1. Basis for Agreement
The Licensor has developed a proprietary business operating system which includes an operating system, tools, and software (the “Empire System”) and related Empire Brand Guide, trade names, and trademarks (“Marks”). The Licensor grants the right to purchase and implement the Empire Systems under the Marks and pursuant to this Agreement.
The Licensee has either started or completed the training process and has or will become an “Empire Certified Coach” prior to implementing an Empire System for a Client. The Licensee desires to purchase and implement the Empire Systems for a Client identified herein or to be later identified and the Licensor desires to grant the Licensee the right to use the Empire Systems for such Client under the terms and conditions which are contained in this Agreement.
2. Grant of License
The Licensor grants to the Licensee, and the Licensee accepts from the Licensor, the right to use the Marks, which includes the “Empire Brand Guide”, and Empire Systems for the Client described in this Agreement. The Licensee agrees to strictly adhere to use of the Marks which includes the Empire Brand Guide and Empire Systems as provided or as changed, improved, or further developed by the Licensor from time to time, only in accordance with the terms and conditions of this Agreement. The Empire Brand Guide shall be provided to the Licensee upon successful completion of the Empire Certified Coach program and purchase of an Empire System.
The Licensee agrees at all times to faithfully, honestly and diligently perform the Licensee’s obligations hereunder, and to continuously exert best efforts to promote the Marks and Empire Systems. The Licensee agrees to utilize the Marks and Empire Systems in accordance with the methods and systems developed and prescribed from time to time by the Licensor, all of which are a part of the Empire Systems. The Licensee’s shall offer such products and services as the Licensor shall designate and shall be restricted from manufacturing, offering, or selling any related products or services not previously approved by the Licensor in writing. The Licensee must use the Licensor’s products and/or products of its designated suppliers and related non-primary items (“Items”) approved by the Licensor in writing.
3. License Location and Designated Area
The Licensee is granted the right to purchase and implement the Empire System for Clients.
The rights that are granted to the Licensee under this Agreement are for Client implementation and cannot be transferred without the prior written approval of the Licensor.
4. Initial Licensing Fee
In consideration for the right to use and implement one Empire System, the Licensee agrees to pay to the Licensor an Initial Licensing Fee of $10,000 which is due and payable as of the date of execution of this Agreement. The licensing fee represents payment for the Empire Certified Coach training program and the grant of the rights to use the Marks and Empire System. The Licensor has earned the licensing fee upon receipt thereof and that the fee is non-refundable except as otherwise specifically set forth in this Agreement.
5. Monthly Licensing Fee
The Licensee agrees to pay the Licensor a monthly amount as Licensee Fee pursuant to the following:
Individual license: $495 per month
Corporate license: 1-3 employees, $500 per employee per month
Corporate license: 4 or more employees, $2,000 per month
The payment of License Fee enables the Licensee to enjoy the use of the Licensor’s system, name as well as assistance during the duration of the license. The monthly license fee will begin thirty (30) days from the completion of the Empire Certified Coach training program. Any month the licensing fee is not paid, the Licensee forfeits any use of the License.
The Licensee agrees upon executing this Agreement, if the Licensee has not previously successfully completed the Empire Certified Coach program, the Licensee is required to attend and successfully complete the Empire Certified Coach program which is offered by the Licensor at one of the Licensor’s designated training facilities. The Licensee upon successful completion of the Empire Certified Coach program may refer to himself or herself as an Empire Certified Coach.
The Licensor’s Empire Certified Coach program shall consist of instruction at a location designated by the Licensor; provided, however, that the Licensor reserves the right to waive a portion of the Licensor’s training program or alter the training schedule, if in the Licensor’s sole discretion, the Licensee has sufficient prior experience or training.
From time to time, the Licensor may present seminars, conventions or continuing development programs or conduct meetings for the benefit of the Licensee.
The Licensee agrees to use the Marks and Empire System only as specified. The Empire System is the sole property of the Licensor and shall be used by the Licensee only during the term of this Agreement and in strict accordance with the terms and conditions hereof. The Licensee shall not duplicate the Empire System or disclose its contents to persons other than its employees or officers who have signed the form of Confidentiality and Non-Disclosure Agreement. The Licensor reserves the right to revise the Empire System from time to time as it deems necessary to update or change operating and marketing techniques, standards, and specifications for all components of the Empire System. Promptly after receiving any update from the Licensor, the Licensee shall update his copy of the Empire System as instructed by the Licensor and shall conform operations with the updated provisions within a reasonable time after receipt of such updated information.
