EXHIBIT (H)(10)
FORM OF LICENSE AGREEMENT WITH DOW XXXXX
LICENSE AGREEMENT
This License Agreement, dated as of March __, 2001 (the "Commencement
Date"), is made by and between Dow Xxxxx & Company, Inc. ("Dow Xxxxx"), having
an office at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and North Track
Funds, Inc. (the "Licensee"), having an office at 000 X. Xxxx Xxxxxx, Xxxx Xxxx,
Xxxxxxxxx, 00000.
WHEREAS, Dow Xxxxx compiles, calculates and maintains the Dow Xxxxx US
Healthcare Sector Index, Dow Xxxxx US Healthcare 100 Index, Dow Xxxxx US
Financial Sector Index, Dow Xxxxx US Financial 100 Index and the Dow Xxxxx
Global Titans Index (collectively, the "Indexes"), and Dow Xxxxx owns rights in
and to the Indexes, the proprietary data contained therein, and the Dow Xxxxx
Marks (defined below) (such rights, including without limitation, copyright,
trademark or proprietary rights and trade secrets, being hereinafter
collectively referred to as the "Intellectual Property"); and
WHEREAS, Dow Xxxxx uses in commerce and has trade name, trademark and/or
service xxxx rights to the designations, "Dow Xxxxx", "Dow Xxxxx US Financial
Sector Index", "Dow Xxxxx Global Titans Index", "Global Titans" and "Dow Xxxxx
US Healthcare Sector Index" (such rights being hereinafter individually and
collectively referred to as the "Dow Xxxxx Marks"); and
WHEREAS, the Licensee wishes to use the Indexes and the related Dow Xxxxx
Marks, pursuant to the terms and conditions hereinafter set forth, in connection
with (i) the issuance, marketing and promotion of the Products (as defined in
Section 1(b)) and (ii) making disclosure about such Products under applicable
laws, rules and regulations in order to indicate that the Products are based on
the Indexes and that Dow Xxxxx is the source of the Indexes.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein, it is agreed as follows:
1. Grant of License.
(a) Subject to the terms and conditions of this Agreement, Dow Xxxxx
hereby grants to the Licensee a non-transferable (except to subsidiaries
pursuant to Section 12(a)) non-exclusive license (i) to use the Indexes solely
in connection with the issuance or trading, as the case may be, of the Products
to be issued or traded, as the case may be, by the Licensee, and (ii) to use and
refer to the Dow Xxxxx Marks in connection with the marketing and promotion of
the Products in order to indicate that the Products are based on the Indexes and
that Dow Xxxxx is the source of the Indexes, and as may otherwise be required by
applicable laws, rules or regulations or under this Agreement.
(b) As used in this Agreement, "Products" means the products
described on Schedule A hereto that are issued by the Licensee, and are based
upon an Index (but not any part of such Index other than the whole Index, and
not any subset of the components of such Index) and, except as otherwise
provided in Schedule A, correlated to the underlying securities comprising such
Index. Any changes to the terms of the Products (as those terms are described
on Schedule A) will be subject to Dow Xxxxx' prior written consent.
(c) Nothing contained in this Agreement shall restrict Dow Xxxxx
from licensing any one or more Dow Xxxxx indexes (including the Indexes) or any
of the Dow Xxxxx Marks, to any other person or entity at any time.
(d) The Licensee acknowledges that the Indexes and the Dow Xxxxx
Marks are the exclusive property of Dow Xxxxx and that Dow Xxxxx has and retains
all Intellectual Property and other proprietary rights therein. Except as
otherwise specifically provided herein, Dow Xxxxx reserves all rights to the
Indexes and the Dow Xxxxx Marks, and this Agreement shall not be construed to
transfer to the Licensee any ownership right to, or equity interest in, any of
the Indexes or the Dow Xxxxx Marks, or in any Intellectual Property or other
proprietary rights pertaining thereto.
(e) The Licensee acknowledges that the Indexes and their compilation
and composition, and any changes therein, are and will be in the complete
control and sole discretion of Dow Xxxxx.
2. Term.
The term of this Agreement shall commence as of the date hereof and shall
remain in full force and effect until the fifth anniversary of the Commencement
Date, unless this Agreement is terminated earlier as provided herein (such term
being referred to as the "Initial Term"). Upon expiration of the Initial Term
(other than by reason of termination of this Agreement as provided herein), this
Agreement may be renewed at the election of the Licensee, by delivery of written
notice to Dow Xxxxx to that effect at least 120 days prior to expiration of the
Initial Term, for an additional term of three (3) years (the "Renewal Term").
Notwithstanding the foregoing, (i) in no event shall the Licensee have the right
to renew the term hereunder without Dow Xxxxx' prior written consent if, at the
time of expiration of the Initial Term (x) the Licensee is in material breach of
this Agreement or (y) the aggregate average assets invested in the Products in
respect of the twelve-month period ending on the last day of the Initial Term is
less than $100,000,000. (The Initial Term and the Renewal Term, if any, are
referred to herein, collectively, as the "Term.")
