CONFIDENTIAL
XXXXXX XXXXXXX CAPITAL INTERNATIONAL
INDEX LICENSE AGREEMENT
AGREEMENT, dated as of October 15, 2001, by and between XXXXXX XXXXXXX
CAPITAL INTERNATIONAL INC. ("MSCI"), a Delaware corporation, having an office at
0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000, and SSgA FUNDS, a Massachusetts
business trust, having an office at 000 X Xxxxxx, Xxxxxx, XX 00000, on behalf of
the SSgA MSCI EAFE Index Fund ("Licensee"),
WHEREAS, MSCI owns rights to, and engages in a variety of business
activities in connection with, certain stock indexes and the proprietary data
contained therein, among which are the data and indexes listed in Exhibit A,
annexed hereto and made a part hereof (such indexes and data contained therein
are hereinafter referred to as the "Indexes" and the "Data");
WHEREAS, MSCI calculates, maintains and disseminates the Data and the
Indexes;
WHEREAS, MSCI and its affiliates use in commerce and own trade name,
trademark and service xxxx rights to the designations Xxxxxx Xxxxxxx Capital
International; MSCI(R); SiMSCI, ACWI, EMF; and EAFE(R) and other MSCI marks
referred to herein (such rights are hereinafter individually and collectively
referred to as the "Marks");
WHEREAS, Licensee wishes to use the Data and the Indexes as the bases of
the funds described in Exhibit B, annexed hereto and made a part hereof (the
"Funds");
WHEREAS, Licensee wishes to use the Data, Indexes and Marks in connection
with writing, trading, marketing and promotion of the Funds and in connection
with making disclosure about the Funds under applicable laws, rules and
regulations in order to indicate that MSCI is the source of the Indexes; and
WHEREAS, Licensee wishes to obtain MSCI's authorization to use the Data
and the Indexes and refer to the Indexes and the Marks in connection with the
Funds pursuant to the terms and conditions hereinafter set forth.
NOW, THEREFORE, the parties hereto agree as follows:
1. GRANT OF LICENSE
(a) MSCI hereby grants to Licensee a temporary, non-transferable and
non-exclusive license to use the Data solely in accordance with the terms of
this Agreement. MSCI will provide Licensee with the Data and any updates or
modifications which from time to time may be made thereto and which are provided
generally by MSCI to other entities licensed to have access to the Data. The
Data may be used solely by Licensee only at the location and only in the
internal
operations of the business unit of Licensee set forth in Exhibit A.
Licensee may not resell or otherwise transfer or allow the use of the Data, or
any part thereof, directly or indirectly, by or for the benefit of, any other
person or organization (including, without limitation, Licensee's other
businesses and Licensee's present and future parents, subsidiaries and
affiliates) without the prior written approval of MSCI. Licensee agrees that it
shall treat the Data as proprietary to MSCI and that the company names and all
other information contained in the Data shall be kept strictly confidential by
Licensee. Licensee shall inform MSCI as to its knowledge of any actual or
suspected unauthorized use or disclosure of the Data and shall take all steps
reasonably necessary (or requested by MSCI) to protect the rights of MSCI.
Notwithstanding the foregoing, Licensee may provide Resultant Information
Services to its clients. For purposes of this provision, "Resultant Information
Service" shall mean a service or product provided by Licensee which (i) contains
information derived from the Data (e.g., by application of formulas, algorithms,
or the exercise of human judgment), but which does not provide a mechanism for
computing or reproducing the Data, or (ii) contains reasonable excerpts of the
Data that constitute a non-material portion of the Data. In this connection,
portions of the Data comprising 25% or more of the Data items for one point in
time or portions of the Data cumulatively comprising 25% or more of a complete
time series for a single Data item will be regarded as "material," whether such
portions have been provided to single or multiple clients and prospective
clients and whether or not such portions have been so provided on one or
multiple occasions. Notwithstanding anything else to the contrary, the
determination of what constitutes "non-material portion of the Data" will be
determined by MSCI in its sole discretion. Licensee will not use or permit use
of the Data to verify or correct data in any other compilation of data or index.
