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Servicemark License Agreement
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Servicemark License Agreement

Phi Delta Chi Pharmacy Fraternity, Inc.


Carefully read the following license agreement!  It contains very important information about your rights and obligations, as well as limitations and exclusions that may apply to you. By clicking on the “accept” button at the bottom, you are consenting to be bound by and are becoming a party to this agreement if and when approved by pdc. If you do not agree to all of the terms of this agreement, click the “do not accept” button or leave the website.


This Servicemark License Agreement (this “Agreement”) is by and between Phi Delta Chi Pharmacy Fraternity, Inc., a Georgia nonprofit corporation (“PDC”), and Licensee, and is effective as of the date the proposal of the Licensee to use the Servicemarks (as hereinafter defined) is accepted by PDC.


W I T N E S S E T H

WHEREAS, Phi Delta Chi is one of the largest pharmacy fraternities in the country and PDC provides various services (the “PDC Services”) under various servicemarks owned by PDC and described in Exhibit A (the “Servicemarks”);


WHEREAS, Licensee is affiliated with PDC and desires to use the Servicemarks in certain of its own services (the “Licensee Services”);


WHEREAS, PDC is the exclusive owner of the Servicemarks and PDC has registered or applied to register the Servicemarks in various jurisdictions throughout the world;


WHEREAS, PDC wishes to grant Licensee the right to use the Servicemarks in connection with the Licensee Services that are consistent with the character, purpose and quality of the PDC Services;


NOW, THEREFORE, in consideration of the mutual covenants and promises hereinafter set forth and for other good and valuable consideration, each to the other given and acknowledged as received, the parties agree as follows:


Article 1 - Term

Licensee is hereby granted a limited license to use the Servicemarks SOLELY for the specific Licensee Services as approved by PDC in granting the licensee herein. Any additional or subsequent use of the Servicemarks must be approved by PDC through a separate license agreement.


Article 2 - Licenses Granted

Section 2.1.         Servicemark License. Subject to the terms of this Agreement, PDC hereby grants to Licensee, a royalty-free, revocable, non-transferable, non-exclusive, world-wide right to use the Servicemarks solely in the branding and marketing of those Licensee Services to that have been approved in writing by PDC at least one (1) month prior to use in order that the Licensee may promote, advertise and sell the services that conform to the prior approval of (“PDC’s Approvals”).

Section 2.2.         Preservation of the Servicemark. In order to preserve the value and goodwill of the Servicemark, Licensee shall permit PDC to monitor the use of each Servicemark to ensure that all services that Licensee promotes, advertises or sells using any Servicemark conforms to PDC’s Approvals. Licensee shall furnish to PDC, if so requested by PDC, in such quantities and at such intervals as may be requested, descriptions of the Licensee Services for purposes of review to maintain control of the quality of such services provided in connection with the Servicemarks. Licensee shall obtain any additional information or materials requested by PDC, and PDC shall also have access at all reasonable times to the premises of Licensee for the purpose of inspecting the methods used, and the services rendered, in connection with any Servicemark.

Section 2.3.         Sublicense of the Servicemarks. Licensee hereby acknowledges that Licensee has no right to sublicense any of the Servicemarks or permit any of them to be used in any way that is inconsistent with this Agreement.

Section 2.4.         Ownership of the Servicemarks. Licensee hereby acknowledges that PDC owns and shall own all right, title and interest, throughout the world, in and to the Servicemarks. Licensee shall not acquire any right, title or interest in or to any of the Servicemarks. Licensee shall not take any action that is inconsistent with PDC’s ownership of any of the Servicemarks. All goodwill generated by Licensee’s use of any of the Servicemarks shall inure to the benefit of PDC.

Section 2.5.         Reporting of Unauthorized Use. Licensee shall report to PDC any unauthorized, infringing, misappropriating or diluting use of any of the Servicemarks by any third party of which Licensee has knowledge. PDC shall have the sole right, but not the obligation, to bring, at its own expense, and control any suits, actions or other proceedings against any unauthorized use, infringement, misappropriation, dilution or other violation of any of the Servicemarks unless PDC consents otherwise in writing. Licensee agrees to cooperate in any such litigation PDC may undertake. Such cooperation may include executing, filing and delivering all documents reasonably required by PDC, including Licensee being named as a party if so required by law. Licensee shall have no claim of any kind against PDC based on or arising out of the PDC’s decisions concerning the foregoing.

