SCULPTXV CERTIFIED TRAINER LICENSE AGREEMENT

This Certified Trainer License Agreement ("Agreement") is entered into, and effective as of  date signed (Effective Date”), by and between Tres Palmas Development, LLC, a Colorado limited liability company (“Licensor”), and the individual signing the agreement ("Licensee").

 

Article 1.           Recitals.

 

1.1            Licensor is the creator and sole owner of a unique and proprietary methodology for fitness and wellness known as SculptXV, defined below.  Licensee wishes to become a licensed SculptXV instructor, so as to conduct SculptXV program sessions for the general public, and agrees to comply with all requirements set forth below in exchange for such license.  Accordingly, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows.

 

Article 2.           Limited Nonexclusive License; Program Requirements.

 

1. Definitions.

 

            2.1.1     SculptXV means the original exercise routines, literature, research, know-how, manuals, workbooks, musical arrangements, scripts, graphical content and training and certification of instructors; delivered through live classroom sessions, online sessions, printed material, video and audio recordings and through certified instructors; and currently known and promoted under the title SculptXV

 

            2.1.2     Licensed Materials means all printed, graphic, video, audio, online and other tangible content of any type, provided or made available by Licensor, or acquired or developed by Licensee in connection with SculptXV.   

 

            2.2        Grant of License.  Subject to all terms and conditions of this Agreement, Licensor hereby grants to Licensee a limited, revocable, nonexclusive, non-assignable, nonsublicensable, nontransferable, license, during the Term:

 

                        2.2.1     To receive instruction and training materials from Licensor and attend Licensor’s training sessions on the techniques for delivery and implementation of SculptXV so as to conduct SculptXV classes;

                        

2.2.2        To market, sell, and deliver SculptXV classes to others; 

 

1. To copy, use, and distribute Licensed Materials only as provided in this Agreement or as otherwise approved in writing by Licensor;

 

1. To enroll in and enjoy all membership benefits of the Sculptor’s Club, as outlined on Exhibit A. 

 

1. To utilize and display Licensor’s trademarks, trade names, service marks, insignias, and labels pertaining thereto, whether registered or unregistered, including, but not limited to “SculptXV” (the “SculptXV Marks”), solely in connection with the delivery and marketing of SculptXV; and 

 

1. To maintain and operate, at Licensee’s cost,  an internet domain and website in connection the exercise of this License, PROVIDED THAT, if such website or domain includes the a SculptXV Mark, or any confusingly similar term, Licensor shall be given the authorization codes, passwords, security keys and all other information associated with the registration, sufficiently to enable Licensor to assume full control and management authority over such website or domain upon termination of the Agreement. 

 

            2.3        Use of the SculptXV Marks.   All use of the SculptXV Marks shall be subject to the prior approval of Licensor and Licensee shall at all times ensure that the SculptXV Marks are displayed on materials of the highest quality and in a manner so as to reflect positively on the reputation and goodwill of  Licensor and SculptXV.  Licensee shall place the appropriate trademark legends (TM, SM, ®, or ©), and other copyright or proprietary notices, in connection with any display of the SculptXV Marks.  Licensee shall not alter any Licensed Materials, or utilize any packaging, labels or articles not provided or expressly approved by Licensor.  Nothing herein constitutes a grant of title or ownership in any of the SculptXV Marks or Licensed Materials.  

 

            2.4          Use of Licensed Materials.  

 

                        2.4.1.  Within thirty days following the Effective Date, Licensee shall complete, to the satisfaction of Licensor, all training and orientation requirements for delivery of SculptXV to the public, and shall, on ongoing basis, incorporate all changes in SculptXV, attend all in-service sessions or other additional training as deemed necessary by Licensor.

 

                        2.4.2.  Licensee shall use only authorized dumbbells, flat-loop resistance bands, musical and other audio / visual content, or other materials and equipment, and shall deliver all SculptXV classes either as live in-person events or via live online feed.

 

                        2.4.3.   Licensee shall not engage in any form of sexual harassment, discrimination, use of illicit substances or other illegal activity in conducting SculptXV classes. 

 

                        2.4.4.     Licensee shall not record any SculptXV classes and shall not allow session participants to record any SculptXV classes, except that Licensee may record limited portions of a SculptXV class, not to exceed 1 minute, for the sole purpose of promoting SculptXV classes through social media or other marketing platforms.