3. License Fees.
(a) As consideration for the license granted herein, the Licensee
shall pay to Dow Xxxxx the one-time customization set-up fee and the license
fees (collectively, the "License Fees") as set forth on Schedule B hereto.
(b) If independently audited financial statements for the Products
are prepared, the Licensee shall provide Dow Xxxxx with such audited financial
statements promptly after receipt thereof by the Licensee. Dow Xxxxx may use
such audited financial statements to confirm the accuracy of any one or more
calculations of License Fees. Dow Xxxxx shall not bear the cost of any such
audit. In addition, Dow Xxxxx shall have the right to audit on a confidential
basis the relevant books and records of the Licensee to confirm the accuracy of
any one or more calculations of Licensee Fees. Dow Xxxxx shall bear its own
costs of any such audit unless it is determined that Dow Xxxxx has been
underpaid by 5% or more with respect to the payments being audited, in which
case Dow Xxxxx' costs of such audit shall be paid by the Licensee. Under no
circumstances shall Dow Xxxxx have access to any assets held for any Product,
other than the relevant books and records of Licensee with respect to such
Product and its assets.
4. Termination.
(a) If there is a material breach of this Agreement by either party
(such party, the "breaching party," and, the other party, the "non-breaching
party"), or if either party (such party, the "harmed party") believes in good
faith that material damage or harm is occurring to its reputation or good will
by reason of its continued performance hereunder (other than pursuant to Section
4(d)), then the non-breaching party or the harmed party, as the case may be, may
terminate this Agreement, effective thirty (30) days after written notice
thereof to the other party (with reasonable specificity as to the nature of the
breach or the condition causing such damage or harm, as the case may be, and
including a statement as to such party's intent to terminate), unless the other
party shall correct such breach or the condition causing such damage or harm, as
the case may be, within such 30-day period (or such longer period as reasonably
may be required to cure such breach with the exercise of reasonable diligence).
(b) The Licensee may terminate this Agreement upon ninety (90) days'
prior written notice to Dow Xxxxx (or such lesser period of time as may be
necessary pursuant to law, rule, regulation or court order) if (i) any
legislation or regulation is finally adopted or any government interpretation is
issued that prevents the Licensee from issuing, marketing or promoting the
Products; (ii) any material litigation or regulatory proceeding regarding the
Products is commenced; (iii) the Licensee elects to terminate the public
offering or other distribution of the Products; or (iv) any of the events set
forth in Section 4(c)(i) or (iii) occurs.
(c) Dow Xxxxx may terminate this Agreement upon one hundred twenty
(120) days' prior written notice to the Licensee if (i) any legislation or
regulation is finally adopted or any government interpretation is issued that in
Dow Xxxxx' reasonable judgment materially impairs Dow Xxxxx' ability to license
and provide any of the Indexes or the Dow Xxxxx Marks under this Agreement; (ii)
any litigation or proceeding is commenced which relates, directly or indirectly,
to Dow Xxxxx' licensing and providing any of the Indexes or the Dow Xxxxx Marks
under this Agreement, or any such litigation proceeding is threatened and Dow
Xxxxx reasonably believes that such litigation or proceeding would be reasonably
likely to have a material and adverse effect on any of the Indexes or the Dow
Xxxxx Marks or on Dow Xxxxx' ability to perform under this Agreement; (iii) Dow
Xxxxx elects (other than pursuant to Section 4(d)) to cease compiling,
calculating and publishing values of any of the Indexes; or (iv) any of the
events set forth in Section 4(b)(i) through (iii) occurs. If any of the events
described in this Section 4(c) affect or relate to less than all of the Indexes,
then Dow Xxxxx' right to terminate this Agreement shall be limited to terminate
the Agreement as it relates to the affected Index(es).
(d) Notwithstanding anything to the contrary herein, Dow Xxxxx shall
have the right, in its sole discretion, to cease compiling, calculating and
publishing values of any of the Indexes at any time that Dow Xxxxx determines
that such Index no longer meets or will not be capable of meeting the criteria
established by Dow Xxxxx for maintaining such Index, and thereupon to terminate
this Agreement (but Dow Xxxxx will use all reasonable efforts to provide the
Licensee with as much prior notice as is reasonably practicable under the
circumstances).
