Manufacturer License Agreement

Applicant hereby affirms that the answers provided to the questions in this Application are true and complete.

Applicant acknowledges that Alpha Phi Alpha Fraternity, Inc. (“ALPHA” or “Fraternity”) can accept or reject any application in the Fraternity’s sole discretion. Reasons for rejection may include, but not be limited to, incomplete application; the existence of any lawsuit; unresolved contractual claim or dispute between the applicant and the Fraternity; providing false or misleading information; if the Fraternity has ever taken any disciplinary action against the applicant; prior infringement and or unauthorized use.

Applicant acknowledges the Fraternity will not be liable for any costs incurred by the Applicant in the preparation and submission of it’s Application. The Fraternity also will not be responsible for, nor bound by, any oral instructions, interpretations or explanations issued by the Fraternity or its representatives.

Applicant hereby acknowledges the proprietary nature of the names, logos, designs and trademarks of the Fraternity (collectively and individually “Fraternity Marks”) and will not challenge or assist another in challenging the validity of such marks.  In addition, Applicant will inform the Fraternity if it becomes aware of another using the Fraternity Marks without permission or a license to do so; will not combine Fraternity Marks with those of another; and will not alter or otherwise change the appearance or character of any Fraternity Mark from that as shown in the attached Trademark Sheet.  Applicant further acknowledges that all right, title and interest to the Fraternity Marks belongs to, and is used solely for the benefit of, ALPHA. Applicant agrees that it will not use any of the Fraternity Marks without prior written consent from the Fraternity.

Applicant hereby acknowledges and agrees that the Fraternity at all times has, and will continue to have, many projects in various stages of development and that the results of these endeavors may be similar or identical to the Applicant’s own products or projects. If the Applicant submits any creative suggestions, ideas, notes, drawings, concepts, designs, or other information (collectively, “Applicant Submissions”) that includes any of the Fraternity Marks, the Applicant hereby assigns royalty-free to ALPHA all current and derivative rights of every nature and description, in perpetuity, throughout the world, in such Applicant Submissions. Applicant shall not insert or use ALPHA Marks with a design belonging to another.  Applicant Submissions shall be deemed without limitation, and shall remain, the sole property of the Fraternity. None of the Applicant Submissions shall be subject to any obligation of confidence on the Fraternity’s part and the Fraternity shall not be liable for any use or disclosure of any Applicant Submissions.

Applicant also acknowledges that its right to use Applicant Submissions, where it includes Fraternity Marks, is contingent upon Fraternity’s approval of this Application and issuing it a license, and that such rights will terminate upon termination or expiration of such license. Applicant further acknowledges that no confidential relationship is established by the submission of this Application to the Fraternity.

Applicant acknowledges that the individual signing this form below is over the age of 18, has been duly authorized to sign on behalf of Applicant and acknowledges that he/she has carefully read the contents of the Application packet, and fully understands them.  Applicant also acknowledges that it has had an opportunity to retain an attorney to review this application on its behalf.

Applicant acknowledges that it has retained a copy of this Application and anything else provided in connection with the Application, and it releases the Fraternity from liability or loss or damage to anything provided in connection with the Application.

This Application and any dispute arising under it shall be governed by and construed in accordance with the laws of the State of Maryland without regard to conflict of law principles.

MANUFACTURER LICENSE AGREEMENT FOR 2024

Please note that you are not authorized to design, make, sell, offer to sell or post (hereinafter “Sale”) any item bearing registered or unregistered trademarks or service marks of ALPHA PHI ALPHA FRATERNITY, INC. until the Fraternity has signed and returned a copy of this Manufacturer License Agreement for 2024 to you and you have received your Certificate of License signed by the Fraternity, which lists those items containing Fraternity Marks that have been approved for your sale. Sale of any item bearing any Fraternity Mark will be considered a willful and knowing infringement subject to any and appropriate action(s) available to ALPHA.

