UPDATED ON JAN 8, 2018
“Licensor” is Scend, LLC, a Florida limited liability company with a business address of 12802 Science Drive, Suite 201, Orlando, Florida 32826.
“Licensee” is the dealership, company, firm or organization that employs, is affiliated with, contracts with, or enabled the individual clicking through this Agreement on the RichDealers® website (the “Site”) or otherwise accessing the password-protected Site, which dealership, company, firm or organization shall have completed and submitted a RichDealers® Success Commitment & Authorization Form and shall have been accepted as a member of the RichDealers® Institute.
This License Agreement (the “Agreement”) is entered into as of the latest day signed by the parties below, if in hard copy, OR as of the date that an employee, officer, director, affiliate, contractor, agent, or representative of Licensee clicks through the Site signifying Licensee’s acceptance of this License Agreement, whichever is earlier (the “Effective Date”). To the extent that there is any discrepancy or difference between a hard copy of this License Agreement and an online version of this License Agreement, then the online version of this License Agreement that Licensee or any of Licensee’s employees, officers, directors, affiliates, contractors, agents or representatives last clicked through, and thereby agreed to, shall govern.
WHEREAS Licensee has completed and submitted a RichDealers® Success Commitment & Authorization Form and/or has received one or more packages containing marketing and advertising materials made available by Licensor concerning the relationship between Licensor and Licensee and Licensee’s utilization, from time to time, of the ideas, trade secrets, know how, copyrighted materials and other intellectual property that may be made available, from time to time, by Licensor to Licensee (collectively the “Creative Packages”); and
WHEREAS Licensor has developed, continues to develop, and owns the rights in and to: (1) the trademarks “For the People”; “Nicer, Newer”; “Everyone Deserves to Drive a Nicer Newer Car”; and “Car Buyers Bill of Rights”, for use in connection with automobile dealerships, vehicle repair and maintenance services, and/or financing services, and any other trademark(s), trade name(s) or service mark(s) that Licensor, solely by written notice from Licensor specifically referencing this Agreement, makes subject to the terms and conditions hereof, (collectively the “Marks”); and (2) copyrights and know-how in and to advertisements and related creative materials, and media placement and purchase methodologies, all as part of the Creative Packages; and Licensor also owns and operates a consulting, marketing, advertising, and information business for automobile dealers known as “RichDealers® Institute”; and
WHEREAS Licensee engages and has, for a substantial time prior to entering into this Agreement, engaged in the automobile dealership business, and Licensee is also a member in good standing of the “RichDealers® Institute,” and Licensee desires to use the Creative Packages and the Marks;
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is acknowledged and agreed to by the parties hereto, the parties hereby agree as follows:
- In addition to Licensee’s initial agreement to be bound by the terms and conditions of this Agreement at the time of the execution of the Rich Dealers Success Commitment & Authorization Form, each time Licensee or its employees, officers, directors, affiliates, contractors, agents or representatives opens any Creative Package or any package containing marketing and advertising materials made available by Licensor, Licensee hereby renews its agreement and intent to be bound by the then current terms and conditions contained below.
- Licensee acknowledges that this Agreement contains, among other things, provisions concerning VENUE, CHOICE OF LAW, LIMITATIONS OF LIABILITY, LIMITATIONS OF WARRANTIES, NON-COMPETITION, NON-SOLICITATION, AND WAIVER OF JURY TRIAL.
- License to Marks and Creative Packages.
1.1 License Grant with Limited Exclusivity. On the terms and conditions set forth herein as of the Effective Date and for the Term (as defined in section 2), Licensor hereby grants to Licensee a non-transferable license to: (A) use the Marks and the Creative Packages solely within the Exclusive Territory (as defined on the Success Commitment & Authorization Form) for, and directly in connection with, securing customer prospects for Licensee’s automobile dealership doing business in the Exclusive Territory; and (B) to make derivative works of the Creative Packages (the “Derivative Works”) only by adding information specific to Licensee’s business operations or otherwise modifying the Creative Packages to meet and comply with all of the legal, regulatory, contractual and other requirements and obligations applicable to Licensee and its business and advertising operations; and (C) to copy and make reproductions of the Marks and the Creative Packages for use solely in connection with the activities described in (A) above; provided that: (1) any third party engaged to make any copy or reproduction or otherwise utilize any Marks or Creative Packages for the benefit of Licensee (a “Licensee Vendor”) shall be advised, in writing, by Licensee that the Marks and the Creative Packages and the copyrights and other intellectual property therein are the sole property of Licensor; and (2) Licensee shall notify Licensor, in writing, of the name, contact information and dates of utilization of each Licensee Vendor no later than the date Licensee first engages such Licensee Vendor concerning any of the Marks or the Creative Packages; ((A), (B), and (C) and subparts thereof are defined as the “Licensed Rights”).
