This Trademark License, including the Brand Guidelines set forth herein (the "Trademark License"), applies to your use, in a manner that has been approved in advance by Charles & Colvard, Ltd. ("C&C"), of the C&C Licensed Marks and C&C Assets. Strict compliance with this Trademark License is required at all times, and any use of the C&C Licensed Marks and/or the C&C Assets in violation of this Trademark License and/or the Brand Guidelines will automatically terminate any license related to your use of the C&C Licensed Marks and/or C&C Assets.
-
Definitions.
"C&C Assets" mean the marketing copy and materials that C&C makes available to you to be used in conjunction with the C&C Licensed Marks regarding your marketing and sale of the Products.
"C&C Licensed Marks" means the applications for, the registrations of and any and all rights in the trademarks, services marks, trade names, logos and other indicia of source set forth in the brand guidelines in Section 3 below together with those made available on the Authorized Partner Portal, as may be established and updated from time to time by C&C (hereinafter, the "Brand Guidelines").
"Products" means moissanite that C&C manufactures and markets as "Charles and Colvard Created Moissanite®" and under various sub-brand names, including Forever One™, Forever Brilliant®, and Forever Classic™ (all of the moissanite manufactured by C&C jointly hereinafter referred to as "C&C Created Moissanite") and that you sell whether as loose stones or as finished jewelry incorporating C&C Created Moissanite, including that which you already have in your possession or that which you purchase from C&C under a definitive agreement or from other distributors.
-
Limited License.
Subject to the terms and conditions of this Trademark License and your strict compliance with the Brand Guidelines, during the Term, C&C hereby grants to you a limited, non-exclusive, non-transferable, non-sublicensable, royalty-free, fully paid-up right and license to use the C&C Licensed Marks and C&C Assets solely for the purposes of marketing, distribution, selling and reselling the Products in accordance with any definitive agreement in effect between you and C&C and the following limitations:
-
All uses of the C&C Licensed Marks and C&C Assets must, and you agree all uses of the C&C Licensed Marks and C&C Assets under this Trademark License shall, comply with any and all usage and Brand Guidelines set forth by C&C as may be amended from time to time.
-
You shall promptly comply with any and all notifications provided by C&C to you regarding your use of the C&C Licensed Marks and C&C Assets, including, without limitation, any notification instructing you to modify or cease your use of one or more C&C Licensed Marks, C&C Assets and sales of related Products.
Subject to the terms of this Trademark License, you may use commercially reasonable efforts to market and promote the Products, including without limitation, by featuring the Products on your website, and in any trade presentations. You shall not, however, incorporate any of the C&C Licensed Marks and/or C&C Assets with non-C&C materials (including but not limited to business signs, business cards, warranty or certificate of authenticity cards, stationery, forms, or as the name of your corporation or business) without C&C’s prior written approval. Further, you shall not use C&C Licensed Marks and/or C&C Assets in such a way as to create the impression that the C&C Licensed Marks and/or C&C Assets belong to you or that you and C&C are related or the same entity, or that could otherwise cause confusion in the marketplace.
You shall not, and shall ensure that your distributors, agents, retailers, subcontractors and customers do not, in any manner use, display, broadcast, or otherwise disseminate any advertising or promotional material which: contains material misrepresentations or omits any material fact with regard to C&C or the Products; contains any derogatory statement about C&C or the Products; dilutes the distinctive quality of or tarnishes the C&C Licensed Marks; uses the C&C Licensed Marks and/or C&C Assets with any third-party logo that could be misunderstood to imply a relationship between the entities; or uses the C&C Licensed Marks and/or C&C Assets in a legally binding document that could unintentionally obligate or encumber C&C.
You represent and warrant that your performance of all the terms of this Trademark License, including adherence to the Brand Guidelines, does not and will not breach any agreement to which you are a party or by which you are bound.
You shall not utilize C&C Trademarks and Copyright Works in connection with any sales of moissanite stones and/or jewelry which are not: (a) C&C Created Moissanite; or (b) jewelry that incorporates C&C Created Moissanite. You shall not utilize C&C Trademarks and Copyright Works in any way that could cause confusion in the marketplace between C&C Created Moissanite and any other third-party moissanite.
-
Brand Guidelines.
