Top Performer License and Use Agreement
LEGAL NOTICE. By accessing, viewing, downloading, or otherwise using the following webpages and any content contained therein (hereinafter, the “Content”), you are agreeing to be bound by the following terms and conditions (“Terms”) of this License and Use Agreement (“Agreement”). Please read the following Terms carefully. Before accessing the Content, you will be prompted to select “I Agree,” or “I DO NOT Agree.” By selecting “I DO NOT Agree,” you will not be able to access or use the Content. By selecting “I Agree,” you agree to the Terms of this Agreement and this Agreement becomes effective as of the date of execution between you as Licensee and 60 Decibels as Licensor. “You” and “Licensee” refer to all individuals or entities accessing or using the Content for any reason under the Terms of this Agreement. “We,” “us,” “our,” and “Licensor” refer to 60 Decibels and any related affiliates. Each of Licensee and Licensor may be referred to as a “Party,” or, collectively the “Parties.”
WHEREAS, Licensor is the owner of the Licensed Mark (as defined below), including any Trademarks and Copyrights contained therein, and has the right to license the Licensed Mark under those rights; and, Licensor having issued to Licensee a merit-based award using the same, Licensee wishes to obtain, and Licensor is willing to grant to Licensee, a license to use the Licensed Mark for the uses and purposes described herein, on the Terms set out in this Agreement,
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
Subject to the Terms of this Agreement, Licensor hereby grants to Licensee during the Term (as defined in Section 3) a non-exclusive, worldwide, perpetual (except in the case of Termination in accordance with Section 3(a)), non-transferable, non-sublicensable license solely to use, display, and reproduce the Licensed Mark in connection with the promotion and advertising of Licensee’s goods and services (the “License”). The “Licensed Mark” is the stylized badge of the Licensor as displayed on the following webpage, containing: (i) the name of Licensor, (ii) a description of the merit-based award Licensor issued to Licensee, and (iii) the year in which the Licensee received the award. Licensee shall ensure that its use of the Licensed Mark is marked with the appropriate Trademark and Copyright notices specified by Licensor in a reasonably prominent position.
(a) PURPOSE. The purpose of this License grant is to allow Licensee to designate that it is the recipient of the merit-based award awarded by Licensor and so described in the Licensed Mark. Licensee may only use the Licensed Mark consistent with this purpose.
(b) SUBLICENSING. Licensee may not grant sublicenses to the Licensed Mark.
(c) VALIDITY; LICENSE AND USE FEE. This License is validly granted to Licensee only after Licensor has received from Licensee payment of the one-time License and Use Fee. The License and Use Fee for Licensed Marks issued in the year 2023 shall be $0 USD.
(d) NO OBLIGATION. Licensee’s use of the Licensed Mark is voluntary. Nothing contained by the grant of this License or otherwise in this Agreement shall obligate Licensee to use the Licensed Mark. Intermittent use or discontinued use of the Licensed Mark shall not constitute implied termination of this Agreement nor shall it prohibit Licensee from resuming use of the Licensed Mark after a period of non-use.
(e) NON-EXCLUSIVITY. The License granted by this Agreement is non-exclusive. For clarity, nothing in this Agreement shall preclude Licensor from granting the same or similar license to whomever it shall choose. Similarly, the Licensee’s acceptance of this License grant and use of the Licensed Mark shall not preclude Licensee from executing additional agreements for licensed marks similar in kind to or used for a similar purpose as the Licensed Mark.
2. RESTRICTIONS AND RETAINED RIGHTS.
Licensor reserves all rights not expressly granted to Licensee. Except for the License explicitly granted in Section 1, no other license or rights are granted to Licensee by implication, estoppel, or otherwise, other than as expressly granted by Licensor. No rights granted by 17 U.S.C. 106 et seq., except the rights to reproduce (17 U.S.C. 106(1)) and to display (17 U.S.C. 106(5)), are contained in the License granted in Section 1 to Licensee. Licensee shall not use the Licensed Mark in any way that might imply that Licensee is the originator of the Licensed Mark. Licensee shall not translate, edit, alter, modify, or create any derivative works from the Licensed Mark. Licensee acknowledges and agrees that, as between the Parties, (i) Licensor owns and will retain all right, title, and interest in and to the Licensed Mark; and (ii) all use by Licensee or any sub-licensee of the Licensed Mark under this Agreement, and all goodwill accruing therefrom, will inure solely to the benefit of Licensor. Licensee shall not dispute or challenge, or assist any person or entity in disputing or challenging, Licensor’s rights in and to the Licensed Mark or the Licensed Mark’s validity. Licensor has the sole right, in it is discretion and at its expense, to file, prosecute, and maintain all applications and registrations for the Licensed Mark. Licensee shall promptly notify Licensor in writing of any actual, suspected, or threatened infringement, dilution, or other conflicting use of the Licensed Mark by any third party, including by any of Licensee’s sub-licensees, of which it becomes aware. Licensor has the sole right, in its discretion, to bring any action or proceeding with respect to any such infringement, dilution, or other conflict and to control the conduct of, and retain any monetary recovery resulting from, any such action or proceeding (including any settlement). Licensee shall provide Licensor with all assistance that Licensor may reasonably request, at Licensor’s expense, in connection with any such action or proceeding.