(e) Dow Xxxxx may terminate this Agreement, upon written notice to
the Licensee, if any securities exchange (i) ceases to provide data to Dow Xxxxx
necessary for providing any of the Indexes, (ii) terminates Dow Xxxxx' right to
receive data in the form of a "feed" from such securities exchange, (iii)
materially restricts Dow Xxxxx' right to redistribute data received from such
securities exchange, or (iv) institutes charges (other than nominal charges or
charges which Dow Xxxxx deems to be reasonable to be incurred in connection with
providing the Indexes) for the provision of data to Dow Xxxxx or the
redistribution of data by Dow Xxxxx. If any of the events described in this
Sectin 4(e) affect or relate to less than all of the Indexes, then Dow Xxxxx'
right to terminate this Agreement shall be limited to terminating the Agreement
only as it relates to the affected Index(es). Dow Xxxxx shall provide Licensee
with as much advance notice of any such termination as reasonably practicable.
(f) Dow Xxxxx may terminate this Agreement upon written notice to
the Licensee if Products have not been issued within 180 days after the date
hereof.
5. Dow Xxxxx Obligations.
(a) Dow Xxxxx is not, and shall not be, obligated to engage in any
way or to any extent in any marketing or promotional activities in connection
with the Products or in making any representation or statement to investors or
prospective investors in connection with the marketing or promotion of the
Products by the Licensee.
(b) Dow Xxxxx agrees to provide reasonable support for the
Licensee's development and educational efforts with respect to the Products
as follows:
(i) Dow Xxxxx shall use commercially reasonable efforts to
respond in a timely fashion to any reasonable requests by the Licensee for
information regarding the Indexes;
(ii) Dow Xxxxx or its agent shall use commercially reasonable
efforts to, or Dow Xxxxx shall use commercially reasonable efforts to arrange
for a third party vendor to, calculate and disseminate the value of the Indexes
at least once each day that the New York Stock Exchange is open for trading, in
accordance with Dow Xxxxx' current procedures, which procedures may be modified
by Dow Xxxxx; and
(iii) Dow Xxxxx shall use commercially reasonable efforts to
promptly correct, or instruct its agent to correct, any mathematical errors made
in Dow Xxxxx' computations of the Indexes which are brought to Dow Xxxxx'
attention by the Licensee or of which Dow Xxxxx otherwise becomes aware;
provided, that nothing in this Section 5 shall give the Licensee the right to
exercise any judgment or require any changes with respect to Dow Xxxxx' method
of composing, calculating or determining the Indexes; and, provided, further,
that nothing herein shall be deemed to modify the provisions of Section 9 of
this Agreement.
(c) Dow Xxxxx shall use reasonable efforts to safeguard the
confidentiality of all impending changes in the components or method of
computation of the Indexes until such changes are publicly disseminated, and
shall require the same of any agent with whom it has contracted for computation
thereof. Dow Xxxxx shall implement reasonable procedures so that only those
persons at Dow Xxxxx directly responsible for changes in the composition or
method of computation of the Indexes shall be granted access to information
respecting impending changes. Dow Xxxxx shall notify Licensee by e-mail or
telecopy of any change or impending change in the components or method of
computation of any of the Indexes as soon as reasonably practicable after
Dow Xxxxx' issuance of a press release or other public announcement of such
change or impending change.
(d) Dow Xxxxx will provide data related to each of the Indexes as
set forth on Exhibit II (the "Index Data"). Licensee agrees that it shall use
such Index Data for internal purposes only, and Licensee shall not reproduce or
further transmit or distribute the Index Data for commercial purposes in any
type of format or by any means, including but not limited to the Internet,
Intranet or other type of network; provided, however, that Licensee may publish
such portions of the Index Data as may be required by applicable law. For the
avoidance of doubt, except as otherwise expressly provided herein, Licensee
expressly acknowledges and agrees that Dow Xxxxx has no obligation to publish or
distribute publicly all or any portion of the Index Data.
6. Trademark Filings; Recognition of Intellectual Property Rights;
Protection of Intellectual Property; Quality Control.
(a) Dow Xxxxx shall apply only for such trademark and trade name
registrations for the Dow Xxxxx Marks only in such jurisdictions, if any, where
Dow Xxxxx, in its sole discretion, considers such filings appropriate. The
Licensee shall reasonably cooperate with Dow Xxxxx in the maintenance of such
rights and registrations and shall do such acts and execute such instruments as
are reasonably necessary or appropriate for such purpose. The Licensee shall
use the following notice when referring to any of the Indexes or the Dow Xxxxx
Marks in any informational materials to be used in connection with the Products
(including all prospectuses, registration statements, 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 Dow Xxxxx, any of the Indexes or the Dow Xxxxx Marks
(collectively, the "Informational Materials"):
"Dow Xxxxx," "Dow Xxxxx US Healthcare Sector IndexSM", "Dow Xxxxx
US Financial Sector Index" and "Dow Xxxxx Global Titans Index" are
service marks of Dow Xxxxx & Company, Inc. and have been licensed for
use for certain purposes by [INSERT Name of Licensee]. [INSERT Name
of Licensee]'s [INSERT Name of Product(s)] based on the [insert
relevant index] are not sponsored, endorsed, sold or promoted by Dow
Xxxxx, and Dow Xxxxx makes no representation regarding the
advisability of investing in such product(s).
or such similar language as may be approved in advance in writing by Dow Xxxxx.
