A. KAY holds the rights to the mark Kidding Around Yoga® and associated marks (the “Marks”) and has developed an informal system for the operation of a business offering children’s yoga and related products and services (the “System”).
B. Licensee desires to become trained in the System and to otherwise acquire the right to use the Marks in conjunction with a business using the System (a “Licensed Business”).
NOW, THEREFORE, for and in consideration of the mutual covenants and undertakings herein and other good and valuable consideration, the receipt and sufficiency of which being hereby acknowledged, the parties agree as follows:
1. Grant of License. KAY grants to Licensee, upon the terms and conditions contained herein, the non-exclusive right to use the Marks solely in connection with the operation of a Licensed Business.
2. Term. This Agreement is effective beginning on the date it was executed by an authorized officer of KAY and shall continue monthly for as long as Licensee is current on monthly payments. Failing two months in a row of payment, this Agreement shall terminate immediately. You will however receive notice in advance. If payment is not received the use of our Logo, the Kidding Around Yoga name in your business name, your Facebook page and your website must be discontinued.
3. Goods/Services Provided by KAY. During the effective term of this Agreement and provided that Licensee is in full compliance with the terms hereof, KAY or its affiliate shall provide to Licensee the following:
(a) At-Home Study Course: KAY shall provide to Licensee materials, including instructions for on-line tutorials/discussions, written materials, videos, and associated worksheets and test materials, all of which must be successfully completed by Licensee prior to commencing the Licensed Business. Licensee shall be responsible for all hardware and software necessary or desirable to effect the completion of the above requirements.
(b) Business Start-Up Kit: KAY shall deliver to Licensee a package containing the items described in Attachment “A” hereto.
(c) KAY Handbook: Upon successful completion of the At-Home Study Course, KAY shall loan to Licensee one copy of the KAY Handbook containing standards and specifications, as well as other useful advice and tools, for use in the Licensed Business.
(d) On-going Support and Assistance: Subject to payment by Licensee of the designated costs, if applicable, associated with the provision of any such services, KAY shall provide to Licensee on a periodic basis and at its sole discretion newsletters and other methods of communication offering advice and information relative to the Licensed Business, access to KAY’s support staff for business and industry related advice and assistance, and, upon the request of Licensee, additional training, at such dates and places as designated by KAY.
(e) System-designated Products and Services: At its sole discretion, KAY will make available to Licensee access to sources of supplies for goods and services, including System-branded products, access to the System website and information/data networks, if applicable, and any other System resources, such as summer camps and other business opportunities. All such goods and services shall be subject to payment by Licensee as applicable.
4. System Fees. In consideration of the rights and privileges provided hereunder, Licensee shall tender to KAY the following:
(a) A monthly License Fee in the amount of $19 monthly or $200 annually upon execution of this Agreement.
(b) Other charges for goods and services provided by KAY upon request by Licensee.
5. Trademarks and Service Marks.
(a) Use: KAY grants Licensee the right and license to use the Marks solely in connection with the operation of the Licensed Business and in strict accordance with the requirements of KAY relative thereto. Licensee’s rights to use the Marks are limited to the operation of the Licensed Business as described in this Agreement. KAY may change the Marks at any time and Licensee agrees to stop using any Marks if KAY notifies Licensee to do so. Licensee’s right to use the Marks is subject to Licensee’s compliance with this Agreement. Licensee must not use any of the Marks in any way that KAY has not previously approved in writing or that KAY has designated to Licensee as being unacceptable.
(b) Injunction: Licensee recognize that a breach of any of the covenants and agreements in this Agreement regarding the use of the Marks will cause irreparable harm to us and that monetary damages alone will not be sufficient to cure any resultant harm. Therefore, Licensee agrees that both KAY and its affiliates will be entitled to an injunction against any actual or threatened breach by Licensee during the term of this Agreement, or after its termination or expiration. An injunction will not be an exclusive remedy available to KAY or its affiliates. Neither KAY nor its affiliates will be required to give any notice or to post any bond or other security, against any actual or threatened breach.
