THIS TRADEMARK, SERVICE MARK AND RIGHT OF PUBLICITY LICENSE AGREEMENT ("AGREEMENT") is made and entered into effective as of Date (the "Effective Date") by and between Licensor operating under the corporate entity “Party”, with its registered place of business at Licensor Address ("Licensor") and Party 2, Inc., a Delaware corporation ("Licensee" and/or "Party 2”).
WHEREAS, Licensor has adopted and/or has registered with the United States Patent and Trademark Office and/or the trademark offices of various foreign countries, and is using the trademark and/or service mark “Party” ("Intellectual Property") throughout the world in connection with personal appearances, endorsements, performances, products, etc.; and
WHEREAS, Licensee desires to use the Trademark and/or Service Mark in both block letter and stylized form. In addition, Licensee desires to use the other Intellectual Property Rights, specifically Right of Publicity in connection with Licensee's Interactive Game “Game Name” to promote the fact that Licensor is affiliated with and endorses “Game Name” throughout the universe ("Territory"); and
WHEREAS, Licensor, subject to the terms and conditions set forth in this AGREEMENT, is willing to permit Licensee to use the Trademark, Service Mark, Right of Publicity and/or other Intellectual Property Rights in connection with “Game Name” for the mutual benefit of Licensor and Licensee. Specifically, Licensor grants Licensee the right to use, incorporate, attach, etc. Licensor’s image, likeness, identity, etc. within the "Game Name” gaming software.
WHEREAS, Licensor, acknowledges that the term Right of Publicity as used herein includes, but not limited to, Licensor’s Name, Likeness, Image, Physical Appearance and /or other unequivocal aspects of Licensor's identity.
WHEREAS, Licensor, shall be paid a royalty on a quarterly basis as follows:
WHEREAS, Licensor agrees to and shall employ “best efforts” to promote the Game Name including, but not limited to, making mention of Game Name in TV appearances, personal appearances, on Licensor’s personal website, Facebook page, Twitter page, creating a Youtube video of at least 30 seconds promoting Game Name the game, said video shall be posted on Youtube.com and conspicuously on Licensor’s website, Facebook page and mentioned on Licensor’s Twitter account and in Licensor’s Tweets from time to time.
WHEREAS, a portion of the profits from Game Name’s in-application sale will be donated to a not-for-profit organization to be agreed upon by both parties at a later date.
NOW, THEREFORE, in consideration of the above premises, the mutual covenants set forth below, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1.1 Scope of License. Subject to the terms and conditions set forth in this AGREEMENT, Licensor grants to Licensee a non-exclusive, non-transferable to use the Trademark, Service Mark and/or Right of Publicity in connection with the interactive game “Game Name” throughout the Territory. Specifically, Licensor grants Licensee the right to replicate and incorporate Licensor’s image, likeness, identity including physical characteristics into the game "Game Name”.
1.2 Non-Assignment. Licensee acknowledges and agrees that the rights granted to Licensee by and obtained by Licensee as a result of or in connection with this AGREEMENT are license rights only, and nothing contained in this AGREEMENT constitutes or shall be construed to be an assignment of any or all of Licensor's rights in the Trademark, Service Mark and/or Licensor’s Right of Publicity.
In order to protect and preserve Licensor's rights in the Trademark, Service Mark and/or Right of Publicity, Licensee understands, acknowledges, and agrees that once Licensee's use of the Trademark, Service Mark and/or Right of Publicity in connection with Game Name is initially approved by Licensor, any subsequent material alteration, modification, or change in such use must be reviewed and approved by Licensor prior to implementation of such alteration, modification, or change.
USE OF THE TRADEMARK
3.1. Impairment of Licensor's Rights. Licensee shall not at any time, whether during or after the term of this AGREEMENT, do or cause to be done any act or thing challenging, contesting, impairing, invalidating, or tending to impair or invalidate any of Licensor's rights in the Trademark, Service Mark and/or Licensor’s Right of Publicity or any registrations derived from such rights.
3.2 Licensor's Rights and Remedies. Licensee acknowledges and agrees that Licensor has, shall retain, and may exercise, both during the term of this AGREEMENT and thereafter, all rights and remedies available to Licensor, whether derived from this AGREEMENT, from statute, or otherwise, as a result of or in connection with Licensee's breach of this AGREEMENT, misuse of the Trademark, Service Mark and/or Licensor’s Right of Publicity or any other use of the Trademark, Service Mark and/or Licensor’s Right of Publicity by Licensee which is not expressly permitted by this AGREEMENT.
3.3 Licensee's Rights and Remedies. Licensor acknowledges and agrees that Licensee has, shall retain, and may exercise, both during the term of this AGREEMENT and thereafter, all rights and remedies available to Licensee, whether derived from this AGREEMENT, from statute, or otherwise, as a result of or in connection with Licensor's breach of this AGREEMENT. Licensor acknowledges and agrees that Licensee has the right to exploit the aforementioned intellectual property rights in connection with the interactive game "Game Name” and that Licensor owns the aforementioned intellectual property rights including Trademark, Service Mark and Right of Publicity in the name “Party” licensed herein and grants Licensee the non-exclusive use of the aforementioned intellectual property rights free of encumbrances.
