEMENT. This Agreement sets forth the entire Agreement and the understanding between the parties. No modification or amendment of this Agreement shall be valid or binding unless made in writing and signed on behalf of the parties by their duly authorized officers or representatives.
8. EXECUTION. This Agreement may be executed simultaneously with any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
9. GENERAL PROVISIONS.
(a) A party may not assign this Agreement and/or any of its rights and/or obligations hereunder, except to an affiliate or successor in interest, without the prior written consent of the other party, and any attempted assignment by a party requiring the consent of the other party which is made by the assigning party without the other party’s prior consent shall be null and void.
(b) No change in, addition to, or waiver of any of the provisions of this Agreement shall be binding upon either Party unless in writing signed by an authorized representative of such party. No waiver by either Party of any breach by the other party of any of the provisions of this Agreement shall be construed as a waiver of that or any other provision on any other occasion.
(c) This Agreement shall be governed by, and construed and interpreted in accordance with, the laws of the State of Illinois, without regard to its conflict of law provisions.
(d) In the event any one or more of the provisions of this Agreement shall be determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall remain in effect and the Agreement shall be read as though the offending provision had not been written or as the provision shall be determined by such court to be read.
IN WITNESS WHEREOF, PowerShares and Licensee have caused this Agreement to be duly executed on their behalf in the manner legally binding upon them.
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