WITNESSETH
WHEREAS, Eastern is the sole owner of the trademarks shown and described in Exhibit A hereto (hereinafter referred to as the "Licensed Marks"); and
WHEREAS, Eastern is the sole of owner of and uses a variety of promotional material including a website, catalogs, sell sheets, price lists, links, pictures, logos, and brochures, without limitation some examples of which are shown in Exhibit B hereto (hereinafter referred to as the "Licensed Materials");
WHEREAS, the Licensee desires to obtain the right to use the Licensed Marks and Licensed Materials in conjunction with the advertisement, promotion and sale of numerous and various fences, fencing products and fencing related hardware, which Licensee acquires from Licensor on terms to be agreed upon by Licensor and Licensee; and
WHEREAS, Eastern is willing to grant such rights to Licensee.
NOW, THEREFORE, for and in consideration of the premises and the mutual promises and conditions herein contained, the parties do hereby agree as follows:
1.Definitions – as used herein, the following terms shall be defined as set forth below:
(a)"Licensed Marks" shall mean the trademarks shown and described in Exhibit A hereto.
(b)"Licensed Materials" shall mean the Licensor’s web site, individual screen shots therefrom, links, pictures, logos, catalogs, brochures, sell sheets and price lists which have been created by Licensor or that are Licensor’s tangible or intangible property, having been created by or for Licensor and which Licensor owns the exclusive rights in and to. "Licensed Materials" includes all such materials now in existence or that come into existence in the future and in any form, media, or medium including paper, film, sound recording, print, and by any means including electronic and digital, but not limited thereto.
(c)"Eastern Products" shall mean the fences, fencing products and fencing related hardware it produces, sells and distributes.
(d) "Territory" shall mean the Continental United States.
2.Grant of Rights –
(a)Eastern grants the Licensee upon the terms, and subject to the conditions and restrictions of this Agreement, the non-exclusive, royalty free right and license to use the Licensed Marks and Licensed Materials within the Territory in connection with the advertisement, promotion, packaging, labeling, sale and distribution, and installation of Eastern Products within the Territory until the termination of this license. It is understood that during the period of the license Eastern may:
(i)use the Licensed Marks and Licensed Materials without restriction, in its sole discretion,
(ii)use the Licensed Marks and Licensed Materials outside the Territory in any way and on any products in its sole discretion, and
(iii)become a party to license agreements with other Licensees for the manufacture and distribution of various products, including "Eastern Products" in the Territory and in any country in the world, and may grant licenses to such other Licensees for the Licensed Marks and Licensed Materials and that such other Licensees may be in direct competition with Licensee.
(b)Licensee will use the Licensed Marks and Licensed Materials only on and in connection with the manufacture, distribution, sale, installation, advertising and promotion of Eastern Products in the Territory and only so long as such Eastern products are sold and distributed to Licensee by Licensor or Licensor’s designees.
(c)The licensing rights granted hereby are limited to Eastern Products, and the Licensee shall not place the Licensed Marks on nor use the Licensed Materials on or in connection with goods or merchandise of any kind or description other than Eastern Products without the express written permission of Eastern.
(d)Eastern shall have the absolute right to control the quality and approve all aspects of the use of Licensed Marks and Licensed Materials including, but not limited to, size, format, media, medium, frequency and placement.
(e)Licensor has the right at all reasonable times to inspect the use of the Licensed Marks and Licensed Materials and the goods upon or in connection with which they are used, as well as the methods of displaying, disseminating, advertising and promoting such Licensed Marks and Licensed Materials, in order that Licensor may satisfy itself that the same meet with the standards, specifications, and instructions submitted or approved by Licensor.
(f)Licensor has the right to receive for approval, all packaging, labels, advertising and other material on which said Licensed Marks appear and Licensee specifically undertakes to amend to the satisfaction of Licensor any such packaging, labels, advertising and other material which are not approved by Licensor.
(g)Licensee may not sub-license the Licensed Marks or Licensed Materials without the prior written consent of Eastern.
(h)Licensee acknowledges Eastern’s exclusive ownership of the Licensed Marks and Licensed Materials. Licensee shall not at any time acquire or claim any right, title or interest in or to the Licensed Marks or Licensed Materials other than the right to use the same under all the terms and conditions herein.
3.Indemnity –
(a)Eastern shall, at its own cost and expense, defend, indemnify and save harmless Licensee, any third party claiming under it, and any direct or indirect customer of Licensee from and against any and all claims, loss, damage, expense, liability, suits, actions, proceedings and judgments and any costs whatsoever including reasonable attorneys’ fees arising, sustained, rendered or incurred, by reason of use by Licensee of the Licensed Marks and Licensed Materials provided that Licensee shall promptly advise Eastern of any such claim, suit, action or proceeding and afford Eastern the opportunity to defend any such claim or action through counsel of its own choosing and at its own expense. If requested by Eastern, Licensee shall join with Eastern at Eastern’s expense, in such defense. Licensee shall execute any papers necessary or desirable in connection with any such suit and shall testify in any such suit, when required to do so by Eastern.
