EXHIBIT 3
FORM OF
LICENSE AGREEMENT
THIS LICENSE AGREEMENT (this "AGREEMENT") is made and entered into as of
the _____ day of _______________, _____ (the "COMMENCEMENT DATE") by and between
The Bank of New York, having an office at Xxx Xxxx Xxxxxx, Xxx Xxxx, XX 00000
("LICENSOR"), and ____________________ ("LICENSEE"), having an office at
____________________.
RECITALS
WHEREAS, Licensor compiles, calculates and maintains the indexes specified
on Schedule I hereto, and owns certain rights in and to such indexes and the
proprietary data contained therein, and Licensor owns or has the rights to
license the marks listed in Schedule I hereto (such marks being hereinafter
collectively referred to as the "LICENSOR MARKS", and such rights, including,
without limitation, copyright, trademark, service xxxx or proprietary rights and
trade secrets, being hereinafter collectively referred to as the "INTELLECTUAL
PROPERTY"); and
WHEREAS, Licensee wishes to use certain of such indexes and the related
Licensor Marks, pursuant to the terms and conditions hereinafter set forth, in
connection with (i) the issuance, marketing and promotion of the Products (as
defined in Section 1(c)) and (ii) making disclosure about such Products under
applicable laws, rules and regulations in order to indicate that Licensor is the
source of such indexes.
NOW, THEREFORE, in consideration of the mutual undertakings contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Grant of License.
(a) In consideration of the payment of royalties and license and
administrative fees pursuant to Section 3, and subject to the terms and
conditions of this Agreement, Licensor hereby grants to Licensee a
non-transferable (except to subsidiaries pursuant to Section 12(a)),
non-exclusive license (i) to use the Indexes (as defined in subsection (b)
below) solely in connection with the issuance or trading, as the case may be, of
the Products to be issued or traded, as the case may be, by Licensee, in the
territories listed in Schedule II hereto (the "TERRITORIES") and (ii) to use and
refer to the Licensor Marks in connection with the marketing and promotion of
the Products in order to indicate that the Products are based on the Indexes and
that Licensor is the source of the Indexes (but not the Products), and as may
otherwise be required by applicable laws, rules or regulations or under this
Agreement.
(b) As used in this Agreement, "INDEXES" means the indexes listed on
Schedule III hereto (and the indexes to be added thereto in accordance with the
provisions set forth therein).
(c) As used in this Agreement, "PRODUCTS" means the products designated on
Schedule IV hereto that are issued by Licensee and based upon one or more of the
Indexes (but, except as otherwise specified in Schedule II hereto, not any part
or subset of the components of any Index) and correlated to the underlying
securities comprising such Indexes. The terms of the Products, and any material
changes therein, shall be subject to Licensor's prior written consent.
(d) Nothing contained in this Agreement shall restrict Licensor from
licensing any one or more indexes (including the Indexes) or any of the Licensor
Marks to any other Person at any time.
(e) Nothing contained in this Agreement constitutes a license to Licensee
to use any one or more of the Indexes other than in connection with the
issuance, marketing and promotion of the Products within the Territories.
(f) Licensee acknowledges that the Indexes and the Licensor Marks are the
property of Licensor. Except as otherwise specifically provided in this
Agreement, Licensor reserves all rights to the Indexes and the Licensor Marks,
and this Agreement shall not be construed to transfer to Licensee any ownership
right to, or equity interest in, any of the Indexes or the Licensor Marks, or in
any Intellectual Property or other proprietary rights pertaining thereto.
Licensee acknowledges that the Indexes, their compilation and composition,
and any changes therein, are and will remain in the complete control and sole
discretion of Licensor. Without limiting the foregoing, Licensor shall have the
exclusive right, in its sole discretion and at any time, to modify the
methodology for determining the composition of, or calculating, any of the
Indexes or any other features or characteristics thereof.
Licensee acknowledges and agrees that Licensor or its Affiliates may
independently enter into transactions with respect to, or issue, sponsor,
distribute, advise or provide other services with respect to, financial products
which are based upon the Indexes and which may be similar to, or competitive
with, the Products.
2. Term.
(a) Subject to subsection (b) below, the term of this Agreement shall
commence on the Commencement Date and shall continue until the [first] [second]
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[third] anniversary of the Commencement Date, unless this Agreement is
terminated earlier as provided in Section 4 (such term, the "INITIAL TERM").
(b) This Agreement shall be extended beyond the Initial Term if (i) at
least ninety (90) days prior to expiration of the Initial Term (other than by
reason of termination of this Agreement as provided in Section 4), Licensee
shall deliver to Licensor a notice in writing of its desire to extend the
Initial Term and (ii) the parties hereto shall agree on the terms and license
fees to be applicable during such extension (the term of any such extension, the
"EXTENDED TERM", and the Initial Term and any Extended Term together, the
"TERM").