Except as expressly provided herein with respect to the Funds, Licensee shall
not use or permit anyone else to use the Data or any portion thereof in
connection with the writing, trading, marketing or promotion of any financial
instruments or products, including, but not limited to, synthetic or derivative
securities (E.G., options, warrants, swaps, and futures), whether listed on an
exchange or traded over the counter or on a private-placement basis or otherwise
(except as expressly provided herein) or to create any indices (custom or
otherwise).
Licensee may not, without the written permission of MSCI, (i) copy any
component of the Data (including, without limitation, to a mainframe central
processing unit), (ii) alter, modify or adapt any component of the Data,
including but not limited to translating, decompiling, disassembling or creating
derivative works, or (iii) make any component of the Data available to any other
person or organization (including, without limitation, Licensee's present and
future parents, subsidiaries or affiliates) directly or indirectly, for any of
the foregoing or for any other use, including, without limitation, by loan,
rental, service bureau, external time sharing or similar arrangement.
An authorized officer of Licensee shall certify in writing annually that
Licensee is in compliance with the use restrictions set forth in this Section
1(a).
(b) Subject to the terms and conditions of this Agreement, MSCI grants to
Licensee a non-transferable, non-exclusive, license (i) to use one or more of
the Indexes as the basis, or a component, of the Funds (in accordance with the
restrictions, set forth herein and in Exhibit B) issued, entered into, written,
sold and/or purchased by Licensee, and (ii) to use and refer to the Indexes and
the Marks in connection with the writing, purchase, sale, redemption, marketing
and
promotion of the Funds (in accordance with the restrictions, set forth herein
and in Exhibit B) and in connection with making such disclosure about the Funds
as necessary under any applicable laws, rules or regulations in order to
indicate the source of the Indexes.
(c) Licensee, without MSCI's prior written approval, shall not disseminate
electronically or in any other fashion any quotations or other information
relating to (i) an Index or (ii) a Fund to the extent that such information
about a Fund would provide a mechanism for computing or reproducing any Raw
Index Data (as defined below); provided, however, that Licensee may disseminate
such information about a Fund, with MSCI's prior written approval (not to be
unreasonably withheld), solely as required by applicable law or regulation. "Raw
Index Data" shall be defined as any field, element, component, classification,
code, calculation, formula, selection criteria, policy or methodology (including
without limitation constituent countries, industry groups, industries, companies
and weights) of the Indexes described in Exhibit A. Nothing in this paragraph
shall release Licensee from its obligations under Section 6.
2. TERM
The term of the license granted hereunder shall commence on October 15,
2001 and shall continue for one (1) year unless sooner terminated as provided
herein. Thereafter, this Agreement shall be automatically extended for
successive renewal terms of one (1) year at a time, provided that either party
may terminate this Agreement by written notice to the other party given not
later than ninety (90) days prior to the end of the initial term or any renewal
term, unless Licensee terminates pursuant to a notice of an adjusted License Fee
as set forth in Section 3.
3. LICENSE FEES
Licensee shall pay to MSCI the license fees set forth in Exhibit C
attached hereto (the "License Fees"), which may be adjusted by MSCI upon written
notice at least ninety (90) days prior to the end of any current term (whereby
Licensee may terminate this Agreement within thirty (30) days of such notice).
All License Fees shall be payable on a quarterly basis, which quarters
shall commence upon the execution of this Agreement and each subsequent quarter
shall commence on each three-month anniversary of the commencement of the
initial quarter. Within fifteen (15) days after the close of each quarter,
Licensee shall provide to MSCI a report calculating the License Fees owed
hereunder for such quarter and a payment of the License Fees owed, if any. Any
payment of Licensee Fees not paid within such fifteen (15) days shall accrue
interest at the rate of one and one-half percent (1 1/2%) per month or the
maximum amount permitted by law, whichever is lesser, until such Fees are paid.