6. Transfer. As this license is unique and personal to Licensee, Licensee may not transfer, assign, bargain, or sell, in whole or in part, this Agreement, any interest in this Agreement, an interest in Licensee (if Licensee is other than a natural person), or in the Licensed Business. KAY has the unencumbered right to transfer, assign, bargain, or sell this Agreement and the rights hereunder at its sole discretion.
(a) By Licensee: Licensee may terminate this Agreement upon written notice to the KAY. Notice may be sent via email to firstname.lastname@example.org. Upon receipt of notice KAY will cancel the auto payment program so no new charges will generate. Licensee is responsible for any unpaid charges.
(b) By KAY: KAY may terminate this Agreement on 30 days advance written notice to Licensee if:
(i) Licensee breaches any of the provisions of this Agreement and fails to cure such breach within 30 days after notice from us;
(ii) Licensee fails to remit when due any amounts due KAY under this Agreement, or Licensee breaches any other agreement between Licensee and KAY or any of its affiliates;
(iii) Licensee files a petition of bankruptcy or reorganization, or has an involuntary petition filed against Licensee, that is not discharged within 30 days, or Licensee is adjudicated bankrupt or insolvent, has a receiver or trustee appointed for Licensee’s affairs, or engages in any assignment for the benefit of creditors; or
(iv) Licensee (or any of Licensee’s owners) is or has been convicted by a trial court of, or plead or have pleaded no contest, or guilty, to, a felony or other crime or offense.
(v) You are representing KAY therefore we expect our licensees to respond timely to emails. You are a business professional therefore we expect that you will be responsible for replying to work emails within two days. If you do not respond to our or any potential clients’ attempts at contact you for two weeks, and after repeated attempts to find you via email, text, or Facebook, we reserve the right to deactivate your Licensee status and take down your website.
(i) Licensee and KAY may terminate this Agreement at any time by mutual agreement signed by both parties.
8. Post-Termination Obligations. If this Agreement expires or is otherwise terminated, Licensee and KAY, respectively, agree as follows:
(a) Take down the website
(b) Take down the branded Facebook page
(c) Discontinue the use of any business name containing the words Kidding Around Yoga.
9. Certain Acknowledgments. To encourage us to enter into this Agreement, Licensee represents and warrants to us the following:
(a) Licensee has conducted an independent investigation of the business and has determined that Licensee’s success involves business risks that are dependent entirely on Licensee’s own business abilities.
(b) Licensee acknowledges that KAY has not made and Licensee has not received or relied upon any guarantee, express or implied, as to the revenues, profits or success of Licensee’s business as a result of entering into this Agreement.
(c) Licensee is responsible for all operations of the Licensed Business including complying with all applicable laws, rules and regulations. Licensee is solely responsible for the staffing and supervision of the operation of the Licensed Business.
(d) KAY will not place any restrictions on the geographic area or territory in which Licensee may advertise to promote the Licensed Business, or solicit customers, except that Licensee is restricted to using the Marks solely for the operation of the Licensed Business. KAY may grant similar rights to other parties or itself to own, operate, lease or manage businesses using the Marks anywhere regardless of proximity to the Licensed Business.
10. Relationship of the Parties. Licensee and KAY are independent contractors. Neither Licensee nor KAY are agents, legal representatives, subsidiaries, joint venture, partners, employees or servants of the other for any purpose. It is further understood that the relationship created here under shall not be deemed a franchise for any purpose. Neither Licensee nor KAY will be obligated by, or have any liability under, any agreements or representations made by the other, nor will KAY be obligated for any damages to any person or property directly or indirectly arising out of the operation of the Licensed Business, whether or not caused by Licensee’s negligence or willful action or failure to act. KAY also has no liability for any sales, use, excise, gross receipts, property, income or other taxes, that Licensee incurs in connection with the operation of the Licensed Business or otherwise.
