(h)(13) YOUR COPY
XXXXXXX EQUITY INDEXES
RESEARCH LICENSE AGREEMENT
This License Agreement (hereinafter the "Agreement") is entered into this 3rd
day of MARCH 1999 (hereinafter the "Effective Date"), by and between XXXXX
XXXXXXX COMPANY (hereinafter "FRC"), a Washington corporation with offices at
000 X Xxxxxx, Xxxxxx, Xxxxxxxxxx 00000 and XXXXXXX XXXXXX INVESTMENTS, INC., a
corporation of DELAWARE, having its place of business at 000 XXXX XXXXXX, XXX
XXXX, XX 00000-0000 (hereinafter "USER").
The parties agree as follows:
1.0 DEFINITIONS:
1.1 "The Xxxxxxx Indexes" shall mean the U.S. equity security indexes set forth
in Exhibit A and the associated Performance Values.
1.2 "Xxxxxxx Xxxx" shall mean the trademark or service xxxx set forth in Exhibit
A for the indicated Xxxxxxx Index.
1.3 "Confidential Information" shall mean the information and know how of FRC
that is the subject of Section 15.1.
1.4 "OnLine Agreement" shall mean FRC's OnLine Agreement for Xxxxxxx OnLine
Product Support Service.
1.5 "Subscription Level I" shall include the following for the Xxxxxxx Indexes:
i) Economic sector weights;
ii) Total returns by economic sector;
iii) Selected Xxxxxxx Indexes characteristics; and
iv) Other selected data in the Xxxxxxx Indexes Book.
1.6 "Subscription Level II" shall include the same items as provided for
Subscription Level I plus a monthly list of constituent holdings for the Xxxxxxx
Indexes.
1.7 "Subscription Level III" shall include the same items as provided for
Subscription Level II plus a daily list of changes of the constituent holdings
for the Xxxxxxx Index(es).
1.8 "Subscription Level IV" shall include the same items as Subscription Level I
plus a daily list of the constituent holdings for the Xxxxxxx Index(es).
1.9 "Performance Value" shall mean the following at the aggregate index level:
the percentage total return or total return index value of the Xxxxxxx Index.
2.0 LICENSE GRANT:
2.1 Subject to Section 7.0 below, FRC grants USER a non-exclusive personal
license to internally use the Xxxxxxx Indexes only for research purposes.
2.2 FRC reserves the right, at any time, for any reason and without prior
notice, to alter, amend, terminate or in any way change the Xxxxxxx Indexes;
provided, however that FRC shall notify USER of any such alteration, amendment,
change or termination promptly and in accordance with FRC's then current
practices for notification of other licensees of the Xxxxxxx Indexes.
3.0 ACCEPTANCE AND FRC SUPPORT:
3.1 FRC agrees to supply directly, or through other authorized distributors, the
information and materials set forth above for the Subscription Level designated
in Exhibit A, as well as the rules as to the make-up of the Xxxxxxx Indexes.
Such information and materials, including the rules, shall be used in accordance
with the terms and conditions of this Agreement.
3.2 The reports referenced in Section 1.5(i)-(iii) and 1.6 shall be provided on
or before the tenth business day of the subsequent month.
3.3 USER shall be deemed to have accepted the information and materials supplied
pursuant to Section 3.1 upon delivery.
3.4 If FRC discovers what it determines, in its sole discretion, to be a
material error in the Xxxxxxx Indexes it will attempt to correct such error in
accordance with its then current practices for index amendment.
4.0 PRICE AND PAYMENT:
4.1 USER agrees to pay FRC or its invoicing subsidiary the amounts, and within
the times stated in this Section 4.0 and Exhibit A, for the Subscription Level
designated in Exhibit A.
4.2 Payments shall be due thirty (30) days after receipt of invoice.
4.3 Prices stated are exclusive of any and all federal, state or other
governmental taxes, duties, licenses, fees, excises or tariffs now or
hereinafter arising out of, or imposed in connection with the transactions
covered by this Agreement, including without means of limitation, USER's use of
the Xxxxxxx Indexes. Such charges shall be paid by USER. FRC, however, shall be
responsible for all taxes based upon its net income or personal property
ownership.