Licensee shall maintain detailed and accurate records with respect to the
assets of the Funds and its payments to MSCI hereunder. Licensee, upon written
request by MSCI, shall provide to an independent accounting organization chosen
and compensated by MSCI access to printed records with respect to the assets of
the Funds and its payments to MSCI hereunder during normal business hours for
purposes of a confirming audit with respect to such payments. Licensee shall
promptly pay any underreported fees determined by such audit. If such audit
determines that fees in excess of
five percent (5%) of the reported and paid License Fees were not reported during
any of the four previously reported quarters, then Licensee shall also pay for
the reasonable cost of such audit.
Licensee will promptly pay all federal, state, and local sales, personal
property, AD VALOREM, and other taxes of a similar nature arising as a result of
this Agreement, other than taxes related to MSCI's income.
4. TERMINATION
In addition to and notwithstanding the termination rights provided in
Sections 2 and 3(a) hereof, the following termination provisions apply to this
Agreement:
(a) At any time during the term of this Agreement, either party may
terminate this Agreement by giving the other party thirty (30) 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 the
terminating party by reason of its continued performance hereunder and such
notice shall be effective on the date of such termination, unless the other
party shall correct the condition causing such damage or harm within the notice
period, provided, however, that if such condition is not capable of correction,
such termination shall be effective immediately..
(b) In the case of breach of any of the material terms and conditions of
this Agreement by either party, the other party may terminate this Agreement by
giving thirty (30) days' prior written notice of its intent to terminate and
such notice shall be effective on the date of such termination, unless the
breaching party shall correct such breach within the notice period, provided,
however, that if such breach is not capable of correction, such notice of
termination shall be effective immediately.
(c) MSCI shall have the right, in its sole discretion, to cease
compilation and publication of any of the Indexes and, in the event that any of
the Indexes is discontinued, to terminate this Agreement if MSCI does not offer
a replacement or substitute Index. In the event that MSCI intends to discontinue
any index, MSCI shall give Licensee reasonable prior written notice, but in no
event less than sixty (60) days prior to such discontinuance, which notice shall
specify whether a replacement or substitute index will be available. Licensee
shall have the option hereunder within thirty (30) days after receiving such
written notice from MSCI to notify MSCI in writing of its intent to use the
replacement index under the terms of this Agreement.
(d) Licensee may terminate this Agreement upon written notice to MSCI if
(i) Licensee is informed of the final adoption of any legislation or regulation
that materially impairs Licensee's ability to issue, enter into, write, sell,
purchase, market or promote the Funds; or (ii) any material litigation or
regulatory proceeding regarding the Funds is threatened or commences.
(e) MSCI may terminate this Agreement upon written notice to Licensee if
(i) MSCI is informed of the final adoption of any legislation or regulation that
materially impairs MSCI's ability to license and provide the Indexes under this
Agreement; or (ii) any material litigation or regulatory proceeding regarding
the Funds is threatened or commenced.
(f) MSCI may terminate this Agreement upon written notice to Licensee if
Licensee makes a general assignment for the benefit of creditors, or files a
voluntary petition in bankruptcy or for reorganization or arrangement under the
bankruptcy laws, or if a petition in bankruptcy is filed against Licensee and is
not dismissed within 45 days after the filing, or if a receiver or trustee is
appointed for all or any part of the property or assets of Licensee.
5. RIGHTS UPON TERMINATION
Upon termination of this Agreement, Licensee shall cease to use the the
Data and the Indexes and cease referring to the Indexes and the Marks with the
Funds and, within thirty (30) days of termination, Licensee shall pay MSCI any
and all outstanding License Fees due hereunder.
6. FUND PROMOTION
(a) Licensee shall prominently feature the MSCI Marks and logos (which
shall be provided to Licensee by MSCI upon request) in all advertisements,
brochures, and promotional and information material (other than price quotations
for a Fund) ("Informational Materials") relating to or referring to the Funds,
including without limitation, stating "[the Fund] is indexed to the MSCI(R)
[Index]" on the title page of any Informational Materials. Further, Licensee
shall prominently feature a description of the Index in the Informational
Materials.