 

Article 3 - Records and Reports

Licensee shall maintain accurate and complete accounts and registries on all uses of the Servicemarks and the services associated with or using in some manner each Servicemark. Upon request of PDC, Licensee shall prepare and send PDC an accurate and detailed report, on the type of form required by PDC, showing: (i) the amount and type of uses of each Servicemark by Licensee during the term covered by the report; and (ii) a computation of net sales associated with the Servicemarks used during the term covered by the report. The Licensee shall make available to PDC such books and registries necessary to confirm the accuracy of such report.


Article 4 - Confidentiality

Section 4.1.         Licensee’s Obligation. Licensee agrees to hold, and to use its best efforts to cause its members, officers, employees, representatives and agents to hold, in confidence any confidential or proprietary information provided by PDC hereunder. Except as may otherwise be provided in this Agreement and any other agreement between the parties, Licensee shall not use such information for any purpose. Licensee shall not disclose or release any such confidential information to any person, except the employees, representatives and agents of Licensee who legitimately require such information for the purposes permitted by this Agreement. If Licensee is requested or required by deposition, interrogatory, request for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process or is required by operation of law to disclose any Licensed Information, Licensee shall, to the extent legally permitted, provide PDC with prompt written notice of such request or requirement, which notice shall, if practicable, be at least five (5) business days prior to making such disclosure, so that PDC may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of such a waiver, the Licensee is nonetheless, in the opinion of counsel, legally compelled to disclose Licensed Information, then the Licensee may disclose that portion of such information which such counsel advises is legally required to be disclosed, (in which case, prior to such disclosure, the Licensee will, if legally permitted, advise and consult with PDC and its counsel as to such disclosure and the nature of such disclosure) provided that the Licensee uses its reasonable efforts to preserve the confidentiality of such information.

Section 4.2.         Exclusions. Notwithstanding the foregoing, no obligation of confidentiality or non-disclosure shall apply to data or information that the recipient can demonstrate:

(a)Is published or otherwise becomes available to the general public as part of the public domain without breach of this Agreement;

(b)Has been furnished or made known to the recipient without any obligation to keep it confidential by a third party under circumstances which are not known to the recipient to involve a breach of the third party’s obligations to a party hereto;

(c) Was developed independently of information furnished to the recipient under this Agreement; or

(d)Was known to the recipient at the time of receipt thereof from the other party, is not otherwise subject to any obligation to keep it confidential and was not obtained from a third party under circumstances which were known to the recipient to involve a breach of the third party’s obligations to a party hereto.

Section 4.3.         Injunctive Relief. Licensee acknowledges that PDC would not have an adequate remedy at law for the breach by Licensee of any one or more of the covenants contained in this Article 5 and agrees that, in the event of such breach, PDC may, in addition to the other remedies which may be available to it, apply to a court for an injunction to prevent breaches of this Article 5 and to enforce specifically the terms and provisions of this section.

Section 4.4.         Continuing Obligation. Notwithstanding the termination of this Agreement, the obligations of Licensee under this Article 5 shall continue in force for five (5) years after termination.


Article 5 - No Implied or Service Warranties or Representations

Section 5.1.         No Service Warranties.

(a)PDC MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND THAT PDC HAS, WILL OR SHALL PROVIDE SERVICES OF ANY PARTICULAR QUALITY, STANDARD, SPECIFICATION OR THE LIKE; OR THAT THE PROVISION, SALE OR USE BY LICENSEE OF ANY SERVICES PROVIDED BY PDC WHATSOEVER WILL BE MERCHANTABLE, FIT FOR ANY PARTICULAR PURPOSE OR FREE FROM DEFECTS. Licensee acknowledges that this Agreement does not require that the PDC sell or make available to Licensee any type or amount of PDC Services. Licensee further acknowledges that this Agreement contains no service warranties or guarantees of any kind for PDC Services sold or made available to Licensee, if any.

