THIS AGREEMENT ("Agreement'), effective as of the last day signed below ("Effective Date"), is by and between Rackspace US, Inc., located at 5000 Walzem Road, San Antonio, Texas 78218 ("Licensor") and the party accepting the terms of this Agreement as incorporated by reference ("Licensee").
WHEREAS, Licensor owns the trademark/service mark ("Mark") in Exhibit A and provides hosting services to Licensee.
WHEREAS, Licensee wants to use the Mark to inform others that Licensee, as a customer of Licensor, is using Licensor's hosting services.
NOW, THEREFORE, pursuant to the terms of the Agreement and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Licensor and Licensee (collectively "Parties") agree:
1. GRANT OF LICENSE
Licensor grants to Licensee a royalty-free, non-exclusive license, which Licensee may not sublicense or otherwise transfer, to use the Mark in connection with: Licensee's computer software applications, Websites, databases, and/or digital content hosted by Licensor, along with advertising and promotional materials related thereto, all for the purpose of informing others that Licensee is using Licensor's hosting services (collectively "Permitted Uses"). Licensee will benefit from having others see the Mark associated with Licensor. Licensor will benefit from the fact that the Mark, as used by Licensee, will effectively advertise and promote Licensor's hosting services.
2. QUALITY CONTROL
The law requires that trademark owners exercise quality control over use of their marks by licensees. So Licensee agrees that the nature and quality of all uses of the Mark and all goods/services connected therewith shall conform to standards set by and be under the control of Licensor. Licensee agrees to cooperate with Licensor to facilitate such control by Licensor, including but not limited to supplying Licensor with specimens of use of the Mark upon Licensor's request. One way Licensor will monitor quality is by paying special attention to complaints about Licensee that Licensor may receive under Licensor's Acceptable Use Policy ("AUP"), which is currently found at www.rackspace.com and may change from time to time. Licensor may change the form of the Mark in Exhibit A at any time by informing Licensee in writing, in which case Licensee will use only the newest form of the Mark. In any case, Licensee may use the Mark in either the color shown in Exhibit A or black and white. Communications regarding the Agreement shall be in writing and addressed to "General Counsel" at the addresses herein.
Licensee shall not: (a) violate applicable laws and regulations in connection with the Permitted Uses of the Mark or goods/services connected therewith; (b) present the Mark in a different form than appears in Exhibit A, unless directed by Licensor in writing; (c) use the Mark in such a way that might deceive others into thinking there is more of a relationship between Licensor and Licensee than Licensor simply providing hosting services to Licensee; (d) violate the AUP; or (e) use the Mark in connection with applications, Websites, databases, or digital content that (i) Licensor does not host, (ii) contain pornography or hate speech, or (iii) criticize Licensor.
Licensee acknowledges that the Mark carries goodwill and it is valuable for Licensee to be associated with such goodwill. Licensee acknowledges that, as between Licensor and Licensee, Licensor is the exclusive owner of all common-law trademark rights and registrations/applications worldwide for (a) the Mark and (b) all words and design elements that compose the Mark. Licensee agrees not to challenge such ownership or the Agreement, or attempt to obtain trademark registrations for the Mark or its component parts. Licensee acknowledges that the word RACKSPACE is not descriptive, generic, or weak in connection with hosting services. Licensee agrees that all uses of the Mark by Licensee shall inure to the benefit of Licensor. The Parties agree that the Agreement, in turn, inures to the benefit of Licensor's successors and assigns.
Licensee agrees to indemnify and hold harmless Licensor, Licensor's affiliates, Licensor's successors and assigns, and all those parties' stockholders, officers, employees, and agents (collectively "Licensor Parties"), from all third-party claims, actions, damages, losses, liabilities, costs and expenses (including, without limitation, reasonable attorneys' fees) against the Licensor Parties, in connection with (a) Permitted Uses of the Mark by Licensee; (b) non-permitted use of the Mark by Licensee; (c) Licensee's goods/services; (d) Licensee's advertising or promoting of its goods/services; (e) subject matter found in Licensee's applications, Websites, databases, and/or digital content; and/or (f) breach of the Agreement by Licensee. Licensor cannot warrant that use of the Mark by Licensee will not infringe the trademark rights of a third party—and thus Licensor does not agree to indemnify or hold harmless Licensee against third parties regarding Licensee's use of the Mark.
6. TERM & TERMINATION
The Agreement will continue in perpetuity unless (a) Licensee breaches the Agreement, (b) Licensee stops being a customer of Licensor, (c) Licensee becomes a competitor of Licensor, or (d) Licensor informs Licensee in writing that the Agreement is terminated (with or without cause), whichever comes first. Licensee agrees to immediately cease and desist all use of the Mark, upon termination of the Agreement, and not use any confusingly similar marks or words or design elements that compose the Mark. Section 4 of the Agreement survives termination of the Agreement.
The laws of the State of Texas or U.S. federal law shall govern any dispute regarding the Agreement, without giving effect to any principles of conflict of laws. The Parties submit to personal jurisdiction in the State of Texas.