9215.01 - INTELLECTUAL PROPERTY LICENSING

West Clermont Local School District

Bylaws & Policies

9215.01 - INTELLECTUAL PROPERTY LICENSING

From time to time, the Board of Education of the West Clermont Local School District, Clermont County, Ohio (the "District"), deems it to be in its best interests to carefully select and license to certain vendors, groups, persons or entities the ability to reproduce, disseminate and/or sell products incorporating some of the District's intellectual property (such as logos, mascots, team names, emblems, etc.) ("Marks"). In such instances, the use of the District's Marks must be restricted and carefully governed due to issues of quality control, consistent imaging, focused branding, market saturation and other reasons. As such, the District will only license to certain persons or entities ("Licensees"), and those licenses will be restricted as to what the Licensee may do with the District's Marks. This Policy applies to the use of all Marks other than by the District itself. The District will execute a "License Agreement" with each Licensee wishing to use, in any manner, the District's Marks. Those License Agreements are governed by the terms contained in this Intellectual Property Licensing Policy ("Policy"). This Policy is broad and may include certain provisions that are not applicable to every Licensee signing a License Agreement. However, each Licensee signing a License Agreement will agree to be bound by the applicable terms and conditions of this Policy. Therefore, each such Licensee is strongly encouraged to carefully review this Policy before signing a License Agreement, and to keep a copy of this Policy and refer to it when performing under the License Agreement.

Capitalized terms used in this Policy that are not defined in this Policy have the specific meanings given to them in the License Agreement; however, their general English meanings are implied when reviewing this Policy without the benefit of a License Agreement.

A.	RESTRICTIONS ON LICENSE

	1.	Limitations on License. No license is granted under this Policy for the use of the Marks for any purpose other than upon the Licensed Articles (i.e., the articles listed on the License Agreement), except as otherwise provided in this Policy.

	2.	Designs of Licensed Articles. All designs of the Licensed Articles using the Marks, including any packages, containers or tags, shall be used in accordance with the terms of this Policy and for not other purpose. The Licensee shall not permit any other party to use such designs.

	3.	Required Promotional Materials. The Required Promotional Materials listed in the License Agreement, if any, shall accompany all Licensed Articles.

B.	LICENSE FEES, PAYMENT, AND AUDIT

	1.	Exceptions to Regular Payment. Notwithstanding the License Agreement:

		a.	all payments due for any Licensed Articles designated by the District as "fund-raiser" products shall be the excess of the net sales over the direct (i.e., not including overhead) cost of the Licensed Articles to the Licensee; and

		b.	no payments otherwise due shall be made for Licensed Articles which the District purchases from the Licensee.

	2.	Periodic Statement. Within thirty (30) days following the end of each calendar quarter, the Licensee shall furnish to the District a complete and accurate statement certified to be accurate by the Licensee showing the:

		a.	number;

		b.	description of items sold (specifying the Marks utilized, and specifying the nature of the Licensed Articles);

		c.	gross invoice price; and

	d.	itemized deductions from gross invoice price and net sales price of the Licensed Articles sold by the Licensee during the preceding calendar quarter, together with amounts refunded for any actual returns made during the preceding calendar quarter.

	The Licensee shall furnish such statements to the District whether or not any of the Licensed Articles have been sold during the preceding calendar quarter and whether or not payment is required.

3.	Receipt or acceptance by the District of any of the statements furnished under this Policy or of any amounts paid under this Policy does not preclude the District from questioning the correctness of the statements or payments at any time, and in the event that any inconsistencies or mistakes are discovered in the statements or payments, the Licensee shall immediately rectify the statements and make the appropriate payments. Any overpayment documented to the District's reasonable satisfaction may be withheld from subsequent payments due.

4.	Audit. The Licensee shall keep complete and accurate books of records covering all transactions relating to the License, including but not limited to invoices, correspondence, banking, financial and other records. The District and its agents may, at reasonable hours of the day, audit those records and other documents and materials in the possession or under the control of the Licensee. All records shall be kept available for at least two (2) years after the termination or expiration of the License Agreement.

