This LICENCE AGREEMENT is made effective as of _____________________ (“Effective Date”)
BETWEEN:
ANNETTE SHARPE, doing business as GROWING FOR SUCCESS, located at Suite #250 - 395 Railway St, Vancouver, BC, V6A1A6 (“LICENSOR”)
AND:
[insert full legal name of licensee], a [insert jurisdiction] corporation with its head office located at [insert address] (“Licensee”)
WHEREAS:
A. LICENSOR has developed the Program, as defined below; and
B. Licensee wishes to license the use of the Program, and LICENSOR has agreed to license such use, pursuant to the terms of this Agreement.
NOW THEREFORE, for and in consideration of the foregoing and of the mutual covenants and promises hereinafter contained, and in further consideration from each Party to the other given, the receipt and sufficiency of which are hereby acknowledged, and other good and valuable consideration, the Parties hereto agree and understand as follows:
1. DEFINITIONS
In this Agreement, the following terms shall have the meanings set out below:
(a) “Business Day” means any day, 9:00 a.m. to 5:00 p.m., which is not a Saturday, Sunday or statutory holiday in Delta, British Columbia.
(b) “Confidential Information” means all data and information relating to the business and management of either Party, including the Program, trade secrets, technology and accounting records to which access is obtained hereunder by the other Party, and any materials provided by LICENSOR to Licensee provided, however, that Confidential Information shall not include any data or information which: (i) is or becomes publicly available through no fault of the other Party; (ii) is already in the rightful possession of the other Party prior to its receipt from the other Party; (iii) is disclosed with the written consent of the Party whose information it is; or (iv) is disclosed pursuant to court order or other legal compulsion;
(c) “Modifications” means any enhancements, changes, corrections, improvements, translations, adaptations, revisions, developments, upgrades or updates thereto; and “Modify” shall mean the creation of any of the foregoing;
(d) “Parties” means both LICENSOR and Licensee and “Party” means either one of them as the context requires;
(e) “Person” includes an individual, sole proprietorship, corporation, limited liability corporation, not-for-profit corporation, partnership, trust, association, joint venture or unincorporated organization;
(f) “Program” means the Inspired Steps Intention-Setting and Goal Achievement System and any Modifications that LICENSOR may provide to Licensee;
(g) “Use” means to run, display, store, copy, use, sell, market, integrate with Licensee’s products, publish or transmit.
2. LICENCE
Subject to the terms of this Agreement, LICENSOR hereby licenses to Licensee, the non-transferable and non-exclusive, right to Use the Program.
Licensee agrees to reproduce and include on any copy made or portion merged into another work, all LICENSOR proprietary notices, including without limitation any notices with respect to this licence, copyrights and trademarks.
3. LICENCE RESTRICTIONS
Except as otherwise provided in section 2 above or without LICENSOR’s written consent, Licensee shall not: translate, merge, Modify, transfer, loan, rent, lease, assign or sub-license the Program, in any way, in whole or in part; Licensee agrees to take all reasonable precautions to prevent third parties from using the Program in any way that would constitute a breach of this Agreement including, without limitation, such precautions as Licensee would otherwise take to protect its own proprietary information.
4. DELIVERY
LICENSOR shall deliver:
(a) a facilitator’s package for the Program, containing all information required by the Licensee to facilitate the Program; and
(b) the necessary self-training materials for the Program.
5. FEES
(a) Licensee shall pay to LICENSOR $450.00, plus any applicable taxes and duties, which shall be payable upon execution of this Agreement (the “License Fee”);
(b) Thereafter, the Licence Fee shall be paid on an annual basis, payable within 30 days of each annual renewal, provided that this Licence Agreement is renewed annually as contemplated in section 10;
(c) In the event that the Licensee requests personalization of the Program, Licensee shall pay the LICENSOR a fee of $200.00, plus any applicable taxes and duties, for:
(i) a hard copy of the Program; or
(ii) a soft copy of the Program.
