STRETCH CENTER
LICENSE & TERMS OF USE
This License and Terms of Use (this “Agreement”) is made on the date accepted by Customer as indicated on Stretch Center’s website (the “Effective Date”) and is entered into by Stretch Center LLC, a Michigan limited liability company (“Stretch Center” or “Licensor”), which is the Licensor of the Stretch Center Material (as defined below) and the party accepting this Agreement (“Customer” or “Licensee”), each a “Party” and together the “Parties,” who agree as follows:
BACKGROUND
LICENSOR PROVIDES THE STRETCH CENTER MATERIAL (AS DEFINED BELOW) SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY USING THE STRETCH CENTER MATERIAL, LICENSEE (A) INDICATES ITS ACCEPTANCE OF THIS AGREEMENT AND AGREES THAT LICENSEE IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENTS AND WARRANTS THAT: (I) LICENSEE IS OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT IN THE JURISDICTION IN WHICH LICENSEE IS ACCEPTING THIS AGREEMENT; AND (II) IF LICENSEE IS A CORPORATION, COMPANY, OR OTHER LEGAL ENTITY, THE PERSON INDICATING ACCEPTANCE HAS THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND BIND LICENSEE TO ITS TERMS. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, LICENSOR WILL NOT AND DOES NOT LICENSE THE STRETCH CENTER MATERIAL TO LICENSEE AND LICENSEE MUST NOT USE ANY OF THE STRETCH CENTER MATERIAL.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, the promises and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:
Ownership and License.
As used in this Agreement, the term “Stretch Center Material” means Stretch Center’s unique courses, certifications, instructional guides, videos, downloads, memberships, programs, and other information, both tangible and intangible, describing Stretch Center’s methods for teaching users how to stretch a person’s body, and any updates, corrections, enhancements, or subsequent revisions made available to Licensee by Licensor under this Agreement.
As used in this Agreement, the term “Intellectual Property” means patents and patent applications, inventions (whether patentable or not), trademarks, service marks, trade dress, copyrights, trade secrets, know-how, data rights, specifications, computer software, drawings, designs, moral rights, author’s rights, and other Intellectual Property rights, as may exist now or hereafter come into existence, and all renewals and extensions thereof, regardless of whether any of such rights arise under the laws of the United States or of any other state, country, or jurisdiction, any registrations or applications thereof, and all goodwill pertinent thereto.
Subject to all the terms and conditions of this Agreement, Stretch Center hereby grants to Licensee a limited, non-exclusive, non-transferable, non-assignable, non sub-licenable license (the “License”) to use the Stretch Center Material solely for the purposes described in this Agreement (the “Permitted Use”). The Stretch Center Material and all related Intellectual Property is not, will not be, and shall not be construed to be “work made for hire” within the meaning of Section 101 of the Copyright Act (Title 17 of the U.S. Code). Licensee shall have no rights to the Stretch Center Material or any related Intellectual Property other than those expressly granted in this Agreement. Licensee shall not use the Stretch Center Material other than for the Permitted Use. The License shall commence on the Effective Date and shall terminate immediately when this Agreement expires or is earlier terminated pursuant to the terms set forth herein. Licensee shall ensure that only properly authorized employees and representatives of Licensee who need access to the Stretch Center Material may access it.
No Intellectual Property rights are transferred to Licensee hereunder. The Stretch Center Material and all Intellectual Property in or relating thereto are and shall remain the exclusive property of Licensor. Licensee acknowledges that Licensor shall retain all right, title, and interest in and to the Stretch Center Material and all Intellectual Property in or relating thereto, even if suggestions, feedback, proposals, or any other communication made by Licensee are incorporated into subsequent versions of the Stretch Center Material. Licensor shall own all derivatives, modifications, improvements, revisions, and/or enhancements of such Intellectual Property. To the extent, if any, that any ownership interest in and to any Intellectual Property does not automatically vest in Licensor by virtue of this Agreement or otherwise, and instead vests in Licensee, Licensee agrees to grant and assign and hereby does grant and assign to Licensor all right, title, and interest that Licensee may have in and to such Intellectual Property.