3. License Fees.
(a) In consideration for the license granted in this Agreement, Licensee
shall pay to Licensor royalties and license and administrative fees
(collectively, "LICENSE FEES") as set forth in Schedule IV hereto. Except as
otherwise provided in such Schedule IV, Licensee shall pay all License Fees to
Licensor within thirty (30) days after the end of each calendar month. Any late
payments shall bear interest at [SPECIFY RATE].
(b) Licensor shall have the right at any time to audit on a confidential
basis the relevant books and records of Licensee to confirm the accuracy of any
one or more calculations of License Fees. Such audit shall be conducted by
auditors selected by Licensor in its reasonable judgment. If an audit conducted
pursuant to this subsection (b) discloses any overpayment or underpayment of
License Fees by Licensee, Licensor or Licensee, as the case may be, shall
promptly make the requisite adjustments for such repayment or underpayment.
Licensor shall bear its own costs of any such audit unless it is determined that
Licensor has been underpaid by 5% or more with respect to the payments being
audited, in which case Licensor's costs of such audit shall be paid by Licensee.
(c) Licensee shall deliver to Licensor, promptly after each calendar
quarter during the Term, a written report detailing, in respect of such calendar
quarter, the principal amount or notional value of each Product issued, sold or
traded, as the case may be, and the results of each such offering or transaction
or the assets under management of each Product, as applicable.
4. Termination.
(a) If there is a material breach of this Agreement by any party (such
party, the "BREACHING PARTY" and, the other party, the "NON-BREACHING PARTY"),
or if any party (such party, the "HARMED Party") believes in good faith that
material damage or harm is occurring to its reputation or goodwill by reason of
its continued performance under this Agreement (other than pursuant to Section
4(d)), then the Non-breaching Party
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or the Harmed Party, as the case may be, may terminate this Agreement, effective
thirty (30) days after written notice thereof is given to the other party (with
reasonable specificity as to the nature of the breach or the condition causing
such damage or harm, as the case may be, and including a statement as to such
party's intent to terminate), unless the Breaching Party shall correct such
breach or the condition causing such damage or harm, as the case may be, to the
reasonable satisfaction of the Non-breaching Party within such 30-day period.
(b) Licensee may terminate this Agreement upon ninety (90) days' prior
written notice to Licensor (or such lesser period of time as may be necessary
pursuant to law, rule, regulation or court order) if: (i) any legislation or
regulation is finally adopted, or any government interpretation is issued, that
prevents Licensee from issuing, marketing or promoting the Products; (ii) any
material litigation or regulatory proceeding regarding the Products is commenced
if such litigation or proceeding prevents Licensee from issuing, promoting or
marketing the Products or materially increases the costs or reduces the economic
benefits of doing so or otherwise materially prejudices Licensee; (iii) Licensee
elects to terminate the offering or other distribution of the Products; or (iv)
any of the events set forth in Section 4(c)(i), (ii), (iii) or (v) occurs.
(c) Licensor may terminate this Agreement upon ninety (90) days' prior
written notice to Licensee if: (i) any legislation or regulation is finally
adopted or any government interpretation is finally issued that generally
prevents third-party licensees from issuing, marketing or promoting the
Products; (ii) any material litigation or regulatory proceeding regarding the
Products is commenced; (iii) any legislation or regulation is finally adopted or
any government interpretation is finally issued that materially impairs
Licensor's ability to license the Licensor Marks or the Indexes; (iv) any of the
terms or conditions of this Agreement, or the performance thereof, in the
reasonable judgment of Licensor after consultation with counsel or by
determination or written directive of any governmental or self-regulatory
authority or agency with jurisdiction over it, (A) would be reasonably likely to
exceed the operating powers of Licensor or any of its Affiliates, (B) would
violate any law, regulation, order or judgment applicable to Licensor or any of
its Affiliates, (C) would be reasonably likely to subject Licensor or any of its
Affiliates to regulatory action or (D) would render it inadvisable for Licensor,
in view of concerns by applicable regulatory authorities expressed in writing or
directed specifically to Licensor or any of its Affiliates, to continue this
Agreement; (v) Licensor elects (other than pursuant to Section 4(d)) to cease
compiling, calculating and publishing values of the Indexes; or (vi) any of the
events set forth in Section 4(b)(i) through (iii) occurs.
(d) Notwithstanding anything in this Agreement to the contrary, Licensor
shall have the right to cease compiling, calculating and publishing values of
any Indexes at any time in its sole discretion and thereupon to terminate this
Agreement with respect to such Indexes upon written notice to Licensee; provided
that Licensor shall use
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commercially reasonable efforts to provide Licensee with as much prior notice as
is reasonably practicable under the circumstances.
