1.1 Capitalized terms not defined in these RVA T’s & C’s shall have the meaning given to them in the Order Form.
1.2 “Advertising and Branding Guidelines” means the then-current version of ALG’s guidelines governing Licensee’s use of the ALG Trademarks, as available at https://www.alg.com/residual-value-winner.html.
1.3 “Agreement” means collectively these RVA T’s & C’s, the Order Form, and the ALG Advertising and Branding Guidelines.
1.4 “Order Form” means the Order Form entered into by ALG and Licensee, which among other items, sets forth the ALG Deliverables, the Fees, and the Term, and is subject to these RVA T’s & C’s and the ALG Advertising and Branding Guidelines.
1.5 “Party” means each of ALG and Licensee; “Parties” means collectively ALG and Licensee.
2. ALG Trademarks.
2.1 License.Subject to the Agreement, including the ALG Advertising and Branding Guidelines, ALG grants Licensee a limited, revocable, non-exclusive, non-assignable, non-transferable, non-sublicensable, license to use during the Term, only in the United States and Canada, any ALG trademark, logo, service mark, and/or trade name provided by ALG to Licensee in connection with the ALG Residual Value Awards (“ALG Trademarks”), provided that Licensee shall obtain the prior written approval of ALG in each instance of use of the ALG Trademarks. For clarity, the ALG Trademarks and the foregoing license thereto are included in the ALG Deliverables set forth in the Order Form. Notwithstanding any other provision of the Agreement to the contrary: (i) ALG shall retain all right, title and interest in and to the ALG Trademarks and the right to license their use to any other designee; (ii) ALG may change, modify or update the ALG Trademarks from time to time, and Licensee shall implement and use any change, modification, or update to the ALG Trademarks promptly after receipt of a copy of the updated ALG Trademark from ALG (but in no event more than four (4) business days after receipt); (iii) Licensee shall immediately stop usage of all ALG Trademarks upon termination of the Agreement or upon any request of ALG; (iv) Licensee's use of the ALG Trademarks does not confer or imply any ownership, goodwill, or other rights in the ALG Trademarks; (v) Licensee recognizes the unique value, goodwill, and secondary meaning associated with the ALG Trademarks; (vi) Licensee acknowledges that all goodwill pertaining to the ALG Trademarks, including that derived from Licensee’s use of the ALG Trademarks, automatically vests in and inures to the benefit of ALG; (vii) Licensee shall not and shall not cause any third parties to contest the validity of ALG's and/or its affiliates' ownership of any ALG Trademark; and (viii) Licensee shall not and shall not cause any third parties, in any jurisdiction, to adopt, use, register, or apply for registration, any ALG Trademark or any word, symbol, device, or combination thereof confusingly similar, whether or not as a corporate/entity name, trademark, domain name, bidded or paid keyword or term (e.g., for the online search services of Google, Yahoo! or Bing), service mark, or other indication of origin.
2.2 Agency. Licensee may engage an advertising agency to assist Licensee with the ALG Deliverables (“Agency”) so long as such Agency complies with all the terms and conditions of the Agreement. Licensee shall be solely liable for all the acts and omissions of the Agency in relation to the Agreement.
3. APPROVALS. Notwithstanding anything to contrary set forth herein or in the ALG Advertising and Branding Guidelines, ALG will use its commercially reasonable efforts to approve all final materials and claims within two (2) business days of receipt from Licensee or Agency, except for editorials which shall be reviewed within one (1) week of receipt from Licensee or its Agency. To the extent that ALG does not approve or reject Licensee’s materials or claims within two (2) business days or one (1) week of receipt, as applicable, Licensee shall resubmit the non-approved materials and/or claims to ALG for approval. In the event that ALG does not respond to such subsequent request for approval within one (1) business day (or one (1) week for editorials), this subsequent request shall be deemed to be rejected by ALG.
4. GUIDELINE DOCUMENTS. Licensee shall strictly comply with any and all specifications and requirements set forth in the ALG Advertising and Branding Guidelines and any other requirements provided by ALG in connection with Licensee’s exercise of the license granted herein. Notwithstanding anything to the contrary set forth in the Agreement, ALG may use Licensee’s approved (by ALG) advertising materials as examples for future guideline documents, including the ALG Advertising and Branding Guidelines.
5. OWNERSHIP. ALG retains all right, title and interest, including all copyright, patent, trade secret, trademark, and any other intellectual property rights, in and to the ALG Deliverable(s), including the ALG Trademarks, and including all updates, derivative works and modifications thereto. Licensee shall gain no right, title or interest in the ALG Deliverable(s), including the ALG Trademarks, by virtue of the Agreement.