(b)Licensee shall, at its own cost and expense, defend, indemnify and save harmless Eastern from and against any and all claims, loss, damage, expense, liability, suits, actions, proceedings and judgments, and any costs whatsoever, including reasonable attorneys’ fees arising out of or in any way connected with or sustained, rendered or incurred by reason of any claim or action for personal injury, debt or otherwise, property damage, breach of contract or any suit whatsoever, made against Eastern by virtue of Licensee’s sale, installation, distribution, or any other actions by Licensee and other such claims, suits, actions or proceedings that are rightfully or wrongly made, brought or filed. Licensee shall not voluntarily settle any such claim or action in a matter which might in any way adversely affect or be in derogation of any rights of Eastern in and to any Licensed Marks or License Materials, or which may constitute any admission in respect thereof.
4.Insurance – Licensee will at all times during this Agreement maintain liability insurance adequate to defend any action as described herein.
5.Term, Termination and Expiration – this agreement shall commence effective the date first above written, and unless terminated earlier pursuant to the terms of this agreement shall run for 5 years.
(a)If a Licensee or Licensor fails to perform any of the terms, conditions, agreements or covenants in this Agreement, on its part to be performed and such default is not curable, or such default is curable but continues uncured for a period of thirty (30) days after written notice thereof has been given to the defaulting party by the other party, or all reasonable steps necessary to cure such default have not been taken by the defaulting party, within the said thirty (30) days, the other party at its sole discretion may terminate this Agreement by giving written notice thereof, such termination to be effective as of the date specified in the written notice.
(b)This agreement may be terminated on thirty (30) days written notice by either party. The foregoing notwithstanding, this agreement shall terminate forthwith in the event of bankruptcy or judicial or administrative declaration of insolvency of Licensee, or in the event of government expropriation of any of the assets of Licensee which relate to the Licensor’s rights, in and to the Licensed Marks and Licensed Materials.
(c)Upon termination of this agreement for any reason, Licensee agrees to discontinue use of the Licensed Marks and Licensed Materials and will forthwith deliver up to Licensor all Licensed Marks and Licensed Materials in any form, including copies thereof in any media or medium whatsoever.
6.General Provisions -
(a)Licensee agrees not to attempt to register or use any trademark which may be, in the opinion of Licensor, confusingly similar to the Licensed Marks, and Licensee also agrees not to use any materials, advertisements, or promotions which in the opinion of Licensor are confusingly or substantially similar with the Licensed Materials. It is understood that this covenant shall survive termination of this Agreement.
(b)Licensee agrees that it will not use any of the said Licensed Marks as part of Licensee’s name or the name of any entity associated with Licensee’s activities.
(c)Licensee agrees that it will promptly call to the attention of Licensor the use of marks the same as or that are confusingly similar with the Licensed Marks or the use of materials, advertisements or promotions that are the same as or confusingly or substantially similar with the Licensed Materials by any third party. However, Licensor shall have the sole right to decide whether or not proceedings shall be brought against such third parties. Licensee agrees to cooperate fully with Licensor to whatever extent it is necessary to prosecute such action, all expenses being borne by Licensor and all damages which may be recovered being solely for the account of Licensor.
(d)Any waiver by Licensor or Licensee of a breach of any term or condition of this Agreement shall not be considered as a waiver of any subsequent breach of the same of any other term or condition hereof.
(e)If any provision of this Agreement is declared void or unenforceable by any judicial or administrative authority, this will not in and of itself nullify the remaining provisions of this agreement which shall remain in full force and effect.
(f)This Agreement shall be binding upon and inure to the benefit of the parties hereto and to the successors and assigns of Licensor and Licensee. It shall not be assignable by Licensee without the express written consent of Licensor. It may only be amended or modified in writing, signed by both Licensor and Licensee.
(g)This agreement shall be governed and construed according to the laws of the State of New York without regard to its conflicts of laws provisions and Licensee hereby submits to the jurisdiction of the courts of the State of New York.
4. Eastern Wholesale Fence Co., Inc. may provide web hosting for the above-named Licensee website(s).
5. Eastern Wholesale Fence Co., Inc. reserves the right to refuse service and /or access to its servers to anyone. Eastern Wholesale Fence Co., Inc. does not allow any of the following content to be stored on its servers:
Illegal Material - Including copyrighted works, commercial audio, video, or music files, and any material in violation of any Federal, State or Local regulation.
Miscellaneous content - Including pirated software, ROMS, emulators, phreaking, hacking, password cracking, IP spoofing, etc. and encrypting of any of the above. Also includes any sites providing "links to" or "how to" information about such material.
6. Eastern Wholesale Fence Co., Inc. reserves the right to cancel service at any time with written notice to the Licensee. The Licensee may cancel their account at any time with 60 days written notice to Eastern Wholesale Fence Co., Inc.
7. Web hosting companies occasionally implement changes on servers which may require minor adjustments to your website code by Eastern Wholesale Fence Co., Inc.. Rare "down-time" or other problems requiring the assistance of Eastern Wholesale Fence Co., Inc. may also occur.
8. Eastern Wholesale Fence Co., Inc. shall not be responsible for any loss of business or other damages resulting from occasional "down-time" or other technical problems related to the host server, whether caused by the web hosting company or by broader Internet problems beyond our control.
9. Your hosting account has a bandwidth usage limit. We realize that from time to time, a Client may have unanticipated circumstances which cause their web sites to exceed this limit. In rare cases, such overages may result in temporary suspension of service. Should this occur, Eastern Wholesale Fence Co., Inc. will first make every effort to contact you to prevent any unexpected charges or service interruptions.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by the duly authorized officers as of the day and year first above written.
By agreeing to the Licensing agreement I concur this transaction is within my authority to complete on-behalf of our company.