| CERTIFICATION MARK AGREEMENT
THIS CERTIFICATION MARK AGREEMENT (this “Agreement”) is made and entered into as of the date of the Service Agreement (the “Service Agreement”), by and between VERIPRIME BEEF, INC., a Kansas agricultural cooperative (“VPB”), and the other party executing the Service Agreement (“Licensee”).
RECITALS
WHEREAS, LICENSOR or its successors and assigns (“LICENSOR”) is the LICENSOR of the Certification Mark (as described herein), which indicates compliance by its ultimate licensees of certain established standards in the fields of traceability, and human and animal food safety, security, and quality, including but not limited to, goods and services of others concerning beef and beef products; and
WHEREAS, VPB is a member-owned agricultural cooperative, organized for the purpose of conducting and promoting the research, development, distribution, marketing, traceability and sale of beef product attributes, beef products and services, and beef quality attributes; international food safety; the traceability of beef food products; and beef food inputs, among other things; and
WHEREAS, LICENSOR, by and through its sublicensees, has licensed the Certification Mark to VPB, who may sublicense the Certification Mark for the beef-related goods and services of others, and LICENSOR has engaged VPB to administer a Certification Process under the Standards; and
WHEREAS, Licensee is a seller of certain beef-related goods and services, and Licensee desires to obtain the non-exclusive right to use the Certification Mark in association with such goods or services and on its marketing materials and to make claims related to the certification program administered by VPB as more specifically set forth herein.
AGREEMENT
NOW THEREFORE, in consideration of the mutual promises and conditions contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby covenant and agree as follows:
1. Definitions. Except as otherwise defined herein, all capitalized terms used herein shall have the following meanings:
2. Certification Mark License.
2.1. Grant of License. Subject to the performance of all the terms, covenants, and conditions of this Agreement by Licensee as provided herein, VPB grants to Licensee, during the Term, a limited, non-exclusive, revocable, non-transferable license to use the Certification Mark in the United States of America solely in accordance with the Mark Usage Guidelines, and solely (a) to indicate that the Products have met the Standards, and (b) in association with the Products or on Marketing Materials directly related to the Products in accordance with the Mark Usage Guidelines.
2.2.1. To Affiliates. Subject to the performance of all the terms, covenant, and conditions of this Agreement by Licensee as provided herein, VPB hereby grants to Licensee a limited, non-exclusive, revocable, non-transferable license to sublicense (with no further rights to sublicense) the Certification Mark to its Affiliates in the United States under the same rights, conditions, and limitations as are applicable to Licensee. Licensee’s right to sublicense shall be conditioned upon the following terms:
(a) Licensee shall obtain a written agreement from each Affiliate that said Affiliate shall be bound by terms and conditions not less restrictive than the terms and conditions of this Agreement, including but not limited to, the Mark Usage Guidelines and the Certification Process.
(b) No title to the Certification Mark shall be transferred to any Affiliate, and the Affiliate shall have no right to sublicense or assign any rights in and to the Certification Mark.
(c) Affiliate shall be bound by confidentiality restrictions no less restrictive than those contained herein.
(d) Affiliate shall acknowledge and confess LICENSOR’s ownership of the Certification Mark, and Affiliates shall agree not to contest or challenge the validity of the Certification Mark or License’s ownership of the same.
(e) The agreements with each Affiliate shall name LICENSOR and VPB as third party beneficiaries to the Affiliate’s obligations under the agreement with the express authority to enforce the terms of such agreements, but each such agreement shall state that LICENSOR and VPB have no obligation or liability to the Affiliate. Except as otherwise expressly stated herein, the obligations of Licensee hereunder shall also be an obligation of its Affiliates. Licensee shall remain liable to VPB for its conduct and the conduct of its Affiliates, and shall guaranty the Affiliates’ performance under the agreement between Licensee and the Affiliates as required hereunder, including the full and timely payment of all fees which may hereafter be due.
(f) Any sublicenses granted hereunder shall terminate upon the termination of this Agreement or any license or use granted hereunder, and the Affiliate shall be subject to the same post-termination obligations as applicable to Licensee hereunder.
(g) Licensee shall use its best efforts to monitor the performance of its sublicensee for compliance with the requirements of this Agreement and enforce such requirements and its agreements with Affiliates.
2.2.2. To Agents. Subject to the performance of all the terms, covenant, and conditions of this Agreement by Licensee as provided herein, VPB hereby grants to Licensee and its Affiliates a limited, non-exclusive, revocable, non-transferable license to sublicense (with no further rights to sublicense) the Certification Mark to third parties in the United States with which Licensee and/or its Affiliates have contracted (i) to manufacture, assemble, sell, or distribute Products on Licensee’s and/or its Affiliates’ behalf solely for the limited purpose of using the Certification Mark in association with Products in accordance with the Mark Usage Guidelines; or (ii) to advertise, publicize, or market a Product on Licensee’s and/or its Affiliates’ behalf solely for the limited purpose of preparing and using Marketing Materials directly related to the Products in accordance with the Mark Usage Guidelines. Licensee and/or its Affiliates shall require all such third parties to agree to a signed writing to all terms and conditions necessary and appropriate to protect VPB’s right, title, and interest to the Certification Marks, including, but not limited to, all applicable terms and conditions of this Agreement, and providing that VPB shall be a third party beneficiary of such agreement(s). Such agreement will not allow a sublicensee to do or perform any act that would be a violation hereunder if done by Licensee or its Affiliates. Licensee shall remain liable to VPB for its and its Affiliates’ conduct and the conduct of sublicense hereunder, and shall guaranty the sublicensees’ performance under such agreements, including the full and prompt payment of all fees which hereafter may be due.
2.3. Retained Control. Licensee understands and agrees that LICENSOR by and through VPB has the right, absolute determination, and control, in its sole discretion, to modify, add to, delete from, substitute, redesign, or otherwise change the Certification Mark or any of them, and to control the manner and degree of application, manner and extent of registration (if any), maintenance, protection, enforcement, ownership, licensing, use, and termination of the Certification Marks, the Mark Usage Guidelines, and the Certification Process. Licensee agrees to comply with any changes in any of the foregoing and/or discontinue the use of any marks that are no longer Certification Marks hereunder.
2.4. Geographic and Other Limitations. Without limiting the foregoing, in the event LICENSOR by and through VPB determines that use of the Certification Mark, in any particular manner, in any particular jurisdiction, in any particular geographic area, or in association with any particular Product or Marketing Materials may violate any applicable laws or regulations, be contrary to public policy, or may subject LICENSOR, VPB, its corporate affiliates, Licensee, or any of its Affiliates or their sublicensees to any third party claims, legal proceedings, governmental investigations or proceedings, penalties, or liabilities, upon receipt of notice and request from LICENSOR or VPB, Licensee agrees to promptly cease and desist from all use of the Certification Mark or Marketing Materials in such particular manner, in particular jurisdiction, in any particular geographic area and/or such particular Product.