(e) Notwithstanding anything in this Agreement to the contrary, if any
exchange: (i) ceases to provide data necessary for providing the Indexes to all
data vendors, providers and publishers; (ii) terminates all such data vendors',
providers' and publishers' rights to receive data in the form of a "feed" from
such exchange; (iii) materially restricts all such data vendors', providers' and
publishers' rights to redistribute data received from such exchange; or (iv)
institutes charges of a type or to an extent applicable to all such data
vendors, providers and publishers (and not to others generally) for the
provision of data to such data vendors, providers and publishers or the
redistribution of data by them in amounts materially greater than those in
effect as of the date of this Agreement, Licensor may terminate this Agreement
with regard to any one or more Indexes upon written notice to Licensee.
5. Licensor's Obligations.
(a) Licensor is not, and shall not be, obligated to, but may, engage in any
way or to any extent in (i) any marketing or promotional activities relating to
the Products or (ii) making any representation or statement to investors or
prospective investors in connection with the marketing or promotion of the
Products by Licensee.
(b) Licensor agrees to provide reasonable support for Licensee's
development and educational efforts with respect to the Products as follows:
(i) Licensor shall respond in a timely fashion to any reasonable
requests from Licensee for information regarding the Indexes;
(ii) Licensor or its agent shall, or shall arrange for a third party
vendor to, calculate and disseminate the value of the Indexes in accordance
with Licensor's current procedures, which procedures may be modified by
Licensor in its sole discretion at any time; and
(iii) Licensor shall promptly correct, or instruct its agent to
correct, any material mathematical errors made in Licensor's computations
of the Indexes which are brought to Licensor's attention by Licensee;
provided that nothing in this Section 5 shall give Licensee the right to
exercise any judgment or require any changes with respect to Licensor's
method of composing, calculating or determining the Indexes; provided,
further, that nothing in this Section 5 shall be deemed to modify the
provisions of Section 9.
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6. Trademark Filings; Recognition of Intellectual Property Rights;
Protection of Intellectual Property; Quality Control.
(a) Licensor shall apply for such trademark and trade name registrations
for the Licensor Marks only in such jurisdictions, if any, where Licensor, in
its sole discretion, considers such filings appropriate. Licensee shall
reasonably cooperate with Licensor in the maintenance of such rights and
registrations, and shall perform such acts and execute such instruments as may
be reasonably necessary or appropriate for such purpose. Licensee shall use the
following statement (or such similar language as may be approved in advance in
writing by Licensor) when referring to any of the Indexes or any of the Licensor
Marks in any informational materials to be used in connection with the Products
(including all prospectuses, registration statements, trade confirmations and
agreements, advertisements, brochures and promotional and any other similar
informational materials, including documents required to be filed with
governmental or regulatory agencies) that in any way use or refer to Licensor,
any of its subsidiaries or Affiliates, any of the Indexes or any of the Licensor
Marks (collectively, the "INFORMATIONAL MATERIALS"):
"BNY", "[INSERT NAME OF INDEX]" and "[INSERT INITIALS OF INDEX]" are
service marks of The Bank of New York and have been licensed for use for
certain purposes by [INSERT NAME OF LICENSEE]. [INSERT NAME OF LICENSEE]'s
[INSERT NAME OF PRODUCT(S)] based on the [INSERT NAME OF INDEX] are not
sponsored, endorsed, sold, recommended or promoted by The Bank of New York
or any of its subsidiaries or affiliates, and none of The Bank of New York
or any of its subsidiaries or affiliates makes any representation or
warranty, express or implied, to the purchasers or owners of the [INSERT
NAME OF PRODUCT(S)] or any member of the public regarding the advisability
of investing in financial products generally or in the [INSERT NAME OF
PRODUCT(S)] particularly, the ability of the [INSERT NAME OF INDEX] to
track market performance or the suitability or appropriateness of the
[INSERT NAME OF PRODUCT(S)] for such purchasers, owners or such member of
the public. The relationship between The Bank of New York, on one hand, and
[INSERT NAME OF LICENSEE], on the other, is limited to the licensing of
certain trademarks and trade names of The Bank of New York and of the
