Information about http://www.iol.unh.edu/services/testing/ofa/logolicense.pdf
OPENFABRICS LOGO AGREEMENT This License…
Tags: alliance member, benefit corporation, certification services, definitions, effective date, license agreement, licensee, logo license, logo usage, mu, nonprofit, provisions, public awareness, royalty, sublicense, tual,Pages: 8
Language: english
Created: Mon Jul 2 21:54:32 2007
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OPENFABRICS LOGO AGREEMENT
This License Agreement ("Agreement") is entered into effective as of the "Effective Date"
as defined herein by and between the OpenFabrics Alliance, a California nonprofit mu-
tual benefit corporation, and the applicant requesting to use the design mark identified
herein ("Licensee").
BACKGROUND
The OpenFabrics Alliance owns the "OpenFabrics Alliance" logo shown on Exhibit A
and defined herein as the "Logo," which it licenses to its members to identify their affili-
ation with the OpenFabrics Alliance and to promote public awareness of the OpenFab-
rics Alliance, its mission, and the product and service certification services that it pro-
vides. Licensee, a member of the OpenFabrics Alliance, wishes to obtain a license to use
the Logo and the OpenFabrics Alliance is willing to grant the license, subject to the
terms and conditions herein.
AGREEMENT
1. Definitions. For purpose of this Agreement:
(a) "Application" means the application that Licensee submitted.
(b) "Effective Date" shall be the date on which this Agreement is signed by the
OpenFabrics Alliance.
(c) "Manual" means the "OpenFabrics Alliance Logo Usage Manual" as in effect
from time to time and available for download from the OpenFabrics website.
(d) "Logo" means the mark identified on Exhibit A hereto.
2. Logo License.
(a) License Grant. Provided that Licensee complies with the terms, conditions and
provisions hereof, the OpenFabrics Alliance hereby grants Licensee a limited,
non-exclusive, worldwide, revocable, non-transferable royalty-free license, with
limited right of sublicense solely as provided in Section 2(b), to use the Logo to
identify that it is a OpenFabrics Alliance member and to promote the mission
and certification programs of the OpenFabrics Alliance by placing the Logo on
such merchandising materials as the Manual may permit from time to time.
(b) Sublicense Grant. The OpenFabrics Alliance hereby grants to the Licensee a
limited, non-exclusive, worldwide, revocable, non-transferable license to subli-
cense the Logo to third parties with which Licensee has contracted to provide
advertising or promotional services for Licensee, to manufacture merchandise
for Licensee as permitted pursuant to the Manual and to distribute merchandise
bearing the Logo in connection with Licensee's promotional activities using the
Logo as permitted in Section 2(a). Licensee shall require all such third parties to
agree in writing to all terms and conditions necessary and appropriate to protect
OpenFabrics Logo Agreement draft 0.9 page 1 of 8
the OpenFabrics Alliance's right, title and interest to the Logo, which shall in-
clude, but not be limited to, all applicable terms and conditions of this Agree-
ment, and which shall also provide that the OpenFabrics Alliance shall be a
third party beneficiary of each such agreement.
(c) Reservation of Rights. Except for the limited license rights granted herein, the
OpenFabrics Alliance reserves to itself all right, title and interest in and to the
Logo.
3. License Requirements and Limitations. The licenses granted pursuant to Section 2
are granted subject to the following requirements and limitations:
(a) Compliance with Manual. Licensee shall comply with all requirements in the
Manual that pertain to the Logo. Licensee is solely responsible for keeping itself
informed of the current requirements in the Manual by reviewing from time to
time the version posted on the OpenFabrics Alliance website and for making
any necessary changes to its practices to remain in compliance with any revi-
sions to the Manual. The OpenFabrics Alliance is under no obligation to inform
Licensee of changes to the Manual other than by posting the revised version on
its website, but the OpenFabrics Alliance agrees to refrain from taking action
without prior affirmative notice to Licensee if the provision upon which the
OpenFabrics Alliance action is to be based is materially different from the Man-
ual that are applicable to this Agreement on the Effective Date. If Licensee does
not agree with any changes to the Manual, Licensee's sole remedy is to termi-
nate this Agreement as provided herein.
(b) Membership Status. Licensee will maintain its membership in both the Open-
Fabrics Alliance and in the OpenFabrics Interoperability Logo Group in good
standing at all times while using the Logo.