This Manufacturer License Agreement for 2024 (“Agreement”), when executed by both parties hereto, is effective on January 1, 2024 by and between Alpha Phi Alpha Fraternity (hereinafter “Fraternity or Alpha”), a corporation having its principal address at 2313 Saint Paul Street, Baltimore, MD 21202, and the manufacturer identified in the signature block to this Agreement (hereinafter referred to as “Manufacturer“).

In consideration of the mutual covenants and agreements herein set forth and for other good and valuable consideration, receipt whereof the parties hereto acknowledge, it is agreed as follows:

1. License. Subject to the terms and conditions, and with the limitations and exceptions hereinafter set forth, the Fraternity hereby grants to Manufacturer and Manufacturer hereby accepts a non-transferable, non-assignable, limited, non- exclusive and terminable right to use the Fraternity trademarks as listed in the Alpha 2024 Trademark Sheet attached hereto and incorporated by reference herein (the “Fraternity Marks”) solely upon, and in connection with, the manufacture, sale, posting, and distribution of non-prohibited and non-exclusive items and articles identified on Manufacturer’s 2024 Certificate of License (the “Licensed Goods”). Each entity or individual not an employee of Manufacturer that it engages to make, design or provide items for sale bearing Fraternity Marks (a “manufacturer”) on its behalf must also pay ALPHA the requisite manufacturer’s fee and be independently approved and licensed by ALPHA. The license fee for each U.S. based manufacturer is as stated in the Manufacturer Application or otherwise agreed to in a separate writing. Manufacturer shall not make or sell any item that is deemed by the Fraternity to be made exclusively by another party.
2. Quality of Merchandise. Manufacturer understands that the Fraternity Marks are a valuable property right and Manufacturer agrees at all times to sell and to create the Licensed Goods using the Fraternity Marks in strict conformity with the Fraternity’s rules, regulations and policies including the Fraternity’s most current 2024 Code of Conduct (the “Code”), which is incorporated by Manufacturer guarantees all Licensed Goods: (a) will be manufactured and sold in compliance with all applicable United States federal, state and local rules and regulations; (b) are free from material defects in materials and workmanship and are fit and safe for the use(s) normally and reasonably intended; (c) are new; (d) are of merchantable quality; (e) do not copy the proprietary design of another; (f) do not infringe upon another’s intellectual property rights; and (g) are not prohibited by the Fraternity. In the event an official written complaint has been made to the Fraternity, Manufacturer will immediately stop making, remove and stop selling such item(s) until the issue has been resolved; are free of all liens, encumbrances, restrictions, deflects, and other claims against title or ownership at the time of sale; conform in all respects to the specifications set forth in the Code; and were made in the U.S. by Manufacturer unless otherwise previously communicated to, and licensed by, the Fraternity in writing in the Application.Manufacturer agrees to: abide by any changes the Fraternity makes to the Fraternity Marks and to the symbols associated with the Fraternity Marks; sell merchandise only to members and those buying on behalf of members;  submit to the Fraternity for pre-approval any custom design requested by, and to make and sell items to, chapters, districts, regionals, General Office or otherwise pursuant to a request and/or a RFP; affix the Fraternity Marks to the merchandise themselves; purchase items from a Manufacturer currently licensed by Alpha; and submit requested representative items that it makes and sells without charge to verify its quality and compliance.
3. Compliance with Laws. Manufacturer is solely responsible for the compliance with all applicable laws, regulations and safety standards including those regarding the operation of its business, product design, manufacture, packaging and labeling. The Fraternity’s approval of the Licensed Goods in no way affects, alters, diminishes or waives Manufacturer ‘s obligations hereunder or Manufacturer’s obligation to indemnify the Fraternity as set forth in this Agreement.
4. Goodwill in Fraternity Manufacturer shall not during the “License Term” or Thereafter:
   1. 1. Apply to register, or maintain any application or registration, any mark(s) that include Fraternity Marks, it’s common law trademarks; those similar thereto; or indicia used to reference the Fraternity;
      2. Alter or use any colorable imitation or any variant form of Fraternity Marks not specifically and previously approved in writing by Fraternity;
      3. Take any action that would falsely associate or tend to destroy, question, diminish, blur or tarnish the goodwill in the Fraternity Marks or the Fraternity as determined by the Fraternity in its sole discretion; or
