LICENSE AGREEMENT
LICENSE
AGREEMENT, dated as March 7, 2008 (the "Commencement Date") by and between
Xxxx.xxx Managed Products Inc., a subsidiary of Xxxx.xxx Inc.("LICENSEE"), a
Delaware corporation, having an office at 000 Xxxxxxxx, Xxx Xxxx, XX 00000, and
Equities Global Communications, Inc.("LICENSOR"), having an office at 0000
Xxxxxxxx Xxxxxxxxx #000, Xxxxx Xxxxxx, XX 00000.
WHEREAS,
LICENSOR compiles, calculates, maintains and owns rights in and to the EQUITIES®
Hedge Fund Index and to the proprietary data therein contained (such rights
being hereinafter individually and collectively referred to as the "Equities
Index"); and
WHEREAS,
the LICENSOR uses in commerce and has trade name and trademark license rights to
the designations ”EQUITIES®" and "EQUITIES® Hedge Fund Index", in
connection with the Equities Index (such rights being hereinafter individually
and collectively referred to as the "Equities Marks"); and
WHEREAS,
LICENSEE wishes to license the use of the Equities Index and the Equities Marks
in connection with the use, marketing and/or promotion of the Equities Index
under applicable law, rules and regulations; and
WHEREAS,
LICENSEE wishes to obtain LICENSOR's authorization to sub-license the Equities
Index and the Equities Marks pursuant to the terms and conditions hereinafter
set forth.
NOW,
THEREFORE, the parties hereto agree as follows:
1. Grant
of License.
(b) LICENSEE
shall have the right of first refusal to enter into an arrangement concerning
the licensing of any index owned or developed by LICENSOR for use in the making,
issuance, purchase, sale, market quotation, marketing, promotion, trading or
other distribution of any investment product. LICENSOR shall have the
right to enter into such an arrangement with a third-party only (i) after
LICENSEE has refused such arrangement and (ii) if such third-party arrangement
is substantially upon the same terms and conditions offered to and refused by
LICENSEE.
(c) Each
of LICENSEE and LICENSOR shall use reasonable efforts to protect the goodwill
and reputation of the Equities Index and of the Equities Marks in connection
with the use of the Equities Index and the Equities Marks under this
Agreement.
2. Term.
The
term of this Agreement shall commence on the Commencement Date and shall
continue in effect thereafter until it is terminated in accordance with its
terms.
3. License
Fees.
(a) The
LICENSEE shall pay to LICENSOR 5% of all sub-license fees collected by
the LICENSEE from all sub-licensees of the Equity Index (the “License
Fees”). For any use of the Equities Index by the Licensee or an affiliate,
license fees to be paid to the LICENSOR shall be determined upon agreement by
the parties.
(b) During
the term of this Agreement and for a period of one (1) year after its
termination, LICENSOR shall have the right, during normal business hours and
upon reasonable notice to Licensee, to audit on a confidential basis the
relevant books and records of LICENSEE to determine that License Fees have been
accurately determined. The costs of such audit shall be borne by LICENSOR unless
it determines that it has been underpaid by five percent (5%) or more; in such
case, costs of the audit shall be paid by Licensee. Unless required by law, a
court or a regulatory agency, LICENSOR and its agents shall maintain as
confidential and not disclose information and documents received or reviewed in
connection with the audit.
(a) At
any time during the term of this Agreement, either party may give the other
party sixty (60) days prior written notice of termination if the terminating
party believes in good faith that material damage or harm is occurring to the
reputation or goodwill of that party by reason of its continued performance
hereunder, and such notice shall be effective on the date specified therein of
such termination, unless the other party shall correct the condition causing
such damage or harm within the notice period.
(b)
In the case of breach of any of the material terms or conditions of this
Agreement by either party, the other party may terminate this Agreement by
giving sixty (60) days prior written notice of its intent to terminate, and such
notice shall be effective on the date specified therein for such termination
unless the breaching party shall correct such breach within the notice
period.
(c) LICENSOR
shall have the right, in its sole discretion, to cease compilation and
publication of the Equities Index and, in such event, to terminate this
Agreement if LICENSOR does not offer a replacement or substitute index. In the
event that LICENSOR intends to discontinue the Equities Index, LICENSOR shall
give LICENSEE at least six months (6) month’s written notice prior to such
discontinuance, which notice shall specify whether a replacement or substitute
index will be made available.
