Exhibit (h)(5)
SERVICES AND
LICENSING AGREEMENT
This
Services and Licensing Agreement (the “Agreement”) is made and entered into as of November 17, 2017 (“Effective
Date”), by and between (i) SummerHaven Index Management, LLC (“SHIX”), a Delaware limited liability
company with its principal place of business at 0000 Xxxx Xxxx Xxxxxx, Xxxxxxxxx Plaza, Fourth Floor, Stamford, CT 06902, (ii)
USCF Advisers LLC (“USCF Advisers”), a Delaware limited liability company with its principal place of business
at 0000 Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxxxx 00000.
WITNESSETH
WHEREAS,
USCF Advisers serves as the investment adviser to the USCF ETF Trust, a Delaware statutory trust (the “Trust”)
registered as a closed-end management investment company registered under the Investment Company Act of 1940, as amended (the
“1940 Act”);
WHEREAS,
the Trust consists of multiple series including the series listed in Appendix A (each, a “Fund” and together,
the “Funds”), each of which is a separate investment portfolio;
WHEREAS,
USCF Advisers desires to retain SHIX to provide certain consulting services to USCF Advisers in connection with formation and
operation of the Funds,;
WHEREAS,
SHIX will provide certain consulting services to USCF Advisers in connection with the Funds on the terms and conditions set forth
in this Agreement;
WHEREAS,
USCF Advisers desires to license from SHIX the use of certain names and marks (“Service Marks”), including
that of certain securities indexes owned, calculated, maintained and/or published by SHIX (the “Indexes”),
as set forth in Appendix B to this Agreement (as such Appendix may be amended from time to time to incorporate new or additional
Service Marks or Indexes), and the use of the Indexes, in each case solely in connection with the operation of the Funds; and
WHEREAS,
SHIX is willing to license the use of the Indexes and Service Marks under the terms of this Agreement.
NOW,
THEREFORE, in consideration of the foregoing, and in reliance upon the mutual promises contained in this Agreement, the parties,
intending to be legally bound, agree as follows:
During
the term of this Agreement, SHIX shall provide to USCF Advisers services with respect to the Indexes, including but not limited
to general consultation regarding the calculation and maintenance of the Indexes, anticipated changes to the Indexes and the nature
of the Indexes, and current or anticipated components of the Indexes. In addition, SHIX shall (a) provide such information and
data as may reasonably be requested by USCF Advisers regarding the principals of SHIX and the Indexes for inclusion in regulatory
filings and marketing materials for the Funds, (b) make reasonably available upon adequate notice speakers for the Funds’
marketing events and persons to be interviewed by the press who can describe the Indexes and their calculation and maintenance,
and (c) such other services as the parties hereto may mutually agree from time to time, which
shall be set forth in Appendix C to this Agreement (clauses
(a) through (c), together the “Services”).
| (i) | USCF
Advisers will pay SHIX a combined monthly fee for the Services and the License as set
forth in the fee schedule attached as Appendix D to this Agreement (the “Services
and License Fee”), which payments will be made on a monthly basis within 30
days of the end of each calendar month by a wire transfer to an account or accounts specified
to USCF Advisers. |
| (ii) | In
the event of termination of this Agreement in whole or in part with respect to any Fund,
the Services and License Fee shall be computed on the basis of the period ending on the
last Business Day (as defined below) on which this Agreement is in effect subject to
a pro rata adjustment based on the number of days elapsed in the current month as a percentage
of the total number of days in such month. |
| (a) | SHIX
hereby grants to USCF
Advisers, the Trust and the Funds for the term of this Agreement (i) subject to
Section 3(c), a non-transferable license to use each Index as the basis, or a component,
of any fund or investment product registered under the Investment Company Act of 1940,
as amended (each such fund or investment product, a “Public 1940 Act Fund”),
and (ii) subject to Section 3(b), a non-transferable license to use, reproduce, promote
and refer to the Indexes and the Service Marks, and to reproduce, modify, distribute
and create derivative works from any information or materials provided to USCF
Advisers by SHIX bearing or relating to an Index or the Service Marks, in each
case solely in connection with the marketing, promotion of the Public 1940 Act Funds
and in connection with making such disclosure about the relevant Public 1940 Act Fund
as USCF
Advisers deems necessary or desirable under any applicable laws, rules or regulations
in order to indicate the source of such Index (“License”). |
| (b) | USCF
Advisers, the Trust and the Funds may grant a non-transferable, sublicense of the rights
conferred under the License to ALPS Fund Services, Inc. (“ALPS”) for