      4. Post, make, design, offer to sell or sell any Licensed Products through any method or in any manner prohibited by the Code.
         As a condition of Fraternity’s execution of this Agreement, if Manufacturer takes any action in violation of the above paragraphs 4(b) thru 4(d), Manufacturer grants Fraternity the right to immediately remove such item(s) from Third Party websites and platforms without prior notice or permission. In addition, if Manufacturer files an application to claim ownership or seek registration as stated in paragraph 4(a) above, Manufacturer immediately herein assigns all rights, ownership and interest to such application and resulting registrations to the Fraternity.
5. License Term. Unless sooner terminated in accordance with the provisions hereof, this License and the rights conferred hereunder are granted to Manufacturer for the calendar year January 1 to December 31, 2024 (the “License Term”). Manufacturer assumes all risks in the quantities of Licensed Goods manufactured and/or ordered during the License Term and will not be reimbursed or paid by Fraternity for any Licensed Goods Manufacturer is unable to sell before the expiration of the License Term, including Licensed Goods not sold due to early termination of this Agreement. The Fraternity may, but is not obligated to, permit Manufacturer to sell Manufacturer’s remaining inventory of Licensed Goods beyond the License Term upon terms and at an agreed price in a separate written agreement. Please note that items approved in a previous year must also be compliant, and submitted for approval, with the rules of the current year which is subject to change from time to time.
   1. 1. Termination Without This Agreement may be terminated by Fraternity at any time during the term of this Agreement without cause upon 60 days prior written notice of termination to Vendor.
      2. Termination for Cause. This Agreement may be terminated by written notice given to Manufacturer at any time during the term of this Agreement if an “Event of Default” as such term is defined in this Agreement.
6. Fees. Manufacturer agrees to pay a license fee(s) (“License Fee”) according to the fee schedule set forth in this Manufacturer Application. This License Fee does not include booths or exhibit space, which are awarded independently and apart from this process, and at an additional charge for specific conferences or events. The License Fee also does not include any additional marketing, advertising or sponsorship opportunity the Fraternity may offer to Manufacturer. No Manufacturer is guaranteed to be able to vend at an “Approved Fraternity Function” as defined in the Code. Manufacturer acknowledges that it must pay an import fee for items made outside of, but sold within, the U.S. No international sales are allowed without a separate written agreement.
7. Event of It shall be an event of default (“Event of Default”) under this Agreement if the Fraternity determines in its sole discretion:
   1. 1. that Manufacturer has failed to perform or observe any covenant, requirement, term or condition contained in this Agreement; or
      2. that Manufacturer has failed to perform or observe any covenant, requirement, term or condition contained in the Code; or
      3. any representation or warranty contained herein, or in any document provided to Fraternity in connection with the Fraternity’s issuance of the License herein (including any representation in Manufacturer’s Application), shall be false or misleading in any material respect; or
      4. proceedings under the United States Bankruptcy Code or any other federal or state bankruptcy, reorganization, receivership, insolvency or other similar law affecting the rights of creditors generally, have been instituted against Manufacturer which proceeding is not dismissed within thirty (30) days of filing; or
      5. Manufacturer jeopardizes Fraternity Marks or goodwill through its actions, inactions or associations including, but not limited to: making political or campaigns statements; making representations or goods referencing the Fraternity or associating it with immoral, divisive, racist, discriminatory or demeaning actions or
8. Remedies upon Default. If an Event of Default occurs under this Agreement, the Fraternity may terminate the License Agreement at any time thereafter, and/or exercise all other available rights and remedies provided by this Agreement, the Code of Conduct, law or equity.
9. Injunction. Manufacturer acknowledges that its breach of any of the terms or conditions of this Agreement, or its failure upon the expiration or termination of this Agreement to cease the manufacture and/or sell of the Licensed Goods, shall result in immediate and irreparable damage to the Fraternity. Manufacturer also acknowledges that there may be no adequate remedy at law for such failures and that in the event thereof the Fraternity shall be entitled to equitable relief in the nature of an injunction and to all other available relief, at law and/or in equity.
