Poarch Band of Creek Indians Tribal Logo Usage Policy

Resolution to Approve Revisions to PBCI Tribal Logo Usage Policy – “Exhibit B”

Poarch Band of Creek Indians Tribal Logo Usage Policy

The following policy provides guidelines for use of the Poarch Band of Creek Indian’s Tribal logo by Tribal Members and various business entities approved by the Tribe. The logo, depicted below, is a wholly owned, federally registered trademark of the Poarch Band of Creek Indians (the “Tribe”) (Registration No. 4648938). The trademark and the design element are hereinafter referred to as the “Logo”:

 

The Tribe, by appropriate written license agreement, or other written approval, approved by the Tribe’s Legal Department, may grant Tribal Members, businesses owned by one or more Tribal Members and/or by the Tribe itself, and third parties doing business with the Tribe, a right to use the Logo pursuant to the terms of this Policy. These aforementioned users of the Tribe’s logo will be referred to as “Logo Users”.

In licensing or using the Logo, unless otherwise directed by the Tribal Council, the following guidelines shall be followed:

1. The Tribe must approve, via a written license agreement or other written approval, all proposed use(s) of the Logo prior to such use.
2. A Logo User may allow a manufacturer to produce goods that bear the Logo. However, the production of such goods by a manufacturer in no way conveys a sublicense or agreement to the manufacturer for use of the Logo.
3. Except as prescribed by the relevant license agreement, the Logo shall not be revised or altered in any way, and must be displayed in the same form and color as produced by the Tribe, unless appropriate and prior written Tribal approval has been provided.
4. If the Logo is placed on a website (or used in other electronic communications), such use shall include a link to the Poarch Band of Creek Indians website (i.e. www.poarchcreekindians.org).
5. The Logo may be licensed and used for the following activities:
   
   1. In a professional manner on a Logo User’s literature, advertisements, or in any other comparable manner to signify the Logo User’s business relationship with the Tribe if the User is in fact in a business relationship with the Tribe. In such instances, a WRITTEN LICENSE, substantially similar to EXHIBIT “A”, attached, must be approved by the Tribe’s Legal Department.
      1. If applicable, Sponsorship Agreements may be used in place of the Licensing Agreement. The Tribe’s Director of Strategy and Media Communications/ Government Relations Department must authorize the sponsorship.
   2. For personal use only by a Tribal Member to signify the person’s Tribal membership or affiliation. Any and all usage of the Logo by a Tribal Member must always include the word “Member” directly above the vertical arm of the Logo’s cross, directly below the vertical arm of the Logo’s cross or between one of two lower quadrants, between the lower vertical arm of the Logo and one of the two feathers. The Logo may not be used by a Tribal Member independent of the word “MEMBER”, unless the exception below applies. WRITTEN APPROVAL from the Tribe is required.
      1. Exception: Use of the word “Member” is not required when the logo is used by Tribal Council candidates for election/campaign purposes.
   3. In a professional manner in connection with a business that is wholly-owned by one or more Tribal Members or a business that is wholly-owned by a certified Poarch Creek Tribal Artisan via a WRITTEN LICENSE substantially similar to EXHIBIT “A”, attached, and as approved by the Legal Department. The commercial products and services utilizing the Logo must be approved prior to any production and/or sale of said product and/or service. The use of the Logo by a Logo User’s business cannot be in direct competition with any promotional, marketing or purchasable items of the Tribe. The WRITTEN LICENSE shall only be for one (1) year.
   4. For burial purposes of a Tribal Member. The family of a deceased Tribal Member may use the Logo for funeral services and/or headstone, gravestone, cremation container, or grave marker of the Tribal Member. The request must be made to the appropriate entity and proof of the deceased’s Tribal membership will be required. There will be no fee associated with such purposes. WRITTEN APPROVAL from the Tribe is required.
   5. In a professional manner in connection with a business that is owned or controlled by the Tribe. WRITTEN APPROVAL from the Tribe is required.
6. Notwithstanding any language in this Policy, the Logo may never be used by any Logo User, in any manner that, in the sole discretion of the Tribe:
   1. discredits the Tribe, or tarnishes the Tribe’s reputation and goodwill;
   2. is false or misleading;
   3. violates the rights of others;
   4. violates the law, regulation or other public policy; or
   5. mischaracterizes the relationship between the Tribe and the Logo User including, but not limited to, any use of the Logo that might be reasonably construed as endorsement, approval, sponsorship, or certification by the Tribe of the Logo User, the Logo User’s business or organization, or the Logo User’s products or services, or that might be reasonably construed as support or encouragement to purchase or utilize the Logo User’s products or services.
7. A Logo User may lose his/her/its right to use the Logo if the Logo User:
   
