STANDARD & POOR’S MASTER INDEX LICENSE AGREEMENT
STANDARD
& POOR’S
This
AGREEMENT,
entered
into as of the Effective Date, as set forth below, is made by and between
STANDARD
& POOR’S, a
division of The XxXxxx-Xxxx Companies, Inc., a New York corporation (“S&P”)
whose principal office is located at 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000;
and
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(“Licensee”)
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STREET
ADDRESS:
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000
Xxxx Xxxxxxxx Xxxxxx
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XXXX,
XXXXX, XXX CODE:
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Xxxxxxxxx,
XX, 00000
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TYPE
OF ENTITY/
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Registered
Investment Company/Delaware Business Trust
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EFFECTIVE
DATE:
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January
25, 2008
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WHEREAS,
S&P compiles,
calculates, maintains and
owns
rights in and
to
certain indices and/or has obtained a license from certain third
party licensors
authorizing S&P
either
to
compile, calculate, maintain and/or
disseminate
certain
indices
and
license the use
of
such indices to third
parties
as provided hereunder (each an “Index” and
collectively
the
“Indices”);
and
WHEREAS,
S&P uses
in
commerce and
has
trade
name and trademark
rights to designations in connection with
the
Indices and/or
S&P
has
obtained a license from its
third
party licensors,
each of which use in commerce and
own
trade name and trademark rights to
designations in connection
with the Indices (such
designations referred to herein as the
“Xxxx(s)”)
authorizing S&P
to
use
the
Marks
in the name of
the
corresponding
Index or Indices and
to
license the
Marks
to third parties in connection with the Indices; and
WHEREAS,
Licensee wishes to license the use of
the
Indices and the Marks as
provided herein for Licensee’s legitimate business purposes as permitted
hereunder.
NOW,
THEREFORE, in consideration of the mutual promises
herein contained, it
is
agreed as follows:
1.
LICENSE
GRANT. Subject
to the terms and conditions of this Agreement and the applicable Order Schedule
(as defined in Section 2 below), S&P hereby grants to Licensee a
non-exclusive, limited and non-transferable license (i) to use the Indices
specified in the applicable Order Schedule as a component of Licensee’s product
or products specified in the applicable Order Schedule (referred to herein
as
“Product(s)”) to be issued, entered into, written, sold and/or purchased by
Licensee and (ii) to use and refer to the Marks specified in the applicable
Order Schedule in connection with the distribution, marketing and promotion
of
the Product(s) and in connection with making such disclosure about the
Product(s) as Licensee deems necessary or desirable under any applicable laws,
rules, regulations or provisions of this Agreement, but, in each case, only
to
the extent necessary to indicate the source of the Index. Any rights not
expressly granted herein are hereby reserved by S&P.
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2.
ORDER
SCHEDULES.
A.
Neither Licensee nor any of its Affiliates (as defined in Subsection 2(B) below)
shall have access to or use of any of the Indices and/or Marks unless such
entity enters into an Order Schedule as set forth herein. The use of an Index
and any Marks with respect to a Product is subject to additional uses and
restrictions as set forth in the Order Schedule for that Product. Licensee
may
use the Indices and/or the Marks in connection with additional Products if
S&P and Licensee each execute additional Order Schedules to this Agreement.
When executed by Licensee and S&P, each Order Schedule shall constitute a
separate agreement and, except for any provisions herein that are specifically
excluded or modified in such Order Schedule, shall incorporate therein the
terms
and conditions of this Agreement. In the event of any conflict between the
terms
of this Agreement and the terms of any Order Schedule, the terms of the Order
Schedule shall prevail with respect to that Order Schedule only. Except as
may
be specifically provided for in writing by authorized representatives of each
party, any modifications contained in any Order Schedule shall not modify,’ this
Agreement with respect to any other Order Schedule.
B.