(c) Certain Geographic or Usage Limitations. In the event the OpenFabrics Al-
liance determines that use of the Logo may in any particular manner or jurisdic-
tion violate any applicable laws or regulations, be contrary to public policy or
may subject Licensee, the OpenFabrics Alliance, or the OpenFabrics Interoper-
ability Logo Group to any third party claims, legal proceedings, governmental
investigations or proceedings, penalties or liabilities, Licensee agrees, upon re-
ceipt of notice and request from the OpenFabrics Alliance, to promptly cease
and desist from all use of the Logo in such particular manner or jurisdiction.
(d) Control. The OpenFabrics Alliance shall have absolute determination and con-
trol, in its sole discretion, over the design, redesign, modification, change, en-
hancement, improvement, authorized or unauthorized use, manner and degree
of application, manner and extent of registration, maintenance, protection, en-
forcement, ownership, licensing, use and termination of the Logo and the Man-
ual.
(e) Specific Use Restrictions. The licenses granted in Section 2 may be used solely
in connection with the products that have been permitted by the OpenFabrics
Alliance to bear the logo, and only for the duration granted, and are subject to
the restrictions and obligations of Licensee set forth in this Agreement, includ-
OpenFabrics Logo Agreement draft 0.9 page 2 of 8
ing, without limitation, the following:
(i) Licensee shall strictly comply with the graphics representation require-
ments for the Logo, as set forth in the Manual.
(ii) Licensee shall not modify, enhance or change the Logo or combine it with
another mark, or use, adopt or register any marks confusingly similar to
the Logo.
(iii) Licensee shall not omit portions or use a partial version of the Logo.
(iv) Licensee shall not use the Logo, or any portion thereof, as a domain name,
including, without limitation, as a sub-domain name or name of the ser-
vice or company.
(v) Licensee shall not use the Logo: (a) in any manner that is likely to reduce,
diminish or damage the goodwill, value or reputation associated with the
Logo; (b) in any manner as would violate the rights of any third parties;
(c) in any manner as would result in any third party claim or in any gov-
ernmental investigation, claim or proceeding alleging unlawful or im-
proper use of the Logo; (d) or on or in connection with any goods, services
or activities except as permitted under the licenses in Section 2 or the
Manual.
(f) Inspection. Licensee will, upon the OpenFabrics Alliance's request and at no
cost to the OpenFabrics Alliance, provide the OpenFabrics Alliance with a rea-
sonable number of samples of products or materials bearing the Logo within ten
(10) business days from receipt of its written request.
(g) Nonconforming Goods, Services, Activities and Materials. If Licensee be-
comes aware at any time that any goods, services, activities or materials with
which it is using the Logo do not comply with the requirements of this Agree-
ment or the Manual, it will, at its sole cost and expense, immediately cease all
use of the Logo on or in association with the nonconforming goods, services, ac-
tivities or materials, as applicable, and shall immediately discontinue distribu-
tion of any non-compliant or nonconforming tangible items. Licensee will im-
mediately remove the Logo from all such tangible items, or if it is not feasible or
is impractical to remove the Logo from such items, destroy them.
(h) Third-Party Infringement. Licensee will promptly notify the OpenFabrics Al-
liance if it becomes aware of any infringement of the Logo by a third party. Li-
censee shall have neither the right nor the obligation to prosecute any infringe-
ment claims against third-party infringers.
(i) Noncompliance. Licensee shall immediately at its sole cost and expense correct
any usage of the Logo that the OpenFabrics Alliance regards as failing to com-
ply with the requirements of this Agreement or the Manual.
(j) No Use as Certification Logo. Licensee shall under no circumstance use the Lo-
go as a certification mark or use the Logo in a manner that could lead third par-
ties to believe that the OpenFabrics Alliance or any other party has certified its
OpenFabrics Logo Agreement draft 0.9 page 3 of 8
products or services.
(k) Use of "OpenFabrics." Nothing in this Agreement gives Licensee the right or li-
cense to use the mark "OpenFabrics" apart from the Logo as shown in Exhibit A.
Any use of such mark shall occur only if and to the extent permitted by the
Manual or a separate agreement between Licensee and the OpenFabrics Al-
liance. Licensee shall not use "OpenFabrics" except as permitted therein.
(l) Unauthorized Use of the Logo by Licensee. Licensee acknowledges that if it
engages in any unauthorized use or reference to the Logo, its right to continue
using the Logo may be terminated and that irreparable injury will occur if such
unauthorized use continues.
(m) Relationship of Agreement and OpenFabrics Alliance Membership. This
Agreement constitutes a portion of the "rules and regulations" of the OpenFab-
rics Alliance as contemplated by the corporation's Bylaws. Licensee acknowl-
edges that a breach of this Agreement is also a breach of those rules and regula-
tions and may give rise to the suspension or termination of Licensee's member-
ship in the OpenFabrics Alliance.