(a) INSPECTIONS AND APPROVALS. In order for Licensor to ensure Licensee’s compliance with the License granted by Section 1 and maintain the integrity of the Licensed Mark, and the uses of any of Licensor’s Trademarks and Copyrighted materials contained therein, Licensor retains the right to: (i) inspect any and all of Licensee’s uses of the Licensed Mark, and (ii) issue to Licensee notices of improper use of the Licensed Mark or required modifications to Licensee’s use of the Licensed Mark. Improper use of the Licensed Mark beyond the fifteen (15) day cure period set forth in Section 3(a) shall constitute a breach of this Agreement, and, as appropriate, infringement of Licensor’s intellectual property rights, whether Copyright, Trademark, both, or otherwise.
(b) ASSIGNMENT. Licensee may not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Licensor’s prior written consent.
(c) NO FALSE OR MISLEADING CLAIMS. Licensee may not use the Licensed Mark in any way that may be understood by the public as being or making claims that are deceptive, unsubstantiated, or misleading as to Licensee, its products or services, its competitors, or Licensor’s endorsement of the Licensee. As set forth in Section 5(a), Licensee may not make any claims as to the truth or absoluteness of any claims contained in the Licensed Mark. Licensee shall not use the Licensed Mark unless it is accompanied by the disclaimer provided to Licensee in conjunction with the Licensed Mark.
3. TERM; TERMINATION.
This Agreement is effective as of the date of execution, which execution shall be completed at the time Licensor successfully submits: (i) record of its agreement to the Terms of this Agreement by selecting “I Agree” below, and (ii) payment of the License and Use Fee set forth in Section 1(c). This Agreement will continue in effect unless and until terminated by a Party pursuant to Section 3(a) below.
(a) TERMINATION. Licensor may terminate this Agreement at any time without cause and without incurring any additional obligation, liability, or penalty, by providing at least thirty (30) days’ prior written notice to Licensee, except that if Licensor terminates this Agreement without cause less than one (1) year after the date of execution of this Agreement, Licensor shall return to Licensee any License and Use Fee paid by Licensee. Licensor may terminate this Agreement on written notice to Licensee if Licensee breaches this Agreement and fails to cure such breach within fifteen (15) days after receiving written notice of such breach from Licensor. Licensee may terminate this Agreement on written notice to Licensor if Licensor materially breaches this Agreement and fails to cure such breach within sixty (60) days after receiving written notice of such breach from the non-breaching Party.
(b) EFFECT OF TERMINATION. Upon termination of this Agreement: (i) all rights and licenses granted under this Agreement will automatically and immediately terminate; (iI) Licensee shall immediately cease all use of the Licensed Mark and shall so confirm in writing to Licensor. The Parties’ rights and obligations set forth in Sections 4 (Confidentiality), 6 (Limitation of Liability), 3(b) (Effect of Termination), and 7 (General), and any right, obligation, or required performance of the Parties under this Agreement that, by its express terms or nature and context is intended to survive termination of this Agreement, will survive any such termination.
Each Party acknowledges that in connection with this Agreement it may gain access to information that is treated as confidential by the other Party, including the Terms of this Agreement and information about the other Party’s business operations and strategies, goods and services, customers, pricing, marketing, and other sensitive and proprietary information (“Confidential Information”). Each Party shall protect such Confidential Information in the same manner as it protects its own Confidential Information of like kind, and shall not disclose or use such Confidential Information, except to the extent reasonably required under the Terms of this Agreement; provided, however, that these provisions shall not apply to: (i) information previously known to the receiving Party; (ii) information which is or has become available to the public in general through no fault of or breach of an agreement by the receiving Party; (iii) information received from a third party not subject to any confidentiality obligations; or (iv) information which is independently developed by the receiving Party. To the extent that the receiving Party is required to disclose Confidential Information to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, the Party making the disclosure pursuant to the order may do so only once it has first given written notice to the other Party and made a reasonable effort to obtain a protective order and otherwise limit the extent of the disclosure.
