License Agreement
THIS LICENSE AGREEMENT ("Agreement") is made and entered into by your named organization, as the Licensee, as of the date entered by you within this resource portal ("Effective Date"), with the Cuyahoga County Board of Health ("CCBH"), as the Licensor, (collectively, the "Parties," and each a "Party"), in view of the below:
RECITALS
A. WHEREAS, CCBH through its FEED OUR FUTURE LOCAL FOODS FOR GROWING MINDS® initiative, created and launched a proprietary HARVEST OF THE MONTH℠ program model, namely, a farm-to-school model that encourages local food procurement and promotes fruit and vegetable consumption among young students through specific seasonally/monthly themed educational HARVEST OF THE MONTH℠ materials, events, newsletters, recipes, recipe development, culinary training, student engagement activities such as classroom and cafeteria activations, related educational materials and promotional items, along with support for school gardening programs, among other items, all under its Feed Our Future/Harvest of the Month Model (collectively, the "Licensed Content"). CCBH, in connection with its HARVEST OF THE MONTH℠ program, develops and offers "kits" that bundle such program resources, including tailored educational materials, recipes, incentives or prizes, stickers, buttons, and other promotional items to further engage students. Such kits are all offered under the HARVEST OF THE MONTH℠ program and within the FEED OUR FUTURE® campaign initiative; and
B. WHEREAS, CCBH is the owner of several registered and unregistered trademarks and service marks that it uses and licenses in connection with the Licensed Content, which include such marks as detailed in Schedule 1 (the "CCBH Trademarks"). In addition to the CCBH Trademarks and all associated right, title and interests therewith, and all goodwill symbolized by the CCBH Trademarks, CCBH owns all copyright in its original content, text, graphics, photos, layouts, illustrations and the curated selection, coordination, and arrangement of monthly themes, features, recipes, and educational content embodied in the Licensed Content and program kits. (For clarity, "Licensed Content" is further defined in Section 5.); and
C. WHEREAS, CCBH has the sole and exclusive right to the use and exploitation of the CCBH Trademarks and the Licensed Content within its Feed Our Future/Harvest of the Month Model; and
D. WHEREAS, Licensee shares the goals of advancing a healthy, equitable, and sustainable regional food system, including farm-to-school initiatives.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants contained herein and for good and valuable consideration, the sufficiency and receipt of which is hereby acknowledged, the parties agree to a non-exclusive license under the following terms and conditions:
1. Grant of Rights. Licensor hereby grants to Licensee a non-exclusive, non-transferable (except under any potential sub-licensing agreement as expressly permitted and in a form approved by Licensor and be subordinate to this Agreement) right to use the CCBH Trademarks and Licensed Content solely in connection with its Feed Our Future/Harvest of the Month Model (the "Licensed Program"). Licensee hereby agrees to take Licensor's grant subject to any and all encumbrances that may exist on the CCBH Trademarks and Licensed Content. Licensee agrees to comply with applicable laws and not infringe on rights of others in the exercise of the rights and license granted under this Agreement. Licensee agrees that it will not enter into similar agreements with other institutions during the term of this Agreement within the intended territory of use of the Licensed Content. All rights not expressly granted are reserved by Licensor. Fees. Any required license fees and/or maintenance fees for this Agreement, if applicable.
2. Term. The term of this Agreement shall be for a period of one (1) year commencing on the Effective Date and shall be automatically renewed for any successive period, provided that neither Licensor nor Licensee have given notice of termination of this Agreement within thirty (30) days before the end of the initial term or any renewal term, or unless otherwise terminated in accordance with this Agreement. Upon expiration or termination of this Agreement, all rights granted to Licensee by Licensor shall cease and revert back to Licensor, and Licensee agrees to cease and desist at that time all use of the CCBH Trademarks and Licensed Content and any other mark, name, design or image that incorporates a substantial or distinctive part of the CCBH Trademarks, or any other mark, name, design or image that is confusingly similar to the CCBH Trademarks. In particular, Licensee agrees that, immediately upon the expiration or termination of this Agreement, it will cease and desist all use of the CCBH Trademarks and Licensed Content in connection with the Licensed Program or otherwise; and that all materials, products or other merchandise of any kind which have the CCBH Trademarks permanently affixed or contain any part of the Licensed Content will be removed and destroyed.
3. Use of the CCBH Trademarks. Licensee agrees to use the CCBH Trademarks and Licensed Content only for the purposes expressly granted herein and in no other way. Licensee shall follow any and all of Licensor's Brand Guidelines and include proper trademark and copyright notices on all materials, e.g., "FEED OUR FUTURE® and HARVEST OF THE MONTH℠ are used under license from CCBH".