Licensor shall not grant any third party the right to exercise the Licensed Rights in the Exclusive Territory during the Term. Licensee shall be responsible for and timely pay all costs incurred in connection with the exercise of the Licensed Rights. Licensee acknowledges and agrees that no trademark, trade name, or service mark, other than the Marks, is or shall be licensed to Licensee hereunder. Licensee shall exercise the Licensed Rights in good faith and in accordance with Licensor’s instructions and standards as to use of the Licensed Rights, in a manner that will not damage the goodwill or reputation of Licensor or the Licensed Rights and so as to maximize the value of and goodwill associated with the Marks and the Creative Packages and not to damage or otherwise negatively affect the value of the Marks or the Creative Packages.
1.2 Grant Back. Licensee hereby assigns to Licensor (at no cost to Licensor) all right, title, and interest in and to Derivative Works and all intellectual property arising from or out of the exercise of the Licensed Rights, and Licensee shall do all acts necessary to ensure that the title in and to such Derivative Works and intellectual property is assigned to Licensor.
1.3 No Requirement to Exercise Licensed Rights. LICENSEE SHALL HAVE NO OBLIGATION WHATSOEVER TO EXERCISE ALL OR ANY PART OF THE LICENSED RIGHTS AND SHALL BE SOLELY RESPONSIBLE FOR DETERMINING IF, WHEN AND WHETHER TO DO SO, AND THE EXTENT OF DOING SO.
1.4 Limitations. The Licensed Rights do not include the grant to Licensee of any right to engage in any other activity relating to any other intellectual property of Licensor or concerning any other trademarks, service marks, copyrights, trade dress, trade names, or materials of Licensor, including, without limitation: (A) modification, amendment or enhancement of the Marks or the Creative Packages; or (B) the right to adopt or utilize any mark, designation, domain name, or trade name that is deceptively similar to, or would cause confusion with, the Marks or any other trademark, service mark, or trade name of Licensor. Licensee acknowledges the Licensor has not made, and will not make, any determination or representation or warranty that the use of the Marks or the Creative Packages, in whole or in part, complies with or is permissible by Licensee and LICENSEE IS SOLELY RESPONSIBLE FOR DETERMINING THAT THE EXERCISE OF THE LICENSED RIGHTS, IN WHOLE OR IN PART, AND OPERATION OF LICENSEE’S BUSINESS ARE IN FULL COMPLIANCE WITH THE APPLICABLE LEGAL, REGULATORY, CONTRACTUAL AND OTHER REQUIREMENTS APPLICABLE TO LICENSEE.
1.5 Licensor Property. Licensee agrees and acknowledges that the Marks and the Creative Packages, as well as any trademark, service mark, copyright, trade name, and/or domain name owned by Licensor (collectively “Licensor’s Intellectual Property”), shall at all times remain the sole and exclusive property of Licensor and that the use of the Marks shall inure to the benefit of Licensor, and Licensee waives and relinquishes any and all interests or rights Licensee may have or hereafter acquire in Licensor’s Intellectual Property in favor of Licensor. Licensee agrees that it will not infringe upon the Marks, nor will Licensee incorporate the Marks or any portion thereof into Licensee’s trademarks, service marks, company name, Internet address, domain names, or any other similar designations. Neither Licensee nor any of its employees or affiliated companies shall, during the Term of this Agreement or at any time thereafter, apply for or seek registration of any words, trademarks, service marks, trade names, or logos which are the same as or confusingly similar to the Marks or any other trademark owned by Licensor as of the date hereof or which may in any manner be used in unfair competition therewith. Licensee further undertakes and agrees that it will not at any time do, or so far as it is able, allow to be done, any act or thing which may in any way diminish, dilute or adversely affect the reputation or value of the Marks.