(b) The Licensee agrees that the Dow Xxxxx Marks and all Intellectual
Property and other rights, registrations and entitlement thereto, together with
all applications, registrations and filings with respect to any of the Dow Xxxxx
Marks and any renewals and extensions of any such applications, registration and
filings, are and shall remain the sole and exclusive property of Dow Xxxxx. The
Licensee acknowledges that each of the Dow Xxxxx Marks is part of the business
and goodwill of Dow Xxxxx and agrees that it shall not, during the Term or
thereafter, contest the fact that the Licensee's rights in the Dow Xxxxx Marks
under this Agreement (i) are limited solely to the use of the Dow Xxxxx Marks in
connection with the issuance, marketing, and/or promotion of the Products and
disclosure about the Products under applicable law as provided in Section 1(a),
and (ii) shall cease upon termination or expiration of this Agreement, except as
otherwise expressly provided herein. Upon termination or expiration of this
Agreement, the Licensee shall have no right to use any Dow Xxxxx Marks and shall
inform any recipients of Informational Materials that in any way use or refer to
any Dow Xxxxx Marks that this Agreement has been terminated or has expired and
that Dow Xxxxx no longer provides the Indexes to the Licensee. The Licensee
recognizes the great value of the reputation and goodwill associated with the
Dow Xxxxx Marks and acknowledges that such goodwill associated with the Dow
Xxxxx Marks belongs exclusively to Dow Xxxxx, and that Dow Xxxxx is the owner of
all right, title and interest in and to the Dow Xxxxx Marks in connection with
the Products. The Licensee further acknowledges that all rights in any
translations, derivations or modifications in the Dow Xxxxx Marks which may be
created by or for the Licensee shall be and shall remain the exclusive property
of Dow Xxxxx and said property shall be and shall remain a part of the
Intellectual Property subject to the provisions and conditions of this
Agreement. The Licensee shall never, either directly or indirectly, contest Dow
Xxxxx' exclusive ownership of any of the Intellectual Property. The Licensee
shall not, except with Dow Xxxxx' prior written consent, use any Dow Xxxxx Xxxx,
or the designations "Dow Xxxxx" or any other Dow Xxxxx xxxx, in conjunction with
the Licensee's own trademark(s) resulting in a composite xxxx and, if the
Licensee obtains Dow Xxxxx' consent therefor, then such resulting composite xxxx
shall be part of the intellectual property of Dow Xxxxx and included in the Dow
Xxxxx Marks as defined herein, and Dow Xxxxx shall be permitted to register such
usage in all jurisdictions, if any, as Dow Xxxxx deems to be reasonably
necessary or prudent, without opposition from the Licensee. The Licensee agrees
to cooperate with Dow Xxxxx in the maintenance of such rights and registrations
and shall do such acts and execute such instruments as are reasonably necessary
or appropriate for such purpose.
(c) In the event that the Licensee learns of any infringement or
imitation of the any of Indexes and/or any Dow Xxxxx Xxxx, or of any use by any
person of a trademark similar to any of the Dow Xxxxx Marks, it shall promptly
notify Dow Xxxxx. Dow Xxxxx shall take such action, if any, as it deems
advisable for the protection of rights in and to the Indexes and the Dow Xxxxx
Marks and, if requested to do so by Dow Xxxxx, the Licensee shall cooperate with
Dow Xxxxx in all respects, at Dow Xxxxx' expense, including, without limitation,
by being a plaintiff or co-plaintiff and, upon Dow Xxxxx' reasonable request, by
causing its officers to execute appropriate pleadings and other necessary
documents. In no event, however, shall Dow Xxxxx be required to take any action
it deems inadvisable. The Licensee shall have no right to take any action which
would materially affect any of the Indexes and/or any of the Dow Xxxxx Marks
without Dow Xxxxx' prior written approval.
(d) The Licensee shall use all reasonable efforts to protect the
goodwill and reputation of Dow Xxxxx, the Indexes and the Dow Xxxxx Marks in
connection with its use of the Indexes and any of the Dow Xxxxx Marks under this
Agreement. The Licensee shall submit to Dow Xxxxx, for Dow Xxxxx' review and
approval, and the Licensee shall not use until receiving Dow Xxxxx' approval
thereof in writing, all Informational Materials that in any way use or refer to
Dow Xxxxx, any of the Indexes or the Dow Xxxxx Marks. Dow Xxxxx' approval
shall be required with respect to the use of and description of Dow Xxxxx, any
of the Indexes or the Dow Xxxxx Marks. Dow Xxxxx shall notify the Licensee of
its approval or disapproval of any Informational Materials within 72 hours
(excluding any day which is a Saturday or Sunday or a day on which The New York
Stock Exchange is closed) following receipt thereof from the Licensee. Once
Informational Materials have been approved by Dow Xxxxx, subsequent
Informational Materials which do not alter the use or description of Dow Xxxxx,
such Indexes or Dow Xxxxx Marks, as the case may be, need not be submitted for
review and approval by Dow Xxxxx.