the sole purpose of permitting ALPS to provide website services to the Trust and the
Funds pursuant to the Transfer Agency Agreement and the Creative Services Letter Agreement,
both with ALPS and for no other purpose, provided thatUSCF Advisers shall be liable for
any acts or omissions of ALPS, in relation to the foregoing sublicense. Any such sublicense
to ALPS shall expire upon the earlier of (i) termination of this Agreement or (ii) termination
of both the Transfer Agency Agreement and the Creative Services Letter Agreement. |
| (c) | SHIX
reserves all rights with respect to the Indexes and the Service Marks except those expressly
licensed to USCF
Advisers hereunder; provided, however, SHIX shall not grant any license permitting
the use of the Service Marks or Indexes set forth on Appendix B for a Public 1940 Act
Fund advised by any party other than USCF Advisers during the term of this Agreement;
except that if at or after March 31, 2020, the aggregate net assets of the USCF Commodity
Strategy Fund are less than $150,000,000, SHIX may grant a license to a third party permitting
the use of the Service Marks or any Index for an open-end management investment company
that is registered under the 1940 Act and which does not operate as an exchange-traded
fund so long as USCF shall have the exclusive right to participate in any such license
agreement. SHIX and USCF will discuss and mutually decide in good faith whether it is
beneficial to extend the license to any such third party. The terms of the participation
and the fee to USCF shall be mutually and reasonably negotiated in good faith by SHIX
and USCF. |
| (d) | USCF
Advisers
acknowledges that, as between USCF
Advisers and SHIX, the Indexes and the Service Marks are the exclusive property
of SHIX, and that the Indexes and their compilation and composition and change therein
is in the control and discretion of SHIX. USCF Advisers agrees that any and all rights
that might be acquired by its use of the Service Marks shall inure to the benefit of
SHIX. USCF
Advisers agrees and acknowledges that no rights to use the Indexes and the Service
Marks are granted hereunder other than those specifically described and expressly granted
herein. SHIX warrants and represents that USCF
Advisers does not need to obtain a license from any person or entity (other than
the License provided herein) to use of the Indexes or Service Marks or the exercise of
rights under the License. SHIX shall take all actions reasonably necessary to maintain
the validity and enforceability of the Service Marks, and to protect the Service Marks
from unauthorized use, during the term of this Agreement. |
| (e) | The
goods and services offered and/or performed by USCF Advisers under the Service Marks
shall be of high standard and shall be offered and performed in accordance with all applicable
laws and regulations. USCF Advisers agrees that it will take no action which will, in
SHIX’s sole judgment, impugn in any fashion the reputation of SHIX or the Service
Marks. USCF
Advisers shall submit to SHIX, for SHIX’s review and approval, all informational
materials to be used in connection with the marketing, promotion, offer or sale of any
Fund that in any way use or refer to SHIX (or any affiliate thereof), the Indexes or
any of the Service Marks. SHIX’s approval shall be required with respect to the
use of and description of SHIX (or any affiliate thereof), the Indexes or any of the
Service Marks in all such informational materials; provided that such approval shall
not be unreasonably withheld or delayed. SHIX shall notify USCF
Advisers of its approval or disapproval of any informational materials submitted
for SHIX’s approval within five (5) Business Days following receipt thereof from
USCF
Advisers. Once informational materials have been approved by SHIX, subsequent
informational materials which do not materially alter the use or description of SHIX
(or any affiliate thereof), the Indexes or the Service Marks, as the case may be, need
not be submitted for review and approval. |
| (f) | In
connection with the License, SHIX shall provide to USCF
Advisers educational information and presentations regarding the Indexes, as reasonably
agreed. |
| (g) | The
licenses granted in this Section 3 shall terminate with respect to a Fund upon termination
of this Agreement with respect to such Fund. |
| (a) | Both
USCF Advisers and SHIX will be responsible for paying any tax imposed on such entity
by any governmental authority regardless of where imposed; provided, however, that any
sales taxes, use taxes, value added taxes or excise taxes imposed on any payment by USCF
Advisers to SHIX under this Agreement shall be borne by USCF Advisers; provided further,
that no payment under this Agreement shall be grossed up for any tax required to be withheld. |
| (b) | SHIX
shall deliver a properly completed Internal Revenue Service Form W-9 or other applicable
form at least ten (10) Business Days prior to any payment being due under this Agreement,
and will update such form to reflect changes or as reasonably requested by USCF Advisers. |
| 5. | Representations
