License Agreement
Acknowledgments
WHEREAS, Licensor is the owner of the ADAPT Interactive Training Center and FirePhone™ products (“Products”) and all related intellectual property rights, including, but not limited to, copyrights, trademarks, patents, ideas, and business methods; and is in the business of licensing the Products to automobile dealerships in various markets;
WHEREAS Licensee wishes to obtain a license to use the Products in the above Dealership(s) for the term of this Agreement; and
WHEREAS, Licensor has agreed to provide a license to Product to Licensee, on the terms and conditions set forth herein and Licensee agrees to such terms and conditions.
Now, therefore, for good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties agree as follows:
License
- Grant. Upon payment by Licensee of the fees set forth below, Licensor hereby grants Licensee a limited use license to enable the above listed Dealership locations to use the Products for internal use for the term of this Agreement and under the terms of this Agreement (the “License)
- Support. Licensor is not responsible for support of the Products; however, Licensor shall offer initial and ongoing assistance to Licensee, as Licensor, in its sole judgment, deems reasonable and necessary.
- Licensee is solely responsible for the successful implementation of the ADAPT Interactive Training Center and FirePhone™.
- Licensee may use the Products only at the dealerships listed. Each dealership is entitled to a single license with a maximum number of users not to exceed the amount listed on the order form. In the event that a dealership exceeds the maximum number of users as set forth herein, each such dealership shall pay to Licensor an additional user fee of $40/month per user.
- Licensee agrees that it will not use, run, operate, host, give-away, sell, teach, share, publish, promote, or otherwise participate in a program or technique similar to the Products which is not licensed from Licensor, nor will Licensee in any way compete with Licensor.
- Licensor hereby owns all trademarks and service marks associated with the Products, including, but not limited to, ADAPT INTERACTIVE TRAINING CENTER and FirePhone™, as well as all variations of these trademarks and service marks (collectively “Marks);
- Licensor owns all rights, title, and interest in and to all copyrights in the ADAPT Interactive Training Center and FirePhone™, the techniques and the instructions (“Works”) and all derivative works associated therewith.
- Licensor is the owner of all processes, patentable or otherwise in the Products as a business method (“Methods”).
- Licensor retains all rights, title and interest in its Marks, Works, and Methods (collectively, the “Intellectual Property”) and nothing herein grants Licensee any rights in or to any Intellectual Property other than the limited use license to use the Marks, Works and Methods for the term of this Agreement set forth above in Section 3(d).
- Licensee may not alter the Intellectual Property or use the Intellectual Property in any manner inconsistent with this Agreement. Licensee may not reproduce the Intellectual Property without express written permission from Licensor. Licensee shall have no rights or authority to sublicense, rent, time-share, lease, lend, or grant any rights to any third parties with respect to the Intellectual Property. Licensee shall not use the Marks in any way that alter, obscures, or interferes with the visibility of the Marks, nor use the Marks in any manner inconsistent with this Agreement. Licensor shall approve any use of the Marks, including the Marks’ use in any media not included in with the Products including, but not limited to, Licensee’s website. Licensee’s use of the Marks is restricted to the terms of this Agreement, and shall not be used for any illegal, immoral or scandalous purpose.
- Enhancements/Improvements. Any enhancements, improvements, or derivative works of Licensor’s Intellectual Property shall be deemed to be automatically and fully vested in Licensor, and considered property of Licensor subject to the terms of this Agreement, and to the extent necessary, Licensee grants all such rights to Licensor, and promises to assign or otherwise execute any agreements or assignments necessary to effectuate a transfer of any rights Licensee may have in the enhancements or improvements
- Term. This Agreement shall take effect upon the Activation Date and shall continue in full force and effect for the term listed on the Order Form, thereafter (the “Initial Term”).
- This Agreement shall automatically renew for the same term as the Initial Term (each a “Renewal Term”, the Initial Term and all Renewal Terms shall be referred to as the “Term”) and may be canceled by either Party with at least 90 days advance written notice.
- In the event the Licensee chooses to terminate service prior to the end of term, a 90 day written notice is required. At that point the Licensee shall pay to Licensor the remaining amount of the agreement.
- Either Party may terminate this Agreement in the event that (1) the other party materially breaches this Agreement; (2) if Licensee discloses Licensor confidential information or infringes upon Licensor’s Intellectual Property Rights; or (3) if the other Party ceases to do business or files for bankruptcy protection. Upon Licensee’s termination due to Licensor’s material breach, Licensee shall be entitled to a prorated refund of fees paid for Products not received. However, if, due to any circumstance beyond the Licensor’s control, the Products are no longer available, Licensor shall be under no obligation to refund any fees paid.
- Effect of Termination. Upon termination or Licensor’s request, Licensee shall immediately return to Licensor any and all Product materials and shall immediately delete any electronically stored copies of the ADAPT Interactive Training Center, FirePhone™, or related materials from any computer or system within the control of the Licensee.