LICENSEE
shall have the option hereunder within sixty (60) days after receiving such
written notice from LICENSOR to notify LICENSOR in writing of its election to
publish, compile, calculate, maintain and license the Equities Index itself or
of its intent to use the replacement or substitute index, if any, under the
terms of this Agreement. In the event that LICENSEE does not exercise such
options or no substitute or replacement index is made available, this Agreement
shall be terminated as of the date specified in the LICENSOR notice and the
License Fees to the date of such termination shall be computed as provided in
Subsection 4(f).
(d)
LICENSEE may terminate this Agreement upon ninety (90) days prior written
notice to LICENSOR if (i) LICENSEE is informed of the final adoption of any
legislation or regulation or the issuance of any interpretation that in
LICENSEE's reasonable judgment materially impairs LICENSEE's ability to market
and/or promote product using the Equities Index; (ii) any material litigation or
regulatory proceeding regarding any products using the Equities Index is
threatened or commenced; or (iii) LICENSEE in its sole discretion chooses to
cease use of the Equities Marks and the Equities Index. In such event the
License Fees to the date of such termination shall be computed as provided in
Subsection 4(f).
(e) LICENSOR
may terminate this Agreement upon ninety (90) days (or upon such lesser
period of time if required pursuant to a court order) prior written notice
to LICENSEE if (i) LICENSOR is informed of the final adoption of any legislation
or regulation or the issuance of any interpretation that in LICENSOR's
reasonable judgment materially impairs LICENSOR's ability to license and provide
the Equities Index and Equities Marks under this Agreement; or (ii) any
litigation or proceeding is threatened or commenced and LICENSOR reasonably
believes that such litigation or proceeding would have a material
and adverse effect upon the Equities Marks and/or the Equities Index or
upon the ability of LICENSOR to perform under this Agreement. In such event the
License Fees to the date of such termination shall be computed as provided
in Subsection 4(f).
(f)
In the event of termination of this Agreement as provided in Subsections
4(a), (b), (c), (d) or (e), the License Fees to the date of such
termination shall be computed by prorating the amount of the applicable
License Fees on the basis of the number of elapsed days in the current
term. Any excess License Fees amount paid by LICENSEE for the current term shall
be refunded by LICENSOR.
(g) Upon
termination of this Agreement, LICENSEE shall cease to sub-license the
Equities Index and the Equities Marks; provided that LICENSEE may continue to
utilize any previously printed materials which contain the Equities Marks for a
period of ninety (90) days following such termination.
5. LICENSOR's
Obligations.
(a)
LICENSEE shall have no responsibility for ensuring that LICENSOR employees
comply with LICENSOR policies and applicable rules and regulations.
LICENSOR shall have no liability to the LICENSEE with respect to its
employees' adherence or failure to adhere to its policies and applicable rules
and regulations.
(b) LICENSOR
shall not and is in no way obliged to engage in any marketing or
promotional activities in connection with the Product or in making any
representation or statement to investors or prospective investors in connection
with the promotion by LICENSEE of any investment products using the Equities
Index.
(c) LICENSOR
agrees to provide reasonable support for LICENSEE's development, marketing
and educational efforts with respect to investment products using the
Equities Index as follows: (i) LICENSOR shall provide LICENSEE, upon request but
subject to any agreements of confidentiality with respect thereto, copies of the
results of any marketing research conducted by or on behalf of LICENSOR with
respect to the Equities Index; and (ii) LICENSOR shall respond in a timely
fashion to any reasonable requests for information by LICENSEE regarding the
Equities Index.
(d) LICENSOR
or its agent shall calculate and disseminate the Equities Index at
least once each fifteen (15) seconds in accordance with its
current procedures, which procedures may be modified by
LICENSOR.
(e) LICENSOR
shall promptly correct or instruct its agent to correct any mathematical
errors made in LICENSOR's computations of the Equities Index 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 Equities Index; and, provided further, that nothing herein shall
be deemed to modify the provisions of Section 9 of this
Agreement.
6. Informational
Materials.
LICENSEE
shall use its best efforts to protect the goodwill and reputation of
LICENSOR and of the Equities Marks in connection with its use of the Equities
Marks under this Agreement. LICENSEE shall review and approve all informational
materials pertaining to and to be used in connection with any product using the
Equities Index, including, where applicable, all prospectuses, plans,
registration statements, application forms, contracts, videos, internet sites,
electronic commerce, 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,
the Equities Index, or the Equities Marks (the "Informational
Materials").
7. Protection
of Value of License.
