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Trademark License Agreement


This Trademark License Agreement (this “Agreement”) is entered into ______________ (the “Effective Date”), by and between cPanel, Inc. (“Licensor”) and _____________________________(“Licensee”).


The parties agree as follows:

1.     Background.

    1.1     Trademark. Licensor is the owner of all right, title and interest in and to the trademarks “cPanel,”, “Enkompass”, “WHM,” “Webhost Manager,” the cPanel logo a copy of which is attached hereto as Exhibit A (the “Trademarks”) and the goodwill appertaining thereto.

2.     Grant of Trademark License.

    2.1     Grant of Trademark License. Subject to the terms and conditions of this Agreement, Licensor grants and Licensee accepts, for the Term (as hereinafter defined), the non-exclusive, non-transferable, revocable right to use the Trademarks. Nothing in this Agreement will be construed to prevent Licensor from granting any other licenses for the use of the Trademarks or from using the Trademarks in any businesses.

    2.2     License Fee. In consideration of the license granted in Section 2.01, Licensee agrees to pay Licensor an annual fee in the amount of $5.00 payable annually on the anniversary of the Effective Date.

3.     Use of Trademarks.
   
    3.1     Ownership. Licensee acknowledges the validity of the Trademarks and Licensor's sole and exclusive right, title and interest in and to the Trademarks, including Licensor's right to register or to have registered, the Trademarks. Apart from its rights under the license granted in Section 2.01, Licensee will not acquire any right, title or interest in or to the use of the Trademarks during or after the Term. Licensee will use and display the Trademarks only in a form and style which do not, and are not reasonably likely to, defame or otherwise injure Licensor. Licensee will not represent in any manner that it has any ownership of right, title or interest in or to the Trademarks other than as set forth in this Agreement. All use of the Trademarks by Licensee shall inure to the benefit of and be on behalf of Licensor.

    3.2     Trademark Use Policy. Licensor hereby incorporates by reference the cPanel, Inc. Trademark Use Policy located at http://www.cpanel.net and attached to this Agreement. Licensee acknowledges the Trademark Use Policy and agrees to strictly abide by the guidelines set forth therein. Licensor retains the right to amend the Trademark Use Policy from time to time and it is Licensor’s responsibility to periodically check the abovementioned website for updates.

4.     Term and Termination.

    4.1     Term. The term of this Agreement shall begin on the Effective Date and end on 365 days after the Effective Date (the “Term”), provided that Licensee was not in breach of this Agreement.

    4.2     Effect of Expiration or Termination. Upon expiration or termination of this Agreement, Licensee will immediately cease all use of the Trademarks.

    4.3     Survival. Articles 3, 5, 6 and 8 of this Agreement shall survive the expiration or
termination of this Agreement.

5.     Disclaimer of Warranties; Limitation of Liability.

    5.1     LICENSOR DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE.

    5.2     NEITHER PARTY SHALL BE LIABLE TO ANY OTHER PARTY FOR INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING LOST REVENUES, LOST PROFITS OR LOSS OF BUSINESS) IN ANY WAY RELATED TO THIS AGREEMENT WHETHER IN CONTRACT OR IN TORT, REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED OF THE POSSIBILITY THEREOF.
   
    5.3     SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES SO THE LIMITATION IN SECTION 5.02 MAY NOT APPLY IN ALL INSTANCES.

6.     Quality Control.

    6.1     Quality Standards.
Licensee agrees that the nature and quality of: all services rendered by Licensee in connection with the Trademarks; all goods sold by Licensee under the Trademarks; and all related advertising, promotional and other related uses of the Trademarks by Licensee shall conform to standards set by and be under the control of Licensor. Licensee agrees to strictly abide by the Trademarks Use Policy as set forth in Section 3.2.

    6.2     Quality Maintenance.
Licensee agrees to cooperate with Licensor in facilitating Licensor’s control of such nature and quality, to permit reasonable inspection of Licensee’s operation, and to supply Licensor with specimens of all uses of the Trademarks upon request. Licensor shall comply with all applicable laws and regulations and obtain all appropriate government approvals pertaining to the sale, distribution and advertising of goods and services covered by this License.

   
6.3     Infringement.

Licensee agrees to notify Licensor of any potentially unauthorized use of the Trademarks by others promptly as it comes to Licensee’s attention. Licensor shall have the sole right and discretion to bring infringement or unfair competition proceedings involving the Trademarks.

7.     Insurance.

7.1     Licensee hereby agrees to indemnify, defend, and hold Licensor harmless—and any of its officers, employees, and agents—for and from any and all claims, liabilities, judgments, costs, and expenses, including court costs and attorney’s fees, arising out of any action by Licensee under this Agreement. Licensee shall obtain and maintain product liability insurance providing protection for Licensor and any of its officers, agents, and employees in amounts of coverage specified below, against any claims, liabilities, judgments, costs, and expenses, including court costs and attorney’s fees, arising out of any alleged defects in Licensee’s products, or any use thereof. Licensor and its officers, agents, and employees shall be named as additional insureds in said policy of insurance, which shall provide that it may not be canceled without at least thirty (30) days written notice to Licensor, which shall be furnished with a certificate of such insurance. Licensee agrees that such insurance policy or policies shall provide coverage of one million dollars ($1,000,000) for personal injuries arising out of each occurrence and three hundred thousand dollars ($300,000) for property damage arising out of each occurrence.