4. License Fees and Royalties. The licenses granted hereunder are fully paid and
without royalty.
5. OpenFabrics Alliance Ownership of the Logo. Licensee acknowledges the Open-
Fabrics Alliance's exclusive right, title, and interest in and to the Logo and acknowl-
edges that nothing herein shall be construed to accord to Licensee any rights in the
Logo except as otherwise expressly so provided. Licensee acknowledges that its
use of the Logo hereunder will not create in it any right, title or interest in the Logo
other than the limited license rights granted herein and that all such use of the Logo
and the goodwill generated thereby will inure to the benefit of the OpenFabrics Al-
liance. Should the OpenFabrics Alliance, in its sole discretion, deem it necessary to
record Licensee as a registered licensee of the Logo in any jurisdiction, it shall do so
at Licensee's expense (provided that Licensee may avoid such expenses by
covenanting in an amendment to this Agreement that it will not use the Logo in
such countries), and Licensee will cooperate with the OpenFabrics Alliance to affect
such records. Licensee warrants and represents with respect thereto that (a) it will
not at any time challenge the OpenFabrics Alliance's right, title, or interest in the
Logo or the validity the Logo or any registration thereof; (b) it will not do or cause
to be done or omit to do anything, the doing, causing, or omitting of which would
contest or in any way impair or tend to impair the rights of the OpenFabrics Al-
liance in the Logo; (c) it will not represent that it has any ownership in or rights
with respect to the Logo; and (d) it will not, either during or subsequent to the term
of this Agreement, adopt, use, or register any certification mark, trademark, service
mark, trade name, insignia or logo that is confusingly similar to or a colorable imita-
tion of the Logo or any of the OpenFabrics Alliance's other marks.
6. Representations of Licensee. Licensee represents and warrants that
OpenFabrics Logo Agreement draft 0.9 page 4 of 8
(a) It is duly organized and in good standing under the laws of its jurisdiction of or-
ganization;
(b) Licensee has taken all actions that are necessary or advisable in order for it to
enter into this Agreement;
(c) The person Executing this Agreement on behalf of Licensee is authorized to do
so;
(d) The Agreement, upon its Execution by Licensee (and assuming due Execution
by the OpenFabrics Alliance) shall be the binding obligation of Licensee, en-
forceable in accordance with its terms;
(e) Licensee will comply with all changes to the Manual within three (3) months
from the date of receipt of written notice of such changes; and
(f) Licensee will not challenge the OpenFabrics Alliance's rights under the Manual,
or this Agreement and will not challenge the validity of any OpenFabrics Al-
liance mark.
7. No Warranty by the OpenFabrics Alliance. The OpenFabrics Alliance provides the
licenses granted hereunder without warranty of any kind. TO THE MAXIMUM
EXTENT PERMITTED BY LAW, THE OPENFABRICS ALLIANCE DISCLAIMS
ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES.
8. Limitation of Liability. IN NO EVENT SHALL THE OPENFABRICS ALLIANCE
BE LIABLE FOR LOST PROFITS OR SPECIAL, INCIDENTAL OR CONSEQUEN-
TIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREE-
MENT REGARDLESS OF THE LEGAL THEORY UPON WHICH SUCH CLAIM IS
BASED AND EVEN IF THE OPENFABRICS ALLIANCE HAS BEEN ADVISED OF
THE POSSIBILITY THEREOF.
9. Indemnity. Licensee agrees to defend, indemnify and hold the OpenFabrics Al-
liance and its respective representatives, employees, officers, directors and agents
harmless against all claims, suits, cost, damages, judgments, attorney's fees, settle-
ments or expenses incurred caused by, arising from or relating to any breach of this
Agreement by Licensee or claimed, obtained or sustained by any third party,
whether for personal injury, misrepresentation, or otherwise arising out of or relat-
ing to the Licensee's business activities, including, without limitation, the manufac-
ture, advertising, promotion, use, marketing or sale of the goods, services, or activi-
ties using the Logo, provided such claims are not caused by OpenFabrics Alliance's
negligence or breach of this Agreement.
10. Effective Date, Term and Termination.
(a) Effective Date. This Agreement shall commence and the licenses granted here-
under shall become effective (the "Effective Date") upon Licensee's Execution of
this Agreement.
(b) Term. The term of this Agreement shall commence on the Effective Date and
shall continue until terminated by a party as provided herein.
OpenFabrics Logo Agreement draft 0.9 page 5 of 8
(c) Termination.