1.6 Quality. Licensee recognizes the importance to both parties of high standards of quality in relation to the provision of services and sale of products in any way connected with the Marks and the Creative Packages under this Agreement. Accordingly, Licensee agrees: (A) to cooperate with Licensor to establish to Licensor’s reasonable satisfaction that Licensee generally operates, in its regular business operations, in a manner that will not damage the reputation or goodwill associated with the Marks or the Creative Packages; and (B) to adhere to all guidelines and standards that Licensor may provide from time to time in connection with the use of the Marks and/or Creative Packages; and (C) to submit to Licensor, upon Licensor’s written request, representative samples of Licensee’s advertising and advertising materials in connection with the Marks over the preceding twelve (12) months for Licensor’s examination and approval. Licensee shall not use, distribute, publish, or disseminate any materials, advertising, advertising materials, marketing materials, or promotional materials that bear any of the Marks that Licensor may have disapproved from time to time.
1.7 Infringement and Indemnification. Licensee shall promptly notify Licensor of all infringements, misuses or unauthorized uses of any of the Marks, and of any proceeding threatened or commenced relating to any of the Marks, of which it becomes aware. If Licensor, after consultation with Licensee but in Licensor’s sole discretion, should decide to institute a legal action in its own name, it may do so at its own expense. Licensor shall have the final decision with regard to the conduct of all such legal actions and shall retain all settlements, recoveries and judgments arising therefrom, after reimbursement to Licensee for out-of-pocket expenses, if any, incurred by Licensee in connection with such legal action taken at Licensor’s specific request or with Licensor’s written approval. Licensee shall, at Licensee’s expense (except as aforesaid), cooperate with Licensor in the conduct of any such proceeding and assign, without compensation, any claims Licensee may have.
With respect to claims against one or both parties by third parties of unfair competition, product liability, negligence, proprietary right infringement (including the infringement of any third party rights in trademarks other than the Marks, copyright, patent or trade secret), or any other causes of action insofar as such claim, demand or action is attributable to the acts of Licensee in connection with its performance under this Agreement or claims arising out of Licensee’s violation of its obligations under this Agreement, Licensee shall (A) indemnify Licensor against any liability, cost, loss, or expense (including reasonable attorneys’ fees) of any kind; and (B) hold harmless Licensor and save it harmless from any liability, cost, loss, or expense of any kind.
1.8 Licensee Fee. In consideration of the Licensed Rights granted herein, Licensee agrees to pay Licensor the monthly license fee set forth in the Success Commitment and Authorization Form. Licensee fee payments made hereunder shall be made on the date when payment is due to Licensor pursuant to the Success Commitment and Authorization Form or pursuant to Licensor’s written instructions. Licensee shall in no event, without Licensor’s prior written authorization, be entitled to set off any amounts it may claim are owed to it by Licensor or any affiliated company, for any reason whatsoever, against any amounts owed to Licensor pursuant to this Section 1.8. All late payments shall bear interest at a rate of two (2%) percent per month or, if such rate should exceed any applicable permissible legal interest rate, then at the highest legally permissible rate. The operation of this Section is without prejudice to any other right or remedy Licensor may have under law or pursuant to the terms of this Agreement.
- Term and Termination.
The “Term” of this Agreement shall commence on the Effective Date indicated on the Success Commitment & Authorization Form and continue until the earlier of the time that: (A) Licensee is no longer a member of Licensor’s “RichDealers® Institute” program (the “Program”), for any cause or reason whatsoever; or (B) Licensee terminates this Agreement upon thirty (30) days written notice to Licensor; or (C) ninety (90) days after written notice from Licensor that it is terminating the Program; or (D) Licensor terminates this Agreement upon thirty (30) days written notice to Licensee. In addition, Licensor may terminate Licensee immediately (i) upon written notice for cause, and/or (ii) upon written notice if Licensee has failed to pay any monthly license fee pursuant to Section 1.8 hereof within thirty (30) days of the due date for such payment. In the event of Licensee’s default or breach of this Agreement for any reason whatsoever, including but not limited to Licensee’s failure to pay any monthly license fee pursuant to Section 1.8 hereof within thirty (30) day of the due date for such payment, Licensee shall not be entitled to any cure period, and Licensor’s written notice of termination shall be effective immediately. Upon a termination of this Agreement with or without cause or for any reason whatsoever, Licensee shall immediately cease exercising the Licensed Rights, including, without limitation, the utilization of the Marks; and refrain from expressing (or causing others to express) to any third party any derogatory or negative opinions or statements concerning Licensor, its business operations, products and services, officers, directors, employees, the Marks, and the Creative Packages.
