This License Agreement (“Agreement”) is effective on the subscription purchase date set forth (hereinafter “Effective Date”) and is made by and between Rediscover Yourself, LLC., a Wisconsin limited liability company, with a business address at 933 Anderson Dr. Suite I, Green Bay, WI 54304 (hereinafter “Licensor”) and the subscriber to its courses, hereinafter “Licensee.”
(Licensor and Licensee hereinafter referred to individually as a “Party” and collectively as the “Parties”) This Agreement supersedes and replaces all previous license agreements entered into between the Parties.
1.2 Licensor is the proprietor of the Intellectual Property Rights to the Processes and associated Intellectual Property Rights (as defined herein). Licensor’s know-how and example Processes are attached hereto as Addendum A. The Processes developed by Licensor are not limited to the Processes disclosed in Addendum A.
1.3 Licensor has a commercial interest in licensing the Processes and associated intellectual property to certain Licensees as licensed and certified Sound Practitioners.
1.4 Licensee has a commercial interest in being identified as a licensed and certified Sound Practitioners™ and in licensing the Processes and Intellectual Property Rights for use in its business.
1.5 Licensee is engaged in helping clients with emotional health issues and developing plans for improving the emotional health of client (the “Licensee services”). Licensee may offer services beyond those provided within the Processes, but not in competition or conflict with Licensor’s services as set forth in Section 1.1.
1.6 Therefore, the Parties agree to enter into this Agreement under which Licensee shall, on terms and conditions as set forth below, obtain from Licensor a license to identify itself as a licensed and certified Sound Practitioner™ and to use the Processes and Intellectual Property Rights for licensed services.
1.1 Licensor is engaged in selecting, training, certifying, and licensing Sound Practitioners TM to use Licensor’s proprietary Sound Processes (“Processes”). The Processes provides all the knowledge, training, materials, equipment, and tools for the Sound Practitioners to help its clients’ emotional health issues with sound.
2. DEFINITIONS AND INTERPRETATION
2.1 For the purposes of this Agreement, the below terms shall have the following meanings unless otherwise stated or clear from the context:
a. “Copyrighted Works” -All copyrighted works, whether registered or not, owned by Licensor or any affiliates, and used in connection with the Processes.
b. “Equipment” shall have the meaning as set forth in Section 6.1.
c. “Intellectual Property Rights” – Any patent, utility model, copyright, copyrighted work, trade name, trademark or service mark, any application to register any of the aforementioned rights, any right in the nature of the aforementioned rights, trade secrets, rights of attribution, integrity and similarly afforded “moral rights”, rights in unpatented know-how, inventions and technology, and any other intellectual or proprietary rights of any nature whatsoever in any part of the world.
d. ”Process Content” – Any material related to the Processes, training or certification of Sound Practitioners™, counseling and support of Sound Practitioners™, or anything else provided to Licensee by Licensor, whether in oral, written, digital, or another mode of communication.
e. “Trademarks” – All trademarks and/or trade dress, whether registered or not, owned by Licensor, or any affiliates, and used in connection with the Processes.
f. “Year” – Unless otherwise provided, a year begins on the Effective Date of this Agreement and each subsequent one year anniversary.
2.2 When interpreting this Agreement, the plural shall include the singular and vice versa when the context so admits.
3. GRANT OF LICENSE
3.1 In exchange for the considerations provided by this Agreement, Licensor grants to Licensee for the duration of this Agreement the non-exclusive, non-transferable license to:
(a) use the Processes and Intellectual Property Rights in connection with Licensee services;
(b) identify to itself as a licensed and certified Sound Practitioner™ and as being affiliated with the Processes and Licensor; and
(c) use the Equipment, materials, and Intellectual Property Rights in connection with Licensee services as described in Section 6;
a. Licensee completes the training and certification of Sound Practitioners TM set forth in Section 4; and
b. Licensee is in compliance with the terms of this Agreement.
3.2 Licensee shall not use, disclose, communicate, or distribute the content of the Processes or any associated Intellectual Property Rights except in connection with providing Licensee services, and then only in accordance with Section 13 of this Agreement.
3.3 Licensee shall not sub-license the license rights granted to it pursuant to this Agreement without Licensor’s prior written approval.
4. TRAINING AND CERTIFICATION OF SOUND PRACTITIONERS™
4.1 Licensee shall complete all training and certification requirements set forth by Licensor prior to identifying itself as a certified Sound Practitioner'”‘, or as being affiliated in any other way with, the Processes and Rediscover Yourself LLC.
4.2 Licensee shall complete recertification as a certified Sound Practitioner™ every three (3) years from the prior certification or recertification date, except with Licensor’s prior written approval.