[INSERT NAME OF INDEX], which index is determined, composed and calculated
by The Bank of New York without regard to [INSERT NAME OF LICENSEE] or the
[INSERT NAME OF PRODUCT(S)]. Neither The Bank of New York nor any of its
subsidiaries or affiliates has any obligation to take the needs of [INSERT
NAME OF LICENSEE] or the purchasers or owners of the [INSERT NAME OF
PRODUCT(S)] into consideration in determining, composing or calculating the
[INSERT NAME OF INDEX]. Neither The Bank of New York nor any of its
subsidiaries or affiliates is responsible for, or has participated in, the
determination of the timing of, prices at, or quantities
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of the [INSERT NAME OF PRODUCT(S)] to be issued or in the determination or
calculation of the equation by which the [INSERT NAME OF PRODUCT(S)] is to
be converted into cash. Neither The Bank of New York nor any of its
subsidiaries or affiliates has any obligation or liability in connection
with the administration, marketing or trading of the [INSERT NAME OF
PRODUCT(S)]. NEITHER THE BANK OF NEW YORK NOR ANY OF ITS SUBSIDIARIES OR
AFFILIATES GUARANTEES THE ACCURACY OR COMPLETENESS OF THE [INSERT NAME OF
INDEX] OR ANY DATA INCLUDED THEREIN, AND NEITHER THE BANK OF NEW YORK NOR
ANY OF ITS SUBSIDIARIES OR AFFILIATES SHALL HAVE ANY LIABILITY FOR ANY
ERRORS, OMISSIONS OR INTERRUPTIONS THEREIN. NEITHER THE BANK OF NEW YORK
NOR ANY OF ITS SUBSIDIARIES OR AFFILIATES MAKES ANY WARRANTY, EXPRESS OR
IMPLIED, AS TO RESULTS TO BE OBTAINED BY [INSERT NAME OF LICENSEE],
PURCHASERS OR OWNERS OF THE [INSERT NAME OF PRODUCT(S)] OR ANY OTHER PERSON
OR ENTITY FROM THE USE OF THE [INSERT NAME OF INDEX] OR ANY DATA INCLUDED
THEREIN. NEITHER THE BANK OF NEW YORK NOR ANY OF ITS SUBSIDIARIES OR
AFFILIATES MAKES ANY EXPRESS OR IMPLIED WARRANTIES, AND EXPRESSLY DISCLAIMS
ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR
USE WITH RESPECT TO THE [INSERT NAME OF INDEX] OR ANY DATA INCLUDED
THEREIN. WITHOUT LIMITING ANY OF THE FOREGOING, IN NO EVENT SHALL THE BANK
OF NEW YORK OR ANY OF ITS SUBSIDIARIES OR AFFILIATES HAVE ANY LIABILITY FOR
ANY SPECIAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING,
WITHOUT LIMITATION, LOST PROFITS), EVEN IF NOTIFIED OF THE POSSIBILITY OF
SUCH DAMAGES.
(b) Licensee agrees that the Licensor Marks and all Intellectual Property
and other rights, registrations and entitlement thereto, together with all
applications, registrations and filings with respect to any of the Licensor
Marks and any renewals and extensions of any such applications, registrations
and filings, are and shall remain the sole and exclusive property of Licensor or
its subsidiaries and Affiliates. Licensee acknowledges that each of the Licensor
Marks is part of the business and good will of Licensor or its subsidiaries and
Affiliates, and agrees that it shall not contest the fact that Licensee's rights
in the Licensor Marks under this Agreement (i) are limited solely to the use of
the Licensor Marks in connection with the issuance, marketing or promotion of
the Products and disclosure about the Products under applicable law as provided
in Section 1(a), and (ii) shall cease upon the termination or expiration of this
Agreement, except as otherwise expressly provided herein. Upon termination of
this Agreement, Licensee shall have no further rights to use any Licensor Xxxx
in any form
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whatsoever. Licensee recognizes the value of the reputation and good will
associated with the Licensor Marks and acknowledges that such good will belongs
to Licensor or its subsidiaries and Affiliates, and that Licensor or its
subsidiaries and Affiliates, are the owners of all right, title and interest in
and to the Licensor Marks, including, without limitation, their use in
connection with the Products. Licensee further acknowledges that all rights in
any translations, derivations or modifications of the Licensor Marks which may
be created by or for Licensee shall be and remain the exclusive property of
Licensor or its subsidiaries and Affiliates, and such property shall be and
remain a part of the Intellectual Property subject to the provisions and
conditions of this Agreement. Licensee shall not, either directly or indirectly,
contest the ownership of any of the Intellectual Property. Licensee shall not,
except with Licensor's prior written consent, use any Licensor Xxxx, or the
designations "The Bank of New York", "BNY" or any other Licensor Xxxx, in
conjunction with Licensee's own trademark(s) or service xxxx(s). Licensee agrees
to cooperate with Licensor in the maintenance of such rights and registrations,
and shall perform such acts, and execute such instruments, as may be reasonably
necessary or appropriate for such purpose.