The Licensee shall obtain the Licensor’s prior written approval of all advertising or other marketing or promotional programs published by any method, including print, broadcast and electronic media, regarding the Empire System, including, without limitation, advertising, newspaper ads, flyers, brochures, coupons, direct mail pieces, specialty and novelty items, radio, television, and Internet advertising. The Licensee acknowledges and agrees that the Licensor may disapprove of any advertising, marketing or promotional programs submitted to the Licensor for any reason in the Licensor’s sole discretion. The Licensee shall also obtain the Licensor’s prior written approval of all promotional materials provided by vendors. The proposed written advertising or a description of the marketing or promotional program shall be submitted to the Licensor before publication, broadcast or use.
9. Quality Control
The Licensee agrees to implement and operate the Empire System strictly in compliance with this Agreement and the standards and specifications contained in the Empire System, as the same may be modified from time to time by the Licensor in accordance with this Agreement.
The Licensee is prohibited from offering or selling any other business operating system’s products or services not authorized by Licensor.
If the Licensee proposes to offer, conduct or utilize any products, services, materials, forms, items or supplies for use in connection with or sale through Empire Systems which are not previously approved by the Licensor as meeting its specifications, the Licensee shall first notify the Licensor in writing requesting approval. The Licensor may, in its sole discretion, for any reason whatsoever, elect to withhold such approval. In order to make such determination, the Licensor may require submission of specifications, information, or samples of such products, services, materials, forms, items or supplies. The Licensor will advise the Licensee within a reasonable time whether such products, services, materials, forms, items or supplies meet its specifications.
The term of this Agreement begins on the date this Agreement is fully executed and ends one year after implementation of the Empire System for the Client, unless sooner terminated as provided herein.
11. Default and Termination
The Licensor shall have the right, at its option, to terminate this Agreement and all rights granted the Licensee hereunder, without affording the Licensee any opportunity to cure any default (subject to any state laws to the contrary, where state law shall prevail), effective upon receipt of notice by the Licensee, upon the occurrence of any of the following events:
a. Insolvency; Assignments. If the Licensee becomes insolvent or is adjudicated a bankrupt; or any action is taken by the Licensee, or by others against the Licensee under any insolvency, bankruptcy or reorganization act, (this provision may not be enforceable under federal bankruptcy law, or if the Licensee makes an assignment for the benefit of creditors, or a receiver is appointed by the Licensee;
b. Criminal Conviction. If the Licensee is convicted of a felony, a crime involving moral turpitude, or any crime or offense that is reasonably likely, in the sole opinion of the Licensor, to materially and unfavorably affect the Empire System, Marks, goodwill or reputation thereof;
c. Failure to Make Payments. If the Licensee fails to pay any amounts due the Licensor or affiliates within ten (10) days after receiving notice that such fees or amounts are overdue.
d. Misuse of Marks. If the Licensee misuses or fails to follow the Licensor’s directions and guidelines concerning use of the Licensor’s Marks and fails to correct the misuse or failure within ten days after notification from the Licensor;
e. Unauthorized Disclosure. If the Licensee intentionally or negligently discloses to any unauthorized person the contents of or any part of the Licensor’s Empire System, its operations or any other trade secrets or confidential information of the Licensor;
f. Repeated Non-Compliance. If the Licensee has received a notice of default from the Licensor and is again in default of this Agreement at any time during the term of this Agreement, regardless of whether the previous defaults were cured by the Licensee.
g. Others. Any other covenant that the parties feel is sufficient cause to terminate this Agreement.
12. Restrictive Covenants
The Licensee acknowledges that, in addition to the license of the Marks hereunder, the Licensor has also licensed commercially valuable information which comprises and is a part of the Empire System, including without limitation, operations, marketing, advertising and related information and materials and that the value of this information derives not only from the time, effort and money which went into its compilation, but from the usage of the same by all the Licensees of the Licensor using the Marks and Empire System. The Licensee therefore agrees that other than the Empire System licensed herein, neither the Licensee nor any of the Licensee’s officers, directors, shareholders, or partners, nor any member of his or their immediate families, shall during the term of this Agreement: a. have any direct or indirect controlling interest as a disclosed or beneficial owner in a “Competitive Business.”
The Licensee shall treat all information it receives which comprises or is a part of the Empire System licensed hereunder as proprietary and confidential and will not use such information in an unauthorized manner or disclose the same to any unauthorized person without first obtaining the Licensor’s written consent. The Licensee acknowledges that the Marks and the Empire System have valuable goodwill attached to them, that the protection and maintenance thereof is essential to the Licensor and that any unauthorized use or disclosure of the Marks and Empire System will result in irreparable harm to the Licensor.
The Licensee shall procure, maintain and provide evidence of:
(i) Comprehensive professional liability insurance for the Licensee’s operations;
(ii) Automobile liability insurance covering all employees with authority to operate a motor vehicle in an amount not less than any statutorily imposed minimum coverage;
(iii) Unemployment and worker’s compensation insurance with a broad form all-states endorsement coverage sufficient to meet the requirements of the law; and all the required policies of insurance shall name the Licensor as an additional named insured and shall provide for a 30 day advance written notice to the Licensor of cancellation.