4.3 No Licensee may train or certify another party or person, and each member of an organization or firm must be individually certified as a Sound Practitioner”” by Rediscover Yourself, LLC in order to use the Processes.
5. PROCESSES USE AND SUPPORT FOR SOUND PRACTITIONERS
5.1 Pursuant to the license granted herein, Licensor shall provide to Licensee:
(a) training as Sound Practitioner™ and certification as a Sound Practitioner pursuant to Section 4.1;
(b) use of Processes and training materials for helping clients as detailed in the Rediscover Yourself Energy Sound Healing Manual;
(c) use of the Rediscover Yourself brand, pursuant to Section 9;
(d) sales and marketing tools and content to identify and attract clients; and
(e) ongoing consultation and support, subject to Section 5.2.
5.2 If Licensee requires consultation or support that is reasonably considered to be in excess of the typical range of support required by certified Sound Practitioners™, Licensee shall compensate Licensor for the additional consultation or support at a mutually-acceptable rate to be agreed upon before such additional consultation or support commences.
5.3 Licensee shall not render services in connection with the Processes that are outside Licensee’s expertise. Licensor is not liable for any liability or damages incurred by Licensee’s rendering of services.
6. EQUIPMENT AND MATERIALS FOR EXECUTION OF PROCESSES
6.1 Licensor hereby leases to Licensee and Licensee hereby leases from Licensor equipment and materials (hereinafter and collectively the “Equipment”), listed on Schedule I attached to this Agreement, for use with the Processes, provided that Licensee completes the required training at or prior to delivery of the Equipment in accordance with Section 4.
6.2 Licensee shall use the Equipment in a safe, careful, and proper manner at all times and in conformity with the use instructions provided by Licensor. Without limiting the foregoing, Licensee shall not pem1it any unattended use of the Equipment. Licensee shall comply with all state and local laws, ordinances, rules, and regulations governing the use of the Equipment. Licensee shall, at its own expense, maintain all certifications, credentials, licenses, insurances, and permits necessary to conduct its business relating to the lease or use of the Equipment.
6.3 Licensee shall advise each user that the Equipment is not intended to diagnose, treat, cure, or prevent diseases, illnesses, imbalances, or disorders, that it should not be used in place of medical advice from the client’s health professional; that it is the responsibility of all clients to determine with their own medical advisers whether this treatment is appropriate for them; that individual results can and will vary; and that the Equipment has not been tested or approved by the United States Food and Drug Administration.
6.4 Licensee shall not make any representations or claims directly to its clients or indirectly (such as through websites or social media) as to the therapeutic nature or other benefits of the use of the Equipment that is not in conformity with the guidelines provided by Licensor in writing from time to time. Licensor does not monitor the representations of Licensee (whether on websites, social media or otherwise), and Licensor has absolutely no responsibility for their content.
6.5 Licensor is not responsible for any injury that may result from Licensee’s use of the Equipment, the Processes or Intellectual Property Rights. Licensee shall indemnify Licensor and hold Licensor harmless against any claims arising from Licensee’s use of the Equipment, the Processes or the Intellectual Property Rights. Licensee agrees to promptly respond to any event or allegation of injury that arises out of use of the Equipment, the Processes or the Intellectual Property Rights and will promptly report any such events and allegations to Licensor and provide Licensor with all information as to such event or allegation that Licensor requests.
6.6 Licensor shall deliver the Equipment to Licensee using Licensor’s standard methods for packaging and shipping the Equipment. Licensee shall have opportunity to inspect the Equipment at the time of installation and delivery, and shall notify Licensor promptly in writing of any defect in or deviation from the specifications as detailed in this Agreement upon completion of delivery and installation. Upon completion of installation, Licensee shall be deemed to have fully inspected and acknowledged that the Equipment is in good condition and repair, and that Licensee is satisfied with and has accepted the Equipment. Any defect or deviation not identified upon completion of installation shall be conclusively deemed to be accepted by Licensee for all purposes. If Licensee notifies Licensor of any defect in or deviation from the specifications within five (5) calendar days of acceptance of Equipment, Licensor may, in its sole discretion, (a) repair or replace the Equipment or (b) refund the portion of the License Fee paid by Licensee.
6.7 LICENSEE ACKNOWLEDGES AND AGREES THAT THE REMEDIES SET FORTH ABOVE IN SECTION 6.6 ARE LICENSEE’S EXCLUSIVE REMEDY FOR THE DELIVERY OF ANY NONCONFORMING EQUIPMENT. Licensee has no right to a refund of the Equipment leased under this Agreement to Licensor after acceptance of the Equipment.
6.8 After the delivery and installation of the Equipment, Licensee hereby assumes, and shall bear, all risk of loss and damage to the Equipment from any and every cause. No loss or damage to the Equipment or any part from fire, flood, lightning, storms, theft, vandalism, or other accident thereof shall impair any obligation of Licensee under this Agreement, which shall continue in full force and effect.