and Warranties of SHIX. SHIX represents and warrants that: |
| (a) | SHIX
has the full power and authority to enter into this Agreement and to perform the services
described under this Agreement. |
| (b) | SHIX
is a limited liability company duly organized and validly existing under the laws of
the state of Delaware with the power to own and possess its assets and carry on its business
as it is now being conducted. |
| (c) | The
execution, delivery and performance by SHIX of this Agreement are within SHIX’s
powers and have been duly authorized by all necessary action and no further action is
required on its part to authorize this Agreement. |
| (d) | The
execution, delivery and performance by SHIX of this Agreement do not violate or result
in a default under (i) any provision of applicable law, rule or regulation, (ii) SHIX’s
governing instruments, or (iii) any agreement, judgment, injunction, order, decree or
other instrument binding upon SHIX. |
| (e) | This
Agreement and each other agreement, instrument or document to be executed and delivered
by SHIX pursuant to this Agreement constitutes the legal, valid and binding obligation
of SHIX, enforceable in accordance with its terms, except as enforceability may be limited
by applicable bankruptcy, insolvency and other laws and equitable principles affecting
creditors’ rights generally and the discretion of the courts in granting equitable
remedies. |
| (f) | SHIX
represents that its other engagements or activities are not of a nature or magnitude
so as to have a material adverse effect on its ability to provide the Services. USCF
acknowledges and agrees that SHIX and its principals are required to devote only such
time as may be reasonably required with respect to the Services. |
| (g) | SHIX
represents and warrants that it has the right to
grant licenses of the Indexes and the Service Marks and that, to its knowledge, use of
the Indexes and Service Marks by USCF as provided herein shall not infringe any trade
name, trademark, service xxxx, trade dress, copyright, patent, other proprietary right,
or contractual right of any person not a party to this Agreement. EXCEPT FOR THE WARRANTIES
SET FORTH IN THIS AGREEMENT, SHIX MAKES NO WARRANTY, EXPRESS OR IMPLIED, CONCERNING THE
INDEXES OR THE SERVICE MARKS, AND MAKES NO WARRANTY AS TO THEIR MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE. IN PARTICULAR, AND WITHOUT LIMITING THE FOREGOING, SHIX DOES
NOT GUARANTEE THE QUALITY, ACCURACY, AND/OR COMPLETENESS OF THE INDEXES OR THE SERVICE
MARKS. |
| 6. | Representations
and Warranties of USCF
Advisers.
USCF Advisers represents and warrants as follows: |
| (a) | USCF
Advisers has the full power and authority to enter into this Agreement, to serve as the
sponsor to the Funds and to perform the services described under this Agreement. |
| (b) | USCF
Advisers is a limited liability company duly organized and validly existing under the
laws of the state of Delaware with the power to own and possess its assets and carry
on its business as it is now being conducted. |
| (c) | The
execution, delivery and performance by USCF Advisers of this Agreement are within USCF
Advisers’ powers and have been duly authorized by all necessary action and no further
action is required on its part to authorize this Agreement. |
| (d) | The
execution, delivery and performance by USCF Advisers of this Agreement do not violate
or result in a default under (i) any provision of applicable law, rule or regulation,
(ii) USCF Advisers’
governing instruments, or (iii) any agreement, judgment, injunction, order, decree or
other instrument binding upon USCF Advisers. |
| (e) | USCF
Advisers is registered with applicable regulators in each capacity in which it is required
to register to perform its duties with respect to the Trust and the Funds and will continue
to be so registered, if required, so long as this Agreement remains in effect. |
| (f) | This
Agreement and each other agreement, instrument or document to be executed and delivered
by USCF Advisers pursuant to this Agreement constitutes the legal, valid and binding
obligation of USCF Advisers, enforceable in accordance with its terms, except as enforceability
may be limited by applicable bankruptcy, insolvency and other laws and equitable principles
affecting creditors’ rights generally and the discretion of the courts in granting
equitable remedies. |
| (a) | SHIX
will promptly notify USCF Advisers of the occurrence of any event that would substantially
impair SHIX’s ability to fulfill its commitments under this Agreement. |
| (b) | SHIX
will promptly notify USCF Advisers if it is served or otherwise receives notice of any
action, suit, proceeding, inquiry or investigation, at law or in equity, before or by
any court, government agency, self-regulatory organization, public board or body, involving
the affairs of USCF Advisers, the Trust or any Fund or, in the case of SHIX, that would
impact SHIX’s ability to perform under this Agreement, in each case, unless SHIX
is prohibited from doing so. |
| 8. | Covenants
of USCF
Advisers.
