Exhibit 10.9
IOPV CALCULATION
AGREEMENT
- hereinafter referred to as the “Agreement” -
between
Solactive AG
Platz der Einheit 1
60327 Frankfurt, Germany
- hereinafter referred to as “Solactive” -
and
Sprott ESG Gold ETF
320 Post Rd
Suite 230
Darien, CT 06820
- hereinafter referred to as the “Partner” -
dated 25 May 2022 (the “Agreement Date”)
Solactive and the Partner are hereinafter also referred to individually as a “Party”
and collectively as the “Parties”
Solactive is an independent German-based multi-asset class index service provider, operating worldwide and active in the business of calculation, maintenance and dissemination of Indicative Optimized Portfolio Value (“IOPV”).
The Partner wishes to use the services of Solactive regarding the calculation, maintenance, and dissemination of the IOPVs during the term of this Agreement and as agreed between the Parties from time to time through the execution of an Order Schedule.
THEREFORE, the Parties agree as follows:
2.
| DEFINITIONS AND INTERPRETATION |
In this Agreement the words and expressions listed in the list of definitions below shall have the meanings as ascribed to them in the following list of definitions:
“Applicable Law” means, with respect to a Party, the laws, rules and regulations applicable to the business of that Party which are in force during the term of this Agreement.
“Confidential Information” means all information disclosed, by whatever means, by one party (the “Disclosing Party”) to another party (the “Receiving Party”) which concerns: (i) the business or operations of the Disclosing Party; (ii) this Agreement, including without limitation, the details of Remuneration; and/or (iii) any information which is not public information.
“Files” means (a) the portfolio composition files; and (b) other data related to the calculation of the IOPV.
“Fund” means (a) Exchange-Traded Fund; or (b) any other fund that contains a basket of investments.
“Good Industry Practice” means, in respect of any activity, performing that activity using the degree of skill, care, diligence and judgement and in compliance with rules directly relevant to the IOPV calculation services that would be reasonably expected of a reasonably skilled and experienced provider of services similar to the services provided under this Agreement.
“Losses” means: (a) damages awarded by a court of competent jurisdiction and/or settlement amounts and (b) costs (including reasonable legal costs, expenses and fees).
“Market Data Usage Agreement” means an agreement to which Solactive is not a party and which is entered into between a) the Market Data Dissemination Agent and the relevant Vendor, Re-vendor or third party and/or b) the relevant Vendor, Re-vendor or third party and another Vendor, Re-vendor or third party.
“Market Data Dissemination Agent” means the agent with whom Solactive has an agreement for the dissemination of the IOPVs.
“Order Schedule” means an order schedule in the form set out in Appendix of this Agreement specifying the IOPVs.
“Promotional Materials” shall mean any information, which the Partner produces, provides and/or publishes voluntarily, including but not limited to, brochures, website pages and press releases.
“Quarter Date” means each of the following dates: 31 March, 30 June, 30 September and 31 December.
“Related Third-Party” means any third-party that has a legal, commercial and/or operational relationship with the Partner and is authorized by the Partner to deliver the Files to Solactive, such as custodians.
“Re-vendor” means a market data provider that does not receive market data directly from the Market Data Dissemination Agent, but indirectly from a third-party.
“Solactive Trademarks” means all registered and unregistered trademarks owned by Solactive.
“Start Date” means the date as specified in an Order Schedule for the start of a IOPV calculation service.
“Tax(es)” shall mean any (i) value-added, sales, goods, transaction, service or similar taxes, (ii) any stamp duty or similar levies, and (iii) taxes to be withheld at source of any kind (withholding tax) that Solactive may be required to deduct, withhold and remit to tax authorities or other governmental bodies in relation to the services rendered under this Agreement.
“Vendor” means a market data provider that receives market data, directly from the Market Data Dissemination Agent.
Except where stipulated otherwise in this Agreement, any reference in this Agreement to:
| 2.2.1. | any Party, company or other person shall be construed so as to include its successors in title, permitted assignees and permitted transferees; |
| 2.2.2. | a reference to a company or other legal entity shall be construed so as to include any legal entity or entities into which such company may be merged by means of a statutory merger or into which it may be split-up or de-merged, by means of a statutory split-up or demerger; |
| 2.2.3. | a reference to any time is to local time in Frankfurt am Main, Germany on the relevant day; |
| 2.2.4. | a reference to a section or schedule means a section or schedule of or to this Agreement; |
| 2.2.5. | a “regulation” includes any applicable regulation, rule, official directive, request or guideline (whether or not having the force of law) made from time to time by any governmental, intergovernmental or supranational body, agency, department or regulatory, self-regulatory or other authority (including stock exchanges) or organization as amended or re-enacted; and |
| 2.2.6. | a provision of law is a reference to that provision as amended or re-enacted and shall be construed, at any particular time, as including a reference to all subordinate
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| legislation and all regulations, decisions or other binding administrative acts by any governmental authority (including stock exchanges) made from time to time under it. |
Section and schedule headings are for ease of reference only and shall not affect the interpretation of this Agreement.