2.5. Certain License Restrictions. The licenses granted in this Section 2 may be used solely in connection with Products of Licensee, and are subject to the restrictions and obligations of Licensee set forth in this Agreement and the Mark Usage Guidelines, including, without limitation, the following:
2.5.1. Licensee shall not modify, enhance or change the Certification Mark or combine it with another mark, or use, adopt or register any marks confusingly similar to the Certification Mark.
2.5.2. Licensee shall not omit portions or use a partial version of the Certification Mark.
2.5.3. Licensee shall not use the Certification Mark (or any mark or term colorably similar thereto) as a domain name, including, without limitation, as a sub-domain name.
2.5.4. Licensee shall not use the Certification Mark: (a) in any manner that is likely to reduce, diminish or damage the goodwill, value or reputation associated with the Certification Mark; (b) in any manner as would violate the rights of any third parties; (c) in any manner as would result in any third party claim or in any governmental investigation, claim or proceeding alleging unlawful or improper use of the Certification Mark; (d) on or in connection with any other goods or services or marketing materials other than the Products or Marketing Materials; or (e) in any manner other than as a Certification Mark on Products, without the prior written consent of the VPB.
2.6. Components. If the Product constitutes only a part or portion of another or larger product of the Licensee or a portion or part of the goods or services offered by a Person other than Licensee or its Affiliates, the Licensee may only use the Certification Mark in reference to that portion of the Licensee’s or other Person’s product or service that constitutes the Product, and must specifically indicate which part or portion of the product or service constitutes the Product in all Marketing Materials, including marketing materials of such other Person.
3. Certain Obligations of VPB.
3.1. Certification Process. VPB has established and will continue to develop the Certification Process by which Licensee will be able to demonstrate compliance of the Products with the Standards. The Certification Process may be amended by VPB from time to time in VPB’s sole discretion.
3.2. Initial Certification. Upon receipt of payment in full of the registration and other fees, a properly completed Registration Form from Licensee, and completion of the initial certification process by VPB or its Designee in accordance with the Certification Process showing conformance by Licensee and its Affiliates with the Standards, VPB will provide Licensee with notice of certification of the Products.
3.3. Periodic Certification. In addition to the audits as described in Section 4.2, periodically after the initial certification, VPB or its Designee shall conduct recertification tests and examinations at the times and as described in the Certification Process evidencing Licensee’s and its Affiliates’ continued compliance with the Standards, and VPB will provide Licensee with notice of recertification of the Products.
3.4. Access to Certification Mark. Following notice of certification and recertification, VPB will make available to Licensee the Certification Mark in electronic format for Licensee’s use in connection with Product in accordance with the terms of this Agreement.
4. Certain Obligations of Licensee.
4.1. Certification Process.
4.1.2. Limitation on Third Party Usage. Without limitation on other license restrictions and obligations set forth in this Agreement, other than as expressly provided in Section 2.2 (and then subject to the terms, conditions, and limitations provided therein), Licensee may not allow any third-party to use the Certification Mark for any purpose whatsoever.
4.2. Audit. VPB may, in its sole discretion and at any time, conduct audits by means of testing or review of any Product of Licensee and/or its Affiliates. VPB may (a) obtain from the Licensee and/or its Affiliates one or more samples of the Product (if the Product is a good) upon request or by retail purchase; and/or (b) enter upon the premises or locations where the Product is provided (if the Product is a service) or sold to Licensee’s customer without prior notice or obtain such Product by retail purchase at such premises or locations, and obtain one or more samples of the materials, including Marketing Materials, used in association with the Product and/or bearing the Certification Mark upon request from VPB. VPB may subject the Product and/or Licensee’s premises and locations to the Standards in accordance with the Certification Process, and evaluate the uses of the Certification Mark against the Mark Usage Guidelines, as well as to any other testing or review as VPB may reasonably consider is necessary in order to determine whether the terms and conditions, licenses, Certification Process, Mark Usage Guidelines, and other provisions of this Agreement have been fully complied with by Licensee, its Affiliates, or any sublicensee. VPB may utilize a Designee for such auditing. If such Products, premises or locations, and/or other materials pass such audits, Licensee will retain its license to use the Certification Mark in connection with the Products, and VPB will be solely responsible for any costs or expenses associated with the audit of such materials. Auditing can occur on any Product. Audits will occur either as a result of a random selection, because VPB has probable cause to question the proper certification of a particular device (e.g., by way of consumer complaints as to a Product, changes in Licensee’s operations or practices applicable to the Product, in-field observations, etc.), or as specified in the Certification Process.
4.3. Failure of Certification or Audit. If the Products, premises or locations, and/or other materials fail such initial certification, recertification, or audits, VPB will provide Licensee with the audit results, and Licensee will have a period in which to dispute the failure in accordance with the Certification Process. If, after such period it has been determined by VPB that such materials pass the Certification Process, Licensee will retain its license to use the Certification Mark in connection with the Products, and VPB will be solely responsible for its costs and expenses associated with such dispute. However, if, after such period, it has been determined by VPB that such Products, premises or locations, and/or other materials still fail, Licensee must within the period specified in the Certification Process (a) reimburse VPB for any and all costs and expenses associated with the dispute, including the audit; (b) correct such Products, premises or locations, and/or other materials and recertify and/or re-audit it against the applicable Standards; and (3) submit evidence of a passing result of such Products, premises or locations, and/or other materials (as corrected) when certified or audited against the applicable Standards. In the event such Products, premises or locations, and/or other materials (or any portion thereof) still do not pass the applicable Standards in accordance with the Certification Process, (1) the applicable Products will be de-certified; (2) VPB may revoke the license rights granted Licensee under Section 2 of this Agreement with respect to the Products in accordance with the Certification Process; (3) Licensee will promptly cease and cause to be discontinued all uses of the Certification Mark in connection with such Products, and (4) VPB may terminate this Agreement by notice to Licensee.
4.4. Certification Mark.
4.4.1. Compliance with Laws. Licensee agrees to comply with all applicable laws, codes, and regulations in the use of the Certification Mark, and Marketing Materials, including without limitation any and all export control, customs, unfair competition, trade regulation and advertising laws, rules, and regulations.
4.4.2. Compliance with Mark Usage Guidelines. Licensee agrees to comply with the Mark Usage Guidelines. In the event VPB, in its sole discretion and at any time upon notice to Licensee, amends the Mark Usage Guidelines, Licensee agrees to comply with the Mark Usage Guidelines as so amended from and after the date VPB publishes the same and in accordance with the Mark Usage Guidelines procedures.