(c) In the event Licensor terminates this Agreement pursuant to Section
4(a), or Licensee terminates this Agreement pursuant to Section 4(a) or 4(b)(i),
(ii) or (iii), or the Term expires pursuant to Section 2, Licensor shall, at the
time the notice of such termination is furnished, or upon expiration of the
Term, as the case may be, continue to provide to Licensee a non-exclusive
license to continue to use the Indexes exclusively with respect to Products
previously issued by Licensee that are and remain outstanding and trading as of
the effective date of such termination or expiration (the "ISSUED PRODUCTS"),
and Licensee shall continue to be bound by all of the obligations of Licensee,
and Licensor shall continue to be entitled to all of the rights of Licensor set
forth in this Agreement with respect to the Issued Products, notwithstanding
such termination or expiration of this Agreement. Such license shall be
effective as of the effective date of termination or expiration of this
Agreement, and remain effective until the last of the Issued Products matures,
expires or terminates in accordance with its terms (without extension thereof by
amendment or otherwise). Under no circumstances shall such license apply to the
issuance of any Product by Licensee on or after the effective date of
termination or expiration of this Agreement. Notwithstanding the foregoing, if
Licensor terminates this Agreement pursuant to Section 4(a), Licensor's
obligation to continue to provide a license shall be subject to Licensee's
curing, within thirty (30) days after the effective date of termination, the
breach or harm giving rise to Licensor's termination right under Section 4(a).
Licensee shall not, as of the effective date of termination or expiration of
this Agreement, make reference to, or use in any manner or for any purpose, the
Licensor Marks, except as set forth in this Section 6(c) or as required by
applicable law, rule, regulation or court order. In no event shall Licensee
issue, trade, market or promote any Product based on one or more of the Indexes
on or after the effective date of termination or expiration of this Agreement,
as the case may be, except as provided in this Section 6(c).
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(d) Notwithstanding anything in this Agreement to the contrary, Licensee
may use the Licensor Marks after the effective date of termination for the
purpose of providing any notification of such termination as it relates to the
Products; provided that the form and substance of any such notification shall be
subject to the prior written approval of Licensor.
(e) In the event that Licensee learns of any infringement or imitation of
any of the Indexes or the Intellectual Property, or of any use by any Person of
a xxxx similar to any of the Licensor Marks, it shall promptly notify Licensor
thereof. Licensor may take such action, if any, as it deems advisable for the
protection of rights in and to the Indexes and the Licensor Marks and, if
requested to do so by Licensor, Licensee shall cooperate with Licensor in all
respects, at Licensor's expense, including, without limitation, by being a
plaintiff or co-plaintiff and, upon Licensor's reasonable request, by causing
its officers to execute appropriate pleadings and other necessary documents.
Moreover, Licensee shall not initiate any action asserting rights with respect
to any of Licensor's Intellectual Property without the express written consent
of Licensor.
(f) Licensee shall use its best efforts to protect the good will and
reputation of Licensor and its subsidiaries and Affiliates, the Indexes and the
Intellectual Property in connection with its use of the Indexes and any Licensor
Marks under this Agreement, including, but not limited to, maintaining high
standards of accuracy in advertisements, brochures and promotional and
informational materials using such Indexes and Licensor Marks. Licensee shall
submit to Licensor, for Licensor's review and approval, and Licensee shall not
use until receiving Licensor's approval thereof in writing, all Informational
Materials that in any way use or refer to Licensor, any of its subsidiaries or
Affiliates, any of the Indexes or any of the Licensor Marks. Licensor's approval
shall be required with respect to the use and description of Licensor, any of
its subsidiaries or Affiliates, any of the Indexes or any of the Licensor Marks.
Licensor shall notify Licensee of its approval or disapproval of any
Informational Materials within 72 hours (excluding any day which is a Saturday
or Sunday or a day on which the New York Stock Exchange is closed for business)
following receipt thereof from Licensee. Notwithstanding the foregoing, Licensor
shall have the right at any time to modify the use or description of Licensor,
any of its subsidiaries or Affiliates, such Indexes or such Licensor Marks, as
the case may be, in the Informational Materials so approved, upon prior written
notice to Licensee.
(g) (i) Licensee shall not use, nor permit the use of, any of the Licensor
Marks in any Informational Material as part of a composite xxxx with any of its
own marks, the marks of any of its Affiliates or the marks of any third party
(collectively, the "NON-LICENSOR MARKS"), and (ii) the Licensor Marks and the
Non-Licensor Marks, to the extent they appear in any Informational Material,
shall appear separately and shall be clearly identified with regard to
ownership. Whenever the Licensor Marks are used in any Informational Material in
connection with any of the Products, the name of Licensee
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shall appear in close proximity to the Licensor Marks so that the identity of
Licensee, and its status as an authorized licensee of such Licensor Marks, is
clear and obvious.
(h) Licensee agrees that any change proposed by Licensee with respect to
(i) the terms and conditions of the Products or (ii) the use of the Licensor
Marks shall be submitted to Licensor for, and shall be subject to, Licensor's
prior written consent.