(e)(i) The Licensee shall not use, nor permit the use of, the Dow
Xxxxx Marks in any Informational Material as part of a composite xxxx with any
of its own marks, the marks of any of its affiliates or the marks of any third
party (collectively, the "Non-Dow Xxxxx Marks"), and (ii) the Dow Xxxxx Marks
and the Non-Dow Xxxxx Marks, to the extent they appear in any Informational
Material, shall appear separately and shall be clearly identified with regard to
ownership. Whenever the Dow Xxxxx Marks are used in any Informational Material
in connection with any of the Products, the name of the Licensee shall appear in
close proximity to the Dow Xxxxx Marks so that the identity of the Licensee, and
its status as an authorized licensee of such Dow Xxxxx Marks, is clear and
obvious.
(f) Intentionally deleted.
(g) If at any time Dow Xxxxx is of the opinion that the Licensee is
not properly using the Intellectual Property in connection with the Products or
Informational Materials, or that the standard of quality of any of the Products
or Informational Materials does not conform to reasonable standards, Dow Xxxxx
shall give notice to the Licensee to that effect. Upon receipt of such notice,
the Licensee shall forthwith correct the defects therein, or shall forthwith
cease the issuance, marketing, promotion and sale or use of the non-conforming
Products or Informational Materials.
(h) The parties acknowledge and agree that Licensee has requested the
right to use the "Global Titans" xxxx, and Dow Xxxxx is willing to grant a
license to such xxxx as set forth in Section 1(a), subject to the terms and
conditions of this Agreement and the following additional conditions: (i)
whenever Licensee uses the "Global Titans" xxxx, Licensee shall use a house xxxx
(i.e., a trademark or service xxxx that is proprietary to Licensee) immediately
preceding the "Global Titans" xxxx. For example, Licensee may use the "Global
Titans" xxxx in the Product name "North Track Global Titans Fund", but not
"Global Titans Fund"; and (ii) notwithstanding anything to the contrary in this
Agreement, Dow Xxxxx makes no representations or warranties whatsoever (whether
statutory, express or implied) with respect to the "Global Titans" xxxx,
including without limitation, the adequacy of Dow Xxxxx'x right, title and
interest thereto, and (iii) Dow Xxxxx shall have no liability to the Licensee or
any third party with respect to the Licensee's use of the "Global Titans" xxxx.
7. Proprietary Rights.
(a) The Licensee acknowledges that the Indexes are selected,
compiled, coordinated, arranged and prepared by Dow Xxxxx through the
application of methods and standards of judgment used and developed through the
expenditure of considerable work, time and money by Dow Xxxxx. The Licensee
also acknowledges that the Indexes and the Dow Xxxxx Marks are valuable assets
of Dow Xxxxx and agrees that it will take reasonable measures to prevent any
unauthorized use of the information provided to it concerning the selection,
compilation, coordination, arrangement and preparation of the Indexes.
(b) Each party shall treat as confidential and shall not disclose or
transmit to any third party (i) any documentation or other materials that are
marked as "Confidential" by the providing party and (ii) the terms of this
Agreement (collectively, "Confidential Information"). Confidential Information
shall not include (A) 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 (B) any information that is independently developed by the
receiving party without use of or reference to information from the providing
party.
(c) 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 (i) approved in writing by
the providing party for disclosure or (ii) required by law, regulatory agency or
court order to be disclosed by the receiving party, provided, if permitted by
law, that prior written notice of such required disclosure is given to the
providing party and provided further that the receiving party shall cooperate
with the providing party to limit the extent of such disclosure. The provisions
of Sections 7(b) and (c) shall survive termination or expiration of this
Agreement for a period of five (5) years from disclosure by either party to the
other of the last item of such Confidential Information.
8. Warranties; Disclaimers.
(a) Each party represents and warrants to the other that it has the
authority to enter into this Agreement according to its terms, and that its
execution and delivery of this Agreement and its performance hereunder will not
violate any agreement applicable to it or violate any applicable law or
regulation. The Licensee represents and warrants to Dow Xxxxx that the
issuance, marketing, promotion, sale and resale of the Products by the Licensee
will not violate any agreement applicable to the Licensee or violate any
applicable laws, rules or regulations, including without limitation, securities,
commodities, and banking laws.
(b) The Licensee represents, warrants and covenants to Dow Xxxxx that
the Products shall at all times comply with the descriptions set forth on
Schedule A.
