ISDA SIMM^® LICENSE AGREEMENT FOR FIRMS SUBJECT TO REGULATORY MARGIN IN OR AFTER 2020 (“PHASE 5 LICENSE”)

PLEASE READ THE FOLLOWING TERMS AND CONDITIONS OF USE CAREFULLY BEFORE USING The ISDA SIMM. Access and use of ISDA SIMM is subject to your understanding of and compliance with the terms and conditions set forth below. This document should be examined carefully before accessing the documentation for the ISDA SIMM.

By clicking the “I agree” button at the end of this document and by accessing or using ISDA SIMM, including utilizing the documentation listed in Exhibit B, you represent to us that you are lawfully able to enter into contracts as the Licensee and that you assent to this ISDA SIMM License Agreement’s terms.  You also agree, represent and warrant (and understand that such representation and warranty is a material term of this Agreement) that: (a) your firm will not be subject to regulatory margin requirements in your respective jurisdictions prior to September 1, 2020 and/or (b)  neither you nor your firm may at any time create or authorize, directly or indirectly, any ISDA SIMM-based service for any use by third parties. Further, if you are entering into this Agreement on behalf of the legal entity specified below as the Licensee, you represent that you have the legal authority to do so on its behalf.

RECITALS:

A. The International Swaps and Derivatives Association, Inc. (“Licensor”) has developed a proprietary Standard Initial Margin Model (SIMM) for the calculation of initial margin for uncleared derivatives transactions (defined below as the “ISDA SIMM”).

B. 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-sublicensable, worldwide, non-royalty bearing limited license to use and implement the ISDA SIMM in accordance with the terms set forth below, and to use the Licensed Materials and the Licensed Trademarks in connection with the marketing, performance and implementation of the ISDA SIMM by Licensee.

NOW, THEREFORE, in consideration of the mutual promises and covenants set out below, including Licensee’s use of the ISDA SIMM, 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.
   “Confidential Information” shall have the meaning set out in Section 7.1.
   “Demand” shall have the meaning set out in Section 8.3.
   “Indemnitee” and “Indemnitor” shall have the meaning set out in Sections 8.3 and 8.4.
   “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.
   “ISDA Board” shall have the meaning set out in Section 6.2(c).
   “ISDA SIMM” means the proprietary Standard Initial Margin Model (SIMM), usable for the calculation of initial margin for uncleared derivatives transactions, developed by Licensor and described in the Licensed Materials and includes any enhancements, updates or other modifications thereto.
   “ISDA SIMM IP” means any and all Intellectual Property Rights in and to the ISDA SIMM, Licensed Materials, Licensed Patents and Licensed Trademarks.
   “Licensee Margin Model” shall have the meaning set out in Section 2.1;
   “Licensed Materials” means all written and unwritten documentation, materials, information and Intellectual Property used or useful in the marketing, promotion, performance and/or implementation of the ISDA SIMM, including training manuals and guides, planning guides, teaching materials, forms, maps, instructions, marketing collateral, videos, sound tracks, policies, procedures, logistics and planning information, data, historical data and reports, vendor lists, sponsor lists, client lists, and related products, materials, techniques and methods developed by or on behalf of Licensor, including, but not limited to, those items described on Exhibit B.
   “Licensed Patents” means any patent(s) and patent application(s) listed on Exhibit A, which may be updated from time to time by Licensor by written notice to Licensee.
   “Licensed Trademarks” means the trademark(s) listed in Exhibit A, which may be updated from time to time by Licensor by written notice to Licensee.
   “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 6.1.