|
| (a) | USCF
Advisers will promptly notify SHIX, of the occurrence of any event that would substantially
impair the ability of USCF Advisers to fulfill its commitment under this Agreement. |
| (b) | USCF
Advisers will promptly notify SHIX, if it is served or otherwise receives notice of any
action, suit, proceeding, inquiry or investigation, at law or in equity, before or by
any court, government agency, self-regulatory organization, public board or body, involving
the affairs of any Fund or, in the case of USCF Advisers, that would impact the ability
of USCF Advisers to perform under this Agreement, in each case, unless USCF Advisers
is prohibited from doing so. |
| (c) | USCF
Advisers agrees to include the following disclosure or the substance thereof in each
Fund’s prospectus: |
The
Index and associated trademarks, service marks and trade names
are the exclusive property of SHIX, which has licensed the Index and marks for
use by USCF. SHIX is solely responsible for determining the investments included in, and the calculation of, the Index. Neither
SHIX nor its affiliates make any representations regarding the appropriateness of the Fund’s investments for the purpose
of tracking the performance of the Index or otherwise.
| (a) | SHIX
hereby grants USCF Advisers non-exclusive use of SHIX’s name(s), derivatives, logos,
trademarks, service marks, domain names and trade names in connection with certain materials
used in the ordinary course of business, such as prospectuses, financial reports, fund
fact sheets, fund name and related materials, including advertising and marketing materials
for the Funds. USCF Advisers hereby grants SHIX non-exclusive use of USCF Advisers’
name(s), derivatives, logos, trademarks, service marks, domain names and trade names
in connection with certain materials used in the ordinary course of business, such as
prospectuses, financial reports, fund fact sheets, fund name and related materials, including
advertising and marketing materials for the Funds. The reciprocal limited license grants
set forth in this Section 9 will be revoked as to future use as soon as the Agreement
is terminated with respect to any such Fund. |
| (b) | Except
as otherwise expressly provided in this Agreement, including in any appendix hereto,
neither party grants the other party hereto any other license, express or implied, to
such party’s intellectual property rights or other proprietary rights other that
as set forth herein. Each party shall cooperate
and take such action as may be reasonably requested by the other party in order to carry
out the provisions and purposes of this Agreement and the transactions contemplated hereby. |
| (a) | Term
of the Agreement. The initial term of this Agreement shall be a period of ten (10)
years from the Effective Date (“Initial Term”), unless earlier terminated
by either party hereto in accordance with Section 10(b) below. After the Initial Term,
this Agreement shall renew for successive three (3) year periods (each, a “Successive
Term”), unless (i) terminated by either party hereto as of the end of any Successive
Term by providing at least ninety (90) days written notice of such termination prior
to the end of such Successive Term, or (ii) earlier terminated by either party hereto
in accordance with Section 10(b) below. |
| (b) | Termination
of the Agreement. With respect to each Fund, this Agreement may be terminated without
payment of any penalty: |
| (i) | By
mutual consent of the parties hereto. |
| (ii) | By
any party, upon ninety (90) days’ prior written notice to the other party, in the
event that: |
| a. | the
other party commits a material breach of this Agreement, and such material breach has
not been cured by the breaching party within thirty (30) days from the date of notice
from the other party of such material breach, specifying the nature of the breach in
reasonable detail; |
| b. | any
party is dissolved or its existence is terminated;
|
| c. | if
any party becomes insolvent or bankrupt or admits
in writing its inability to pay its debts as they mature, or makes an assignment for
the benefit of creditors; makes a voluntary assignment or transfer of all or substantially
all of its property; has a custodian, trustee, or receiver appointed for it, or for all
or substantially all of its property; has bankruptcy, reorganization, arrangements, insolvency
or liquidation proceedings, or other proceedings for relief under any bankruptcy or similar
law for the relief of debtors, instituted by or against it, and, if instituted against
it, any of the foregoing is allowed or consented to by the other party or is not
dismissed within sixty (60) days after such institution; or |
| d. | any
adverse finding is made in respect of, or official sanction imposed on, any other party
