TRADEMARK LICENCE AGREEMENT

WHEREAS:

1. Professional Surveyors Canada (“PSC”) is the owner of the full right, title and interest in and to the trademarks listed in Schedule A attached hereto (collectively, the “Marks”) for use in association with the services described in Schedule B attached hereto (“the Services”) within Canada, except for the Province of Saskatchewan.
2. You wish to use the Marks in the provinces or territories in Canada, excluding the Province of Saskatchewan, where you are a licensed or registered cadastral surveyor (the “Territory”) in association with the Services (as defined herein).
3. PSC is willing to permit such use of the Marks under the terms and conditions set forth in this Agreement, including the requirement that you meet the conditions and qualifications listed in Schedule C (collectively, the “Requirements”), which may be unilaterally amended from time to time by PSC in accordance with this Agreement.

NOW THEREFORE in consideration of the foregoing and the mutual promises, covenants and agreements herein contained, and for other good and valuable consideration, the receipt and sufficiency of which the parties hereby acknowledge, the parties agree as follows:

1. Preamble. The preamble of this Agreement is an integral part of this Agreement.
2. Subject to the terms and conditions of this Agreement, PSC hereby grants to you a limited, non-exclusive, non-sublicensable, revocable, non-transferable, non-assignable, right and licence to use the Marks in the Territory during the term in association with the Services provided that you are (a) an Approved Person (as defined below) and (b) in compliance with the Requirements (the “Licence”). “Approved Person” means an individual who is a licensed or registered cadastral surveyor in good standing (as that term is defined under provincial or federal legislation, as applicable, in the Territory) to perform cadastral surveys. For clarity, the Licence is personal to you, and the Licence may not be assigned, transferred or sublicensed to any other person or used for purposes other than as described in this Agreement. Using the Marks for any other purpose or in any other manner is strictly prohibited. Using the Marks while not in compliance with the Requirements is strictly prohibited. Any use of the Marks, other than as specifically authorized under this Agreement, including sublicensing to any person and using the Marks while not in compliance with the Requirements, is strictly prohibited and may, at the discretion of PSC, terminate the Licence.
3. You acknowledge and agree that your use of the Marks shall at all times be under the control of PSC, and you shall co-operate with PSC in facilitating the exercise of such control by PSC. You shall comply with the policies, standards and specifications for the use of the Marks as specified by PSC in its sole discretion from time to time, including in relation to design, quality, manufacture and materials used if applicable. You shall use the Marks only in association with the Services and with no other goods or services, and such use shall be in conformity with said standards, specifications and policies.
4. Prohibited Use. You shall not, at any time, either during the term or any renewal thereof of this Agreement, or at any time thereafter:
   • (a) contest or dispute or assist another in contesting or disputing, directly or indirectly, the validity, ownership, control or enforceability of PSC’s right, title and interest in and to the Marks and the goodwill attached thereto, or do anything that may tend to disparage the Marks or dilute the value of the goodwill attached to the Marks;
   • (b) use the Marks for any purpose except as authorized herein, including as a translation in another language;
   • (c) separately use any element or elements of the Marks and may only use each of the Marks as a collective whole;
   • (d) use the Marks in any manner likely to negate, impair or dilute any of the rights of PSC;
   • (e) adopt, use, register, record or file any trademark, design, copyright, symbol, name, word or other mark which includes or is identical to or confusingly similar to any of the Marks, or any part thereof, and shall not do anything or omit to do anything that may impair, jeopardize, violate or infringe the Marks and/or the goodwill attached thereto, or PSC’s rights thereto;
   • (f) use the Marks in any manner likely to affect the validity or distinctiveness of the Marks;
   • (g) advertise, exploit, promote, market or otherwise offer the Services in association with the Marks in any manner which will adversely affect the reputation of PSC, the Marks and the goodwill attached thereto, and the Services;
   • (h) associate intellectual property belonging to others or use any words (whether in English, French or any other language), graphics or designs with the Marks, or on Marketing Collateral (as defined below) relating to the Services, without the prior written consent of PSC;
   • (i) adopt, use, register, record or file or attempt to register, record or file the Marks, or any part thereof, as part of its trademarks or its Identifiers (as defined below), or as an Identifier, without the prior written consent of PSC. The term “Identifiers” means business names, corporate names, keywords, social media designations or handles, hashtags and/or domain names. If such consent is given, you acknowledge and agree that all such usage shall enure to the benefit of PSC and shall be in strict accordance with any policies, standards and specifications prescribed by PSC;
   • (j) engage in any form of conduct, or make any statements or representations, of whatsoever nature, that would harm PSC’s reputation, goodwill or commercial interests; and
   • (k) use the Marks on or in connection with any goods or services that are or could reasonably be deemed to be obscene, pornographic or disparaging of PSC or its goods or services, or that are themselves unlawful.
5. Upon request from PSC, you will promptly provide PSC with samples of any documents bearing the Marks that may be created in providing the Services, together with all Marketing Collateral bearing the Marks. PSC and its agents have the right of access to your business premises at reasonable times and during ordinary business hours for the purpose of inspecting and verifying that the use of the Marks, the Services, the quality of the Services, and the advertisement thereof, strictly comply with the policies, standards and specifications prescribed by PSC. PSC shall give you at least two (2) days advance notice of any inspection, and the inspection shall take place at a time which is mutually agreeable to both PSC and you.  On PSC’s request, you shall, at your sole cost and expense, provide access to the Services, and all documentation, brochures, pamphlets, manuals, handbooks, stickers, marketing collateral and advertising and promotional materials (collectively, the “Marketing Collateral”) bearing the Marks to PSC to enable PSC to determine if you have complied with this Agreement. If you fail to comply with this Section, PSC can withdraw from the market any of the Services and Marketing Collateral with the Marks thereon which fail to comply with the said policies, standards and specifications.
6. Consideration. The parties agree that:

                 (a)          In consideration of the right and licence herein granted, you shall pay to PSC an annual membership fee described on this link or in the transaction or membership agreement between you and PSC (the “Membership Fee”). The Membership Free shall be paid in accordance with this Agreement or any transaction or membership agreement between you and PSC, plus any applicable taxes (including any goods and services taxes) during the term of this Agreement. The Membership Fee, payments and fees specified in this Agreement are exclusive of taxes, duties and similar governmental levies. PSC reserves the right to change at any time the Membership Fee without any notice or liability to you or any other person.

• (b) If and when applicable, you shall pay all taxes, duties and similar governmental levies, and any related interest or penalty, howsoever designated and imposed as a result of the existence or operation of this Agreement, including and not limited to any sales, excise, transfer and goods and services taxes, and any tax which you are required by law to withhold or deduct from payments or fees, including the Membership Fee, to PSC, except for taxes on the income or profits of PSC. All payments and fees, including the Membership Fee, payable pursuant to this Agreement must be paid free and clear of any and all deductions or withholdings relating to any taxes, duties or similar governmental levies (collectively, the “Withholding Taxes”), unless you are compelled by law to deduct or withhold Withholding Taxes, in which event you must separately pay to PSC such additional amounts that are necessary for PSC to receive, net of the Withholding Taxes, an amount equal to the full payment or fee, including the Membership Fee, that otherwise would have been paid under this Agreement if no Withholding Taxes existed. You must pay all Withholding Taxes as required by applicable law. You will furnish to PSC such evidence as may be required by governmental authorities to establish that any such tax has been paid. If PSC is required to collect a tax to be paid by you, you shall pay such tax to PSC on demand and PSC shall furnish evidence to you that such tax has been remitted to the appropriate governmental authorities.
• (c) Any payments or fees, including the Membership Fee, that are made later than the date on which they become due pursuant to this Agreement shall bear interest at the prime rate of the Royal Bank of Canada plus 3% per annum and shall be payable on demand.
• (d) All references to dollar amounts or currency in this Agreement shall be lawful money of Canada.