2. License Grants and Limitations.
   2.1 Grant of License to Licensed Materials. Subject to the terms of this Agreement, Licensor hereby grants to Licensee, and to each of Licensee’s Affiliates, a non-exclusive, non-transferable non-sublicenseable worldwide, non-royalty-bearing limited license to: (A) use, market and implement the ISDA SIMM, (B) display, copy, reproduce, market, utilize and distribute the Licensed Materials, (C) use the Licensed Trademarks, subject to Section 2.2, and (D) create and use derivative works based on the ISDA SIMM (the “Licensee Margin Model”). Licensee and its Affiliates may only use such derivative works internally for (i) Licensee’s uncleared derivatives transactions or (ii) in combination with Licensee’s own proprietary Licensee Margin Model, as implemented pursuant to Section 2.7.  Furthermore, at such time as this Agreement terminates, Licensee’s and its Affiliates’ license to create, reproduce, display or use such derivative works shall cease.
   2.2 Quality Control of Trademarks. Licensee’s use of the Licensed Trademarks is subject to such Commercially Reasonable and customary policies as are set out in Exhibit C attached hereto, which is incorporated by reference, and as may also be established by Licensor from time to time and communicated to Licensee in writing.  Failure by Licensee to adhere in all material respects to such standards shall be grounds for Licensor to terminate this Agreement.  Licensee shall use the Licensed Trademarks only as authorized in this Agreement and for no other purpose, and shall in no event use the Licensed Trademarks to represent that ISDA is affiliated with or endorses Licensee. Licensor shall have the right to approve or reject any use of the Licensed Trademarks by Licensee, in its reasonable, good faith discretion, provided that such approval shall not be unreasonably withheld, limited or delayed.  Upon termination of this Agreement, Licensee will promptly, but in no event later than ten (10) days following such termination, discontinue all use of the Licensed Trademarks. Nothing in this clause shall override any rights granted to Licensee pursuant to any other written agreements that Licensee has entered into with Licensor or a third party with respect to the use of the Licensed Trademarks.
   2.3 Limitations on Use. On all printed and distributed copies of any of the Licensed Materials, including any derivative work created pursuant to Section 2.1, above, the source and the copyright status of the material must appear prominently on the first page of each copy.  The following notice (or such other notice as Licensor may from time to time specify in writing to Licensee) shall be used unless Licensor gives written notice to Licensee that no notice should be used:
   * Licensed from International Swaps and Derivatives Association, Inc., All Rights Reserved. © 20[most recent version] by the International Swaps and Derivatives Association. “ISDA®” and ISDA SIMM® are federally registered trademarks of the International Swaps and Derivatives Association and are used by permission.
   2.4 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 ISDA SIMM, and any changes, corrections, enhancements, updates, modifications or other derivative works thereto (with the exception of the Licensee Margin Model) or to the Licensed Materials, whether made by Licensor, Licensee, or any third party.  Licensee shall own and shall retain all rights, title and interest to the Licensee Margin Model, and any changes, corrections, enhancements, updates, modifications or other derivative works thereto.
   2.5 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
   2.6 Enhancements/Updates. Licensor shall have no obligation to make any enhancements, updates or other modifications to the ISDA SIMM or Licensed Materials created by or on behalf of Licensor. In the event that Licensor produces any enhancements, updates or modifications to the ISDA SIMM or Licensed Materials, then Licensor hereby agrees to provide such enhancements, updates or modifications to Licensee at no additional cost to Licensee. In the event that Licensor produces and provides any enhancements, updates or modifications to the ISDA SIMM or Licensed Materials to any similarly situated third party, then Licensor hereby agrees to provide the same to Licensee.
   2.7 Implementation Obligation. Licensee hereby represents, warrants and agrees that Licensee shall implement the ISDA SIMM pursuant to documentation (including unit tests provided by Licensor to Licensee, as amended or updated from time to time) provided by Licensor and shall not knowingly deviate nor permit deviation from Licensee’s implementation of the then-current version of the ISDA SIMM as made available by Licensor to Licensee from time to time.

3. License Fee.
   3.1 No Fees. There will be no fee payable by Licensee hereunder.

4. Licensee Obligations and Covenants.
   4.1 Compliance with Law. Licensee shall not use the ISDA SIMM, Licensed Materials or Licensed Trademarks in any manner which is in violation of any applicable law.
   4.2 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 ISDA SIMM IP of which it becomes aware.  Licensor shall indemnify Licensee in accordance with Section 8.3 and shall have the sole right, in its discretion, to determine whether and how to prosecute any such infringement. In connection with any such infringement claim, Licensee agrees to provide Commercially Reasonable cooperation, at Licensor’s expense, in Licensor’s efforts to enforce the ISDA SIMM IP.
   4.3 Representations. Licensee may not make any representation as to ISDA’s recommendation or approval of the Licensee’s implementation of ISDA SIMM in Licensee’s service or the Licensee Margin Model, provided that Licensee may represent that it has obtained a license to use the ISDA SIMM for use in calculating initial margin for uncleared derivatives in connection with (i) Licensee’s own uncleared derivatives transactions, (ii) Licensee’s customers’ and clients’ uncleared derivatives transactions, and (iii) in combination with Licensee’s own proprietary SIMM-based service or product or the Licensee Margin Model when used in connection with (i) or (ii).

5. Licensor Obligations and Covenants.
   5.1 Most favored nations. In the event that ISDA licenses the ISDA SIMM to a similarly situated third party on terms that are substantially more favorable than the terms provided herein, ISDA agrees to make such substantially more favorable terms available to Licensee.