5. REPRESENTATIONS AND WARRANTIES.
Each Party represents and warrants: (i) it has the full power and authority to enter into this Agreement; (ii) its execution and performance of this Agreement have been duly authorized by all necessary corporate action on behalf of that Party; (iii) the person agreeing to the terms of this Agreement, if on behalf of an entity, has the full authority to do so; and (iv) its execution of this Agreement does not and shall not conflict with or result in a breach of the terms, conditions or provisions of, or constitute a default under, any agreement to which it is or may become party or instrument by which it is or may become bound. Licensor represents and warrants that: (i) it is the sole and exclusive owner of all right, title, and interest in and to the Licensed Mark, (ii) it is the record owner of any and all Trademarks, Copyrights, or other intellectual property rights contained therein, and (iii) it has not granted any conflicting licenses to the Licensed Mark, or any portion of the intellectual property contained therein, to any other third party. To Licensor’s knowledge, Licensee’s exercise of the rights and License granted under this Agreement will not infringe or otherwise conflict with any third party’s rights. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 5, LICENSOR EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, IN CONNECTION WITH THIS AGREEMENT AND THE LICENSED MARK, INCLUDING ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, LICENSOR MAKES NO REPRESENTATION OR WARRANTY THAT ANY LICENSED MARK IS VALID OR THAT THE EXERCISE BY LICENSEE OF ANY RIGHTS GRANTED UNDER THIS AGREEMENT WILL NOT INFRINGE THE RIGHTS OF ANY PERSON.
6. DATA SET DISCLAIMER.
Any and all claims made by Licensor with respect to Licensee as displayed or otherwise contained in the Licensed Mark are made based on the information and limited data set collected by Licensor. Licensor has not intentionally or willfully made any deceptive, unsubstantiated, or misleading claims through the Licensed Mark or its use in connection with Licensee and Licensee accepts the License understanding the same. Licensor hereby expressly disclaims any and all liability for any uses of the Licensed Mark by the Licensee in contradiction of Section 2(c) of this Agreement or otherwise not expressly permitted herein that may be understood by the public as being or making claims that are deceptive, unsubstantiated, or misleading including, but not limited to, the truth or absoluteness of any claims contained in the Licensed Mark or its use in connection with Licensee or its products and services.
7. LIMITATION OF LIABILITY.
EXCEPT FOR A PARTY’S LIABILITY FOR BREACH OF CONFIDENTIALITY UNDER SECTION 4 OR A PARTY’S GROSSLY NEGLIGENT ACTS OR OMISSIONS OR WILLFUL MISCONDUCT, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES RELATING TO THIS AGREEMENT OR USE OF THE LICENSED MARK HEREUNDER, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(a) ENTIRE AGREEMENT. This Agreement, including and together with any related exhibits, constitutes the sole and entire agreement of Licensor and Licensee with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter.
(b) RELATIONSHIP. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement creates any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party has authority to contract for or bind the other Party in any manner whatsoever.
(c) NOTICES. All correspondence or notices required or permitted to be given under this Agreement must be in writing, in English, and addressed to the other Party at its “Appropriate Address.” The Appropriate Address for Licensor is: 228 Park Ave S, PMB 54413, New York, NY 10003-1502, firstname.lastname@example.org, Attention: Einar Pedersen, Director of Finance. The Appropriate Address for Licensee shall be the address on file with Licensor at the time of the execution of this Agreement, unless or until the Licensee so informs the Licensor of a change of address. Each Party shall deliver all notices by personal delivery, nationally recognized overnight courier (with all fees prepaid), facsimile or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a notice is effective only (i) upon receipt by the receiving Party and (ii) if the Party giving the notice has complied with the requirements of this Section. Such communications must be sent to the respective Parties at its Appropriate Address.
(d) NO THIRD-PARTY BENEFICIARIES. This Agreement solely benefits the Parties and their respective permitted successors and assigns, and nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
(e) AMENDMENT; WAIVER. No amendment to this Agreement will be effective unless it is in writing and signed by both Parties. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the waiving Party. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(f) SEVERABILITY. If any term or provision of this Agreement is found by any court of competent jurisdiction to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
(g) GOVERNING LAW. This Agreement, and all matters arising out of or relating to this Agreement, shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to any choice or conflict of laws provisions. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted exclusively in the federal or state courts in each case located in New York, and each party irrevocably submits to the exclusive jurisdiction of such courts in any legal suit, action, or proceeding.
(h) EQUITABLE RELIEF. Each Party acknowledges that a breach by the other Party of this Agreement may cause irreparable harm, for which an award of damages would not be adequate compensation and, in the event of such a breach or threatened breach, the non-breaching Party will be entitled to equitable relief, including in the form of a restraining order, orders for preliminary or permanent injunction, specific performance, and any other relief that may be available from any court. These remedies are not exclusive but are in addition to all other remedies available under this Agreement at law or in equity, subject to any express exclusions or limitations in this Agreement to the contrary.
(i) COUNTERPARTS. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
By selecting “I DO NOT Agree,” you will not be able to access the Content.
By selecting “I Agree,” you agree to the Terms of this License and Use Agreement.
If you have any questions regarding the Content or these Terms, you may contact us at: email@example.com.
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