   1. discredits the Tribe or tarnishes its reputation and goodwill;
   2. conducts business in a false or misleading manner;
   3. violates the rights of others; or
   4. violates the law, regulation or other public policy.
8. Use of the Logo shall create no rights for the Logo User in or to the Logo or use beyond the terms and conditions of the relevant limited license agreement or other written approval.
9. The Logo shall remain at all times the sole and exclusive intellectual property of the Tribe.
10. The Tribe shall have the right, from time to time, to request samples of use of the Logo from the Logo User from which it may determine compliance with this Policy.
11. The Tribe reserves the right to prohibit the use of the Logo if it determines, in its sole discretion, that Logo User’s usage, whether willful or negligent, is not in strict accordance with this Policy.
12. Grievance Process:
    An applicant who disagrees with any decision regarding use of the Logo should file a written request for reconsideration with the Government Relations Department Internal Projects Manager within ten (10) business days of the denial/adverse decision. A written response shall be provided to the applicant within ten (10) business days and shall identify (1) the reason or reasons for such denial; and (2) the pertinent Policy provisions on which the denial is based.
    If there continues to be questions or disagreements about use of the Logo, the applicant must submit a letter to the Chief Government Affairs Officer within ten (10) business days after the decision of the Internal Projects Manager is made, requesting a review of the case file and documents. The Chief Government Affairs Officer can concur with the decision of the Internal Projects Manager or make recommendations regarding approval of the Logo use. A written response will be provided to the applicant within five (5) business days. 
    If there continues to be questions or disagreements about use of the Logo, the applicant must submit a letter in writing to the Government Affairs Legislative Committee within ten (10) business days after the decision of the Chief Government Affairs Officer is made, requesting a review of the case file and documents. The Government Affairs Legislative Committee can concur with the decision of the Chief Government Affairs Officer or make recommendations regarding approval of the Logo use. A written response will be provided to the applicant within five (5) business days.
    Any decision made by the Government Affairs Legislative Committee is considered final and no other administrative action is available to an applicant.

WHEREAS, Licensor is the owner of a tribal logo, contained in that certain federally registered trademark as Registration No. 4648938 by the U.S. Patent and Trademark Office (hereinafter the “Mark”); and

WHEREAS, Licensee desires to license from Licensor the Mark and to use the Mark in connection with the goods and/or services listed on EXHIBIT “A-1”, attached hereto and incorporated by this reference (hereinafter “Goods/Services”); and

WHEREAS, Licensor is willing to grant Licensee a license to use the Mark solely in connection with the Goods/Services strictly on the terms and conditions of this Agreement;

NOW, THEREFORE in consideration of the promises and covenants contained herein and for other good and valuable consideration, the Parties agree as follows:

