ENVoY TRAINERS ONLINE PROGRAM AGREEMENT
MICHAEL GRINDER & ASSOCIATES
THIS LICENSE AGREEMENT (the “Agreement”), effective as of the date on which it is fully executed by the Parties hereto (“Effective Date”), is made by and between Michael Grinder, Inc., a Washington corporation, and Michael Grinder & Associates, Inc., a Washington corporation (collectively “MGA” or “Licensor”) on the one hand and In-District Trainer/Entrepreneurial, an individual residing at street address provided (“Trainer”) on the other hand. MGA, Trainer and School System (defined below) are each referred to as a “Party,” and collectively, as the “Parties.”
RECITALS
MGA is the owner and/or exclusive Trainer of the copyrights in and to the published works described in Schedule 1 (the “Licensed Works”), attached hereto and incorporated herein, the associated Training Materials, and the associated trademarks and service marks and associated good will (the “Licensed Marks”). Trainer desires to become a Trainer certified by MGA to conduct training for education professionals based upon the Licensed Works;
THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:
1. DEFINITIONS.
The following capitalized terms shall have the meanings given below when used in this Agreement:
1.1. “Attendee” means an individual who has purchased the Licensed Works applicable to the particular Authorized Services and attends Trainer’s training in-person.
1.2. “Authorized Services” means the provision of in-person Classroom Management training services to professional educators and trainers based upon the contents of the Licensed Works and the Training Curriculum, and as further explained in Section 3.1. Trainers providing Authorized Services to employees and/or contractors of a School System require a contract with the respective public School System approved by MGA.
1.3. “Licensed Marks” means registered and unregistered trademarks and trade names, service marks, and domain names listed in Schedule 2 and as may be added by amendment in the future.
1.4. “Licensed Works” means the copyright protected works listed in Schedule 1.
1.5. “Trainer” means Entrepreneurial/In-District Trainer.
1.6. “Licensor” means Michael Grinder, Inc., and/or Michael Grinder & Associates, Inc.
1.7. “MGA” means, collectively, Michael Grinder, Inc. and Michael Grinder & Associates, Inc.
1.8. “Notice” has the meaning given in Section 9.
1.9. “Quality Standards” has the meaning given in Section 3.2.
1.10. “Renewal Term” has the meaning given in Section 6.1.
1.11. “School System” means public school district or private school institution or system provided by form.
1.12. “Term” has the meaning given in Section 6.1.
1.13. “Training Curriculum” has the meaning given in Section 3 (Certification; Quality Control).
2. GRANT OF LICENSE.
2.1. Subject to the terms of this Agreement, MGA grants to Trainer a personal, revocable, limited, nonexclusive license, solely in conjunction with providing the Authorized Services as follows:
2.1.1. To distribute by sale physical copies of the Licensed Works which were purchased from MGA, or from an authorized distributor or publisher of MGA.
2.1.2. To publicly display and publicly perform the Licensed Works as part of providing the Authorized Services.
2.1.3. To use the Licensed Marks solely in connection with marketing and delivering the Services by Trainer, including in connection with promotion and advertising the Authorized Services.
2.1.4. To publicly represent themselves as trainer trained and authorized by MGA consistent with the level of Certification conferred by MGA and consistent with the level of training and quality maintained by Trainer through MGA.
2.2. Limitations on Grant of License. The Grant of License to Trainer is solely limited to the permissions expressly granted herein. Without limiting the preceding, Trainer is not authorized to create derivative works from the Licensed Works, nor to utilize the Licensed Marks for any purpose other than in conjunction with providing the Authorized Services. In addition: Authorized uses of any of the Licensed Marks must include the following statement (or equivalent language), displayed in a manner and location reasonably likely to provide notice to the intended audience: “<Identify Marks Here> are trademarks of and used with permission of Michael Grinder & Associates, Inc. All rights reserved.”
2.2.1. Trainer shall not use the Licensed Marks in a manner which conveys or implies that they are owners of, owned by, affiliates of, or agents of MGA, nor in any manner which may materially harm the reputation of Michael Grinder or MGA, or may materially tarnish or dilute any of the Licensed Marks.
2.2.2. Nothing in this Agreement authorizes Trainer to use the name or likeness of Michael Grinder other than as expressly authorized herein, and solely in conjunction with authorized uses of the Licensed Works and Licensed Marks in providing the Authorized Services.
2.2.3. Authorized Services are limited solely to in-person training of actual Attendees. Trainer is expressly prohibited from providing Authorized Services, or using the Licensed Works or Licensed Marks, for remote or online training. Each Attendee, or the School System if Authorized Services are provided under a School System contract, must purchase new copies of applicable Licensed Works.