An
Affiliate of Licensee may, upon mutual consent of the parties, enter into Order
Schedules under this Agreement, which Order Schedules shall govern such
Affiliate’s use of any Indices and/or Marks under this Agreement. For purposes
of this Agreement, an “Affiliate” shall mean an entity either directly or
indirectly Controlled by, Controlling or under common Control with the entity
named as Licensee above. “Control” means an equity voting interest of more than
fifty percent (50%)
or
the sole power to direct or cause the direction of the management or policies
of
the entity, whether through the ability to exercise voting power, by contract
or
otherwise.
3.
TERM
AND TERMINATION.
A.
This
Agreement shall commence as of the Effective Date and shall continue in effect
thereafter for as long as any Order
Schedule entered into pursuant to this Agreement remains in effect. Unless
otherwise specified in the Order Schedule, (i) the term of each Order Schedule
shall commence on the
Commencement Date as specified in the applicable Order Schedule and shall
continue for the duration of the initial term as specified therein (the “Initial
Term”), and (ii) following the Initial Term, each Order Schedule shall
automatically renew for successive one (1) year terms (each a “Renewal Term”)
(the Initial Term and Renewal Term(s), together the “Term”) unless either party
notifies the other in writing of its decision not to extend the term of the
applicable Order Schedule at least thirty (30) days prior to the expiration
of
the Term then in effect.
B.
Either
party may terminate any Order Schedule by giving (60) days prior written notice
to the other party if the terminating party believes in good faith that material
damage or harm is threatened or occurring to its reputation or goodwill by
reason of its continued performance thereunder; provided, however, that such
termination shall not take effect if the condition threatening or causing such
damage or harm is corrected within such notice period.
C.
In the
event of any breach of the material terms or conditions of this Agreement or
any
Order Schedule by either party, the other party may terminate the applicable
Order Schedule by giving thirty (30) days prior written notice thereof;
provided, however, that such termination shall not take effect if the party
in
breach cures or corrects the breach within such notice period.
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D.
Either
party may terminate any or all Order Schedules immediately upon written notice
to the other if the other party is adjudicated as bankrupt or if a petition
in bankruptcy is filed by or against the other party or if the other party
makes an assignment for the benefit of creditors or an arrangement pursuant
to
any bankruptcy act or insolvency laws.
E.
During
the Term of the applicable Order Schedule, S&P shall inform Licensee
promptly upon any termination of S&P’s right to license the Indices or Marks
of any third party licensor; and in such event the parties shall modify the
Order Schedule accordingly and Licensee’s right to such Index or Marks shall
terminate without liability to S&P.
F.
S&P shall inform Licensee of any change in any Xxxx during the term of any
Order Schedule pursuant to which Licensee licenses such changed Xxxx. In such
event, Licensee shall have sixty (60) days from receipt of such written notice
to change the name of the applicable Product, update all Product literature
and
comply with other requirements in connection therewith. Should Licensee fail
to
do so within such sixty (60) day period, S&P shall have the right to
terminate the applicable Order Schedule.
G.
S&P shall have the right, in its sole discretion, to cease creation,
compilation and publication of any S&P Index and S&P shall be under no
obligation to offer a replacement or substitute index. In such event, S&P
shall give Licensee at least ninety (90) days written notice prior to such
discontinuance, which notice shall specify whether a replacement or substitute
index will be made available. In the event that Licensee desires to use such
offered replacement or substitute index under the terms of this Agreement and
the applicable Order Schedule, it shall so notify S&P in writing within
sixty (60) days after receiving such written notice from S&P. In the event
that Licensee does not provide S&P with such written notice within the
specified time period or no substitute or replacement index is made available,
the applicable Order Schedule shall be terminated as of the date specified
in
the S&P notice.
H.
Licensee may terminate the applicable Order Schedule upon ninety (90) days
prior
written notice to S&P 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 the Product; (ii) any material litigation or regulatory
proceeding regarding the Product is threatened or commenced; or (iii) Licensee
elects to terminate the public offering or other distribution of the Product,
as
may be applicable.
I.