6. LICENSOR’s LIMITED REPRESENTATIONS AND WARRANTIES
LICENSOR represents and warrants that:
(a) LICENSOR has the authority to enter into this Agreement, is the developer of the Program and has the right to grant all of the license rights herein; and
(b) LICENSOR has not granted any rights or licenses to the whole or any part of the Program, or any other intellectual property or technology that would conflict with this Agreement.
7. OWNERSHIP
The Parties acknowledge and agree that as between the Parties, LICENSOR shall be the owner of all intellectual property rights in the Program and all related Modifications, written materials, logos, trademarks, trade names, copyright, patents, trade secret and moral rights, registered or unregistered. No proprietary interests or title in or to the intellectual property in the Program or any Modifications is transferred to Licensee by this Agreement. LICENSOR reserves all rights not expressly licensed to Licensee under section 2.
8. CONFIDENTIALITY
Each of LICENSOR and Licensee shall use reasonable efforts to protect from disclosure such information that is the Confidential Information of the other. Each of LICENSOR and Licensee shall divulge such Confidential Information only to its employees or agents who require access to it for the purposes of this Agreement or as otherwise provided in this Agreement. Each of LICENSOR and Licensee (the “Indemnifying Party”) agree to indemnify the other (the “Indemnified Party”) for all Losses incurred by the Indemnified Party as a result of a failure of the Indemnifying Party to comply with its obligations under this section 8.
Without limiting any other rights or remedies available to LICENSOR in law or in equity, Licensee acknowledges and agrees with LICENSOR that the breach by it of any of the provisions of this Agreement would cause serious and irreparable harm to LICENSOR which could not adequately be compensated for in damages and, in the event of a breach by Licensee of any of such provisions, Licensee hereby consents to an injunction being sought against it restraining it from any further breach of such provision.
9. LIMITATION OF LIABILITY
No action, regardless of form, arising out of this Agreement may be brought by Licensee more than twelve (12) months after the facts giving rise to the cause of action have occurred, regardless of whether those facts by that time are known to, or reasonably ought to have been discovered by, Licensee.
(a) Except as expressly provided for in this Agreement, the Program is not guaranteed and is provided “as is” and LICENSOR gives no other representations, warranties or conditions of any kind, express or implied, including without limitation warranties as to uninterrupted or error free operation, merchantability, quality or fitness for a particular purpose and those arising by statute or otherwise, or from a course of dealing or usage of trade.
(b) Except for the breach of confidentiality in section 8, in no event shall LICENSOR, its affiliates and their respective directors, officers, employees and agents be liable for any claim for:
(i) punitive, exemplary or aggravated damages;
(ii) damages for loss of profits or revenue;
(iii) indirect, consequential or special damages;
(iv) contribution, indemnity or set-off in respect of any claims against licensee.
(c) In all instances, LICENSOR’S liability under this Agreement shall be strictly limited to the amount of monies actually received by LICENSOR from Licensee under this Agreement and under no circumstances will it exceed that amount.
10. INDEMNIFICATION.
In the event that Licensee uses the Program in breach of the terms of this Agreement, or fails to make payment of any monies due hereunder to LICENSOR, Licensee agrees to indemnify, release, and save harmless LICENSOR and its employees, directors, successors, and assigns, from any and all manner of claims, liabilities, actions, causes of actions, suits, debts, and all expenses (including investigation costs, collection costs, legal fees, and disbursements) and damages of every nature and kind whatsoever arising out of Licensee’s breach of this Agreement.
11. TERM AND TERMINATION
(a) The term of this Agreement shall be for one (1) year.
(b) This Agreement shall renew automatically on an annual basis and on the same terms and conditions contained herein save and except if either the LICENSOR or the Licensee delivers a notice to the other in writing no less than thirty (30) days prior to the anniversary date hereof of their intention to terminate or renegotiate this Agreement.