 

                        2.4.5.     Licensee shall ensure: (a) that all session participants are entitled to attend the session; (b) that each participant remains in compliance with any applicable terms of attendance; and (c) that each participant abides by the restrictions contained herein with respect to recording, reproduction or other unauthorized use or dissemination of materials or information concerning SculptXV.  

                        

                        2.4.6.  Licensee shall promptly notify SculptXV of the name, address and responsible party for every facility at which Licensee conducts SculptXV classes.  Licensee shall provide regular and complete updates to Licensor concerning any issues encountered in the course of conducting SculptXV classes, and all comments or feedback received from participants.

 

                        2.4.7.     Licensee shall not enter into any sublicense or other agreement with a third party concerning SculptXV, or that in any way binds or imposes obligations upon Licensor, without Licensor’s express prior written consent.

 

                        2.4.8     Licensee shall permit Licensor, at any time upon reasonable notice, to inspect and audit Licensee’s records, facilities, equipment and any other matters pertaining to SculptXV to ensure compliance with this Agreement, which inspection shall be at Licensor’s cost.

 

            2.5          No Market Training.  Except for furnishing Licensed Materials, course training and such additional material as becomes available through the Sculptor’s Club, Licensor is not required to, and will not, furnish any advice or assistance with respect to the marketing, sale, operation, or management of Licensee’s business.  

 

            2.6        Identification of Recipients. Licensee shall furnish to Licensor, when reasonably possible but at least once each calendar quarter, a list of all persons, companies, and other entities to whom Licensee has delivered SculptXV or any Licensed Materials.  

 

Article 3.           License Fees. 

 

3.1            Mandatory Sculptor’s Club Membership. To maintain the License granted herein, Licensee shall, on or prior to the Effective Date, enroll as a member of the SculptXV Sculptor’s Club, and maintain such membership in good standing by paying all required membership fees and complying with all other membership requirements.  

  

Article 4.           Term, Termination, and Renewal of License.

 

4.1        Term.  The term of this Agreement is perpetual, for so long as Licensee pays all required fees and remains compliant with all other terms and conditions of this Agreement.  

 

4.2        Termination.  If membership in the Sculptor’s Club lapses for more than three months, it may be reactivated for an additional one-time fee of $75.00.  If membership is not reactivated, or membership lapses for more than three months, Licensor, at its discretion, may terminate this Agreement or suspend the Agreement until Licensee retakes any required training and otherwise becomes fully compliant.  Licensor may further terminate this Agreement at any time, effective immediately, if Licensee has breached any provision of this Agreement and failed to cure such breach within 30 days of written notice.  In addition, Licensor reserves the right, at any time, in its sole discretion, to cease operation of the SculptXV program and terminate all licenses issued to SculptXV trainers.  

 

4.4        Obligations at Termination.  Upon termination of this Agreement, all rights granted to Licensee hereunder shall cease immediately and Licensee shall do each of the following: Cease all marketing, promotion, distribution, copying, or other use of the Licensed Materials, and cease delivering or participating in SculptXV;  Cease making any use or displaying the SculptXV Marks, and cease making any representation or statements that Licensee is an SculptXV Commercial Trainer or in any way affiliated with Licensor or with SculptXV;  Cease conducting any in person or online SculptXV classes;  Cease operating, and transfer to Licensor, any associated website or domain with an address containing a SculptXV Mark or any confusingly similar term, and cease operating all SEO or keyword protocols that are triggered by the use of a SculptXV Mark or any confusingly similar term; and Return to Licensor all copies of any Licensed Materials in Licensee’s possession or control, all documents containing or referring to Confidential Information, and all marketing materials or other tangible materials which make any reference to Licensor or SculptXV or display any SculptXV Marks.

 

Article  5.          Ownership of SculptXV.

 

5.1            Title to Licensed Materials and SculptXV Methodologies.  Except for material obtained from third parties, who have granted rights of use therein to Licensor, the Licensed Materials, and all methods, concepts, ideas, techniques and research constituting the SculptXV Methodologies, are the sole and exclusive property of Licensor, including all rights arising under the copyright, trademark, trade secret, patent, or other intellectual property laws of the United States or any foreign jurisdiction.  Such rights further extend to all copies, modifications, revisions, derivative works, or other work product based thereon whether authorized or unauthorized.  To the extent such materials are created by Licensee, solely or with others, Licensee is deemed to have assigned, upon the moment of creation, all right, title and ownership in such content, including all intellectual property rights, to Licensor.  

