(Last Updated: July 27, 2018)
TechChange has developed a set of materials and content around a specific topic. Client wishes to uses TechChange’s materials and content in the operation of a business in conformance with the terms of this agreement. TechChange and Client agree as follows:
1. Definitions
1.1 Client is the company, organization, or individual named above only, exclusive of parent companies, umbrella organizations, subsidiaries, successors or assigns, unless otherwise provided herein.
1.2 Licensor Content means those materials and content identified in Exhibit A, as may be amended by TechChange and the Client.
1.3 Licensor Logos means trademarks, trade names, service marks, logotypes, or brand identifiers of Licensor.
1.4 Platform means TechChange’s proprietary software platform and all code, data, and design used to transmit and provide Licensor Content to Client’s users.
2. License
2.1 License Grant. Subject to the terms and conditions of this Agreement, TechChange grants to Client: 1) a non-exclusive, worldwide license to use, modify, reproduce, distribute, display and transmit the Licensor Content in electronic form via the Internet and third party networks (including, without limitation, telephone and wireless networks) in connection with the Platform, and to permit users of the the Platform to download and print the Licensor Content. 2) a license to modify the Licensor Content. License Grant with Client does not infer a right to sublicense any of the Licensor Content or rights described in this section.
2.2 Trademark Usage. Licensor hereby grants the Licensee a limited, non-exclusive, royalty-free license to Licensor Logos during the Term of this Agreement. Such license is granted solely in connection with the Licensee’s rights and obligations under this Agreement. All such uses will be in compliance with Licensor’s written trademark guidelines as provided by Licensor to the Licensee from time to time.
2.3 License Limitations. The Licensee agrees that it will not in any way suggest or imply by the use of the Licensor Logos that Licensee is affiliated with, endorsed or sponsored by or created in association with Licensor except as agreed by Licensor. Licensee acknowledges that Licensor owns all right, title and interest and to the Licensor Logos. The Licensee agrees not to do anything inconsistent with such ownership and all uses of the Licensor Logos will inure to the benefit of and on behalf of Licensor.
3. Content
3.1 Content Ownership
3.1.1 By Licensor. Licensee acknowledges and agrees that:
3.1.1.1 as between Licensor and Licensee, Licensor owns all right, title and interest in the Licensor Content and the Licensor Logos;
3.1.1.2 nothing in this Agreement shall confer to Licensee any right of ownership in the Licensor Content or the Licensor Logos; and
3.1.1.3 Licensee shall not now or in the future contest the validity of the Licensor Logos. No licenses are granted by either party except for those expressly set forth in this Agreement.
3.1.2 By Licensee. Licensor acknowledges and agrees that:
3.1.2.1 as between Licensor and Licensee, Licensee owns all right, title and interest in any Licensee property;
3.1.2.2 nothing in this Agreement shall confer in Licensor any license or right of ownership in the Licensee property; and
3.1.2.3 Licensor shall not now or in the future contest the validity of Licensee property. Licensee grants no licenses.
3.1.2.4 Licensee or its affiliates shall own all derivative works created by Licensee from the Licensor Content, to the extent such is separable from the Licensor Content.
3.2 Selection, Format, and Design. With respect to the Licensor Content, the Licensee shall have the right to determine, in its reasonable discretion, the Licensor Content it selects to adapt for use on the Licensee’s Platform at any time; provided, however, that the Licensee shall clearly attribute all Licensor Content used on the Licensee platform to Licensor.
4. Payment and Reporting
4.1 Licensee Fees. In consideration for the rights granted in the Licensor Content, Licensee hereby agreed to pay Licensor the amounts set forth on Exhibit C of this Agreement. All amounts payable shall be due be due thirty days after the receipt of Licensor’s invoice.
4.2 Taxes. Licensee is responsible for paying any and all applicable sales taxes, use taxes, value added taxes, customs and duties imposed by any jurisdiction as a result of the Agreement, or use of the Licensor Content.
5. Term and Termination
5.1 Term. This agreement will be effective for the entirety of a Client’s licensure of the TechChange Platform.
5.2 Termination for Cause. This Agreement may be terminated by either party immediately upon notice if the other party: (a) becomes insolvent; (b) files a petition in bankruptcy; (c) makes an assignment for the benefit of its creditors; or (d) breach any of its obligations under this Agreement in any material respect, which breach is not remedied within thirty days following written notice to such party.