(a) During
the term of this Agreement, LICENSOR shall use its best efforts to maintain
in full force and effect federal registrations for "EQUITIES (R)", and "EQUITIES® Hedge Fund
Index". LICENSOR shall at LICENSOR's own expense and sole discretion
exercise LICENSOR's common law and statutory rights against infringement of the
Equities Marks, copyrights and other proprietary rights.
(b) LICENSEE
shall cooperate with LICENSOR in the maintenance of such rights and
registrations and shall take such actions and execute such instruments as
LICENSOR may from time to time reasonably request, and shall use the following
notice when referring to the Equities Index or the Equities Marks in any
Informational Material:
8. Proprietary
Rights.
(a)
LICENSEE acknowledges that the Equities Index is selected, 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 by LICENSOR. LICENSEE also acknowledges that
the Equities Index and the Equities Marks are the exclusive property
of LICENSOR, that LICENSOR has and retains all proprietary rights therein
(including, but not limited to trademarks and copyrights) and that the Equities
Index and its compilation and composition and changes therein are in the control
and discretion of LICENSOR.
(b)
LICENSOR reserves all rights with respect to the Equities Index and the Equities
Marks except those expressly licensed to LICENSEE hereunder.
(c) Each
party shall treat as confidential and shall not disclose or transmit to any
third party any documentation or other written materials that are marked as
"Confidential and
Proprietary" by the providing party ("Confidential Information").
Confidential Information shall not include (i) any information that is available
to the public or to the receiving party hereunder from sources other than the
providing party (provided that such source is not subject to a
confidentiality agreement with regard to such information) or (ii) any
information that is independently developed by the receiving party without use
of or reference to information from the providing party. Notwithstanding the
foregoing, either party may reveal Confidential Information to any
regulatory agency or court of competent jurisdiction if such information to be
disclosed is (a) approved in writing by the other party for disclosure or
(b) required by law, regulatory agency or court order to be disclosed by a
party, provided, if permitted by law, that prior written notice of such
required disclosure is given to the other party and provided further
that the providing party shall cooperate with the other party to limit the
extent of such disclosure. The provisions of this Subsection 8(c) shall survive
any termination 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.
9. Warranties;
Disclaimers.
(a) LICENSOR
represents and warrants that LICENSOR has the right to grant the rights
granted to LICENSEE herein and that the license granted herein shall not
infringe any trademark, copyright or other proprietary right of any person not a
party to this Agreement.
(b)
LICENSOR further warrants and represents to LICENSEE that the Equities Marks and
the Equities Index are the exclusive property of LICENSOR, that LICENSOR
has and retains all proprietary rights therein (including, but not limited
to trademarks and copyrights), that the Equities Index and its compilation
and composition and changes therein are in the control and discretion of
LICENSOR, and that the Equities Index and Equities Marks do not infringe the
rights of any third party.
(c) Each
party represents and warrants to the other that it has the authority to
enter into this Agreement according to its terms and that its performance does
not violate any laws, regulations or agreements applicable to it.
(d) Neither
party shall have any liability for lost profits or indirect, punitive,
special, or consequential damages arising out of this Agreement, even if
notified of the possibility of such damages. In no event shall the cumulative
liability of LICENSOR to LICENSEE exceed the average annual License Fees
actually paid to LICENSOR hereunder.
(e)
The provisions of this Section 9 shall survive any termination of this
Agreement.
10. Indemnification.
(a)
LICENSEE shall indemnify and hold harmless LICENSOR, its affiliates and
their officers, directors, employees and agents against any and all
judgments, damages, costs or losses of any kind (including reasonable
attorneys' and experts' fees) as a result of any third-party claim, action, or
proceeding that arises out of or relates to this Agreement, except
insofar as it relates to a breach by LICENSOR of its representations or
warranties hereunder, however, that LICENSOR notifies LICENSEE promptly of
any such claim, action or proceeding. LICENSEE shall periodically reimburse
LICENSOR for its reasonable expenses incurred under this Subsection 10(a).
LICENSOR shall have the right, at its own expense, to participate in the
defense of any claim, action or proceeding against which it is indemnified
hereunder; provided, however, it shall have no right to control the defense,
consent to judgment, or agree to settle any such claim, action or proceeding
without the written consent of LICENSEE without waiving the indemnity
hereunder. LICENSEE, in the defense of any such claim, action or
proceeding except with the written consent of LICENSOR, shall not consent to
entry of any judgment or enter into any settlement which either (a) does not
include, as an unconditional term, the grant by the claimant to LICENSOR of
a release of all liabilities in respect of such claims or (b) otherwise
adversely affects the rights of LICENSOR. This provision shall
survive the termination or expiration of this Agreement.
