This SubscriberVoice Seal License Agreement (this “Agreement”) is entered into today between SubscriberVoice (“Company”) and the entity agreeing to these terms (“Merchant”). This agreement sets forth the terms and conditions by which the Merchant may use one or more Seals (as defined hereunder) and will be effective upon selecting the “I have read and agree to the SubscriberVoice Seal License Agreement” box or by installing or displaying a Seal. By accepting on behalf of the Merchant or another entity, you represent and warrant that you have the full legal authority to bind the Merchant or such entity to these terms and conditions and fully perform the obligations outlined herein. If you do not agree to the terms of this agreement, do not install or display any Seal.
"Application" means a request submitted to the Company for the rights to display a Seal.
"Company Services" or "Services" means the Seal and other services delivered in connection with the Seal.
"Intellectual Property Rights" means any and all rights associated with intangible property, including, but not limited to, registered and unregistered United States and foreign trademarks, certification marks, service marks, copyrights, trade dress, goodwill, logos, names, inventions, patents, patent applications, software, know-how, trade secrets and all other intellectual property and proprietary rights (of every kind and nature throughout the universe and however designated).
"Seal" means an electronic image featuring a certification mark owned by the Company for display on a website, newsletter, or related Merchant owned properties indicating to your customers that the Merchant is a recipient of Company Services.
"Seal Installation Instructions" means the set of instructions to install the Seal.
"Service Standard" means the certification criteria established and monitored by the Company to identify the quality and commitment to services offered and upon which Seal display is based.
"Validation Page" means a Web page established and hosted by Company that is displayed when a visitor clicks on the Seal.
"Sites" means a website, newsletter, or other online property owned or controlled by the Merchant and for which the right to use has been sufficiently proven by the Merchant to Company's satisfaction.
2.1 Contingent upon Application approval and the ongoing performance of all obligations associated with this Agreement, Company grants Merchant an individual, non-exclusive, non-transferrable, non-sublicensable license, throughout the term of this agreement, to install and display on Merchant Sites the Company's SubscriberVoice Seal, in accordance with the Seal Installation Instructions and terms of this agreement and solely for the purpose of identifying the Merchant as having met the requirements to display such Seal. Application approval is subject to the Company’s ongoing ability to verify identity and ongoing commitment to the quality of Merchant services provided. If the information provided to Company is incorrect or has changed, or if the quality of the services provided through Merchant Sites has materially changed, Merchant must immediately notify the company. Company may suspend the right to display a Seal if at any time, in its sole discretion, Merchant fails any Service Standard associated with the Seal. Company retains the right to re-authenticate Merchant Seal credentials, in which case the Company may require additional information from the Merchant, and Merchant may be required to re-confirm acknowledgement and acceptance of the terms of this Agreement.
2.2 As consideration for the right to display a Seal, Merchant shall meet and maintain the Service Standard associated with such Seal. Merchant shall not (i) use any seal on or on behalf of any organization or domain other than the organization and domain specified in the Application, (ii) use the Seal in the absence of the Validation Page, (iii) copy, sell, rent, lease, transfer, assign, nor sublicense the Seal, in whole or in part, (iv) alter or tamper with the Seal in any unapproved manner whatsoever, including, but not limited to, separating logo elements, copyright trademark indicators, or thwarting access to the Validation Page, or (vi) take any action that will interfere with or diminish the Company’s rights in the Seal or underlying Service. If Merchant believes the Seal has been copied or is being used in any way that constitutes Intellectual Property Rights infringement, Merchant shall notify Company immediately. Breach of any of the restrictions above shall be considered a material breach of this Agreement.
2.3 Except as to the limited license granted to Merchant in section 2.1 above, Company retains all ownership rights, Intellectual Property Rights, licensing rights and all other interests in and to its Seals and all other trademarks, service marks and certification marks of the Company, now or hereafter in existence, as well as all good will associated with the use of exploitation of such property.
Merchant represents and warrants that (i) you have the corporate power and authority required to enter into, and perform your obligations under the Agreement; (ii) you will abide by all necessary requirements and only use the Seal in accordance with this Agreement; (iii) you will not make any unauthorized representation or warranty to any third party relating to the Seal; (iv) all information you provide is true and accurate at the time of submission, and such information (including any domain name or e-mail address) does not infringe the Intellectual Property Rights of any third part whatsoever.
Merchant expressly acknowledges that except as otherwise expressly outlined herein, nothing in this Agreement shall create any ownership rights or license in and to the other party’s Intellectual Property Rights, and each party shall continue to independently own and maintain its Intellectual Property Rights.
