NATIONAL LOAN
MODIFICATION ASSOCIATION OF AMERICA
COLLECTIVE MEMBERSHIP
TRADEMARK LICENSE AGREEMENT
This collective membership trademark license agreement (this
“Agreement”) is made effective the _____ day of ____________________, 2008 by
and between the National Loan Modification Association of America, a Delaware
Limited Liability Company (the “Association”), and
______________________________, a _______________________________ (the
“Licensee”).
WHEREAS, the Association, in furtherance of a purpose to promote
and educate the public on reverse mortgages, has developed an Association logo
which it desires to be used by its members in conjunction with the word
“Member” as a collective membership mark (the “Mark”, a copy of which is
attached hereto in the Attachment to this Agreement);
WHEREAS, the Licensee, is a member in good standing of the
Association and is desirous of having the right to use the Mark as set forth in
this Agreement; and
WHEREAS, the parties hereto desire to record their
understandings with respect to the Licensee’s use of the Mark.
NOW, THEREFORE, in consideration of the mutual promises
contained herein and good and valuable consideration, the receipt and
sufficiency of which are acknowledged, the parties agree as follows:
1. License. Subject to the terms and conditions set forth in
this Agreement, and only so long as Licensee shall remain a Member in good
standing of the Association, the Association grants to the Licensee a
non-exclusive right and license to use the Mark on the Licensee’s letterheads,
correspondence, and advertising and promotional materials to indicate that the
Licensee is a member of the Association (“Permitted Uses”). The Licensee
acknowledges that this license is personal to the Licensee. Neither the
license, nor any rights under the license, may be transferred, assigned, or
sublicensed to third parties. The Licensee’s parents, subsidiaries, and
affiliated entities are not authorized to use the Mark.
2. Non-Permitted Uses. The Licensee shall not use the Mark
on any product or product packaging, nor in any manner that suggests or
implies, directly or indirectly, that the Association approves, certifies, or
endorses any product or practice of the Licensee. The Mark may not be used in
any manner that disparages the Association or the Association’s members,
products, or services. Neither the Mark nor any portion of the Mark may be
displayed as a feature or design element of any other mark. The Association has
the right from time to time to request samples of the Licensee’s use of the
Mark, which the Licensee shall provide to the Association within ten (10)
business days of the request, to confirm that the use of the Mark is consistent
with this Agreement.
3.Display of the Mark. The Licensee will not alter, delete,
or amend the Mark except with respect to size and/or removal of color. The
Licensee’s use of the Mark will be of such size as to permit legibility of the
wording. The Licensee may use the colors set forth in the Attachment or may use
black, white, and shades of gray. The Licensee may only use the entire Mark as
shown in the Attachment and in particular may not display or use the design
portion of the Mark without the word “Member”. The Licensee shall display
appropriate symbols of the Association’s ownership of the Mark (i.e., ® and ™,
as appropriate) with the Mark. If the Mark is displayed on the Licensee’s
website, the Mark must be an active link to the Association’s then current
homepage (which currently is http://www.NLMAA.org); the “ALT” tag must read
“National Loan Modification Assocication of America”.
4. Ownership of the Mark. The Licensee acknowledges the
ownership of the Mark by the Association, agrees that it will do nothing
inconsistent with such ownership, and agrees that all uses of the Mark by the
Licensee shall inure to the benefit of the Association. The Licensee agrees
that nothing in this Agreement shall give the Licensee any right, title, or
interest in the Mark other than the right to use the Mark in accordance with
this Agreement, and the Licensee agrees that it will not attack the ownership
or title of the Association to the Mark and will not attack the validity of
this Agreement. Moreover, the Licensee shall not at any time knowingly do or
cause to be done any act or thing which will directly or indirectly adversely
affect the status or character of the Mark as a trademark or collective
membership mark.
5. Termination of Agreement. This Agreement will terminate
automatically if the Licensee ceases to be a Member of the Association in good
standing. The Association reserves the right to terminate this Agreement if, in
the sole opinion of the Association, the Licensee: (i) misuses the Mark; (ii)
uses the Mark in such a manner as will likely mislead or deceive the public or
purchasers; (iii) fails to adhere to the Association’s Code of Ethics and
Professional Responsibility; or (iv) fails to comply with any term of this
Agreement or any federal, state, or local law, regulation or ordinance. Upon
termination or cancellation of this Agreement for any reason, the License shall
cease and Licensee shall immediately cease the use or distribution of any
materials containing the Mark.
6. Assistance in Policing of the Mark. In the event that any
infringement, threatened infringement, or misuse of the Mark by any third party
is brought to the attention of the Licensee, the Licensee shall notify the
Association as soon as possible of all the facts known, or readily available,
to it relating to such infringement, threat of infringement, or misuse. In such
event, the Licensee shall provide all information and assistance in its power
to assist the Association in any action, suit, or other proceeding, relating to
such infringement, threatened infringement, or misuse; provided, however, that
the institution and maintenance of litigation or other proceedings in
connection therewith shall at all times be at the sole discretion and expense
of the Association.
7. Assistance in Maintenance of the Mark. The Licensee shall
assist the Association (at the Association’s sole expense) in maintaining the
Mark as a valid and subsisting collective membership mark, in supplying any
records, documents, or material requested by the Association in connection with
applications by the Association for the registration of the Mark, and in preserving
and supporting in valid and enforceable condition any and all registrations
thereof.
8. Use of Similar Marks. The Licensee acknowledges and
agrees that it shall not at any time, either during the term of this Agreement
or thereafter, adopt or use any trademark, service mark, collective membership
mark, trade name, business style, or form advertisement of such similarity to
the Mark that such use of such other mark would be likely to cause confusion,
mistake or deception with the Mark.
9. Indemnification. The Licensee will indemnify and hold
harmless the Association, its officers, directors, and staff against any and
all claims, judgments, actions, losses, settlements, expenses or costs of any
sort (including reasonable attorneys’ fees) (collectively “Claims”) arising out
of the Licensee’s use of the Mark (excepting Claims that the Mark infringes
another mark). This Section 9 shall survive the termination of this Agreement.
10. Further Assurances. Each party shall execute and deliver
such further assurances as may be reasonably requested by the other party to
fully effectuate the provisions and intent of the license described herein.
11. Injunctive Relief. The Licensee acknowledges and agrees
that compliance with the terms of this Agreement is necessary to protect the
goodwill and other proprietary interests of the Association and that a breach
of this Agreement by the Licensee would result in irreparable and continuing
harm to the Association for which there would be no adequate remedy at law. Accordingly,
the Licensee agrees that in the event of any breach of this Agreement: (i) the
Association shall be entitled to injunctive relief and/or specific performance;
(ii) the Licensee shall not oppose such relief on the grounds that there is an
adequate remedy at law; and (iii) such equitable remedy shall be cumulative and
in addition to any other remedies at law or in equity (including monetary
damages) which may be available to the Association. The provisions of this
Section 11 shall survive the termination of this Agreement.
12. Governing Law and Jurisdiction. This Agreement shall be
governed and construed in accordance with the laws of the District
of Columbia , excluding principles of conflicts of laws, and the United States of America District of Columbia and
both parties consent to the jurisdiction of those courts.
IN WITNESS WHEROF, the parties hereto have caused this
Agreement to be executed and their respective official seals (if any) to be
hereunto affixed, by their respective officers who are duly authorized so to
do.