S&P may terminate the applicable Order Schedule 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) S&P is informed of the final adoption of
any legislation or regulation or the issuance of any interpretation that in
S&P’s reasonable judgment materially impairs S&P’s ability to license
and provide the Index and/or the Marks under this Agreement and the applicable
Order Schedule in connection with a Product; or (ii) any litigation or
proceeding is threatened or commenced and S&P reasonably believes that such
litigation or proceeding would have a material and adverse effect upon the
Index
and/or Marks or upon the ability of S&P to perform under this Agreement or
the applicable Order Schedule.
J.
In the
event of termination of any Order Schedule(s) under this Agreement, fees payable
to S&P thereunder shall be computed based on the number of days remaining in
the then-current Term, up to and including the date of expiration of such Term;
except in the event Licensee terminates pursuant to Subsection 3(C) or S&P
terminates pursuant to Subsections 3(E), 3(F) and/or 3(G) hereunder, in which
case, applicable fees payable to S&P shall be computed by prorating the
amount of the applicable fees on the basis of the number of elapsed days in
the
current Term up to and including the effective date of such termination. The
foregoing is in addition to any and all rights S&P may have under this
agreement, in law or in equity.
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K.
Upon
termination of any Order Schedule(s) by either party, Licensee shall cease
all
use of the Index and the Marks affected thereby and Licensee shall not issue
any
additional Products that attempt to use or refer to any Index or Marks. At
S&P’s request, Licensee shall certify to S&P in writing that Licensee
has fully complied with this requirement.
L.
Upon
termination of all the Order Schedules, this Agreement shall automatically
terminate.
4.
FEES/PAYMENTS.
A.
As
consideration for the license granted by S&P under this Agreement, Licensee
shall pay the fees as set forth in the applicable Order Schedule
commencing on the
Commencement Date (unless otherwise set forth therein). All fees due to S&P
hereunder are exclusive of any taxes or delivery costs, which shall be the
responsibility of Licensee. Such fees shall be due and payable by Licensee
to
S&P regardless of whether Licensee exercises the license described in
Section 1 of this Agreement.
B.
Licensee shall at all times during the term of this Agreement and for as long
as
any Product(s) are outstanding, maintain full and accurate records (including
applicable data in electronic format) with respect to usage of the Indices
and
Marks for the most recent thirty-six (36) months. During the term of this
Agreement and for a two (2) year period after termination of the applicable
Order Schedule or any Product described therein, S&P shall have the right,
during normal business hours and upon reasonable notice to Licensee, to (i)
audit and review relevant portions of those records and (ii) audit the manner
of
usage of the Indices and Marks by Licensee, in each case to confirm that usage
has been accurately determined and restrictions on use
have
been observed. S&P’s failure to conduct an audit pursuant to this Subsection
4(B) shall not relieve Licensee from its responsibilities to comply fully with
the terms and conditions of this Agreement and all Order Schedules. Licensee
agrees to permit S&P or its representatives to periodically inspect, at
Licensee’s location(s) and during reasonable hours and at reasonable intervals,
any network or platform on or
by
which any portion of the Indices or Marks are accessed for purposes of
establishing compliance with the terms of this Agreement. S&P agrees to
keep, and shall require its auditors to keep confidential, and not to use or
disseminate, any information obtained in connection with the audit or review
pursuant to this Subsection 4(B). The costs of such audit shall be bone by
S&P unless such audit reveals an underpayment by Licensee of five percent
(5%) or more; in such case, Licensee shall reimburse S&P for its costs and
expenses in conducting such audit.
C.
If any
fees paid to S&P hereunder are subject to withholding taxes by a country
other than the country of tax residence of S&P (“Home Country”), Licensee
shall provide to S&P an original receipt from the tax authorities of such
foreign country evidencing the amount of tax withheld. Such receipt shall be
furnished at the time such fee is paid to S&P or as soon thereafter as is
practicable. If S&P is denied a foreign tax credit due to the failure of
Licensee to provide satisfactory evidence of the amount withheld, Licensee
shall
pay to S&P an amount sufficient to compensate, on an
after
tax basis, for the credit denied. If a tax treaty exists between the Home
Country and the foreign country that is subjecting the fees to withholding
taxes, S&P hereby elects to apply the withholding rate applicable under such
tax treaty. If Licensee requires a special certificate from S&P to make the
election, the certificate must be provided to S&P at the time of execution
of this Agreement or the applicable Order Schedule.