6. Effectiveness of Agreement; Term and Termination.
   6.1 Term. The term of this Agreement shall commence on the Effective Date and shall continue in perpetuity unless earlier terminated in accordance with Section 6.2 (the “Term”).
   6.2 Termination.
   • (a) 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.
   • (b) Licensee shall have the right to terminate this Agreement upon written notice to Licensor.
   • (c) Licensor shall have the right to terminate this Agreement with 180 days’ prior notice, if the Board of Directors of ISDA (“ISDA Board”) votes to terminate all Phase 5 Licenses.
   • (d) In the event of a termination of this Agreement pursuant to either Section 6.2(a), (b), (c) or (d), all rights granted to Licensee hereunder with respect to the ISDA SIMM IP shall revert back to Licensor, and Licensee shall cease all use thereof, including use of ISDA SIMM IP and any ISDA trademarks and any derivative works based on ISDA SIMM. Termination of this Agreement shall be without prejudice to any rights of either party at law or in equity.

7. Confidential Information.
   7.1 “Confidential Information” means all information, written, electronic or oral (which oral information is reasonably understood to be confidential information), relating to the business, operations, plans, services, facilities, processes, software, methodologies, technologies, intellectual property, research and development, trade data, risk factors, sensitive business, risk or transaction data (including, but not limited to, data used to backtest and calibrate ISDA SIMM, and data on shortfalls and remediations), clients and suppliers, partners, principals, employees, consultants and authorized agents of a disclosing party that is supplied by or on behalf of a disclosing party to the other party or otherwise acquired by the other party during the course of dealings between the parties under this Agreement. Confidential Information does not include information which: (1) is in the public domain at the time of disclosure or becomes available thereafter to the public without restriction and not as a result of the act or omission of the receiving party; (2) is rightfully obtained by the receiving party from a third party without restriction as to disclosure; (3) is lawfully in the possession of the receiving party at the time of disclosure and not otherwise subject to restriction on disclosure; or (4) is approved for release by written authorization of the receiving party.  “Confidential Information” shall include the Licensed Materials provided by Licensor to Licensee as specified in Exhibit B.
   7.2 Each party agrees that the Confidential Information of the other party contains trade secrets, know-how and other information that is the exclusive property of the disclosing party. During the period this Agreement is in effect and at all times after its termination or expiration, each party and its employees and agents shall maintain the confidentiality of the Confidential Information of the other party and shall not sell, license, sublicense, publish, display, distribute, disclose or otherwise make available this information to any unaffiliated third party nor use such information except as expressly authorized by this Agreement.  Each party shall take all reasonable measures to protect the secrecy of and avoid disclosure or use of the other party’s Confidential Information in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized under this Agreement to have any such information.  Such measures shall include, but not be limited to, the degree of care that such party utilizes to protect its own confidential information of a similar nature, which shall be no less than reasonable care.  Each party shall disclose the other party’s Confidential Information only to its and its Affiliates’ employees and authorized agents, subcontractors, partners, principals and consultants on a need-to-know basis.  Each party shall be responsible for ensuring that any of its employees, authorized agents, subcontractors, partners, principals and consultants who receive Confidential Information have executed written agreements with the party or are subject to written employment policies, in each case, sufficient to enable it to comply with the foregoing obligations.  Neither party shall disclose any of the other party’s Confidential Information to any third party without such other party’s prior written consent.  Each party agrees to immediately notify the other party of the unauthorized disclosure or use of the other party’s Confidential Information and to use Commercially Reasonable efforts, at the other party’s request, to assist the other party in remedying such unauthorized use or disclosure.  It is further understood and agreed that money damages would not be a sufficient remedy for any breach of the obligations under this Section 7 by either party, its employees or agents.  In the event of any such breach, each party shall be entitled to seek equitable relief, if appropriate, in addition to any other rights or remedies provided by law.
   7.3 Notwithstanding the foregoing, if disclosure of a party’s Confidential Information is required by law, statute, rule or regulation (including any subpoena or other similar form of process) or , in the case of a party who is a public accounting firm, as required to be provided to the American Institute of Certified Public Accountants or its equivalent for other jurisdictions for purposes of compliance by such Party with its professional obligations, the party to which the request for disclosure is made shall (other than in connection with routine supervisory examinations by regulatory authorities with jurisdiction and without breaching any legal or regulatory requirement) provide the other party, if practicable and permitted under the circumstances, with prior prompt written notice thereof and, if practicable under the circumstances, allow the other party to seek a restraining order or other appropriate relief.