4. Intellectual Property. Licensee hereby acknowledges the validity of the CCBH Trademarks and Licensed Content and that Licensor is the sole owner of all proprietary and intellectual property rights associated with and to the CCBH Trademarks and Licensed Content and that Licensor has reserved, and does hereby further reserve exclusive rights in and to the same. Licensee agrees not to contest the validity or perform any act or omission adverse to Licensor's exclusive rights in the CCBH Trademarks and Licensed Content, and agrees that any uses thereof by Licensee shall inure to the sole benefit of Licensor. No ownership rights or any other interest in and to the CCBH Trademarks or Licensed Content may be implied or obtained by the Licensee under this Agreement or through the use of the CCBH Trademarks and Licensed Content. It is understood that this Agreement confers only a permission, uncoupled with an interest, to use the CCBH Trademarks and Licensed Content as specified herein. No Derivative Works. Licensee shall not modify, adapt, translate, create derivative works of, or combine the Licensed Content with third-party content without Licensor's prior written approval, except as expressly permitted.
5. Quality Control by Licensor. All previously non-authorized uses of the CCBH Trademarks and/or Licensed Content by Licensee, including any Licensed Content that is co-branded by Licensee, are required to be approved by Licensor in writing. Licensee is required to provide Licensor with a sample in order to obtain such approval. Said written approval or disapproval shall be made by Licensor within five (5) working days upon receipt by Licensor of such samples. Licensee understands and agrees that the rights reserved by Licensor in and to the CCBH Trademarks and Licensed Content are extremely valuable and that any breach or violation of this Agreement by Licensee with respect to its restricted use of the CCBH Trademarks and/or Licensed Content cannot be adequately compensated solely by a money judgment. Licensee accordingly expressly further agrees that in addition to all provable money damages, all obligations on its part pursuant to this Section shall be enforceable by specific performance (including but not limited to Temporary Restraining Orders and Preliminary and Permanent Injunctions against breach or violation of such obligations), and Licensee hereby waives any defense which it might otherwise have to the effect that any such breach or violation of this Agreement may be adequately compensated by a money judgment. The provisions of this Section shall survive expiration or other termination of this Agreement, however and by whomever caused. Ongoing QA. Licensee shall permit Licensor to inspect (physically or digitally) representative samples of all Licensed Program materials on reasonable notice, not more than quarterly. Goodwill. Licensee acknowledges that all goodwill arising from use of the CCBH Trademarks and from the Licensed Program inures solely to the benefit of Licensor, and no goodwill shall transfer to or vest in Licensee. Licensee shall not take any action inconsistent with Licensor's ownership of the CCBH Trademarks, including using, registering, or attempting to register any confusingly similar mark, social media handle, domain name, or corporate name. Notice Markings. Licensee shall display appropriate ™/℠/® symbols on first and most prominent uses and include trademark notices. Program Fidelity. Licensee shall implement the core components of the HARVEST OF THE MONTH model without alteration, except as approved in writing by Licensor to accommodate local produce availability and school calendar alignment.
6. Warranties. Licensor warrants and represents that it is free to enter into and fully perform this Agreement. Licensor has no information or reason to believe that the rights granted to Licensee herein will infringe or violate any rights of any third party, but makes no warranty or guarantee to that effect. Licensee warrants and represents that it will use the CCBH Trademarks and Licensed Content in accordance with all applicable Federal, State and Local laws. No Warranties. EXCEPT AS EXPRESSLY PROVIDED, LICENSOR DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
7. Indemnity and Insurance. Licensee agrees that, within the limits of its commercial general and liability coverage it will be responsible for any and all liability, damage, expense, cause of action, suits, claims, or judgments arising from injury to person(s) or personal property or otherwise which arises out of act, failure to act, or negligence of Licensee, their trustees, officers or employees in connection with or arising out of the activity which is the subject of this Agreement. Indemnity. Licensee shall indemnify, defend, and hold harmless Licensor from third-party claims arising from Licensee's operation of the Licensed Program, except to the extent caused by Licensor.
CCBH agrees that within and to the limits of its comprehensive liability coverage under the Public Entities Pool of Ohio, it will be responsible for any and all liability, damage, expense, cause of action, suits, claims, or judgments arising from injury to person(s) or personal property or otherwise which arises out of act, failure to act, or negligence of CCBH, its trustees, officers or employees in connection with or arising out of the activity which is the subject of this Agreement.
8. Infringement. Licensee agrees to immediately notify Licensor of any potential or actual infringement, dilution, challenge or claim to any of the CCBH Trademarks and/or Licensed Content and will not, absent a court order or Licensor's prior written consent, communicate with any other person regarding any such potential or actual infringement, dilution, challenge or claim. Licensor will take the action it deems appropriate with respect to such challenges and claims and has the sole right to handle disputes concerning use of all or any part of the CCBH Trademarks and/or Licensed Content. Licensor's decision as to the prosecution, defense and settlement of any dispute will be final. All recoveries made as a result of disputes regarding use of all or part of the CCBH Trademarks and/or the Licensed Content will be for Licensor's account. Cooperation. Licensee shall reasonably cooperate in enforcement actions at Licensor's expense.