The terms “shall” or “will” are intended to infer an obligation or duty of the respective Party.
| 3.1. | Subject to the provisions of this Agreement and each applicable Order Schedule, Solactive shall continually calculate the IOPVs set out in the Order Schedule based on Files received from the Partner and will continuously maintain and disseminate the IOPVs. |
| 3.2. | Any Order Schedule issued under this Agreement shall only become effective if signed by the Parties. Each Order Schedule shall come into force on the Start Date stated therein and shall be subject to the terms and conditions of such Order Schedule and this Agreement. In the event of any inconsistency between this Agreement and an Order Schedule, the Order Schedule shall prevail in respect of that Order Schedule only. |
| 3.3. | The scope of service provided by Solactive includes setting up the IOPVs. Setup includes tickers, daily parameters, exchange rates, calculation days, calculation term etc., in relation with the IOPVs. |
| 3.4. | Solactive shall use its best endeavours to ensure that the IOPVs are calculated and maintained correctly. |
| 3.5. | If Solactive notices that it has made an error in the calculation of the IOPV, it shall notify the Partner without undue delay through the usual information channels and, as far as necessary, shall notify the Partner without undue delay of any necessary corrections. |
| 3.6. | During the term of the Agreement the Partner may make suggestions for changing the criteria for compiling and calculating the IOPVs or including additional calculation specifications. Solactive shall examine the feasibility of the proposals and make a decision on the implementation. If the changes have an effect on the calculation, maintenance or dissemination of the IOPVs and if this increases Solactive’s work, Solactive may increase the remuneration. If Solactive proposes to increase the remuneration, it shall notify the Partner in writing with 30 calendar days’ prior notice. The remuneration shall not be increased without the prior written consent of the Partner. |
| 4.1. | Solactive is entitled to include and disseminate the IOPVs through its Market Data Dissemination Agent to Vendors and Re-vendors. Dissemination of the IOPVs comprises the real-time values of the IOPVs. Solactive shall stipulate the technical format for the dissemination of the IOPVs and may modify it as required at its own discretion or at the request of the Market Data Dissemination Agent, without prior coordination with the Partner. |
| 4.2. | Certain Vendors or Re-vendors may claim additional fees for displaying the IOPVs (“Vendor Fee”). The Vendor Fee will only be payable if such fee was agreed between the Parties and set out in the Order Schedule. If Partner does not agree to pay the Vendor Fee, Partner acknowledges that the IOPVs might not be displayed by a Vendor or Re-vendor. |
| 4.3. | If there is a breach of the provisions of the Market Data Usage Agreement or a misuse of the IOPVs by third parties, this shall not give rise to any claims by the Partner against Solactive. However, if Solactive becomes aware of any abuse, it will use its best endeavors to stop such abuse. |
| 4.4. | Solactive shall be entitled to retain any compensation received in connection with the dissemination of the IOPVs and the Partner will not be entitled to such compensation. |
| 4.5. | Solactive is not obliged to ensure that any Vendor or Re-vendor will a) display the IOPVs or b) indicate the Partner as a source when it presents the IOPVs. However, Solactive may require Vendors and Re-vendors to display “Source: Solactive AG” as the general source. |
| 5.1. | Solactive hereby exclusively transfers to the Partner all rights, title, and interest in the IOPVs, in so far as such rights do not belong to third parties. |
| 5.2. | The Partner hereby grants Solactive, during the term of this Agreement, the non-exclusive and non-transferable right, to use the Files free of charge, as well as the right to publish the IOPVs calculated by Solactive and listed in the corresponding Order Schedule, to the extent necessary to fulfil its obligations and exercise its rights under this Agreement only and use the IOPV for its own advertising purposes. |
| 5.3. | The Partner may publish, display and make commercial use of the IOPVs or grant third parties access to such information. Notwithstanding the foregoing, the Partner shall not disseminate the IOPVs to any third party, if the Partner is aware of any such third party being a Vendor or Re-vendor at the time of dissemination. |
| 5.4. | At the request of Solactive, the Partner shall provide evidence that the obligations specified in 5.3 second sentence have been fulfilled. |
6.
| OBLIGATIONS OF THE PARTIES |