4.4 FRC may change its prices at anytime upon at least ninety (90) days prior
notice.
4.5 USER agrees to make such payments to the address on the above-referenced
invoice(s) or to such address or account as FRC may specify from time to time.
USER agrees to specify the FRC or invoicing subsidiary invoice number, if any,
with respect to which payment is made.
4.6 Payment made to FRC by USER by directing commissions to Xxxxx Xxxxxxx
Securities shall be credited at Xxxxx Xxxxxxx Securities' current applicable
rate at the time payment is received.
4.7 Provided USER and FRC have entered into an OnLine Agreement covering at
least one of the Xxxxxxx Indexes covered under this Agreement and USER has at
all times complied with the terms and conditions of such OnLine Agreement and
this Agreement, then FRC shall grant USER a credit equal to ____ hours of
Prepaid Hours for the then current term of that OnLine Agreement. The credit
shall be applicable to fees owed under that OnLine Agreement and may only be
used pursuant to the terms and conditions of that OnLine Agreement.
5.0 FRC WARRANTIES:
5.1 FRC warrants that: (a) it has sufficient right, title, and interest in the
Xxxxxxx Indexes to enter into this Agreement; (b) the Xxxxxxx Indexes do not
infringe upon any U.S. patent or U.S. copyright; and (c) the Xxxxxxx Indexes do
not violate the trade secret rights of any third party.
5.2 FRC agrees to indemnify, hold harmless and defend USER from and against any
and all damages, costs, and expenses, including reasonable attorney fees,
incurred in connection with a claim which, if true, would constitute a breach of
the foregoing warranties (hereinafter "Infringement Claims"); provided FRC is
notified promptly in writing of the Infringement Claim and has sole control over
its defense or settlement, and USER provides reasonable assistance in the
defense of the same.
5.3 Following notice of an Infringement Claim, FRC may, at its expense, without
obligation to do so, procure for USER the right to continue to use the alleged
infringing Xxxxxxx Indexes or, without obligation to do so, may replace or
modify the Xxxxxxx Indexes to make it non-infringing.
5.4 FRC shall have no liability for any Infringement Claim based on USER's: i)
use of any Xxxxxxx Index after FRC's notice that USER should cease use of such
Xxxxxxx Index, or ii) use of any release of a Xxxxxxx Index other than the
latest release of that Xxxxxxx Index. For all Infringement Claims arising under
Section 5.4, USER agrees to indemnify and hold FRC harmless from and against all
damages, costs and expenses, including reasonable attorney's fees.
5.5 FRC's obligations to USER for any Infringement Claims made against USER
shall only extend to those arising from the use of a Xxxxxxx Index inside the
geographical boundaries of the United States, Canada, Japan, Australia and the
EC and USER releases and discharges FRC from any and all other Infringement
Claims.
6.0 OWNERSHIP:
6.1 This Agreement is a license and not a sale of the Xxxxxxx Indexes.
6.2 All rights not expressly granted are reserved by FRC including, without
means of limitation, the right to alter, modify, adapt, translate or create
derivative works.
6.3 USER agrees its use of the Xxxxxxx Indexes shall not directly or indirectly
create in or for USER any right, title or interest in the Xxxxxxx Indexes.
7.0 LIMITATIONS ON USE OF XXXXXXX INDEXES:
7.1 USER will not, without the prior written consent of FRC, transfer, loan,
sell, lease, rent, assign, disclose, publish, or copy in whole or in part: (a)
the Xxxxxxx Indexes; (b) the list of constituents and available shares held for
any Xxxxxxx Index; (c) the rules as to the make-up of any Xxxxxxx Index; or (d)
any supporting documentation or other data supplied by FRC including, without
means of limitation, economic sector weights, total returns by sector, and
Xxxxxxx Index characteristics at the index or security level. The above
limitation regarding disclosure and publication is not applicable to the Xxxxxxx
Indexes' Performance Values; provided, USER gives FRC proper attribution
pursuant to Section 14.0.