(b) Licensee shall use its best efforts to protect the goodwill and
reputation of MSCI in connection with its use of the Indexes and the Marks under
this Agreement. Licensee shall submit to MSCI for its preview and approval all
Informational Materials relating to or referring to MSCI, the Indexes, the Marks
or the Funds. MSCI's approval shall be confined solely to the use of or
description of MSCI, the Marks, and the Indexes (or the failure thereof) and
shall not be unreasonably withheld or delayed by MSCI. Once any Informational
Materials have been approved by MSCI, no further approval of such Informational
Material is required in the event that Licensee does not modify its use of or
description of MSCI, the Marks and the Indexes, provided however, that Licensee
shall provide MSCI copies of all Informational Materials at least once every
twelve (12) months during the term of this Agreement. Accordingly, Licensee is
not required to re-submit approved Informational Materials that are only
modified in a manner that does not affect the previously approved use of or
description of MSCI, the Marks and the Indexes. However, upon MSCI's request,
Licensee shall provide MSCI copies of any Informational Materials, including
such Informational Materials that do not require resubmission and additional
approval.
(c) MSCI is not obligated to engage in any marketing or promotional
activities in connection with the Funds or in making any representation or
statement to investors or prospective investors in connection with the promotion
by Licensee of the Funds.
(d) Licensee acknowledges and agrees that MSCI, in granting the permission
contained in this Agreement, does not express or imply any approval of the Funds
or of Licensee and Licensee further agrees not to make any statement which
expresses or implies that MSCI approves, endorses or consents to the promotion,
marketing, and arrangement by Licensee of the Funds or that MSCI makes any
judgment or expresses any opinion in respect of the Licensee.
7. PROTECTION OF VALUE OF LICENSE
(a) Licensee shall cooperate reasonably with MSCI in the maintenance of
all MSCI common law and statutory rights in the Indexes and the Marks, including
copyrights and other proprietary rights, and shall take such acts and execute
such instruments as are reasonably necessary and appropriate to such purposes,
including the use by the Licensee of the notices set forth in Sections 9(a) and
(b) when referring to the Indexes or the Marks in any offering circular,
prospectus, contract or Informational Material relating to the Funds.
(b) Licensee shall not refer to the names of the Indexes in any manner
which might cause confusion as to MSCI's responsibility for preparing and
disseminating the Indexes or as to the identity of Licensee and its relationship
to the Funds.
8. PROPRIETARY RIGHTS
(a) Licensee acknowledges that (i) the Data and all components thereof
constitute copyrighted, trade secret, and/or proprietary information of
substantial value to MSCI, (ii) that Licensee receives no proprietary rights
whatsoever in or to the Data, and (iii) that title and ownership rights in and
to the Data and all the rights therein and legal protections with respect
thereto remain exclusively with MSCI. Licensee shall not, and shall not assist
any third party to, assert any rights in the Data or any component thereof or
challenge MSCI's rights therein.
(b) Licensee acknowledges that the Indexes are selected, arranged and
prepared by MSCI through the application of methods and standards of judgment
used and developed through the expenditure of considerable work, time and money
by MSCI. Licensee also acknowledges that the Indexes and the Marks are the
exclusive property of MSCI, and the Indexes and their compilation and
composition and changes therein are in the control and discretion of MSCI.
Licensee recognizes the existence of the goodwill associated with the Marks and
acknowledges that the Marks and all rights therein and goodwill pertaining
thereto are the exclusive property of MSCI. Licensee recognizes the validity of
the Marks and agrees that it will not during the term of this Agreement or
thereafter directly or indirectly challenge MSCI's rights thereto.
(c) MSCI reserves all rights with respect to the Indexes and the Marks
except those expressly licensed to Licensee hereunder.