8. Warranty Disclaimer and Limitation of Liability.
   8.1 WARRANTY DISCLAIMER. LICENSEE ACKNOWLEDGES AND AGREES THAT ALL INFORMATION SUPPLIED BY LICENSOR OR A CONTRIBUTOR TO THE ISDA SIMM UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE ISDA SIMM AND 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 LICENSED MATERIALS OR ANY CONFIDENTIAL INFORMATION OR OTHER MATERIAL SUPPLIED HEREUNDER.  EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, LICENSOR AND ALL CONTRIBUTORS TO THE ISDA SIMM 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 FURTHER ACKNOWLEDGES AND AGREES THAT LICENSOR AND ANY CONTRIBUTOR TO THE ISDA SIMM MAKE NO WARRANTIES TO ANY CLIENT OR CUSTOMER OF LICENSEE, AND THAT LICENSOR AND ANY CONTRIBUTOR TO THE ISDA SIMM ARE NOT RESPONSIBLE TO ANY CLIENT OR CUSTOMER FOR ANY PRODUCT OR SERVICE PROVIDED BY LICENSEE, REGARDLESS OF WHETHER SUCH PRODUCT OR SERVICES IS BASED ON OR OTHERWISE UTILIZES THE ISDA SIMM.
   8.2 Limitation of Remedies and Damages. WITH THE EXCEPTION OF (A) A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS; AND (B) ANY GROSS NEGLIGENCE OR WILLFUL MISCONDUCT BY A PARTY, NEITHER PARTY WILL HAVE ANY LIABILITY TO THE OTHER, WHETHER IN CONTRACT, TORT, OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.  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.
   8.3      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 ISDA SIMM, ISDA SIMM IP and/or Licensed Materials infringes, misappropriates or unlawfully uses or discloses third-party Intellectual Property Rights, provided that the claim is not attributable to Licensee’s use of the ISDA SIMM, ISDA SIMM IP and/or Licensed Materials outside the scope or manner of use authorized by this Agreement or the Licensed Materials.
   8.4       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, (ii) any hardware, software, system or service directly or indirectly provided by Licensee or directed by Licensee to be installed, combined, integrated or used with, as part of, or in connection with the ISDA SIMM, ISDA SIMM IP and/or Licensed Materials; or (iii) use of the ISDA SIMM, ISDA SIMM IP and/or Licensed Materials by or on behalf of Licensee or any of its affiliates that is outside the scope or manner of use authorized by this Agreement or the Licensed Materials.
   8.5       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 8.3 or Section 8.4. 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 8.3, 8.4 or 8.5 will not relieve the Indemnitor of its obligations under Sections 8.3, 8.4 or 8.5 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.

9. Miscellaneous.
   9.1 Independent Relationship. Nothing in this Agreement is to be construed as creating an agency, partnership, or joint venture relationship between the parties hereto.
   9.2 Entire Agreement. This Agreement represents 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.
   9.3 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.
   9.4 Governing Law; Attorneys Fees. 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.
   9.5 Injunctive Relief. The parties agree that in the event of a breach of the provisions of Section 7, money damages is not an adequate remedy; in such event, the aggrieved party may, in addition to such other equitable and legal relief which may be available, seek the entry of injunctive relief by a court of competent jurisdiction.
   9.6 Survival. The parties’ obligations under Sections 7 and 8 shall survive termination of this Agreement.
   9.7 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.
   9.8 Notices. Any notices under this Agreement shall be in writing and shall be deemed properly given to a party when an email is sent to:
   To Licensor:
   International Swaps and Derivatives Association, Inc.,
   Email: isdalegal@isda.org
   To Licensee:  As specified below.
   9.9 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.

 

Exhibit A

List of Licensed Trademarks and Licensed Patents

The following trademarks are hereby made the subject of this Agreement:

• ISDA
• ISDA SIMM

The following patents and patent applications are hereby made the subject of this Agreement:

• Patent Application No. 15/143,347 “Method and System for Calculating and Providing Initial Margin Under the Standard Initial Margin Model”

 

EXHIBIT B

Description of the Licensed Materials

The following is a description of the Licensed Materials, which are the subject of this Agreement:

• ISDA SIMM Methodology Documentation
• ISDA SIMM Unit Tests
• ISDA SIMM Risk Data Standards
• ISDA SIMM Calibration Methodology and Results Documentation
• ISDA SIMM Backtesting Results Documentation
• ISDA SIMM Benchmark Documentation
• ISDA SIMM Monitoring Documentation

 

EXHIBIT C

Trademark Policies relating to the Licensed Trademarks

(i)         Display of the Licensed Marks.  Licensor is familiar with the Licensee’s advertising practices; in view of that familiarity, Licensee need not obtain Licensor’s prior approval of proposed advertising using the Licensed Trademarks, but shall instead furnish to Licensor representative samples of such advertising from time to time or as reasonably requested by Licensor. Licensor may, in its business judgment at any time and/or from time to time, give notice to Licensee that subsequent such advertising will require prior approval by the Licensor.

