We, Union & Fifth, own and operate a Web Site that provides users with access to sales of new or gently used designer and luxury item from donors. The proceeds of such sales are then donated to charity. We may feature or otherwise promote certain charities through our Web Site or through other services.
You, Featured Non-Profit, in addition to receiving certain proceeds from the sales on our Web Site, would like the further opportunity to benefit from the promotion of your business and mission through our Web Site and certain services Union & Fifth may offer.
In order for Union & Fifth to promote Featured Non-Profit, Union & Fifth and Featured Non-Profit will grant one another certain rights with respect to its Intellectual Property. As a result, Union & Fifth (“We,” “Us”) and Featured Non-Profit (“You”) (each a “Party” or together “Parties”) agree to the terms and conditions provided in this Non-Exclusive License Agreement (the “Agreement”).
“Intellectual Property” or “IP” means any patent, patent application, copyright, original work of authorship (or derivative works thereof), moral right, trade name, trademark, trade secret, logos, and any applications or right to apply for registration therefor, know-how, ideas, inventions, discoveries, designs, developments, mask work, technologies, processes, methods, improvements, and compositions (whether or not reduced to practice and whether or not protectable under state, federal, or foreign patent, copyright, trademark, trade secrecy or similar laws), and any other intellectual property right recognized under the laws of any governmental authority.
“Union & Fifth IP” means the Intellectual Property of Union & Fifth.
“Featured Non-Profit IP” means the Intellectual Property of Featured Non-Profit (“You”).
“Promotional Services and Material(s)” means all forms of services and materials created, distributed, provided or utilized by Union & Fifth to market, promote, or advertise itself and Featured Non-Profit, including without limitation: pages, headers, and other content on the Union & Fifth Web Site; email marketing campaigns; blog posts; banner ads; social media sites, content, and/or social media promotional services; and retargeting services.
“Web Site” means the web site found at https://www.unionandfifth.com.
“Guidelines” means usage guidelines and other policies and practices regarding Intellectual Property usage as established from time to time by Union & Fifth and as provided in our Style Guide.
1.1. Subject to the terms and conditions of this Agreement, and the Guidelines, Union & Fifth hereby grants You, for the term of this Agreement, a non-exclusive, revocable, royalty-free license, without the right to sublicense, to use the Union & Fifth IP provided to You by Union & Fifth, for and in connection with the following activities relating to marketing, promoting, and advertising Your campaign through Union & Fifth: promotion via Your web site; email marketing campaigns; social media promotion; banner ads; retargeting; post cards; posters; and other print or digital media approved from time to time by Union & Fifth.
1.1.1. In order for You to promote Your campaign through Union & Fifth, We will provide Union & Fifth IP to You, including without limitation, the Style Guide, fonts, logo files, photographs, an email template, a postcard template, and other documents or materials. Upon our request, You will provide Us with a reasonable number of samples of any promotional materials using the Union & Fifth IP, without cost.
1.1.2. In order to ensure that any materials or services bearing Union & Fifth IP are consistent with our mission and reputation, You agree that in the course of doing business or marketing, promoting, or advertising Union & Fifth IP, you will maintain and adhere to standards of quality and specifications that conform with the Guidelines.
1.2. Subject to the terms and conditions of this Agreement, You hereby grant to Union & Fifth, for the term of this Agreement, a non-exclusive, revocable, royalty-free license, without the right to sublicense, to use the Featured Non-Profit IP provided by You to Union Fifth, for and in connection with all Promotional Services and Materials.
1.2.1. In order for Union & Fifth to perform the Promotional Services and Materials, You will provide Us with Featured Non-Profit IP, including without limitation, photographs, logo files and other trademarks, and a mission statement and other text about You and Your campaign.
1.2.2. You represent and warrant that You own the rights licensed pursuant to this Agreement and that Union & Fifth’s use of the Featured Non-Profit IP as contemplated under this Agreement, will not violate any third party copyright, trademark, or other propriety or contractual right.
1.3. Each Party acknowledges the other Party’s exclusive right, title, and interest in and its IP and acknowledges that nothing in this Agreement grants either Party any rights in any of the other Party’s IP except as expressly provided in this Agreement. Each Party acknowledges that its use of the other Party’s IP and any goodwill generated will inure to the exclusive benefit of the other Party. Each Party further agrees that it will not at any time, either during or subsequent to the term of this Agreement: (a) challenge the other Party’s right, title or interest in its IP or the validity of any of its IP or any registration thereof, (b) do or cause to be done or omit to do anything that would in any way impair or tend to impair the right, title, or interest of the other Party in its IP, (c) use any trademark, service mark, trade name, insignia, or logo that is confusingly similar to or a colorable imitation of any of the other Party’s trademarks, or (d) register with any administrative entity or governmental body any copyright, trade name, trademark, trade dress, label, design, or domain name that includes or incorporates any of the other Party’s IP or any trade name, trademark, trade dress, label, design, or domain name confusingly similar thereto.
2. Union & Fifth makes no representations, warranties, or commitments (a) with respect to when, how often, for what duration of time and through what media or means it may provide Promotional Services and Materials to You; and (b) as to what the results of the Promotional Services and Materials will be.Notice and Prosecution or Defense of Infringement Claims. Each Party agrees to provide prompt notice to the other Party of any activities or claims relating to IP infringement. The owner of the IP has the sole responsibility, in its sole discretion, to institute, prosecute, defend, and resolve any actions for such IP infringement. Any damages and costs recovered through such proceedings belong exclusively to the owner of the IP. Each Party agrees to provide reasonably requested assistance in any such proceedings to the owner of the IP that is subject to the activities or claims of infringement.