(c) The Licensee shall include the statement contained in Exhibit I
hereto in any filing with a governmental agency, each prospectus and
registration statement, and in any contracts relating to the Products (and upon
request shall furnish copies thereof to Dow Xxxxx), and the Licensee expressly
agrees to be bound by the terms of the statement contained in Exhibit I hereto
(which terms are expressly incorporated herein by reference and made a part
hereof). Any changes in the statement contained in Exhibit I hereto must be
approved in advance in writing by an authorized officer of Dow Xxxxx.
(d) Notwithstanding any provision of this Agreement, and without
limiting the disclaimers set forth in this Agreement (including in Exhibit I
hereto), in no event shall the cumulative liability of Dow Xxxxx to the
Licensee and its affiliates under or relating to this Agreement at any time
exceed the aggregate amount of License Fees received by Dow Xxxxx pursuant to
this Agreement prior to such time.
9. Indemnification.
(a) The Licensee shall indemnify and hold harmless Dow Xxxxx and its
affiliates, and their respective officers, directors, members, employees and
agents, against any and all judgments, damages (excluding consequential
damages), liabilities, costs and expenses of any kind (including reasonable
attorneys' and experts' fees) (collectively, "Losses") as a result of any claim,
action or proceeding that arises out of or relates to (i) this Agreement (except
to the extent such Losses arise out of or relate to a breach by Dow Xxxxx of its
representations and warranties under this Agreement) or (ii) the Products,
provided, however, that Dow Xxxxx must promptly notify the Licensee in writing
of any such claim, action or proceeding (but the failure to do so shall not
relieve the Licensee of any liability hereunder except to the extent the
Licensee has been materially prejudiced therefrom). The Licensee may elect, by
written notice to Dow Xxxxx within ten (10) days after receiving notice of such
claim, action or proceeding from Dow Xxxxx, to assume the defense thereof with
counsel reasonably acceptable to Dow Xxxxx. If the Licensee does not so elect
to assume such defense or disputes its indemnity obligation with respect to such
claim, action or proceeding, or if Dow Xxxxx reasonably believes that there are
conflicts of interest between Dow Xxxxx and the Licensee or that additional
defenses are available to Dow Xxxxx with respect to such defense, then Dow Xxxxx
shall retain its own counsel to defend such claim, action or proceeding, at the
Licensee's expense. The Licensee shall periodically reimburse Dow Xxxxx for its
expenses incurred under this Section 9. Dow Xxxxx 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 and with respect to which the Licensee
has elected to assume the defense; provided, however, that Dow Xxxxx 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 the Licensee
unless Dow Xxxxx waives its right to indemnity hereunder. The Licensee, in the
defense of any such claim, action or proceeding, except with the written consent
of Dow Xxxxx, shall not 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 Dow Xxxxx of a release of all liabilities in respect of such
claims or (ii) otherwise adversely affects the rights of Dow Xxxxx.
(b) Dow Xxxxx shall indemnify and hold harmless Licensee, and its
affiliates, and their respective officers, directors, members, employees and
agents, against any and all Losses as a result of any claim, action or
proceeding by a third party to the effect that the Licensee's use of the Dow
Xxxxx Marks in accordance with the terms and conditions of this Agreement
infringes such third party's copyright, trademark or trade secret rights;
provided, however, that Licensee must promptly notify Dow Xxxxx in writing of
any such claim, action or proceeding (but the failure to do so shall not relieve
Dow Xxxxx of any liability hereunder except to the extent Dow Xxxxx has been
materially prejudiced therefrom) and Dow Xxxxx shall have sole control of the
defense and/or settlement of any such claim.
(c) The indemnification provisions set forth herein are solely for
the benefit of Dow Xxxxx and are not intended to, and do not, create any rights
or causes of actions on behalf of any third party.
10. Suspension of Performance.
Notwithstanding anything herein to the contrary, neither Dow Xxxxx nor the
Licensee shall bear responsibility or liability for any Losses arising out of
any delay in or interruptions of performance of their respective obligations
under this Agreement due to any act of God, act of governmental authority, or
act of public enemy, or due to war, the outbreak or escalation of hostilities,
riot, fire, flood, civil commotion, insurrection, labor difficulty (including,
without limitation, any strike, other work stoppage, or slow-down), severe or
adverse weather conditions, power failure, communications line or other
technological failure, or other similar cause beyond the reasonable control of
the party so affected; provided, however, that this Section 10 shall not affect
the Licensee's obligations under Section 9(a) in the case of any claim, action
or proceeding brought by a third party.