7.2 USER shall not use the Xxxxxxx Indexes or any part thereof in any fashion
that may infringe any copyrights or other proprietary interests FRC or any third
party may have therein.
7.3 Notwithstanding anything to the contrary herein, USER shall only use the
Xxxxxxx Indexes inside the geographical boundaries of the country(ies) listed in
Exhibit A.
7.4 USER shall only use the Xxxxxxx Indexes for the operation of USER's
business.
7.5 USER shall not use the Xxxxxxx Indexes for the passive management of assets,
e.g., index funds.
7.6 USER shall not use the Xxxxxxx Indexes as part of any timesharing service,
service bureau or similar arrangement.
7.7 The Xxxxxxx Indexes may only be used in conjunction with a single
microcomputer (i.e.. with a single CPU) permitting access by one individual user
at a time and shall not be made available to multiple users at any one time by
any means.
8.0 DISCLAIMER OF WARRANTIES AND RISK OF PERFORMANCE:
8.1 FRC MAKES NO WARRANTIES, EXPRESS OR IMPLIED, OTHER THAN THE EXPRESS
WARRANTIES CONTAINED IN SECTION 5.0 OF THE AGREEMENT. ANY AND ALL OTHER
WARRANTIES OF ANY KIND WHATSOEVER, INCLUDING, WITHOUT MEANS OF LIMITATION, THOSE
FOR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE EXPRESSLY
DISCLAIMED WITH RESPECT TO THE XXXXXXX INDEXES OR ANY DATA INCLUDED THEREIN OR
ANY SECURITY (OR COMBINATION THEREOF) COMPRISING THE XXXXXXX INDEXES. FRC MAKES
NO REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE ACCURACY, COMPLETENESS,
RELIABILITY, OR OTHERWISE OF THE XXXXXXX INDEXES OR ANY DATA INCLUDED THEREIN.
FRC does not warrant, guarantee or make any representations regarding the use,
or the results of use, of the Xxxxxxx Indexes or any data included therein or
any security (or combination thereof) comprising the Xxxxxxx Indexes. The entire
risk as to such use, results of use and the performance of the Xxxxxxx Indexes
and the above-referenced data and securities are assumed by USER.
8.2 FRC will obtain data from sources it believes to be reliable, but the
accuracy and completeness of the Xxxxxxx Indexes and the data included therein
are not guaranteed and they are supplied on an "AS IS" basis.
8.3 FRC'S PUBLICATION OF THE XXXXXXX INDEXES IN NO WAY SUGGESTS OR IMPLIES AN
OPINION BY FRC AS TO THE ATTRACTIVENESS OF INVESTMENT IN ANY OR ALL OF THE
SECURITIES UPON WHICH THE XXXXXXX INDEXES ARE BASED.
9.0 TERM:
9.1 Provided this Agreement has been properly executed by an authorized officer
of USER and an authorized officer of FRC, the term of this Agreement shall run
from the Effective Date until the earlier of:
a) termination in accordance with the terms and conditions of this
Agreement; or
b) one (1) year from the Effective Date.
9.2 Provided that this Agreement has not been terminated by either party prior
to the expiration of its term, as extended, and USER has complied with all the
terms and conditions of this Agreement, then each year upon expiration of its
then current term the Agreement shall automatically extend for an additional one
(1) year period unless either party gives the other at least ninety (90) days
prior written notice of its intention to not so extend the term of the
Agreement.
10.0 DEFAULT AND TERMINATION:
10.1 After the first year of this Agreement either party may terminate this
Agreement without cause upon at least ninety (90) days prior notice.