3. Term and Termination. This Agreement will remain in force until one or both Parties terminate the Agreement. Either Party may terminate this Agreement at any time for any reason or no reason, upon twenty (20) days written notice to the other Party. If either Party breaches any obligation, warranty or any other term in this Agreement and fails to remedy such breach within ten (10) days of receipt of written notice of such breach, the non-breaching Party may terminate this Agreement
3.1. Upon termination of this Agreement, all rights of each Party to use the other Party’s IP shall immediately cease, all remaining materials bearing the other Party’s IP shall be returned or destroyed, and each Party will certify in writing to the other Party that all such items have been returned or destroyed.
3.2. Even after this Agreement terminates, for any reason, all defined terms, including without limitation those in section 1, and the following sections of this Agreement shall survive and still apply: 1.3, 2, 3, 4, and 5.
4. Indemnification and Warranties
4.1. You shall defend, indemnify and hold harmless Union & Fifth, its subsidiaries and affiliates, and their respective officers, directors, employees, representations, agents, successors and assigns from all losses, costs, liabilities, damages, claims, and expenses of every kind and description, including reasonable attorneys’ fees, brought by a third party arising out of or resulting from any act or omission of Featured Non-Profit, including, without limitation; (1) any breach of any representation or warranty in this agreement; (2) any act or omission relating to marketing, promoting, and advertising the Featured Non-Profit campaign through Union & Fifth; (3) any fraud committed by Featured Non-Profit; (4) claims for unauthorized use or misuse of any patent, trademark, copyright, or other proprietary right owned, used or controlled by any third party; and (4) violations of applicable laws, rules, regulations or orders of any governmental authority, arising out of or relating to your performance of this Agreement.
4.2. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY. THE IP, PROMOTIONAL MATERIALS AND SERVICES, AND ANY CHANGES OR UPDATES THERETO, ARE PROVIDED “AS IS,” AND UNION & FIFTH MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION, TITLE, NON-INFRINGEMENT, ACCURACY, OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL UNION & FIFTH AND ITS EMPLOYEES, OFFICERS, DIRECTORS, OWNERS, LICENSEES OR AGENTS BE LIABLE, WHETHER IN CONTRACT, TORT, UNDER STATUTE OR OTHERWISE, TO Featured Non-Profit OR TO ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, SPECIAL OR INCIDENTAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE) ARISING OUT OF OR RELATED TO THIS AGREEMENT, OR THE MATTERS DESCRIBED HEREIN, INCLUDING WITHOUT LIMITATION , MATTERS ARISING OUT OF OR RELATING TO THE IP AND THE USE OF OR INABILITY TO USE THE IP, EVEN IF UNION & FIFTH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
5.1. It is the express intention of the Parties that no partnership shall exist between the Parties, neither Party has, nor should either Party hold itself out as having, any right or authority to assume or create any obligations or make any binding commitment for, on behalf of, or in the name of the other Party, or to incur or contract any debt on behalf of the other Party, and (iii) neither Party shall commit any act or omit to act, make any representation, or advertise in any manner that may adversely affect any right of the other Party’s IP or be detrimental to the other Party’s good name and reputation.
5.2. Neither Party shall sell, assign, transfer, convey or encumber this Agreement or any right or interest herein or hereunder or suffer or permit any such assignment, transfer, conveyance or encumbrance to occur by operation of law or otherwise without the prior written consent of the other Party.
5.3. Each Party, upon the reasonable request of the other Party, agrees to perform all further acts and execute, acknowledge, and deliver any documents which may be reasonably necessary, appropriate, or desirable to carry out the intent and purposes of this Agreement.
5.4. If any provision of this Agreement, or portion thereof, is held invalid by any law, rule, order or regulation of any government or by the final determination of any court of competent jurisdiction, such invalidity shall not affect the enforceability of any of the other provisions of this Agreement, and such other provisions shall be interpreted so as to best accomplish the objectives of such invalid provision within the limits of applicable law or applicable court decision.
5.5. This Agreement and matters connected with the performance thereof shall be construed, interpreted, applied and governed by the Commonwealth of Massachusetts, without reference to conflict of laws principles. The Parties hereby consent to the sole and exclusive jurisdiction of the courts located in the Commonwealth of Massachusetts.
5.6. Whenever notice is required to be given under the terms of this Agreement, it shall be given in writing and shall be deemed delivered (i) when sent, if sent via facsimile, (ii) seven (7) days after mailing, if sent via certified or registered mail, return receipt requested, postage prepaid or (iii) when actually received by the party for whom intended, whichever is earlier and in all cases if addressed to the Party for whom intended and sent to the facsimile number or address, as the case may be, as either Party may designate in writing to the other Party pursuant to this paragraph.
5.7. No waiver of any right hereunder, by either Party shall operate as a waiver of any other rights, or of the same right with respect to any subsequent occasion for its exercise, or of any right to damages. No waiver of either Party of any breach of this Agreement shall be held to constitute a waiver of any other breach or of a continuation of the same breach. All remedies provided by this Agreement are in addition to all other remedies provided by law. The Agreement may not be amended except by a writing signed by each of the Parties.
5.8. This Agreement and the Guidelines contain the entire agreement between the Parties hereto as to the subject matter hereof. No agreement of any kind relating to the matters covered by this Agreement shall be binding upon either Party unless set forth in a written document executed by the Parties.