Licensee agrees not to: (i) copy, modify, decompile, disassemble, or otherwise extrapolate any content from, or make derivative works based upon, the Stretch Center Material, or use the Stretch Center Material to develop any products or services, without Licensor’s prior written approval; (ii) sell, license, rent, or transfer the Stretch Center Material to any third party without Licensor’s prior written approval; or (iii) use the Stretch Center Material in violation of (a) any applicable local, state, or federal law, rule, or regulation or (b) any agreement between Licensee and any third party.
Access to Stretch Center Material.
Licensor reserves the right to withdraw or amend online access to the Stretch Center Material, in its sole discretion, and without notice. Licensor will not be liable if for any reason all or any part of the Stretch Center Material is unavailable at any time or for any period, or if, as a result of such unavailability, Licensee claims to suffer any damages.
To access the Stretch Center Material, you may be asked to provide certain registration details or other information. It is a condition of your use of the Stretch Center Material that all the information you provide to Licensor is correct, current, and complete, and that you provide any updates to information that changes upon such change being effective. You agree that all information you provide to register with Stretch Center or otherwise, is governed by our Privacy Policy https://www.stretchcenter.com/privacy-policy/, and you consent to all actions Stretch Center takes with respect to your information consistent with Stretch Center’s Privacy Policy.
If you choose, or are provided with, a username, password or any other piece of information as part of Stretch Center’s security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to Stretch Center Material or portions of it using your username, password, or other security information. You agree to notify Stretch Center immediately of any unauthorized access to or use of your username or password or any other breach of security. You also agree to ensure that you exit from your account at the end of each session.
Licensor has the right to disable any username, password, or other identifier, whether chosen by you or provided by it, at any time in our sole discretion for any or no reason, including, but not limited to, if, in our opinion, you have violated any provision this Agreement, and/or any local, state, or federal law or regulation.
Fees and Payment.
Confidential Information.
“Confidential Information” is defined as “all data regarding customer/client, supplier, business source, and business development identities and sales volume; financial data; potential growth and development plans and strategies; marketplace strategies; technical expertise, knowhow, and methods; and other information deemed confidential by either Party (the “Disclosing Party”) in transmitting the information to the other Party (the “Receiving Party”), regardless of the medium in which the information is transmitted.” “Confidential Information” shall also include all copies and extracts of Confidential Information and all computer-generated data containing Confidential Information prepared by or for the benefit of the Disclosing Party. “Confidential Information” does not include any information that: (a) was in a Receiving Party’s possession before receipt from the Disclosing Party; (b) was developed by the Receiving Party without the Disclosing Party having any access to the information received in confidence; (c) becomes publicly known without breach by the Receiving Party; or (d) was received in good faith from a third party not subject to a confidentiality agreement. Receiving Party may disclose Disclosing Party’s Confidential Information if and to the extent that such disclosure is required by applicable law or judicial order, provided that, to the extent legally permissible, the Receiving Party provides the Disclosing Party a reasonable opportunity to review the disclosure before it is made and to interpose its own objection to the disclosure, and provided that Receiving Party only shares the minimal amount of Confidential Information necessary to comply with the applicable law or order.
Any Confidential Information transmitted to a Receiving Party under this Agreement shall be maintained by said Party in the same manner in which it protects its own Confidential Information of like kind. In no event shall such Receiving Party take less than reasonable precautions to prevent the unauthorized disclosure or use of any other Party’s Confidential Information. Confidential Information shall only be disclosed to a Receiving Party’s employees, independent contractors, or professional advisors who need to know the Confidential Information in order to assist the Receiving Party in some component of the Receiving Party’s obligations under this Agreement. The Receiving Party shall notify any authorized recipient of Confidential Information as to the confidential nature of the Confidential Information and ensure that said subsequent recipient agrees to be bound by all terms of this Agreement applicable to the Confidential Information and dissemination of the same, and any applicable restrictive covenants and agreed-upon equitable relief for a violation or potential violation of this Agreement.
Receiving Party’s obligations with any Confidential Information disclosed to it under this Agreement shall survive termination of this Agreement. Confidential Information that is a trade secret under any applicable law, rule, or regulation shall remain confidential until such designation is no longer applicable. All other Confidential Information shall remain confidential during the term of this Agreement and for five years thereafter.