1. LICENSE: Licensor hereby grants Licensee a limited and nonexclusive license (“License”) to use the Mark in connection with the Goods/Services identified on EXHIBIT “A-1”; provided that, Licensee offers the Goods/Services in accordance with the quality standards and specifications approved by Licensor, in writing. The Licensor reserves the absolute right to modify the quality standards and specifications from time-to-time, in writing, and Licensee shall immediately conform the Goods/Services to such new standard(s). Licensee shall deliver samples of the Goods/Services for Licensor’s inspection, which such samples shall be identical to the final Goods/Services and shall conform to the current standards and specifications dictated by Licensor. Licensee may use the Mark in advertising and promotion for the Goods/Services, but each and every separate advertising and promotion must receive the prior written approval of Licensor. Additional terms and conditions associated with the use of this Mark are outlined on EXHIBIT “A-2”.
2. GOODS/SERVICES: Licensee agrees to use the Mark solely in connection with the Goods/Services listed on EXHIBIT “A-1”. Licensee further agrees to use the Mark in strict compliance with the standards, specifications, directions, and information supplied (or approved) by Licensor, in Licensor’s absolute discretion. Licensee may not use the Mark in any advertising or promotion unless the prior approval of Licensor is obtained, in writing. Written approval must be obtained from the Licensor’s Internal Projects Manager/Government Relations Department to be valid. All final versions of any advertising or promotional material must receive final approval of Licensor before being shown or used.
3. MARK: Licensee agrees to comply with any and all requirements established by Licensor concerning the style, design, display and use of the Mark, and to correctly use the trademark registration symbol ® with use of the Mark.
4. QUALITY CONTROL: When requested by Licensor, Licensee agrees to immediately send true and correct samples of all advertising and promotional materials as well as all goods and services bearing or sold under the Mark, or utilizing the Confidential Information. In addition, Licensee agrees to immediately send any other requested document or item which may permit Licensor to determine whether the Goods/Services and use of the Mark and Confidential Information meet the standards, specifications and directions approved by Licensor.
5. OWNERSHIP: Licensee agrees that ownership of the Mark and the goodwill relating thereto shall remain vested in Licensor both during the period of this Agreement and thereafter. Licensee further agrees never to challenge, contest or question the validity of Licensor’s ownership of the Mark or any registrations thereof by Licensor. All goodwill with regard to the Mark shall vest and be owned by Licensor.
6. POLICING OF MARK: Licensee agrees to inform Licensor of the use of any marks similar to the Mark and any potential infringements of the Mark (or any of Licensor’s other trademarks or services marks) which come to Licensee’s attention.
7. REGISTRATION OF MARK: Licensor shall obtain and maintain the Mark as it deems appropriate in its sole discretion, which such maintenance may include, without limitation, obtaining and maintaining federal and state registrations for the Mark and derivations thereof. Licensor, as it deems appropriate, may also file suit or take other appropriate legal action against third parties infringing on the Mark. Licensee shall cooperate and assist Licensor in any reasonable manner with respect to registration and maintenance of the Mark, as well as any other measures, including legal action, to protect Licensor’s rights, title and interest in the Mark.
8. LITIGATION: In the event Licensee is named as defendant in any action based on its use of the Mark, Licensee agrees to immediately notify Licensor, and Licensor shall have the right to intervene in any such action and to control and direct the defense thereof, including the right to select defense counsel.
9. INDEMNIFICATION: Licensee hereby assumes all responsibility for and agrees to indemnify Licensor against any and all damages, losses, claims, suits or other expenses whatsoever arising out of this Agreement, Licensee’s promotion, advertising, use or sale of goods and services under the Mark, including Licensor’s reasonable attorneys’ fees incurred in the defense of any action against Licensor.
10. DISCLAIMER: The Mark is provided “As Is” and Licensor makes no representations, warranties or guaranties, express or implied, written or oral, arising by law, out of any course of performance, custom, industry standard or otherwise, with respect to the Mark, including warranties of merchantability, fitness for a particular purpose and non-infringement, all of which are expressly disclaimed.
11. LIMITATION OF LIABILITY: In no event shall Licensor, it subsidiaries or affiliates, or its or their representatives be liable, whether based on contract, tort (including negligence and strict liability), under any warranty or otherwise for any indirect, special, incidental or consequential losses or damages arising out of or related to this Agreement, the Mark, or use of the Mark by anyone other than Licensor, and Licensee hereby releases Licensor from any liability for all such losses and damages. Under no circumstances shall Licensor’s total cumulative liability for claims of any kind whether based on contract, tort (including negligence or strict liability), under any warranty or otherwise for losses or damages arising out of or related to this Agreement, the Mark, or the use of the Mark exceed One Thousand Dollars ($1,000), and Licensee hereby releases Licensor from any liability in excess of such amount.