11. Indemnification. Licensee must indemnify, defend and hold KAY (and its affiliates, principals, directors, officers, employees, agents and assigns) harmless from and against and reimburse them for, any losses, liabilities, claims, obligations, taxes or damages (actual or consequential) and all reasonable costs and expenses of defending any claim brought against any of them or any action in which any of them is named as a party (including, without limitation, attorneys' fees and litigation expenses), even if KAY’s or their negligence is alleged, which any of them may suffer, sustain or incur directly or indirectly, by reason of, arising from or in connection with, the operation of the Licensed Business.
(a) Types Required: During the term of this Agreement, Licensee must maintain in force, at Licensee’s expense and under policies of insurance issued by carriers approved by KAY, such approval not to be unreasonably withheld, the types of insurance coverage KAY and Licensee mutually agree to periodically. Insurance coverage may identify Licensee as the primary insured, but must also be for KAY’s benefit and the benefit of KAY’s officers, directors, shareholders, employees, agents and assigns, and must name KAY as additional insured (the “Insured Parties”).
(b) Coverage Requirements: Licensee must maintain the insurance coverages in the minimum amounts KAY prescribes periodically. KAY may, upon written notice to Licensee, periodically request an increase or decrease the amounts of coverage required under these insurance policies or different or additional kinds of insurance at any time to reflect inflation, identification of new risks, changes in law or standards of liability, higher damage awards or other relevant changes in circumstances.
(c) Policy Terms: All insurance policies must:
(i) contain no provision which in any way limits or reduces coverage for KAY in the event of any claim by the Insured Parties;
(ii) extend to provide indemnity for all obligations assumed by Licensee under this Agreement and all items for which Licensee are required to indemnify KAY under the provisions of this Agreement or otherwise;
(iii) name the Insured Parties and others on KAY’s behalf as an additional insured;
(iv) contain a waiver of the insurance company's right of subrogation against the Insured Parties;
(v) provide that the coverages afforded apply separately to each insured against whom a claim is brought as though a separately policy had been issued to each insured;
(vi) provide that the insurance company will provide KAY with at least 30 days' prior written notice of termination, expiration, cancellation or material modification of any policy; and
(vii) provide that Licensee cannot reduce the policy limits, restrict coverage, cancel or otherwise alter or amend the policies without our prior written consent.
(d) Evidence of Coverage: Before the expiration of a term of each insurance policy, Licensee must furnish KAY with a copy of each new, renewal or replacement policy Licensee has obtained to extend Licensee’s coverage along with evidence of the premium payment. If Licensee does not maintain the required insurance coverage, or does not furnish KAY with satisfactory evidence of insurance coverage and premium payments, KAY may obtain, at its option and in addition to its other rights and remedies under this Agreement, any required insurance coverage on Licensee’s behalf. If KAY does so, Licensee must fully cooperate with KAY in its effort to obtain the policies and must promptly sign all forms required to obtain or maintain the insurance. Licensee must then reimburse KAY, on demand, any costs and premiums KAY incurs in obtaining the insurance on Licensee’s behalf.
13. Confidentiality. Licensee agrees that the information that KAY provides Licensee relating to the Licensed Business is KAY’s confidential and proprietary information. Licensee also agrees that the information that Licensee develops relating to the operation of the Licensed Business will be shared with KAY and will also constitute confidential information. Licensee also acknowledges that KAY will share information that KAY obtains from Licensee with KAY’s affiliates and licensees. Licensee will use Licensee’s best efforts and diligence both during and after the term of this Agreement to protect the confidential information. Accordingly, Licensee agrees that Licensee will not, directly or indirectly, use (for Licensee or others) or disclose any of the confidential information for so long as it remains proprietary or protectable as confidential or trade secret information. After the termination of this Agreement, for any reason, or at any other time upon our request, Licensee must promptly deliver to KAY any and all documents or other materials (including information embodied in intangible form, e.g., in computer memory) in Licensee’s possession relating directly or indirectly to any of the confidential information.
