EXHIBIT D – STANDARD TERMS AND CONDITIONS
1. License and Training.
1.1 Intellectual Property Defined. As used in this Agreement, “Intellectual Property”
shall collectively mean: (a) the future and existing trademarks, service marks,
logos, designs and trade names, and registrations and applications therefore, if
any, used by WIM to identify and/or promote the Exercise Routines as set forth
on the attached Exhibit A, as amended by WIM in its sole discretion from time to
time (the “Licensed Trademarks”); and (b) copyrights and copyright licenses
owned by WIM in and to the Exercise Routines and the music, videotapes, DVDs,
marketing, advertising, distribution and sales materials therefore, solely in the
media or form specifically identified in Exhibit A, as amended by WIM in its sole
discretion from time to time.
1.2 License to the Intellectual Property. Subject to the terms and conditions of this
Agreement, WIM grants to Licensee a non-exclusive, non-transferable license to
teach and perform the Exercise Routines and use, reproduce, perform, distribute,
advertise, promote and sell instruction services for the Exercise Routines
identified by the Intellectual Property at the Licensed Facilities.
1.3 Licensed Products. Licensee shall have the right to purchase products bearing the
Intellectual Property for resale in the Licensed Facilities only from WIM or its
designated agent. All such products purchased by Licensee shall be at their
respective prices as set forth on the then current price list and in accordance with
the payment and delivery terms as set forth by WIM or its designated agent as the
same may be amended from time to time.
2. Licensee Obligations. Licensee shall:
2.1 Facilities. Only offer and perform the Exercise Routines in the Licensed
Facilities possessing current and fully-paid up licenses. It is Licensee’s
responsibility to advise WIM of additional locations and/or programs before the
start of classes.
2.2 Certified Instructors. Only permit WIM program-certified Instructors to teach the
Exercise Routines. All Instructors must execute the “Instructor Agreement”.
2.3 Standards. In the promotion, advertising and sale of the Exercise Routines and
products and services bearing the Intellectual Property, and in conducting classes
of the Exercise Routines: (a) maintain standards of quality that conform to these
high-quality standards presently used by licensee with respect to the operation and
promotion of its health facility services with which WIM is familiar and which is
evidenced by previous interaction between the WIM and Licensee; (b) maintain
the high standards of quality and professionalism associated with WIM; (c)
observe all federal, state, provincial and local laws and ordinances: and (d)
observe policies and guidelines established by WIM from time to time.
3. Rights Reserved by WIM. WIM reserves the right to use or license the use of the
Exercise Routines and Intellectual Property at any location and reserves the right to
assign or otherwise dispose of the Intellectual Property. Licensee acknowledges and
agrees that only WIM has the right to license other entities, and Licensee shall not grant
sub-licenses to any entity or individual to use the Exercise Routines or Intellectual
Property in any manner whatsoever and shall not assign this Agreement nor any of its
right hereunder, and shall not delegate any of its obligations or duties hereunder without
the prior written consent of WIM.
4. No Warranties. Licensee shall make no warranties or representations regarding the
qualities, properties, results or anticipated results of the Exercise Routines, including
without limitation, those regarding fitness results or weight loss.
5. Quality Control. In order to ensure that the high-level quality standards of the Exercise
Routines and Intellectual Property are maintained, WIM or its duly authorized
representative may inspect at any reasonable time the Licensed Facilities and Licensee’s
classes for the Exercise Routines. Upon WIM’s request, Licensee further agrees to
provide samples of announcements, advertising, sales and promotional materials related
to the Intellectual Property and Exercise Routines.
6. Labeling- Whenever licensee uses the Intellectual Property in connection with providing,
advertising or promoting the Exercise Routines, or in any other manner in connection
with the Exercise Routines bearing the Licensed Trademarks, Licensee shall cause the ™
notice to be placed adjacent to all Intellectual Property. WIM shall provide notice to
Licensee from time to time regarding the proper notice to use with the Intellectual
Property. Licensee shall use said Intellectual Property in the exact form as specified by
WIM from time to time.
7. Ownership of Intellectual Property. Licensee acknowledges, as between WIM and
Licensee, WIM’s exclusive right, title and interest in and to the Exercise Routines and
Intellectual Property and further acknowledges that nothing herein shall give it any right, title
or interest in the Intellectual Property except the license to use the Intellectual
Property and perform and teach the Exercise Routines granted in Section I. Licensee
shall not and warrants and represents that it will not, at any time, either during the term of
this Agreement or thereafter, challenge WIM’s ownership of the Exercise Routines or
Intellectual Property, challenge the validity of the Intellectual Property, or do or cause to
be done or omit to do any act or thing, the doing or omission of which would contest or in
any way impair or tend to impair any right, title or interest of WIM in said Exercise
Routines or Intellectual Property. Licensee shall not, and warrants that it will not, in any
manner whatsoever, represent that it has any ownership in or right, title or interest to the
Exercise Routines or Intellectual Property except as expressly granted herein, or any
registrations thereof, and acknowledges that its use of the Exercise Routines or
Intellectual Property shall not create in it any right, title or interest in or to the Exercise
Routines or Intellectual Property, but that all uses by it of said intellectual Property shall
inure to the benefit of WIM.