(i) If at any time Licensor is of the opinion that Licensee is not properly
using the Intellectual Property in connection with the Products or Informational
Materials, or that the standard of quality of any of the Products or
Informational Materials does not conform to appropriate commercial standards,
Licensor shall give notice to Licensee to that effect. Upon receipt of such
notice, Licensee shall forthwith correct the defects therein, or shall forthwith
cease the issuance, marketing, promotion and sale or use of the non-conforming
Products or Informational Materials.
7. Proprietary Rights.
(a) Licensee acknowledges that the Indexes are selected, compiled,
coordinated, arranged and prepared by Licensor through the application of
methods and standards of judgment used and developed through the expenditure of
considerable work, time and money. Licensee also acknowledges that the Indexes
and the Intellectual Property are valuable assets of Licensor, and agrees that
it will take reasonable measures to prevent any unauthorized use of the
information provided to it concerning the selection, compilation, coordination,
arrangement and preparation of the Indexes.
(b) Each party shall treat as confidential and proprietary, and shall not
disclose or transmit to any third party, (i) any documentation or other
materials that are marked as "confidential" by the providing party, (ii) any and
all data and historical data regarding the Indexes and their constituent
securities, (iii) any information relating to the calculation methodology for
any of the Indexes or (iv) any of the terms of this Agreement (collectively,
"CONFIDENTIAL INFORMATION"); provided that Confidential Information shall not
include (A) any information that is available to the public or to the receiving
party from sources other than the providing party (provided that such source, to
the best of such receiving party's knowledge, is not subject to any
confidentiality obligations with regard to such information) or (B) any
information that is independently developed by the receiving party without use
of or reference to information from the providing party.
(c) Notwithstanding anything in subsection (b) above to the contrary, any
party may reveal Confidential Information to any regulatory agency or court of
competent jurisdiction if such information to be disclosed is (i) approved in
writing by the providing party for disclosure or (ii) required by applicable
law, regulatory agency or court order to be disclosed by the receiving party;
provided that, if permitted by law, prior written notice of such required
disclosure shall be given to the providing party; provided,
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further, that the receiving party shall cooperate with the providing party to
limit the extent of such disclosure.
(d) The provisions of subsections (b) and (c) above shall survive the
termination or expiration of this Agreement for a period of five (5) years from
disclosure by either party to the other of the last item of such Confidential
Information.
8. Warranties; Disclaimers.
(a) Each party represents and warrants that it has the authority to enter
into this Agreement according to its terms, and that the execution and delivery
by it of this Agreement and the performance by it of its obligations hereunder
will not violate any other agreement applicable to it or any applicable law or
regulation. Licensee represents and warrants to Licensor that the issuance,
marketing, promotion, sale and resale of the Products by it will not violate any
agreement applicable to it or any applicable laws, rules or regulations,
including, without limitation, securities, commodities and banking laws.
(b) Licensee covenants and agrees with Licensor that the Products shall at
all times comply with the descriptions thereof set forth on Schedule III.
(c) Licensee expressly agrees to be bound by the terms of the statement set
forth in Section 6(a), which terms are expressly incorporated herein by
reference and made a part hereof.
(d) Notwithstanding any other provision of this Agreement to the contrary,
and without limiting the disclaimers set forth in this Agreement (including,
without limitation, in the statement set forth in Section 6(a), in no event: (i)
shall the cumulative liability of Licensor to Licensee and its Affiliates under
or relating to this Agreement at any time exceed the aggregate amount of License
Fees received by Licensor pursuant to this Agreement prior to such time; (ii)
shall Licensor be liable for any special, consequential or punitive damages for
any act or omission in connection with this Agreement or the performance hereof;
or (iii) shall Licensor have any liability for any Loss (as defined in Section
9(a)) incurred by Licensee in connection with Licensee's use of any of the
Licensor Marks or the Indexes or the exercise of its rights under this
Agreement, except to the extent that such Loss was directly and proximately
caused by the gross negligence or willful misconduct of either of the Licensor
or by a material breach of Licensor's representations and warranties under this
Agreement.