4.4.3. Assistance. Licensee agrees to provide all reasonable cooperation as LICENSOR may request in connection with the registration, protection, or prosecution of registrations for the Certification Mark in all jurisdictions as LICENSOR may direct. Such assistance shall include, without limitation, provision at the request of LICENSOR of specimens accurately and fully demonstrating Licensee’s use of the Certification Mark and true and correct testimony, under oath, if requested. When specifically requested by LICENSOR in writing, Licensee agrees to the filing, prosecution, and maintenance of applications and registration for the Certification Mark in Licensee’s name, and, when requested, assign the to LICENSOR (without payment obligation of LICENSOR other than third party expenses necessarily incurred), or if assignment is not possible, feasible, or desirable, hold the same in trust solely for LICENSOR. Licensee hereby irrevocably appoints LICENSOR its attorney-in-fact to accomplish the above obligations.
4.5. Certain Other Obligations of Licensee.
4.5.1. Public Relations. Licensee agrees that any of the VPB licensees may make a press or other public announcement regarding its own activities as a licensee of VPB, so long as it conforms to any confidentiality obligations set forth in this Agreement. Licensee shall not represent or make statements on behalf of VPB without the express written approval of the VPB. In addition, Licensee agrees that VPB may release the names of any licensees, including Licensee, as may be required by applicable law.
4.5.2. Enforceability. If, at any time during the Term of this Agreement, Licensee becomes aware of any provision of this Agreement that may not be enforceable according the representations and warranties set forth in Section 9.1, Licensee shall promptly notify VPB of all circumstances surrounding the issues regarding enforceability of such provision.
5. Royalties, Fees, and Payments.
5.1. Fees. In consideration for the rights granted herein, Licensee agrees to pay to VPB the fees in the time, manner, and accompanying the information specified in the Fee Schedule. The Fee Schedule may be changed by VPB from time to time at VPB’s sole discretion, but no change shall be effective with respect to Licensee until thirty (30) days after notice to Licensee. Licensee may terminate this Agreement because of a material change in the Fee Schedule by notice to VPB no later than fifteen (15) days after notice of the change from VPB to Licensee.
5.2. Expenses. Except as otherwise set forth herein or in the Fee Schedule, Licensee shall reimburse VPB for all of its costs and expenses arising out of or related to this Agreement in the time and manner specified in the Fee Schedule.
5.3. Payment. Licensee shall remit to VPB at the address specified in the Fee Schedule the fees and expenses payable hereunder in the time and manner set forth in the Fee Schedule, and such payments shall be made without reduction or set-off of any kind, including but not limited to, for returns or taxes. Payment of the fees and expenses shall be made to VPB by Licensee in accordance with the terms hereof and the Fee Schedule, irrespective of Licensee’s own business and accounting method. All payments to VPB shall be made in readily available funds in United States dollars. If required by the Fee Schedule, each payment made shall include a declaration, signed by an officer of Licensee stating that the fees paid and the included information, documentation, and details are true and correct and accurately reflect amounts owed to VPB hereunder. In addition to any other remedies VPB may have hereunder or at law or in equity, VPB may charge Licensee interest on all amounts overdue hereunder at the rate of the lower of (i) one and one-half percent (1.5%) per month, or (ii) the highest rate allowed by applicable law.
5.4. Taxes. Licensee shall be responsible for and shall remit any taxes (and related penalties and interest), however designated, imposed as a result of the existence or operation of this Agreement, including without limitation, any tax that Licensee is required to withhold or deduct from payments to VPB (provided that Licensee shall increase the payments payable to VPB so that the net payments payable to VPB by Licensee will be equal to the payments payable to VPB without taking into account such withholding or deduction), except any such tax constituting an income tax imposed on VPB by any governmental entity within the Territory.
5.5. Accounting. Licensee shall keep and cause its sublicensees to keep full and true books of accounts and other records in sufficient detail so that the payments payable to VPB hereunder can be properly ascertained and so that VPB may confirm compliance by Licensee of the terms and conditions of this Agreement, including but not limited to, books of accounts and records of Licensee’s Affiliates, as well as inspection of all agreements between Licensee and third parties regarding sublicenses of the Certification Mark. At the request of VPB, Licensee shall permit and shall cause its Affiliates and sublicensees to permit VPB, its employees, or its Designees (and such Designees’ agents and employees) to have full and unrestricted access to such books, records, and agreements as may be necessary to determine the correctness of any report or payment under this Agreement, to obtain information as the amounts payable for such period in case of failure of Licensee to report and/or pay pursuant to the terms of this Agreement, and to confirm Licensee’s compliance with the terms and conditions of this Agreement. Such inspection shall be at VPB’s expense, provided, however, that if such inspection shall reveal a payment deficiency of greater than five percent (5.0%) of the corrected amount due VPB for any payment period, Licensee shall reimburse VPB for its costs and expenses (including but not limited to, accountants’ and attorneys’ fees) in conducting such inspection.
6. Ownership and Proprietary Rights.
6.1. General. All right, title and interest in and to the Certification Mark, including but not limited to, all registrations, applications, common law rights, and the goodwill associated with the Certification Mark, is and shall remain the sole and exclusive property of LICENSOR. Except for the licenses and uses granted in Section 2 hereof, Licensee acknowledges that no right, title, or interest in or to the Certification Mark exists or is granted to Licensee, and Licensee shall make no such assertion. Any and all uses of the Certification Mark inure to the sole and exclusive benefit of LICENSOR.
6.2. Protection of Rights. Licensee shall not directly or indirectly contest LICENSOR’s ownership or the validity of the Certification Mark. Without limiting the foregoing, Licensee agrees not to use, register, or acquire any certification or collective mark, trademark, service mark, domain name, trade name, or product design or configuration that threatens, conflicts with, dilutes, or otherwise harms either LICENSOR’s rights in and to the Certification Mark or the Certification Mark itself.
6.3. Assignment. Licensee hereby assigns to LICENSOR and its successors and assigns, forever, all right, title, and interest (if any) in and to the Certification Mark that Licensee may acquire by operation of law or otherwise. Additionally, if Licensee uses, applies for, or obtain a registration for any certification or collective mark, trademark, service mark, trade name, or product design or configuration which, in the reasonable opinion of LICENSOR, is confusingly or colorably similar, deceptive, misleading, or dilutive with respect to the Certification Mark, Licensee shall immediately notify LICENSOR and VPB, and Licensee hereby does assign to LICENSOR all of the right, title, and interest in and to the same, and cooperate with LICENSOR in the prosecution and maintenance of the same in the same way as any other of LICENSOR’s application or registration as set forth in Section 4.4.3. Alternatively, at LICENSOR’s direction, Licensee shall abandon any such use, application, or registration, and reimburse LICENSOR for all costs and expenses (including without limitation, attorneys’ fees) of any opposition, cancellation, or related legal proceedings, instigated by LICENSOR or its authorized representative, in connection with the same.