2.2.4. The Grant of License herein does not constitute a grant of general license to School System, and any such School System license would be subject to a separate agreement with MGA.
3. Certification; Quality Control.
3.1. Certification. Prior to providing any Authorized Services under this Agreement, Trainer must satisfactorily complete the applicable Training Curriculum (including lessons and practical skills demonstrations evidenced by satisfactory Attendee Course Evaluations) required by MGA for the type of Authorized Services to be provided by Trainer. MGA provides a base-level Training Curriculum to certify Trainer to provide Authorized Services to School System employees for School Systems contracted with MGA. MGA provides an expanded Training Curriculum to certify Trainer for providing Authorized Services to non-school-district educators and/or trainers outside the context of a contract with a School System, which requires additional coursework and MGA evaluation of video-recorded real-world teaching sessions by Trainer. The cost of the Training Curriculum shall be paid by Trainer or, if Trainer is a School System employee providing Authorized Services to district employees under a district contract, by the School System.
3.2. Quality Standards. In addition to initial Certification, Trainer must consistently maintain quality standards approved by, and verified by, MGA in providing the Authorized Services. Failure to consistently satisfy the Quality Control terms shall be a basis for Termination of this Agreement.
3.2.1.1. Background Checks. Trainer, at Trainer’s expense, must complete a criminal background check satisfactory to MGA prior to commencing the Training Curriculum. Background checks for Trainers who are School System employees and providing Authorized Services solely under a School System contract, certification to MGA by the School System that Trainer is a current School System employee and meets all School System requirements for employment in the Trainer’s intended and actual roles. Background checks and/or employment status certification must be renewed annually during the Term. Failure to maintain a current background check and/or employment status certification shall result in immediate suspension of Trainer’s Certification and cessation of providing Authorized Services and/or, at MGA’s sole discretion, Termination.
3.2.1.2. MGA shall have the right to monitor and review Trainer’s use of the Licensed Marks in conjunction with the Authorized Services to ensure that the use of the Licensed Marks meets or exceeds MGA’s standards of quality. If MGA determines the Trainer is not meeting MGA’s standards, then MGA may increase monitoring and/or require Trainer to complete additional training, or at MGA’s sole option, MGA may Terminate this Agreement. Trainer acknowledges and is familiar with the standards, quality, style, and image of the MGA’s goods and services offered in connection with the Licensed Marks. To ensure compliance with the Quality Standards, Trainer agrees to maintain the same level of quality of goods and services as currently provided by MGA and shall comply with all applicable laws and regulations and obtain all appropriate government approvals pertaining to the goods and services.
3.2.1.3. Trainer shall ensure all Attendees complete Course Evaluations, which shall be delivered unaltered to MGA for purposes of monitoring Trainer’s compliance with the Quality Standards.
3.2.1.4. Trainer shall disclose and provide access to MGA any and all websites, urls and/or social media pages on or by which Trainer, and/or Trainer’s School System, promotes or advertises the Authorized Services or Trainer’s Certification status and/or uses any of the Licensed Works or Licensed Marks.
4. Fees by Trainer to MGA.
4.1. Trainer, or Trainer’s School System, shall pay the cost of MGA’s certification Training Curriculum to attain the level of Certification appropriate to the Authorized Services that Trainer is authorized to provide.
4.2. Trainer and School System shall ensure Attendees of the Authorized Services have purchased personal copies of the Licensed Works applicable to the Authorized Services from MGA or an authorized distributor or publisher of MGA. Alternatively, Trainer or Trainer’s School System may purchase new copies of the applicable Licensed Works for each Attendee as part of the Authorized Services, so long as the copies were purchased from MGA or an authorized distributor or publisher of MGA.
5. OWNERSHIP OF INTELLECTUAL PROPERTY
5.1. Trainer and School System acknowledges MGA’s ownership of, and rights in, the Licensed Works and Licensed Marks. Nothing in this Agreement shall be construed as an assignment or transfer of legal or beneficial ownership in or to the Licensed Works or the Licensed Marks, and MGA retains and reserves all right, title and ownership thereto. Neither Trainer nor School System will not contest, challenge, attack, or oppose MGA’s ownership of, or rights in, the Licensed Works or Licensed Marks. Trainer and School System agree any and all goodwill accruing from its use of the Licensed Marks pursuant to this Agreement shall inure solely to the benefit of MGA.