14. Notices. Any and all notices necessary or desirable to be served under this Agreement must be written and must be (a) personally delivered, or (b) sent by facsimile telecopier to the number indicated for the intended recipient below, or (c) sent by reputable airborne courier (i.e., Federal Express) or (d) sent by certified mail, postage pre-paid, return receipt requested, addressed to the intended recipient as follows:
(i) If to us:
Kidding Around Yoga, L.L.C.
106 22nd Ave SE
Saint Petersburg, FL 33705
Attention: Haris Lender
(ii) If to Licensee:
or to such other address as any party may indicate for itself in a written notice sent to the other parties in accordance with this Agreement. Any notice sent by: (a) personal service or by facsimile telecopier is deemed delivered when actually received by the intended recipient; (b) mail is deemed delivered on the 5th business day after the postmark date; and (c) reputable airborne courier is deemed delivered 2 business days after deposit with the courier.
(a) Severability: If any of the provisions of this Agreement are held invalid for any reason, the remainder will not be affected and will remain in full force and effect in accordance with its terms.
(b) Litigation or Arbitration Expenses: In any action or dispute, at law or in equity, that may arise under or otherwise relate to the terms of this Agreement, each party will be responsible for its own litigation expenses. However, notwithstanding the foregoing, the prevailing party will be entitled to full reimbursement of its litigation/arbitration expenses from the other party. Litigation expenses include attorneys' fees, defense costs, witness fees and other related expenses including paralegal fees, travel and lodging expenses and court costs. Reimbursement is due within 30 days of written notice after prevailing.
(c) Waivers: No waiver of any provision of this Agreement will be valid unless in writing and signed by the person against whom it is sought to be enforced. The failure by either party to insist upon strict performance of any provision will not be construed as a waiver or relinquishment of the right to insist upon strict performance of the same provision at any other time, or any other provision of this Agreement.
(d) Governing Law: This Agreement is governed by Florida law. The courts of Pinellas County, Florida, have exclusive jurisdiction in any controversy relating to or arising out of this Agreement. All parties waive any objections to venue in Pinellas County, Florida.
(e) Entire Agreement: This Agreement is the entire agreement between the parties relating to its subject matter, and supersedes all prior agreements, proposals, representations and commitments, oral or otherwise. This Agreement may only be amended by an instrument signed by both parties.
(f) Recitals: Both parties agree that the Recitals at the beginning of this Agreement are accurate.
(g) Construction: The headings of sections are for convenience only and do not define, limit or construe the contents of such sections. In computing periods from a specified date to a later specified date, the words “from” and “commencing on” or “beginning on” (and the like) mean “from and including” and the words “to,” “until” and “ending on” (and the like) mean “to but excluding.” “Including” means “including, but not limited to.”
(h) Continuing Obligations: All obligations of the parties which expressly or by their nature survived the expiration or termination of this Agreement continue in full force and effect subsequent to and regardless of the expiration or termination of this Agreement and until they are satisfied or by their nature expire.
(i) Counterparts: The parties may sign this Agreement in counterparts. Each signed counterpart will be an original; and all of them constitute one and the same agreement.
(j) Pronouns: All words used in this Agreement, regardless of the number or gender in which they are used, will be construed to include any other number, singular or plural, in any other gender, masculine, feminine or neuter, as the context of this Agreement may require.
(k) Cumulative Remedies: Any and all remedies available to the parties in the event of a breach of this Agreement by the other party will be cumulative. The exercise of any particular remedy will not be exclusive to the ability to seek other remedies for any breach of this agreement.
(l) Timing: Time is of the essence of this Agreement. However, whenever the time for the performance of any action or condition contained in this Agreement falls on a Saturday, Sunday or legal holiday, such time will be extended to the next business date. Indications of time of day mean time at St. Petersburg, Florida.
Intending to be bound, the parties sign below:
KIDDING AROUND YOGA, L.L.C. LICENSEE