5.3 Effect of Termination. Any termination shall be without any liability or obligation of the terminating party, other than with respect to any breach of this Agreement prior to termination. The provisions relating to property rights and confidentiality shall survive any termination or expiration of this Agreement. All revenue sharing, if applicable, ceases with the termination of this Agreement.
6. Representation of the Parties
TechChange warrants to Client that TechChange has the power and authority to enter into and perform its obligations under this Agreement. Client warrants to TechChange that Client has the power and authority to enter into and perform its obligations under this Agreement
7. Confidential Information
7.1 Client acknowledges that, in connection with this Agreement and its relationship with TechChange, Client may obtain information relating to TechChange, which is of a confidential and proprietary nature (“Confidential Information”). Such Confidential Information may include, but is not limited to, trade secrets, know how, inventions, techniques, processes, programs, schematics, software source documents, data, customer lists, financial information, and sales and marketing plans or information which Client knows or has reason to know is confidential, proprietary or trade secret information of TechChange. Client shall at all times, both during the term of this Agreement and in perpetuity after its termination, keep in trust and confidence all such Confidential Information, and shall not use such Confidential Information other than as expressly authorized by TechChange under this Agreement, nor shall the receiving party disclose any such Confidential Information to third parties without TechChange’s written consent. Client further agrees to immediately return to TechChange all Confidential Information (including copies thereof) in Client’s possession, custody, or control upon termination of this Agreement at any time and for any reason. The obligations of confidentiality shall not apply to information which (a) has entered the public domain except where such entry is the result of Client’s breach of this Agreement; (b) prior to disclosure hereunder was already rightfully in Client’s possession; (c) subsequent to disclosure hereunder is obtained by the Client on a non-confidential basis from a third party who has the right to disclose such information to Client; or (d) is required to be disclosed pursuant to law or government regulation, provided Client uses reasonable efforts to give TechChange reasonable notice of such required disclosure and an opportunity to obtain an appropriate protective order.
7.2 TechChange acknowledges that, in connection with this Agreement and its relationship with Client, TechChange may obtain information relating to Client, which is of a confidential and proprietary nature (“Confidential Information”). Such Confidential Information may include, but is not limited to, trade secrets, know how, inventions, techniques, processes, programs, schematics, software source documents, data, customer lists, financial information, and sales and marketing plans or information which TechChange knows or has reason to know is confidential, proprietary or trade secret information of Client. TechChange, shall at all times, both during the term of this Agreement and in perpetuity after its termination, keep in trust and confidence all such Confidential Information, and shall not use such Confidential Information other than as expressly authorized by Client under this Agreement, nor shall the receiving party disclose any such Confidential Information to third parties without Client’s written consent. TechChange further agrees to immediately return to Client all Confidential Information (including copies thereof) in TechChange’s possession, custody, or control upon termination of this Agreement at any time and for any reason. The obligations of confidentiality shall not apply to information which (a) has entered the public domain except where such entry is the result of TechChange’s breach of this Agreement; (b) prior to disclosure hereunder was already rightfully in TechChange’s possession; (c) subsequent to disclosure hereunder is obtained by TechChange on a non-confidential basis from a third party who has the right to disclose such information to TechChange; or (d) is required to be disclosed pursuant to law or government regulation, provided TechChange uses reasonable efforts to give Client reasonable notice of such required disclosure and an opportunity to obtain an appropriate protective order.
7.3 The foregoing obligation of confidentiality shall apply reciprocally for any information designated as Confidential Information by Client.
8. Certain Obligations of the Parties
8.1 Licensee Obligations. The Licensee:
8.1.1 agrees to comply with all legal requirements in connection with the use of the Licensor Content;
8.1.2 agrees that all rights in and to any of the Licensor Content not expressly licensed are reserved to Licensor;
8.1.3 agrees not to sublicense, assign, transfer, pledge, offer as security, or otherwise encumber the Licensor Content or any of the rights granted in this Agreement in any way other than as expressly provided in the Agreement;
8.1.4 agrees not to use any of the Licensor Content in any manner or for any purpose in violation of the terms of this Agreement;
8.1.5 acknowledges and agrees that it shall not at any time during the Term or thereafter (i) challenge the title or any other rights of Licensor or its licensors in or to the Licensor Content or any parts or derivatives or any variations, (ii) contest the validity of the copyrights or other proprietary interests in and to the Licensor Content or (iii) claim any right, title or interest in or to the Licensor Content or any parts or derivatives or variations; and
8.1.6 agrees to use its best efforts to cause sublicensees to comply with the terms of this section.