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREINBELOW, LICENSOR MAKES NO WARRANTIES OR REPRESENTATIONS WHATSOEVER, INCLUDING, BUT NOT LIMITED TO: ANY WARRANTY OF MERCHANTABILITY; ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; ANY WARRANTY CONCERNING INTELLECTUAL PROPERTY INFRINGEMENT; OR ANY WARRANTY THAT ANY OF THE MARKS OR CREATIVE PACKAGES CAN BE LAWFULLY UTILIZED BY LICENSEE IN ITS BUSINESS OPERATIONS. LICENSOR WARRANTS ONLY THAT THE CREATIVE PACKAGES WERE INDEPENDENTLY CREATED AND DEVELOPED BY OR FOR LICENSOR.
- Limitation of Liability.
EXCEPT FOR INFRINGEMENT OF LICENSOR’S INTELLECTUAL PROPERTY, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF BUSINESS OR OTHER ECONOMIC DAMAGE, OR INJURY TO PROPERTY. EACH PARTY ACKNOWLEDGES THAT THIS SECTION REFLECTS AN INFORMED, VOLUNTARY ALLOCATION OF THE RISKS (KNOWN AND UNKNOWN) THAT MAY EXIST IN CONNECTION WITH THIS AGREEMENT, THAT SUCH VOLUNTARY RISK ALLOCATION WAS A MATERIAL PART OF THE BARGAIN BETWEEN THE PARTIES, AND THAT THE ECONOMIC AND OTHER TERMS OF THIS AGREEMENT WERE NEGOTIATED AND AGREED TO BY THE PARTIES IN RELIANCE ON SUCH VOLUNTARY RISK ALLOCATION.
- Restrictive Covenant.
Licensee and each person participating in the RichDealers® Institute on behalf of Licensee (collectively being the “Restricted Parties”) hereby each agree that none of them shall: (A) ever: (1) disclose or allow any person or entity to have access to any Confidential Information (as defined below); or (2) make any use, commercial or otherwise, of any Confidential Information, except solely during the Term of this Agreement in connection with the exercise of the Licensed Rights or the operation of Licensee’s business; and (B) for the Term of this Agreement and a period of two (2) years after the termination of this Agreement, by whatever means and without regard to cause, not engage in, carry on, otherwise participate in, or have any interest in any group, organization, facility, venture or other entity or arrangement which engages in or carries on the provision of marketing and advertising related services, including but not necessarily limited to consulting, training, coaching, media buying, creation and licensing of advertising and/or promotional material, and seminars for car dealers (the “Business”) or any business activity substantially similar, in whole or in part, to the Business, whether as an employee, owner, sole proprietor, shareholder, independent contractor, partner, member, agent, officer, director or otherwise, in the United States; and (C) solicit, hire, compensate or engage as an employee, agent, contractor, shareholder, member, joint venturer, or consultant, whether or not for consideration, any of Licensor’s employees, subcontractors, or former employees; and (D) solicit, render services to, or accept business from any customer or former customer of Licensor or any of their subsidiary or parent entities or affiliates for any business activity. The Restricted Parties acknowledge that the duration, activities restricted and geographic scope of the provisions set forth in this Section 5 are reasonable, and are reasonably necessary to protect the Business and Licensor. If any court determines that the duration, activities restricted or geographic scope, or any combination thereof, are unreasonable and that such provision is to that extent unenforceable, the Restricted Parties agree that the provision shall remain in full force and effect for the greatest time period, with respect to the broadest type of activities described, and in the greatest geographic area that would not render it unenforceable. The Restricted Parties further acknowledge and agree that this Agreement is being entered into by the Restricted Parties in order to induce Licensor to enter into this Agreement and to provide Licensor’s Confidential Information to Licensee and to each person participating in the RichDealers® Institute on behalf of Licensee. The Restricted Parties acknowledge that no additional consideration beyond participation in the RichDealers® Institute and Licensor’s provision of its Confidential Information to Licensee and to each individual participating on behalf of Licensee shall be necessary and that the obligations of Licensor provided herein are full and adequate consideration for the restrictions in this Section 5. “Confidential Information” means the proprietary and non-public information of Licensor, including but not limited to Licensor’s know-how and trade secrets disclosed in connection with the RichDealers® Institute programs and materials.