6.4. Rights Reserved. In no event shall any license granted to Licensee pursuant to this Agreement be construed as granting to Licensee, expressly or by implication, estoppel, or otherwise, a license under any of LICENSOR’s or VPB’s rights under any patents, copyrights, or other intellectual property, including, without limitation, LICENSOR’s rights in and to the Certification Mark, the certification and audits performed hereunder, or the methods or practices contained in the Standards. All rights in and to the Certification Mark, the certification and audits performed hereunder, or the methods or practices contained in the Certification Process or Standards not expressly granted to Licensee in this Agreement are reserved to LICENSOR or VPB, respectively.
6.5. Assistance. Licensee agrees to execute and deliver such instruments and take such other actions as may be reasonably requested by LICENSOR or VPB from time to time to perfect or protect the rights of LICENSOR in the Certification Mark, the tests and audits performed hereunder, or the methods or practices contained in the Standards and to carry out the assignments set forth in Sections 4.4.3 and 6.3.
6.6. No Encumbrances. Licensee shall not take or allow to be taken a lien or other security interest, or otherwise encumber in any manner, any of LICENSOR’s or VPB’s intellectual property, including, but not limited to, the Certification Mark and any rights, such as copyrights and registrations relating to the Certification Mark. Licensee shall promptly satisfy any liens placed or filed in breach of the foregoing, release any security interests taken in breach of the foregoing, and otherwise satisfy and/or release any encumbrances related to the foregoing. LICENSOR or VPB may satisfy any such liens and/or encumbrances that are not promptly satisfied by Licensee, at Licensee’s sole cost and expense. Licensee shall also promptly execute such documents and otherwise assist LICENSOR or VPB in releasing and satisfying any and all such liens, interests, and/or encumbrances. Licensee shall, promptly upon LICENSOR’s or VPB’s request, reimburse LICENSOR or VPB for all of LICENSOR’s and VPB’s costs and expenses incurred under this Section, including but not limited to, attorneys’ fees.
7. Prosecution of Infringement.
7.1. Notice. Licensee shall promptly notify VPB of the existence of any infringement or potential infringement of the Certification Mark by a third party, together with all material information concerning the same.
7.2. Prosecution. LICENSOR shall have the sole right, in its business judgment and at is sole discretion, whether to prosecute any actions in any jurisdictions deemed appropriate by LICENSOR for infringement by third parties of the Certification Mark at LICENSOR’s sole expense. If such action cannot be maintained in LICENSOR’s own name, then Licensee shall reasonably cooperate with LICENSOR (at LICENSOR’s expense) to prosecute such actions in Licensee’s name, if allowed by law. LICENSOR shall have the sole right to retain any awards, costs, settlements, or other amounts received or resulting from such actions, and LICENSOR shall have no obligation to remit to Licensee and Licensee shall have no right to such amounts.
8.1. Licensee’s Obligation. As used in this Section 8.1, the “Confidential Information” of VPB shall mean any confidential or proprietary information received, discovered, or obtained by Licensee from VPB, in whatever form or medium, whether oral, written, electronic, or otherwise, including but not limited to, this Agreement; the amount of royalties and other fees and expenses paid to VPB hereunder; business, sales, marketing, finances, financial projections, products, product components, specifications, research, designs, identity of manufacturers, suppliers, dealers, markets, customers, distributors, and Designees of VPB; Fee Schedule, Standards, or the Mark Usage Guidelines; any aspect of the Certification Process; or any information belonging to a third party, including but not limited to LICENSOR, that VPB has an obligation to keep confidential. During the Term and thereafter, Licensee and shall not use and shall hold in confidence and shall not disclose, directly or indirectly, to any third person any Confidential Information received, discovered, or obtained by Licensee from VPB or its Designees, in whatever form or medium, whether oral, written, electronic, or otherwise.
8.2. VPB’s Obligation. As used in this Section 8.2, the “Confidential Information” of Licensee shall mean Product information, engineering data, marketing information, Usage Reports (unless Licensee has indicated that the information contained in Usage Reports may be disclosed, in which event such information does not constitute Confidential Information under this Section 8.2), information collected in and the results of certification or audits (other than an indication of “pass” or “fail”), and any information submitted by Licensee in the appeal or examination of a certification or audit pursuant to the Certification Process submitted to VPB by Licensee. During the Term and thereafter, VPB shall not use and shall hold in confidence and shall not disclose, directly or indirectly, to any third person any Confidential Information received, discovered, or obtained by VPB from Licensee or its Affiliates, in whatever form or medium, whether oral, written, electronic, or otherwise.
8.3. Exceptions. Notwithstanding the foregoing:
8.3.1. Either party may use or disclose Confidential Information of the other (a) as strictly necessary to perform its obligations or exercise its rights hereunder except as otherwise prohibited outside of this Section 8; (b) to its employees who have a need to know to perform services for a party or to a party’s legal, financial, or other professional consultants, provided that any Person whom Confidential Information is disclosed by the receiving party shall be advised of the confidentiality obligations set forth in this Section 8, and shall agree to be bound by its terms prior to such disclosure; or (c) in response to a duly issued order of a court or other administrative or arbitral authority of competent jurisdiction, including but not limited to, a property issued subpoena of a court of competent jurisdiction, provided that the receiving party provide prompt notice at the earliest reasonable time to the other party of such order prior to disclosure.
8.3.2. Confidential Information shall not include: (i) information which the receiving party can establish was lawfully in its possession prior to disclosure by the other party; (ii) information obtained by the receiving party from a source not under obligation of secrecy or confidentiality to the disclosing party; (iii) information discovered independently and without the use of documents or other information which is “Confidential Information” hereunder; (iv) information that is made public other than by action of the receiving party.
8.3.3. VPB may compile and maintain the following information: general description of any and all Products, the name and contact information of any and all Licensees (including Affiliates), the dates of any and all successfully passed certification or audits (including applicable criteria and facility or location at which the same occurred), and the current status of the certification of any and all Products. VPB may make the name and contact information of any and all Licensee (including Affiliates) publicly available. In addition, VPB may provide information as VPB deems reasonably necessary to maintain the validity of the VPB Certification Procedures, including but not limited to, the general description of the Product, the dates of any and all certification and audits successfully passed by the Products (including applicable certification criteria and facility or location at which the same were conducted), the current status of the certification of the referenced Products, and Licensee’s (or Affiliates’) status as a licensee of the Certification Mark.
9. Representations and Warranties.
9.1. Licensee. As of the Effective Date and on a continuing and ongoing basis, Licensee hereby represents and warrants:
9.1.1. It is duly authorized and has the power and authority to execute and deliver this Agreement and the exhibits hereto and to obligate Licensee and its Affiliates on whose behalf it is entering into this Agreement to perform its obligations hereunder.