11. Injunctive Relief.
In the event of a material breach by one party ("Breaching Party") of
provisions of this Agreement relating to the Confidential Information of the
other party ("Non-breaching Party"), the Breaching Party acknowledges and agrees
that damages would be an inadequate remedy and that the Non-breaching Party
shall be entitled to preliminary and permanent injunctive relief to preserve
such confidentiality or limit improper disclosure of such Confidential
Information, but nothing herein shall preclude the Non-breaching Party from
pursuing any other action or remedy for any breach or threatened breach of this
Agreement. All remedies under this Section 11 shall be cumulative.
12. Other Matters.
(a) This Agreement is solely and exclusively between the parties
hereto and, except to the extent otherwise expressly provided herein, shall not
be assigned or transferred, nor shall any duty hereunder be delegated, by either
party, without the prior written consent of the other party, and any attempt to
so assign or transfer this Agreement or delegate any duty hereunder without such
written consent shall be null and void; provided, however, that any wholly-owned
subsidiary of the Licensee may use the Indexes and the Dow Xxxxx Marks in
connection with the issuance, marketing and promotion of the Products, provided
that such subsidiary shall be subject to all of the terms and conditions of this
Agreement applicable to the Licensee. This Agreement shall be valid and binding
on the parties hereto and their successors and permitted assigns.
(b) This Agreement, including the Schedules and Exhibits hereto
(which are hereby expressly incorporated into and made a part of this
Agreement), constitutes the entire agreement of the parties hereto with respect
to its subject matter. This Agreement supersedes any and all previous
agreements 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 waiver, modification or amendment of any of the terms and
conditions hereof shall be valid or binding unless set forth in a written
instrument signed by duly authorized officers of both parties. The delay or
failure by any party to insist, in any one or more instances, upon strict
performance of any of the terms or conditions of this Agreement or to exercise
any right or privilege herein conferred shall not be construed as a waiver of
any such term, condition, right or privilege, but the same shall continue in
full force and effect.
(d) No breach, default or threatened breach of this Agreement by
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.
(e) All notices and other communications under this Agreement shall
be (i) in writing, (ii) delivered by hand (with written confirmation of
receipt), by registered or certified mail (return receipt requested), or by
facsimile transmission (with written confirmation of receipt), to the address
or facsimile number set forth below or to such other address or facsimile number
as either party shall specify by a written notice to the other, and (iii) deemed
given upon receipt.
If to Dow Xxxxx: Dow Xxxxx & Company, Inc.
U.S. Route 0 Xxxxx xx Xxxxx Xxxx
Xxxxxxxx Xxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxxxx
Managing Director, Dow Xxxxx Indexes
Fax No: 609/000-0000
With a copy to: Dow Xxxxx & Company, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Legal Department
Fax No: 212/000-0000
If to the Licensee: North Track Funds, Inc.
000 X. Xxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attn: Xx. Xxxxxx Xxxxxxxxx
President & CEO
Fax: 000 000 0000
Phone: 000 000-0000
(f) This Agreement shall be interpreted, construed and enforced in
accordance with the laws of the State of New York without reference to or
inclusion of the principles of choice of law or conflicts of law of that
jurisdiction. It is the intent of the parties that the substantive law of the
State of New York govern this Agreement and not the law of any other
jurisdiction incorporated through choice of law or conflicts of law principles.
Each party agrees that any legal action, proceeding, controversy or claim
between the parties arising out of or relating to this Agreement may be brought
and prosecuted only in the United States District Court for the Southern
District of New York, and by execution of this Agreement each party hereto
submits to the exclusive jurisdiction of such court and waives any objection it
might have based upon improper venue or inconvenient forum. Each party hereto
hereby waives any right it may have in the future to a jury trial in connection
with any legal action, proceeding controversy or claim between the parties
arising out of or relating to this Agreement.
(g) This Agreement (and any related arrangements between the parties
hereto) is solely and exclusively for the benefit of the parties hereto and
their respective successors, and nothing in this Agreement (and any related
arrangements between the parties hereto), express or implied, is intended to or
shall confer on any other person or entity (including, without limitation, any
sublicensee of the Licensee hereunder or any purchaser of any Products issued by
the Licensee), any rights, benefits or remedies of any nature whatsoever under
or by reason of this Agreement (or any such related arrangements between the
parties hereto).
(h) Sections 6(b), 7(b) and (c) (as provided therein), 8, 9, 11 and
12(f), and this Section 12(h), shall survive the expiration or termination of
this Agreement.
(i) The parties hereto are independent contractors. Nothing herein
shall be construed to place the parties in the relationship of partners or joint
venturers, and neither party shall acquire any power, other than as specifically
and expressly provided in this Agreement, to bind the other in any manner
whatsoever with respect to third parties.
(j) All references herein to "reasonable efforts" shall include
taking into account all relevant commercial and regulatory factors. All
references herein to "regulations" or "regulatory proceedings" shall include
regulations or proceedings by self-regulatory organizations such as securities
exchanges.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the date first set forth above.
