ISDA Regulatory Capital Model CRIF License Agreement

ISDA REGULATORY CAPITAL MODEL CRIF LICENSE AGREEMENT

PLEASE READ THE FOLLOWING TERMS AND CONDITIONS OF USE (THESE “TERMS AND CONDITIONS”) CAREFULLY BEFORE CLICKING AGREE. The International Swaps and Derivatives Association, Inc. (“Licensor”) provides the Capital Model CRIF (as defined below) solely under the terms hereunder. Access and use of the Capital Model CRIF is subject to your understanding of and compliance with these Terms and Conditions set forth below (the “License”). This document should be examined carefully.  By clicking the “I agree” button at the end of this document and by accessing or using the Capital Model CRIF, you represent to us that you are lawfully able to enter into contracts as the “Licensee” and that you assent to the License.

RECITALS:

  1. Licensor compiles a schema consisting of attributes that describe risk sensitivities used in calibrating firms’ regulatory capital models (the “Capital Model CRIF”).
  2. Licensee wishes to acquire from Licensor, and Licensor wishes to grant to Licensee and to each of its Affiliates (as defined below), a non-exclusive, non-transferrable non-sublicenseable, worldwide, royalty-free, limited license to use and implement the Capital Model CRIF in accordance with the terms set forth below.

NOW, THEREFORE, in consideration of the mutual promises and covenants set out below, and intending to be bound thereby, the Parties do hereby agree as follows:

  1. Definitions. As used in this Agreement, the following terms have the following meanings:
    “Affiliates” means with respect to any Person, any other Person, directly or indirectly controlling, controlled by or under common control with such first Person.  The term “control” (including, with correlative meaning, the terms “controlled by” and “under common control with”), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise.
    “Commercially Reasonable” means taking all such steps and performing in such a manner as a well-managed company would undertake where it was acting in an ambitious, determined, diligent, prudent and motivated manner to achieve a particular desired result for its own benefit.
    “Demand” shall have the meaning set out in Section 6.3.
    “Indemnitee” and “Indemnitor” shall have the meaning set out in Section 6.5.
    “Initial Term” shall have the meaning set out in Section 4.1;
    “Intellectual Property Rights” means any and all now known or hereafter existing (i) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (ii) trademark or service mark rights; (iii) trade secret rights; (iv) patents, patent rights, and industrial property rights; (v) layout design rights, design rights, and other proprietary rights of every kind and nature; and (vi) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
    “Person” means any individual, corporation, partnership, limited liability company, firm, joint venture, association, joint-stock company, trust, unincorporated organization, governmental or regulatory body or other entity.
    “Term” shall have the meaning set out in Section 4.1.
  2. License Grants and Limitations.
    2.1       Grant of License to Capital Model CRIF. Subject to the terms of this Agreement, Licensor hereby grants to Licensee, and to each of its Affiliates, a non-exclusive, non-transferable non-sublicenseable worldwide, non-royalty bearing, limited license to the Capital Model CRIF for Licensee’s and its Affiliates’ internal use in connection with the exchange of Capital Model CRIF data with licensed third parties.
    2.2       Limitations on Use. Licensee may not share the Capital Model CRIF with any Person that is not an Affiliate or an applicable regulator of Licensee, except pursuant to Section 2.1, Licensee may share Capital Model CRIF data with other licensed third parties. The Capital Model CRIF is considered confidential information and Licensee shall employ all reasonable measures to protect such confidential information from unauthorized or inadvertent disclosure, including measures no less protective than those measures that the Licensee employs to protect its own information of a like nature.
    2.3       Reservation of Right and Ownership of Intellectual Property. Licensor reserves all rights not otherwise expressly granted in this Section 2.  Licensor shall own and shall retain all rights, title and interest to the Capital Model CRIF, and any changes, corrections, enhancements, updates, modifications or other derivative works thereto.
    2.4       No Implied Licenses. Except as expressly set forth in this Agreement, nothing herein shall be deemed to grant to a party, by implication, estoppel or otherwise, and neither party shall acquire any right, interest or license in or to any Intellectual Property Rights of the other party or its Affiliates
  3. Obligations and Covenants.
    3.1       Intellectual Property Protection and Enforcement. Licensee agrees to use Commercially Reasonable efforts to promptly report to Licensor any infringement or any unauthorized or improper use of the Capital Model CRIF of which it becomes aware In connection with any such infringement claim, Licensee agrees to provide Commercially Reasonable cooperation, at Licensor’s expense, in Licensor’s efforts to enforce its rights in the Capital Model CRIF.
  4. Effectiveness of Agreement; Term and Termination.
    4.1       Term. The term of this Agreement shall commence on the Effective Date and shall continue until terminated pursuant to 4.2 below (the “Term”).
    4.2       Termination.