9.1.2. It will procure such authorization to bind Affiliates to this Agreement prior to any such Affiliate seeking to utilize any such rights hereunder.
9.1.3. It is not presently under, nor will it enter into in the future, any agreement, commitment, understanding or other obligation, whether written or oral, which is inconsistent or in conflict with this Agreement.
9.1.4. It is not presently under, nor will it enter into in the future, any agreement, commitment, understanding or other obligation, whether written or oral, that, to the best of its knowledge, would in any way or to any extent intentionally prevent, limit or otherwise impair its performance of any of its obligations hereunder or in connection herewith.
9.1.5. That in the performance of this Agreement, it shall comply with all applicable laws, regulations, rules, union rules, orders, and other requirements of governmental authorities having jurisdiction over the parties, including without limitation all applicable laws pertaining to antitrust and unfair competition.
9.1.6. That, to the best of its knowledge, this Agreement is enforceable in the jurisdictions in which Licensee (and its applicable Affiliates) intend to operate under its provisions as this Agreement is written in English and according to its plain meaning under the governing law provision set forth in Section 16.1.
9.1.7. That based upon the actual knowledge of Licensee’s employee(s) providing any information, data, Marketing Materials, or anything else provided to VPB hereunder, the same (i) is owned by Licensee, or Licensee has sufficient rights therein to provide the same to VPB for the uses set forth herein; and (ii) will not infringe or violate any copyright, patent, trade secret, trademark or other proprietary or contract right of any third party.
9.2. VPB. As of the Effective Date and on a continuing and ongoing basis, VPB hereby represents and warrants:
9.2.1. It is duly authorized and has the power and authority to execute and deliver this Agreement and the exhibits hereto.
9.2.2. It is not presently under, nor will it enter into in the future, any agreement, commitment, understanding or other obligation, whether written or oral, which is inconsistent or in conflict with this Agreement.
9.2.3. It is not presently under, nor will it enter into in the future, any agreement, commitment, understanding or other obligation, whether written or oral, that, to the best of its knowledge, would in any way or to any extent intentionally prevent, limit or otherwise impair its performance of any of its obligations hereunder or in connection herewith.
9.2.4. That in the performance of this Agreement, it shall comply with all applicable laws, regulations, rules, union rules, orders and other requirements of governmental authorities having jurisdiction over the parties, including without limitation all applicable laws pertaining to antitrust and unfair competition.
10. Disclaimers and Limitations.
10.1. Disclaimers. NEITHER VPB OR LICENSOR MAKES ANY REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE CERTIFICATION MARK OR OTHERWISE AND EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. Without limiting the foregoing, nothing in this Agreement shall be construed as and LICENSOR and VPB expressly disclaims: (a) a warranty or representation as to the validity, scope, protectability, or registerability of any of the Certification Mark; (b) a warranty or representation that LICENSOR or VPB have not made any prior grants of any rights in the Certification Mark to any third party; (c) a warranty or representation that the use of the Certification Mark, or anything made, used, sold or otherwise disposed of under any license or use granted in the Agreement is or will be free from infringement of third parties; (d) a requirement that LICENSOR or VPB shall obtain or maintain any registration for the Certification Mark in force; or (e) an obligation to bring or prosecute actions or suits against third parties for infringement.
10.2. Limitation of Liability. Licensee expressly agrees that in no event shall LICENSOR or VPB be liable under for any special, indirect, incidental, exemplary, punitive, or consequential damages, or any damages whatsoever resulting from loss of profits or business opportunity, arising out of or in connection with LICENSOR’s or VPB’s performance or non-performance under this Agreement or for any other reason, whether in an action of contract or tort (including, without limitation, negligence), whether or not LICENSOR or VPB has been advised of the possibility of such damages. In addition, without limiting the foregoing, in all events the remedies available to Licensee shall not exceed the amount of the royalties and fees (exclusive of expense reimbursements) actually paid by Licensee to VPB with respect to the direct cause of the loss or damage for a period of one (1) prior to the occurrence of such loss or damage.
10.3. Assumption of Risks and Other Limitations. Licensee assumes all risks and resulting liabilities and obligations, arising out of or resulting from its use of or access to the Certification Process, the Standards, the Certification Mark and any other materials provided by VPB and/or its Designees. Without limitation on the foregoing, LICENSOR, VPB, its officers, directors, employees, agents, representatives, Designees, and suppliers shall be under no obligations to defend Licensee or any of its Affiliates against any claims, disputes, or proceedings asserted by any third party or before any governmental agency or authority, alleging misappropriation or infringement of proprietary rights, intellectual property rights or violation of any laws or regulations arising out of or resulting from this Agreement, Licensee’s use of the Certification Mark, the Standards, Certification Process, or Marketing Materials. The parties acknowledge that VPB entered into this Agreement in reliance upon its warranty disclaimers and the limitations of liability set forth in this Agreement, and that such disclaimers and limitations are an essential basis of the bargain between the parties.
11. Insurance.
11.1. Policies. Licensee shall procure, prior to the commencement of any operations under this Agreement, and maintain in full force and effect during the Term, at Licensee’s expense, in form, amounts, and with insurers acceptable to VPB in all respects:
11.1.1. Comprehensive general liability insurance, including product liability, completed operations, and independent contractors coverage, and comprehensive automobile liability coverage for both owned and non-owned vehicles, and hired automobiles.
11.1.2. Workers’ compensation and employer’s liability insurance, as well as such other insurance as may be required by statute or rule of the state or other jurisdictions in which licensee conducts business.
11.1.3. An Umbrella liability insurance policy providing an additional $5,000,000 in coverage over and above the limits set forth above.
11.2. Conditions. The insurance policies required by this section shall (i) name LICENSOR and VPB and their officers, directors, managers, members, LICENSORs, partners, employees, agents, and Designees (collectively, “Indemnitees”) as additional insureds; (ii) be endorsed to be primary to and non-contributory with any insurance maintained by Indemnitees, (iii) contain a waiver of any rights of subrogation against Indemnitees, and (iv) contain a severability of interest provision in favor of Indemnitees. Upon obtaining the insurance required by this Agreement and on each policy renewal date thereafter, Licensee shall promptly submit evidence of satisfactory insurance and proof of payment therefore to VPB, and, if requested by VPB, copies of all policies and policy amendments. The evidence of insurance shall include a statement by the insurer that the policy or policies will not be canceled or materially altered without at least thirty (30) days prior written notice to VPB. VPB may increase the minimum protection or coverage requirements of any policy required under this Section, as of its renewal date, and may require different or additional kinds of insurance at any time to reflect inflation, identification of special risks, changes in law or standards of liability, higher damage awards or other relevant changes in circumstances.