9. Indemnification.
(a) Licensee shall indemnify and hold harmless Licensor and its Affiliates,
officers, directors, members, employees and agents against any and all
judgments, damages, liabilities, costs and losses of any kind (including,
without
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limitation, reasonable attorneys' and experts' fees and expenses) (collectively,
"LOSSES") as a result of any claim, action or proceeding that arises out of or
relates to this Agreement, the Products or Licensee's use of the Indexes or the
Licensor Marks; provided, however, that Licensor shall promptly notify Licensee
in writing of any such claim, action or proceeding (but the failure to do so
shall not relieve Licensee of any liability under this Agreement except to the
extent Licensee has been materially prejudiced thereby). Licensee may elect, by
written notice to Licensor within ten (10) days after receiving notice of such
claim, action or proceeding from Licensor, to assume the defense thereof with
counsel reasonably acceptable to Licensor. If Licensee does not so elect to
assume such defense, or disputes its indemnity obligation with respect to such
claim, action or proceeding, or if Licensor reasonably believes that there are
conflicts of interest between Licensor and Licensee or that additional defenses
are available to Licensor with respect to such defense, then Licensor shall
retain their own counsel to defend such claim, action or proceeding, at
Licensee's expense; provided that, if, in the reasonable judgment of Licensor,
any such claim, action or proceeding could, or could be expected to, affect the
rights of Licensor in or to any of the Licensor Marks or the Indexes, Licensor
may elect to control the defense of such claim, action or proceeding; provided,
further, that any such election to control shall not affect any of the
obligations of Licensee under this Agreement. Licensee shall periodically
reimburse Licensor for its expenses incurred under this Section 9. Licensor
shall have the right, at its expense, to participate in the defense of any
claim, action or proceeding against which they are indemnified under this
Agreement and with respect to which Licensee has, subject to the provisions of
this paragraph (a), assumed the defense; provided, however, that Licensor shall
have no right to consent to judgment or agree to settle any such claim, action
or proceeding, without the prior written consent of Licensee, which consent
shall not be unreasonably withheld. Except with the prior written consent of
Licensor, Licensee, in the defense of any such claim, action or proceeding,
shall not consent to entry of any judgment or enter into any settlement. In no
event shall Licensee, without the prior written consent of Licensor, consent to
the entry of any judgment, or enter into any settlement which (i) does not
include, as an unconditional term, the grant by the claimant to Licensor and all
Persons with rights of indemnification under this Agreement of a release of all
liabilities in respect of such claims or (ii) otherwise adversely affects the
rights of Licensor and all Persons with rights of indemnification under this
Agreement.
(b) The indemnification provisions set forth in this Section 9 are solely
for the benefit of Licensor and other Persons with rights of indemnification
under this Agreement, and are not intended to, and do not, create any rights or
causes of actions on behalf of any third party.
10. Suspension of Performance.
Notwithstanding anything in this Agreement to the contrary, neither
Licensor nor Licensee shall bear any responsibility or liability for any Losses
arising out
-12-
of any delay in, or interruptions of, performance of their respective
obligations under this Agreement due to any act of God, act of governmental
authority or act of public enemy, or due to war, the outbreak or escalation of
hostilities, riot, fire, flood, civil commotion, insurrection, labor difficulty
(including, without limitation, any strike, other work stoppage, or slow-down),
severe or adverse weather conditions, power failure, communications or other
technological failure or any other similar cause beyond the reasonable control
of the party so affected; provided, however, that this Section 10 shall not
affect Licensee's obligations under Section 9(a) in respect of any claim, action
or proceeding brought by a third party.
11. Injunctive Relief.
In the event of a material breach by one party of any of the provisions of
this Agreement relating to Confidential Information of the other party, the
Breaching Party acknowledges and agrees that damages would be an inadequate
remedy and that the Non-breaching Party shall be entitled, in addition to any
money damages, to preliminary and permanent injunctive relief to preserve such
confidentiality or limit improper disclosure of such Confidential Information;
provided that nothing in this Agreement shall preclude the Non-breaching Party
from pursuing any other action or remedy for any breach or threatened breach of
this Agreement. All remedies under this Section 11 shall be cumulative.
12. Miscellaneous.
(a) This Agreement is solely and exclusively among the parties hereto and,
except to the extent otherwise expressly provided in this Agreement, shall not
be assigned or transferred, nor shall any duty hereunder be delegated, by any
party, without the prior written consent of the other parties, and any attempt
to so assign or transfer, or delegate any duty under this Agreement without such
written consent, shall be null and void; provided, however, that any
wholly-owned subsidiary of Licensee may use the Indexes and the Licensor Marks
in connection with the issuance, marketing and promotion of the Products;
provided, further, that such subsidiary shall be, and Licensee shall remain,
subject to all of the terms and conditions of this Agreement applicable to
Licensee; provided, further, that notwithstanding anything in the foregoing to
the contrary, Licensor may assign this Agreement, in whole or in part, to any
Affiliate through which Licensor conducts all or a part of its business relating
to the licensing of Licensor Marks or Indexes. This Agreement shall be valid and
binding on the parties hereto and their successors and permitted assigns.
(b) This Agreement, including the Schedules and Exhibits hereto (which are
hereby expressly incorporated into and made a part of this Agreement),
constitutes the entire agreement of the parties hereto with respect to its
subject matter. This Agreement supersedes any and all previous agreements,
written, oral or in electronic form, among the parties with respect to the
subject matter of this Agreement. There are
-13-
no oral or written collateral representations, agreements or understandings
except as provided in this Agreement.