7. Ownership. You hereby covenant, acknowledge and agree that:
   • (a) PSC is the exclusive owner of the Marks and all goodwill attached thereto, and all intellectual property relating thereto.  Any use of the Marks or any variation thereof by you and the goodwill arising from such use shall enure to the benefit of PSC.
   • (b) Except as provided for in this Agreement, you acquire no right, title or interest in or to any of the Marks, any of the goodwill attached thereto, nor to any intellectual property relating thereto. Nothing in this Agreement shall be construed as an assignment or grant to you of any right, title or interest in or to the Marks and any goodwill attached thereto, or any intellectual property relating thereto, except as otherwise stated in this Agreement.
   • (c) Any modification, improvement, translation, arrangement or enhancement to the Marks and/or the goodwill attached thereto, and any intellectual property relating thereto, other than as specifically authorized under this Agreement, without the prior written consent of PSC, is strictly prohibited and may, at the discretion of PSC, terminate this Agreement, and any intellectual property (including copyright and goodwill) made, created, conceived, discovered or developed by you, or under your direction, either solely or jointly with others, which relates to, relies on or uses the Marks and/or the goodwill attached thereto, and any intellectual property relating thereto, shall be the sole exclusive property of PSC. You hereby acknowledge, agree and covenant to disclose promptly in writing to PSC any such intellectual property.
   • (d) You hereby assign and transfer and/or shall cause the assignment and transfer over to PSC of any right, title and interest, worldwide, you may have or may in the future acquire in and to the Marks and/or the goodwill attached thereto, and any intellectual property relating thereto, and in any trademarks or Identifiers using the Marks or a variation thereof, without any remuneration.
   • (e) You agree, at the request of PSC, to do or to cause all lawful acts to secure and protect PSC’s rights and interests in the Marks and the goodwill attached thereto, and in any intellectual property relating thereto, without any compensation, but without expense to you, and you agree, when requested by PSC, to execute, acknowledge and deliver to PSC, without additional compensation but without expense to you, any and all instruments, assignments, waivers and documents.
   • (f) You waive any rights which you may have in the Marks and the goodwill attached thereto, and in any intellectual property relating thereto, including moral rights.
   • (g) You agree to adopt reasonably conspicuous trademark and/or copyright notices that clearly indicate that the Marks are owned by PSC and are being used by you under licence, in a form approved by PSC.

8. Compliance. You shall comply with all relevant and applicable laws and regulations when using the Marks. All labelling using the Marks shall be submitted to PSC prior to    its use for PSC’s approval in writing.

9. Maintenance. PSC shall pay all costs of renewing and maintaining the Marks. PSC may take steps to apply for trademark, certification mark and copyright protection and registration of the Marks in the name of PSC or its nominee at the expense of PSC. You agree to cooperate fully and in good faith with PSC for the purpose of securing or protecting PSC’s legal rights in any of the Marks and/or any intellectual property relating thereto.
10. Infringement. The parties agree that:
    • (a) You shall promptly notify PSC in writing of any conflicting use, act of infringement or appropriation that comes to your attention regarding the Marks, the Licence and/or the Services, and shall provide any evidence relating to same which is reasonably available.
    • (b) If notified of such conflicting use, appropriation or infringement by you, PSC shall have the sole right but not the obligation, at PSC’s sole cost and expense, (1) to bring an action against the alleged infringer or to take steps as it may deem necessary in order to terminate such conflict, infringement or appropriation; and/or (2) to investigate, defend, litigate and settle any such complaint. Unless requested by PSC, you shall not (1) bring an action against the alleged infringer or take steps to terminate such conflict, infringement or appropriation; and/or (2) investigate, defend, litigate and settle any such complaint.
    • (c) You shall cooperate fully with and assist PSC to the fullest extent possible on any such action or complaint, and execute such documents and do such other acts and things as in the opinion of PSC may be necessary, including to have any of your employees testify (by way of affidavit or otherwise) when requested by PSC, and to make available any records, papers, information, specimens, and the like. If requested by PSC, you shall join in or cooperate in such action or complaint. Any such action or complaint by PSC, with or without you as a party, shall be at PSC’s expense, including reasonable legal fees incurred by you.
    • (d) PSC may, in its sole discretion, pay, compromise or settle any action or complaint as it sees fit.  Any damages or sums recovered by PSC in such action or complaint, or any settlement thereof, shall be retained by PSC. You shall not at any time settle any action or complaint without first obtaining the written consent of PSC.