5.	If, pursuant to its audit right, the District causes an audit to be instituted which discloses a deficiency between the amount found to be due to the District and the amount actually received by or credited to the District, the Licensee shall be responsible for payment of the deficiency, together with interest thereon at eighteen percent (18%) per year (or the maximum rate permissible by law, if less than eighteen percent (18%)) from the date such amount became due until the date of payment, and, if the deficiency is more than three percent (3%), then the Licensee shall also pay the reasonable costs and expenses of such audit and inspection.

6.	The exercise by the District of its audit rights or of any other right granted in this Policy, shall be without prejudice to any rights or remedies of the District.

7.	Upon demand of the District, but only if the total payments due to the District (in the District's good faith judgment) exceeds $10,000 in any twelve (12) month period, the Licensee shall, at the Licensee's own expense, but not more than once in any twelve (12) month period, furnish to the District a detailed statement by an independent certified public accountant showing:

	a.	number;

	b.	description of items sold (specifying the Marks utilized, and specifying the nature of the Licensed Articles);

	c.	gross invoice price; and

	d.	itemized deductions from gross invoice price and net sales price of the Licensed Articles sold by the Licensee up to and including the date upon which the District has made such demand.

	8.	Any payments which are made to the District by Licensee after their due date shall bear interest at eighteen percent (18%) per year (or the maximum rate permissible by law, if less than eighteen percent (18%)) from the date such payments are due to the date of payment.

	9.	The Licensee agrees to provide, at the District's request:

		a.	a grant to the District of a first-priority lien and security interest in the Licensee's inventory, contract rights and accounts receivable, and all proceeds thereof, with respect to the Licensed Articles; and/or

		b.	such other form of security acceptable to the District.

		The Licensee agrees to execute all documentation as the District may require in connection with perfecting such security interest.

C.	DISTRICT'S TITLE, GOOD WILL, ETC.

	The Licensee agrees that it will not attack the title or rights of the District in and to the Marks during and after the term of the License Agreement. The Licensee recognizes the value of the good will associated with the Marks, and acknowledges that the Marks and good will pertaining to the Marks belong exclusively to the District. The Licensee acknowledges that the Marks have a secondary meaning in the mind of the public. The Licensee further recognizes and acknowledges that a breach by the Licensee of any of its covenants, agreements, or undertakings under the License Agreement or this Policy will cause the District irreparable damage, which cannot be adequately remedied in damages in an action at law, and may, in addition, constitute an infringement of the District's trademarks and/or other proprietary rights, entitling the District to equitable remedies, costs and reasonable attorneys' fees.

D.	LABELING AND PROTECTION OF DISTRICT'S RIGHTS

	1.	Unless otherwise specified in this Policy, the Licensee shall cause to be imprinted, irremovably and legibly, on each of the Licensed Articles sold by it and on or within all advertising, promotional or display material displaying the Mark, to the right of such Marks, the encircled "R" (®) registration identification symbol, the "TM" (™) trademark or the "SM" (^SM) service mark symbol, as designated by the District. In the event that the Licensed Articles are marketed in cartons, containers and/or packing or wrapping materials bearing the Marks, such symbol shall also appear upon the cartons, containers and/or packing or wrapping materials. Each tag, label, imprint or other device containing any such symbol, and all advertising, promotional or display material bearing the Marks, shall be submitted by the Licensee to the District for its written approval prior to use by the Licensee. Such approval shall not be unreasonably withheld.