- Entire Agreement, Waiver and Modification, Captions and Partial Invalidity.
This Agreement together with any Related Agreements collectively set forth the entire understanding of the parties concerning the subject matter of this Agreement and the parties’ working relationship and incorporates all prior negotiations and understandings. There are no covenants, promises, agreements, conditions or understandings, either oral or written, between the parties hereto relating to the subject matter of this Agreement other than those set forth herein and in the Related Agreements. No purported waiver by any party of any default by another party of any term or provision contained herein shall be deemed to be a waiver of such term or provision unless the waiver is in writing and signed by the waiving party. No such waiver shall in any event be deemed a waiver of any subsequent default under the same or any other term or provision contained herein. Except as set forth below, no alteration, amendment, change or addition to this Agreement shall be binding upon any party unless in writing and signed by the party to be charged; provided that the foregoing shall not be deemed to apply to the terms and conditions of the Program. The captions and paragraph letters appearing in this Agreement are inserted only as a matter of convenience; they do not define, limit, construe or describe the scope or intent of the provisions of this Agreement. If any term or provision of this Agreement, or the application thereof to any person or circumstance, shall be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid, shall both be unaffected thereby and each term or provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law. The Restricted Parties acknowledge that breach by any of them of the terms and conditions of Section 5 of this Agreement will result in irreparable harm to Licensor for which compensatory damages are an inadequate remedy. The Restricted Parties therefore agree that in the event of such breach, Licensor shall be entitled to institute and prosecute proceedings in any court of competent jurisdiction, either in law or equity, without the posting of any bond or security, to enjoin such breach and/or specifically to enforce the performance of this Agreement. This remedy is in addition to any other remedy available to Licensor, by judicial proceedings or otherwise, for breach of any provision of this Agreement.
Any consent, waiver, notice, demand, request or other instrument required or permitted to be given under this Agreement other than day-to-day business communication shall be in writing and deemed to have been properly given upon: (A) actual delivery if hand delivered; (B) the next business day after transmission by overnight express courier service (e.g., Federal Express), freight prepaid to the address for such party set forth herein; or (C) three (3) business days after being sent by certified United States mail, return receipt requested, postage prepaid, to the address for such party set forth herein or the last known address of such party. Either party may change its address for notices in the manner set forth herein.
- Applicable Law, Jurisdiction, Venue and Forum.
This Agreement shall be construed and governed under and by the laws of the State of Florida for contracts entered and to be performed within the State of Florida. The parties agree that, except for third party actions, exclusive venue for any legal action authorized hereunder shall be in Orange County, Florida, and jurisdiction shall be vested in the Circuit Court of the Ninth Judicial Circuit in and for Orange County, Florida, or the United States District Court for the Middle District of Florida, Orlando Division, as the case may be. Both parties agree not to contest the venue set forth herein and not to contest the exercise of personal jurisdiction over the parties by any of the foregoing courts. The parties hereby waive all rights concerning the exercise of personal jurisdiction of them by the foregoing courts.
- Waiver of Jury Trial.
THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY WAIVE ALL OF THEIR INDIVIDUAL AND COLLECTIVE RIGHTS TO A TRIAL BY JURY ON ANY AND ALL ISSUES PERTAINING TO OR ARISING OUT OF THIS AGREEMENT, THE MARKS AND THE CREATIVE PACKAGES.
- Attorney’s Fees.
In the event any litigation, mediation, arbitration, or controversy between the parties hereto arises out of or relates to any of Sections 1.1, 1.2, 1.4, 1.5, 1.6, 3, 4, 5, 8 or 9 of this Agreement, the prevailing party shall be entitled to recover from the other all of its reasonable attorneys’ fees, expenses and suit costs, including those associated with appellate and post-judgment collection proceedings.
Sections 1.4, 1.5, 1.6, and 3 through 10 shall survive the termination, cancellation or expiration of this Agreement by whatever means for whatever reason.