 

5.2            Prohibited Uses.  Except as specifically permitted in this Agreement, Licensee shall not undertake, or permit or assist a third party, to: (a) Copy, scan, digitize, encode, or otherwise duplicate or reproduce the Licensed Materials; Furnish any copies of the Licensed Materials to a third party other than a third party that has entered into a binding agreement, approved as to form by Licensor, to participate in SculptXV and is in compliance with all of the terms of such agreement; Modify, revise, or change the Licensed Materials for any purpose whatsoever; or Use, display, or furnish the Licensed Materials in any activity not directly associated with the marketing or delivery of SculptXV.  Under no circumstances shall Licensee undertake, permit, or assist any third party, to disclose, teach, disseminate, or otherwise use or exploit SculptXV or any of the SculptXV Methodologies other than as permitted in this Agreement.

 

            5.3        Confidential Information Defined.  The Parties acknowledge that, in the course of performing this Agreement, each Party may be exposed or have access to confidential and proprietary information belonging to or supplied by the other Party, relating to its affairs, including, without limitation, software programs, financial information, analysis, research, processes, methods, ideas, know-how, business information, the SculptXV Methodologies, and any other information either identified as confidential or that would reasonably be understood to be considered confidential.  Confidential Information does not include information and data which: has become publicly known or was received from a third party without violation of an obligation of nondisclosure of any person or entity; was developed independently without any use or reference to Confidential Information, or; which the receiving party must produce under lawful order but provided that the disclosing Party is given adequate advance notice so as to seek appropriate protective relief.  

 

            5.4        Nondisclosure of Confidential Information. Except as allowed herein, a Party shall not use, transfer, commercialize or disclose Confidential Information of the other Party to any person or entity.  Each Party shall use at least the same degree of care in safeguarding the other Party’s Confidential Information as it uses in safeguarding its own highly confidential information.  Each Party shall promptly notify the other Party of any information suggesting an ongoing, pending or threatened misappropriation of the other Party’s Confidential Information.

 

            5.7        Injunctive Relief.  Any violation of the provisions of this Article 5 would cause irreparable damage to the other Party, that would be impossible to calculate or remedy in monetary terms, and such violation will entitle the other Party to immediate and permanent injunctive or other equitable relief, without the necessity of posting bond.

 

            5.8        Cooperation.   Licensee shall execute such documents, and perform such other acts as reasonably requested by Licensor, to enable Licensor to protect, register, maintain and enforce its intellectual property rights in SculptXV and the Licensed Materials.  

 

Article  6.          Licensor's Warranty and Indemnification. 

 

            6.1        Licensor’s Warranty; Indemnification.  Licensor warrants that: (1) Licensor's performance of this Agreement is fully authorized and does not violate a legal right of any third party; and (2) the use of the Licensed Materials as authorized in this Agreement does not, to Licensor's knowledge, infringe upon any trade name, trademark, copyright, or patent of any person or entity.  Licensor shall indemnify, defend and hold Licensee harmless from any and all damages, liabilities, costs and expenses (including reasonable attorneys' fees) against any claim from a third party that, if true, would constitute a violation of the foregoing Warranty, provided that Licensee promptly notifies Licensor in writing of such claim, tenders control of the defense to Licensor, and permits Licensor, at Licensor’s expense, to take such steps as deemed necessary to defend or settle such claim, and fully cooperates in Licensor’s actions as reasonably required.  Licensor reserves the right to settle such claim by replacing the Licensed Materials with reasonably equivalent noninfringing materials.  Licensor shall have no obligation to indemnify Licensee if a claim arises from (a) the use of a superceded version of the Licensed Materials; (b) the use of the Licensed Materials other than as allowed under this Agreement; (c) the unauthorized modification of the Licensed Materials; (d) the unauthorized combination or use of the Licensed Materials with other materials or products; or (e) the failure to properly deliver SculptXV classes. 

 

6.4        No Other Warranties. Licensor makes no other warranty, express or implied, with respect to SculptXV, including warranties of merchantability or fitness for a particular purpose.  Without limitation, Licensor makes no warranty or assurance: (a) that Licensee will realize any specific, minimum or guaranteed revenue or other value from the exercise of this License; and (b) as to the effectiveness, efficacy, validity or reliability of SculptXV in addressing a particular participant’s needs.  

 

6.5            Limitation of Damages.  Except for Licensor’s indemnification of Licensee under Section 6.2, Licensor shall not be liable for any amounts in excess of the aggregate of the fees paid to Licensor by Licensee; or for amounts that constitute incidental, remote, or consequential damages, even if the possibility of such damages may be have been discussed or foreseeable at the time of the formation of this Agreement. 