7. PERFORMANCE AND SUPPORT AND LICENSING FEE SCHEDULE
7.1 The following fee schedule applies to this Agreement and is structured to accommodate the early stages of a licensed and certified Sound Practitioner’s business, including training, developing service offerings, and establishing relationships with clients, as set forth below:
(a) Licensee shall pay to Licensor the total amount of nine-thousand nine hundred and forty seven United States dollars ($9947.00 USD) as a license fee (hereinafter the “License Fee”). Licensee shall pay an initial Deposit Fee to Licensor upon execution of this Agreement that is a partial amount of the License Fee. The Deposit Fee is determined solely by Licensor. The balance of the License Fee shall be paid on or before the date training and certification pursuant to Section 4.
(b) Licensee shall pay to Licensor for all shipping and handling of the Equipment and Licensee shall be responsible for all applicable state taxes that may apply. Licensee shall pay all applicable sales and use taxes that may be due on the sale or lease of the Equipment.
(c) Licensor shall receive payment in full for all of the above before any training or equipment is received by Licensee.
(d) This Agreement shall be renewable on an annual basis at the sole discretion of Licensor at which time Licensee shall pay Six Hundred United States dollars ($600.00 USD) (herein after “Annual Fee”) to Licensor for the annual renewal fee. The Annual Fee shall be paid yearly as calculated from the Effective Date.
7.2 The License Fee and Annual Fee are non-refundable except within the sole discretion of Licensor. Licensor may modify fees as necessary and in its sole discretion. Licensor shall provide at least sixty (60) calendar days’ notice prior to modification of the Annual Fee.
8. ACCOUNTING RECORDS AND AUDIT RIGHTS
8.1 Licensee shall maintain detailed, current, and accurate accounting records of all sources of revenue derived from providing Licensee services that in any way use or reference the Processes or the Intellectual Property Rights. Licensor is not liable for any liability or damages incurred as a result of Licensee’s business practices pertaining to accounting records and other business records.
9. INTELLECTUAL PROPERTY RIGHTS, TRADEMARKS, AND COPYRIGHTED WORKS
9.1 Licensee acknowledges that all Intellectual Property Rights involving the Processes and the Equipment are the property of Licensor and/or Licensor’s affiliates, and that nothing in this Agreement is intended to transfer ownership thereof to Licensee.
9.2 Licensee acknowledges and agrees that Licensor has proprietary, Intellectual Property Rights including trade secrets and know-how regarding the design, use, and marketing of the Processes and the Equipment. Licensee also acknowledges and agrees that Licensor has proprietary, Intellectual Property Rights, trade secrets and know-how regarding (i) vials and contents of said vials (ii) sound files, sound bytes, and frequency cards, (iii) internet domain names, website and URLs, (iv) works of authorship, expressions, designs and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software and firmware, application programming interfaces, architecture, files, records, schematics, data, data files, sound files, and databases and other specification and documentation; and (v) information regarded as trade secrets.
9.3 Licensee shall not, nor shall it allow any third-party to:
(a) re-lease, sublease, sell, lend, lease or otherwise transfer the Equipment to any third party without the prior written consent of Licensor;
(b) disassemble, examine, or otherwise attempt to reverse engineer the Process, the Equipment or any Intellectual Property Rights;
(c) take any action that interferes with any of Licensor’s rights in or to the Intellectual Property Rights, including Licensor’s ownership or exercise thereof;
(d) challenge any right, title or interest of Licensor in or to Licensor’s Intellectual Property Rights;
(e) make any claim or take any action adverse to Licensor’s ownership of Licensor’s Intellectual Property Rights;
(f) register or apply for registrations, anywhere in the world, for Licensor’s trademarks or any other trademark that is similar to Licensor’s trademarks or that incorporates Licensor’s trademarks;
(g) use any mark, anywhere that is confusingly similar to Licensor’s trademarks without the prior written consent of Licensor;
(h) engage in any action that tend to disparage, dilute the value of, or reflect negatively on any of Licensor’s trademarks; or
(i) alter, obscure or remove any of Licensor’s or manufacturer’s trademarks or copyright notices or any other proprietary rights notices placed on the Equipment, marketing materials or other materials that Licensor may provide without the prior written consent of Licensor.
