Exhibit 10.2
EXHIBIT F TO ASSET PURCHASE AGREEMENT
TRADEMARK LICENSE AGREEMENT
This Trademark License Agreement (the
“ Agreement ”) is entered into as of
September 28, 2007 (the “Effective Date”), by and
between TeleTech Holdings, Inc. , a Delaware corporation
(“ Licensor ”), and Aspen Marketing Services,
Inc., a Delaware corporation, (“ Licensee ”),
(collectively, the “Parties”). Capitalized terms used
herein but not defined herein shall have the meanings assigned to
such terms in the Software License Agreement (as defined
below).
RECITALS
WHEREAS, the Parties hereto
executed a Software and Intellectual Property License Agreement
dated September 28, 2007 (the “ Software License
Agreement ”) whereby they have agreed to enter into this
Agreement;
WHEREAS, Licensor owns the
trademarks set forth in Section 1 of Schedule 1 attached
hereto (the “ Licensed Marks ”); and
WHEREAS, Licensee desires to
obtain from Licensor a license to use the Licensed Marks pursuant
to the terms and conditions set forth herein, including
Schedule 1 attached hereto.
NOW, THEREFORE, for and in
consideration of the mutual covenants and agreements set forth
herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties covenant
and agree as follows:
1.
LICENSE
Subject to the restrictions, terms
and conditions of this Agreement, Licensor hereby grants to
Licensee:
(a) an exclusive,
non-assignable, revocable, nontransferable, limited license to use
the Licensed Marks solely in connection with the Software and the
provision of the Services in the Territory for the Automotive Field
of Use; and
(b) a non-exclusive,
non-assignable, revocable, nontransferable, limited license to use
the Licensed Marks in connection with the Software and the
provision of the Services in the Territory for the Non-Automotive
Field of Use.
Notwithstanding the foregoing,
Licensor retains the rights to use the Licensed Marks (i) outside
the Territory, and (ii) in the Territory with respect to any
field of use other than the Automotive Field of Use.
Licensee shall have no right to
sublicense the Licensed Marks, or to grant sublicenses under this
Agreement. In no event shall Licensee use the Licensed Marks for
any reason beyond the terms provided in this Agreement without
first obtaining the prior written consent of Licensor. Licensor
retains all other rights not specifically granted herein.
2.
TRADEMARK RIGHTS AND OWNERSHIP
Licensee agrees and acknowledges
that:
(a) Licensor is the exclusive
owner of all right, title and interest in and to the Licensed Marks
including any goodwill associated therewith, subject to the license
granted to Licensee hereunder. To the extent any right, title
|
|
|
|
|
| |
|
|
|
|
| Trademark License Agreement |
|
Page 1 of 8 |
|
9/27/2007 |
or
interest in the Licensed Marks become vested in Licensee by
operation of law or otherwise, Licensee hereby assigns irrevocably
any such right, title or interest to Licensor;
(b) except as provided in this
Agreement, Licensee acquires no right, title or interest in or to
any of the Licensed Marks;
(c) any use of the Licensed
Marks by the Licensee and the goodwill arising from such use shall
inure to the benefit of the Licensor; and
(d) the Licensed Marks have not
yet been registered in the Territory.
3.
RESTRICTIONS ON USE
Licensee hereby agrees that it
will:
(a) not contest or assist
another in contesting the validity, ownership or enforceability of
any of the Licensed Marks or do anything that may disparage the
Licensed Marks or dilute the value of the goodwill attached to any
of the Licensed Marks;
(b) at all times use its best
efforts to preserve the value, reputation and validity of the
Licensed Marks;
(c) not allow any third party to
use the Licensed Marks;
(d) cooperate fully and in good
faith with Licensor for the purpose of securing or protecting
Licensor’s rights in and to the Licensed Marks, including,
without limiting the generality of the foregoing, the execution of
documents or the provision of labels, advertising or other
materials to Licensor at Licensor’s request; and
(e) use the Licensed Marks only
in connection with the Software and the Services.
4.
WARRANTIES
(a) Licensor hereby represents
and warrants, that Licensor exclusively owns and possess all right,
title and interest to the Licensed Marks, free and clear of any
lien, license or other restriction or limitation. To Seller’s
Knowledge use of the Licensed Marks does not and will not infringe
any third-party’s Intellectual Property and that Licensor has
the right to grant the license granted to Licensee hereunder.
5.
QUALITY CONTROL, MAINTENANCE, ENFORCEMENT
(a) Quality Control,
Maintenance .
(i) All
use of the Licensed Marks by Licensee shall be in accordance with
Licensor’s reasonable policies or guidelines regarding
advertising and trademark usage as established from time to time
and provided to Licensee in writing. Licensor shall provide
policies or guidelines to Licensee on use of the Licensed Marks
within thirty (30) days from the execution of the
Agreement.
(ii)
Licensor hereby covenants to Licensee that it will apply for
registrations for the Licensed Marks in the Territory, and maintain
current and future registrations that support the Licensed Marks,
including filing any renewals or other documentation as may be
necessary.
|
|
|
|
|
| |
|
|
|
|
| Trademark License Agreement |
|
Page 2 of 8 |
|
9/27/2007 |
(iii)
Any proposed use of the Trademarks by Licensee shall be submitted
to Licensor for approval at least twenty (20) days prior to
the use of the Licensed Marks by Licensee, such approval not to be
unreasonably withheld.
(iv)
Licensee shall provide to Licensor, no less than quarterly or as
reasonably requested from time to time by Licensor, two
(2) copies of all advertisements, promotional literature, and
other marketing materials that use or contain the Licensed
Marks.
(v)
Licensor shall have the right to inspect the premises of License
from time to time during normal business hours and upon reasonable
notice, in order to observe the performance of the Services and the
use of the Software to ensure compliance with the use of the
Licensed Marks pursuant to this Agreement.
(b) Enforcement by
Licensor .
(i) Licensor
shall have the right, in its sole discretion, to initiate, control,
and settle a suit or other legal proceedings in its name or, if
appropriate, in the names of Licensee and Licensor, to enforce and
defend the Licensed Marks in the Territory or outside of the
Territory if Licensor in its sole discretion determines that any
potential or actual infringement substantially impacts its rights
to the Licensed Marks. Licensor shall promptly notify Licensee in
writing of any potential or actual infringement or unlawful use of
the Licensed Marks that Licensor becomes aware of in the Territory.
Likewise, Licensee shall promptly notify Licensor in writing of any
potential or actual infringement or unlawful use of the Licensed
Marks that Licensee becomes aware of in the Territory.
(ii) Licensor
will pay the costs and fees of any suit or pro
| 