(d) Each party and its employees and agents shall treat as confidential
and shall not disclose or transmit to any third party any confidential and
proprietary information of the other party, including the terms of this
Agreement or (in the case of MSCI) Informational Materials submitted to MSCI
pursuant to paragraph 6(a) hereof, provided that the documentation or other
written materials containing such information are designated as "Confidential"
or "Proprietary" by the providing party and such information is not available
generally to the public or otherwise available to the receiving party from a
source other than the providing party. For the purpose of this Section 8(d), all
Data provided by MSCI to Licensee pursuant to this Agreement shall be deemed to
be designated as Confidential and Proprietary to MSCI. Notwithstanding the
foregoing, if requested or required (by interrogatories, requests for
information or documents, subpoena, or other process)
either party may reveal such information if such information to be disclosed is
(i) approved in writing by the other party for disclosure or (ii) required by
law (in the opinion of counsel), regulatory agency or court order to be
disclosed by a party, provided prior written notice of such required disclosure
is given to the other party. The provisions of this paragraph shall survive any
termination of this Agreement for five (5) years from disclosure by either party
to the other party of the last such confidential and proprietary information.
(e) Each party hereto shall cause each employee or third party to whom
such party discloses confidential and/or proprietary information in order to
perform its obligations hereunder to abide by the confidentiality provisions of
this Section 8.
9. WARRANTIES; DISCLAIMERS
(a) Licensee agrees expressly to be bound itself by and furthermore to
include all of the following disclaimers and limitations in the prospectus and
any offering circular or contract(s) relating to the Funds and upon request to
furnish a copy (copies) thereof to MSCI:
This fund is not sponsored, endorsed, sold or promoted by MSCI or any
affiliate of MSCI. Neither MSCI, any of its affiliates nor any other party
involved in making or compiling the [ ] index makes any representation or
warranty, express or implied, to the owners of this fund or any member of
the public regarding the advisability of investing in funds generally or
in this fund particularly or the ability of the [ ] index to track general
stock market performance. MSCI is the licensor of certain trademarks,
service marks and trade names of MSCI and of the [ ] index which is
determined, composed and calculated by MSCI without regard to this fund or
the issuer of this fund. MSCI has no obligation to take the needs of the
issuer of this fund or the owners of this fund into consideration in
determining, composing or calculating the [ ] index. MSCI is not
responsible for and has not participated in the determination of the
timing of, prices at, or quantities of this fund to be issued or in the
determination or calculation of the equation by which this fund is
redeemable for cash. Neither MSCI, any of its affiliates nor any other
party involved in making or compiling the [ ] index has any obligation or
liability to owners of this fund in connection with the administration,
marketing or trading of this fund.
ALTHOUGH MSCI SHALL OBTAIN INFORMATION FOR INCLUSION IN OR FOR USE IN
THE CALCULATION OF THE INDEXES FROM SOURCES WHICH MSCI CONSIDERS RELIABLE,
NEITHER MSCI, ANY OF ITS AFFILIATES NOR ANY OTHER PARTY INVOLVED IN MAKING
OR COMPILING THE [ ] INDEX GUARANTEES THE ACCURACY AND/OR THE COMPLETENESS
OF THE INDEXES OR ANY DATA INCLUDED THEREIN. NEITHER MSCI, ANY OF ITS
AFFILIATES NOR ANY OTHER PARTY INVOLVED IN MAKING OR COMPILING THE [ ]
INDEX MAKES ANY WARRANTY, EXPRESS OR IMPLIED, AS TO RESULTS TO BE OBTAINED
BY LICENSEE, LICENSEE'S CUSTOMERS AND COUNTERPARTIES, OWNERS OF THE FUNDS,
OR ANY OTHER PERSON OR ENTITY FROM THE USE OF THE INDEXES OR ANY DATA
INCLUDED THEREIN IN CONNECTION WITH THE
RIGHTS LICENSED HEREUNDER OR FOR ANY OTHER USE. NEITHER MSCI, ANY OF ITS
AFFILIATES NOR ANY OTHER PARTY INVOLVED IN MAKING OR COMPILING THE [ ]
INDEX SHALL HAVE ANY LIABILITY FOR ANY ERRORS, OMISSIONS OR INTERRUPTIONS
OF OR IN CONNECTION WITH THE INDEXES OR ANY DATA INCLUDED THEREIN.
