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Treasury Index Agreement Dated March 29, 2004

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Sectors: Financial Services
Governing Law: New York, View New York State Laws
Effective Date: March 29, 2004
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Exhibit 10.9


Confidential Treatment Requested by CBOT Holdings, Inc.


FINAL

TREASURY INDEX AGREEMENT

This Index Agreement, dated as of March 29, 2004 (the " Effective Date" ), is made by and between Dow Jones & Company, Inc. (" Dow Jones" ), having an office at 200 Liberty Street, New York, New York 10281, and the Board of Trade of the City of Chicago, Inc. (the " CBOT" ), having an office at 141 West Jackson Boulevard, Chicago, Illinois 60604.

WHEREAS, CBOT is a leading derivatives exchange and has developed an index utilizing the prices of government debt futures contracts (the " Index Methodology" ), which can be used to create one or more government debt indexes;


WHEREAS, CBOT intends to offer trading in standardized exchange-traded futures and futures options contracts (" Contracts" ) based on an index employing the Index Methodology and prices of certain U.S. Treasury futures contracts offered for trading on the CBOT (the " Treasury Index" ), and other Contracts based on the Index Methodology utilizing the prices of other government debt futures contracts;


WHEREAS, Dow Jones has substantial experience and expertise in the calculation and distribution of indexes;


WHEREAS , CBOT has proposed that Dow Jones calculate and distribute the Treasury Index and perform other related services in exchange for a service fee;

WHEREAS, CBOT intends to grant Dow Jones a sole and exclusive license to sublicense the Treasury Index to certain third parties in return for a license fee;


WHEREAS, the parties have agreed to call the Treasury Index the " Dow Jones CBOT Treasury Index" and shall grant licenses of their respective service marks to each other for that purpose.

CONFIDENTIAL INFORMATION REDACTED AND FILED SEPARATELY WITH THE SECURITIES

AND EXCHANGE COMMISSION. OMITTED PORTIONS INDICATED BY [**].

Confidential Treatment Requested by CBOT Holdings, Inc.

NOW THEREFORE, in consideration of the premises and the mutual covenants and agreements contained herein, it is agreed as follows:


1. Services. CBOT retains Dow Jones to perform the following services (the " Services" ):


(a) Dow Jones shall calculate the Treasury Index in accordance with the Index Methodology (attached as Exhibit 1), which may not be modified without the prior written consent of the CBOT and Dow Jones, as of April 1, 2004.

(b) As of April 1, 2004, Dow Jones or its agent shall, or Dow Jones shall arrange for a third party vendor to, calculate, and provide to the CBOT via an electronic feed, the value of the Index at least once every fifteen (15) seconds on each day that the Components (as defined below) are available for trading on or through the facilities of the CBOT, in accordance with procedures established by the CBOT, which procedures may be modified by the CBOT.


(c) Dow Jones shall promptly correct, or instruct its agent to correct, any mathematical errors made in Dow Jones' computation of the Treasury Index of which Dow Jones becomes aware in accordance with Dow Jones' then current data correction policy.


(d) Dow Jones shall respond in a timely fashion to any reasonable request by the CBOT for information regarding the Treasury Index.


(e) Dow Jones shall use reasonable efforts to safeguard the confidentiality of all impending changes in the Components or Index Methodology until the disclosure of such changes is authorized by the CBOT, and shall require the same of any agent with whom it has contracted for computation of the Treasury Index.


CONFIDENTIAL INFORMATION REDACTED AND FILED SEPARATELY WITH THE SECURITIES

AND EXCHANGE COMMISSION. OMITTED PORTIONS INDICATED BY [**].

Confidential Treatment Requested by CBOT Holdings, Inc.

2. Contracts .

(a) Dow Jones 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 Contracts or in making any representation or statement to investors or prospective investors in connection with the marketing or promotion of the Contracts by the CBOT.

(b) The CBOT shall use the statement contained in Exhibit 2 hereto in each contract market designation application and in the terms and conditions of any Contracts (and upon request shall furnish copies thereof to Dow Jones), and the CBOT expressly agrees to be bound by the terms of the statement contained in Exhibit 2 hereto (which terms are expressly incorporated herein by reference and made a part hereof). Any changes in the statement contained in Exhibit 2 hereto must be approved in advance in writing by an authorized officer of Dow Jones.