9.4 Trade secrets include any information that is subject to reasonable efforts to maintain its secrecy and drives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use. Examples of Licensor’s trade secrets include, but is not limited to, computer source code, sound bytes, sound files, data, data files, and frequency cards. Licensor has invested and will continue to invest considerable resources in the researching, developing, and advancing Rediscover Yourself s proprietary Sound Processes to improve the quality of these proprietary processes, improve the profitability of our businesses, and help our clients. Licensor’s trade secrets are highly sensitive confidential information or material and may be designated as trade secrets at any time. Information and materials designated as trade secrets shall not be disclosed, used, or otherwise made available during the term of this Agreement or after termination for so long as this information continues to be held as a trade secret. A memorandum outlining expectations and obligations regarding trade secrets, sensitive and proprietary information is annexed hereto as Addendum B, and the memorandum of Addendum B shall be reviewed and executed by Licensee concurrently with this Agreement.
9.5 Any new intellectual property created or discovered under this Agreement by Licensee shall be assigned to Licensor. Upon conception of new intellectual property, which relates to the Processes or Licensor’s Intellectual Property Rights, Licensee shall promptly identify in writing any such potential information to Licensor. Licensor shall bear all costs in obtaining proper protection for any new intellectual property created or discovered under this Agreement and Licensor reserves the right to select counsel for obtaining and prosecuting any new intellectual property created or discovered under this Agreement.
9.6 All use of the Trademarks and/or Copyrighted Works pursuant to this Agreement and all goodwill and benefit arising from such use will inure to the sole and exclusive benefit of Licensor. For avoidance of doubt, Licensor is the owner of the following trademarks: REDISCOVER YOURSELF; SOUND PRACTITIONER; SOUND PRACTITIONERS; ENERGY SOUND HEALING; and associated design marks.
9.7 The Trademarks and/or Copyrighted Works may be used by Licensee only in the form, manner, and places approved by Licensor. Licensee shall not use the Trademarks or Copyrighted Works in a manner that may prejudice or destroy their validity. dignity, decency or value. Licensee shall not use any of the Trademarks or Copyrighted Works for other purposes than those contemplated herein and shall not use any trademark confusingly similar to any of the Trademarks.
9.8 Licensee confirms to not be in possession of rights with respect to any of the Trademarks or Copyrighted Works or with respect to any trademark identical or confusingly similar to one of the Trademarks. Licensee shall not obtain such rights during the duration of this Agreement.
9.9 Licensee hereby acknowledges that use of the Trademarks or Copyrighted Works associated with the Processes after the termination or expiration of this Agreement constitutes knowing and willful infringement of that intellectual property.
9.10 Notwithstanding the provisions provided in Section 15, any violation of the provisions set forth in Section 9.6, 9.7, and 9.8 will result in the immediate and automatic termination of all licenses granted under this Agreement.
10.1 In no event shall Licensor be liable under this Agreement for any indirect, incidental, special, consequential, punitive or similar damages or losses, including without limitation loss of profits, revenue, data, business opportunity or use as a result of Licensee’s activities pursuant to this Agreement.
10.2 Licensor’s total liability under this Agreement for any reason and upon any cause of action shall be limited to direct damages and shall not exceed five-thousand United States dollars ($5,000.00 USD). This limitation shall apply to all causes of action in the aggregate, including breach of contract, breach of warranty, strict liability, negligence, and other torts.
10.3 Nothing in this Agreement shall exclude or limit Licensee’s liability for gross negligence or willful misconduct, for death or personal injury caused by its negligence, for fraud or fraudulent misrepresentation, or for any other liability that cannot, as a matter of law, be limited or excluded.
11.1 Licensee shall maintain in full force and effect during the term of this Agreement the following
insurance coverages with minimum limits as indicated: (a) worker’s compensation as required by the state where Licensee principally operates, with the worker’s compensation liability limits to be not less than required by applicable law; and (b) commercial general liability (“CGL”) insurance and with a total limit of not less than $500,000 each occurrence. Licensor shall be included as an additional insured under the CGL insurance. Licensee shall provide evidence of such insurance coverages to Licensor on an annual basis and otherwise upon Licensor’s request.
12. WARRANTIES AND INDEMNIFICATION
12.1 Licensor represents and warrants that at the time of the execution of this Agreement and to the
best of Licensor’s knowledge: (i) that it has the right and privilege to license and sub-license the Intellectual Property Rights to the Processes; (ii) that it is entitled to license the Processes and Intellectual Property Rights to Licensee as contemplated herein, and (iii) that the Processes and Intellectual Property Rights do not infringe the Intellectual Property Rights of any third party.