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5.
S&P’S
OBLIGATIONS.
A.S&P
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 the Product.
B.
S&P agrees to provide reasonable support for Licensee’s development and
educational efforts with respect to the Product as follows: (i) S&P 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 S&P with respect to the Index; and (ii) S&P shall
respond in a timely fashion to any reasonable requests for information by
Licensee regarding the Index, but subject to any agreements of confidentiality
with respect thereto.
6.
INFORMATIONAL
REVIEW. Licensee
shall use its best efforts to protect the goodwill and reputation of S&P and
of the Marks in connection with its use of the Index and the Marks under this
Agreement and any Order Schedule. Licensee shall submit to S&P for its
review and approval all informational materials pertaining to and to be used
in
connection with the Product, including, where applicable, all prospectuses,
plans, registration statements, application forms, contracts, videos, internet
sites, electronic commerce, advertisements, brochures and promotions 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
S&P, any Index, or any Marks (the “Informational Materials”). S&P’s
approval shall be required with respect to the use of and description of
S&P, any Index or any Marks and shall not be unreasonably withheld or
delayed by S&P. Specifically, S&P shall notify Licensee of its approval
or disapproval of any Informational Materials within the time frame specified
in
the applicable Order Schedule following receipt thereof from Licensee. Any
disapproval shall indicate S&P’s reasons therefore. Any failure by S&P
to respond within such time frame specified in the applicable Order Schedule
shall be deemed to constitute a waiver of S&P’s right to review such
Informational Materials. Informational Materials shall be addressed to S&P
as set forth in the applicable Order Schedule. Once Informational Materials
have
been approved by S&P, subsequent Informational Materials which do not
materially alter the use or description of S&P, the Index, or the Marks need
not be submitted for review and approval by S&P.
0.XXXXXXXXXX
OF VALUE
OF
LICENSE.
A.
Licensee shall cooperate with S&P in the maintenance of rights and
registrations in the Marks and shall take such actions and execute such
instruments as S&P may from time to time reasonably request, and shall use
the following notice when referring to any Index or any Xxxx (as set forth
in
the applicable Order Schedule) in any Informational Material:
“[Insert
S&P Marks] are
trademarks of The XxXxxx-Xxxx Companies, Inc. and have been licensed for use
by
[insert
Licensee].“[Insert third party licensor Marks] are
trademarks of the [insert
third party licensor] and
have
been licensed for use by Standard & Poor’s. The Product is not sponsored,
endorsed, sold or promoted by Standard & Poor’s or the [insert
third party licensor] and
neither
Standard
&
Poor's nor the [insert
third party licensor] make
any
representation regarding the advisability of investing in the
Product.”
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Licensee
may use other language as may be approved in advance by S&P in accordance
with Section 6, it being understood that such notice need only refer to the
specific Marks listed on the applicable Order Schedules and referred to in
the
Informational Materials.
B.
Licensee shall honor all reasonable requests by S&P, other than a request to
engage as a party in litigation, to perfect and protect, at S&P’
s expense, any of S&P’s, The XxXxxx-Xxxx Companies, Inc.’s or any
third party licensor’s rights in the Indices and Marks, including but not
limited to, rights in copyright and/or trademark. Licensee shall promptly
notify
S&P
of any action by any third party known or suspected by Licensee to constitute
an
infringement of S&P’s or any third party licensor’s proprietary rights in
the Indices and Marks and shall cooperate with S&P in protecting such rights
as provided hereunder.
C.
Licensee shall not encourage or participate in the unauthorized use of any
Index
or Xxxx, nor knowingly develop or market any Product with the intention that
such Product shall be used unlawfully to violate the terms of this Agreement.