FURTHER, NEITHER MSCI, ANY OF ITS AFFILIATES NOR ANY OTHER PARTY INVOLVED
IN MAKING OR COMPILING THE [ ] INDEX MAKES ANY EXPRESS OR IMPLIED
WARRANTIES, AND MSCI HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE
INDEXES AND ANY DATA INCLUDED THEREIN. NEITHER MSCI, ANY OF ITS AFFILIATES
NOR ANY OTHER PARTY INVOLVED IN MAKING OR COMPILING THE [ ] INDEX SHALL
HAVE ANY LIABILITY FOR ANY ERRORS, OMISSIONS OR INTERRUPTIONS OF OR IN
CONNECTION WITH THE INDEXES OR ANY DATA INCLUDED THEREIN. WITHOUT LIMITING
ANY OF THE FOREGOING, IN NO EVENT SHALL MSCI OR ANY OTHER PARTY HAVE ANY
LIABILITY FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL OR
ANY OTHER DAMAGES (INCLUDING LOST PROFITS) EVEN IF NOTIFIED OF THE
POSSIBILITY OF SUCH DAMAGES.
(b) Licensee agrees expressly to be bound itself by and furthermore to
include the following disclaimers and limitations in any Informational Materials
relating to the Funds and upon request to furnish a copy (copies) thereof to
MSCI:
[ ] is/are trade or service xxxx(s) of Xxxxxx Xxxxxxx Capital
International Inc. ("MSCI") and its affiliates and has/have been licensed
for use for certain purposes by [ ]. [Fund], based on the [ ] index, has
not been passed on by MSCI as to its legality or suitability, and is not
issued, sponsored, endorsed, sold or promoted by MSCI. MSCI makes no
warranties and bears no liability with respect to the [Fund]. MSCI has no
responsibility for and does not participate in the management of the
[Fund] assets or sale of the [Fund] shares. The [Prospectus] contains a
more detailed description of the limited relationship MSCI has with [ ]
and the [Fund].
(d) 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.
(e) Licensee represents and warrants to MSCI that the Funds shall not
violate any applicable laws, including but not limited to banking, commodities
and funds laws.
(f) THE DATA IS PROVIDED TO LICENSEE ON AN "AS IS" BASIS. NEITHER MSCI,
ANY OF ITS AFFILIATES NOR ANY OTHER PARTY INVOLVED IN MAKING OR COMPILING THE
DATA MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND, EITHER EXPRESS OR
IMPLIED, WITH RESPECT TO THE DATA (OR THE RESULTS TO BE OBTAINED BY THE USE
THEREOF), AND MSCI EXPRESSLY
DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF ORIGINALITY, ACCURACY, COMPLETENESS,
MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. LICENSEE ASSUMES THE
ENTIRE RISK OF ANY USE LICENSEE MAY MAKE OF THE DATA AND ACKNOWLEDGES THAT DATA
FIELDS MAY NOT BE CONSISTENT THROUGHOUT THE DATA. IN NO EVENT SHALL MSCI , ANY
OF ITS AFFILIATES NOR ANY OTHER PARTY INVOLVED IN MAKING OR COMPILING THE DATA
BE LIABLE TO LICENSEE OR ANY OTHER PARTY FOR ANY DIRECT OR INDIRECT DAMAGES,
INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS, LOST SAVINGS OR OTHER
INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT OR THE
INABILITY OF LICENSEE TO USE THE DATA, REGARDLESS OF THE FORM OF ACTION, EVEN IF
MSCI HAS BEEN ADVISED OF OR OTHERWISE MIGHT HAVE ANTICIPATED THE POSSIBILITY OF
SUCH DAMAGES.