8.     Miscellaneous.

    8.1     Licensee.  Licensee shall perform this Agreement solely as a licensee and not as Licensor’s independent contractor, agent or employee. Licensee has no authority to make any statement, representation or commitment of any kind or to take any action binding upon Licensor, without Licensor’s prior written authorization.
   
8.2     Assignment.  The License granted by this agreement is unique and personal to Licensee. Accordingly, Licensee shall not assign or transfer its rights or delegate its duties, without the prior written consent of Licensor.

    8.3     Bankruptcy.  This Agreement sets forth a license to intellectual property rights. To the extent permitted by applicable law, Licensor may terminate this Agreement immediately by written notice to Licensee upon (a) the institution by Licensee of insolvency or bankruptcy proceedings or any other act of bankruptcy or proceedings for the settlement of his debts; (b) the institution of such proceedings against Licensee, which is not dismissed or otherwise resolved in his favor within ninety (90) days thereafter; or (c) Licensee making a general assignment for the benefit of creditors.

    8.4     Governing Law.  This Agreement shall be construed and enforced in accordance with the laws of the State of Texas without regard to principles of conflict of laws that would cause the laws of any other jurisdiction to apply.

    8.5     Jurisdiction and Venue.  The parties irrevocably (i) agree that any suit or other legal proceeding arising out of or relating to this Agreement may be brought only in a court of the State of Texas and the United States District Court located in Harris County, Texas, (ii) consents, for himself and in respect of his property, to the jurisdiction of each such court in any such suit or proceeding, and (iii) waives any objection which he may have to the laying of venue of any such suit or proceeding in any of such courts and any claim that any such suit or proceeding has been brought in an inconvenient forum.

    8.6     Attorneys’ Fees and Costs. The prevailing party in any dispute between the parties litigated through final appeal shall be entitled to reimbursement by the other party for all attorneys’ fees and costs, including court costs, costs of expert witnesses and the like.

    8.7     Headings. Headings of particular sections are inserted only for convenience and are not to be considered a part of this Agreement or be used to define, limit or construe the scope of any term or provision of this Agreement.

    8.8     Notices. All notices, payments or consents required or allowed hereunder, shall be sent to the parties as provided herein, in writing, and shall be deemed to have been delivered (a) immediately, if delivered personally, (b) on the third business day following if delivered by registered or certified mail, postage prepaid, return receipt requested, or (c) on the following business day if delivered by a nationally recognized overnight courier service, to the following addresses of the respective parties:


Licensor:               
cPanel, Inc.
ATTN: Legal Department
2550 North Loop W.,
Suite 4006
Houston, TX 77092

Licensee:



A party may change its address listed above by notice to the other party given as set forth in this Section 8.08. For the avoidance of doubt, it shall be the Licensee’s duty and obligation to formally notify the Licensor pursuant to this section of any changes to the address and other information set forth above. The date of personal delivery, mailing or confirmed facsimile of such notice shall be deemed the date of service of such notice. Licensee hereby consents that it shall be deemed personally served in connection with any legal proceedings filed by Licensor upon service by certified mail of the appropriate pleading or order to the address set forth above; provided, however, that Licensee may also be deemed properly served by any other means permitted by applicable law.

    8.9     No Oral Modification. No modification, extension or waiver of or under this Agreement shall be valid unless made in writing and signed by both the Licensor and the Licensee. No written waiver shall constitute, or be construed as, a waiver of any other obligation or condition of this Agreement.

    8.10     Severability. In case any one or more of the provisions of this Agreement should be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby, 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 unenforceable, 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 an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the extent possible.

    8.11     Entire Agreement. This Agreement constitutes and contains the entire agreement and understanding of the parties with respect to the subject matter hereof and supersedes any and all prior written and oral negotiations, correspondence, agreements, understandings, duties or obligations between the parties respecting the subject matter hereof and shall be binding upon and inure to the benefit of the parties hereto and their successors and assigns.

    8.12     Further Assurances. Each party hereto covenants and agrees that, subsequent to the execution and delivery of this Agreement and without any additional consideration, such party will execute and deliver all such further legal instruments and perform all such further acts as may, in each case, be or become necessary or appropriate to effectuate the purposes of this Agreement.

    8.13     Counterparts. This Agreement may be executed in counterparts, each of which shall for all purposes be deemed to be an original and all of which shall constitute the same instrument.

    8.14     Confidentiality. The parties agree that the terms and conditions of this Agreement are and shall remain confidential and shall not disclose the same absent legal compulsion to do so. In the event that Licensee is required to disclose any these terms and conditions under any law, regulation or court order, Licensee shall promptly notify Licensor in writing of such requirement prior to disclosure in order to afford Licensor an opportunity to seek a protective order to prevent or limit disclosure of the information to third parties.


IN WITNESS WHEREOF, this Agreement has been executed effective as of the Effective Date.


LICENSOR                             LICENSEE


____________________                     ____________________
cPanel, Inc.

 


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2010-04.v01.TRADEMARK
04-20-2010