11.3. Reimbursement. If Licensee does not obtain and maintain the insurance coverage required by this Agreement, as may be revised from time to time, VPB may, but shall not be obligated to, procure such insurance, and the cost or expense thereof, together with a reasonable fee for VPB’s expenses in so acting, shall be payable by Licensee immediately upon demand.
12. Indemnification. Licensee agrees to indemnify, defend, and hold LICENSOR and VPB and their LICENSORs, shareholders, managers, members, agents, representatives, officers, directors, employees, partners, Designees, and other affiliates (the “Claimants”) harmless from and against any threat, claim, action, suit, damage, cause of action, liability, or cost (including but not limited to, attorneys’ fees) (“Losses”) by any third party related to: (a) acts or omissions of Licensee in connection with the certifications and audits; (b) acts or omissions of Licensee in connection with the Certification Mark or the Marketing Materials; (c) the design, manufacture, sale, provision, promotion, marketing, distribution, service and support of any Product; or (d) the manner in which Licensee, its officers, directors, employees, agents, representatives, distributors, dealers, resellers, Affiliates, or other sublicensees conduct their business(es) (each an “Indemnified Claim”). Licensee’s obligations of indemnification hereunder shall not be limited in any way by reason of any insurance that may be maintained by the Claimants. Licensee shall notify VPB in writing within five (5) days of receipt of notice or knowledge of any Losses, real or alleged, arising from or related to an Indemnified Claim, whether or not such claim names VPB. Licensee has no authority to, and shall not, accept any service of process on behalf of LICENSOR, VPB, or their affiliates. VPB shall have the right to employ separate counsel and participate in the defense of any Indemnified Claim. Licensee shall pay VPB upon demand for any Losses incurred by the Claimants at any time after the Effective Date based upon the judgment of any court of competent jurisdiction or pursuant to a bona fide compromise or settlement of an Indemnified Claim. Licensee agrees to perform all judgments or awards, including any settlement agreements of which Licensee has notice and opportunity to participate, prior to conclusion. VPB shall provide Licensee with non-confidential information, assistance and authority, at Licensee’s expense and reasonable request, to help Licensee defend such claim or action. Licensee will not be responsible for any settlement made by the Claimants without Licensee’s written permission, which permission will not be unreasonably withheld or delayed. Licensee may not settle any claim or action on behalf of the Claimants without first obtaining VPB’s written permission, which permission will not be unreasonably withheld. In the event VPB and Licensee agree to settle a claim or action, Licensee shall not publicize the settlement without first obtaining VPB’s written permission, which may be granted or withheld in VPB’s sole discretion.
13.1. Term. Unless earlier terminated as provided herein, the term of this Agreement and the licenses and uses granted hereunder shall begin upon the commencement of the Service Agreement (the “Effective Date”), and shall continue for a period commensurate with the term of the Service Agreement (the “Term”). At the end of the Term this Agreement and the licenses and uses granted hereunder shall terminate.
13.2.1. Events of Termination. This Agreement and the licenses and uses granted hereunder shall immediately terminate:
(a) Within ten (10) days after notice from VPB of a failure to pay the amounts due and owing hereunder which failure shall not be fully cured within such ten (10) day period;
(b) In the event of a breach of or default of any other material term under this Agreement by either party, which breach or default is not remedied within thirty (30) days after written notice thereof by the non-defaulting party;
(c) Without notice or right to cure if Licensee shall become insolvent, or shall make an assignment for the benefit of its creditors, or proceedings in voluntary or involuntary bankruptcy shall be instituted in behalf of or against the Licensee, or a receiver or trustee of the Licensee’s property shall be appointed;
(d) Upon the occurrence of any other event which shall result in termination of this Agreement or any license or use granted herein as elsewhere specified in this Agreement;
(e) LICENSOR or VPB determines that the use of the Certification Mark, continuation of the Certification Process, in accordance with the terms of this Agreement, may violate any applicable laws or regulations and subject Licensee, LICENSOR, or VPB to any third party claims, legal proceedings, or liability;
(f) Upon mutual written agreement of the parties hereto; or
(g) As otherwise specified in this Agreement.
13.3. Actions Upon Termination. After expiration or termination of this Agreement and/or the license and rights granted under this Agreement with respect to the Certification Mark:
13.3.1. All amounts due and owning hereunder or that will become due and owing to VPB shall be accelerated and become immediately due and payable to VPB, and Licensee shall not be entitled to a refund of any amounts previously paid;
13.3.2. The licenses and uses granted Licensee and its Affiliates shall immediately cease, and Licensee and its Affiliates shall immediately cease and discontinue completely further use of the Certification Mark, and promptly arrange for the destruction of any articles bearing a Certification Mark within Licensee’s and its Affiliates’ possession or control, including but not limited to, Marketing Materials;
13.3.3. Licensee and its Affiliates shall promptly return to VPB all copies of any Confidential Information of VPB and retain no copies, extracts, or compilations (in whatever form, written, electronic, or otherwise) containing the same, and provide a declaration signed by an officer of Licensee attesting to the same; and
13.3.4. Licensee shall immediately terminate any sublicense allowed hereunder, including but not limited to, sublicenses to Affiliates.
13.4. Survival. The provisions of Sections 2.5, 6, 7, 8, 9, 10, 12, 13.3, 13.4, 13.5, 13.6, 14, 15, 16, and such other provisions which by their nature would necessarily continue beyond the termination of this Agreement, shall survive the termination of this Agreement.
13.5. Equitable Relief. Licensee acknowledges that the threatened or actual breach by Licensee or it Affiliates of the terms set forth in this Agreement may result in immediate and irreparable harm to LICENSOR and/or VPB for which there is no adequate remedy at law. Therefore, in addition to such other rights and remedies it may have hereunder or at law or in equity, LICENSOR and VPB shall have the right to seek, apply for, and receive a temporary restraining order and a preliminary and permanent injunction enjoining Licensee, its LICENSORs, agents, employees, and Affiliates from threatened or continued violation of any of those provisions. For that purpose only, Licensee waives notice of any petition or application for a temporary restraining order and the requirement that LICENSOR or VPB post a bond or other security for the same. The parties to this Agreement agree that any injunctive relief afforded by a court of competent jurisdiction shall be binding worldwide on the parties to this Agreement and specifically enforceable worldwide by a party to this Agreement against the other party to this Agreement (including, without limitation, the Affiliates).