10. Effect of Termination. Upon any termination or expiration of this Agreement, Manufacturer shall immediately: (a) cease using the Fraternity Marks; (b) cease all posting, offers, advertising and sales of the Licensed Goods; and (c) cease identifying itself as a Licensed Manufacturer. Further, Manufacturer shall verify under oath and in writing within 30 days that it has either destroyed all Licensed Goods remaining after its License has ended or has been terminated, or that it has delivered them to the Fraternity’s Headquarters. Nothing herein shall relieve Manufacturer from any obligation or liability to the Fraternity created as a direct or indirect result of Manufacturer’s actions or inactions.
11. Miscellaneous.
    1. 1. Non-Assignability. This Agreement shall be binding upon and inure to the benefit of the parties only and shall not inure to the benefit of any successors in interest, assigns, or otherwise be assignable.
       2. Further Assurances. At any time and from time to time after the Effective Date hereof, Manufacturer shall execute such additional instruments (such as applications for federal registrations where applicable) and take such action as may be reasonably requested by the Fraternity to confirm, perfect, or otherwise protect Fraternity rights and title to any Fraternity Intellectual Property, or Applicant Submission bearing Fraternity Marks, used hereunder or otherwise to carry out the intent and purposes of this Agreement.
       3. Waiver; Remedies Cumulative. No failure or delay on the part of any party hereto in the exercise of any right hereunder will impair such right or be construed to be a waiver of, or acquiescence in, any breach of any representation, warranty, covenant or agreement herein, nor will any single or partial exercise of any such right preclude other or further exercise thereof or of any other right. All rights and remedies existing under this Agreement are cumulative with, and not exclusive of, any rights or remedies otherwise available.
       4. Notices. All notices and communications hereunder shall be made in writing and shall be deemed to have been given if delivered in person or one (1) day after being deposited with a nationally recognized overnight courier service or four (4) days after being deposited in the U.S. mail, First Class with postage prepaid, and addressed to the attention of Manufacturer at the address set forth below and to the Fraternity to the address listed in the preamble to this Agreement. Email notices shall be deemed given on the date sent if a copy of the notice also is mailed in accordance with requirements set forth above. Either party may substitute a different address from time to time, if such substitute is provided to the intended notice recipient in writing by notice given in the manner provided in this subsection.
       5. Hold Harmless and Indemnity.  With legal counsel acceptable to the Fraternity, Manufacturer shall defend, indemnify and hold harmless the Fraternity and its directors, officers, employees, representatives and agents from and against any and all claims, demands, suits, actions, losses, penalties, damages (whether actual, punitive, consequential or otherwise), authorized settlements, and all other liabilities and associated costs and expenses, including attorney’s fees, expert’s fees, costs of investigation and other costs of litigation (arising out of or relating to: (i) any breach of this Agreement by Manufacturer, its agents, employees, representatives, or others under its control; (ii) any negligent, grossly negligent or intentional acts, errors or omissions by Vendor, its agents, employees, representatives, or others under its control; (iii) strict liability or products liability with respect to or in connection with the Licensed Goods; (iv) any actual or alleged defects or deficiencies in the Licensed Goods or the use thereof, or false advertising, fraud, misrepresentation or other claims related to the Licensed Goods; and/or (v) the actual or alleged infringement or misappropriation of patent, copyright, trademark, trade secret rights, confidential information, proprietary rights, or other rights of a third party.
12. Insurance. Manufacturer must obtain and continuously maintain throughout the License Term the insurance policies in the amounts and types set forth in the Application and the Fraternity shall be included on the policy as an “Additionally Insured”.
13. No Third-Party Beneficiaries. Nothing in this Agreement, either express or implied, is intended to or shall confer upon any third party any legal or equitable right, benefit or remedy of any nature whatsoever.
14. Limitation on Damages. IN NO EVENT SHALL THE FRATERNITY BE LIABLE TO MANUFACTURER FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES OR LOST PROFITS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE) ARISING IN ANY WAY OUT OF THIS AGREEMENT, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