You agree:
-
That you and any of your distributors, agents or retailers will not use the C&C Licensed Marks in the following Pantone color ranges for the color yellow or for other yellow colors similar to those denoted by these Pantone ranges 600C-610C, 100C-103C, 106C-109C, 113C-116C, 461C- 458C, 3935C-3965C, and 7401C-7404C or against a yellow background of the same or similar shades of yellow referenced above;
-
That you and any of your distributors, agents or retailers will not use the C&C Licensed Marks in the color bronze in a filigree pattern;
-
That neither you nor any of your distributors, agents, or retailers acting at your direction will use the C&C design mark alone on the outside of any brick-and-mortar storefront, but will also include "C&C" or "Charles & Colvard" in relatively close proximity to the C&C design mark;
-
That you and any of your distributors, agents, or retailers acting at your direction will not use the C&C design mark on any prominent store signage visible from outside any brick-and-mortar store unless the C&C design mark is in relatively close proximity to "C&C" or "Charles & Colvard";
-
That if you or a distributor, agent, or retailer of yours violates the restrictions within these Brand Guidelines, within five (5) business days of you receiving notice or learning of the violation, you will promptly correct the violation and/or provide such distributor, agent or retailer with notice and require prompt correction of the violation, as applicable;
-
That you will include in your own brand guidelines the restrictions detailed in this Section 3 of this Trademark License, and that you will require that your distributors, agents and retailers adhere to the Brand Guidelines when using the C&C Licensed Marks.
-
That you will not utilize the C&C Licensed Marks in connection with your sales of moissanite stones or jewelry which is not C&C Created Moissanite or jewelry that incorporates C&C Created Moissanite.
-
That you will not make any disclosures, issue any statements or otherwise cause to be disclosed any information which is designed, intended or might reasonably be anticipated to disparage C&C, its officers, directors, its business, services, the C&C Licensed Marks, Products or personnel.
-
Ownership and Reservation of Rights; Notification of Infringement.
You acknowledge and agree that the C&C Licensed Marks are the exclusive and sole property of C&C, as between the parties. Nothing herein shall be construed as granting to you any ownership rights in or to the C&C Licensed Marks. All use of and intellectual property rights in the C&C Licensed Marks, C&C Assets and Products shall inure solely to the benefit of, and be solely on behalf of C&C. You have no right to register or to apply to register any trademarks or any confusingly similar mark as a corporate or trade name, domain name, trademark or service mark in any country or territory. It is understood and agreed that C&C, as authorized licensor and owner, shall have standing to enforce its rights in all intellectual property in connection with the C&C Licensed Marks, C&C Assets and Products.
You agree you will provide to C&C immediate written notice of any actual, suspected or potential misuse, infringement or dilution of or challenge to the validity of or by the C&C Licensed Marks known to you, and you shall, at C&C’s expense, render C&C full cooperation in the protection, prosecution and/or defense of the C&C Licensed Marks, including, but not limited to, executing any necessary and truthful documents and performing such acts as may reasonably be needed. If C&C enforces its rights in the C&C Licensed Marks against a potential infringement, C&C shall have the full opportunity to control the prosecution, defense or settlement thereof and any and all recovered amounts made shall be for the account of C&C.
You acknowledge that any breach or threatened breach of any of your obligations under this Trademark License will result in immediate and irreparable damage to C&C. You acknowledge that there is no adequate remedy at law for any such breach or threatened breach, and you agree that in the event of any such breach or threatened breach, C&C shall be entitled to injunctive relief and such other relief as any court with jurisdiction may deem just and proper, without the necessity of C&C posting any bond.
-
Audit Rights.
Upon C&C’s request, you shall promptly provide to C&C representative samples and any other requested samples of your uses of the C&C Licensed Marks and C&C Assets, including, without limitation, use of the C&C Licensed Marks on packaging, marketing and advertising materials, and websites.
-
Term and Termination.
The Trademark License granted herein shall continue in full force and effect for so long as you are in good standing and are authorized to use the C&C Licensed Marks in conjunction with your sale of Products (the "Term"). Notwithstanding anything herein to the contrary, C&C may immediately terminate the license set forth in Section 2 upon written notice to you if: (a) in C&C’s sole discretion, you breach or threaten to breach the terms set forth in this Trademark License, including the Brand Guidelines; (b) you should ever cease to have any Products in your possession or available to you for sale. Upon receipt of such notice of termination, you shall immediately cease all use of the C&C Licensed Marks and C&C Assets and, at C&C’s sole discretion, sale of Products associated with such C&C Licensed Marks. Sections 4, 6, 7, 8, 9 and 10 shall survive any termination or expiration of this Trademark License for any reason.
-
Disclaimer of Warranties by C&C.