(i) Termination by Licensee. Licensee may terminate this Agreement at any
time by providing notice to the OpenFabrics Alliance and by discontinu-
ing all use of the Logo. Termination in this manner shall be effective upon
receipt of the notice by the OpenFabrics Alliance or at such time (not to
exceed thirty (30) days) specified in the notice from Licensee.
(ii) Termination by the OpenFabrics Alliance. The OpenFabrics Alliance
may terminate this Agreement upon thirty (30) days notice if Licensee
breaches any provision of this Agreement and fails to cure such breach
within such thirty (30)-day period. The OpenFabrics Alliance may termi-
nate this Agreement upon written notice if Licensee ceases to be a member
in good standing of the OpenFabrics Alliance or the OpenFabrics Interop-
erability Logo Group. The OpenFabrics Alliance may terminate this
Agreement for convenience upon not less than thirty (30) days' written
notice to Licensee if it discontinues its use of the Logo for the purposes for
which it is licensed hereunder.
(iii) Consequences of Termination. Upon termination of this Agreement, the
licenses and all sublicenses granted hereunder shall immediately termi-
nate. Licensee will immediately discontinue all use of the Logo and shall
immediately cause each sublicensee of the Logo to discontinue its use. Li-
censee and its sublicensee(s) shall thereafter immediately remove the Lo-
go from all materials to which it is applied, or if removal of the Logo is not
feasible or is impractical, destroy all materials in their possession contain-
ing the Logo and shall certify to the destruction of such materials if the
OpenFabrics Alliance requests that they do so.
11. Compliance with Laws. Licensee will at all times comply with all laws, regula-
tions, ordinances, rules and orders that are applicable to it in connection with the
operation of its business generally.
12. Miscellaneous.
(a) Governing Law. This Agreement will be governed by and construed in accor-
dance with the laws of the State of California as applied to agreements entered
into and fully performed therein by residents thereof. Both parties submit to ju-
risdiction in California and further agree that any cause of action arising under
this Agreement shall be brought in a court in the County of Santa Clara, Califor-
nia.
(b) Severability; Headings. If any provision herein is held to be invalid or unen-
forceable for any reason, the remaining provisions will continue in full force
without being impaired or invalidated in any way. Headings are for reference
purposes only and in no way define, limit, construe or describe the scope or ex-
tent of such section.
OpenFabrics Logo Agreement draft 0.9 page 6 of 8
(c) Independent Contractors. The parties are independent contractors, and no
agency, partnership, joint venture, employee-employer or franchiser-franchisee
relationship is intended or created by this Agreement. Neither party shall make
any warranties or representations on behalf of the other party.
(d) Notice. The OpenFabrics Alliance may give notice to Licensee by personal de-
livery, mail, courier, or facsimile to Licensee's physical address as identified in
the OpenFabrics Alliance's membership records or by e-mail to the e-mail ad-
dress of record. Licensee may give notice to the OpenFabrics Alliance by per-
sonal delivery, mail, courier, or facsimile to the OpenFabrics Alliance's physical
address or electronically by e-mail to logo@openfabrics.org. Notice shall be
deemed given: upon personal delivery; if sent by fax, with confirmation of cor-
rect transmission, on the next business day after it was sent; upon the courier's
confirmed delivery if sent by courier; and if sent by mail with proper postage
prepaid, five (5) days after the date of mailing. Notices by e-mail shall be
deemed given by the end of the business day on which they are sent.
(e) Entire Agreement; Waiver. This Agreement sets forth the entire understanding
and agreement of the parties and supersedes any and all oral or written agree-
ments or understandings between the parties as to the subject matter of this
Agreement. This Agreement may be changed only by a writing executed by
both parties that expressly states that it is changing the provisions of this Agree-
ment. The waiver of a breach of any provision of this Agreement will not oper-
ate or be interpreted as a waiver of any other or subsequent breach.
(f) Assignment. Licensee may not transfer its rights or obligations under this
Agreement in whole or in part to any third party without the prior written con-
sent of the OpenFabrics Alliance and any attempt to do so is void.
(g) Counterparts. This Agreement may be Executed in two or more counterparts,
each of which shall be deemed an original, but all of which shall constitute one
and the same instrument.
IN WITNESS WHEROF, the parties have caused this Agreement to be executed by their
duly authorized representatives.
OpenFabrics Alliance Licensee
Signature Signature
Title Title
Date Date
OpenFabrics Logo Agreement draft 0.9 page 7 of 8
EXHIBIT A
OpenFabrics Logo Agreement draft 0.9 page 8 of 8