10.2 This Agreement may terminate if any of the following events of default
occurs:
a) if either party materially fails to perform or comply with this
Agreement or any provision hereof;
b) if USER fails to strictly comply with the provisions of Sections 15.0
and 16.0;
c) if USER becomes insolvent or admits in writing its inability to pay its
debts as they mature, or makes an assignment for the benefit of
creditors;
d) if a petition under any foreign, state or United States bankruptcy act,
receivership statute, or the like, as they now exist, or as they may be
amended is filed by USER;
e) if such a petition is filed by any third party, or an application for a
receiver is filed by anyone and such petition or application is not
resolved favorably to USER within sixty (60) days; or
10.3 Termination due to a breach of Section 7.0, 15.0 or 16.0 shall be effective
upon notice. In all other cases termination arising under Section 10.2 shall be
effective thirty (30) days after notice of termination to the defaulting party
if the defaults have not been cured within such thirty (30) day period.
10.4 USER acknowledges that monetary damages may not be a sufficient remedy for
unauthorized disclosure or use of Confidential Information or the Xxxxxxx
Indexes or the associated trademarks and service marks and that FRC shall be
entitled, without waiving any other rights or remedies, to such injunctive or
equitable relief as may be deemed proper by a court of competent jurisdiction.
10.5 The rights and remedies of the parties provided herein shall not be
exclusive and are in addition to any other rights or remedies provided by law or
this Agreement.
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11.0 OBLIGATIONS ON TERMINATION:
11.1 Upon expiration or termination of this Agreement, USER shall cease using
the Xxxxxxx Indexes and shall return or destroy all full or partial copies of
the Xxxxxxx Indexes and associated data and comply with Section 14.6.
11.2 Sections 10, 11, 12, 13, 14, 15, 17 and 18 shall survive the termination of
this Agreement.
12.0 LIMITATION OF LIABILITY:
12.1 FRC's liability to USER under any provision of this Agreement, including,
without means of limitation, Section 5, or any transaction contemplated by this
Agreement, shall not exceed one hundred percent (100%) of the amount having then
been actually paid by USER to FRC in the most recent twelve (12) calendar month
period under Section 4.0. FRC's limitation of liability is cumulative with all
FRC's expenditures being aggregated to determine satisfaction of the limit. The
existence of claims or suits against more than one Xxxxxxx Index will not
enlarge or extend the limit. USER releases FRC from all obligations, liability,
claims or demands in excess of the limitation. The parties acknowledge the other
parts of this Agreement rely upon the inclusion of Section 12.
13.0 DISCLAIMER OF DAMAGES AND LIMITATION OF REMEDY:
13.1 The rights and remedies granted under Section 5.0 constitute USER's sole
and exclusive remedy against FRC, its officers, agents and employees for
negligence, inexcusable delay, breach of warranty, express or implied, or for
any default whatsoever relating to the condition of the Xxxxxxx Indexes and any
data included therein.
13.2 USER AGREES FRC SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL,
INDIRECT, SPECIAL, ECONOMIC OR PUNITIVE DAMAGES OR FOR ANY CLAIMS AGAINST USER
BY ANY OTHER PARTY EVEN IF FRC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES OR CLAIMS.
13.3 USER agrees to indemnify and hold FRC harmless from any claim arising out
of, or in connection with, USER's use of the Xxxxxxx Indexes including, without
means of limitation, those made by employees, customers or clients of USER.
13.4 USER may not bring any action pertaining to this Agreement more than one
(1) year after the event giving rise to the cause of action has occurred.
14.0 TRADEMARKS AND COPYRIGHT NOTICES:
14.1 All materials, including advertising, sales promotion, or demonstration
materials which refer directly to the Xxxxxxx Indexes shall expressly state that
Xxxxx Xxxxxxx Company is the owner of the trademarks and service marks relating
to the Xxxxxxx Indexes in language consistent with Exhibit A and substantially
similar to the following:
"The Xxxxxxx 1000(R) index is a trademark/service xxxx of the Xxxxx
Xxxxxxx Company. Xxxxxxx(TM) is a trademark of the Xxxxx Xxxxxxx
Company."
USER shall make no other use of Xxxxxxx Xxxxx.