3. Treasury Index and Component Data . To enable Dow Jones to perform the Services, CBOT shall provide Dow Jones with real time price information of the futures contracts underlying the Treasury Index (the " Components" ) via a Reuters' data feed (or via Dow Jones' other then-current data supplier) subject to Dow Jones' subscriber agreement with Reuters (or such other data supplier) and the History (as defined below). CBOT shall provide Reuters (or such other data supplier) all fee waivers within its reasonable control for Dow Jones to receive all data reasonably necessary for Dow Jones to perform the Services. Any failure of Dow Jones to fulfill any of its obligations under this Agreement due to CBOT' s failure to timely provide accurate information shall not constitute a breach of this Agreement by Dow Jones. CBOT grants to Dow Jones (a) a sole and exclusive during the Term, worldwide, non-transferable, license to (i) use the real-time information related to the Components provided by CBOT to Dow Jones under this Section 3 solely in connection with calculating the real-time values of the Treasury Index in accordance with Section


CONFIDENTIAL INFORMATION REDACTED AND FILED SEPARATELY WITH THE SECURITIES

AND EXCHANGE COMMISSION. OMITTED PORTIONS INDICATED BY [**].

Confidential Treatment Requested by CBOT Holdings, Inc.

1(b) hereof (except that CBOT may calculate the values of the Treasury Index on an emergency back-up basis if Dow Jones is not able to do so) and (ii) redistribute any end-of-day information with respect to the Components, History and values of the Treasury Index to Third-Party Licensees (as defined in Section 5(a)); (b) a non-exclusive, worldwide, non-transferable, perpetual, royalty-free license to publish and redistribute the list of Components as existed during the Term, end-of-day information related to the Components as existed during the Term, History and the daily high, low and closing values of the Treasury Index that are calculated during the Term (including, without limitation, historical index levels) in Dow Jones' products and services; and (c) a sole, but not exclusive, worldwide non-transferable license to distribute the real-time values of the Treasury Index. The History shall mean daily high, low and closing prices of the Components from November 30, 1999, through March 31, 2004.


4. Proprietary Rights .


(a) Dow Jones disclaims any and all rights in the Treasury Index, the Index Methodology or any of the Intellectual Property related thereto, including U.S. Patent Application No. 10/435,760 titled, " Capital Market Index and Futures Contract" , except for the licenses granted in Sections 3, 5 and 9(b) hereof and as may otherwise be provided under applicable law.

(b) Dow Jones expressly acknowledges and agrees that (1) CBOT has the exclusive property rights in and to Market Data (as defined below); and (2) CBOT' s trademarks, service marks and trade names, including but not limited to Chicago Board of Trade, Board of Trade, CBOT, e-cbot and the CBOT Treasury Index (collectively, the " CBOT Marks' ) are valuable assets of CBOT. Market Data shall mean bids, asks and market prices, opening and closing range prices, high-low prices, settlement prices, estimated and actual contract volume and other information regarding the Components, Contracts based on the Treasury Index and traded on the CBOT, and the values of the Treasury Index.


CONFIDENTIAL INFORMATION REDACTED AND FILED SEPARATELY WITH THE SECURITIES

AND EXCHANGE COMMISSION. OMITTED PORTIONS INDICATED BY [**].

Confidential Treatment Requested by CBOT Holdings, Inc.

(c) Each party shall treat as confidential and shall not disclose or transmit to any third party (1) any documentation or other materials that are marked as " Confidential" by the providing party and (2) the terms of this Agreement (collectively, " Confidential Information" ). Confidential Information as described in clause (1) of the preceding sentence 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 or reference to information from the providing party.


(d) 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 (1) approved in writing by the providing party for disclosure or (2) 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 (c) and (d) 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.


5. License.


(a) The CBOT grants Dow Jones a sole and exclusive, worldwide, non-transferable license for the term of this Agreement (1) to use the Treasury Index and Index Methodology solely in the performance of the Services and (2) to grant sublicenses to third parties (" Third-Party


CONFIDENTIAL INFORMATION REDACTED AND FILED SEPARATELY WITH THE SECURITIES

AND EXCHANGE COMMISSION. OMITTED PORTIONS INDICATED BY [**].

Confidential Treatment Requested by CBOT Holdings, Inc.

