License Agreement

This LICENSE AGREEMENT is entered into as of

by and between Smile Train, Inc. having its principal office at 633 Third Avenue, 9th Fl, New York, New York 10017 (hereinafter referred to as 'Licensor')'; and the business and/or individual checking the digital tick box requesting assets on the smiletrain.org website (hereinafter referred to as 'Licensee').

WITNESSETH:

WHEREAS, Licensor is the owner of, inter alia, throughout the Territory, all right, title and interest in and to that certain “logo”, a copy of which is attached hereto as “Exhibit A” and made part hereof, and all related marks (the “Logo”);

WHEREAS, Licensee desires to include the Logo on its primary website and/or on certain promotional materials for fundraising purposes only in connection with the Licensee's campaign in the Territory; and

WHEREAS, Licensor is willing to grant Licensee a non-exclusive limited license to use the Logo for the purpose described herein.

NOW, THEREFORE, in consideration of the foregoing and of the covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto do hereby agree as follows:

1. DEFINITIONS

“Territory” shall mean the universe.

2. LICENSE OF RIGHTS

a) Licensor hereby non-exclusively licenses to Licensee the right to include the Logo on Licensees primary website and all related promotional materials for fundraising purposes only, throughout the Territory during the Term of this Agreement

b) All rights not expressly granted hereunder, including but not limited to, the right to exploit the Logo in connection with any commercial purposes, are reserved by Licensor.  For the sake of clarity, Licensee may not use the Logo in connection with any commercial purposes whatsoever.

3. APPROVALS

a) Licensor shall have the right to approve, in its own discretion, any and all uses of the Logo. Wherever in this Agreement Licensor’s approval or consent is required, Licensee will request Licensor for such approval or consent in writing (which may be given by email) and furnish Licensor with the information in respect of which such approval or consent is sought.  Licensor shall give Licensee written notice of approval or disapproval (which may be given by email) within five (5) business days of receipt of such approval or consent request from Licensee.  In the absence of Licensor’s response to Licensee’s approval or consent request within five (5) business days, any such approval or consent shall automatically be deemed denied by the Licensor.

b) Licensor’s prior approvals shall be required for any and all uses of the Logo.

4. REPRESENTATIONS AND WARRANTIES BY LICENSOR

Licensor represents and warrants that:

a) Licensor has the full right, power, legal capacity and authority to enter into this Agreement and to carry out the terms hereof and to grant to Licensee the rights and privileges granted hereunder;

b) There are no liens, claims, encumbrances, legal proceedings, restrictions, agreements or understandings which will or which may conflict or interfere with, limit, or are inconsistent with or otherwise affect any of the provisions of this Agreement or the enjoyment by Licensee of any right granted to it hereunder; and

c) Licensor owns or controls without any limitations, restrictions or encumbrances, all rights granted to Licensee hereunder and Licensor has obtained all necessary licenses and permissions required for the manufacturing, distribution, exhibition, advertising, exploitation and otherwise of the Assets throughout the Territory, as may be required for the full and unlimited exercise and enjoyment by Licensee of all of the rights herein granted to it.

5. WARRANTIES BY LICENSEE

Licensee represents and warrants to the Licensor as follows, each of which is a material inducement to the Licensor to enter into and perform this Agreement, and shall survive the termination of this Agreement for any reason:

a) Licensee, and each of Licensee’s shareholders, officers, employees, representatives and other persons acting on its behalf, has and will continue to have all necessary licenses, registrations and qualifications necessary or appropriate to enable Licensee to perform its services as described herein and Licensee shall perform its services in full compliance with all applicable laws, rules and regulations;

b) Licensee has the full right, power, legal capacity and authority to enter into this Agreement and to carry out the terms hereof and to exercise and fulfill the rights granted by Licensor to Licensee hereunder;

c) Licensee is subject to no restraint of any kind which would or might have any effect on Licensee’s ability to perform any of Licensee’s obligations or agreements under or otherwise comply with this Agreement;

d) Licensee is a corporation duly incorporated, validly existing and in good standing under the laws of the jurisdiction in which it was incorporated; and

e) All information given or to be given to the Licensor by Licensee is and shall be accurate and complete in all respects and shall not contain any misstatement of material information nor any intentional or negligent omission of any material fact.

6. INDEMNIFICATIONS

a) Licensee shall indemnify, defend and hold the Licensor and its directors, officers, employees, affiliates, and agents ("Indemnitees") harmless against loss, damage, including reasonable attorney’s fees, arising out of any action or proceeding by Indemnitees or any third parties resulting from any breach by the Licensee of any of the provisions hereof, or the breach of any of the warranties and representations set forth herein.  Prompt written notice will be given to the Licensor of any action or proceeding to which the foregoing indemnity relates, and the Licensee shall participate in the defense thereof at its sole cost and expense.  The Licensee shall reimburse the Indemnitees on demand for any payment made at any time after the date hereof with respect to any liability or claim to which the foregoing indemnity relates in case of an adverse final judgment of a court of competent jurisdiction or settlement out-of-court such as a compromise with Licensor’s prior written consent.