(c) No waiver, modification or amendment of any of the terms and conditions
of this Agreement shall be valid or binding unless set forth in a written
instrument signed by duly authorized officers of all parties. The delay or
failure by any party to insist, in any one or more instances, upon strict
performance of any of the terms or conditions of this Agreement, or to exercise
any right or privilege herein conferred, shall not be construed as a waiver of
any such term, condition, right or privilege, but the same shall continue in
full force and effect.
(d) No breach, default or threatened breach of this Agreement by any party
shall relieve any other party of its obligations or liabilities under this
Agreement with respect to the protection of the property or proprietary nature
of any property which is the subject of this Agreement.
(e) All notices and other communications under this Agreement shall be (i)
in writing, (ii) delivered by hand (with written confirmation of receipt), by
registered or certified mail (return receipt requested) or by facsimile
transmission (with confirmation of receipt), to the addresses or facsimile
numbers set forth below or to such other addresses or facsimile numbers as
either party shall specify by written notice to the other parties, and (iii)
deemed given upon receipt.
If to Licensor:
The Bank of New York
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn.: ADR Division
Fax No.: (000) 000-0000
If to Licensee:
[INSERT]
(f) This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York. Each party agrees that any legal action,
proceeding, controversy or claim between the parties arising out of or relating
to this Agreement may be brought only in the United States District Court for
the Southern District of New York or in the Supreme Court of the State of New
York in and for the First Judicial Department, and by execution of this
Agreement each party submits to the exclusive jurisdiction of such court and
waives any objection it might have based upon
-14-
improper venue or inconvenient forum. Each party hereto hereby waives any right
it may now or in the future have to a jury trial in connection with any legal
action, proceeding, controversy or claim between any of the parties arising out
of or relating to this Agreement.
(g) This Agreement (and any related arrangements between the parties) is
solely and exclusively for the benefit of the parties, their respective
subsidiaries and Affiliates, and their respective successors and permitted
assigns, and nothing in this Agreement (or any related arrangements between the
parties), express or implied, is intended to or shall confer on any other Person
(including, without limitation, any sublicensee of Licensee under this Agreement
or any purchaser of any Products issued by Licensee), any rights, benefits or
remedies of any nature whatsoever under or by reason of this Agreement (or any
such related arrangements between the parties).
(h) Sections 6(b), (c) and (d), 7(b), (c) and (d) (as provided therein), 8,
9, 11, 12(f) and (p) and this Section 12(h) shall survive the expiration or
termination of this Agreement.
(i) The parties are independent contractors. Nothing in this Agreement
shall be construed to place the parties in the relationship of partners or joint
venturers, and neither party shall acquire any power, other than as specifically
and expressly provided in this Agreement, to bind the other in any manner
whatsoever with respect to third parties.
(j) All references herein to "commercially reasonable efforts" shall
include taking into account all relevant commercial and regulatory factors. All
references herein to "regulations" or "regulatory proceedings" shall include
regulations or proceedings by self-regulatory organizations such as securities
exchanges.
(k) If any term or provision of this Agreement, or the application thereof
to any Person or circumstance, shall to any extent be held invalid or
unenforceable by a court of competent jurisdiction, such result shall not affect
the other terms and provisions of this Agreement or the application thereof
which can be given effect without the relevant term, provision or application,
and to this end the parties agree that the provisions of this Agreement are and
shall be severable.
(l) All rights, privileges and remedies afforded the parties by this
Agreement shall be deemed cumulative and not exclusive. In the event of a breach
or other failure to perform as required under this Agreement, the non-breaching
or defaulting entity shall, in addition to all rights and remedies herein
provided, have all rights and remedies available at law or in equity.
-15-
(m) This Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which together shall constitute one instrument.
(n) For purposes of this Agreement: "PERSON" means any individual,
corporation, partnership, joint venture, association, joint stock company, trust
or unincorporated association; and "Affiliate" means, with respect to any party,
any Person directly or indirectly controlling, controlled by, or under common
control with, such party; "control" when used with respect to any Person means
the power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
-16-
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the date first set forth above.
THE BANK OF NEW YORK
By:
-------------------------------------
Name:
Title:
[INSERT NAME OF LICENSEE]
By:
-------------------------------------
Name:
Title:
SCHEDULE I
INDEXES AND LICENSOR MARKS
I-1
SCHEDULE II
TERRITORIES
II-1
SCHEDULE III
INDEXES BEING LICENSED
III-1
SCHEDULE IV
PRODUCTS DESCRIPTION
IV-1
SCHEDULE V
ROYALTIES, LICENSE AND ADMINISTRATIVE FEES
VI-1