The Licensee will provide proof of insurance to the Licensor prior to commencement of this Agreement. This proof will show that the insurer has been authorized to inform the Licensor in the event any policies lapse or are cancelled. The Licensor has the right to change the minimum amount of insurance the Licensee is required to maintain by giving the Licensee prior reasonable notice, giving due consideration to what is reasonable and customary in the similar business. The Licensee’s failure to comply with the insurance provisions set forth herein shall be deemed a material breach of this Agreement. In the event of any lapse in insurance coverage, in addition to all other remedies, the Licensor shall have the right to demand that the Licensee cease use of the Empire System until coverage is reinstated, or, in the alternative, pay any delinquencies in premium payments and charge the same back to the Licensee.
14. Governing Law
This Agreement shall be interpreted under the laws of the state of Georgia and any disputes between the parties shall be governed by and determined in accordance with the substantive laws of the state of Georgia which laws shall prevail in the event of any conflict of laws.
The Licensor and/or the Licensee may modify this Agreement only upon execution of a written agreement between the two parties. The Licensee acknowledges that the Licensor may modify its standards and specifications and operating, and marketing techniques set forth unilaterally tender any conditions and to the extent in which the Licensor, in its sole discretion, deems necessary to protect, promote, or improve the Marks and the quality of the Empire System, but under no circumstances will such modifications be made arbitrarily without such determination.
16. Entire Agreement
This Agreement contains the entire agreement between the parties and supersedes all prior agreements concerning the subject matter hereof. The Licensee agrees and understands that the Licensor shall not be liable or obligated for any oral representations or commitments made prior to the execution hereof or for claims of negligent or fraudulent misrepresentation based on any such oral representations or commitments and that no modifications of this Agreement shall be effective except those in writing and signed by both parties. The Licensor does not authorize and will not be bound by any representation of any nature other than those expressed in this Agreement. The Licensee further acknowledges and agrees that no representations have been made to it by the Licensor regarding projected sales volumes, market potential, revenues, profits of the Licensee’s Empire System, or operational assistance other than as stated in this Agreement or in any disclosure document provided by the Licensor or its representatives.
17. Effective Date
This Agreement shall not be effective until accepted by the Licensor as evidenced by dating and signing by an officer of the Licensor.
18. Attorneys’ Fees
In the event of any dispute between the parties to this Agreement, including any dispute involving an officer, director, employee or managing agent of a party to this Agreement, in addition to all other remedies, the non-prevailing party will pay the prevailing party all costs and expenses, including reasonable attorneys’ fees, incurred by the prevailing party in any legal action, arbitration or other proceeding as a result of such dispute.
19. Injunctive Relief
Nothing herein shall prevent the Licensor or the Licensee from seeking injunctive relief to prevent irreparable harm, in addition to all other remedies. If the Licensor seeks an injunction, the Licensor will not be required to post a bond.
20. No Waiver
No waiver of any condition or covenant contained in this Agreement or failure to exercise a right or remedy by the Licensor or the Licensee shall be considered to imply or constitute a further waiver by the Licensor or the Licensee of the same or any other condition, covenant, right, or remedy.
21. No Right to Set Off
The Licensee shall not be allowed to set off amounts owed to the Licensor for fees or other amounts due hereunder, against any monies owed to Licensee, nor shall the Licensee in any event withhold such amounts due to any alleged nonperformance by the Licensor hereunder, which right of set off is hereby expressly waived by the Licensee.
If any provision of this Agreement is held invalid by any tribunal in a final decision from which no appeal is or can be taken, such provision shall be deemed modified to eliminate the invalid element and, as so modified, such provision shall be deemed a part of this Agreement as though originally included. The remaining provisions of this Agreement shall not be affected by such modification.
All notices required to be given under this Agreement shall be given in writing, by certified mail, return receipt requested, or by an overnight delivery service providing documentations of receipt, at the address set forth in the first paragraph of this Agreement or at such other addresses as the Licensor or the Licensee may designate from time to time, and shall be effectively given when deposited in the United States mail, postage prepaid, or when received via overnight delivery, as may be applicable.
24. Payment of Taxes
The Licensee shall reimburse the Licensor, or its affiliates and designees, promptly and when due, the amount of all sales taxes, use taxes, personal property taxes and similar taxes imposed upon, required to be collected or paid by the Licensor, or its affiliates or designees, on account of services or goods furnished by the Licensor, its affiliates or designees, to the Licensee through sale, lease or otherwise, or on account of collection by the Licensor, its affiliates or designees, of the Licensing Fee, Royalties, Marketing and Promotion Fees or any other payments made by the Licensee to the Licensor required under the terms of this Agreement.
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