7. TERM AND TERMINATION

a) This Agreement shall become effective on the date of this Agreement, and shall expire one (1) years thereafter.

b) In the event that Licensee commits a substantial breach of any of the provisions contained herein or with respect to its obligations to be performed, except for reasons of force majeure, and fails to remedy the breach within a period of thirty (30) days after being requested to do so in writing, or in the event that Licensee shall go into bankruptcy or compulsory liquidation, or make an assignment for the benefit of creditors, or make any compositions with creditors, or if any insolvency proceeding shall have been commenced by or against Licensee, then Licensor shall have the right to terminate the Agreement forthwith by giving written notice and without prejudice to any and all rights at law which Licensor may have.

8. RIGHTS AND OBLIGATIONS UPON EXPIRATION

Upon the expiration of the Term, all use of the Logo shall cease.  The Logo delivered hereunder by Licensor and any derivative made therefrom in Licensee’s possession or control shall either be destroyed or returned to Licensor.

9. ASSIGNMENT

Licensee may not assign this Agreement, by operation of law or otherwise, without the prior written consent of Licensor.

10. RELATIONSHIP OF PARTIES

The relationship between the parties hereto is that of licensor and licensee.  Neither party hereto is an agent, partner or employee of the other and neither party has any right or any other authority to enter into any contract or undertaking in the name of or for the account of the other or to either assume or create any obligation of any kind, express or implied, on behalf of the other, nor will the acts or omissions of either create any liability for the other.  This Agreement shall in no way constitute or give rise to a partnership or joint venture between the parties.

11. NOTICES

All notices or other communications required or permitted to be delivered hereunder shall be in writing and (i) delivered personally, (ii) sent by registered or certified mail (return receipt requested), postage prepaid, (iii) sent by recognized national or international air courier, or (iv) via facsimile with confirmation of receipt, addressed to the parties at the addresses first written hereinabove.  Any such notice or other communication shall be deemed to have been given or made as of the date received. 

12. MISCELLANEOUS

a) This Agreement sets forth the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior discussions, representations, understandings and agreements, whether written or oral, between the parties with respect to the subject matter hereof.  This Agreement may be altered, modified or amended only by a written document signed by the parties hereto.  There are no statements, representations or warranties upon which either party is relying which have not been set forth herein.

b) The rights and remedies provided herein shall be cumulative and not exclusive of any other rights or remedies provided at law or in equity.  Failure or delay of either party at any time to require performance of any provision under this Agreement shall not affect the right of such party to require full performance thereafter and a waiver by either party of a breach of any provision of this Agreement shall not be taken or held to be a waiver of any further or similar breach or as nullifying the effectiveness of such provision.  A waiver of any provision hereunder shall be effective only if such waiver is in writing and signed by the party against whom such waiver is sought to be enforced.  Failure or delay on the part of either party to exercise any right, remedy, power or privilege provided for herein or by statute, by law, in equity or otherwise shall not operate as a waiver thereof, nor shall any single or partial exercise of any such right, remedy, power or privilege preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

c) This Agreement shall be binding upon and shall enure to the benefit of Licensor, its successors and assigns, and Licensee, its successors and permitted assigns.

d) Notwithstanding anything to the contrary contained herein, in the event that any clause, term or provision of this Agreement which is not material is determined by any court or administrative agency of competent jurisdiction to be illegal, unenforceable or in conflict with any applicable law, this Agreement shall continue in full force and effect as if the offending clause, term and provision hereof were no longer incorporated herein.

e) The parties agree that the failure of any party at any time to require performance of any provision under this Agreement shall not affect the right of such party to require the full performance thereof and that a waiver by any party of a breach of any provision of this Agreement shall not be held to be a waiver of any further or similar breach or as nullifying the effectiveness of such provision.

f) This Agreement shall be governed in accordance with the laws of the State of New York applicable to contracts executed and to be fully performed therein without regard to the choice of law principles thereof.

g) If any dispute between the parties leads to litigation, the parties agree that the courts of the State of New York in the City and County of New York, or the federal courts in that City and County, shall have the exclusive jurisdiction and venue over such litigation.  All parties consent o personal jurisdiction in the State of New York, and agree to accept service of process outside of the State of New York as if service had been made in that state.

h) The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.

i) This Agreement may be executed in several counterparts and via facsimile, each of which shall be deemed an original and all of which shall constitute one and the same instrument.

IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date and year first written above.