11. Disclaimer.  The right and licence granted herein is granted on an “as is, where is” basis and PSC in granting the right and licence hereunder assumes no liability whatsoever for any infringement or violation of any trademark, trade secret, industrial design, copyright, patent, or any other intellectual property or proprietary rights owned or controlled by third parties by reason of your exercise of any of the rights and licence granted hereunder. PSC makes no representations or warranties, express or implied, as to any matter whatsoever arising out of or in connection with this Agreement, the Marks, the Licence, the Services, or any intellectual property relating thereto, or any other subject matter of this Agreement, and hereby disclaims all warranties and representations of any kind, express or implied, including implied warranties of performance, merchantability, satisfactory quality, fitness for a particular purpose, or non-infringement of third party intellectual property rights.

12. Consequential Damages. In no event shall PSC be liable for any consequential, incidental, indirect, special or punitive damages (including, but not limited to, damages for loss of profits, for business interruption, for failure to meet any duty of good faith or of reasonable care, for negligence, or for any other pecuniary loss or other loss whatsoever) arising out of or in any way related to the use of or inability to use the Marks, the Licence or the Services, or any intellectual property relating thereto, or any other subject matter of this Agreement, even if a representative of PSC has been advised of the possibility thereof.
13. You hereby agree to indemnify PSC and its affiliates, subsidiaries, shareholders, directors, officers, suppliers, representatives, customers, employees and agents and hold them harmless from any and all claims, suits, demands, costs, damages, actions, causes of action, liabilities and expenses (including legal fees) whatsoever, arising, whether directly or indirectly, from the use of the Marks and/or from the distribution, promotion, sale, process, disposition, advertising, quality, performance, use or characteristics of the Licence or any of the Services or the Marks. PSC shall have the right to defend any action or proceeding relating to the aforesaid with attorneys of its own selection.
14. Term & Renewal. The term of this Agreement will commence on the date of your acceptance of this Agreement and shall remain in effect for one (1) year until terminated as provided in this Agreement or in any transaction or membership agreement between you and PSC. This Agreement shall automatically renew upon PSC’s receipt of payment of your Membership Fee in each year, on the terms and conditions set out in this Agreement or in any said transaction or membership agreement, unless a party gives written notice to the other party that it does not wish to renew at least thirty (30) days prior to the expiration of the then current term or unless you fail to pay your Membership Fee.
15. The parties agree that:
    • (a) PSC shall have the right to terminate this Agreement, effective immediately, without prior notice, at the option of PSC, upon a breach of this Agreement by you as a result of any of the following events:
      • (i) If a breach of any condition, term, covenant, provision, warranty or representation contained herein by you is not cured or resolved within fifteen (15) days’ of receipt of written notice of such breach.
      • (ii) The filing of a petition by you under any bankruptcy or insolvency law, your assignment of assets in favour of your creditors (except as security for performance of an obligation), your acceptance of the appointment of a receiver, trustee or other officer holding similar powers, or your insolvency or inability to honour your obligations as they become due.
      • (iii) You cease to do business.
      • (iv) The disposition, by conveyance, transfer, lease, assignment or otherwise of all, or substantially all, of your assets.
      • (v) The non-payment by you of any payments or fees, including the Membership Fee, when due under this Agreement or under any transaction or membership agreement between PSC and you.
    • (b) If PSC terminates this Agreement due to any of the events in Section 15(a)(ii) or Section 15(a)(iii), this Agreement will be deemed to be terminated on the day immediately prior to the date on which the said event occurred.
    • (c) Either party shall have the right to terminate this Agreement, at any time and without cause, upon the provision of one month’s written notice to the other party.