6. PAYMENT/FEES. In consideration of ALG’s provision of the ALG Deliverables hereunder, Licensee shall pay the Fees as specified in the Order Form. Fees do not include taxes or any government imposed surcharges, which are the sole responsibility of Licensee.
7. CONFIDENTIALITY. “ALG Confidential Information” means any information disclosed by ALG to Licensee, either directly or indirectly, in writing, orally, or by inspection of tangible objects that is designated as “Confidential,” “Proprietary,” or some similar designation or otherwise that is provided under circumstances reasonably indicating that such information is confidential or proprietary. Notwithstanding the foregoing, ALG Confidential Information includes the terms of the Agreement and ALG Deliverables, and also includes information disclosed to a disclosing Party by third parties. “Licensee Confidential Information” means any information disclosed by Licensee, either directly or indirectly, in writing or by inspection of tangible objects, that is designated as “Confidential”, “Proprietary,” or some similar designation. “Confidential Information” means ALG Confidential Information and/or Licensee Confidential Information in context as applicable to the receiving or disclosing Party. Confidential Information will not, however, include any information which: (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing Party; (ii) becomes publicly known and made generally available after disclosure by the disclosing Party through no action or inaction of the receiving Party; (iii) is already in the possession of the receiving Party at the time of disclosure by the disclosing Party as shown by the receiving Party’s files, records, and/or other competent evidence immediately prior to the time of disclosure; (iv) is obtained by the receiving Party from a third party without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information, as shown by contemporaneous documents or other competent evidence in the receiving Party’s possession. The receiving Party will not at any time disclose, sell, license, transfer, use, reproduce, copy, or otherwise make available to any person or entity any Confidential Information of the disclosing Party (except to disclose or make available, in Licensee’s case, to personnel of Licensee who have a legitimate need to know such Confidential Information for purposes of the Agreement, and in ALG case, ALG, its affiliates, and its and their officers, directors, consultants, contractors, agents, attorneys, and employees). All Confidential Information will remain the disclosing Party’s property and all documents, electronic media, and other tangible items or portions thereof, which contain Confidential Information of the disclosing Party will be delivered to the disclosing Party promptly upon the disclosing Party’s written request. Notwithstanding the foregoing, ALG will not be required to remove copies of Licensee’s Confidential Information from any backup media or servers. The receiving Party may disclose Confidential Information of the disclosing Party in connection with subpoenas, court orders, other legal processes, or as otherwise required by law, provided that the receiving Party provides the disclosing Party prompt written notice of such requirement (unless expressly prohibited in writing in such subpoena, court order, or other legal process) prior to such disclosure and takes reasonable steps to protect the Confidential Information from public disclosure, and provided further that any such disclosure is limited to the minimum extent necessary to comply with the legal requirement. Notwithstanding anything to the contrary in the Agreement, without consent, either Party may disclose the Agreement (or the existence of the Agreement) (x) to bona fide potential investors or prospective purchasers of a portion of its assets or beneficial ownership interests provided such disclosure is subject to confidentiality and non-use obligations no less restrictive than those contained in the Agreement, and/or (y) as required by law for any governmental or regulatory filings.
8. WARRANTY. THE ALG DELIVERABLES, INCLUDING THE ALG TRADEMARKS ARE PROVIDED “AS IS” WITHOUT WARRANTY, REPRESENTATION, CONDITION, OR GUARANTEE OF ANY KIND, EXPRESS OR IMPLIED, AND LICENSEE’S AND/OR AGENCY’S USE THEREOF IS AT THEIR OWN RISK, AND ALG DISCLAIMS ANY AND ALL WARRANTIES, REPRESENTATIONS, CONDITIONS, OR GUARANTEES, INCLUDING ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
9.1 Licensee. Licensee indemnifies, defends and holds harmless ALG and its affiliates, and its and their officers, employees, directors, owners, contractors, agents, representatives, successors and assigns (each an “ALG Indemnitee”) from all claims, whether actual or alleged, that arise out of or are in connection with (i) Licensee’s and/or Agency’s use of the ALG Deliverables, including the ALG Trademarks, except to the extent a Claim is covered by the indemnity provided by ALG in Section 9.2 below, (ii) any breach of the Agreement by Licensee, and/or a violation of applicable law by Licensee or Agency in relation to the Agreement, and/or (iii) any act or omission of Licensee or Agency in relation to the Agreement and the ALG Deliverables, including the ALG Trademarks (each, an “ALG Claim”). ALG or an ALG Indemnitee shall give Licensee prompt written notice of any ALG Claim; provided that ALG’s or an ALG Indemnitee’s failure to give prompt written notice of an ALG Claim will not relieve Licensee of any of its obligations set forth in this Section 9.1 except to the extent the failure to provide such prompt written notice prejudiced Licensee in carrying out its obligations set forth in this Section 9.1. Licensee is solely responsible for defending any ALG Claim against any ALG Indemnitee (subject to such ALG Indemnitee’s right to participate with counsel of its own choosing, at its own expense), and for payment of all judgments, settlements, damages, losses, liabilities, costs, and expenses, including reasonable attorneys’ fees, resulting from all ALG Claims against an ALG Indemnitee; provided that Licensee will not agree to any settlement that imposes any obligation or liability on an ALG Indemnitee without the ALG Indemnitee’s prior express written consent.