Licensee shall keep the Marks separate and distinct and not alter, modify,
or
commingle the Marks or any part or parts thereof with Licensee’s or any third
party’s marks without the prior written approval of S&P.
8.
PROPRIETARY
RIGHTS.
A.
Licensee acknowledges that each Index is selected, coordinated, arranged and
prepared by S&P and/or any of its third party licensors through the
application of methods and standards of judgment used and developed through
the
expenditure of considerable work, time and money by S&P and such third party
licensors, and Licensee acknowledges that it has no
proprietary
interest therein. Licensee also acknowledges that the Indices and the Marks
are
the exclusive property of S&P or any third party licensors, that
S&P and its third party licensors have and retain all proprietary rights
therein (including but not
limited
to copyrights) and that the Index and its compilation and composition and
changes therein are in the control and discretion of S&P and its third party
licensors.
B.
Licensee acknowledges that S&P, or its third party licensors, is the owner
of all right, title and interest in an to the Marks and the goodwill appurtenant
thereto. Licensee shall not
use
or
authorize any other party to use the Marks or any confusingly similar
designation, trademark, service xxxx or tradename anywhere in the world for
any
purposes whatsoever other than as permitted in this Agreement. Licensee shall
not contest S&P’s, or its third party licensor’s, ownership of the Marks.
Licensee shall not
(i)
assert any claim of ownership of, or any claim to, any goodwill or reputation
associated with the Marks by reason of Licensee’s licensed use thereof
hereunder; (ii) assert any claim that there has been any abrogation or
diminution of the value of the Marks resulting from the transactions
contemplated by this Agreement; or (iii) register or seek to register any of
the
Marks. Any and all uses of the Marks will inure to the benefit of S&P, or
its third party licensors, as appropriate.
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9.
DISCLAIMERS;
LIMITATION OF LIABILITY.
A.S&P
represents and warrants that S&P has the right to grant the rights granted
to Licensee herein and that, subject to the terms and conditions of this
Agreement and the applicable Order Schedule, the licenses granted herein shall
not infringe any trademark, copyright or other proprietary right of any person
not a party to this Agreement; provided however, that with respect to any third
party Indices and third party Marks, S&P represents and warrants only that
it has obtained the right from its third party licensors to license the use
of
such third party Indices and third party Marks pursuant to this Agreement.
B.
Licensee agrees expressly to be bound itself by and furthermore to include
all
of the following disclaimer and limitation language in the Informational
Materials relating to the Product(s) and upon request, shall furnish a copy
or
copies thereof to S&P:
“The
[insert
Product] is
not
sponsored, endorsed, sold or promoted by Standard & Poor’s, a division of
The XxXxxx-Xxxx Companies, Inc. (“S&P”) or its third party licensors.
Neither S&P nor its third party licensors makes any representation or
warranty, express or implied, to the owners of the [insert
Product] or
any
member of the public regarding the advisability of investing in securities
generally or in the [insert
Product] particularly
or the ability of the [insert
Index] to
track
general stock market performance. S&P's and its third party licensor’s only
relationship to [insert
Licensee] is
the
licensing of certain trademarks and trade names of S&P and the third party
licensors and of the [insert
Index] which
is
determined, composed and calculated by S&P or its third party licensors
without regard to [insert
Licensee] or
[insert
Product]. S&P
and its third party licensors have no obligation to take the needs of
[insert
Licensee] or
the
owners of the [insert
Product] into
consideration in determining, composing or calculating the [insert
Index]. Neither
S&P nor its third party licensors is responsible for and has not
participated in the determination of the prices and amount of the [insert
Product] or
the
timing of the issuance or sale of the [insert
Product] or
in the
determination or calculation of the equation by which the [insert
Product] is
to be
converted into cash. S&P has no obligation or liability in connection with
the administration, marketing or trading of the [insert
Product].