    • (d) Where either party is given a right to terminate hereunder and does not exercise the same, such forbearance shall not be deemed to be a waiver of such party’s right to terminate upon any subsequent or future event by which such party has, or is provided with, the right to terminate this Agreement.
    • (e) Termination of this Agreement shall not relieve either party from any financial or other liability which arose prior to the effective termination date.
16. Consequences on Termination. Upon the termination or expiration of this Agreement, for any reason whatsoever:
    • (a) you shall immediately cease any and all use, directly or indirectly, of the Marks, and discontinue the provision of all of the Services in association with the Marks;
    • (b) you shall immediately assign to PSC your trademarks and Identifiers which contain the Marks or any variation thereof, or, at the option of PSC, shall change or cancel your trademarks and/or Identifiers to delete the Marks or any variation thereof contained in such trademarks or Identifiers;
    • (c) you shall remove the Marks from or deliver to PSC all Marketing Collateral, including articles and signs, in your possession or control bearing the Marks. Alternatively, you shall, with the written consent of PSC, destroy all such Marketing Collateral, and you shall certify such destruction to PSC;
    • (d) all rights, including the right and licence granted to you under this Agreement, will cease;
    • (e) you shall within five (5) business days return all documentation or copies thereof, in any form whatsoever, of any materials or documents of any kind provided to you by PSC during the term or any renewal thereof of this Agreement;
    • (f) all payments or fees, including the Membership Fee, to which PSC is entitled pursuant to this Agreement or any transaction or membership agreement shall be immediately paid to PSC by you; and
    • (g) you agree to the termination or expiry of the rights and licence granted hereunder.
17. Assignment & Enurement. This Agreement and all of the rights, interests or obligations hereunder shall not be assigned or transferred, in whole or in part, by you, without the prior written consent of PSC.  This Agreement shall enure to the benefit of, and be binding upon, each of the parties and their respective successors and permitted assigns.
18. Further Assurances. Each party shall, at its own expense, execute and deliver such further documents, conveyances, deeds, assignments, transfers and the like, and do such other acts as the other party may reasonably request for the purpose of carrying out and giving full force and effect to the provisions of this Agreement.
19. Notices. Any notice or other communication required or authorized under this Agreement to be given by either party to the other party shall be in writing and may be delivered in person or by courier, transmitted by facsimile or via email, or sent by prepaid registered mail, and addressed to the addresses described in any transaction or membership agreement between you and PSC or such other parties or such other addresses as either party shall notify the other party in writing.  Any notice or other communication given shall be deemed to be received on the date of delivery by person, by courier or by transmission by facsimile, as the case may be, or on the seventh day from the date of mailing. Any notice or other communication sent via email shall be deemed to be received on the date of transmission if confirmation of delivery is obtained and if such notice or other communication is also given by courier.
20. Governing Law. This Agreement and each of the documents contemplated by or delivered under or in connection with this Agreement are governed exclusively by and are enforced, construed and interpreted exclusively in accordance with the laws of Ontario and the laws of Canada applicable in Ontario, which will be deemed to be the proper law of this Agreement.  Each of the parties irrevocably submits to the jurisdiction of the courts of Ontario with respect to any actions arising from this Agreement. Notwithstanding the foregoing, either party may apply to any court to obtain injunctive relief and any other available equitable or legal remedy regarding any matter relating to their confidentiality or proprietary rights.
21. Survival. All obligations under this Agreement that necessarily extend beyond termination or expiration of this Agreement in order to fully achieve their intended purpose shall survive termination or expiration of this Agreement, including without limiting the generality of the foregoing, all indemnification provisions, intellectual property provisions, confidentiality provisions, representations, warranties, covenants, disclaimers, limitations of liability provisions and ownership provisions.