(b)PDC MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND THAT LICENSEE HAS, WILL OR SHALL PROVIDE SERVICES OF ANY PARTICULAR QUALITY, STANDARD, SPECIFICATION OR THE LIKE; OR THAT THE PROVISION, SALE OR USE BY LICENSEE OF ANY SERVICES PROVIDED BY LICENSEE WHATSOEVER WILL BE MERCHANTABLE, FIT FOR ANY PARTICULAR PURPOSE OR FREE FROM DEFECTS.

Section 5.2.         No Implied Warranties. Nothing contained in this Agreement may be construed as:

(a)A warranty or representation as to the right of Licensee to sublicense any of the Servicemarks;

(b)A warranty or representation that anything made, used, sold, or otherwise disposed of in connection with any of the Servicemarks is or will be free from infringement of patents, copyrights, or Servicemarks of third parties;

(c)Conferring rights to use in advertising, publicity, or otherwise any of the Servicemarks expect as expressly provided by Article 2;

(d)Granting by implication, estoppel, or otherwise any license or rights under patents, copyrights or other Servicemarks of PDC or any other express or implied warranties; or

(e) Any warranty or representation of any kind, except as expressly provided herein, including, but not limited to, any implied warranties.


Article 6 - Indemnification

Licensee hereby agrees to indemnify and hold PDC and the Indemnified Parties (as hereinafter defined) harmless from and against, and in respect of, any and all damages, claims, losses, demands, suits, fines, penalties and liabilities asserted against or incurred, and all expenses (including all reasonable fees and expenses of counsel, travel costs and other out-of-pocket costs) incurred in connection with pending or threatened litigation or other proceedings (“Expenses”) which arise out of or relate to any claim, action or proceeding asserted by a third party against PDC or its affiliates or its or their officers, directors, employees, representatives or agents (the “Indemnified Parties”) arising out of (i) Licensee’s breach of this Agreement or the laws of any federal, state or local jurisdiction; (ii) Licensee’s negligent or willful acts or omissions; (iii) the Licencee Services, to the extent that such Expenses do not relate directly to defects in the PDC’s Products that is proven to be the sole fault of PDC; or (iv) Licensee’s use of any of the Servicemarks. Expenses shall be reimbursed or advanced when and as incurred promptly upon submission by PDC or any Indemnified Party of statements to Licensee. To the extent not prohibited by considerations of conflicts of interest, PDC and the Indemnified Parties shall use a single legal counsel as selected by PDC.


Article 7 - Termination

Section 7.1.         General. Anything contained in this Agreement to the contrary notwithstanding, this Agreement may be terminated at any time:

(a)By the mutual consent of PDC and Licensee;

(b)By PDC in the event of any material breach or default by Licensee of any of Licensee’s agreements, representations or warranties contained herein and the failure of Licensee to cure such breach or default within ten (10) days after receipt of written notice from PDC requesting such breach or default to be cured; or

(c)By Licensee in the event of any material breach or default by PDC of any of PDC’s agreements, representations or warranties contained herein and the failure of PDC to cure such breach or default within ten (10) days after receipt of written notice from Licensee requesting such breach or default to be cured.

Section 7.2.         Grounds for Termination. Each party shall have the right to terminate this Agreement effective upon delivery of written notice to the other party if the other party:

(a)Makes an assignment for the benefit of creditors, becomes bankrupt or insolvent, is petitioned into bankruptcy, takes advantage of any state, federal or foreign bankruptcy or insolvency act or if a receiver or receiver/manager is appointed for all or any substantial part of its property and business and such receiver or receiver/manager remains undischarged for a period of thirty (30) days;

(b)Has its corporate existence terminated by voluntary or involuntary dissolution;

(c)Materially defaults in the performance of any of its covenants or obligations contained in this Agreement and such default is not remedied to the non-defaulting party’s reasonable satisfaction within thirty (30) days after written notice to the defaulting party of such default, or if such default is not capable of rectification within thirty (30) days, if the defaulting party has not promptly commenced to rectify the default within such thirty (30) day period and is not proceeding diligently to rectify the default; or

(d)Attempts to assign any of its rights, duties, responsibilities or obligations hereunder in violation of Section 9.3.

