Trademark License Agreement

TRADEMARK LICENSE CLICKTHROUGH AGREEMENT

This Trademark License Agreement (this “Agreement”) is made by and between you, the party who clicks through this Agreement (“Licensee”), and The Cleveland Clinic Foundation, an Ohio not-for-profit Corporation, doing business at 9500 Euclid Avenue, City of Cleveland, County of Cuyahoga, State of Ohio, U.S.A. (“CCF”). This Agreement is effective upon the date that Licensee clicks through this Agreement and accept these terms.

WHEREAS, CCF and/or its affiliates use and are/is the owner of the trademarks listed at www.clevelandclinic.org/brandcenter, (“CCF Marks”) and incorporated herein by reference, and Licensee desires to acquire a license from CCF to use such CCF Marks strictly for the purposes defined in this Agreement, and;

WHEREAS, CCF desires to grant Licensee such license to use the CCF Marks, subject to the terms and conditions as set forth herein.

NOW, THEREFORE, for good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows:

1.   Grant of License.
Subject to all of the terms and conditions of this Agreement, CCF hereby grants to Licensee a freely revocable, non-transferable, non-assignable, non-exclusive limited right to use CCF’s Marks on Licensee’s website for advertising the CCF name and brand, as well as in advertising and marketing materials subject to the restrictions of this Agreement. No other right or license is granted by CCF either express or implied, with respect to any other logo or CCF Mark. Licensee shall not use the Cleveland Clinic Mark in any manner not specifically authorized by this Agreement. Licensee agrees that CCF Marks, together with the goodwill of the business symbolized thereby, are the sole and exclusive properties of CCF. The use by Licensee of the CCF Marks shall inure to the benefit of CCF. Licensee further agrees that it has no rights in the CCF Marks except as expressly authorized in this Agreement.

2.   Ownership of the CCF Marks.
Licensee agrees that the CCF Marks, together with the goodwill of the business symbolized thereby, are the sole and exclusive properties of CCF. The use by Licensee of the CCF Marks shall inure to the benefit of CCF. Licensee further agrees that it has no rights in the CCF Marks except as expressly authorized in this Agreement.

3.   Use of the CCF Marks.
Licensee shall use the CCF Marks in the exact form as demonstrated at www.clevelandclinic.org/brandcenter, or, as sent to Licensee by an authorized CCF employee via electronic means. No other use of the CCF Marks is authorized under this Agreement. Licensee shall strictly abide by the CCF Brand Guidelines, posted as of February 22, 2006 (“Guidelines”) attached herein by reference and made a part of this Agreement. In the event that Licensee uses subcontractors in the performance of this Agreement, Licensee shall ensure that such subcontractors abide by the Guidelines. Licensee shall assume liability for such subcontractors.

4.   Indemnification.
Licensee shall release, hold harmless, indemnify, defend any action at law or equity against CCF, all liabilities, claims, suits, actions, damages, losses, costs and expenses including reasonable attorneys’ fees, based upon Licensee’s (i) acts and omissions, including but not limited to, misappropriations of the CCF Marks, misuse of CCF Marks or uses that are confusingly similar to another party’s marks, and (ii) any breaches of this Agreement. If any settlement requires an affirmative obligation of, results in any ongoing liability to, or prejudices or detrimentally impacts CCF in any way, then such settlement shall require CCF’s prior written consent. CCF may elect to have its own counsel in attendance at all proceedings and substantive negotiations relating to such claims. If these options do not adequately protect CCF’s interests, in CCF’s sole discretion, CCF may elect to terminate this Agreement and Licensee shall provide a pro rata refund for all fees paid in advance.

5.   Warranty.
CCF warrants that it has the right, title and interest in and to the CCF Marks. EXCEPT AS SET FORTH IN THIS SECTION, CCF MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, UNDER THIS AGREEMENT, INCLUDING WARRANTIES OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE OR USE, OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR TITLE. FURTHER, CCF DISCLAIMS ANY WARRANTY THAT MAY ARISE OUT OF ANY COURSE OF DEALING OR COURSE OF PERFORMANCE.

6.   Limitation of Liability.
CCF SHALL HAVE ANY LIABILITY IN REGARD TO INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EITHER PARTY’S TOTAL LIABILITY IN CONNECTION WITH OR UNDER THIS AGREEMENT (WHETHER UNDER THE THEORIES OF BREACH OF CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER THEORY OF LAW) EXCEED $1,000.00.

7.   Independent Contractor.
Both parties hereto are independent contractors and such relationship will not establish any partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent. Each party understands and acknowledges that no other payments, payroll employment, disability and unemployment taxes or fringe benefits of any kind will be made in compensation for Services rendered.

8.   Assignment.
This License or any rights hereunder may not be assigned in whole or in part by Licensee without the prior written consent of CCF.

9.   Term and Termination.
The term of this Agreement shall be for a period of two (2) years from the Effective Date. Thereafter, this Agreement shall automatically renew for one year terms unless terminated within sixty days of the end of the current term. CCF may terminate this Agreement at any time. Upon termination for any reason, Licensee will cease all use of the CCF Marks within five (5) days following termination, except that the CCF Marks may continue to appear on any previously produced items, including, without limitation, advertising and marketing material until phased out. Licensee shall phase out and cease using such materials within a reasonable time.

10.   No Endorsements.
By entering into this Agreement and using the CCF Mark, CCF shall not be deemed to directly or indirectly endorse any Licensee product or service, whether directly or indirectly related to this Agreement. Licensee shall not, in any way, state or imply that this Agreement is an endorsement of any of Licensee’s products and services. Furthermore, All CCF Marks must be clearly segregated from any advertising on Licensee sites or in any other such use so that a reasonable person knows or should know that the CCF Marks are not related directly or indirectly to any specific advertisements, products or services. Licensee agrees to use its best efforts to ensure that any advertisements placed on the Licensee sites or in any other such use are not displayed in a manner that would cause third parties to infer that CCF is associated with the advertisement, products or services.

11.   Governing Law.
This Agreement shall be governed, construed and enforced in accordance with the laws of the State of Ohio, without giving effect to any principles of conflicts of laws. Any action shall be brought and be venued in the United States District Court for the Northern District of Ohio, Eastern Division, or any state court in Ohio if federal court jurisdiction is unavailable. Both parties consent to such jurisdiction and venue.

12.   Use of Name.
Except as required for purposes of performing its obligations under this Agreement, Licensee shall not use the name, CCF Marks, likeness, trademarks, image or other intellectual property of CCF for any advertising, marketing, endorsement or any other purposes without the specific prior written consent of an authorized representative of CCF as to each such use.

13.   Bankruptcy.
This agreement is personal to Licensee. In the event that Licensee files a petition in bankruptcy, or is adjudicated bankrupt, or makes an assignment for the benefit of creditors, or files a petition, or otherwise seeks relief under or pursuant to any bankruptcy, insolvency, or reorganization statute or proceeding, or if it discontinues its business, or if a custodian, receiver, or trustee were appointed for it or a substantial portion of its business or assets, neither this Agreement nor the license hereunder shall be assignable without the written consent of CCF.