9. Termination. If Licensee breaches any of its obligations under this Agreement, CCBH will have the right to terminate this Agreement by giving Licensee a notice of intention to terminate. Termination will become effective automatically and without further notice unless Licensee completely cures the breach within thirty (30) calendar days after the giving of such notice. To fully cure its breach, Licensee must also reimburse CCBH for its reasonable attorneys' fees incurred in investigating and analyzing the breach and issuing the notice of breach and for any other communication in connection therewith. Upon the giving of a notice of intention to terminate for a breach for the third time in any three (3) year period, Licensee will no longer have the right to cure any violation, and termination will be effective upon the giving of a notice of termination. Termination for Convenience. Either Party may terminate without cause upon sixty (60) days' prior written notice after the initial term.
10. Remedies. Licensee acknowledges that its failure (except as otherwise provided herein) to cease all use of the CCBH Trademarks and/or the Licensed Content upon expiration or termination of this Agreement, for any reason, will result in immediate and irreparable damage to Licensor for which there is no adequate remedy at law. Licensee agrees that in the event of such failure, Licensor shall be entitled to equitable relief by way of temporary and permanent injunctions and such other relief as any court of competent jurisdiction deems just and proper.
11. Relationship of the Parties. Licensor and Licensee are separate and independent entities and nothing contained herein shall be deemed to create a joint venture, association, partnership, agency or employment relationship between the two. Neither party shall have the power to act in the name of, on behalf of, or incur obligations binding upon the other party. Neither party shall acquire an interest in the business or operations of the other by virtue of this Agreement or otherwise. No exclusivity unless expressly stated in Section 1.
12. Notices. All notices, statements, payments or otherwise to be given under this Agreement, or required by any statute or ordinance now or hereafter in force, shall be in writing and given by electronic mail to the email address below, or by registered or certified mail, enclosing such notice in a postpaid envelope directed as follows:
a) Notices and Communications to Licensor shall be addressed as follows:
Cuyahoga County Board of Health
5550 Venture Drive
Parma, OH 44130
Attn: John Mills, General Counsel
Email: jmills@ccbh.net
b) Notices and Communications to Licensee shall be addressed via the information that CCBH has on record and as entered by you into its resource portal, which you should keep up to date.
13. Consent or Approval. If any action by Licensee shall require the consent or approval of Licensor, Licensor's consent to or approval of such action on any one occasion shall not be deemed a consent to or approval of any other action or on the same action or any subsequent occasion. All approvals shall be in writing (email sufficient) from Licensor's designated contact.
14. Agency. Licensee shall not represent itself as the agent or legal representative of Licensor for any purpose whatsoever, and shall have no right to create or assume any obligation of any kind, express or implied, for or on behalf of Licensor.
15. Assignment. Licensee may not assign any of its rights under this Agreement, or delegate any obligations hereunder, except with written permission of Licensor. Any attempted assignment without Licensor's written permission shall be void and shall constitute a breach of this Agreement.
16. Partial Invalidity. If any term, covenant, condition or provision of this Agreement, or the application thereof to any person or circumstances is deemed by a court or by operation of law to be invalid or unenforceable to any extent, the remainder of this Agreement or application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable shall not be affected thereby, and each term, covenant, condition or provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law. Further, all terms and conditions of this Agreement will be deemed enforceable to the fullest extent permissible under applicable law, and when necessary, the court is requested to amend any and all terms or conditions to give them such effect.
17. Governing Law. This Agreement will be governed by the laws of the State of Ohio, without reference to its choice of law rules. The federal and state courts of Ohio shall have exclusive jurisdiction over any dispute concerning this Agreement and the Parties consent to the jurisdiction of the United States District Court for the Northern District of Ohio and the state courts of Ohio, County of Cuyahoga.
18. Recitals. The Recitals to this Agreement are incorporated into and shall constitute a part of this Agreement.
19. Entire Agreement. This Agreement contains all the terms and conditions agreed upon by the parties hereto, and no other agreements, oral or written, regarding the subject matter of this Agreement shall be deemed to exist. This Agreement may not be amended or modified except in a writing signed by the parties. The failure or delay of any party enforcing its rights under this Agreement shall not be deemed a waiver or modification thereof, and any party may, within the time provided by applicable law, commence appropriate legal actions to enforce any or all such rights.
Schedule 1
Service Mark 1 – Primary Logo
Service Mark 2 – Official Partner Logo