14.2 For each Xxxxxxx Xxxx USER agrees to use the appropriate trademark symbol
(either "(TM)" or "(SM)" or "(R)"), as set forth in Exhibit A or FRC designates
by written notice from time to time, in a superscript whenever such a Xxxxxxx
Xxxx is first mentioned in the above-referenced materials or in any other manner
in connection with the associated Xxxxxxx Index.
14.3 USER agrees its use of the above shall not directly or indirectly create in
or for USER any right, title or interest in such service xxxx(s), trademark(s)
or tradename(s) and their attendant goodwill.
14.4 USER shall undertake no action that will interfere with or diminish FRC's
right, title and interest in FRC's trademarks, service marks and Xxxxxxx
Indexes. USER will not at any time use any name, trademark or service xxxx
confusingly similar to a FRC name, trademark or service xxxx.
14.5 Upon termination or expiration of this Agreement, USER shall cease and
desist from all use of any of the above-referenced product or service name(s)
and associated trademark(s) and service xxxx(s) and, upon request, deliver to
FRC or destroy all material upon which the same appear.
14.6 USER shall also indicate that FRC is the owner of the copyrights relating
to the Xxxxxxx Indexes and is the source of the Xxxxxxx Indexes Performance
Values. USER shall include such copyright notices as FRC shall supply or
designate from time to time.
15.0 NON-DISCLOSURE AGREEMENT:
15.1 USER expressly undertakes to retain in confidence all information and know
how transmitted to USER by FRC that FRC has identified as being proprietary
and/or confidential or that, by the nature of the circumstances surrounding the
disclosure, ought in good faith to be treated as proprietary or confidential,
and will make no use of such information and know how except under the terms and
during the existence of this Agreement. However, USER shall have no obligation
to maintain the confidentiality of information that: (i) it received rightfully
from another party prior to its receipt from FRC; (ii) FRC has disclosed to a
third party without any obligation to maintain such information in confidence;
or (iii) is independently developed by USER. USER shall take all necessary
security measures to ensure the above. USER's obligations under this section
shall extend to the earlier of such time as the information protected hereby is
in the public domain through no fault of USER or ten (10) years following the
termination or expiration of this Agreement. The confidential relationship
arising hereunder shall not be affected by Section 21.3.
16.0 ASSIGNMENT AND ENTIRE AGREEMENT:
16.1 This Agreement and any rights or obligations hereunder, shall not be
assigned, delegated or sublicensed by USER without the prior written permission
of FRC. It will inure to the benefit of and is binding upon USER, FRC, their
affiliates and successors.
16.2 Any attempted assignment, delegation or sublicense in violation of this
section shall be void.
16.3 This Agreement, including Exhibit A, is the entire Agreement between the
parties with respect to the subject matter hereof and supersedes all prior and
contemporaneous communications. It shall not be modified except in writing
signed by both parties.
17.0 NOTICES:
17.1 All notices in connection with this Agreement shall be deemed given on the
day they are (a) deposited in the U.S. mails, postage prepaid, certified or
registered, return receipt requested; or (b) sent by international air express,
air courier, (e.g., DHL, Federal Express or Airborne Express), charges prepaid,
certified or registered, return receipt requested, addressed as follows:
USER: Xxxxxxx Xxxxxx Investments, Inc.
--------------------------------
000 Xxxx Xxxxxx
--------------------------------
Xxx Xxxx, XX 00000
--------------------------------
Attention: Xxxxxxxx Xxxxxxx
--------------------------------
With a Copy To: --------------------------------
--------------------------------
--------------------------------
--------------------------------
Attention: Xxxx Xxxxxxx
--------------------------------
Xxxx Xxxxxxxxxxx
FRC: Xxxxx Xxxxxxx Company
000 X Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Managing Director
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18.0 APPLICABLE LAW:
18.1 This Agreement shall be construed and controlled by the laws of the state
of Washington and USER consents to jurisdiction and venue of the state and
federal courts sitting in the state of Washington.