by any relevant regulatory authority which would be likely to have a material adverse
effect on such party’s ability to perform its obligations under this Agreement. |
| (iii) | By
USCF Advisers, upon sixty (60) days’ prior written notice to the other party in
the event that a majority of the board of trustees of the Trust votes to terminate the
sub-advisory agreement (the “Sub-Advisory Agreement”) between USCF Advisers
and SummerHaven Investment Management, LLC. |
| (iv) | By
USCF Advisers, upon ninety (90) days’ prior written notice to the other party,
in the event that: |
| a. | USCF
Advisers is informed of the final adoption of any legislation or regulation that materially
impairs the ability of USCF Advisers to market, promote, or issue, redeem or list on
an exchange, shares of the Funds; |
| b. | any
material litigation or regulatory proceeding regarding the Funds is commenced which requires
that the Funds to cease existence, and no successor Funds are established with similar
investment objectives; or |
| c. | there
is a Change of Control of SHIX. For the purposes of this section, “Change
of Control of SHIX” means the occurrence of any of the following: (1) the
sale, lease, transfer, conveyance or other disposition, in one or a series of related
transactions, of all or substantially all the assets of SHIX, or (2) the sale, lease,
transfer, conveyance or other disposition by the members of SHIX (as of the Effective
Date) of more than 50% of the outstanding equity of SHIX. |
| (v) | By
SHIX, upon ninety (90) days’ prior written notice to USCF Advisers, in the event
that: |
| a. | SHIX
is informed of the final adoption of any legislation or regulation that materially impairs
SHIX’s ability to perform the Services under this Agreement; |
| b. | the
Sub-Advisory Agreement dated the same date as this Agreement between USCF Advisers and
SummerHaven Investment Management, LLC (“SHIM”) (the “Sub-Advisory
Agreement”) is terminated; provided, however, that this Agreement shall remain
in effect if SHIM and USCF Advisers enter into a new sub-advisory agreement following
a SHIM Change of Control Event, as such term is defined in the Sub-Advisory Agreement; |
| c. | in
the event that USCF Advisers retains the services of an additional sub-advisor (i.e.,
in addition to SHIM) to manage any assets of any Fund without obtaining the prior written
consent of SHIX; or |
| d. | there
is a Change of Control of USCF Advisers. For the purposes of this section, “Change
of Control of USCF Advisers” means the occurrence of any of the following:
(1) the sale, lease, transfer, conveyance or other disposition, in one or a series of
related transactions, of all or substantially all the assets of USCF Advisers, or (2)
the sale, lease, transfer, conveyance or other disposition by the members of USCF Advisers
(as of the Effective Date) of more than 50% of the outstanding equity of USCF; provided
that for the avoidance of doubt any sale, lease, transfer, conveyance or other disposition
of the owner and sole member of USCF Advisers shall not be considered a “Change
of Control.” |
| (c) | Termination
of Agreement with Respect to Any Fund. In the event that this Agreement is terminated
with respect to any Fund, this Agreement and the Sub-Advisory Agreement shall cease to
apply to such Fund, provided, that the remainder of this Agreement shall not be affected
thereby. |
| (d) | Fees
Due on Termination of the Agreement or any Fund. Upon termination of this Agreement,
in whole or in part, USCF Advisers shall pay SHIX any amounts due and unpaid amounts
with respect to any Fund(s) for which this Agreement has been terminated; provided that
once all such amounts have been paid to SHIX by USCF Advisers, no further amounts shall
be due under this Agreement with respect to such Fund(s). The fee for the month in which
this Agreement is terminated will be pro-rated based on the number of days in the month
during which the Agreement was in effect. |
| (a) | For
the purpose of this Agreement, “Confidential Information” means in
relation to any party all confidential and proprietary information (whether such information
is in oral or written form or is recorded in any other medium) including, without limitation,
all business, technical, financial, customer and/or any other proprietary information
of a party, products, processes, tools, services, technical knowledge and any other information
and/or materials clearly marked as confidential, or information identified as confidential
at the time of disclosure, or summarized as confidential in a written memorandum delivered
to the recipient within thirty (30) calendar days of disclosure, including, without limitation,
all such non-public information concerning the Indexes, whether or not so marked.