(c) Either Party shall have the right on notice to the other Party, to terminate this Agreement if:
(i) the other Party should fail to pay an amount to the other when due hereunder and such breach is not cured within thirty (30) days after written notice of such is given to it by the other Party;
(ii) the other Party is subject to a bankruptcy or receiving order under the Bankruptcy and Insolvency Act or the comparable law of any other jurisdiction or there shall be entered an order, judgment or decree by a court of competent jurisdiction, upon the application of a creditor, approving a petition seeking reorganization or appointing a receiver, trustee or liquidator of all or a substantial part of the other Party’s assets; or
(iii) the other Party shall fail to perform any of the other material obligations set forth in this Agreement and such default: in the case of a default which is remediable continues for a period of thirty (30) days after written notice of such failure has been given by the non-defaulting Party; or (ii) in the case of a non-remediable default, immediately upon notice.
(d) Notwithstanding this section 11, LICENSOR may forthwith terminate this Agreement if Licensee is in breach of any of sections 2, 3 or 8 of this Agreement. LICENSOR shall provide written notice of such termination as soon as practicable but written notice shall not be a necessary prerequisite to such termination.
(e) Upon the termination or expiry of this Agreement:
(i) Licensee shall immediately deliver to LICENSOR any of LICENSOR’s Confidential Information provided hereunder then in its possession or control, if any, and shall deliver a certificate of an officer of Licensee certifying the completeness of same;
(ii) Licensee shall refrain from further use of such Confidential Information; and
(iii) Licensee shall forthwith pay all sums owing to LICENSOR hereunder. Nothing in this section 11 shall limit either Party’s rights or remedies available at law, in equity or otherwise.
12. SURVIVAL
The provisions of sections 1, 3, 5, 7, 8, 9, 10, 11, 12, 13, 15 and 16 herein shall survive the expiry or termination of this Agreement.
13. FORCE MAJEURE
Dates and times by which LICENSOR is required to render performance under this Agreement shall be automatically postponed to the extent and for the period that LICENSOR is prevented from meeting them by reason of any cause beyond its reasonable control, provided LICENSOR notifies Licensee of the commencement and nature of such cause and uses its reasonable efforts to render performance in a timely manner.
14. ASSIGNMENT
LICENSOR may assign this Agreement, or any of its rights or obligations hereunder, in whole or in part without the consent of the Licensee. Licensee shall not assign this Agreement, or any of its rights or obligations hereunder, in whole or in part, without the prior written consent of LICENSOR, which consent may be unreasonably withheld.
15. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of British Columbia and federal laws of Canada applicable therein and shall be treated, in all respects, as a British Columbia contract. The Parties submit to the exclusive jurisdiction of the courts of British Columbia.
16. AMENDMENT
This Agreement may not be modified unless agreed to in writing by both Parties. Any consent by a Party to, or waiver of a breach by the other, whether express or implied, shall not constitute a consent to or waiver of or excuse for any other different or subsequent breach unless such waiver or consent is in writing and signed by the Party claimed to have waived or consented. Except as otherwise provided herein, no term or provision hereof shall be deemed waived and no breach excused.
17. SEVERABILITY
If any part of this Agreement is held to be unenforceable or invalid, it will be severed from the rest of this Agreement, which shall continue in full force and effect.
18. NUMBER AND GENDER
Words importing the singular include the plural and vice versa; and words importing gender include all genders.
19. ENTIRE AGREEMENT
This Agreement and any schedules or other documents referred to herein, constitutes the entire agreement between the Parties relating to the licensing of the Program and supersedes all prior written or oral agreements, representations and other communications between the Parties, and shall enure to the benefit of and be binding upon each of the Parties and their respective successors and permitted assigns.
IN WITNESS WHEREOF, the Parties by their duly authorized officers, have executed this Agreement.
GROWING FOR SUCCESS [LICENSEE]
___________________
______________________
Authorized Signatory Authorized Signatory
___________________
______________________
Print Name Print Name