Non-Exclusive Royalty-Bearing License
Terms and Conditions
These Terms and Conditions govern the Non-Exclusive Royalty-Bearing License granted to you by Destination Cleveland.
1. Records and Audit. Licensee shall keep complete and accurate books and records of all sales of Licensed Products and make such records available for audit by Destination Cleveland. If any audit shows that any payment is deficient, (a) Licensee shall immediately pay Destination Cleveland the deficient amount, and (b) if such payment is found deficient by more than 10%, Licensee shall bear the cost of the audit.
2. Ownership and Goodwill. Destination Cleveland is the owner of the Licensed Mark consistent with its mission and all goodwill related thereto; all use of the Licensed Mark by Licensee and any goodwill accruing from such use will inure solely to the benefit of Destination Cleveland. If Licensee acquires any rights in the Licensed Mark, by operation of Law or otherwise, Licensee hereby irrevocably assigns such rights to Destination Cleveland. Licensee agrees not to dispute or challenge, or assist any Person in disputing or challenging, DC's rights in, or the validity of, the Licensed Mark. “Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.
3. Quality Control, Brand Guidelines, and Compliance with Law. Licensee shall use the Licensed Mark as directed in the Brand Guidelines. “Brand Guidelines” means Destination Cleveland's guidelines for the form and manner in which the Licensed Mark may be used under this Agreement, including any amendments or updates thereto as may be provided in writing by Destination Cleveland to Licensee from time to time. and at Destination Cleveland’s request provide samples of the Licensed Products and permit Destination Cleveland to inspect Licensee’s facilities to ensure compliance with quality standards and Brand Guidelines.
4. Marketing, Advertising, and Promotion. Licensee shall use its best efforts to promote the Licensed Products and ensure that its advertising, marketing, and promotion of the Licensed Products in no way reduces or diminishes the reputation, image, and prestige of the Licensed Mark. Licensee shall send to Destination Cleveland for its prior written approval all proposed advertisements and marketing and promotional material. In the event that Destination Cleveland disapproves of such material, it shall give written notice of such disapproval to Licensee within five (5) days of receipt. In the absence of a written notice of disapproval, the materials will be deemed to have been approved by Destination Cleveland.
5. Disclaimer of Representations and Warranties. Nothing in this Agreement constitutes any representation or warranty by Destination Cleveland that the Licensed Mark is valid or that the exercise by Licensee of the License will not infringe the rights of any person. TO THE FULLEST EXTENT PERMITTED BY LAW, Destination Cleveland WILL NOT BE LIABLE TO LICENSEE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE, OR ENHANCED DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT LICENSEE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6. Indemnification and Insurance. Licensee shall indemnify, defend, and hold harmless Destination Cleveland and its Affiliates, officers, directors, employees, agents, successors, and assigns (each, an "Indemnified Party"), from and against all Losses. “Losses” means losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers. arising out of or in connection with any third party claim, suit, action, or proceeding relating to any actual or alleged: (a) breach by Licensee of any representation, warranty, covenant, or obligation under this Agreement; or (b) Licensee's exercise of its rights granted under this Agreement, including any product liability claim or infringement, dilution, or other violation of any intellectual property rights relating to the manufacture, promotion, advertising, distribution or sale of the Licensed Products.
7. Insurance. At all times during the Term of this Agreement and for a period of three (3) years thereafter, Licensee shall procure and maintain, at its sole cost and expense, commercial general liability insurance in amounts reasonably satisfactory to Destination Cleveland, which policy will include contractual liability coverage insuring the activities of Licensee under this Agreement.
8. Term and Termination. This Agreement shall remain in effect for the Term unless earlier terminated as provided herein. Destination Cleveland may terminate this Agreement for any reason on giving Licensee not less than sixty (60) days’ notice. Destination Cleveland may terminate this Agreement immediately on written notice if Licensee fails to pay any amount due under this Agreement, breaches this Agreement, becomes insolvent or subject to any proceeding in bankruptcy, or fails to abide by the Brand Guidelines. On the expiration or termination of this Agreement for any reason all outstanding amounts payable by Licensee to Destination Cleveland immediately become due and payable and all rights and licenses granted pursuant to this Agreement cease. The Agreement shall automatically terminate if Licensor ceases to sell any Licensed Products for a period of six (6) months.
9. No Third-Party Beneficiaries. Except with respect to Indemnified Parties, this Agreement is for the sole benefit of the parties hereto and nothing is intended to or will confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement.
10. Independent Contractors. This Agreement is not a franchise, does not create a partnership, joint venture, or other business entity, and does not constitute an assignment of any rights of Destination Cleveland to Licensee. Licensee is an independent contractor, not an agent or employee, of Destination Cleveland. Destination Cleveland is not liable for any acts or omissions by Licensee.
11. Specific Performance. Licensee expressly agrees that its material breach of any of the material terms and conditions of this Agreement may result in irreparable harm to Destination Cleveland, and Destination Cleveland shall, in addition to any other remedy provided herein or by law or in equity, be entitled to seek appropriate equitable relief, including injunctive relief and specific performance. Licensee further agrees to pay any and all legal fees, including without limitation, all attorneys’ fees, court costs, and any other related fees and/or costs incurred by Destination Cleveland in enforcing this Agreement.
12. Notice. Any notice required shall be deemed delivered when personally transmitted or transmitted via certified mail or overnight courier, postage prepaid and return receipt requested, to the address of Destination Cleveland or Licensee set forth herein.
13. Assignment. This Agreement shall inure to the benefit of and shall be binding upon each party’s successors and assigns. Neither party shall assign any right or obligation hereunder in whole or in part, without the prior written consent of the other party.
14. Governing Law. This Agreement shall be governed by and construed under the laws of the State of Ohio without regard to conflicts of laws principles.
15. Venue. Each party irrevocably consents to the exclusive jurisdiction of the Cuyahoga County Court of Common Pleas, or to the extent available, the U.S. District Court for the Northern District of Ohio, to resolve any dispute arising out of or relating to this note and irrevocably waives, to the fullest extent permitted by applicable law, any defense of inconvenient forum and any objection to such venue.,
16. Severability. If any provision in this Agreement is declared illegal or unenforceable, the provision will become void, leaving the remainder of this Agreement in full force and effect.
17. Amendment; Waiver. This Agreement may be amended only by mutual written agreement of the parties. No waiver by either party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the waiving party.
18. Entire Agreement. This Agreement, together with the NDA and all SOWs, represent the entire agreement between the parties and the provisions of this Agreement shall supersede all prior oral and written commitments, contracts and understandings with respect to its subject matter.
19. Counterparts. This Agreement may be executed in counterparts, including electronically, which taken together shall constitute one Agreement.