NEITHER
S&P, ITS AFFILIATES NOR THEIR THIRD PARTY LICENSORS GUARANTEE THE
ADEQUACY, ACCURACY,
TIMELINESS OR COMPLETENESS OF THE INDEX OR ANY DATA INCLUDED THEREIN OR
ANY
COMMUNICATIONS, INCLUDING BUT NOT LIMITED TO, ORAL OR WRITTEN COMMUNICATIONS
(INCLUDING ELECTRONIC COMMUNICATIONS) WITH RESPECT THERETO. S&P,
ITS
AFFILIATES AND THEIR THIRD PARTY LICENSORS SHALL NOT BE SUBJECT TO ANY DAMAGES
OR LIABILITY
FOR ANY ERRORS, OMISSIONS OR DELAYS THEREIN. S&P MAKES NO EXPRESS OR IMPLIED
WARRANTIES,
AND EXPRESSLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY OR FITNESS
FOR
A
PARTICULAR PURPOSE OR USE WITH RESPECT TO THE MARKS, THE INDEX OR ANY DATA
INCLUDED
THEREIN. WITHOUT LIMITING ANY OF THE FOREGOING, IN NO EVENT WHATSOEVER
SHALL
S&P, ITS AFFILIATES OR THEIR THIRD PARTY LICENSORS BE LIABLE FOR ANY
INDIRECT, SPECIAL,
INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED
TO,
LOSS
OF PROFITS, TRADING LOSSES, LOST TIME OR GOODWILL, EVEN IF THEY HAVE BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN CONTRACT, TORT, STRICT
LIABILITY OR OTHERWISE.
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The
[insert
S&P Marks] are
trademarks of The XxXxxx-Xxxx Companies, Inc., and have been licensed for use
by
[insert
Licensee]. The
[insert
third party licensor Marks] are
trademarks of the [insert
third party licensor] and
have
been licensed for use by S&P.”
Any
changes in the foregoing disclaimers and limitations must be approved in advance
in writing by an authorized officer of S&P.
C.
Each
party represents and warrants to the other that it has the authority to enter
into this Agreement and Order Schedule according to its terms and that its
entry
into this Agreement is lawful and does not violate any other agreement to which
it is a party.
D.
Licensee represents and warrants to S&P that the Product(s) shall (i) at all
times comply with the description in the applicable Order Schedule and shall
not
violate any of the restrictions set forth therein; and (ii) not violate any
applicable law, including but not limited to banking, commodities and securities
laws.
E.
Notwithstanding anything to the contrary in this Agreement, in no event
whatsoever shall either party be liable for any indirect, special, incidental,
punitive or consequential damages, including but not limited to, loss of
profits, trading losses, lost time or goodwill, even if they have been advised
of the possibility of such damages, whether in contract, tort, strict liability
or otherwise. S&P shall not be liable (except as expressly provided in
Subsection 10(B) below) for any claims against Licensee by third parties.
Without diminishing the disclaimers and limitations set forth in Subsection
9(B), in no event shall the maximum cumulative liability of S&P, its
affiliates, and their third party licensors in connection with the Indices
or
Marks and/or this Agreement or any Order Schedule, regardless of the form of
action, whether in contract, tort, strict liability or otherwise, exceed the
fees paid by Licensee to S&P under the applicable Order Schedule for the
Product in question in the month such liability is alleged to have arisen.
F.
No
action, regardless of form, arising from or pertaining to the Indices or Marks,
may be brought by Licensee more than one (1) year after such action has
accrued.
G.
Use of
any marks by Licensee in connection with its Product (including in the name
of
such Product) which are not the Marks is at Licensee’s sole risk.
10.
INDEMNIFICATION.
A.
Licensee,
at its sole cost and expense, shall defend, indemnify and hold S&P, its
affiliates and their officers, directors, employees and agents harmless from
and
against all losses, damages, liabilities, costs, judgments, charges and
expenses, including reasonable attorney’s fees that arises out of or relates to:
(i) this Agreement, except insofar as it relates to a breach by S&P of its
representations or warranties, agreements or covenants under this Agreement
or
any Order Schedule or (ii) the Product(s).