Licensees" ) other than derivatives exchanges to use the Treasury Index and Composite Mark (as defined in Section 8) during the term of this Agreement in connection with the issuance, management, marketing, promotion, sale and trading of financial products (other than standardized exchange-traded futures or exchange-traded futures options contracts), including, without limitation, over the counter financial products and exchange-traded funds (the " Products" ).


(b) Dow Jones shall require Third-Party Licensees to enter into Dow Jones standard license agreement (including, without limitation, limitations of liability and indemnification provisions) inuring to the benefit of CBOT. Dow Jones shall further require the Third-Party Licensees to use the statement contained in Exhibit 3 hereto in each application for regulatory approval and in the terms and conditions of any Products (and upon request shall furnish copies thereof to the CBOT), and Dow Jones and CBOT expressly agree to be bound by the terms of the statement contained in Exhibit 3 hereto (which terms are expressly incorporated herein by reference and made a part hereof). Any changes in the statement contained in Exhibit 3 hereto must be approved in advance in writing by an authorized officer of the CBOT.


(c) The CBOT retains the right to distribute the values of the Treasury Index and to grant licenses to persons other than Dow Jones to distribute the values of the Treasury Index.

6. Service Fees.

(a) In consideration of the Services provided by Dow Jones, CBOT shall pay Dow Jones (i) a one-time software set up fee of [**], which shall be payable upon the Effective Date, and (ii) a quarterly fee equal to [**] in such quarter (the " Quarterly Service Fee" ). The Quarterly Service Fee shall be payable within thirty (30) days of the end of each calendar quarter.


(b) Dow Jones shall have the right to audit on a confidential basis the relevant books and records of the CBOT to confirm the accuracy of any one or more calculations of Quarterly Service


CONFIDENTIAL INFORMATION REDACTED AND FILED SEPARATELY WITH THE SECURITIES

AND EXCHANGE COMMISSION. OMITTED PORTIONS INDICATED BY [**].

Confidential Treatment Requested by CBOT Holdings, Inc.

Fees. Dow Jones shall bear its own costs of any such audit unless it is determined that CBOT has underpaid by [**] or more with respect to the payments being audited, in which case Dow Jones' costs of such audit shall be paid CBOT.

7. License Fee .

(a) In consideration of the license granted in Section 5(a), Dow Jones agrees to pay to CBOT a quarterly fee equal to [**] (i.e., not including the Quarterly Service Fee) for use with Products (the " Treasury Index License Fee" ). The Treasury Index License Fee shall be payable within thirty (30) days of the end of each calendar quarter. For the avoidance of doubt, neither party shall pay the other any revenues related to distribution of data related to the Treasury Index.


(b) [**], and notwithstanding any other provision of this Agreement, [**]. For the avoidance of doubt, the foregoing sentence means that [**].

(c) CBOT shall have the right to audit on a confidential basis the relevant books and records of Dow Jones to confirm the accuracy of any one or more calculations of License Fees. CBOT shall bear its own costs of any such audit unless it is determined that Dow Jones has underpaid by 5% or more with respect to the payments being audited, in which case CBOT' s costs of such audit shall be paid by Dow Jones.


8. Name of the Index . The parties agree to refer to, and to require sublicensees to refer to the Treasury Index as the " Dow Jones CBOT Treasury Index" (the " Composite Mark" ).

9. Service Mark Cross License .

(a) Dow Jones grants CBOT a non-exclusive , non-transferable license to use the service mark " Dow Jones" (the " Dow Jones Marks" ) during the term of this Agreement only as a component of the Composite Mark in connection with the marketing and promotion of the Treasury Index , the distribution of the values thereof, and the Contracts.

CONFIDENTIAL INFORMATION REDACTED AND FILED SEPARATELY WITH THE SECURITIES

AND EXCHANGE COMMISSION. OMITTED PORTIONS INDICATED BY [**].

Confidential Treatment Requested by CBOT Holdings, Inc.

(b) CBOT grants Dow Jones a non-exclusive, non-transferable license (1) to use the service mark " CBOT" during the term of this Agreement only as a component of the Composite Mark in connection with the sublicensing, marketing and promotion of the Treasury Index and the distribution of the data and information related thereto, and (2) to grant sublicenses to Third-Party Licensees of the Treasury Index to use the CBOT Marks and the Composite Mark in connection with the issuance, management, marketing, promotion, sale and trading of Products.