Notwithstanding the foregoing, a party’s Confidential Information shall
not include information which: (i) is or becomes a part of the public domain through
no act or omission of the other party; (ii) was in the other party’s lawful possession
prior to the disclosure and had not been obtained by the other party either directly
or indirectly from the disclosing party; (iii) is lawfully disclosed to the other party
by a third party without restriction on disclosure; or (iv) is independently developed
by the other party without reference to any Confidential Information. |
| (b) | By
virtue of this Agreement, either USCF Advisers or SHIX may have access to Confidential
Information of the other party. USCF and SHIX agree to maintain the confidentiality of
the Confidential Information, except that the Confidential Information may be disclosed
(a) to their respective affiliates and their respective affiliates’ directors,
officers, employees and agents, including accountants, legal counsel and other advisors
(it being understood that the persons to whom such disclosure is made will be informed
of the confidential nature of such Confidential Information and instructed to keep such
Confidential Information confidential), (b) to the extent requested by any governmental
authority, taxing authority or self-regulatory authority, (c) to the extent required
by applicable law or by any subpoena or similar legal process, (d) in connection with
the exercise of any remedies hereunder or any suit, action or proceeding relating to
this Agreement or the rights granted hereunder, (e) in the regulatory filings of the
Trust and any Fund, in a manner determined to be appropriate or required by USCF by or
on behalf of the Trust and any Fund, and (f) with the consent of the other party. Such
Confidential Information shall remain confidential for all other purposes. |
| (c) | Each
of USCF Advisers and SHIX agree to secure
and protect the Confidential Information of each other in a manner consistent with the
maintenance of the other party’s rights therein at the time of receipt of the Confidential
Information, using at least as great a degree of care as each party uses to maintain
the confidentiality of its own confidential information of a similar nature, but in no
event using less than its reasonable efforts. Neither USCF Advisers nor SHIX shall sell,
transfer, publish, disclose, or otherwise make available any portion of the Confidential
Information of the other party to third parties, except as necessary to perform its obligations
under this Agreement or as expressly authorized in this Agreement. Each party represents
that it has, and agrees to maintain, an appropriate agreement with each third party who
may have access to Confidential Information sufficient to enable such party to comply
with all of the terms of this Agreement. |
| (d) | Both
USCF Advisers and SHIX agree that the unauthorized
use by any party of the other party’s Confidential Information will diminish the
value of such Confidential Information and will cause substantial and irreparable damage
to the party whose Confidential Information was improperly disclosed, and that the remedies
generally available at law may be inadequate. Accordingly, USCF Advisers and SHIX agree
that a breach of this Section 11 shall entitle SHIX (in the case of a breach by USCF
Advisers) or USCF Advisers (in the case of a breach by SHIX) to seek equitable relief
to protect its interest herein, including injunctive relief, as well as money damages.
The parties agree that the obligations under this Section 11 shall survive termination
or expiration of this Agreement. |
| 12. | Indemnification;
Limitation of Liability. |
| (a) | USCF
Advisers shall indemnify, defend and hold SHIX and its affiliates, members, directors,
officers, shareholders, employees, representatives, agents, attorneys, successors and
assigns (collectively, the “SHIX
Indemnified Parties”) harmless from
and against any and all claims, liabilities, obligations, judgments, causes of action,
costs and expenses (including reasonable attorneys’ fees) (collectively, “Losses”)
in connection with or arising out of this Agreement, including but not limited to any
material breach of this Agreement by USCF Advisers or any disclosure in any registration
statement of any Fund (except disclosure about SHIX or the Index that has been specifically
approved by SHIX), and out of USCF Advisers’
use of the Indexes or the Service Marks (including, without limitation, in connection
with the marketing, promotion and sale of any Fund and its units), except to the extent
Losses are the result of any grossly negligent act or omission of a SHIX Indemnified
Party. |
| (b) | SHIX
shall indemnify, defend and hold USCF and its affiliates, members, directors, officers,
shareholders, employees, representatives, agents, attorneys, successors and assigns (collectively,
the “USCF Indemnified Parties”)
harmless from and against any and all Losses arising out of (i) any material breach of
this Agreement by SHIX, (ii) any disclosure in the registration statement of any Fund
about SHIX or the Index that has been specifically approved by SHIX, (iii) any claim
that SHIX does not possess all rights necessary to grant the License granted by this
Agreement, (iv) any claim of infringement, misappropriation, dilution or other violation
of the intellectual property, proprietary rights, or license rights of third parties
arising from the use of the Indexes or the Service Marks as licensed to USCF under this
Agreement, except to the extent Losses are the result of any negligent act or omission
of an USCF Indemnified Party or (v) the gross negligence or willful misconduct of SHIX
in performing or satisfying its obligations under this Agreement. Additionally, SHIX