9.2 ALG. ALG indemnifies, defends and holds harmless Licensee and its affiliates, and its and their officers, employees, directors, owners, contractors, agents, representatives, successors and assigns (each an “Licensee Indemnitee”) from all third party (exclusive of Agency) claims, whether actual or alleged, to the extent the third party claim is a trademark infringement claim against Licensee arising out of Licensee’s use of any ALG Trademarks provided by ALG under the Agreement and used by Licensee in strict compliance with the Agreement (“Licensee Claim”). Licensee or a Licensee Indemnitee shall give Licensee prompt written notice of any Licensee Claim; provided that Licensee’s or a Licensee Indemnitee’s failure to give prompt written notice of a Licensee Claim will not relieve ALG of any of its obligations set forth in this Section 9.2 except to the extent the failure to provide such prompt written notice prejudiced ALG in carrying out its obligations set forth in this Section 9.2. ALG is solely responsible for defending any Licensee Claim against any Licensee Indemnitee (subject to such Licensee Indemnitee’s right to participate with counsel of its own choosing, at its own expense), and for payment of all judgments, settlements, damages, losses, liabilities, costs, and expenses, including reasonable attorneys’ fees, resulting from all Licensee Claims against a Licensee Indemnitee; provided that ALG will not agree to any settlement that imposes any obligation or liability on an Licensee Indemnitee without the Licensee Indemnitee’s prior express written consent.
10. LIMITATION OF LIABILITY. EXCEPT FOR (i) A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS IN SECTION 7, ABOVE, (ii) LICENSEE’S BREACH OF ANY OF ITS OBLIGATIONS SET FORTH IN SECTIONS 2 OR 4, ABOVE, AND (iii) EACH PARTY’S INDEMNIFICATION OBLIGATIONS IN SECTION 9, ABOVE, (a) IN NO EVENT WILL LICENSEE OR ALG BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, AND (b) SUBJECT TO SUBSECTION (a) OF THIS SECTION 10, IN NO EVENT SHALL ALG’S TOTAL LIABILITY OF ANY KIND, REGARDLESS OF THE FORM IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT, EXCEED THE TOTAL AMOUNT PAID TO ALG UNDER THE AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE CLAIM.
11. TERM AND TERMINATION.
11.1 Term. The Term of the Agreement is set forth in the Order Form, unless sooner terminated pursuant to Section 11.2 below.
11.2 Termination. Either Party may terminate the Agreement by written notice to the other Party if the other Party breaches any material provision of the Agreement and such breach is not cured within thirty (30) days after written notice thereof is received by the other Party; provided that ALG may immediately terminate the Agreement upon written notice to Licensee if Licensee or Agency breach of any of its obligations set forth in Sections 2 or 4 of these RVA T’s & C’s.
11.3 Rights Upon Termination. Upon termination or expiration of the Agreement for any reason, (i) the rights and licenses granted to Licensee hereunder shall immediately and automatically terminate, and (ii) unless ALG requests the destruction thereof, upon written notice from ALG, Licensee shall immediately return to ALG all Confidential Information of ALG, the ALG Trademarks, and the ALG Deliverable(s), and, for each of the foregoing, any updates, copies, derivative works, modifications and improvements thereto. In the event ALG requests the destruction of the foregoing, Licensee shall certify to ALG in writing, within ten (10) days of ALG’s request, the destruction of all such materials.
12. SURVIVAL. All defined terms, and Sections 1, 2.1 (third sentence only), 2.2 (second sentence only), 4 through 10, 11.3 through 15, survive the termination or expiration of the Agreement.
13. NOTICES. All notices will be in writing, and delivered by overnight courier or mailed, first-class postage prepaid, or sent by facsimile with confirmation of transmission, to the recipients as follows: (i) to ALG at: ALG, Inc., 120 Broadway, Suite 200, Santa Monica, CA 90401, Attn: General Counsel; and (ii) to Licensee at the address and facsimile set forth in the Order Form. All notices will be deemed received as follows: (a) one (1) business day after accepted by a nationally recognized overnight carrier service for next business day delivery, or (b) five (5) days after the day deposited with the United States Postal Service. Either Party may update its notice address by sending written notice of such change to the other Party as set forth in this Section 13.