12.2 Licensor shall indemnify, defend, and hold harmless Licensee, its affiliates, clients, customers, directors, officers, employees and agents from any and a111iability, losses, expenses, interest, claims, demands, causes of action, damages, civil and penal fines and/or penalties, and costs (including reasonable attorneys’ fees and expenses of litigation) based on or arising out of any assertion that the Processes and associated intellectual property as used in Licensee’s products or services infringe any third party’s Intellectual Property Rights. The liability limitation in Section 10.2 above shall not apply in relation to any indemnification pursuant to this Section 12.2. Notwithstanding the foregoing to the contrary, Licensee shall provide written notice of any claim of infringement to Licensor within ten (I 0) business days of the date Licensee obtains knowledge of the claim for infringement. If Licensee fails to provide such written notice to Licensor and Licensor’s ability to indemnify, defend or hold Licensee harmless from such claim is materially prejudiced, the foregoing indemnity, defense and hold harmless provision shall be null and void.
12.3 Licensee represents and warrants that at the time of the execution of this Agreement and to the best of Licensee’s knowledge that Licensee: (i) is authorized to enter this Agreement, and (ii) is not currently bound by any other agreement that may interfere with the performance of any provision of this Agreement.
12.4 Each Party shall indemnify, defend, and hold harmless the other Party, its affiliates, clients, customers, directors, officers, employees and agents from any and all liability, losses, expenses, interest, claims, demands, causes of action, damages, civil and penal fines and/or penalties, and costs (including reasonable attorneys’ fees and expenses of litigation) based on or arising out of any activities undertaken that are not related to the use of the Processes and associated Intellectual Property Rights to which this Agreement grants license.
12.5 Licensee’s obligations for indemnification are set forth in Section 6.5, and are incorporated herein by reference.
13.1 Each Party undertakes to the other that it will treat as confidential the terms of this Agreement, together with all information whether of a technical nature or otherwise relating in any manner to the business or affairs of the other Party as may be communicated to it hereunder or otherwise in connection with this Agreement (both prior and subsequent to its execution), including, but not limited to, all knowhow, trade secrets, techniques, ideas, computer code, principles and concepts which underlie any element of the Processes and/or the Licensee services.
13 .2 Each Party shall use its best efforts and shall take every reasonable precaution to protect and maintain the confidentiality of the other Party’s confidential information, which precautions shall be at least equivalent in scope and effect to the measures taken by that Party to protect its own most confidential proprietary information.
13.3 Each Party undertakes to the other that it will not disclose the other Party’s confidential information to anyone (other than to its employees, holding company, shareholders, auditors and/or other professional advisers on a “need to know” basis), and will not use such information other than for the purposes of this Agreement, subject always to any prior specific authorization in writing by the other Party to such disclosure or use.
13.4 Each Party agrees to limit disclosure of such information to those of its employees who require access to the information in the performance of their duties in relation to the Agreement, provided that the recipient Party undertakes to the disclosing Party to ensure that such employees are bound by appropriate confidentiality undertakings, the provisions of which are sufficiently wide to protect the confidentiality of the information being disclosed by the disclosing Party. Each Party acknowledges that it shall be liable to the other Party for the acts and omissions of its employees in breach of the provisions of this Section 13.
13.5 The provisions above in this Section 13 shall apply to the following non-limiting examples:
(a) client names, addresses, data, preferences and all other information concerning the clients; and
(b) all materials and information concerning the Parties’ business and conduct thereof which it may treat as proprietary and confidential and which is not generally known to others engaged in similar business or activities. This includes and incorporates all equipment and other terms outlined in the Agreement.
13.6 The provisions above in this Section 13 shall not apply to any information which:
(a) is in the public domain, or which becomes generally known to the public, other than by default of the recipient Party;
(b) was in the lawful possession of the recipient Party prior to its disclosure by the disclosing Party, and was not obtained either directly or indirectly from the disclosing Party;
(c) is, or had already been, verifiably independently generated by the recipient Party, without reference to the disclosing Party’s confidential information. The burden of proof shall, thus, be sustained by the recipient Party; or
(d) is required to be disclosed by law or the valid order of a court of competent jurisdiction or the request of any governmental or other regulatory authority or agency in which event the disclosing Party shall so notify the other as promptly as practicable (and if possible prior to making any disclosure) and shall use its reasonable efforts to seek confidential treatment of such information.
13.7 Licensee shall control the Process Content and prevent access by third parties for purposes other than the intended purpose. In the event that unauthorized disclosure of Process Content to any 3rd party occurs, Licensee shall promptly notify Licensor and identify to whom the disclosure was made and the circumstances surrounding that disclosure. The Parties shall work together to remedy any such inadvertent disclosure at the cost and expense of Licensee.
13.8 The Parties accept that any breach of this Section 13 by the recipient Party could cause injury to the disclosing Party and that in the event of such a breach, monetary damages would not be an adequate remedy. Accordingly, in the event of such a breach or threatened breach by the recipient Party, the disclosing party shall be entitled to apply for injunctive or other equitable relief in any court of competent jurisdiction, without prejudice to the other remedies available to the disclosing Party for such breach or threatened breach.