12. TERMINATION:
    1. Licensor reserves the right to immediately terminate this Agreement in the following circumstances:
       1. Where Licensee has failed to perform or meet any term or condition hereof and has failed to correct the same within fifteen (15) calendar days after written notice of such failure by Licensor;
       2. Where (i) Licensee fails to vacate an involuntary bankruptcy, insolvency or reorganization petition or petition for an arrangement or composition with creditors filed against Licensee within sixty (60) calendar days after the date of such filing, or files such a petition on a voluntary basis; or (ii) Licensee makes an assignment for the benefit of creditors; or (iii) Licensee fails to vacate the appointment of a receiver or trustee for Licensee or for any interest in Licensee’s business within sixty (60) calendar days after such appointment; or (iv) Licensee’s interest or rights under this Agreement, or any part thereof, pass to another by operation of law without Licensor’s prior written consent; or (v) Licensee ceases to do business as a going concern or ceases to conduct its operations in the normal course of business.
    2. Notwithstanding Section 13(a) or any other provision of this Agreement to the contrary, Licensor may terminate this Agreement at any time and for any reason upon providing ninety (90) calendar days written notice to Licensee.
    3. The termination rights granted under this paragraph are cumulative with and in addition to any other rights or remedies to which Licensor may be entitled arising from any violation, default or breach of this Agreement.
    4. Upon termination, expiration or cancellation of this Agreement pursuant to Section 13, Section 14, or otherwise, the rights granted hereunder shall immediately become null and void, and Licensee shall discontinue all use of the Mark, but such termination or cancellation shall not affect any obligation or liability incurred by Licensee prior to termination or cancellation. Any Goods which are left on-hand as of the termination must be destroyed. Prior to destruction, the Goods must be offered to Licensor “at cost.” All advertising and promotional materials must be destroyed as of the termination date.
13. TERM: This Agreement shall continue for a period of one (1) year unless terminated sooner by delivery of written notice to the non-terminating Party as outlined in section 12 of this Agreement.
14. ASSIGNMENT: This Agreement is not assignable by Licensee without the prior written consent of Licensor. Licensee may not sublicense any of the rights granted herein; although the Licensee may allow others to manufacture goods bearing the Mark on their behalf. This Agreement will inure to the benefit of the Licensor, its successors and assigns.
15. RELATIONSHIP: The relationship which Licensee holds as to Licensor is that of an independent contractor. This Agreement is not intended to create and shall not be construed as creating between Licensee and Licensor the relationship of principal and agent, joint venturers, co-partners or any other similar relationship, the existence of which is hereby expressly denied, nor shall Licensee be considered in any sense an affiliate or subsidiary of Licensor. Licensee shall not have any authority to create or assume in Licensor’s name or on its behalf any obligation, expressed or implied, or to act or purport to act as Licensor’s agent or legally empowered representative for any purpose whatsoever. Neither Party shall be liable to any third party in any way for any engagement, obligation, commitment, contract, representation, transaction or act or omission to act of the other, except as expressly provided herein. The Parties agree that nothing in this Agreement is intended to create a franchise relationship.
16. CHOICE OF LAW: This Agreement shall in all respects be governed by, construed and enforced in accordance with the laws of the State of Alabama, applicable to contracts executed and to be wholly performed therein. Any claim with regard to this Agreement must be brought in a state or tribal court within the geographic boundaries of Escambia County, Alabama.
17. WAIVER: The waiver by either Party of a breach of a provision of this Agreement shall not operate or be construed to invalidate the balance of the provisions contained in this Agreement, which shall continue to remain in effect. To the fullest extent allowed by law, each Party waives any right to a jury trial.
18. SEVERABILITY: The finding by any court that a provision of this Agreement is invalid shall not operate or be construed to invalidate the balance of the provisions contained in this Agreement, which provisions shall continue to remain in full force and effect.
19. ENTIRE AGREEMENT: This Agreement contains the entire agreement between the Parties relating to the subject matter hereof, and all prior proposals, discussions or writings are superseded hereby. The terms of this Agreement shall be binding upon and shall inure to the benefit of the Parties and their successors, heirs and assigns.

IN WITNESS WHEREOF, the parties hereto execute this Agreement by their duly authorized representatives on the date set forth above.