C&C makes no warranties, whether express, implied or statutory, with respect to the C&C Licensed Marks and/or the C&C Assets. C&C disclaims any and all warranties with respect to the C&C Licensed Marks and C&C Assets including without limitation any warranties against infringement and implied warranty of merchantability or fitness for a particular purpose, and warranties that the Authorized Partner Portal will operate uninterrupted, defect-free or error-free. C&C makes no warranty regarding the accuracy, timeliness, truthfulness, completeness or reliability of any content obtained through the Authorized Partner Portal or any third party link/interface.
-
Indemnification
C&C shall defend, indemnify, and hold harmless you and your affiliates, officers, directors, agents, employees, permitted assigns and agents ("Your Representatives") from and against any and all obligations, actions, suits, claims, demands, settlements, judgments, damages, losses, liabilities, costs and expenses (including reasonable attorney’s fees), of whatever type or nature incurred by you and Your Representatives by reason of a third party claim or assertion brought against you and/or Your Representatives arising out of or related to your authorized use of the C&C Licensed Marks and C&C Assets in strict compliance with this Trademark License and the Brand Guidelines infringing on the intellectual property rights of such third party.
You shall defend, indemnify, and hold harmless C&C and C&C’s affiliates, officers, directors, agents, employees, permitted assigns and agents ("C&C’s Representatives") from and against any and all obligations, actions, suits, claims, demands, settlements, judgments, damages, losses, liabilities, costs and expenses (including reasonable attorney’s fees), of whatever type or nature incurred by C&C and C&C’s Representatives by reason of a third party claim or assertion brought against C&C and/or C&C’s Representatives arising out of or related to your violation of this Trademark License and/or the Brand Guidelines.
-
Limitation of Liability.
IN NO EVENT SHALL C&C BE LIABLE TO YOU FOR INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, ANY CLAIM FOR DAMAGES BASED UPON LOST PROFITS. In addition, in no event shall the collective, aggregate liability of C&C exceed $5.00.
-
General.
Your use of the Online Partner Portal is subject always to the terms of this Trademark License and the Terms of Use. The parties agree that the legal relationship of C&C and you is strictly in the nature of a licensor and a licensee, and nothing in this Trademark License shall be deemed to create a joint venture, agency, partnership, or employer-employee, employer-independent contractor/distributor relationship between the parties. Neither party shall have any power to enter into any contract or commitment in the name of, or on behalf of, the other party or to bind the other party in any respect whatsoever to any third party. Section headings are for reference purposes only and in no way affect the meaning or interpretation of this Trademark License. You may not assign or transfer to any third party this Trademark License or any of your rights or obligations hereunder without the prior written consent of C&C. Failure of either party to enforce any right under this Trademark License shall not constitute a waiver of such right or any other right. In case any one or more of the provisions of this Trademark License shall be held invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions contained herein, shall not in any way be affected or impaired thereby. To the extent of any conflict between the terms of this Trademark License and the terms of any agreement between you and C&C, the terms of this Trademark License control specifically with respect to the subject matter hereof and supersede all prior communications and negotiations between the parties as to that subject matter. For the avoidance of doubt, except as regards the subject matter of this Trademark License, the terms and conditions of any agreement between you and C&C continue in full force and effect. This Trademark License shall be governed by the laws of the State of North Carolina, without giving effect to the principles of conflicts of law thereof. Any legal action arising under this Trademark License will be brought solely in the federal or state courts of or located within the Eastern District of North Carolina, and both parties do hereby irrevocably consent to the exclusive jurisdiction and venue thereof. Any notice required or permitted by this Trademark License shall be in writing and deemed delivered if delivered: (a) by personal delivery when delivered; (b) by overnight courier upon written verification of receipt; (c) by certified or registered mail, return receipt requested, upon verification of receipt; or (d) by email notification as long as "NOTICE" or "LEGAL NOTICE" appears in the subject line of the email and the email is set up to show a delivery confirmation; and in the case of C&C, with a copy to the attention of Associate Legal Counsel at: Charles & Colvard, Ltd., 170 Southport Drive, Morrisville, NC 27560 and in the case of you, to the address set forth in your registration for the Authorized Partner Portal or any new address provided by the permitted notice methods above. If either party brings any legal action or other proceeding to interpret or enforce the terms of this Trademark License, the prevailing party shall be entitled to recover reasonable attorneys’ fees and any other costs incurred, in addition to any other relief to which it is entitled.