shall indemnify, defend and hold the Funds and their trustees, officers, and shareholders
(which shall, collectively, be deemed USCF Indemnified Parties solely for this limited
purpose) harmless from and against any and all Losses arising out of any disclosure in
the registration statement of any Fund about SHIX or the Indexes that has been specifically
approved by SHIX. |
| (c) | Except
as otherwise expressly provided herein, in no event shall USCF or SHIX be liable for
any indirect, incidental, special or consequential damages, even if the party or an authorized
representative thereof has been advised of the possibility of such damages. The federal
securities laws impose liabilities under certain circumstances on persons who act in
good faith; thus, nothing in this Agreement shall in any way constitute a waiver or limitation
on any rights which a party may have under the federal securities laws. |
| (d) | Promptly
after receipt by any Indemnified Party of notice of the commencement of any action, the
Indemnified Party shall, if indemnification is to be sought against the other party (the
“Indemnifying Party”) under this Section 12, notify the Indemnifying
Party in writing of the commencement thereof, but the omission to notify the Indemnifying
Party shall relieve the Indemnifying Party from liability hereunder only to the extent
that such omission results in the forfeiture by the Indemnifying Party of rights or defenses
with respect to such action. In any action or proceeding, following provision of proper
notice by the Indemnified Party of the existence of such action, the Indemnified Party
shall be entitled to participate in any such action and to assume the defense thereof,
with counsel of its choice, and after notice from the Indemnifying Party to such Indemnified
Party of its election to assume the defense of the action, the Indemnifying Party shall
not be liable to such Indemnified Party hereunder for any attorneys’ fees subsequently
incurred by the Indemnified Party. The Indemnified Party shall cooperate in the defense
of settlement of claims so assumed. The Indemnifying Party shall not be liable hereunder
for the settlement by the Indemnified Party for any claim or demand unless it has previously
approved the settlement or it has been notified of such claim or demand and has failed
to provide a defense in accordance with the provisions hereof. In the event that the
Indemnifying Party assumes the defense of the action, in negotiating any settlement the
Indemnifying Party shall use commercially reasonable efforts to avoid any negative reputational
or legal consequences to the Indemnified Party, and the Indemnified Party shall have
the right to approve the terms of any settlement as to any such reputational or legal
consequences in its reasonable discretion. |
| 13. | Payment
on Non-Business Days. Notwithstanding any other provision herein, in any case
where payment is due on a date that is not a Business Day, then such payment shall be
due on the next succeeding Business Day. “Business Day” shall mean
any day other than a Saturday, Sunday or day on which banks are authorized to close in
New York, New York. |
| 14. | No
Partnership. USCF Advisers and SHIX are independent contractors to one another. Nothing
in this Agreement shall be construed to create a partnership, joint venture or agency
relationship between USCF Advisers and SHIX. |
| 15. | Successors
and Assigns. This Agreement shall be binding upon and shall inure to the benefit
of the parties hereto and their respective successors and permitted assigns. However,
neither this Agreement nor any of the rights of the parties hereunder may otherwise be
transferred or assigned by any party hereto without the prior consent of the other party.
Any attempted transfer or assignment in violation of this Section 15 shall be void. |
| 16. | No
Third Party Beneficiaries. This Agreement is not intended, and shall not be deemed,
to confer any rights or remedies upon any person other than the parties hereto and their
respective successors and permitted assigns, to create any agreement of employment with
any person or to otherwise create any third-party beneficiary hereto. |
| 17. | Waiver.
The waiver by any party of any default or breach of this Agreement shall not constitute
a waiver of any other or subsequent default or breach. |
| 18. | Amendments.
This Agreement may not be modified or amended unless such modification or amendment
of this Agreement is in and executed by all parties. |
| 19. | Governing
Law. This Agreement shall be governed by and construed solely and exclusively in
accordance with the laws of the State of New York,
without reference to its conflicts of law principles. |
| 20. | Severability.
If any term or provision of this Agreement is invalid, illegal or unenforceable in
any jurisdiction, such invalidity, illegality or unenforceability shall not affect any
other term or provision of this Agreement or invalidate or render unenforceable such
term or provision in any other jurisdiction. Upon such determination that any term or
other provision is invalid, illegal or unenforceable, such provision shall be deemed
to be restated to be enforceable, in a manner which reflects, as nearly as possible,
the intent and economic effect of the invalid provision in accordance with applicable
law. If necessary or appropriate, the parties hereto shall negotiate in good faith to
modify this Agreement so as to effect the original intent of the parties as closely as
possible in a mutually acceptable manner in order that the transactions contemplated
hereby be consummated as originally contemplated to the greatest extent possible. The
remainder of this Agreement shall remain in full force and effect. |
| 21. | Notice.