14. Assignment and Transfer of Interest. The rights and duties set forth in this Agreement are personal to Licensee and are granted in reliance on the individual and collective business skill, financial capacity, and personal character of Licensee and its principals. Accordingly, except as expressly provided herein (and then only subject to such terms, conditions, and limits as specified), neither Licensee, its Affiliates, nor any immediate or remote successor to any part of Licensee’s interest in this Agreement or license or use granted hereunder, nor any individual, partnership, corporation, or other legal entity which directly or indirectly owns any interest in such entity, in the Agreement, in or the licenses and uses granted herein, shall sell, assign, transfer, convey, give away, pledge, mortgage, or otherwise encumber any interest in this Agreement, a license or use granted hereunder, or Control of Licensee without the prior written consent of VPB, which consent VPB may grant or withhold in its sole discretion based solely upon what VPB deems is in its best interests. Any purported assignment or transfer, by operation of law or otherwise, not having the written consent of VPB required by this Section shall be null and void and shall constitute a material breach of this Agreement, for which VPB may then terminate in accordance with Section 13.2 without opportunity to cure. VPB may transfer all of its rights, title, and interest under this Agreement to LICENSOR upon notice to Licensee, and upon such notice VPB shall be released from any and all further liability hereunder form the date of such notice.
15. Arbitration and Other Proceedings.
15.1. Third Party Actions.
15.1.1. Notice of Claims. In the event of any claims, disputes or proceedings between Licensee and any third parties or any governmental authority relating to the Certification Mark or Marketing Materials, Licensee agrees to promptly notify VPB, and thereafter keep VPB informed of the status of such claims, disputes, or proceedings on a timely basis. Licensee agrees upon request of VPB, to provide VPB with such information as Licensee may have regarding such claim, dispute, or proceeding.
15.1.2. Control. LICENSOR or VPB shall have absolute determination and control in its sole discretion over any and all litigation, claims, or proceedings brought or which are not brought by LICENSOR or VPB against third parties, or brought by third parties against LICENSOR or VPB, that pertain to or affect the Certification Mark, Certification Process, Mark Usage Guidelines, or rules on Marketing Materials.
15.1.3. Rights of Action. Any and all rights of action and proceeds, awards, and recoveries (including interest and penalties) obtained against third parties arising out of or resulting from any claims or proceedings, against third parties with respect to the unauthorized use or manner of use of the Certification Mark, or any default or breach with respect to the Certification Mark, Certification Process, Mark Usage Guidelines, or rules on Marketing Materials, shall in their entirety belong to and be the property of LICENSOR or VPB; Licensee shall have no rights or interest therein and in furtherance thereof assigns and transfers to LICENSOR or VPB (as they may direct) any and all right, title or interest which Licensee may have at any time therein.
15.2.1. Licensee and VPB agree to submit, prior to arbitration, all unsettled claims, disputes, controversies, and other matters in question between them arising out of or relating to this Agreement (including but not limited to any claim that the Agreement or any of its provisions is invalid, illegal, or otherwise voidable or void), the dealings or relationship between Licensee and VPB, or Licensee’s or its sublicensees’ use of the Certification Mark, Marketing Materials, or compliance with the Standards or Certification Process (“Disputes”) to mediation in Wichita, Kansas and in accordance with the Commercial Mediation Rules of the American Arbitration Association currently in effect. Demand for mediation shall be made within a reasonable time after cessation of negotiations.
15.2.2. Mediation shall be private, voluntary, and nonbinding. Any party may withdraw from the mediation at any time before signing a settlement agreement upon written notice to each other party and to the mediator. The mediator shall be neutral and impartial. The mediator’s fees shall be shared equally by the parties. The mediator shall be disqualified as a witness, consultant, expert, or counsel for either party with respect to the matters in Dispute and any related matters.
15.2.3. Unless the parties agree otherwise, the entire mediation process shall be confidential and without prejudice. The parties and the mediator shall not disclose any information, documents, statements, positions, or terms of settlement. Nothing said or done or provided by the parties in the course of mediation shall be reported or recorded or, except as ordered by a court of competent jurisdiction, placed in any legal proceeding or construed for any purpose as an admission against interest. Nevertheless, evidence otherwise discoverable or admissible is not excluded from discovery or admission as a result of its use in mediation.
15.2.4. If a Dispute cannot be resolved through mediation, the parties agree to submit the Dispute to arbitration under the terms and conditions of Section 15.3.
15.3. Arbitration.
15.3.1. Subject to Section 15.2, all Disputes between Licensee and VPB will be submitted for binding arbitration to the American Arbitration Association on demand of either party. Such arbitration proceeding will be conducted in Wichita, Kansas and, except as otherwise provided in this Agreement, will be heard by one (1) arbitrator in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect. All matters relating to arbitration will be governed by the federal Arbitration Act (9 U.S.C. §§ 1 et. seq.) and not by any state arbitration law. The arbitration proceedings shall be conducted in English.
15.3.2. The arbitrator will have the right to award or include in his award any relief which he deems proper under the circumstances, including, without limitation, money damages (with interest on unpaid amounts from the date due), specific performance, injunctive relief, and attorneys’ fees and costs, provided that the arbitrator will not have the right to declare any Certification Mark generic, merely descriptive, or otherwise invalid or unenforceable or to award exemplary or punitive damages. The award and decision of the arbitrator will be conclusive and binding upon all parties hereto, and judgment upon the award may be entered in any court of competent jurisdiction.
15.3.3. Licensee and VPB agree to be bound by the provisions of any limitation on the period of time in which claims must be brought under applicable law. Licensee and VPB further agree that, in connection with any such arbitration proceeding, each must submit or file any claim which would constitute a compulsory counterclaim (as defined by Rule 13 of the Federal Rules of Civil Procedure) within the same proceeding as the claim to which it relates. Any such claim which is not submitted or filed as described above will be forever barred.
15.3.4. Licensee and VPB agree that arbitration will be conducted on an individual, not a class-wide, basis, and that an arbitration proceeding between Licensee and VPB may not be consolidated with any other arbitration proceeding involving Licensee or VPB and another party.
15.4. Exclusions. Notwithstanding anything to the contrary contained herein and consistent with the provisions of 13.5, VPB shall have the right in a proper case to obtain temporary restraining orders and temporary or preliminary injunctive relief from any court of competent jurisdiction without the need to first mediate or arbitrate; provided, however, that VPB must contemporaneously submit the Dispute for non-binding mediation under Section 15.2 and then for arbitration under Section 15.3 on the merits as provided herein if such Dispute cannot be resolved through mediation. Licensee acknowledges that a proper case to obtain temporary restraining orders and temporary or permanent injunctive relief from a court of competent jurisdiction contemporaneously with submitting the Dispute to mediation and then to arbitration shall include, but not be limited to, the following:
15.4.1. Any Dispute involving actual or threatened disclosure or misuse of the contents of the Mark Usage Guidelines, the Standards, the Certification Process, or any other Confidential Information of VPB;
15.4.2. Any Dispute involving the LICENSORship, validity, use of, or right to use or license the Certification Mark; and
15.4.3. Any action by VPB to enforce the covenants set forth in Section 8 of this Agreement.
15.5. Other Actions. Subject to the foregoing, in the event that Licensee commences any action against VPB with respect to any Dispute, such action shall be brought exclusively in a federal or state court sitting within Wichita, Kansas. The parties irrevocably consent to the exercise of jurisdiction and venue by such courts, and agree not to seek transfer or removal of any action commenced in accordance with the terms of this Agreement, provided that the parties shall have the right to enforce a judgment in any court of competent jurisdiction.