At any point in time the Company may amend the terms of this Agreement including any Service Standard associated with the Seal. Any such change will be binding and effective 30 days following the publication of the change on the Company’s website, or upon notifying the Merchant directly by email. If you do not agree with the change, you may terminate this Agreement at any time by notifying the Company. By continuing to use and display the Seal after such change you agree to abide by and be bound to accordingly.
6.1 This Agreement shall remain in effect until terminated in accordance with the terms hereof. The provisions of sections 6.3 and 8 through 17 shall remain in effect in the event of termination..
6.2 Company reserves the right to remove the Seal from your Sites and terminate this agreement if: (i) Company determines the information provided during enrollment is no longer valid; (ii) Merchant fails to maintain the Service Standard associated with the Seal; (iii) Merchant fails to perform the obligations hereunder; (iv) Merchant violates any of the restrictions set forth in section 2.2 above; or (v) Merchant uses the Seal for any unlawful purpose.
6.3 Upon termination of expiry of this Agreement, Merchant shall immediately cease displaying any Seal in any format whatsoever.
6.4 Either party may terminate this Agreement with 30 days notice.
COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTION OF CUSTOMER REQUIREMENTS, NON-INFRINGEMENT, AND ANY WARRANTY ARISING OUT OF A COURSE OF PERFORMANCE, DEALING OR TRADE USAGE. COMPANY DOES NOT WARRANT ITS EVALUATION OF YOUR SERVICES WILL BE FREE FROM ERROR OR DETECT PRACTICES THAT MAY IMPACT THE RESULTS OF SUCH EVALUATION IN ANY WAY WHATSOEVER.
Merchant agrees to indemnify, defend and hold harmless Company, its directors, shareholders, officers, employees, successors and assigns from any and all third party claims, suits, proceedings, judgments, damages, and costs (including reasonable attorneys' fees and expenses) arising out of, in connection with, or by reason of (i) the breach of your warranties, representations, and obligations under this Agreement; (ii) any infringement of an Intellectual Property Right of any person or entity occurring from information or content provided by you; or (iii) services provided by you or an independent third party. Merchant shall be notified by Company of any such claim, and you shall bear full responsibility for the defense of such claim (including any settlements), notwithstanding, (a) Company is kept informed on the status of such litigation or settlement; (b) any settlement which contains a stipulation of admission, payment or other affirmative act on behalf of the Company will require the Company’s written approval; (c) Company shall have the right to participate in the defense of such claim with counsel of its choice at its own expense.
Under no circumstances shall the Company be liable to Merchant, or third party acting on behalf of the Merchant, for any direct or indirect losses or damages sustained under this Agreement, including, but without limitation to any cause of action sounding in contract, tort or strict liability, shall be limited to actual damages, directly incurred, but in no case shall exceed $100. Under no circumstances whatsoever shall Company be hereby liable for special damages, general damages, incidental, exemplary, or punitive damages of any kind. Only with respect to any other liability, which cannot be excluded by applicable law, may any such exclusion not apply.
The terms and conditions of this Agreement shall be enforced to the fullest extent permitted under applicable laws. Accordingly, if any term of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, or becomes by operation of law invalid or unenforceable, then this Agreement shall be deemed amended to delete therefrom the portion that is adjudicated or which becomes by operation of law invalid or unenforceable, with such deletion to apply only in respect to the operation of that term or condition and the remainder of this Agreement will remain in full force and effect.
This Agreement and all matters arising out of or relating to its interpretation or enforcement shall be governed and construed in accordance with the laws of the United States and the state of Massachusetts. Merchant consents to the exclusive jurisdiction of the state courts and U.S. federal courts located here for any legal action to enforce dispute arising out of this Agreement.
Neither party shall hold the other party responsible nor be considered to in default of this Agreement for any cessation, interruption or delay in the performance of its obligations hereunder due to events beyond their reasonable control.
Merchant will make all notices, demands or requests to Company with respect to this agreement in writing to email@example.com with the subject line titled: Attn: General Counsel.
Merchant may not assign this Agreement, nor any rights granted hereunder, in whole or in part and whether by operation of contract, law or otherwise, without prior express written consent from Company.
Either party's failure to insist in any one or more instances upon strict performance by the other party of any of the terms of this Agreement shall not be construed as a waiver of any continuing or subsequent failure to perform or delay in performance of any term hereof.
This Agreement and constitutes the entire understanding of the parties, superseding all prior understandings or agreements on the subject matter hereof. Only a further writing that is duly executed by both parties may modify this Agreement.
Updated September 9th, 2015