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MPI STYLUS SUITE END USER SOFTWARE LICENSE AGREEMENT

MPI STYLUS SUITE END USER

SOFTWARE LICENSE AGREEMENT

IMPORTANT - READ CAREFULLY BEFORE INSTALLING THIS SOFTWARE

 


BY CLICKING THE ACCEPTANCE BUTTON OR INSTALLING OR USING THE SOFTWARE YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, LICENSOR IS NOT WILLING TO LICENSE THE SOFTWARE TO YOU, THE BUTTON INDICATING NON-ACCEPTANCE MUST BE SELECTED, AND YOU MUST NOT INSTALL OR USE THE SOFTWARE.

BY CLICKING THE ACCEPTANCE BUTTON AND/OR DOWNLOADING, COPYING, INSTALLING OR OTHERWISE USING THIS SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS LICENSE, THAT YOU UNDERSTAND IT, AND THAT YOU AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.

LICENSE TERMS AND CONDITIONS

  1. Grants. Licensor grants to Licensee a nonexclusive multi-user site license to use the product known by the trade name "MPI Stylus™ RIA", a returns-based investment style analysis tool, together with all accompanying Index Data (set forth in the Appendix A), all other data and content from Data Vendors (set forth in Appendix A-1) and documentation (collectively, the "Software") at Site(s) set forth in Appendix B. For the purpose of this Agreement, Sites are defined in terms of physical locations within the named licensee group or department, as well as different business units or groups outside of the named licensee group, and are at the reasonable discretion of the Licensor. Where a named User (set forth in Appendix B) has access to more than one computer at a Site or at another location, User may install the Software onto each computer. However, when the Software is installed on a computer network at a Site, only named Users have the right to access and use the Software. Further, the Software may not be accessed or controlled by another application without written permission of the Licensor. Additionally, any user(s) of such an application must also be named users of Stylus RIA and added to Appendix B of this agreement. The license granted herein shall not be assigned or transferred except to an affiliate or subsidiary of Licensee with written notice to Licensor, nor shall it be sublicensed to any other party. Without limiting any of the foregoing, Licensee shall not, directly or indirectly, (i) license, sell, lease or otherwise transfer the Software, (ii) except as expressly allowed in Section 2 hereof, alter or permit a third party to alter any part of the Software; (iii) use or permit the use of the Software in the operation of a service bureau; or (iv) disassemble, decompile, reverse engineer or otherwise attempt to derive trade secrets from the Software.

  2. Redistribution. Licensee may employ the Software to generate reports, charts, graphs, documents and other materials ("Output") for Licensee’s internal use. In addition, Licensor grants permission to Licensee to distribute Output pertaining to the investment products of Licensee or in connection with the investment portfolios or investment programs of Licensee’s Clients (as defined below) or prospective Clients to such Clients or prospective Clients as long as the credit "Created with MPI Stylus™" is displayed prominently in the Output. A Client is a person or organization for which a User manages, advises, or services financial accounts or to which a User provides other related services. Broadcast distribution of Output in electronic form to Clients, or in print or electronic form to non-Clients, requires a separate distribution license or explicit written permission from Licensor. Use of output in published research reports, presentations, speeches, communications with investment managers, etc., is permitted if the above described credit is included with the material. Licensee will use all reasonable efforts to ensure that those who receive Output from Licensee do not in turn redistribute such Output in any way. Licensor reserves the right to revise this redistribution policy upon giving written notice to Licensee. Should the revised distribution policy adversely affect Licensee’s use of the Software, Licensee may terminate this Agreement and the license hereunder immediately and receive a pro-rata refund of any prepaid fees.