B.
S&P, at its sole cost and expense, shall defend, indemnify and hold Licensee
and its officers, directors, employees and agents harmless from and against
all
losses, damages, liabilities, costs, judgments, charges and expenses, including
reasonable attorneys’ fees, directly incurred by Licensee relating to any breach
by S&P of its representations or warranties under Section 9 of this
Agreement.
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C.
The
indemnification obligations contained in this Section 10 shall be subject to
the
party requesting indemnification (i) promptly notifying the other party of
any
claim or litigation that is subject to such indemnification obligation and
(ii)
permitting the indemnifying party, at its election, to control the defense
and/or (with the prior written consent of the indemnified party) settlement
of
any such claim or litigation. The party requesting indemnification shall have
the right, at its own expense, to participate in the defense of any such claim
or litigation through counsel of its own choosing, and shall in any event
cooperate reasonably with the indemnifying party in the defense of such claim
or
litigation. The indemnifying party, in the defense of any such claim, action
or
proceeding except with the written consent of the indemnified party, 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 the
indemnified party of a release of all liabilities in respect of such claims
or
(b) otherwise adversely affects the rights of the indemnified
party.
11.
SUSPENSION
OF PERFORMANCE.
Except
for Licensee’s payment obligations, neither party shall be responsible or liable
for any losses arising out of any delay in or interruption of the performance
of
its obligations under this Agreement and each Order Schedule due to any act
of
God, act of governmental authority, act of the public enemy or due to war or
terrorism, 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 at the time such causes
arise.
12.
GENERAL.
A.
Governing
Law. This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York, U.S.A., without giving effect to its rules of conflict of
laws. Licensee agrees to the exclusive jurisdiction of the state and federal
courts sitting in New York, New York, U.S.A. for the resolution of any disputes
arising from or related to this Agreement.
B.
Assignment.
This
Agreement, including any Order Schedule, shall not be assigned or transferred
by
Licensee without the prior written consent of S&P, and any attempt to so
assign or transfer this Agreement without such consent shall be null and void
and constitute a material default hereunder. In addition to and notwithstanding
the foregoing, if the ownership of Licensee at any time shall pass out of the
majority control of its then current owners by sale of stock or assets, merger
or otherwise, Licensee shall give S&P written notice not fewer than thirty
(30) days prior to the effective date of any change of control. S&P shall
have the right to terminate any or all Order Schedules by providing written
notice to Licensee within thirty (30) days following receipt of such notice
of
change of control. If S&P does not elect to terminate any or all Order
Schedules, the new owners of Licensee shall assume all of Licensee’s obligations
under this Agreement and the applicable Order Schedule(s) and shall be
responsible for adhering to all of the terms and conditions
thereof.
Page
9 of
11
C.
Confidential
Information. The
parties understand and agree that in the performance of this Agreement each
party may have access to Confidential Information of the other party. For
purposes of this Agreement, “Confidential Information” shall mean information or
data (i) that is labeled or identified clearly as confidential by the disclosing
party; or (ii) in respect of which the receiving party has received from the
disclosing party specific written notice of its proprietary and confidential
nature, either prior to or concurrently with the disclosure. Neither party
shall
disclose, directly or indirectly, in whole or in part, to any third person,
firm
or corporation, any Confidential Information which it receives from the other
party, except that any such information may be disclosed to a party’s employees.
agents or advisors (i) to the extent that party reasonably determines such
disclosure to be necessary for the performance of such party’s obligation
hereunder; and (ii) provided that the receiving party is under the same
obligations of confidentiality as are set out in this Subsection 12(C). Neither
party shall use the Confidential Information for its own benefit, or copy or
reproduce the Confidential Information, except as reasonably determined is
necessary to perform its obligations under this Agreement or any Order Schedule.
