Earth Champs Resources

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE YOU USE EARTH CHAMPS’, A PROGRAM OF EARTH CHARTER US, INC. (“LICENSOR”) (COLLECTIVELY, “PARTIES” AND EACH A “PARTY”) LICENSED MATERIALS (DEFINED BELOW).  BY USING THE LICENSED MATERIALS, YOU ARE AGREEING ON BEHALF OF THE ENTITY USING THE LICENSED MATERIALS (“LICENSEE“) THAT LICENSEE WILL BE BOUND BY AND IS BECOMING A PARTY TO THIS LICENSE AGREEMENT (“AGREEMENT“) AND THAT YOU HAVE THE AUTHORITY TO BIND LICENSEE.  IF LICENSEE DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT SELECT THE “I ACCEPT” BOX AND DO NOT USE THE LICENSED MATERIALS. LICENSEE HAS NOT BECOME A LICENSEE OF, AND IS NOT AUTHORIZED TO USE THE LICENSED MATERIALS UNLESS AND UNTIL IT HAS AGREED TO BE BOUND BY ALL THESE TERMS. THE “EFFECTIVE DATE” FOR THIS AGREEMENT SHALL BE THE DAY YOU CHECK THE “I ACCEPT” BOX.

1. License Rights and Limitations. During the term of this Agreement, and subject to the terms and conditions of this Agreement, Licensor hereby grants to Licensee a limited, revocable, non-transferable, non-exclusive, and non-assignable license to use the Licensed Materials solely in connection with sanctioned Earth Champs activities in the United States.  Licensor reserves all rights not explicitly granted herein.  The rights granted by this Agreement are expressly limited to Licensee’s use of the Licensed Materials as they appear in Exhibit A.  Licensee shall affix or otherwise display the Licensed Materials in conformance with Licensor’s standards and guidelines, as such may be further developed or amended from time to time, including any manuals that are established or approved by Licensor, and any other specifications as may be prescribed by Licensor to promote and foster the goodwill represented by the Licensed Materials.  The notices on the Licensed Materials shall not be altered, removed or obliterated.  Licensee agrees that this Agreement does not include any right of Licensee to do any of the following acts, each of which is expressly prohibited:  (a) grant sublicenses or assignments in or of the license granted herein or any portion hereof; (b) use or knowingly permit the use of any of the Licensed Materials in any manner or for any purpose not specifically authorized under this Agreement; (c) incorporate with or use the Licensed Materials with any other unauthorized indicia, except as explicitly authorized in advance by Licensor; (d) use any language or display the Licensed Materials in such a manner as to create the impression that the Licensed Materials, or any of them, belong to and are owned by Licensee; or (e) contest, impair or do anything which is or may be construed to be inconsistent with the ownership of Licensor in and to the Licensed Materials. The Licensed Materials will be delivered promptly after Licensee’s agreement to the terms hereof and will be deemed accepted upon delivery.

2.       Ownership. Licensor owns all right, title and interest in and to the EARTH CHAMPS brand and all trademarks, service marks and other source-identifying intellectual property relating to such brand, including the registrations and/or applications therefor, together with the goodwill symbolized thereby, as well as the copyrights, whether registered or in common law, to certain works, including, without limitation, the works listed on Exhibit A (the “Licensed Materials”), which may be supplemented or otherwise amended from time to time by agreement of the parties.  This Agreement is not intended to convey any right, title or interest in the Licensed Materials to Licensee except the right of non-exclusive use of the Licensed Materials in accordance with the terms hereof.  Any rights not expressly granted in this Agreement are expressly reserved to Licensor.  Licensee acknowledge the ownership, validity, unique and widespread celebrity, great value and goodwill of the Licensed Materials and acknowledges that all rights therein (including trademark and copyright) and goodwill attached thereto belong exclusively to Licensor, that the Licensed Materials have secondary meaning in the minds of the public and that all use of the Licensed Materials will inure to the benefit of Licensor.  Licensee shall not, during the Term of this Agreement or thereafter, attack or put in issue the title or any rights of Licensor in and to the Licensed Materials.  Licensee covenants that, notwithstanding any other provision of this Agreement, it will never take any action which it knows or has reason to know would threaten to injure the image or reputation of Licensor, the Licensed Materials or any of Licensor’s copyrights, trade dress, trademarks or products.