    1. Either party shall have the right to terminate this Agreement and the licenses granted hereunder at any time by providing written notice of such termination to the other party in the event that such other party breaches a material obligation of this Agreement, and fails to cure such breach within thirty (30) days after the date of such other party’s receipt of such notice of such breach.
    2. Licensor shall have the right to terminate upon six months’ prior notice if Licensor’s Board of Directors decide to discontinue production of the Capital Model CRIF. For the avoidance of doubt, Licensee may continue to use the Capital Model CRIF available at the date of termination for the purposes herein.
    3. Licensee shall have the right to terminate this Agreement by providing 30 days’ prior notice to Licensor.
  5. Representations and Warranties, IP Indemnification.
    5.1       Licensor Representations and Warranties. Licensor warrants to Licensee that:

    1. It has all necessary right, power, and authority to enter into this Agreement, to grant all the rights conferred under the Agreement and to carry out the transactions contemplated by this Agreement.
    2. This Agreement has been duly executed by Licensor and, assuming the due authorization, execution and delivery of this Agreement by Licensee, constitutes a valid and binding obligation of Licensor, enforceable against Licensor in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and to general principles of equity.
    3. To Licensor’s knowledge, the Capital Model CRIF and Licensee’s use thereof, do not violate, infringe or misappropriate any patent, copyright, trademark, service mark, trade secret or other intellectual property, including applications for, and registrations, extensions, renewals, and re-issuances of, the foregoing, or any industrial property rights of any third party or the laws or regulations of any governmental or judicial authority, do not constitute unlawful use or disclosure of any intellectual property rights of a third party.