Section 7.3.         Procedures on Termination. On termination of this agreement, Licensee will:

(a)Cease using and exploiting the Servicemarks;

(b)Execute and deliver to PDC any instruments and take any other action which PDC reasonably considers necessary in order to ensure the termination of any rights which Licensee might otherwise have in the Servicemarks; and

(c)Give PDC all documents (including all copies) evidencing or incorporating any confidential or proprietary information of PDC.


Article 8 - Miscellaneous Provisions

Section 8.1.         Governmental Approval. The Licensee shall cooperate with PDC as much as possible in order to obtain any government approvals that may be required in connection with this Agreement.

Section 8.2.         Interpretation. Each defined term in this Agreement includes the singular and the plural, and titles and headings to sections herein are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement. Except as otherwise stated, references to Articles and Sections mean the Articles and Sections of this Agreement.

Section 8.3.         Assignment. This Agreement and all the provisions hereof shall be binding upon and inure to the benefit of the parties hereto and any of their respective successors or assigns, but neither this Agreement nor any of the rights, interests or obligations hereunder shall be assignable or transferable, by operation of law or by either party, without the prior written consent of the other party hereto; provided, however, that PDC may assign this Agreement, without obtaining prior written consent of Licensee, to any entity which succeeds, by sale, merger, acquisition, transfer or otherwise, to all or substantially all of PDC’s assets or business.

Section 8.4.         Governing Law. This agreement shall be governed by the internal laws of the State of Michigan without giving effect to the principles of conflict of laws thereof.

Section 8.5.         Dispute Resolution. All disputes under this Agreement shall be resolved by litigation in the courts of the State of Michigan, including the federal courts therein, and the parties each consent to the jurisdiction of such courts, agree to accept service of process by mail, and hereby waive any jurisdictional or venue defenses otherwise available to them.

Section 8.6.         Notices. All notices, requests, claims, demands and other communications required or permitted hereunder shall be in writing; shall be deemed given or delivered: (a) when delivered personally; (b) if transmitted by email, when the recipient, by an email sent to the email address for the sender stated in this section or by a notice delivered by another method in accordance with this section, acknowledges having received that email, with an automatic “read receipt” not constituting acknowledgment of an email for purposes of this Agreement; (c) if sent by registered or certified mail, postage prepaid, return receipt requested, on the third business day after mailing; or (d) if sent by private courier, when received. Notice shall be addressed to PDC, to: Phi Delta Chi Pharmacy Fraternity, Inc., PO Box 320, Pinckney, MI 48169, Phone: (800) 732-1883, Email: office@phideltachi.org. Notice shall be address to Licensee to the name, address, phone and email provided at the time of contracting.

Section 8.7.         Amendment; Waiver. No amendment or modification of the terms of this Agreement shall be binding on either party unless reduced to writing and signed by an authorized representative of the party to be bound. The waiver by either party of any particular default by the other party shall not affect or impair the rights of the party so waiving with respect to any subsequent default of the same or a different kind; nor shall any delay or omission by either party to exercise any right arising from any default by the other affect or impair any rights which the non-defaulting party may have with respect to the same or any future default.

Section 8.8.         Severability. If any term or provision of this Agreement is invalid, illegal or incapable of being enforced under any rule of law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

Section 8.9.         Entire Agreement. This Agreement shall constitute the entire agreement among the parties with respect to the subject matter hereof and shall supersede all previous negotiations, commitments and writings with respect to such subject matter.

Section 8.10.     Counterparts. This Agreement may be executed in one or more counterparts and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.


Exhibit A

The Servicemarks

 

1.          ®

 

2.         ΦΔΧ ®

 

3.         Phi Delta Chi ®

 

4.         Leaders in Pharmacy  SM

 

5.       PDC   SM

 

6.  ®

 









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