 

Article 7.           Licensee's Warranty and Indemnification.

 

7.1        Licensee's Warranty; Indemnification.  Licensee represents and warrants that: (a) Licensor's performance of this Agreement is fully authorized and does not violate a legal right of any third party; (b) Licensee's performance under this Agreement shall conform with applicable laws and government rules and regulations; and (c) Licensee possesses, or will obtain, the necessary qualifications, skills, education and other abilities to learn and deliver SculptXV classes.  Licensee shall indemnify, hold harmless and defend Licensor, including its owners, directors, agents, employees and affiliates, against any claim from a third party that, if true, would constitute a violation of the foregoing Warranty or any other breach of this Agreement 

 

Article 8.           General Provisions.

 

8.1        Arbitration.  Except for matters requiring equitable relief, all disputes concerning the interpretation, performance, or enforcement of this Agreement shall be resolved by binding arbitration, conducted in Denver, Colorado, under the rules of the American Arbitration Association. Judgment upon the arbitrator's award shall be enforceable in any court of competent jurisdiction. The compensation to be paid to the arbitrators appointed under this paragraph, if any, and the responsibility of the payment thereof shall be shared equally by the parties.  

 

8.2            Nonwaiver.  No delay in enforcement of any breach of this Agreement, and no acceptance of payment owed by Licensee, shall constitute a waiver.  

 

8.3            Independent Contractors.  Each party and its employees, agents, officers, and representatives are independent contractors in relation to the other party with respect to all matters arising under this Agreement.  Nothing herein shall be deemed to establish a partnership, joint venture, association, or other employment relationship between the Parties.

 

8.4            Severability.  If a provision of this Agreement is adjudicated to be unenforceable, the Agreement shall be deemed amended to conform to such laws and regulations and the remainder of the Agreement shall remain enforceable.

 

8.5            Governing Law, Venue, Personal Jurisdiction.  This Agreement shall be governed by the laws of the State of Colorado.  The Parties agree that this Agreement is made and partially performed in Denver, Colorado, and venue for any legal action pertaining to this Agreement shall be vested exclusively in the state and federal courts having jurisdiction over Denver, Colorado.  The Parties submit to the exercise of in personam jurisdiction over them by such courts for such purposes. In any legal action or arbitration to enforce or interpret this Agreement, the prevailing party therein shall recover all costs, expenses, and reasonable attorneys’ fees.

 

            8.6        Entire Agreement; Modifications.  This Agreement sets forth the entire agreement and understanding of the parties in respect of the transactions contemplated hereby and supersedes all prior agreements, arrangements, and understandings relating to its subject matter.  This Agreement may be modified only with the express consent of both Parties. 

 

            8.7        Authority.  Each individual executing this Agreement  warrants that such individual has the full authority to bind the party so represented by such individual's signature to all terms and conditions of this Agreement.

 

            8.8        Counterparts; Copies.  This Agreement may be executed in counterparts. A facsimile, photocopy or digital scan of a document shall be treated as an original, admissible into evidence, unless a document's authenticity is placed genuinely in question.

 

            8.9        Force Majeure.  Neither party shall be liable for delays caused by events beyond such party's reasonable control.

            8.10      Notices; Electronic Means.  All notices sent or required under this Agreement shall be in writing, directed to the addresses appearing below and, deemed received: (a) when delivered, if delivered in person or by confirmed email transmission; (b) one day after dispatch if sent by recognized overnight courier; and (c) two days after mailing, if sent by first class mail postage prepaid.  The Parties consent to the use of electronic means for all communications concerning the 

 

Notices to Licensor:                                

 

Tres Palmas Development, LLC                                                                             

Attn: Allison Westfahl Wagner                                                                              

700 Colorado Blvd. # 106                                                                                     

Denver, CO, 80206                                                                                              

 

Email: amwestfahl@gmail.com         

                                

            IN WITNESS WHEREOF, and intending to be legally bound, the parties hereby execute this Agreement as of the date entered on the "License Agreement Form".

 

                                                                                                                                                            

Tres Palmas Development, LLC                                        

By: Allison Westfahl Wagner, President

                                                                                                                                                

                          

 

 

EXHIBIT A

SCULPTOR’S CLUB BENEFITS

 

·               Private website log-in page and discussion board for Instructors.

·               In-service training on updates and improvements.

·               Quarterly review and critique of Instructor’s teaching methods.

·               Monthly training video of a fully choreographed class with playlist.

·               Full membership and access to the on-demand video library.