14. GOVERNING LAW, VENUE, INJUNCTIVE RELIEF. Any claim arising under the Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to conflict of laws principles. Each Party hereby consents to the exclusive jurisdiction and venue of the state and federal courts located in Los Angeles County, California, for all disputes and litigation arising under or relating to the Agreement. Licensee acknowledges that the ALG Deliverable(s), the ALG Trademarks, and ALG’s Confidential Information are unique property of ALG, and the unauthorized use thereof will cause ALG irreparable harm that may not be adequately compensated by monetary damages. Accordingly, Licensee agrees that ALG will, in addition to other remedies available to it at law or in equity, be entitled to seek injunctive relief, without necessity of posting a bond, to enforce the terms of the Agreement, including to prevent any actual or threatened unauthorized use and/or sublicensing of ALG’s Confidential Information, the ALG Trademarks, and/or the ALG Deliverable(s), or any information or data contained therein or obtained therefrom.
15. MISCELLANEOUS. The Agreement constitutes the entire agreement and understanding between Licensee and ALG regarding the subject matter contained herein and supersedes all agreements, understandings, negotiations, representations, claims, and communications in all forms of media, written and oral, regarding the subject matter contained herein. Without limiting the preceding sentence, any terms and conditions of, on or attached to any purchase order and/or similar document of Licensee, whether signed or offered before or after the Effective Date, are of no force and effect and void ab initio. Only a written instrument signed by whichever of Licensee of ALG is entitled to waive such compliance may waive any term(s) and/or condition(s) of the Agreement, and the Agreement shall not be amended and/or modified except by a writing specifying such signed by both Parties. No waiver by either Licensee or ALG of any provision hereof will be deemed a waiver of any other breach of such provision or a waiver of any other provision. If any provision of the Agreement is held or made invalid or unenforceable for any reason, such invalidity will not affect the remainder of the Agreement, and the invalid or unenforceable provision will be replaced by a valid provision that has a similar effect. Except for Licensee’s payment obligations, neither Licensee nor ALG will have any liability under the Agreement by reason of any failure or delay in the performance of Licensee’s or ALG’s, as the case may be, obligations on account of strikes, shortages, riots, acts of terrorism, insurrection, fires, flood, storm, explosions, earthquakes, Internet and/or electrical outages, computer viruses, acts of God, war, governmental action, or any cause that is beyond, as applicable, Licensee’s or ALG’s reasonable control. Licensee and ALG are independent contractors and nothing in the Agreement will be construed to create, evidence, or imply any agency, employment, partnership, or joint venture between Licensee and ALG. Except as otherwise set forth in the Agreement, the Agreement is not intended to benefit, nor will it be deemed to give rise to any rights in, any third party. Neither ALG nor Licensee may assign, sublicense or transfer the Agreement or any right or duty under the Agreement to another party, in whole or in part, without, as applicable, ALG or Licensee’s prior written consent; provided however, both ALG and Licensee may assign the Agreement without permission in connection with the reorganization, reincorporation, merger or sale of all or substantially all of the assets or stock of ALG, or Licensee (as the case may be). ALG and Licensee’s rights and obligations under the Agreement will bind and inure to the benefit of their permitted successors and assigns. Any assignment, transfer, or attempted assignment or transfer in violation of this Section 15 will be void and of no force or effect. Any rights not expressly granted in the Agreement are reserved by Licensee or ALG, as applicable, and all implied licenses are disclaimed. Each Party acknowledges that it has had the opportunity to review the Agreement with legal counsel of its choice, and there will be no presumption that ambiguities will be construed or interpreted against the drafter, and no presumptions made or inferences drawn because of the inclusion of a term not contained in a prior draft or the deletion of a term contained in a prior draft. Headings of Sections are for convenience only, and are not intended to affect the interpretation or construction of any other provision of the Agreement. All definitions apply both to their singular and plural forms, as the context may require. As used in the Agreement, the word "including" is a term of enlargement meaning "including without limitation" and does not denote exclusivity, and the words "will," "shall," and "must" are deemed to be equivalent and denote a mandatory obligation or prohibition, as applicable. If there is a conflict between these RVA T’s & C’s, the ALG Advertising and Branding Guidelines, and the Order Form, the conflict will be resolved in the following order from highest to lowest: (1) these RVA T’s & C’s; (2) the Order Form; (3) the ALG Advertising and Brand Guidelines. Executed counterparts of the Agreement will each be deemed originals, whether exchanged via mail, facsimile, or electronically in .pdf format. These ALG Residual Value Terms and Conditions were last updated on and are effective as of [November 8, 2016].