TRADEMARK LICENSE AGREEMENT

Transcription

1 TRADEMARK LICENSE AGREEMENT THIS AGREEMENT is effective as of (hereinafter the Effective Date ) by and between the Computer Measurement Group, Inc. ( CMG ), having its principal place of business at P.O. Box 1124, 151 Fries Mill Road, Suite 104, Turnersville, NJ, 08012, United States, and ( Region ), having its principal place of business located at. WHEREAS, CMG has agreed to grant Region a license to use the Licensed Marks as defined in Schedule A and pursuant to the terms of this Agreement. NOW, THEREFORE, in consideration of the foregoing and of the mutual promises hereinafter set forth, the parties agree as follows: 1. GRANT OF LICENSE Subject to the provisions of this Agreement, CMG grants to Region, and Region accepts, a royalty-free, revocable, nonexclusive right and license to use the Licensed Marks within the [United States][INSERT NAME OF COUNTRY] solely in connection with Region s efforts to advance the field of computer measurement, computer management, and computer performance evaluation, and the underlying computer science and status as a Region of CMG. Region shall have no right to sublicense the Licensed Marks. Region shall have the right to use CMG s name, including the designation CMG, as a component of its own name to indicate its affiliation with CMG. If in the sole judgment of CMG the Region name does not adequately convey the existence of the Region affiliation, then CMG may require that in all public use the Region name be followed by the designation A Region of CMG. Region shall have the right to use CMG s logo for the signification of its identity, and shall not for this purpose use any other logo, including any modified version of CMG s logo, without the express prior written permission of CMG. All uses of the Marks proposed by Region shall be subject to the prior review and approval of CMG, which approval shall not be unreasonably withheld, and if CMG has not responded within seven days to any proposed use, then such use shall be automatically deemed approved. Once a use is approved by CMG, all substantially similar uses shall be deemed approved. 2. OWNERSHIP OF MARKS Region acknowledges that CMG owns all right, title and interest in and to the Licensed Marks, agrees that it will do nothing inconsistent with CMG s ownership and that all use of the Licensed Marks by Region shall inure to the benefit of and be on behalf of CMG, and agrees to assist CMG at Region s request in recording this Agreement with the appropriate government authorities. Region agrees that nothing in this License shall give Region any right, title or interest in the Licensed Marks other than the right to use the Licensed Marks in accordance with

2 this License. Region will not attack CMG s rights or ownership in or to the Licensed Marks or attack the validity of this License. 3. QUALITY CONTROL 3.1 Region agrees that the nature and quality of all services rendered by Region in connection with the Licensed Marks and all related advertising, promotional and other related uses of the Licensed Marks shall conform to standards set by, and be under the control of, CMG. CMG will not object to Region s use of the Licensed Marks in association with services provided by Region which equal or exceed such standard. Region may not reduce such quality of services without the prior written consent of CMG. 3.2 Region agrees to cooperate with CMG in facilitating CMG s control of such nature and quality, to permit reasonable inspection of Region s operation, and to supply CMG with specimens of all uses of the Licensed Marks upon request. Region shall comply with all applicable local, national, and international laws and regulations and obtain all appropriate governmental approvals pertaining to the sale, distribution and advertising of services covered by this License. 4. INFRINGEMENT 4.1 Region shall notify CMG promptly of any actual or threatened infringements, imitations, or unauthorized use of the Licensed Marks by third parties of which Region becomes aware. CMG shall have the sole right, at its sole discretion and expense, to bring any action on account of any such infringements, imitations or unauthorized use, and Region shall cooperate with CMG, as CMG may reasonably request, in connection with any such action brought by CMG. Unless otherwise agreed by the parties in writing, CMG shall retain any and all damages, settlement and/or compensation paid in connection with any such action brought by CMG. 4.2 If CMG declines to bring an action on account of any such infringements, imitations or unauthorized use, CMG may, at CMG s sole discretion, grant to Region the right to bring such action on behalf of the CMG. 5. INDEMNIFICATION 5.1 Region hereby agrees to indemnify and hold harmless CMG, and its directors, officers, employees and agents with respect to any damages, losses, liabilities, penalties, interest, judgments, deficiencies, assessments, costs and expenses, including reasonable attorneys fees and disbursements, as incurred, arising from or relating to (a) the use by Region of the Licensed Marks; or (b) product liability or other claims arising out of the sale of, or misrepresentation relating to, any products or services of Region. 5.2 All indemnification obligations under this Section 5 are subject to the following requirements: CMG shall (a) promptly notify Region of any claim, suit or proceeding for which defense or indemnity is claimed; (b) cooperate reasonably with Region at Region s expense; and (c) allow Region to control the defense (with counsel approved by CMG) or settlement of any claim, suit or proceeding; provided, however, that Region may not consent to entry of any 2