  3. Term. The term of this Agreement shall commence on the Effective Date and shall continue for a period of one (1) year. This Agreement shall be deemed to be automatically renewed for an additional one (1) year term provided Licensee has submitted a purchase order to Licensor for such renewal or paid Licensor the annual license fee and has complied with all other provisions of this Agreement. The term of this Agreement may be renewed by Licensor for additional successive one (1) year periods by its providing an invoice to Licensee, at least thirty (30) days prior to the expiration of the then-current term, for all annual fees payable for the subsequent renewal term. Licensee’s payment of such invoice shall constitute its acceptance of the renewal term. If Licensee does not pay such invoice or otherwise accept such renewal, in writing, prior to the expiration of the then current term, then this Agreement shall expire at the end of that term. Within ten (10) days of the expiration or termination of this Agreement, Licensee shall return the Software to Licensor or, upon Licensor’s request, certify the destruction of all copies of the Software. Should Licensor breach the terms and conditions of this Agreement, Licensee may terminate this Agreement and the license hereunder with ten (10) days prior notice to Licensor and receive a pro-rata refund of any prepaid fees upon the return or destruction of the Software as described above. Similarly, should the Licensee breach the terms and conditions of this Agreement, Licensor may terminate this Agreement and the license hereunder with ten (10) days prior notice to Licensee and issue the Licensee a pro-rata refund of any prepaid fees upon the return or destruction of the Software as described above.

  4. Fee. Licensee agrees to pay Licensor an annual fee for the license granted in Section 1 above as described in Appendix C of this Agreement. Such fee is due and payable on the Effective Date and on each anniversary of the Effective Date during the term of this Agreement. Licensor will provide Licensee with an invoice for each such annual fee at least thirty (30) days prior to the date such fee is due. Licensee may include additional named Users and/or Sites under this Agreement by submitting to Licensor in writing a revision of Appendix B and by paying an additional fee (ratable for the balance of the annual period beginning on the Effective Date or an anniversary of the Effective Date) as described in Appendix C. Licensor may change the annual license fee at its sole discretion on any anniversary date of this Agreement by giving at least sixty (60) days written notice of said intention to change the fee to Licensee. Licensee shall pay all applicable federal, state and/or local sales, service, use or other taxes designated or imposed due to any action or transaction under this Agreement, other than taxes imposed on Markov Processes International’s net income.

  5. Maintenance, Training and Support. Licensor will provide Licensee with Software maintenance and support at no additional charge to Licensee. Maintenance includes updates and enhancements to the Software available during the term of this Agreement, correction of all verifiable errors in the Software, and monthly updates to the Index Data described in Appendix A. Further, Licensor will provide, at a mutually agreed upon time and date, up to four (4) hours of User training and/or assistance in the implementation of the Software at the principal Site described in Appendix B at no charge to Licensee during the initial term of this Agreement. Licensee agrees to designate a "key user" in Appendix B of this Agreement who shall be the primary but not the exclusive recipient of Support by Licensor and shall function as Licensee’s "in-house" expert in the use of Software and be available to offer guidance and assistance to other Named Users. Support shall be delivered by Licensor to Licensee via telephone and e-mail communications during normal business hours in the Eastern Time zone of the United States.

  6. Title.

    a. Ownership. Title to the original and any copies of the Software is expressly retained by Licensor. Licensee has no ownership or other proprietary rights in and to the Software. Rather, Licensee has a license to use the Software, pursuant to the terms of this Agreement, as long as this Agreement remains in full force and effect. Ownership of the Software, documentation and all intellectual property rights therein shall remain at all times with Licensor and/or any third parties from which Licensor licenses any such rights. Any other use of the Software by any person, business, corporation, government organization or any other entity is strictly forbidden and is a violation of this Agreement.

    b. Actions not Permitted. The license and right to use the Software does not entitle the Licensee to publish, display, disclose, rent, lease, modify, loan, distribute or create derivative works based on the Software, or any part thereof. Licensee may not reverse engineer, decompile, translate, adapt, or disassemble the Software, nor shall Licensee attempt to create the source code from the object code for the Software. The Software is supplied to Licensee by Licensor solely in object code.