10. Trademark Filings, Recognition of Intellectual Property Rights; Protection of Intellectual Property, Quality Control


(a) The parties agree that neither party shall own the Composite Mark, neither party shall register or apply for registration of such Composite Mark without the other party' s prior written consent. After termination or expiration of this Agreement, each party shall discontinue use of the Composite Mark, shall disclaim any ownership rights in the other party' s own trademark forming a part of such mark, and shall assign to the other party any rights in such party' s own trademark forming a part of such mark and the goodwill associated therewith that it might have acquired during the term of this Agreement.


(b) During the term of this Agreement, each party shall apply for such trademark and trade name registrations for its Marks only in such jurisdictions, if any, where such party, in its sole discretion, considers such filings appropriate. The parties shall reasonably cooperate with each other 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) CBOT agrees that the Dow Jones 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 Jones Marks and any renewals and extensions of any such applications, registration and filings, are and shall remain the sole and exclusive property of Dow Jones. CBOT


CONFIDENTIAL INFORMATION REDACTED AND FILED SEPARATELY WITH THE SECURITIES

AND EXCHANGE COMMISSION. OMITTED PORTIONS INDICATED BY [**].

Confidential Treatment Requested by CBOT Holdings, Inc.

agrees to cooperate with Dow Jones in the maintenance of such rights and registration and shall do such acts and execute such instruments as are reasonably necessary or appropriate for such purpose. CBOT acknowledges that each of the Dow Jones Marks is part of the business and goodwill of Dow Jones and agrees that it shall not, during the term of this Agreement or thereafter, contest the fact that CBOT' s rights in the Dow Jones Marks under this Agreement (i) are limited solely to the use of the Dow Jones Marks permitted by Section 9(a), and disclosure about the Contracts under applicable law as provided in Section 4(d), and (ii) shall cease upon termination of this Agreement, except as otherwise expressly provided herein. CBOT recognizes the great value of the reputation and goodwill associated with the Dow Jones Marks and acknowledges that such goodwill associated with the Dow Jones Marks belongs exclusively to Dow Jones, and that Dow Jones is the owner of all right, title and interest in and to the Dow Jones Marks. CBOT further acknowledges that all rights in any translations, derivatives or modifications in the Dow Jones Marks which may be created by or for Dow Jones shall be and shall remain the exclusive property of Dow Jones and said property shall be and shall remain a part of the Intellectual Property subject to the provisions and conditions of this Agreement. CBOT shall never, either directly or indirectly, contest Dow Jones' s exclusive ownership of any of the Dow Jones Marks. CBOT shall use the following notice when referring to any of the Dow Jones Marks in any informational materials to be used in connection with the Products (including, where applicable, advertisements, brochures and promotional and any other similar informational materials, and any documents or materials required to be filed with governmental or regulatory agencies) that in any way use or refer to the Treasury Index or any of the Dow Jones Marks (collectively, the " Dow Informational Materials" ):

" Dow Jones" is a service mark of Dow Jones & Company, Inc. " Dow Jones CBOT Treasury Index" is a service mark of Dow Jones and the Board of Trade of the City of Chicago, Inc. and the Dow Jones CBOT Treasury Index is owned by CBOT and calculated by Dow Jones. CBOT' s futures and futures options contracts based on the Dow Jones CBOT Treasury Index 99 are not sponsored, endorsed, sold or promoted by Dow Jones, and Dow Jones makes no representation regarding the advisability of trading in such product(s).


CONFIDENTIAL INFORMATION REDACTED AND FILED SEPARATELY WITH THE SECURITIES

AND EXCHANGE COMMISSION. OMITTED PORTIONS INDICATED BY [**].

Confidential Treatment Requested by CBOT Holdings, Inc.

or such similar language as may be approved in advance in writing by Dow Jones.

(d) Dow Jones agrees that the CBOT 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 CBOT Marks and any renewals and extensions of any such applications, registration and filings, are and shall remain the sole and exclusive property of CBOT. Dow Jones agrees to cooperate with CBOT in the maintenance of such rights and registration and shall do such acts and execute such instruments as are reasonably necessary or appropriate for such purpose. Dow Jones acknowledges
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