    5.2       Licensee Representation and Warranties. Licensee warrants to Licensor that:

    1. It has all necessary right, power, and authority to enter into this Agreement, to grant all the rights conferred under the Agreement and to carry out the transactions contemplated by this Agreement.
    2. This Agreement has been duly executed by Licensee and, assuming the due authorization, execution and delivery of this Agreement by Licensor, constitutes a valid and binding obligation of Licensee, enforceable against Licensee in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and to general principles of equity.
  6. Warranty Disclaimer and Limitation of Liability.
    6.1       WARRANTY DISCLAIMER. LICENSEE ACKNOWLEDGES AND AGREES THAT ALL INFORMATION SUPPLIED BY LICENSOR OR A CONTRIBUTOR TO THE CAPITAL MODEL CRIF UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION CONFIDENTIAL INFORMATION OF LICENSOR, IS PROVIDED BY LICENSOR “AS IS” AND, EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, WITHOUT WARRANTY OF ANY KIND. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, LICENSOR MAKES NO WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE CAPITAL MODEL CRIF OR ANY CONFIDENTIAL INFORMATION OR OTHER MATERIAL SUPPLIED HEREUNDER.  EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, LICENSOR AND ALL CONTRIBUTORS TO THE CAPITAL MODEL CRIF DISCLAIM ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE.  LICENSEE ACKNOWLEDGES AND AGREES THAT LICENSOR AND ANY CONTRIBUTOR TO THE CAPITAL MODEL CRIF MAKE NO WARRANTIES TO ANY CLIENT OR CUSTOMER OF LICENSEE, AND THAT LICENSOR AND ANY CONTRIBUTOR TO THE CAPITAL MODEL CRIF ARE NOT RESPONSIBLE TO ANY CLIENT OR CUSTOMER.
    6.2       Limitation of Remedies and Damages. EXCEPT FOR EACH PARTY’S INDEMINIFCATION OBLIGATIONS (SECTION 6.3 AND 6.4 BELOW), EACH PARTY’S LIABILITY, WHETHER IN CONTRACT, TORT, OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED $500.  IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL OR TORT DAMAGES, INCLUDING WITHOUT LIMITATION ANY DAMAGES RESULTING FROM LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS OR LOSS OF BUSINESS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  LICENSEE AGREES NO OTHER CONTRIBUTOR TO THE CAPITAL MODEL CRIF SHALL HAVE ANY LIABILITY HEREUNDER. NEITHER PARTY LIMITS OR EXCLUDES ITS LIABILITY FOR ANY LIABILITY THAT MAY NOT BE LIMITED OR EXCLUDED BY LAW.
    6.3       Indemnification by Licensor.  Licensor shall indemnify Licensee and its Affiliates for all liabilities, costs, losses, amounts paid in settlement or compromise, expenses, or damages and any VAT thereon pursuant to any claim, demand, or cause of action by a third party (“Demand”) to the extent based upon or relating to (i) a breach by Licensor of any representation, warranty, covenant or obligation under this Agreement, (ii) a claim that the Capital Model CRIF infringe, misappropriate or unlawfully use or disclose third-party Intellectual Property Rights, provided that the claim is not attributable to Licensee’s use of the Capital Model CRIF outside the scope or manner of use authorized by this Agreement.
    6.4       Indemnification by Licensee.  Licensee shall indemnify Licensor for any costs, expenses, or damages that are finally awarded against Licensor pursuant to any Demand to the extent based upon or relating to (i) a breach by Licensee of any representation, warranty, covenant or obligation under this Agreement, or (ii) use of the Capital Model CRIF by or on behalf of Licensee or any of its affiliates that is outside the scope or manner of use authorized by this Agreement.
    6.5       Indemnification Procedure. Each party shall promptly notify the other party in writing of any Demand for which such party believes it is entitled to be indemnified pursuant to Section 9.3 or Section 9.4. The Party seeking indemnification (the “Indemnitee”) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Demand and shall employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under Sections 7.3, 7.4 or 7.5 will not relieve the Indemnitor of its obligations under Sections 7.3, 7.4 or 7.5 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
  7. Miscellaneous.
    7.1       Independent Relationship. Nothing in this Agreement is to be construed as creating an agency, partnership, or joint venture relationship between the parties hereto.
    7.2       Entire Agreement. This Agreement represent the entire agreement between the parties, and supersedes all prior agreements and understandings, written or oral, with respect to the matters covered by this Agreement.  Each party agrees that it has not entered into this Agreement based on any representations other than those contained herein.  No modification of or amendment or supplement to this Agreement, nor any waiver of any rights under this Agreement, shall be effective and binding upon the parties unless in writing signed by a duly authorized representative of each party.  The waiver of one breach or default or any delay in exercising any rights shall not constitute a waiver of any subsequent breach or default.
    7.3       Severability. If a term or condition of this Agreement is found by a court or administrative agency to be invalid, illegal or otherwise unenforceable, any such invalid, illegal, or unenforceable term or provision shall not affect any other term or provision of this Agreement and the parties agree to negotiate in good faith to draft a new agreement that comports with the original intent of the parties.
    7.4       Governing Law. This Agreement shall be governed by the laws of the State of New York applicable to agreements made and to be performed entirely within such State, without regard to the conflicts of law principles that would require the application of any other law. The parties unconditionally waive their respective rights to a jury trial for any claim or cause of action based upon or arising out of, directly or indirectly, this Agreement or any dealings between them arising out of or relating to the subject matter of this Agreement.
    7.5       Survival. The parties’ obligations under Sections 2.2 and 6 shall survive termination of this Agreement.
    7.6       Assignment. This Agreement shall be binding upon and inure to the benefit of the parties hereto, and their respective successors and permitted assigns.  Neither party shall assign or otherwise transfer this Agreement or any rights or obligations hereunder, in whole or in part, without the other party’s prior written consent, which consent shall not be unreasonably withheld or delayed.  Any purported transfer, assignment or delegation without such prior written consent will be null and void and of no force or effect.   Notwithstanding the foregoing and anything to the contrary otherwise set forth in this Agreement, Licensee may assign its rights or obligations under this Agreement, in whole or in part, to any of its Affiliates or to any entity that: (i) acquires all or substantially all of Licensee’s assets; (ii) is otherwise a successor in interest to Licensee; or (iii) Licensee has outsourced substantially all, or major segments of, the activities covered by this Agreement, provided that in no event shall such assignment to an outsourcer relieve Licensee of its obligations under this Agreement.  This Agreement will be binding upon the parties and their respective legal successors and permitted assigns.
    7.7       Notices. Any notices under this Agreement shall be in writing and shall be deemed properly given to a party when (a) delivered by hand or by a nationally recognized overnight courier service (costs prepaid) or (b) sent by registered or certified mail, postage prepaid, return receipt requested, in each case to the following:
    To Licensor:
     International Swaps and Derivatives Association, Inc.,
    10 E 53rd Street, 9th Floor, New York, NY 10022
    Attention: General Counsel
    To Licensee:  Pursuant to the information entered into the form below.
    7.8       Counterparts. This Agreement may be executed in counterparts (including facsimile copies), each of which, when so executed, constitutes one original and all of which, when taken together, constitute one and the same Agreement.
    7.9       Interpretation. The headings contained in this Agreement or in any Exhibit hereto, are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.  Whenever the context requires, any pronouns used herein shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns and pronouns shall include the plural and vice-versa.  Whenever the words “include,” “includes” or “including” are used in this Agreement, they are deemed to be followed by the words “without limitation.”  The word “day” means calendar day.  Except when the context otherwise requires, references to Sections or Exhibits contained herein refer to Sections or Exhibits of this Agreement. All Exhibits annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein.  Any capitalized terms used in any Exhibit, but not otherwise defined therein, shall have the meaning as defined in this Agreement.

BY CLICKING THE “I AGREE” BUTTON BELOW, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THE FOREGOING LICENSE AND ACCEPT IT.

    Licensee (Please enter the firm you represent and your office or position with the firm):