    c. Copyrights. The Software and documentation contain certain property that is protected by United States Copyright Law and trade secret law, and by international treaty provisions. Licensor is the owner of or has obtained the rights to use all copyrighted materials contained in the Software. All rights granted to Licensee herein are reserved to Licensor.

    d. Trademarks. Licensee acknowledges Licensor’s proprietary interest in the trademark "MPI Stylus™" and all other trademarks and logos used in connection with the Software. Licensee acknowledges that such trademarks and any related goodwill are the property of Licensor and Licensee agrees not to (and not to cause any third party to) infringe upon or harm the rights of Licensor in its trademarks or to use similar marks, works or symbols, except as expressly permitted under the terms of this Agreement. Licensee may use the trademarks only in a manner that is consistent with Licensor’s ownership thereof. Licensee will not seek or obtain trademark registration for any of Licensor’s trademarks, or product names, or any confusingly similar marks or names, without Licensor’s prior written consent, which may be withheld for any reason.

    e. Protection of Intellectual Property Rights. Licensee shall provide Licensor with written notice of any potential infringement by a third party of the Software or the documentation of which Licensee has knowledge. Licensee shall not commence any action with respect to any infringement or apparent infringement of the Software or documentation, without the prior consent of Licensor. Licensor, at its own cost and expense, shall have the right to bring any infringement litigation involving or affecting the Software or documentation. Licensee may be joined as a party to any such action at Licensor's expense. If Licensor includes Licensee as a party in legal proceedings pursuant to the provisions of this subsection paragraph (e), Licensor shall indemnify and hold Licensee harmless from any claims, suits, judgments, damages and reasonable expenses, costs or attorneys' fees arising out of or related to any such legal proceedings. Proceeds recoverable from any such suit shall belong to Licensor.


  7. Warranties and Disclaimer, Limitation of Liability. Licensor warrants that it has the right to enter into this Agreement and owns such rights to the Software as are necessary to grant this license. Licensor also warrants that the Software is believed to be reliable and that it will use its best efforts to correct any defects or errors in the Software other than those defects or errors caused by Licensee’s unauthorized or misuse of the Software. In the event that Licensor is unable to correct any such defect or error, as provided hereunder, Licensee’s exclusive remedy from Licensor, and Licensor’s sole obligation under this warranty shall be limited to a refund of a pro rata portion of the annual license fee paid by Licensee, which shall be determined by multiplying the annual license fee by a fraction, (i) the numerator of which shall be the total number of days remaining in the current term of this Agreement from the date that Licensee first complained of the uncorrected defect or error and (ii) the denominator of which shall be 365. Any use by Licensee of the Software is at Licensee’s own risk. This limited warranty is the only warranty provided by Licensor regarding the Software.

    EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT THE SOFTWARE AND DOCUMENTATION ARE PROVIDED ON AN "AS IS" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT LICENSOR DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET ANY REQUIREMENTS OR NEEDS LICENSEE MAY HAVE, OR THAT THE SOFTWARE WILL OPERATE ERROR FREE, OR IN AN UNINTERRUPTED FASHION, OR THAT ANY DEFECTS OR ERRORS IN THE SOFTWARE WILL BE CORRECTED, OR THAT THE SOFTWARE IS COMPATIBLE WITH ANY PARTICULAR PLATFORM. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, LICENSOR IS NOT OBLIGATED TO PROVIDE ANY UPDATES TO THE SOFTWARE. NEITHER LICENSOR NOR ANY OF ITS REPRESENTATIVES MAKES OR PASSES ON ANY WARRANTY OR REPRESENTATION ON BEHALF OF LICENSOR’S THIRD PARTY DATA LICENSORS OR SUPPLIERS (THE "DATA VENDORS"), INCLUDING BUT NOT LIMITED TO ANY EXPRESS WARRANTIES OR ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.