13.9 The obligations contained in this Section 13 shall survive the tern1ination of this Agreement for five (5) years after termination, or except and until any confidential information enters the public domain, other than through default of the Party receiving the same.
13.10 Licensee shall not, without the prior written consent of Licensor, make or authorize any advertisement, public announcement, or press release referring or relating to this Agreement. The Parties shall agree to the form of any press release to be issued on the signing of this Agreement.
14. NO COMPETITION
14.1 For the period starting on the Effective Date of this Agreement and ending five (5) years after the termination date of this Agreement:
(a) Licensee shall not conduct any business that competes with or is equivalent to Licensor’s businesses or the business of any licensed Sound Practitioner™;
(b) Licensee shall not train or certify entities that may reasonably be deemed to compete with licensed Sound Practitioners contemplated by this Agreement;
(c) Licensee shall not develop a platform to support, market, sell services of, or otherwise create an association of Sound Practitioners TM that may reasonably be deemed to compete with the Processes and Intellectual Property Rights contemplated by this Agreement, except with prior written consent from Licensor;
(d) Licensee shall not canvass, solicit, or attempt to solicit any business from any present or past accounts, clients, customers, customer lists, and customer prospects of Licensor;
(e) Licensee shall not provide any other person, firm, or corporation the right to canvass, solicit, or attempt to solicit any business for any other business from any present or past accounts, clients, customers, customer lists, and customer prospects of Licensor;
(f) Licensee shall not request or advise any present or past client or customer of Licensor to withdraw, curtail, or cancel their business with Licensor;
(g) Licensee shall not disclose to any other person, firm, or corporation the names of past or present clients, customers, customer lists, and customer prospects of Licensor; and
14.2 Licensee shall, upon tem1ination of the Agreement, return the materials and the Equipment provided to Licensee by Licensor to Licensor.
14.3 Licensee shall not disclose to any other person, firm or corporation, any confidential information or any Intellectual Property Rights after the termination of the Agreement.
15. DURATION AND TERMINATION
15.1 This Agreement shall take effect on the Effective Date notwithstanding the date of execution hereof and shall continue for a period of one (I) year (the initial one-year term) unless terminated in accordance with the provisions set forth in the Agreement. After the end conclusion of the initial one-year term, the Agreement shall automatically renew yearly for a one-year tem1 on the anniversary of the Effective Date, at which the Annual Fee pursuant to Section 7.1 (d) should be due. Failure to pay the Annual Fee may result in termination of this Agreement.
15.2 Licensor may terminate the Agreement for any reason and at any time by providing Licensee with not less than two (2) months’ prior written notice.
15.3 Licensee may terminate the Agreement by providing Licensor with not less than two (2) months prior with notice. Should such notice be given less than two (2) months form the yearly anniversary of the Effective Date, the Annual Fee pursuant to Section 7.l(d) shall be paid by Licensee to Licensor.
15.4 Notwithstanding any provisions herein contained, this Agreement may be terminated immediately by either Party by notice in writing from the Party not at fault if any of the following events shall occur:
(a) If the other Party shall at any time be in default under this Agreement and shall fail to remedy such default (if capable of remedy) within thirty (30) calendar days from receipt of notice in writing from the first Party specifying such default; or
(b) if the other Party shall commit any act of bankruptcy, shall undergo a change in control by virtue of being purchased or otherwise acquired by a third party, shall have a receiving order made against it, shall make or negotiate for any composition or arrangement with or assignment for the benefit of its creditors or if the other Party being a corporate body shall present a petition or have a petition presented by a creditor for its winding up or shall enter into any liquidation (other than for the purpose of reconstruction or amalgamation), shall call any meeting of its creditors, shall have a receiver of all or any of its undertakings or assets appointed, shall be deemed by virtue of the relevant statutory provisions under the applicable law to be unable to pay its debts, or shall cease to carry on business.
15.5 Notwithstanding any provisions herein contained, this Agreement will immediately and automatically terminate without notice upon violation as provided in Section 9.6, 9.7, and 9.8.
16. CONSEQUENCES OF TERMINATION
16.1 Upon termination of this Agreement all rights granted to Licensee hereunder by Licensor shall expire. Thus, for the avoidance of doubt, Licensee shall not after such date identify itself as a Sound Practitioner™, or as being affiliated in any other way with, the Processes of Licensor. Likewise, Licensee shall not after the effective date oftem1mation of this Agreement use the Processes or Intellectual Property Rights in connection with any services and shall promptly update all existing product and services materials to remove references to Licensor’s Processes and associated Intellectual Property Rights. The termination of rights under this Agreement includes the termination of rights with respect to materials or Licensee services sold or scheduled to be performed, but not yet actually performed, before the effective date of termination of this Agreement.