22. Entire Agreement. This Agreement and its Schedules, and any existing transaction or membership agreement between the parties, and any amendments thereto, constitute the entire agreement between the parties with respect to the subject-matter hereof and supersedes all prior agreements or understandings, whether written or oral.
23. Equitable Relief. You acknowledge and agree that a breach by you of this Agreement may cause PSC irreparable damage which cannot be readily remedied in monetary damages in an action at law, and may, in addition thereto, constitute an infringement of the Marks. In the event of any default or breach by you that could result in irreparable harm to PSC or cause some loss or dilution of PSC’s goodwill, reputation or rights in the Marks, PSC shall be entitled to seek immediate injunctive relief or specific performance, or both, to prevent such irreparable harm, loss or dilution in addition to any other remedies available.
24. All rights and remedies of each party under this Agreement are cumulative and may be exercised at any time and from time to time, independently or in combination. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, such determination shall not impair or affect the validity, legality or enforceability of any other provision of this Agreement. No party shall be bound by any waiver of any provision of this Agreement unless such waiver is consented to in writing by that party.  No waiver of any provision in this Agreement shall constitute a waiver of any other provision, nor shall any waiver constitute a continuing waiver unless otherwise provided. You are an independent contractor in the performance of its obligations under this Agreement and neither you nor your employees or contractors shall be deemed to be agents or employees of PSC. Nothing in this Agreement shall constitute a partnership or joint venture between the parties. This Agreement may be executed in counterparts, each of which will be deemed an original, and all of which together constitute one and the same instrument. A faxed copy or photocopy or a .pdf of this Agreement executed by a party in counterpart or otherwise will constitute a properly executed, delivered and binding agreement or counterpart of the executing party. The section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement. References herein to “days”, unless otherwise indicated, are to consecutive calendar days.
25. Amendments. PSC reserves the right, at its sole discretion, to change, amend, modify, add or remove terms and conditions contained in this Agreement, at any time, without further notice by posting any changes on its website.  Any new terms or conditions will be effective as soon as they are posted. It is your responsibility to check this Agreement and PSC’s website periodically and you are deemed to be aware of such changes. Your continued use of the Marks following the posting of such changes will mean that you accept and agree to the changes.  If you do not agree to the changes, please stop using the Marks.
26. Language of Agreement. The parties hereto confirm that it is their wish that this Agreement, as well as other documents related hereto, including notices, have been and shall be drawn up in the English language only. Les parties aux présentes confirment leur volonté à cette convention de même que tous les documents, y compris tout avis qui s’y rattache, sont rédigés en anglais seulement.
27. You consent to the exchange of information and documents between us electronically over the internet or by email. You agree that this electronic agreement shall be equivalent of a written paper agreement between us.
28. Unsolicited Commercial Electronic Messages. The inclusion of any email addresses within this Agreement does not constitute consent to receiving unsolicited commercial electronic messages or SPAM.
29. Contact Us. If you have any questions, concerns or comments, please contact us at:

Professional Surveyors Canada

Mailing Address:  900 Dynes Road, Suite 101B Ottawa, On K2C 3L6

Telephone No.:  613-695-8333

Email: info@psc-gpc.ca

SCHEDULE A

TRADEMARKS

SCHEDULE B

SERVICES

SCHEDULE C

REQUIREMENTS

The policies, standards and specifications for the use of the Marks as specified by PSC from time to time, including the following standards of use, which may be amended by PSC in its sole discretion in accordance with this Agreement:

• Must be a member of PSC.
• Must be a licensed or registered cadastral surveyor with the provincial associations and jurisdictions where they practice.

• Must be a member in good standing with the provincial associations and jurisdictions where they practice and with the PSC.