The Parties agree that it would be difficult to establish a specific value of the damages of a breach of this Section 4. Therefore, without necessity of proving damages or irreparable harm, Disclosing Party shall be entitled to obtain, and Receiving Party agrees not to oppose its request for, equitable relief in the form of specific performance, temporary restraining order, temporary and permanent injunction, or any other equitable remedy which may be available. Said relief shall include, but not be limited to, immediate payment to Disclosing Party of all revenue derived from any breach of this Section 4. Nothing herein shall be construed as prohibiting Disclosing Party from pursuing any other remedies that may be available for such breach or threatened breach, including an action for damages.
Representations and Warranties.
YOUR USE OF STRETCH CENTER MATERIAL IS ENTIRELY AT YOUR OWN RISK. EXCEPT AS DESCRIBED IN THIS AGREEMENT, THE STRETCH CENTER MATERIAL IS PROVIDED “AS IS.” TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY THAT THE STRETCH CENTER MATERIAL IS FIT FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, NON-INTERFERENCE WITH OR NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS, OR THE ACCURACY, RELIABILITY, QUALITY, OR CONTENT IN STRETCH CENTER MATERIAL.
YOU MAY HAVE ADDITIONAL RIGHTS UNDER LAW WHICH VARY FROM JURISDICTION TO JURISDICTION. LICENSOR DOES NOT SEEK TO LIMIT YOUR WARRANTY RIGHTS TO ANY EXTENT NOT PERMITTED BY LAW.
LICENSOR, ITS AFFILIATES, SUPPLIERS, AND ANY AFFILIATES OR OTHER RELATED ENTITIES DISCLAIM ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, AND TERMS, EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE, OR OTHERWISE AS TO ANY MATTER, INCLUDING BUT NOT LIMITED TO PERFORMANCE, SECURITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INTEGRATION, MERCHANTABILITY, QUIET ENJOYMENT, SATISFACTORY QUALITY, AND FITNESS FOR ANY PARTICULAR PURPOSE. OTHER THAN SUCH OFFERED AND STATUTORY WARRANTIES AND REMEDIES, LICENSOR AND ITS AFFILIATES AND RELATED ENTITIES PROVIDE THE STRETCH CENTER MATERIAL AS-IS AND WITH ALL FAULTS. THIS DISCLAIMER OF WARRANTY MAY NOT BE VALID IN SOME STATES. YOU MAY HAVE ADDITIONAL WARRANTY RIGHTS UNDER LAW WHICH MAY NOT BE WAIVED OR DISCLAIMED. LICENSOR DOES NOT SEEK TO LIMIT YOUR WARRANTY RIGHTS TO ANY EXTENT NOT PERMITTED BY LAW. ANY PROVISIONS THE WARRANTIES AND DISCLAIMER WHICH SURVIVE THE TERMINATION OF THIS AGREEMENT DO NOT IMPLY OR CREATE ANY CONTINUED RIGHT TO USE THE STRETCH CENTER MATERIAL AFTER TERMINATION OF THIS AGREEMENT.
Indemnification.
Indemnification by Licensee. Licensee shall indemnify and hold the Licensor and its agents, officers, shareholders, directors, members, managers, and employees harmless against and from any and all claims, causes of action, demands, debts, damages, judgments, costs or expenses (including attorneys’ fees), or other losses of any nature or kind arising from, relating to, or in any manner connected to (a) Licensee’s breach of this Agreement; (b) Licensee’s violation of any applicable law, rule, or regulation; or (c) the negligence or misconduct of Licensee, its employees, officers, directors, shareholders, members, managers, agents, or contractors.
Indemnification by Licensor. Subject to any and all limitations set forth in Section 7, below, Licensor shall indemnify and hold Licensee and its agents, officers, directors, members, managers, and employees harmless against and from any and all claims, causes of action, demands, debts, damages, judgments, costs or expenses (including attorneys’ fees), or other losses of any nature or kind arising from, relating to, or in any way connected to (a) Licensor’s breach of this Agreement, (b) Licensor’s violation of any applicable law, rule, or regulation; or (c) the gross negligence or willful misconduct of Licensor’s, its employees, officers, directors, shareholders, members, managers, agents, or contractors. Nothing contained herein shall be deemed to relieve Licensee from any liability resulting from its negligence or misconduct.