(b)
LICENSOR shall indemnify and hold harmless LICENSEE, its affiliates and
their officers, directors, employees and agents against any and all judgments,
damages, costs or losses of any kind (including reasonable attorneys' and
experts' fees) as a result of any third-party claim, action, or proceeding
that arises out of or relates to any breach by LICENSOR of its representations
or warranties under this Agreement; provided, however, that (a) LICENSEE
notifies LICENSOR promptly of any such claim, action or proceeding; (b) LICENSEE
grants LICENSOR control of its defense and/or settlement; and (c) LICENSEE
cooperates with LICENSOR in the defense thereof. LICENSOR shall periodically
reimburse LICENSEE for its reasonable expenses incurred under this Subsection
10(b). LICENSEE shall have the right, at its own expense, to participate in the
defense of any claim, action or proceeding against which it is indemnified
hereunder; provided, however, it shall have no right to control the defense,
consent to judgment, or agree to settle any such claim, action or proceeding
without the written consent of LICENSOR without waiving the indemnity
hereunder. LICENSOR, in the defense of any such claim, action or proceeding,
except with the written consent of LICENSEE, shall not consent to entry of
any judgment or enter into any settlement which either (a) does not include, as
an unconditional term, the grant by the claimant to LICENSEE of a release of all
liabilities in respect of such claims or (b) otherwise adversely affects
the rights of LICENSEE. This provision shall survive the termination or
expiration of this Agreement.
11. Suspension
of Performance.
Neither
LICENSOR nor LICENSEE shall bear responsibility or liability for any losses
arising out of any delay in or interruptions of their respective performance of
their obligations under this Agreement due to any act of God, act of
governmental authority, act of the 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, or
other work stoppage or slow down), severe or adverse weather conditions,
communications line failure, or other similar cause beyond the reasonable
control of the party so affected.
12. Other
Matters.
(a) This
Agreement is solely and exclusively between the parties hereto and shall
not be assigned or transferred by either party, without prior written
consent of the other party, and any attempt to so assign or transfer this
Agreement without such written consent shall be null and void.
(b) This
Agreement constitutes the entire agreement of the parties hereto with
respect to its subject matter and may be amended or modified only by a
writing signed by duly authorized officers of both parties. This Agreement
supersedes all previous agreements between the parties with respect to the
subject matter of this Agreement. There are no oral or written collateral
representations, agreements, or understandings except as provided
herein.
(c) No
breach, default, or threatened breach of this Agreement by either party
shall relieve the 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.
(d) Except
as set forth in Section 6 hereof with respect to Informational Materials,
all notices and other communications under this Agreement shall be (i) in
writing, (ii) delivered by hand, by registered or certified mail, return receipt
requested, or by facsimile transmission to the address or facsimile number set
forth below or such address or facsimile number as either party shall specify by
a written notice to the other and (iii) deemed given upon receipt.
Notice to
LICENSOR:
Equities
Global Communications, Inc.
0000
Xxxxxxxx Xxxxxxxxx #000
Xxxxx
Xxxxxx, XX 00000
Attn:
Xxxxx Xxxxxxx
Chief Executive Officer
Fax #:
000-000-0000
Email:
XXxxxxxx@xxxxxxxxxxxxxxxx.xxx
Notice to
LICENSEE:
Xxxx.xxx
Managed Products Inc.
000
Xxxxxxxx, 0xx
Xxxxx
Xxx Xxxx,
XX 00000
Attn:
Xxxxxxx Xxxx
Chief Executive Officer
Fax
#: 000-000-0000
Email:
xxxxx@xxxx.xxx
(f) This
Agreement shall be interpreted, construed and enforced in accordance with the
laws of the State of New York.
(g) Each
party agrees that in connection with any legal action or proceeding arising with
respect to this Agreement, they will bring such action or proceeding only in the
United States District Court for the District of New York or in the Supreme
Court of the State of New York in and for the First Judicial Department and each
party agrees to submit to the jurisdiction of such court and venue in such court
and to waive any claim that such court is an inconvenient forum.
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the
date first set forth above.
Equities
Global Communications,
Inc. Xxxx.xxx
Managed Products Inc.
a
subsidiary of Xxxx.xxx Inc.
By: /s/ Xxxxx
Xxxxxxx
By: /s/
Xxxxxxx Xxxx
Name:
Xxxxx
Xxxxxxx
Name: Xxxxxxx
Xxxx
Title:
Chief Executive
Officer Title: Chief Executive
Officer