(ii)        No Use of Confusingly Similar Trademarks.  Licensee shall not use or adopt, during the Term of the Agreement, nor at any time thereafter, except as expressly permitted by this Agreement, in its business, in its business name, in its trading style, or in any of its services or on any of its products any trademark, service mark, name, style or dress which is so similar to, or so nearly resembles any of the Licensed Trademarks or any other trademark, service mark, trade name, trade dress or label of Licensor so as to be likely to cause or as to be calculated to cause deception or confusion, or which is graphically or phonetically similar to or is derived from or based upon any of the Licensed Trademarks.  If Licensee does at any time adopt or use any trademark, service mark, name, dress or style which Licensor regards as being in direct and material breach of these Trademark Policies, then Licensee shall immediately, upon written request by Licensor, discontinue such adoption or use.

(iii)       Ownership of the Licensed Trademarks.

(a)  Licensee acknowledges the validity of Licensor’s right, title, and interest in and to the use of the Licensed Trademarks including the Licensor’s right to register or to have registered as the owner of any or all of the Licensed Trademarks under the laws of any jurisdiction.

(b)  Apart from its license rights under this Agreement, Licensee shall not be deemed by this Agreement to acquire any right, title or interest in or any right to the use of any of the Licensed Trademarks during or after the Term of this Agreement.

(c)  All use of any of the Licensed Trademarks by Licensee during the Term of this Agreement shall inure to the sole benefit of Licensor in any and all jurisdictions.

(d) If, notwithstanding this Agreement and these Trademark Policies, Licensee at any time develops, adopts or acquires (including development or acquisition as a matter of law), directly or indirectly, any right, title or interest in or to the use of any of the Licensed Trademarks in any jurisdiction, then Licensee shall, at Licensor’s request (and Licensor’s expense) whether during the Term of the Agreement or thereafter, as­sign to Licensor or any designee of Licensor all such right, title and interest together with any and all goodwill incident thereto.

(e)  Licensee agrees during the Term of this Agreement to (i) not contest Licensor’s rights in and to the Licensed Trademarks, (ii) not contest the validity of any registration of the Licensed Trademarks in the name of the Licensor, and (iii) not use or aid in the use of any of the Licensed Trademarks other than as expressly provided in this Agreement.

(f)  Licensee shall not at any time do or cause to be done, or omit to do or be done if so responsible by contract or operation of law, any act or deed in any way impairing or intended to impair any part of such right, title or interest of Licensor or of the validity of any of the Licensed Trademarks in any jurisdiction.

(iv)       Jeopardy to the Licensed Marks.  If in the business judgment of Licensor any material act or failure to act by Licensee (including but not limited to failure to meet the requirements set forth in these Trademark Policies) constitutes a danger to the value or validity or Licensor’s ownership of any of the Licensed Trademarks, then Licensor may in lieu of or in addition to any other remedy available to it, give a written breach notice to the Licensee describing the danger and if Licensee does not take steps to remedy the alleged act or omission within 7 days of receipt of such written notice, Licensor may then suspend in whole or in part the Licensee’s right to use the Licensed Trademarks, effective on Licensee’s receipt of the Licensor’s subsequent written suspension notice.  Such suspension notice shall continue until Licensor reasonably determines that the danger no longer exists and communicates the expiry of the suspension notice in writing to Licensee.

 

BY CLICKING THE “I AGREE” BUTTON BELOW, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THE FOREGOING TERMS AND CONDITIONS (INCLUDING EXHIBITS A, B & C, BELOW,) AND ACCEPT THEM.  THIS AGREEMENT IS NOT BINDING ON LICENSOR, AND YOU MAY NOT USE THE ISDA SIMM PHASE 5 PRODUCT, UNLESS YOUR FIRM IS SUBJECT TO REGULATORY MARGIN REQUIREMENTS BY ONE OR MORE REGULATORY ENTITIES ON OR AFTER AND NOT PRIOR TO SEPTEMBER 1, 2020.  THIS AGREEMENT IS NOT BINDING ON LICENSOR, AND YOU MAY NOT USE THE ISDA SIMM PHASE 5 PRODUCT IF YOU OR YOUR FIRM CREATES OR AUTHORIZES THE CREATION OF AN ISDA SIMM-BASED SERVICE FOR ANY USE BY THIRD PARTIES.