3.4 Limitation of Liability, Indemnification. Neither party will be liable to the other for special, indirect or consequential damages incurred or suffered by the other arising as a result of or related to the performance of Developer's Work, whether in contract, tort or otherwise, even if the other has been advised of the possibility of such loss or damages. Licensor will indemnify and hold Party 2 harmless against any claims incurred by Party 2 arising out of or in conjunction with Licensor’s breach of this AGREEMENT and/or any third-party agreement(s), as well as all reasonable costs, expenses and attorneys' fees incurred therein. Licensee shall not be liable for an tax liability of Licensor arising out of this AGREEMENT.
TERM AND TERMINATION
4.1 Term. The term of this AGREEMENT shall be for three (3) years from the Effective Date, provided, however, that Licensee shall retain the exclusive option to renew this AGREEMENT with the terms embodied herein for an additional period of two (2) years. In addition, either party may terminate this AGREEMENT, if there is a material breach of the terms herein, by delivering written notice of termination to the other party, and, unless a later date is specified in such notice, termination shall be effective sixty (60) days after the date such notice is given.
4.2 Termination for Cause. Notwithstanding the provisions of Section 4.1 of this AGREEMENT, this AGREEMENT and all rights granted hereby, including but not limited to Licensee's right to use the Trademark, Service Mark and/or Licensor’s Right of Publicity shall automatically terminate without notice from Licensor if (i) Licensee attempts to assign, sub-license, transfer or otherwise convey, without first obtaining Licensor's written consent, any of the rights granted to Licensee by or in connection with this AGREEMENT; (ii) Licensee fails to obtain Licensor's approval of Licensee's use of the Trademark, Service Mark and/or Licensor’s Right of Publicity if not in accordance with Section 2 of this AGREEMENT; (iii) Licensee uses the Trademark, Service Mark and/or Licensor’s Right of Publicity in a manner in violation of, or otherwise inconsistent with, the restrictions imposed by or in connection with Section 3 of this AGREEMENT; or (iv) Licensee uses the Trademark, Service Mark and/or Licensor’s Right of Publicity in a manner not expressly permitted by this AGREEMENT.
4.3 Effect of Termination. All rights granted by this AGREEMENT, including, without limitation, Licensee's right to use the Trademark, Service Mark and/or Licensor’s Right of Publicity shall expire upon termination of this AGREEMENT, and upon termination Licensee shall immediately cease and desist from all further use of the Trademark, Service Mark and/or Licensor’s Right of Publicity.
5.1 Assignment. Licensee shall not assign, sublicense, transfer, or otherwise convey Licensee's rights or obligations under this AGREEMENT without Licensor's prior written consent. Licensee shall indemnify and hold harmless Licensor against all liability, costs, and expenses arising out of or in connection with claims relating to an attempted assignment, sublicense, transfer, or other conveyance of Licensee's rights and obligations.
5.2 Applicable Law. This AGREEMENT shall be interpreted, construed, and enforced pursuant to, and in accordance with, the laws of the State of New York, without reference or application of any conflict of laws.
5.3 Entire AGREEMENT. This AGREEMENT supersedes all previous AGREEMENTS, understandings, and arrangements between the parties, whether oral or written, and constitutes the entire AGREEMENT between the parties.
5.4 Amendments. This AGREEMENT may not be modified, amended, altered, or supplemented except by an AGREEMENT in writing executed by the parties hereto.
5.5 Waivers. The waiver by either party of a breach or other violation of any provision of this AGREEMENT shall not operate as, or be construed to be, a waiver of any subsequent breach of the same or other provision of this AGREEMENT.
5.6 Notice. Unless otherwise provided herein, any notice, demand, or communication required, permitted, or desired to be given hereunder shall be in writing and shall be delivered by hand, by facsimile, by email or by registered or prepaid certified mail through the United States postal service, return receipt requested, addressed as follows:
Party 2 , Inc.
ATTN: General Counsel
New York, NY
or to such other address, and to the attention of such other persons or officers as either party may designate by written notice. Any notice so addressed and mailed shall be deemed duly given five (5) days after deposit in the United States mail, and if delivered by hand, shall be deemed given when delivered and if sent by facsimile or email, shall be deemed given on the first business day immediately following transmittal and acknowledgement by receiver.
5.7 Counterparts. This AGREEMENT may be executed in several counterparts, each of which shall be an original, but all of which together shall constitute one and the same AGREEMENT.
5.8 Articles and Other Headings. The articles and other headings contained in this AGREEMENT are for reference purposes only, and shall not affect in any way the meaning or interpretation of the terms of this AGREEMENT.
5.9 Severability. If any term of this AGREEMENT is found to be unenforceable or contrary to law, it will be modified to the least extent necessary to make it enforceable, and the remaining portions of this AGREEMENT will remain in full force and effect.
6.0 Force Majeure. Neither party will be held responsible for any delay or failure in performance of any part of this AGREEMENT to the extent that such delay is caused by events or circumstances beyond the delayed party's reasonable control.
IN WITNESS WHEREOF, the parties hereto have caused this AGREEMENT to be executed by their duly authorized representatives as of the date first set forth above.