16.1. Jurisdiction. This Agreement, the construction of its terms, and the interpretation of the rights and duties of the parties shall be construed and controlled by the laws of the State of Kansas (irrespective of its choice of law principles).
16.2. Construction. All captions in this Agreement are intended solely for the convenience of the parties, and none shall be deemed to affect the meaning or construction of any provisions hereof. No consideration shall be given to the fact or presumption that one party had a greater or lesser hand in drafting this Agreement. Time is of the essence of this Agreement and all provisions hereof shall be so interpreted.
16.3. Third Party Beneficiaries. LICENSOR shall be a third party beneficiary to all of the obligations, representations, and warranties made by Licensee hereunder, and LICENSOR shall have the right to enforce the same and exercise such other rights as VPB may have hereunder, but LICENSOR shall not be considered a party to this Agreement, and Licensee shall have no right to enforce any obligation or right hereunder against LICENSOR. Except as expressly set forth herein, no Person other than the parties is a beneficiary to the rights or obligations under this Agreement, and no Person other than the parties may enforce the provisions of this Agreement.
16.4. Costs and Attorneys’ Fees. In the event VPB incurs legal fees or costs or other expenses to enforce any obligation of Licensee hereunder, or to defend against any claim, demand, action or proceeding by reason of Licensee’s failure to perform or observe any obligation imposed upon Licensee by this Agreement, then VPB shall be entitled to recover from Licensee the amount of all legal fees, costs, and expenses, including but not limited to, reasonable attorneys’ fees, whether incurred prior to, or in preparation for or contemplation of the filing of any claim, demand, action, or proceeding to enforce any obligation of Licensee hereunder or thereafter or otherwise.
16.5. Notice. Any and all notices required or permitted under this Agreement shall be in writing and shall be personally delivered, mailed by certified or registered mail, postage prepaid, return receipt requested, or sent via a nationally recognized overnight delivery service, to the respective parties at the following addresses unless and until a different address has been designated by written notice to the other party:
Notices to VPB: VeriPrime Beef, Inc. 806 East Washington Meade, KS 67864 ATTN: Dr. Scott Crain
With copy to: Harvey R. Sorensen Foulston Siefkin LLP 1551 n. Waterfront Parkway, suite 100 Wichita, KS 67206
Notices to LICENSOR: VeriPrime, Inc. 806 East Washington Meade, KS 67864 ATTN: Dr. Scott Crain
With copy to: Harvey R. Sorensen Foulston Siefkin LLP 1551 n. Waterfront Parkway, suite 100 Wichita, KS 67206
Notices to Licensee: To the attention and at the address of Licensee set forth in the Service Agreement.
Any notice by certified or registered mail or recognized overnight delivery service, costs prepaid, shall be deemed to have been given at the date and time of mailing.
16.6. Further Assurances. The parties covenant and agree that each party will execute, acknowledge, and deliver such other and further instruments and will take such other action as may be necessary or desirable to carry out more effectively the intent and purpose of this Agreement.
16.7. Severability. In the event any provision of this Agreement is deemed by a court of competent jurisdiction to be more restrictive than permissible at law or equity, then Licensee agrees that the provisions hereof may be reformed and modified and enforced by such court to the maximum extent permissible under applicable law and principles of equity. Should any provision of this Agreement be declared invalid or unenforceable by a court of competent jurisdiction, notwithstanding the above provision, the remaining provisions shall remain in full force and effect and shall be construed in the broadest possible manner to effectuate the purposes hereof. The parties further agree to replace such void or unenforceable provisions of this Agreement with valid and enforceable provisions which will achieve, to the extent possible, the economic, business and other purposes of the void or unenforceable provisions.
16.8. Independent Parties. The parties acknowledge that the sole relationship between VPB and Licensee is that of independent contractors, and nothing contained in this Agreement shall be deemed or interpreted to constitute any other relationship between VPB and Licensee, and not partnership, joint venture, employment, agency, or other form of agreement or relationship is intended. Except as expressly allowed herein, neither party shall have the authority to and shall not engage in any conduct or make any representation that a party is acting on behalf of the other. Without limiting the foregoing, Licensee is not authorized to and shall not engage in any conduct or represent that Licensee is acting on behalf of VPB with respect to the Certification Mark, Marketing Materials, the Product, or any other good, service, or activity of Licensee, and Licensee shall not engage in any acts or use the Certification Mark, Marketing Materials, or Products that may result in liability or obligation on the part of VPB. The parties understand and agree that except for the specific obligations set forth herein, VPB has no authority to control the business or operations of Licensee. Licensee acknowledges that VPB, by entering into this Agreement, is not selling or granting to Licensee (or any applicable Affiliate) a franchise pursuant to any federal or state laws, codes, or regulations.
16.9. Remedies; Waiver. No delay or omission to exercise any right, power or remedy of any party shall impair any such right, power or remedy of such party nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or of or in any similar breach or default thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of any party of any breach or default under this Agreement, or any waiver on the part of any such party of any provisions or conditions of this Agreement, must be in writing and shall be effective only to the extent specifically set forth in such writing and executed by the party against whom it is being enforced. No waiver of any term, provision or condition of this Agreement, in any one or more instances, shall be deemed to be, or be construed as, a further or continuing waiver of any such term, provision or condition or as a waiver of any other term, provision or condition of this Agreement.
16.10. Conflicts. If there is a conflict between the terms of this Agreement and the terms of any Exhibit or document referenced herein, the following order of governance shall apply: (1) this Agreement, (2) the Certification Process, (3) the Standards, (4) the Mark Usage Guidelines, and (5) any other documents or Exhibits incorporated by reference in this Agreement.
16.11. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but that together shall constitute one and the same instrument.
16.12. Amendment and Modification. Amendments of, and modifications and changes to, this Agreement shall be valid and effective only if in written form and signed by both parties to this Agreement.
16.13. Integration. This Agreement, the Service Agreement, and the Exhibits and documents incorporated by referenced herein are intended by the parties hereto to be the final expression of their agreement and constitutes and embodies the entire agreement and understanding between the parties hereto with regard to the subject matter hereof and is a complete and exclusive statement of the terms and conditions thereof, and shall supersede any and all prior oral and written correspondence, conversations, negotiations, agreements and understandings relating to the same subject matter. |