WHEREAS, Americo develops and maintains electronic commerce, advertising, and promotional services on the Internet at the web site located at URL: http://www.americo.com, or any replacement or successor (“the Americo website”); and
WHEREAS, Licensee desires to establish a link (“the Link”), which may consist of hypertext, text, banner, logo, and contextual links (“Graphical Image”) which permit a user to go from “Licensee's website” (Actual website address included in above registration), or any replacement or successor, to the Americo website by clicking on a Graphical Image; and
WHEREAS, Americo desires to allow Licensee to establish the Link upon the terms and subject to the conditions of this Agreement.
NOW, Therefore, in consideration of the obligations set forth below and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Americo Trademark License. Subject to the terms and conditions of this Agreement, Americo hereby grants to Licensee a limited non-exclusive license to use the Americo trademarks, trade names, and service marks found on the Americo website from time-to-time including, but not limited to AMERICO®, AMERICO® (logo), LIFECREST®, ULTRA PROTECTOR®, ULTRA PROVIDE®, SECURITERM® and LIFETIME LEGACY® solely for purposes contemplated in this Agreement. The parties acknowledge that (i) each party’s trademarks, trade names and service marks are and shall remain the sole property of that party; (ii) nothing in this Agreement shall convey to either party any right of ownership in the other party’s trademarks, tradenames, or servicemarks; (iii) neither party shall now or in the future contest the validity of the other party’s trademarks, trade names, or service marks; and (iv) neither party shall in any manner take any action that would impair the value of, or goodwill associated with, such trademarks, trade names, or service marks. The parties acknowledge and agree that all use of the other party’s trademarks, trade names, and service marks by a party shall inure to the benefit of the party whose trademarks, trade names or service marks are being used.
2. Covenants of Licensee. Licensee covenants that (i) it shall use and display trademarks, trade names and service marks in the form instructed by Americo; (ii) it will not use and display trademarks, trade names and service marks in such a manner that an association or affiliation between Americo and licensee may be inferred; (iii) it will not utilize web design features such as deep-linking, framing or layering but instead shall link to Americo’s main homepage only.
3. Intellectual Property. Except as expressly licensed under this Agreement, Americo shall retain all rights and interests in its website, trademarks, trade names, service marks, copyright and other intellectual property rights.
Representations and Warranties
4. Americo’s Warranty. Americo represents and warrants that on the Effective Date and during the term of the Agreement (as defined in paragraph 8.) the: (i) content developed by Americo, or on its behalf, on the Americo website does not and will not infringe any copyright, trademarks, or trade secrets of any third party and does not and will not constitute a defamation or invasion of the rights of privacy or publicity of any kind of any third party, (ii) to the best of its knowledge and belief, the Americo website does not violate the laws, statutes or regulations of any jurisdiction.
5. Licensee’s Warranty. Licensee represents and warrants that on the Effective Date and during the term of the Agreement the: (i) content developed by Licensee, or on its behalf, on Licensee’s website does not and will not infringe any copyright, trademarks, or trade secrets of any third party and does not and will not constitute a defamation or invasion of the rights of privacy or publicity of any kind of any third party, (ii) Licensee’s website does not violate the laws, statutes or regulations of any jurisdiction, and (iii) Licensee’s use of Americo’s trademarks, trade names, or service marks does not violate the rights of any third party, including without limitation, copyright, trademark, trade secret, privacy, publicity or other right.
6. Indemnification. Licensee agrees to defend, indemnify and hold harmless Americo, its officers, directors, employees, and agents from and against any claims, demands, causes of action and judgments (including reasonable attorneys' fees, court costs, costs of appeal, and administrative fines or penalties) (collectively, “Americo Claims”) by any third party, or state or federal regulatory agency, arising out of any breach or alleged breach of any of Licensee’s representations and warranties contained herein.
Limitation of Liability
7. Warranty. This agreement is an agreement for services. Notwithstanding the foregoing, each party specifically disclaims all warranties regarding the other party’s website, information and services provided thereunder, express or implied, including without limitation, the warranties of merchantability or fitness for a particular purpose. In particular, and not by way of limitation, neither party warrants that its respective website will operate error-free or without interruption.
8. Damages. In no event shall Americo be liable to Licensee for any indirect, special, incidental, punitive, or consequential damages, including, but not limited to, loss of profits, loss of data, loss of business or other loss arising out of or resulting from this Agreement or to the linking to the Americo website, even if either party has been advised of the possibility of such damages. The foregoing shall apply regardless of the negligence or other fault of either party and regardless of whether such liability sounds in contract, negligence, tort or any other theory of liability.
Term and Termination
9. Term. The term of this Agreement shall commence upon the Effective Date. At any point thereafter, either party may unilaterally terminate the Agreement by written notification to the other party given thirty (30) days prior to said termination. Upon termination, Licensee shall immediately discontinue use of any link to the Americo website. The license shall automatically terminate ten (10) years from the date hereof.
10. Survival. All rights and obligations stated herein shall survive after the termination of this Agreement.
11. Assignment. Licensee may not sell, assign, transfer or otherwise convey any of its rights or delegate any of its duties under this Agreement without the prior written consent of Americo; except that Licensee's rights hereunder may be transferred to a successor of all or substantially all of Licensee’s business and assets (no matter how the transaction or series of related transactions is structured).
12. Entire Agreement. This Agreement constitutes the entire understanding and agreement between the parties, and supersedes all previous agreements (whether written or oral) concerning the subject matter hereof. This Agreement may not be amended or supplemented except by a written document executed by the parties to this Agreement.
13.Notice. All notices, requests, demands, and other communications to the parties required or permitted by this Agreement shall be in writing and shall be deemed to be given if delivered by hand or mailed, with postage prepaid:
(a) If to Americo, to:
Americo Financial Life and Annuity Insurance Company
300 W. 11th St.
Kansas City, Missouri 64105
(b) If to Licensee, to:
Information contained in Agent Database
14. Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the state of Missouri. The parties hereby submit to the jurisdiction of, and waive any venue objections against, the United States District Court for the Western District of Missouri and the trial courts of the state of Missouri and consent to personal jurisdiction of such courts for purposes of this Agreement.
15. Severability. The provisions of this Agreement are severable and, in the event of any provision hereof is determined to be invalid or unenforceable, such invalidity or unenforceability shall in no way affect the validity or enforceability of the remaining provisions hereof.
16. Headings. The headings of the paragraphs of this Agreement are inserted for convenience of reference and are not intended to be part of or to affect the meaning or interpretation of this Agreement.
17. Independent Parties. Nothing in this Agreement shall be deemed to constitute, create, give effect to, or otherwise recognize a partnership, joint venture or formal business entity of any kind or create a fiduciary or similar relationship between the parties not in existence prior to the Effective date of this Agreement; and the rights and obligations of the parties shall be limited to those expressly set forth herein.
18. Access to protected areas. Licensee agrees to provide Americo with full, unlimited, and continuous access to view any “protected” areas in Licensee’s website. If a password or other access key is required to access such areas, Licensee will provide such password or access key to Americo immediately and unconditionally. Further, Licensee agrees to notify Americo if such password or access key is changed or discontinued, and provide Americo with any successor password(s) or other access key(s).