	2.	The Licensee shall cooperate fully and in good faith with the District for the purpose of procuring, preserving, and protecting the District's rights in and to the Marks. However, it is agreed that nothing contained in the License Agreement or this Policy shall be construed as an assignment or a grant to the Licensee of any right, title or interest in or to the Marks, it being understood that the Licensee's very use of the Marks shall inure to the benefit of the District, and that all rights relating to this Policy are reserved by the District, except for the License provided in the License Agreement. The Licensee agrees that upon the termination or expiration of License Agreement, the Licensee will be deemed to have assigned, transferred and conveyed to the District any trade right, good will, title or other rights in and to the Marks which may have been obtained by the Licensee or which may have vested in the Licensee in pursuing any endeavors covered by the License Agreement or this Policy, and that the Licensee will execute any instrument requested by the District to accomplish or to confirm the foregoing. Any such assignment, transfer or conveyance shall be without consideration other than the mutual covenants and considerations of this Policy.


	3.	All copy and material utilizing or connected with the Marks shall be submitted to the District for written approval or comment well in advance of any production. Such approval shall not be unreasonably withheld.

	4.	In the conduct of its business, the Licensee shall be reasonably diligent in keeping itself aware of products and services similar to the Licensed Articles that may be infringements or imitations by others of the Marks. The Licensee shall promptly notify the District in writing of any infringements or imitations by others in the Marks on articles similar to the Licensed Articles which may come to the Licensee's attention. The District shall have the exclusive right to determine whether or not any further action shall be taken on account of any such infringements or imitations. The Licensee shall not institute any suit or take any action on account of any such infringements or imitations without first obtaining the written consent of the District to do so. The Licensee shall not have any rights against the District for damages or other remedy by reason of the District's failure to prosecute any alleged infringements or imitations by others of the Marks.

E.	QUALITY OF MERCHANDISE

	1.	The Licensee agrees that the Licensed Articles shall be of such high standard and style, appearance and quality as to protect and enhance the Marks and the good will relating to the Marks. The Licensee further agrees that the sale and use of the Marks and the Licensed Articles by the Licensee shall be of such high standard that the same shall in no manner reflect adversely upon the good name of the District or any of its programs. To this end, the Licensee, before distributing or selling any of the Licensed Articles, shall furnish to the District without cost to the District for the District's examination and return and for the District's written approval, a reasonable number of samples of any advertising material, carton, container, packing and/or wrapping material used in connection with the Licensed Article. The quality and style of such Licensed Articles, as well as of any advertising material, carton, container, packing and/or wrapping material, shall be subject to the written approval of the District. Such approval shall not be unreasonably withheld.

2.	After samples have been approved pursuant to this section E., the Licensee shall not depart from the samples in any material respect without the District's prior written consent. From time to time, as the District may request in writing, the Licensee shall furnish without cost to the District, for the District's examination and return, additional random samples of each Licensed Article, together with any advertising materials, cartons, containers, packing and/or wrapping material used in connection with the Licensed Article. In the event that any Licensed Article fails to meet the high standards of style, appearance and quality necessary for the promotion and enhancement of the Marks, the Licensee, within ten (10) days of receipt of notice of such failure, at its own expense, will take the necessary measures to improve the Licensed Article so as to meet the required high standards of style, appearance and quality. (This determination of failure to meet standards shall be in the reasonable judgment of the District.) If the Licensee fails to do so, the District may, in the reasonable exercise of its judgment, withdraw its approval as to such Licensed Article. Upon written notice from the District, the Licensee shall:

	a.	cease the use of the Marks and the sale, advertising and/or use of such Licensed Article;

	b.	immediately withdraw such Licensed Article from the market; and

	c.	immediately and within thirty (30) days after any sales pay all amounts due the District for the particular Licensed Article.

	This Policy shall remain in full force and effect as to all other unaffected Licensed Articles.

3.	Any modification of a Licensed Article must be submitted in advance for the District's written approval as if it were a new Licensed Article. This approval shall not be unreasonably withheld. Approval of a Licensed Article which uses a particular Mark does not imply approval of such Mark for use with a different Licensed Article.