6. TERM AND TERMINATION
6.1. Term. The Term of this Agreement shall be one (1) calendar year and shall automatically Terminate unless renewed annually by the Parties in writing for a Renewal Term or Terms of one (1) year each.
6.2. Annual Renewal Required. Renewal shall not be automatic, and a Party may decline to renew this Agreement at their sole discretion. Trainer must request renewal from MGA not less than two (2) months prior to the Termination Date of the then-current Term or Renewal Term and, if MGA intends to renew, MGA shall provide written confirmation of MGA’s agreement to renew this Agreement with Trainer for an additional Renewal Term not less than one (1) month prior to the Termination Date. If MGA does not provide written confirmation of MGA’s agreement to renew, then this Agreement shall automatically Terminate upon the expiration of the then-current Term or Renewal Term.
6.3. Termination. A Party may terminate for cause in the event the other Party materially breaches this Agreement and fails to cure such material breach within thirty (30) days after the aggrieved Party delivers written Notice of such material breach to the breaching Party. Such Notice of material breach must set forth the alleged breach in sufficient detail for the accused Party to understand the alleged breach and take good faith actions to cure the alleged material breach. Termination of this Agreement for any reason, by a Party, shall automatically terminate all licenses. Termination of this Agreement by School System, or termination of School System’s rights by MGA, for any reason, shall automatically terminate this Agreement with respect to all Trainers of School System. MGA and/or School System may terminate this Agreement with respect to one or more individual Trainers without terminating with respect to School System.
6.3.1. In addition, MGA may terminate this Agreement immediately upon delivering written Notice to Trainer or School System if: Trainer or School System become insolvent or files for bankruptcy, or if Trainer and/or School System and/or their respective employees, contractors or agents engage in unlawful or notorious acts or otherwise engage in acts which may bring MGA or its principals into public disrepute.
6.3.2. Trainer or School System may terminate this Agreement immediately upon delivering written Notice to MGA upon any of the following: MGA dissolves, becomes insolvent, enters receivership, or files for bankruptcy; or, if MGA and/or its principals engage in unlawful or notorious acts or otherwise engage in acts which may bring Trainer into public disrepute.
6.4. Effect of Termination. Upon termination of this Agreement the Grant of License shall automatically and immediately terminate. Trainer and/or School System, as applicable, shall cease any and all uses of the Licensed Works and/or Licensed Marks. Any property of MGA in Trainer’s and/or School System’s possession or control shall be returned to MGA within thirty (30) days after Termination for any cause without further request.
7. REPRESENTATIONS AND WARRANTIES
7.1. Each Party represents and warrants that (a) it has the power and authority to enter into, and to perform its obligations under, this Agreement, (b) the execution and delivery of, and the performance by such Party of its obligations under, this Agreement does not violate or conflict with any agreement to which such Party is a party or by which it is otherwise bound, (c) this Agreement constitutes the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms, and (d) this Agreement has been executed by a duly authorized representative of such Party.
8. INDEMNIFICATION.
Trainer agrees, or if Trainer is a School System employee providing Authorized Services for or on behalf of School System then School System agrees, to defend, indemnify and hold harmless Michael Grinder Inc. and Michael Grinder & Associates Inc., and their current and future affiliates, and their respective equity holders, directors, officers, affiliates, employees, agents, advisors, and representatives, and the successors-in-interest each of the foregoing (each an “Indemnified Person”), from and against all third-party claims, damages, liabilities, costs, and expenses, including reasonable attorneys’ fees and court costs (“Indemnified Claims”), to the extent such Indemnified Claim: (1) is based upon any unauthorized use of the Licensed Works or Licensed Marks by, or permitted by, Trainer; (2) arises from negligent or intentional acts, or failure to act, by Trainer or by Trainer’s employees, contractors or agents; or, (4) arises from Trainer’s material breach of this Agreement. If Trainer is a School System employee or contractor then School System hereby assumes all of Trainer’s obligations and duties of indemnification and insurance under this Agreement.
8.1. Indemnified Claims. An Indemnified Person shall promptly notify an Indemnifying Party of any Indemnified Claim in writing and shall provide reasonable assistance to the Indemnifying Party in the defense of such Indemnified Claim. An Indemnifying Party shall conduct the defense of an Indemnified Claim at its sole cost and expense, provided that the Indemnified Person may join in the defense of such claim and employ counsel at its own expense. An Indemnifying Party may not settle or compromise an Indemnified Claim without the Indemnified Person’s prior written consent unless such settlement (a) includes a release of all covered claims pending against the Indemnified Person; (b) contains no admission of liability, negligence or wrongdoing by the Indemnified Person; (c) does not waive or undermine any intellectual property rights of the Indemnified Person; and, (d) imposes no obligations upon the Indemnified Person.