DOW XXXXX & COMPANY, INC.
By:
------------------------------------
Name: Xxxxx X. Xxxxx
Title: President, Dow Xxxxx Indexes
NORTH TRACK FUNDS, INC.
By:
------------------------------------
Name: Xx. Xxxxxx Xxxxxxxxx
Title: President & CEO
INDEX OF ATTACHMENTS
SCHEDULES:
Schedule A Products Description
Schedule B License Fees
EXHIBITS:
Exhibit I Disclaimer Language
Exhibit II Customized Index Data
SCHEDULE A
PRODUCTS DESCRIPTION
An investment fund (i) that is an investment company registered under the
Investment Company Act of 1940, (ii) whose investment objective is to replicate
the performance of an Index (except that Licensee may engage in the practice of
overweighting/underweighting the components of the Index and may engage in the
strategy involving investment in shares of exchange-traded funds), and (ii) that
is not traded or listed on an Organized Securities Markets (as defined below)
(e.g., is not exchange traded, electronically or otherwise). "Organized
---------
Securities Market" shall mean a U.S. national securities exchange, an automated
-----------------
quotation or other electronic trading system of a U.S.-registered securities
association, a foreign securities exchange or any other domestic or foreign
securities market determined by Dow Xxxxx in its reasonable judgment to
constitute an Organized Securities Market. The name of the Product shall be
subject to Dow Xxxxx'x prior written consent. In that regard, Dow Xxxxx hereby
consents to the names of the following two Products: North Track Dow Xxxxx US
Healthcare 100 Plus Fund and North Track Dow Xxxxx US Financial 100 Plus Fund.
SCHEDULE B
LICENSE FEES
[Intentionally Omitted]
EXHIBIT I
The [Products] are not sponsored, endorsed, sold or promoted by Dow Xxxxx.
Dow Xxxxx makes no representation or warranty, express or implied, to the owners
of the [Product(s)] or any member of the public regarding the advisability of
investing in securities generally or in the [Product(s)] particularly. Dow
Xxxxx' only relationship to the Licensee is the licensing of certain trademarks,
trade names and service marks of Dow Xxxxx and of the [insert relevant indexSM],
which is determined, composed and calculated by Dow Xxxxx without regard to [the
Licensee] or the [Product(s)]. Dow Xxxxx has no obligation to take the needs of
[the Licensee] or the owners of the [Product(s)] into consideration in
determining, composing or calculating the [insert relevant indexSM], . Dow
Xxxxx is not responsible for and has not participated in the determination of
the timing of, prices at, or quantities of the [Product(s)] to be issued or in
the determination or calculation of the equation by which the [Product(s)] are
to be converted into cash. Dow Xxxxx has no obligation or liability in
connection with the administration, marketing or trading of the [Product(s)].
DOW XXXXX DOES NOT GUARANTEE THE ACCURACY AND/OR THE COMPLETENESS OF THE
[insert relevant indexSM], OR ANY DATA INCLUDED THEREIN AND DOW XXXXX SHALL HAVE
NO LIABILITY FOR ANY ERRORS, OMISSIONS, OR INTERRUPTIONS THEREIN. DOW XXXXX
MAKES NO WARRANTY, EXPRESS OR IMPLIED, AS TO RESULTS TO BE OBTAINED BY [THE
LICENSEE], OWNERS OF THE [PRODUCT(S)], OR ANY OTHER PERSON OR ENTITY FROM THE
USE OF [insert relevant indexSM], OR ANY DATA INCLUDED THEREIN. DOW XXXXX 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
[insert relevant indexSM], OR ANY DATA INCLUDED THEREIN. WITHOUT LIMITING ANY
OF THE FOREGOING, IN NO EVENT SHALL DOW XXXXX HAVE ANY LIABILITY FOR ANY LOST
PROFITS OR INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES OR LOSSES, EVEN
IF NOTIFIED OF THE POSSIBILITY THEREOF. THERE ARE NO THIRD PARTY BENEFICIARIES
OF ANY AGREEMENTS OR ARRANGEMENTS BETWEEN DOW XXXXX AND [THE LICENSEE].
EXHIBIT II
Customized Index Data
Dow Xxxxx shall provide to Licensee the following data (collectively, the
"Index Data") via, at Dow Xxxxx'x option, (i) ftp delivery or (ii) e-mail
delivery
A. Upon execution of this Licensee Agreement and payment of the fees
required hereunder:
1) A list of the component stocks comprising each of the Indexes
(collectively, the "Components");
2) The price of each of the Components; and
3) The divisor and value of each of the Indexes.
B. From time to time, as appropriate, Dow Xxxxx will advise Licensee of:
1) Changes in the Components;
2) Changes in the weightings of the Components;
3) Corporate action and dividend information with respect to the
Components; and
4) Changes to the divisor of each of the Indexes.