Limitation of Liability. LICENSOR’S AGGREGATE LIABILITY TO LICENSEE SHALL BE LIMITED TO THE AMOUNT PAID BY LICENSEE TO LICENSOR OVER THE TWELVE MONTHS PRECEDING THE EVENT WHICH GAVE RISE TO THE CLAIM. IN NO EVENT SHALL LICENSOR BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT THE LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Term and Termination.
This Agreement shall commence on the Effective Date and shall continue for an initial term of one year (the “Initial Term”). The Initial Term may be extended for additional terms of one year (each, a “Renewal Term”); provided, each Party to this Agreement agrees in a written instrument to enter into a Renewal Term prior to 60 days before the end of the then-current Term.
Termination.
Termination with Cause. Either Party may terminate this Agreement for cause (1) on mutual written agreement of the Parties; (2) on the occurrence of any breach of this Agreement that is not cured within 30 days after receipt of written notice of the breach; or (3) if either Party is declared bankrupt or insolvent, or makes an assignment for the benefit of its creditors, or if a receiver is appointed or any proceedings are commenced, voluntarily or involuntarily, by or against either Party under any bankruptcy or similar law. In the event that the Agreement is terminated with cause, Licensee must immediately pay Licensor all unpaid invoices and interest and for use of the Stretch Cener Materials through the effective date of termination.
Miscellaneous.
Each Party is an independent contractor of the other Party. Nothing in this Agreement creates, or shall be construed as creating, a joint venture, partnership, agency, or employment relationship between the Parties hereto. Neither Party has any right or authority to assume or create any obligations of any kind or to make any agreements, representations, or warranties on behalf of the other Party, whether express or implied, or to bind the other party in any respect whatsoever.
This Agreement contains the entire agreement of the Parties with respect to the subject matter hereof and supersedes all prior agreements or understandings, oral or written, with respect to such subject matter.
This Agreement shall be binding upon, and the benefits and obligations provided for herein shall inure to, the Parties and their respective shareholders, members, directors, managers, heirs, legal representatives, successors and permitted assigns.
Neither Party shall assign this Agreement and/or its respective rights and obligations hereunder without the prior written consent of the other Party.
Any notice required or permitted to be given under this Agreement must be in writing and may be delivered in person, by registered mail, facsimile, e-mail (so long as the email is acknowledged as received by a reply acknowledging receipt), or by overnight courier addressed to the respective Party at the address provided by Licensee and Licensor upon confirmation of this Agreement. Any notice will be considered to have been given when personally delivered or five business days after the date of mailing or one business day after the date of forwarding if sent by facsimile, e-mail, or overnight courier.
No change or modification of this Agreement shall be valid unless the same is in writing and signed by the Parties.
No waiver of any provision of this Agreement shall be valid unless in writing and signed by the Party against whom it is sought to be enforced. The failure of any Party at any time to insist upon strict performance of any condition, promise, agreement, or understanding set forth in this Agreement shall not be construed as a waiver or relinquishment of the right to insist upon strict performance of the same condition, promise, agreement, or understanding at a future time.
This Agreement shall be governed by and construed in accordance with the laws of the State of Michigan, without regard to its principles of conflicts of laws. Each of the Parties to this Agreement irrevocably submits to the exclusive jurisdiction of the courts of the State of Michigan located in Kent County, Michigan, and the United States District Court for the Western District of Michigan for the purpose of any suit, action, proceeding, or judgment relating to or arising out of this Agreement and the transactions contemplated by this Agreement. Each of the Parties to this Agreement irrevocably consents to the jurisdiction of any such court in any such suit, action, or proceeding and to the laying of venue in such court. Each of the Parties to this Agreement irrevocably waives any objection to the laying of venue of any such suit, action, or proceeding brought in such courts and irrevocably waives any claim that any such suit, action, or proceeding brought in any such court has been brought in an inconvenient forum.