(g) The provisions of this Section 9 shall survive any termination of this
Agreement.
10. INDEMNIFICATION
(a) Licensee shall indemnify, defend and hold harmless MSCI, its parent,
subsidiaries, 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 claims or actions
brought by third parties against MSCI which arise from any act or omission of
Licensee which constitutes a breach of this Agreement or is in any manner
related to the Funds; provided, however, that (i) MSCI notifies Licensee
promptly of any such claim or action, and (ii) Licensee shall have no liability
to MSCI if such judgments, damages, costs or losses are based on an infringement
or misappropriation of a third party's intellectual property rights by the
Indexes or the Marks.
(b) MSCI shall indemnify, defend and hold harmless Licensee its parent,
subsidiaries, 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 claim, demand,
action or proceeding initiated by any third party based upon infringement of a
patent, copyright, trade secret or other proprietary right solely to the extent
such claim, demand, action or proceeding is based on an Index or a Xxxx;
provided, however, that (i) Licensee notifies MSCI promptly of any such claim or
action, and (ii) MSCI shall have no liability to Licensee if such judgments,
damages, costs or losses are attributable to any negligent act or omission by
Licensee, its parent, affiliates, subsidiaries, sublicensees or any of their
employees or agents, in which case Licensee's indemnity obligations of Section
10(a) shall control.
(c) The indemnifying party shall bear all expenses in connection with the
defense and/or settlement of any such claim or action referred in (a) or (b)
above. The indemnified party shall have the right, at its own expense, to
participate in the defense of any claim or action 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 or action,
without the written consent of the indemnifying party. Each party shall promptly
notify the other in the event of the threat or initiation of any claim, demand,
action or proceeding to which the obligations set forth herein may apply. The
indemnified party shall assist the indemnifying party, at the indemnifying
party's request and
expense, in the defense or settlement of the matter. The indemnifying party
shall not, in the defense of any claim, except with the written consent of the
indemnifying party, consent to entry of any judgment or enter into any
settlement which (i) 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 (ii) otherwise adversely affects the rights of the indemnified
party. This provision shall survive the termination of this Agreement.
11. FORCE MAJEURE
Neither party shall be responsible for any delay or failure in
performance of its obligations under this Agreement resulting from acts beyond
the control of such party, including but not limited to, any act of God, act of
governmental authority, act of public enemy, computer or system failure, or due
to war, riot, fire, flood, civil commotion, insurrection, labor difficulty
(including, without limitation any strike, or other work stoppage or slowdown),
or severe or adverse weather conditions or other causes beyond the reasonable
control of the party so affected, provided that such party had exercised due
diligence as the circumstances reasonably required.
12. OTHER MATTERS
(a) This Agreement is solely and exclusively between the parties as now
constituted and, unless otherwise provided, 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. Notwithstanding the foregoing, this Agreement may be
assigned by MSCI without Licensee's consent to any affiliate of MSCI.
Furthermore, MSCI may perform any of its duties hereunder either directly or by
or through its agents. This Agreement shall be valid and binding on the parties
hereto and their successors and permitted assigns.
(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) All notices and other communications under this Agreement shall be (i)
in writing, (ii) delivered by hand or by registered or certified mail, return
receipt requested, to the addresses set forth below or such addresses as either
party shall specify by a written notice to the other and (iii) deemed given upon
receipt.
NOTICE TO MSCI: Xxxxxx Xxxxxxx Capital International Inc.
0000 Xxxxxx xx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ATTN: MSCI Finance Department
with a copy to (which shall not constitute notice hereunder):
Xxxxxx Xxxxxxx Capital International Inc.