3.         Quality Control.  Licensee acknowledges and agrees that, to protect its and Licensor’s mutual interests and the valuable goodwill and reputation represented by the Licensed Materials, Licensee will comply with the quality control provisions of this Section.  Use of the Licensed Materials shall be in accordance with the quality control standards and specifications provided by Licensor from time to time, pursuant to this Agreement.  All use of the Licensed Materials by Licensee shall be subject to Licensor’s approval to enable Licensor to ensure that Licensor’s quality standards are being maintained.  The quality standards shall apply only to the use of the Licensed Materials.  Licensee shall not use the Licensed Materials in any manner which would disparage or tarnish or dilute the distinctive quality of the Licensed Materials or the reputation and goodwill embodied in the Licensed Materials or which would reflect adversely on the Licensed Materials or Licensor, or any of Licensor’s services or other Licensee.  Whether this standard is met shall be in Licensor’s sole and exclusive discretion, although Licensor must act in good faith and in a commercially reasonable manner. Licensee shall not use the Licensed Materials in any way that is not authorized and approved in advance by Licensor as set forth in this Agreement. 

4.         Right to Inspect. Licensor shall have the right, during regular business hours and without unduly interfering with Licensee’s ongoing business activities, at its own expense, to make inspections to determine whether Licensee is adhering to the requirements of this Agreement relating to the use of the Licensed Materials.

5.         Registration and Enforcement. Licensee shall take all reasonable steps and shall provide such materials, cooperation and assistance, as may be requested by Licensor at Licensor’s expense, as may reasonably be required to assist Licensor in registering, protecting, maintaining, and enforcing Licensor’s rights in the Licensed Materials. Should Licensee become aware of any actual or suspected infringement or misuse of the Licensed Materials by third parties, Licensee shall promptly notify Licensor.  Licensee shall be under no obligation to bring claims against any third party for actual or suspected infringement or misuses of the Licensed Materials. Licensor shall assume full responsibility and authority for the conduct and direction of any litigation arising from any claim brought against Licensee that the Licensed Materials infringe any intellectual property right of a third party, including sole discretion, to settle, compromise or withdraw any such claims.

6.         Term and Termination. The term of this Agreement begins on the Effective Date and will continue until terminated in accordance with the terms of this Agreement or upon the mutual agreement of the parties. Licensee may terminate this Agreement at any time by providing written notice to Licensor at least thirty (30) days prior to the effective date of such termination.  Licensor may terminate this Agreement at any time by providing written notice to Licensee at least sixty (60) days prior to the effective date of such termination.  Licensor may also immediately terminate this Agreement by providing written notice if: (a) Licensee file a petition for bankruptcy or is adjudicated a bankrupt or if a petition for bankruptcy is filed against Licensee which is not stayed or dismissed within 90 days after the filing thereof or if Licensee become insolvent or makes any assignment pursuant to any bankruptcy law or if a receiver is appointed for it; (b) Licensee discontinue the Merchandise; (c) Licensee use the Licensed Materials in a manner contrary to this Agreement; or (d) Licensee otherwise commit any act which, in Licensor’s sole judgment, might bring the Licensed Materials, Licensor or its products and services in disrepute.

7.         Duties Following Termination. Following termination of this Agreement, for any reason, or following expiration of this Agreement, Licensee shall immediately cease to represent that Licensee is Licensee of Licensor, and to that end shall take all appropriate actions, including but not limited to the following: (a) immediately terminate any and all use of the Licensed Materials or any marks confusingly similar thereto; (b) prompt written notification to Licensee’s full-time and part-time employees, if any, and its Board of Directors that Licensee is no longer Licensee of Licensor; and (c) any other action as may be reasonably requested by Licensor to address special circumstances not dealt with in this Section.