8.2. Limitation of Liability. No Party shall be liable to the other Parties for consequential, special, indirect, punitive, exemplary, or incidental damages arising from a breach of this Agreement, including but not limited to any representations or warranties, even if such Party has been advised of the possibility of such damages.
8.3. Insurance. Trainer shall maintain commercial liability insurance, including but not limited to coverage for advertising injury and defamation, in commercially reasonable amounts. Such insurance shall name Michael Grinder & Associates, Inc., as “Additional Insured” and “Certificate Holder”. Trainer shall provide a copy of the current Certificate of Insurance upon policy renewal and/or any change in coverage.
9. NOTICE.
All notices and demands of any kind which a Party may be required to serve upon the other Party under the terms of this Agreement shall be in writing and shall be served upon such other Party by email and by nationally recognized overnight courier providing a receipt for delivery, by certified or registered mail, postage prepaid, with return receipt requested, or by personal delivery at the applicable address set forth herein or to such other address as that Party may designate in writing (“Notice”). Notices will be deemed effective upon the date of receipt (or refusal of delivery).
If to MGA:
“Training Curriculum” has the meaning given in Section 3 (Certification; Quality Control).
Michael Grinder & Associates Inc.
Attn: Michael Grinder
16303 NE 259th Street
Vancouver, WA 98604
with copy to:
Rylander & Associates P.C.
PO Box 250
Vancouver, WA 98666
If to Trainer:
<Trainer mailing address>
with copy to:
<optional additional notice for Trainer>
10. Miscellaneous Terms.
10.1. Entire Agreement; Amendment; Non-waiver. This Agreement constitutes the entire understanding and agreement between the Parties with respect to the subject matter of this Agreement and supersedes all earlier discussions, understandings, or agreement between the Parties. This Agreement shall not be modified or amended, in whole or in part, except by written amendment signed by both Parties. No waiver by a Party of a breach of any provision of this Agreement shall be effective unless made in writing by the waiving Party and no such waiver shall be construed as a waiver of any subsequent or different breach. No forbearance by a Party to seek a remedy for noncompliance or breach by the other Party shall be construed as a waiver of any right or remedy with respect to such noncompliance or breach.
10.2. Construction. The illegality, invalidity, or unenforceability of any provision of this Agreement (as determined by a court of competent jurisdiction) shall not affect the legality, validity, or unenforceability of the remaining provisions, and this Agreement shall be construed to the extent permissible as if any illegal, invalid, or unenforceable provision were omitted.
10.3. No Assignment. Trainer may not assign, convey mortgage, pledge, hypothecate or otherwise transfer their rights or obligations under this Agreement.
10.4. No Partnership. The Parties are to be considered in all respects independent of each other, and do not intend by this licensing Agreement to create a partnership, joint venture, franchise or other joint or mutual enterprise, express or implied. No employee or agent of one Party shall be deemed an employee or agent of the other Party. No Party shall act or imply that it is an agent of the other Party in any respect.
10.5. No Third-Party Beneficiaries. This Agreement, including the covenants, licenses and other consideration contained herein, shall inure solely to the benefit of the Parties to this Agreement and their permitted successors-in-interest and permitted assigns. Nothing in this Agreement shall be construed to create any duty to, standard of care with reference to, or any liability to, any person not a Party to this Agreement. No provision of this Agreement is intended to, nor shall it in any way, inure to the benefit of or confer rights upon any customer, donor or vendor of any Party hereto, or any other person, such as would cause any such person to be a construed as a third-party beneficiary under this Agreement.
10.6. Force Majeure. If a Party’s failure to comply with any obligation under this Agreement is caused in whole or in part by one or more Force Majeure Events, such failure shall not constitute a breach of this Agreement, and such failure shall be excused for as long as such failure is caused in whole or in part by such Force Majeure Events. The Party claiming that a Force Majeure Event caused such failure must notify the other Party in writing promptly after such Party becomes aware of the Force Majeure Event. If any Force Majeure Event causes the suspension of a material obligation of a Party to the Agreement for more than sixty (60) days, the other Party shall have the right to terminate this Agreement with immediate effect by delivery of written notice thereof.
10.7. Execution; Counterparts. This Agreement may be executed by verified electronic signature and in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed in duplicate originals by its duly authorized representatives on the respective dates entered below.