Each party shall use the same degree of care in safeguarding the Confidential
Information as it uses for its own confidential and proprietary information,
but
not less
than
a reasonable degree of care. Notwithstanding, information and data disclosed
shall not be deemed to be Confidential Information, and the receiving party
shall have no obligation to treat such information and data as Confidential
Information, if such information and data: (i) was substantially known by the
receiving party at the time of such disclosure; (ii) was known to the public
at
the time of such disclosure; (iii) becomes known to the public (other than
by
act of the receiving party) subsequent to such disclosure; (iv) is disclosed
lawfully to the receiving party by a third party subsequent to the disclosure;
(v) is developed independently by the receiving party without reference to
the
Confidential Information; (vi) is approved in writing by the disclosing party
for disclosure; or (vii) is required by law to be disclosed by the receiving
party, provided prior written notice of such required disclosure is given to
the
disclosing party. Upon request by the disclosing party or upon termination
of
this Agreement (or the applicable Order Schedule), the receiving party shall
return to the disclosing party all copies of the Confidential Information or
other materials incorporating Confidential Information in the possession of
its
employees, agents or advisors or, if so instructed by the disclosing party,
the
receiving party shall destroy all such copies, except that the parties shall
be
permitted to retain copies of the Confidential Information solely for the
purposes of complying with regulatory record keeping requirements.
D.
Entire
Agreement. This
Agreement and each Order Schedule 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 and each Order Schedule supersede all previous agreements between
the
parties with respect to its subject matter. There are no oral or written
collateral representations, agreements or understandings except as provided
herein.
E.
Headings.
Headings
used in this Agreement are for reference purposes only and shall not be deemed
a
part of this Agreement
F.
Waiver.
The
failure of a party to insist upon strict compliance with any term or provision
of this Agreement and Order Schedule on any occasion shall not be construed
as a
waiver with regard to any subsequent failure to comply with such term or
provision. No provision of this Agreement or any Order Schedule shall be waived
except by a written instrument signed by the party charged with the
waiver.
Page
10
of 11
S&P
Master Index License Agreement
G.
Severability.
If
any
part of this Agreement or any Order Schedule is held by a court of competent
jurisdiction to be invalid or unenforceable, that part will be enforced to
the
maximum extent
permitted
by law, and the remainder of this Agreement including the applicable Order
Schedule will remain fully in force.
H.
Third
Party Licensors. Licensee
agrees that any third-party licensor of any portion of the Indices or Marks
may
enforce its rights against Licensee as an intended third party beneficiary
of
this Agreement and applicable Order Schedule, even though such licensor is
not a
party to this Agreement and such Order Schedule.
I.
Effect
of Breach. No
breach, default or threatened breach of this Agreement and any Order Schedule
by
either party shall relieve the other party of its obligations or liabilities
under this Agreement and such Order Schedule with respect to the protection
of
the property or proprietary nature of any property which is the subject of
this
Agreement and Order Schedule.
J.
Notice.
Except
as
set forth in Section 6 hereof with respect to Informational Materials, all
notices and other communications under this Agreement and each Order Schedule
shall be in writing and shall be deemed to have been duly delivered, as of
the
date received, if delivered by hand, or sent postage prepaid by registered
mail
or certified mail return receipt requested, with acknowledgment by the receiving
party, to the below address or such other address as either party shall specify
in a written notice to the other.
| If to S&P: |
S&P
Contact as indicated on each Order Schedule, with a copy
to:
|
Standard
& Poor’s, a division of The XxXxxx-Xxxx
Companies,
Inc.
00
Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
Attention:
Global Licensing & Contracts
and
a
required copy to:
The
XxXxxx-Xxxx Companies, Inc.
0000
Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000
Attention:
General Counsel
K.
Survival.
Sections
3(J), 3(K), 4, 8, 9, 10 and 12 shall survive any termination of this Agreement
or any Order Schedule.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as
of the Effective Date.
|
STANDARD
& POOR’S, a division of
|
||||
|
The
XxXxxx-Xxxx Companies, Inc.
|
||||
|
By:
|
By:
|
|||
|
Name:
|
Name:
|
|||
|
Title:
|
Title:
|
|||
|
Date:
|
Date:
|
|||
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