8.         Assignment.  This Agreement may not be assigned by Licensee to any third party without Licensor’s prior written consent. Any such assignment made without the prior written consent of the other party shall be null and void.

9.         Indemnity.       Licensee shall defend Licensor and its Licensee, and the directors, officers, employees, independent contractors, and agents of Licensor and its Licensee (“Licensor Indemnified Parties”), at Licensee’s sole cost and expense, against any and all demands, claims, actions, suits, or other proceedings (“Claims”) against Licensor Indemnified Parties arising from or related to: (1) the Merchandise provided by Licensee or its agents; (2) the improper or unauthorized use of the Licensed Materials; (3) any breach or violation of any warranty, representation, term or condition of this Agreement by Licensee or its agents; or (4) any breach or violation of any law or regulation by Licensee or its agents with respect to this Agreement, and shall indemnify and hold Licensor Indemnified Parties harmless from any and all judgments, losses, liabilities, damages, costs, and expenses (including without limitation, reasonable attorney’s fees and attorney’s disbursements) arising out of or incurred in connection with such Claims.  Licensee shall undertake and conduct the defense and/or settlement of each Claim with counsel of Licensee’s choice, which counsel must be acceptable to Licensor. Licensee shall not settle any Claim in respect of which indemnity may be sought hereunder, whether or not any Licensor Indemnified Party is an actual or potential party to such Claim, without Licensor’s prior written consent, which shall not be unreasonably withheld, conditioned  or delayed; it being expected that such consent would not be withheld with respect to any proposed settlement (i) in which all plaintiffs or claimants affirmatively and unconditionally absolve and release each Licensor Indemnified Party from any responsibility or liability with respect thereto and the subject matter thereof, (ii) which does not impose any actual or potential liability upon any Licensor Indemnified Party and (iii) which does not contain or imply a factual admission by or with respect to any Licensor  Indemnified Party or any adverse statement or implication with respect to the character, professionalism, due care, loyalty, expertise, or reputation of any Licensor Indemnified Party or any action or inaction by any Licensor Indemnified Party. This indemnification provision shall survive the termination of this Agreement.

10.       Binding Effect. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective, permitted, successors, heirs, executors, administrators, assigns and all persons claiming by, through or under them.

11.       Representations and Warranties. Except as otherwise set forth herein, Licensor expressly disclaims all representations and warranties, express or implied, including, but not limited to the implied warranties of title, merchantability, non-infringement, and fitness for a particular purpose. Each Party represents and warrants that it has full corporate power and authority to execute, deliver and perform this Agreement; and that the person signing this Agreement on behalf of each Party has properly been authorized and empowered to enter into this Agreement by and on behalf of such party.

12.       Waiver.  No waiver or modification of any of the terms of this Agreement shall be valid unless in writing signed by both Parties.  Failure by either Party to enforce any rights under this Agreement shall not be construed as a waiver of such rights and the waiver by either Party of a default in one or more instances shall not be construed as a continuing waiver or as a waiver in other instances.

13.       Relationship.  Licensor and Licensee are independent contractors with respect to each other, and nothing herein shall create any partnership, agency, joint venture or franchise relationship between them. All persons hired or employed by each party shall be considered employees of that Party and not of any other party to this Agreement and shall be solely and exclusively under the hiring or employing party’s direction and control.

14.       Severability.  The invalidity, illegality or unenforceability of any provision hereof shall not in any way affect, impair, invalidate or render unenforceable this Agreement or any other provision thereof.

15.       Entire Agreement.  This Agreement constitutes the entire agreement between the Parties regarding the subject matter hereof and merges and supersedes all prior and contemporaneous agreements and understandings of the parties whether oral or written regarding the subject matter hereof.  No amendment, modification, supplement, waiver or termination of this Agreement will be binding unless executed in writing by the party to be bound thereby.

16.       Construction. The Parties have participated jointly in the negotiation and drafting of this Agreement. If any ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the Parties and no presumption or burden of proof will arise favoring or disfavoring any Party because of the authorship of any provision of this Agreement.

EXHIBIT A

The Licensed Materials