    IN NO EVENT WILL LICENSOR OR ANY DATA VENDOR BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, OR FOR ANY CLAIM BY ANY OTHER PARTY, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT LICENSOR’S LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS LICENSE OR OTHERWISE WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION OR OTHERWISE SHALL NOT EXCEED THE AMOUNT OF THE FEES PAID BY LICENSEE TO LICENSOR DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF SUCH LIABILITY

  8. Confidentiality. For the duration of this Agreement and thereafter, neither party will reveal, divulge or make known to any person, firm, corporation or other business organization, and shall not directly or indirectly use for its own benefit, or for the benefit of anyone else, any secret or confidential information of the other party, including, without limitation: any trade secrets; business plans; accounting and financial information; customer information and lists; internal business procedures; patents, trademarks, copyrights and other intellectual property rights; and marketing information. Confidential information shall not include any information which (a) is or becomes generally available or known to the public, other than as a result of any disclosure by the receiving party or its directors, officers, employees, agents, representatives, partners, and affiliates (each, a "Representative") in violation hereof; (b) is or becomes available to the receiving party on a non-confidential basis from any source other than the disclosing party or a Representative thereof, other than any such source that the receiving party or any of its Representatives knows or should know is prohibited by a legal, contractual, or fiduciary obligation to the disclosing party from disclosing such information; or (c) is independently developed by without any of the confidential information of a disclosing party.

    Licensee shall not provide or disclose the Software in any manner to any other vendor of software products.

    Without intending to limit the remedies available to Licensor, Licensee agrees that damages at law will be an insufficient remedy to Licensor in the event that Licensee violates the terms of this Section 8, and that Licensor may apply for and obtain immediate injunctive relief in any court of competent jurisdiction to restrain the breach or threatened breach of, or otherwise to specifically enforce, any of the agreements and covenants contained herein.

    The obligations of both parties hereunder will survive the termination of this Agreement.

  9. Indemnification. Licensee represents and warrants that (a) it has the requisite authority to enter into this License; and (b) it will not use the Software or documentation in any manner other than as authorized pursuant to the terms and conditions of this Agreement. Licensee shall indemnify and hold harmless Licensor, its directors, officers, employees and agents from and against any and all claims, demands, damages, losses, liabilities, suits and expenses (including reasonable attorneys' fees) arising out of or by reason of (i) any breach or alleged breach by Licensee of any of its representations, warranties or agreements made by it in this Agreement or (ii) any errors or omissions made by Licensee and/or any of its employees in utilizing the Software and/or providing services to Licensee’s clients and other third parties.

  10. Miscellaneous. This Agreement shall be governed by the laws of the State of New Jersey. This Agreement may not be altered or modified except by written instrument duly executed by both parties. Each party agrees that this Agreement is the complete and exclusive statement between the parties, which supersedes and merges all prior proposals, understandings, and other agreements, oral or written, between the parties relating to this Agreement. All notices regarding this Agreement shall be addressed as shown in Appendix D. Each Data Vendor is understood to have a substantial interest in the performance by Licensee of the terms of this Agreement, including the terms providing for the use of the Software and the restrictions on use of the Software. Accordingly, each Data Vendor is deemed a third party beneficiary of this Agreement. Except as provided in the previous sentence there are no other third party beneficiaries hereunder.

APPENDIX A

LIST OF INDEX RETURN DATA

(Monthly frequency)

  1. Frank Russell Company US Equity Indexes

  2. Frank Russell Global Style Indexes

  3. Standard & Poor’s US Equity Indexes

  4. S&P/Citi Global Equity Indexes

  5. MSCI US Equity Style Indexes

  6. MSCI Global Style Indexes

  7. Dow Jones US Equity Style Indexes

  8. Dow Jones Global Indexes

  9. Topix Indexes

  10. Barclays Capital Fixed Income Indexes

  11. Merrill Lynch Fixed-income Indexes

  12. Hedge Fund Indexes

Note: Indices may be sub-sets of named series.

APPENDIX A-1

LIST OF DATA INCLUDED DATA VENDORS

  1. Morningstar US Mutual Fund Database