19.0 ATTORNEYS' FEES:
19.1 If either FRC or USER employs attorneys to enforce any rights arising out
of or relating to this Agreement, the prevailing party shall be entitled to
recover its reasonable attorneys' fees, costs and other expenses.
20.0 DELAY IN PERFORMANCE:
20.1 Neither party shall be liable for failure or delay in the performance of
any of its obligations, except obligations for the payment of money, under this
Agreement, if such failure or delay is caused by circumstances beyond its
reasonable control such as acts of God, riot, or war. Strikes or other labor
difficulties which are capable of being terminated on terms unacceptable to the
party so affected shall not be considered circumstances within the control of
such party.
21.0 MISCELLANEOUS:
21.1 No waiver of any breach of any provision of this Agreement shall constitute
a waiver of any prior, concurrent or subsequent breach of the same or any other
provisions hereof, and no waiver shall be effective unless made in writing and
signed by an authorized representative of the waiving party.
21.2 If any provision of this Agreement shall be held by a court of competent
jurisdiction to be illegal, invalid or unenforceable, the remaining provisions
shall remain in full force and effect.
21.3 Neither this Agreement, nor any terms or conditions contained herein, shall
be construed as creating a fiduciary relationship of any kind between the
parties or between FRC and USER's clients, customers or perspective clients or
customers.
21.4 Neither this Agreement, nor any terms and conditions contained herein,
shall be construed as creating a partnership, franchise, joint venture, agency
or employment relationship between the parties.
21.5 Time is of the essence in this Agreement.
21.6 The section headings used in this Agreement and the attached Exhibits are
intended for convenience only and shall not be deemed to supersede or modify any
provisions.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates set
forth below. All signed copies of this Agreement shall be deemed to be
originals.
XXXXX XXXXXXX COMPANY Xxxxxxx Xxxxxx Investments, Inc.
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FRC (USER)
/s/Xxxxx Xxxx Xxxxxx Xxxxxxxxx
--------------------- --------------------------------
BY BY
XXXXX XXXX /s/Xxxxxx Xxxxxxxxx
--------------------- --------------------------------
NAME (PRINT) NAME (PRINT)
CLIENT EXECUTIVE Managing Director
--------------------- --------------------------------
TITLE TITLE
MARCH 26, 1999 March 31, 1999
--------------------- --------------------------------
DATE DATE
EXHIBIT A
Xxxxxxx Indexes:
----------------
The Xxxxxxx Indexes shall mean the following US equity security indexes and the
associated Performance Values:
-- Xxxxxxx 1000(R) Index
-- Xxxxxxx 1000(R) Growth Index
-- Xxxxxxx 1000(R) Value Index
-- Xxxxxxx 2000(R) Index
-- Xxxxxxx 2000(R) Growth Index
-- Xxxxxxx 2000(R) Value Index
-- Xxxxxxx 2500(TM) Index
-- Xxxxxxx 2500(TM) Growth Index
-- Xxxxxxx 2500(TM) Value Index
-- Xxxxxxx 3000(R) Index
-- Xxxxxxx 3000(R) Growth Index
-- Xxxxxxx 3000(R) Value Index
-- Xxxxxxx Midcap(TM) Index
-- Xxxxxxx Xxxxxx(TM) Growth Index
-- Xxxxxxx Midcap(TM) Value Index
-- Xxxxxxx Top 200(TM) Index
-- Xxxxxxx Top 200(TM) Growth Index
-- Xxxxxxx Top 200(TM) Value Index
X All of the above
-- --------------------------------
--
--------------------------------
--
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Annual License Fee:
-------------------
General USERS:
--------------
USER agrees to pay FRC the annual license fee set forth below for a license to
use the Xxxxxxx Indexes, as designated above, at the designated Subscription
Level:
Annual License Fee ($US):
-------------------------
Subscription Level I
---------------------------
Subscription Level II $10,000 per site
---------------------------
Subscription Level III
---------------------------
Subscription Level IV
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Additional Provisions:
----------------------
(a) Country of Use: USA
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REIRAFER060992(2)
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