16.2 Upon termination of this Agreement, Licensee shall return all Equipment and information, including all Intellectual Property Rights provided to Licensor to the address provided in Section 2.2. All costs associated with such return shall be paid by Licensee.
16.3 Licensor is not liable for any damages incurred as a result of the termination of this Agreement.
16.4 It is agreed that the rights and benefits provided to Licensee pursuant to this Agreement are unique and that no adequate remedy exists at law if Licensee shall fail to perform, or breaches, any of its obligations hereunder, that it will be difficult to determine the amount of damages resulting therefrom, and that such breach would cause irreparable injury to Licensor. Therefore, in such event, Licensor shall be entitled to injunctive relief to prevent or restrain any breach of this Agreement by Licensee.
16.5 Notwithstanding the expiration of term or termination of this Agreement, all provisions which by their meaning or intent have an effect beyond the duration of this Agreement remain valid after the expiration or termination hereof.
17. NO DISPARAGEMENT
17.1 During the term of this Agreement and thereafter, Licensee agrees to take no action which is intended, or would reasonably be expected, to harm Licensor or its reputation or which would reasonably be expected to lead to unwanted or unfavorable publicity to Licensor.
18. CHANGES IN LICENSEE
18.1 In the event that Licensee permits or suffers a controlling interest in that party passing to any person(s) or entity other than those person(s) or entities having a controlling interest in Licensee at the execution of this Agreement, whether by reason of purchase of shares or otherwise, Licensor shall have the option to terminate this Agreement forthwith without liability.
19. RELATIONSHIP OF THE PARTIES
19.1 The Parties hereto are independent contractors. Nothing in this Agreement shall be deemed to constitute or form an employment relationship, partnership, agency or other such form of business relationship.
20. NO WAIYER
20.1 Failure or neglect by a Party to enforce at any time any of the provisions hereof shall not be construed or be deemed to be a waiver of the said Party’s rights hereunder nor in any way affect the validity of the whole or any part of this Agreement nor prejudice the said Party’s rights to take subsequent action.
21. RELATIONSHIP OF THE PARTIES
21.1 No party may assign this Agreement whether voluntarily or involuntarily or by operation of law, in whole or in part, to any Party without the prior written consent of the other Party.
22.1 Any notice required or permitted under the terms of this Agreement or required by statute, law or regulation shall (unless otherwise provided) be in writing and shall be delivered in person, sent by registered mail or aim1ail as appropriate, properly posted and fully prepaid in an envelope properly addressed, or sent by facsimile to the respective parties as follows:
Rediscover Yourself, LLC
Attn: Steve Vincent
933 Anderson Drive Ste. I
Green Bay, WI 54304
Telephone: (920) 680-1565
or to such other address or facsimile number as may from time to time be designated by notice hereunder.
Any such notice shall be in the English language and shall be considered to have been given at the time when actually delivered if delivered by hand, or upon the next working day following sending by facsimile or in any other event within five (5) calendar days after it was mailed in the manner hereinbefore provided.
23. ENTIRE AGREEMENT
23.1 This Agreement supersedes any arrangements, understandings, promises, or agreements made or existing between the parties hereto prior to or simultaneously with this Agreement in regard to the subject matter hereof and constitutes the entire understanding between the parties hereto in regard to the said subject matter.
23.2 Except as otherwise provided herein, no addition, amendment to, or modification of this Agreement shall be effective unless it is in writing and signed by and on behalf of both Parties.
24.1 The headings of the sections of this Agreement are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement.
25.1 If any provision of this Agreement is found or held to be invalid or unenforceable, the validity of all the other provisions hereof shall not be affected thereby and the Parties agree to meet and review the matter and if any valid and enforceable means is reasonably available to achieve the same objective as the invalid or unenforceable provision, to adopt such means by way of modification of this Agreement,
failing which such terms (provided that they are not fundamental to this Agreement) shall be severable
from the remaining terms, which shall continue to be valid and enforceable
26. APPLICABLE LAW AND DISPUTES
26.1 The Agreement is governed by the Jaws of the United States and the State of Wisconsin and Wisconsin law applies to the relationship between the Parties.
26.2 Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association (AAA) in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The place of arbitration shall be Green Bay, Wisconsin. The
arbitration shall be conducted in the English language. Notwithstanding the foregoing to the contrary, either Party may commence an action against the other Party in any court with jurisdiction over the Parties to collect a fee or payment required to be paid under the express terms of this Agreement.
26.3 In the event of any suit, action or arbitration between the Parties, the prevailing Party shall be entitled to recover its costs, expenses and reasonable attorney’s fees, at arbitration, at trial, and on appeal, in addition to (and without limitation of) all other sums allowed by law; provided that the prevailing Party is Licensor.