8.2 Licensor Obligations. The Licensor:
8.2.1 will provide reasonable ongoing assistance to Licensee with regard to technical, administrative and service-oriented issues relating to the utilization, encoding, transmission and maintenance of the Licensor Content, as Licensee may reasonably request. Licensor will use its best efforts to ensure that the Licensor Content is timely, accurate, comprehensive and updated regularly as set forth in this Agreement.
9. Indemnification
Client agrees to defend, indemnify and hold TechChange harmless against any third party demand, claim, action, cause of action, complaint, or other formal dispute against TechChange for losses, liabilities, damages and expense, including the fees of attorneys and other professionals, arising out of any acts or omissions of Client in connection with its activities under this Agreement, including, but not limited to those obligations under Section 7 of this Agreement. TechChange shall have the right to choose its own legal counsel for its defense.
10. Limitation of Liability
IN NO EVENT SHALL TECHCHANGE BE LIABLE FOR ANY INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR LOST DATA, OR ANY OTHER INDIRECT DAMAGES, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF TECHCHANGE OR ITS SUPPLIERS HAVE BEEN INFORMED OF THE POSSIBILITY THEREOF. NOTWITHSTANDING ANYTHING ELSE HEREIN, ALL LIABILITY OF TECHCHANGE AND ITS SUPPLIERS UNDER THIS AGREEMENT OR OTHERWISE SHALL BE LIMITED TO THE MONEY PAID TO TECHCHANGE UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
11. Force Majeure
Except for the obligation to pay monies due and owing, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party’s reasonable control, including without limitation acts of God, earthquake, labor disputes, shortages of supplies, riots, war, fire, epidemics, or delays of common carriers. The obligations and rights of the excused party shall be extended on a day-to-day basis for the time period equal to the period of the excusable delay.
12. Notices
All notices required or permitted under this Agreement will be in writing and will be deemed given: (a) when delivered personally; (b) when sent by confirmed facsimile (followed by the actual document in air mail/air courier); (c) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid (or six (6) days for international mail); or (d) one (1) day after deposit with a commercial express courier specifying next day delivery (or two (2) days for international courier packages specifying 2-day delivery), with written verification of receipt. All communications will be sent to the addresses set forth on the signature page of this Agreement or such other address as may be designated by a party by giving written notice to the other party pursuant to this paragraph.
13. General
13.1 Choice Of Law. The validity, interpretation, and performance of this Agreement shall be controlled by and construed under the laws of the District of Columbia as if performed wholly within the District of Columbia and without giving effect to the principles of conflict of law.
13.2 No Waiver. No waiver of rights under this Agreement by either party shall constitute a subsequent waiver of this or any other right under this Agreement.
13.3 Assignment. Neither this Agreement nor any rights under this Agreement, other than monies due or to become due, shall be assigned or otherwise transferred by Client (by operation of law or otherwise) without the prior written consent of TechChange.
13.4 Severability. In the event that any of the terms of this Agreement become or are declared to be illegal or otherwise unenforceable by any Court of competent jurisdiction, such term(s) shall be null and void and shall be deemed deleted from this Agreement. All remaining terms of this Agreement shall remain in full force and effect. Notwithstanding the foregoing, if this paragraph becomes applicable and, as a result, the value of this Agreement is materially impaired for either party, as determined by such party in its sole discretion, then the affected party may terminate this Agreement by written notice to the other.
13.5 Attorneys’ Fees. In any suit or proceeding relating to this Agreement, the prevailing party will have the right to recover from the other its costs and reasonable fees and expenses of attorneys, accountants, and other professionals incurred in connection with the suit of proceeding, including costs, fees and expenses upon appeal, separately from and in addition to any other amount included in such judgment. This provision is intended to be severable from the other provisions of this Agreement, and shall survive and not be merged into any such judgment.
13.6 No Agency. This Agreement does not create any agency, partnership, joint venture, or franchise relationship. Neither party has the right or authority to, and shall not, assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever.
13.7 No Third Party Beneficiary. It is the intention of the parties that no person or entity other than TechChange and Client is or shall be entitled to bring any action to enforce any provision of this Agreement against either of the parties, and the covenants, undertakings and agreements set forth herein shall be solely for the benefit of, and shall be enforceable only by, the parties hereto.
13.8 Survival. Rights under Sections 7, 9 and 10 shall survive the termination of this Agreement.
13.9 Entire Agreement. This Agreement is the complete agreement between the parties hereto concerning the subject matter of this Agreement and replaces any prior oral or written communications between the parties. There are no conditions, understandings, agreements, representations, or warranties, expressed or implied, which are not specified herein.