0000 Xxxxxx xx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ATTN: General Counsel
NOTICE TO LICENSEE:
SSgA Funds
000 X Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000
ATTN: Legal Department
with a copy to (which shall not constitute notice hereunder):
State Street Master Funds
Xxx Xxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
ATTN: Legal Department
(e) This Agreement shall be governed by and construed in accordance with
the internal laws of the State of New York. The parties hereby consent to the
exclusive jurisdiction of, and venue in, any federal or state court of competent
jurisdiction located in the Borough of Manhattan, New York City for the purposes
of adjudicating any matter arising from or in connection with this Agreement.
(f) THE PARTIES HEREBY UNCONDITIONALLY WAIVE THEIR RESPECTIVE RIGHTS TO A
JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF,
DIRECTLY OR INDIRECTLY, THIS AGREEMENT, ANY OF THE RELATED DOCUMENTS, AND/OR ANY
DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY
RELATED TRANSACTIONS.
(g) The headings of the sections and subsections of this Agreement are for
general information and reference only and they in no way define, limit or
describe the scope of the provisions of such sections and shall not be
considered in the interpretation or enforcement of this Agreement.
(h) Nothing in this Agreement will be construed to constitute or appoint
either party as the agent, partner, joint venturer, or representative of the
other party for any purpose whatsoever, or to grant to either party any right or
authority to assume or create any obligation or responsibility,
express or implied, for or on behalf of or in the name of the other, or to bind
the other in any way or manner whatsoever.
(i) No failure or delay on the part of either party hereto to exercise any
right or remedy specified herein shall be construed as a waiver of such remedy
or right.
(j) In the event any one or more of the provisions of this Agreement shall
for any reason be held to be invalid, illegal or unenforceable, the remaining
provisions of this Agreement shall be unimpaired. The parties hereto will use
their best efforts to substitute for the illegal, invalid or unenforceable
provision a new provision of like economic intent and effect.
(k) Except for the parties to this Agreement and as expressly set forth in
this Agreement, no other party is intended, or shall be deemed, to be a
beneficiary of any provision of this Agreement.
(l) This Agreement may be executed in counterparts, which taken together,
shall constitute one Agreement and each party hereto may execute this Agreement
by signing such counterpart. Facsimile signatures of the parties to this
Agreement, or any amendment of this Agreement, shall be deemed original
signatures and shall manifest such parties' intention to be bound by this
Agreement or such amendment.
(m) Each party acknowledges that a breach of its obligations to the other
party under this Agreement will result in irreparable and continuing damage for
which monetary damages will not be sufficient, and agrees that such other party
will be entitled to seek, in addition to its other rights hereunder or at law,
injunctive and/or other equitable relief, and such further relief as may be
proper from a court of competent jurisdiction.
(n) Any provision of this Agreement which, by its nature, would survive
termination or expiration of this Agreement shall survive any termination or
expiration of this Agreement, including, without limitation, Sections 4(e), 5,
8(a), 9, 10 and 12.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date first set forth above.
XXXXXX XXXXXXX CAPITAL SSgA FUNDS, on behalf of the
INTERNATIONAL INC. SSgA MSCI EAFE INDEX FUND
By: By:
-------------------------- --------------------------
Title: Title:
-------------------------- --------------------------
Name: Name:
-------------------------- --------------------------
{Printed} {Printed}
Date: Date:
-------------------------- --------------------------
EXHIBIT A
List of the Data:
List of the Indexes:
List of the Licensee locations:
EXHIBIT B
Detailed Description of the Fund. With reference to the prospectus or offering
document (include date and title of document).
EXHIBIT C
LICENSE FEES
With respect to use of the Data and the Indexes listed in Exhibit A in
connection with the Funds, Licensee shall pay to MSCI a license fee equal to the
greater of:
(a) twenty eight thousand dollars ($28,000) per annum, payable at the end
of the first quarter of each annual term; or
(b) the aggregate of five (5) basis points per annum of the first USD
100,000,000 of aggregate average daily net assets within the Fund, plus
four (4) basis points per annum of such assets from USD100,000,001 to
USD 200,000,000, plus three (3) basis points per annum of such assets in
excess of USD 200,000,000, which aggregate average daily assets shall be
calculated on the last day of the relevant quarter.