15. Headings. The section and subsection headings in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of’ this Agreement.
16. Governing Law. The validity, interpretation, and effect of this Agreement shall be governed exclusively by the laws of the State of Maryland without giving effect to the principles of conflicts of laws The parties agree that any action, proceeding or claim arising out of or in any way relating to this Agreement shall be brought and enforced in the courts of the State of Maryland or of the federal court of the United States of America for the State of Maryland and each irrevocably submits to such jurisdiction. The parties hereto irrevocably waive any objection to such jurisdiction or inconvenient forum. Any such process or summons to be served upon any of the parties may be served by transmitting a copy thereof by registered or certified mail, return receipt requested, postage prepaid, to the address set forth above. Such mailing shall be deemed personal service and shall be legal and binding upon the party served in any action, proceeding, or claim.
17. Survival. The provisions of this Agreement that by their terms or implication extend beyond the Term, including without limitation Section 4, Section 11e) and Section 11h) shall survive the termination or expiration of the License Term.
18. Independent Contractor. Each party shall be deemed to be an independent contractor and not an agent, joint venturer or representative of the other party, and neither party may create any obligations or responsibilities on behalf of or in the name of the other party.
19. Manufacturer’s Further Representation and Warranties. Manufacturer represents and warrants to Fraternity that: (i) as of the Effective Date it has the full legal right, power and authority to enter into and perform this Agreement and (ii) that the persons signing this Agreement on behalf of Manufacturer are authorized to sign.
20. Prevailing Party. In the event either party must retain the services of attorney(s) to enforce the terms of this Agreement or to file or defend any action arising out of this Agreement, then the prevailing party in any such action shall be entitled, in addition to any other rights and remedies available to it at law or in equity to recover from the other party its reasonable fees for attorneys and expert witnesses, plus such court costs and expenses as may be fixed by any court of competent jurisdiction. The term “prevailing party” for the purposes of this Section shall include a defendant who has by motion, judgment, verdict or dismissal by the court, successfully defended against any claim that has been asserted against it.
21. Severability. If any term, covenant, condition or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, it is the parties’ intent that such provision be reduced in scope by the court only to the extent deemed necessary by that court to render the provision reasonable and enforceable and the remainder of the provisions of this Agreement will in no way be affected, impaired or invalidated as a result.
22. Reservation of Matters. Any matters not herein expressly provided for in this Agreement shall be decided by the judgment of the Fraternity’s Executive Director or General President and such decision shall be binding upon Manufacturer.
23. Counterparts. Entire Agreement. This Agreement, including the Code of Conduct and the exhibits, sets forth the entire understanding and agreement of the Parties as to the subject matter of this Agreement and supersedes all prior agreements, understandings, proposals and representations, oral or written, between the parties as to the subject matter. No amendment of any term or condition of this Agreement shall be effective unless executed in writing by the party charged therewith. In the event of any conflict or inconsistency between this Agreement and the terms set forth in any Exhibit including the Code, the same shall be determined and interpreted by the Fraternity’s General President or Executive Director whose determination and interpretation shall be final and binding in all respects and upon all interested persons. This Agreement may be signed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. If either party submits by electronic scanning an executed copy of this Agreement, that copy shall be deemed to be an original.
24. Acceptance by Fraternity. This Agreement, when signed by Manufacturer or a duly authorized officer of Manufacturer, shall be deemed an application for a license and not a binding agreement unless and until signed by a duly authorized officer of the Fraternity and all of the requirements to secure a license have been satisfied. The receipt and/or deposit by the Fraternity of any check or other consideration given by Manufacturer and/or the delivery of any material by the Fraternity to Manufacturer shall not be deemed an acceptance by Fraternity of this Agreement.