27. COSTS AND FEES
27.1 Each Party shall defray its own costs of drafting and concluding the Agreement, including fees to its own consultants. Any payment required under the terms of this Agreement, which a Party fails to pay within five (5) days of the due date, shall accrue interest at the rate of 10% per annum until paid in full.
List of Equipment Leased from Licensor to Licensee:
- Vials and Carrying Case
- Flash drive containing sound files, sound frequencies, videos, and instructional forms.
- Sound bytes
- Frequency cards
- Rediscover Yourself Energy Sound Healing Manual
- Rediscover Yourself Speaker Placement Manual
|Date:||January 25, 2019|
|To:||All Sound Practitioners|
|From:||Steve and Bonnie Vincent, Owners of Rediscover Yourself, LLC.|
|Re:||Safeguarding Proprietary Information including Rediscover Yourself s Trade Secrets|
Rediscover Yourself has spent and continues to spend substantial time and effort generating and developing proprietary materials to improve the quality of its processes, improve the profitability of its businesses, and help its clients. To that end, competitors would substantially benefit, at our expense, if they obtained this infonnation. As such, it is extremely important to safeguard and keep confidential Rediscover Yourselfs Trade Secrets and all materials used in day-to-day operations of its businesses to maintain its competitive advantage in the marketplace. Maintaining its competitive advantage is an obligation that rests with all of us.
Some of Rediscover Yourself s proprietary information is technical, but other valuable information, such as information regarding our day-to-day operations, is also valuable to competitors. This memo is intended to remind you of the importance of safeguarding confidential and proprietary materials of Rediscover Yourself, including Rediscover Yourself s Trade Secrets.
A trade secret is defined as information that derives independent economic value, actual or potential, by not being generally known to, and not being easily ascertainable by proper means, by other persons who can obtain economic value from its disclosure or use, and is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
Rediscover Yourself’s Trade Secrets include, but are not limited to:
- Computer source code;
- Sound bytes;
- Sound files;
- Computer data and data files related to our proprietary processes;
- Frequency cards;
- Technical information and information concerning research and development of new processes or updates to existing processes;
- Process implementation procedures;
- Client feedback and continuous improvement materials;
- Quality control information such as procedures, manuals, records, and other know-how; and Sales and marketing information such as forecasts, studies, plans, and customer lists.
Rediscover Yourself’s Trade Secrets are highly valuable, and these trade secrets drive independent economic value from what is generally not known by our competitors. Accordingly, it is extremely important to prevent disclosure of Rediscover Yourself’s Trade Secrets to the public (including to competitors) so that Rediscover Yourself maintains its competitive advantage. Rediscover Yourself’s Trade Secrets should not be used or otherwise made available to clients, third parties, and/or competitors under any circumstances. Also, disclosure of Rediscover Yourself’s Trade Secrets must be restricted to the maximum extent.
To that end, the following procedures and processes must be implemented in the day-to-day operations of your business.
- Limit access of Rediscovery Yourself’s Trade Secrets and/or sensitive or confidential information to coworkers and co-collaborators who have only a “need to know” sensitive information to perform their duties;
- Alert coworkers and co-collaborators with need to know access to Rediscovery Yourself’s Trade Secrets and/or sensitive or confidential information to keep such information secret and confidential in order to prevent any inadvertent disclosure;
- Require all clients and visitors to sign in using a log book;
- Hold exit review of any coworkers or co-collaborators leaving your employ to remind them of their duties to keep all of Rediscover Yourself’s Trade Secrets confidential and sensitive information confidential and secure, have them return any such information in their possession, and restrict their access to your offices and computer systems;
- Shred documents containing trade secret, sensitive or confidential materials which arc no longer needed;
- Limit the number of copies you make of any trade secret, sensitive or confidential information;
- Limit or prevent the amount of time clients are unsupervised;
- Limit or prevent confidential infom1ation from being removed from the premises;
- Securely lock up all trade secret, sensitive and confidential information at night and do not leave such information unattended while clients are present;
- Restrict use of e-mail in sending any trade secret, confidential or sensitive inforn1ation, and if necessary to do so, use appropriate encryption; and
- Change computer passwords regularly.
The success of our businesses rests on our ability to provide quality services to our clients and protect the Rediscover Yourself’s Trade Secrets and other proprietary, sensitive, and confidential information from being obtained by competitors or the general public. We will continue to develop and take reasonable steps to protect Rediscover Yourself’s Trade Secrets, and as new security procedures or steps are developed, we will share these new processes and procedures with you for implementation.
If you have any questions regarding the Rediscover Yourself’s Trade Secrets or the processes and procedures to protect these trade secrets and other proprietary and confidential information, please do not hesitate to contact us.
Steve Vincent & Bonnie Vincent