	4.	To avoid confusion of the public, the Licensee shall not associate other licensed properties with a Mark on a Licensed Article or in any packaging, promotional or display materials unless the Licensee receives the District's prior written approval. Furthermore, the Licensee agrees not to use any Mark (or any component of any Mark) on any business sign, business cards, stationery or forms, nor to use any Mark (or any component of any Mark) as part of the name of the Licensee's business or any division of the Licensee's business, unless the Licensee receives the District's prior written approval. These approvals shall not be unreasonably withheld.

F.	SALES

	1.	The Licensee agrees that it will diligently and continuously manufacture and sell the Licensed Articles during the term of the License.

	2.	The Licensee agrees that it will sell the Licensed Articles directly through its own facilities or retail stores for sale to the public. The Licensee shall not, without the prior written consent of the District, sell the Licensed Articles to jobbers, wholesalers, distributors, retail stores or merchants.

	3.	The Licensee agrees to sell to the District such quantities of the Licensed Articles at the Licensee's cost plus ten percent (10%) or such lower price as the parties may agree.

	4.	The Licensee shall at all times conduct all aspects of its business in compliance with all applicable Federal, State and local laws and regulations and court and administrative decrees.

	5.	The Licensee shall not be entitled to sublicense any of its rights under the License Agreement or this Policy. In the event that the Licensee is not the manufacturer for a Licensed Article, the Licensee shall, subject to the prior written approval of the District (which approval shall not be unreasonably withheld), be entitled to utilize a third party manufacturer in connection with the manufacture and production of the Licensed Article provided that such manufacturer shall execute a letter to the District in the form approved in advance by the District, agreeing, among other things, to be bound by this Policy. For these purposes, a copy of this Policy may be attached to that letter. In such event, the Licensee shall remain primarily obligated under all of the provisions of the License Agreement and this Policy. In no event shall any such authorization include the right to grant any further manufacturing contracts.

G.	INDEMNIFICATION

	1.	During the term of this Policy and after the expiration or termination of this Policy, the Licensee shall indemnify the District (and its board members, officials, employees and agents) and shall hold them harmless from any loss, liability, damage, cost or expense (including reasonable attorneys' fees) arising out of any claims or suits which may be brought or made against the District (and its board members, officials, employees and agents) arising out of:

		a.	any breach of any of the Licensee's warranties, representations or covenants under this Policy or the License Agreement or any allegations that, if true, would constitute such a breach;

		b.	any use of any trademark, copyright, design, patent, process, method or device, except for those uses of the Marks that are specifically approved by the District under this Policy or the License Agreement; and

		c.	any alleged defects and/or inherent dangers (whether obvious or hidden) in the Licensed Articles or the use of the Licensed Articles.

	2.	With regard to indemnification for defects and dangers in the Licensed Articles or their use, the Licensee agrees to obtain, at its own expense, product liability insurance from a recognized insurance company qualified to do business in the State of Ohio and any other jurisdictions included in the Territory providing adequate protection for the District and the Licensee against any such claims or suits in amount no less than $1,000,000 per occurrence, combined single limits. Upon request by the District, the Licensee shall submit to the District a fully paid policy or certificate of insurance as evidence of the coverage required by this section G.2.

H.	TERMINATION

	1.	The District, in addition to all other remedies available to it under this Policy, may terminate this Policy or the License with respect to the Licensed Articles to which section H.1.a. applies, by giving written notice of such termination to the Licensee if any of the following events ("defaults") occur:

		a.	The Licensee shall not have commenced in good faith to manufacture a Licensed Article during the applicable Initial Marketing Period, or (after the Initial Marketing Period) within any six (6) month period of time the Licensee fails to sell any units of a Licensed Article;

		b.	The Licensee is unable to pay its debts when due, or makes any assignment for the benefit of creditors, or files a petition under the bankruptcy or insolvency laws of any jurisdiction, country or place, or has appointed, or suffers to be appointed, a receiver or trustee for its business or property, or is adjudicated a bankrupt or an insolvent;

	c.	The Licensee undergoes a substantial change of management;

	d.	A manufacturer approved pursuant to section F.5. engages in conduct that, if the Licensee engaged in such conduct, would entitle the District to terminate the License;

	e.	The Licensee delivers or sells a Licensed Article outside the Territory or knowingly sells a Licensed Article to a third party for delivery outside the Territory without the prior written consent of the District; or

	f.	The Licensee or any of its affiliates breaches any other oral or written agreement in effect between the Licensee or its affiliate and the District.