Any notice, advice or report to be given pursuant to this Agreement shall be deemed
sufficient if delivered or mailed by registered, certified or overnight mail, postage
prepaid addressed by the party giving notice to the other party at the last address furnished
by the other party: |
To USCF Advisers at: |
USCF Advisers LLC |
|
0000 Xxxxxxxx Xxxxxx, Xxxxx 0000 |
|
Xxxxxxx, XX 00000 |
|
Attn: Xxxx Xxxx, President and Chief Executive Officer |
|
Tel: (000) 000-0000 |
|
Email: xxxxx@xxxxxxxxxxxxxxx.xxx |
|
|
|
With a copy to: |
|
Xxxxxxx Xx, General Counsel |
|
Tel: (000) 000-0000 |
|
Email: xxx@xxxxxxxxxxxxxxx.xxx |
|
|
To SHIX at: |
SummerHaven Index Management, LLC |
|
Soundview Plaza |
|
Fourth Floor |
|
0000 Xxxx Xxxx Xxxxxx |
|
Xxxxxxxx, XX 00000 |
|
Tel: (000) 000-0000 |
|
Email: xxxxx@xxxxxxxxxxxxx.xxx |
|
|
|
With a copy to: |
|
Xxxxxx Xxxxxxx, Esq. |
|
Xxxxxx & Xxxxxx LLP |
|
0 Xxxxxxx Xxxx Xxxxx |
|
Xxx Xxxx, XX 00000 |
|
Tel: (000) 000-0000 |
|
Email: xxxxxxx@xxxxxx.xxx |
|
|
| 22. | Entire
Agreement. This Agreement embodies the entire agreement and understanding between
the parties hereto, and supersedes all prior agreements and understandings relating to
this Agreement’s subject matter. Appendices A, B, C and D to this Agreement shall
be incorporated into this Agreement and made a part hereof. |
| 23. | Survival.
The terms of Sections 2, 6, 10(d), 11, 12, 17, 19, 20, 21, 22, 23, 25, and 26 shall
survive termination of this Agreement. |
| 24. | Force
Majeure. No party shall be in default or otherwise
liable for any delay in or failure of its performance under this Agreement where such
delay or failure arises by reason of any act of God, or any government or any governmental
body, any act of war or terrorism, the elements, strikes or labor disputes, or other
similar or dissimilar cause beyond the control of such party. |
| 25. | No
Strict Construction. The parties to this Agreement have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or question of
intent or interpretation arises, this Agreement will be construed as if drafted jointly
by the parties, and no presumption or burden of proof will arise favoring or disfavoring
any party by virtue of the authorship of any of the provisions of this Agreement. |
| 26. | Interpretation.
When reference is made in this Agreement to a section, such reference shall be to a section
of this Agreement, unless otherwise indicated. The defined terms and headings contained
in this Agreement are for convenience of reference only and shall not affect in any way
the meaning or interpretation of this Agreement. Whenever the context may require, any
pronouns used in this Agreement shall include the corresponding masculine, feminine or
neuter forms, and the singular form of nouns and pronouns shall include the plural, and
vice versa. Any reference to any federal, state, local or foreign statute or law shall
be deemed also to refer to all rules and regulations promulgated thereunder, unless the
context requires otherwise. Whenever the words “include,” “includes”
or “including” are used in this Agreement, they shall be deemed to be followed
by the words “without limitation.” |
| 27. | Counterparts.
This Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original but all of which together shall constitute one and the same
instrument. |
[Signature
Page Follows]
IN WITNESS WHEREOF, the parties
have entered into this Services and License Agreement, and intend to be legally bound by it, as of the Effective Date.
USCF
ADVISERS LLC: |
|
|
|
By: |
/s/
Xxxx X. Love |
|
|
|
|
Name: |
Xxxx
X. Love |
|
|
|
|
Title: |
President |
|
SummerHaven
INDEX
Management, LLC: |
|
|
|
By: |
/s/
Xxxxxx X. Xxxxx |
|
|
|
|
Name: |
Xxxxxx
X. Xxxxx |
|
|
|
|
Title: |
Partner |
|
Appendix
A
Funds
USCF SummerHaven SHPEI Index Fund |
USCF SummerHaven SHPEN Index Fund |
Appendix
B
Indexes:
| 1. | SummerHaven
Private Equity Strategy Index |
| 2. | SummerHaven
Private Equity Natural Resources Strategy Index |
Service Marks:
Appendix
C
Additional
Services
None.