5. Fees. The licensee shall pay the agreed upon monthly fee (plus applicable sales tax) for the license granted herein. Additionally, Licensee shall pay a separate charge for workbooks made available for the Licensee’s use. The Activation invoice shall be paid in full within 3 business days receipt of invoice and payment may be made via the payment link included with the invoice, ACH withdrawal, credit card, or payment by check sent by overnight shipping. Access to the training platform will not be made available until the activation invoice is paid in full. The remaining payments will be invoiced monthly. All invoices shall be ‘Due Upon Receipt’ and past due 15 days later. Late fees of one and one-half percent (1½%) per month shall be applied to any outstanding amounts older than 15 days. Licensor shall notify Licensee of payments which are overdue and if payment(s) remain delinquent for thirty (30) days after receipt of notice of delinquency, Licensor may suspend all services and access to the Products until payment is received in full. Licensor reserves the right to increase license fees to match inflation (maximum of 5%).
6. Transferability. Licensee agrees that if there is a change or transfer in ownership of Licensee’s business prior to termination of this Agreement, the assignees shall be required under terms of sale or other transfer to assume Licensee’s obligation to term. Licensor may sell, assign, lease, sub-lease or otherwise assign this Agreement, whether in conjunction with the sale of assets, or apart from the sale of assets. The rights and liabilities of the parties hereto shall be binding upon and inure to the benefit of their respective successors, permitted assigns, executors and administrators.
7. Relationship of the Parties. The relationship between the Parties shall be solely that of independent contractors. Nothing in the Agreement shall be construed as creating a partnership, joint venture agent/principal or employee/employer relationship. Licensor is in the business of licensing promotions, and is under no obligation to share its revenues generated through these enterprises with Licensee.
8. Non-Solicitation. Except as otherwise documented herein, Licensee agrees that during the term of this Agreement and for a period of one (1) year thereafter, not to intentionally and knowingly solicit the employees of Licensor. This section will not apply to employees of Licensor that respond to a general advertisement (including but not limited to, job postings published in newspapers, trade publications or on websites) placed by Licensee in the general scope of business or to employees of Licensor that come to Licensee of their own volition.
9. Indemnification. Licensee agrees to indemnify, defend, and hold Licensor harmless against any loss, expense, or damages (including reasonable attorney’s fees) incurred by Licensor because of claims relating to or arising from Licensee’s conduct, including without limitation (a) any breach of this Agreement by Licensee; (b) any illegal violation of the intellectual property rights of any third party under copyright, trademark or patent law of the United States or any other country.
10. Limitation of liability. Except Neither party will be liable to the other party (or to any person or entity claiming through the other party) for lost profits or for special, incidental, indirect, consequential or exemplary damages arising out of or in any manner connected with this agreement or the subject matter hereof, regardless of the form of action and whether or not such party has been informed of, or otherwise might have anticipated, the possibility of such damages. The limitations of liability set forth in this Agreement shall not apply to damages, (i) resulting from the gross negligence, or the willful or intentional misconduct of a party or its personnel, (ii) stemming from personal injury, death, or property damage caused by a party or its personnel, (iii) arising from claims for which either party has agreed to indemnify the other party pursuant to the provisions of this agreement, or (iv) arising from either party’s breach of its obligations of confidentiality set forth herein.
11. Confidentiality. Licensee agrees to hold Licensor confidential information which includes, but is not limited to, the Products, Methods, information or materials related to Licensor’s, its affiliates’, or any of their respective customer’s business, trade secrets, customers, business plans, strategies, operations, methods of doing business, finances, assets, technology and any non-public personal information of Licensor’s employees or customers. (“Confidential Information”) Licensee will use the same care and discretion to avoid disclosure, publication or dissemination of any Confidential Information received from Licensor as Licensee uses with its own similar information that it does not wish to disclose, publish or disseminate (but in no event less than a reasonable degree of care).
12. Non-waiver and Breach. Any failure by either Party to enforce at any time any of the provisions of this Agreement shall not be construed to be a waiver or such provisions or of the right of either party thereafter to enforce such provision. In the event of any dispute between the Parties arising from or related to this Agreement, the prevailing Party shall be entitled to an award of reasonable attorney’s fees. In the event of non-payment of any amounts due to Licensor from Licensee under this Agreement, Licensor shall be entitled to all reasonable costs of collection including, but not limited to, reasonable attorney’s fees. The Parties expressly agree that the breach of this Agreement will cause the non-breaching party irreparable harm, and that the non-breaching Party shall be entitled to injunctive relief against the breaching Party. This Agreement shall be interpreted and governed in accordance with the laws of the State of California without regard to the principles of conflict of laws. Venue shall be Los Angeles County, California.
13. Notices: All notices must be in writing submitted by a corporate officer and will be deemed given only when sent to the Party to whom the notice is directed, at its mailing or email address.