2.	In the event any of these defaults occur, the District may give notice of termination in writing to the Licensee. Licensee shall have ten (10) days from the date of the notice in which to cure any of these defaults (except section H.1.a. which is not curable) and failing such cure, the License Agreement shall immediately terminate, and any and all payments then or later due from the Licensee under this Policy (including the Guaranteed Consideration) shall be promptly due and payable and no prior payments shall be repayable to the Licensee.

3.	Subject to section H.2., this Policy and all rights granted in the License Agreement shall terminate upon written notice by either party to the other in the event that the District violates or fails to perform any of the terms and conditions of this Policy and fails to correct or perform the same within sixty (60) days after receiving written notice of such violation or failure to perform from the Licensee.

4.	Termination of the License under the provisions of this section H. shall be without prejudice to any rights which either party may have against the other.

	I.	FINAL STATEMENT UPON TERMINATION OR EXPIRATION

		The Licensee shall deliver to the District, as soon as practicable, but not later than thirty (30) days following expiration or termination, a statement indicating the number and description of Licensed Articles on hand, or in the process of being manufactured, together with a description of all advertising and promotional material relating thereto. The District shall have the right to take a physical inventory to ascertain or verify such inventory and statement, and refusal by the Licensee to submit to such physical inventory by the District, shall forfeit the Licensee's right to dispose of such inventory.

	J.	DISPOSAL OF STOCK UPON TERMINATION OR EXPIRATION

		For sixty (60) days after expiration or termination of the License Agreement or this Policy, the Licensee may, except as otherwise provided in this Policy, dispose of the Licensed Articles which are on hand or in the process of being manufactured at the time notice of termination is received, but only in the normal course of business and at regular selling prices, provided all regular advances and royalties with respect to that period are paid and statements are furnished for that period. Notwithstanding anything to the contrary in this Policy, the Licensee shall not manufacture, sell or dispose of any licensed Articles after the expiration or termination of this Policy which evidence a departure by the Licensee from the quality and style approved by the District pursuant to section E. Notwithstanding anything to the contrary in this Policy, if this Policy is terminated due to nonpayment of any amounts due to the District or failure to file reports pursuant to this Policy, the Licensee shall have no rights under this section J. and the Licensee shall ship to the District, without cost to the District, all existing inventory, including related artwork, dies, molds, screens and other devices used in the manufacture or marketing specifically of Licensed Articles, for disposition by the District along with copies of all inventory records. The District's receipt of such inventory, records and other materials shall not constitute a waiver by the District of its rights to recover any amounts due the District pursuant to the License Agreement or this Policy or its rights to exercise any other remedies as provided by law or by contract.


	K.	EFFECT OF TERMINATION OR EXPIRATION

		Upon the expiration or termination of the License, all rights granted to the Licensee under this Policy shall revert to the District, and the Licensee will refrain from further use of the Marks or any further reference to them, direct or indirect, or anything deemed by the District to be similar to the Marks in connection with the manufacture or sale of the Licensee's products, except as provided in section J., if applicable. The provisions of all sections of this Policy, except for section A., E., and F., survive termination or expiration of this Policy.

	L.	NO PARTNERSHIP OR JOINT VENTURE

		Nothing in this Policy shall be construed to place the parties in the relationship of partners or joint venturers, and the Licensee shall have no power to obligate or bind the District in any manner whatsoever.

	M.	BINDING NATURE

		The Policy is binding on any Licensee that has executed a License Agreement.

See Form 9215F1

Adopted 4/26/16