3 judgment or enter into any settlement without the prior written consent of CMG. CMG shall have the right to participate in any defense of a claim against it at its own expense. 6. TERM The License shall continue in force and effect in perpetuity unless terminated as provided herein. 7. TERMINATION 7.1 CMG shall have the right to terminate the License effective immediately (i) upon Region s receipt of written notice from CMG in the event of any affirmative act of insolvency by Region, or upon the appointment of any receiver or trustee to take possession of the properties of the Region; (ii) upon the winding-up of the affairs of the Region or the voluntary or involuntary dissolution of the Region; (iii) upon Region s material breach of the standards set by CMG or other term of this Agreement and Region s failure to cure such breach within thirty (30) days after its receipt of a notice from CMG specifying such breach; (iv) upon written notice if Region ceases to use the Licensed Marks for a period of one year; or (v) in the event Region acts contrary to the best interests of the CMG. 7.2 In the event of termination of this agreement for any reason, then (i) Region shall thereupon cease to use and shall never again use the Licensed Marks or any marks substantially similar thereto; (ii) Region shall deliver to CMG, free of any charge to CMG, all signs, labels, publications, advertising materials or the like bearing the Licensed Marks that are then in its possession, or shall certify that all such materials have been destroyed; and (iii) Region shall refrain from using any mark that is confusingly similar to or dilutive of the Licensed Marks. 8. NOTICES 8.1 Any notice, demand, waiver, consent, approval, or disapproval (collectively referred to as notice ) required or permitted herein shall be in writing and shall be given personally, by messenger, by air courier, or by prepaid registered or certified mail, with return receipt requested, addressed to the parties at their respective addresses set forth above or at such other address as a party may hereafter designate in writing to the other party. 8.2 A notice shall be deemed delivered on the date of receipt. 9. MISCELLANEOUS PROVISIONS 9.1 Remedies. Region acknowledges that it will be impossible to measure in money the damage to CMG if there is a failure to comply with any of the restrictions or obligations set forth herein, and further agrees that CMG will not have an adequate remedy at law and that CMG will suffer irreparable harm by such failure. It is therefore agreed that CMG, in addition to any other rights or remedies which it has, shall be entitled to immediate injunctive relief to enforce any such restrictions, obligations or provisions of this Agreement, without posting any bond, and that in the event that any action or proceeding is brought in equity to enforce the same, Region cannot and shall not urge or bring as a defense, that there is an adequate remedy at law. 3

4 9.2 Assignment. Region may not assign this Agreement without prior written consent of CMG, which may be withheld at CMG s sole and absolute discretion. CMG may assign this Agreement without consent in its sole discretion. 9.3 Waiver. The failure by either party to exercise any of its rights under the license granted under this Agreement may not be deemed to constitute waiver of any such rights. The waiver of a breach of any of the terms hereof or of any default hereunder may not be deemed a waiver of any subsequent breach or default, whether of the same or similar nature, and may not in any way affect the other terms thereof. No waiver or modification hereof is valid or binding unless in writing and signed by the parties hereto. 9.4 Entire Agreement. This Agreement embodies the entire understanding of the parties and supersedes any prior understanding or agreement entered into by the parties either written or oral. 9.5 Governing Law. This Agreement is to be construed under and interpreted in accordance with the laws of the United States of America and the State of Illinois, without giving effect to its conflict of laws provisions. 9.6 Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns, except as otherwise expressly provided herein. 9.7 Headings. The headings contained in this Agreement are inserted for convenience of reference only, and do not affect in any way the meaning, construction or interpretation of the text or provisions of this Agreement. 9.8 Language. The language used in this Agreement will be deemed to be the language chosen by the parties hereto to express their mutual intent, and no rule of strict construction will be applied against either party. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly-authorized representatives as of the day and year written above. COMPUTER MEASUREMENT GROUP, INC. [INSERT NAME OF REGION] By: Its: By: Its: 4

5 1. CMG Schedule A Licensed Marks 5