8.1 Monthly License Fee. Commencing the first day of the second month after the
completion of Initial Training (Training completed in March — Monthly License
Fee begins May 1st or the first of the month after Licensee begins classes in the
Exercise Routines, whichever occurs first; Licensee shall pay WIM the ongoing
Monthly License Fee for the Exercise Routines and Intellectual Property as shown
on Page 1. A $25 late fee will be charged to any account that is paid after the l0th
of the month.
8.2 Insufficient Funds. Subsequent processing charges from returned ACH accounts,
terminated or declined credit cards requiring resubmission of the charges shall
result in a penalty of $15.00. Failure to bring the account current, including
penalties, within 30 days from the date due may result in termination of the
9. Limitation of Liability and Insurance.
9.1 Limitation of Liability. WIM HEREBY DISCLAIMS ANY AND ALL
EXPRESS OR IMPLIED WARRANTIES CONCERNING ANY GOODS OR
SERVICES SOLD OR APPROVED BY IT, OR LICENSES GRANTED BY IT,
OR ADVICE, GUIDANCE, APPROVAL OR DIRECTIONS RENDERED BY
IT, INCLUDING WITHOUT LIMITATION ANY WARRANTIES AS TO
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
AVAILABILITY, QUALITY, OR QUANTITY. LICENSEE AGREES NOT TO
MAKE ANY STATEMENT, REPRESENTATION OR CLAIM OR TO GIVE
ANY WARRANTY TO THE CONTRARY TO ANY CUSTOMER OR
POTENTIAL CUSTOMER OR ANY OTHER PARTY. WIM DOES NOT
MAKE ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED,
AND LICENSEE ACKNOWLEDGES THAT WIM DID NOT MAKE ANY
REPRESENTATION OR WARRANTY AS TO THE POTENTIAL SUCCESS,
EARNINGS, REVENUES OR PROFITS OF THE LICENSED FACILITIES
THAT WILL BE OPERATED BY LICENSEE.
9.2 Insurance. Licensee, at its own expense, shall procure before the commencement
of offering the Exercise Routines, and maintain in full force and effect at all times
during this Agreement, and not allow to be canceled, suspended or modified,
comprehensive business liability insurance covering the Licensed Facilities and
Exercise Routines. Licensee’s insurance obligations in this Section shall not be
limited in any way because of any insurance, which WIM may maintain.
10. Third Party Infringement. In the event any third party violates WIM’s right, title and
interest in and to the Exercise Routines or Intellectual Property, Licensee shall cooperate
fully with WIM to terminate such violations. WIM has the exclusive right to prosecute
and defend at its own expense all suits or proceedings which involve in any way validity
of, title to, or infringement of the Intellectual Property.
11. Term. This Agreement may be terminated by Licensee upon ninety (90) days prior
written notice by Licensee for any reason or no reason whatsoever after paying the first
eleven (11) months license payments. WIM must receive notice of termination ninety (90)
days prior to the beginning of the month in which such termination is to be effective or Licensee will be charged the license fee for that month. In the event that Licensee fails to comply with any of the terms of this Agreement, WIM shall notify Licensee in writing of such failure and Licensee shall
have thirty (30) days after the date of its receipt of notice to cure its failure. If Licensee fails to cure sure failure to WIM’s satisfaction WIM may terminate this Agreement by written notice to Licensee provided however that under all circumstances Licensee shall be obligated to make a minimum of twelve (12) license payments in addition to any other damages that WIM may sustain.
12. Licensee’s Obligations Upon Termination. On termination of this Agreement in any
manner, or for any reason, Licensee shall immediately cease and desist from all
instruction or performance of the Exercise Routines or uses of the Intellectual Property in
any form or manner, shall deliver up to WIM, or its duly authorized representative, all
advertisements, promotional materials, and other items on which the Intellectual Property
appear, including any manufactured or produced items bearing the Licensed Trademarks,
and at no time after termination of this Agreement shall adopt or use without WIM’s prior
written consent said Intellectual Property, or any Intellectual Property which is
confusingly similar to or a colorable imitation of said Intellectual Property.
Notwithstanding termination of the Agreement, the terms of the Agreement shall
continue in force for the relevant time period set forth therein or in the applicable Statute
of Limitations, with the express exception of Sections 1, 2 and 8, which shall terminate
immediately. Termination of this Agreement shall not relieve Licensee of any payment
obligations accrued prior to termination.
13. Exclusivity. Licensee acknowledges and agrees: (a) that WIM is investing significant
time, energy and money in training Licensee’s Instructors in the Exercise Routines; (b)
that WIM has a substantial investment in the Exercise Routines and Intellectual Property;
(c) that Licensee and its instructors have been provided significant access to the
Intellectual Property and Exercise Routines: (d) that it is critical for the safety, health and
satisfaction of participants that the Exercise Routines only be taught in Licensed
Facilities by qualified instructors; and (e) that WIM would be irreparably damaged if the
Exercise Routines were taught in unlicensed facilities or by instructors without current
certification. Therefore Licensee acknowledges and agrees that during this Agreement
and for three (3) months after its termination for any reason, Licensee will not alone or in
conjunction with any other person or company in aqua based group fitness training
synchronized to music competitive with Water In Motion™; Exercise Routine; or (z)
solicit, recruit or take away, or attempt to solicit, recruit or take away instructors or
customers of WIM. If Licensee violates its covenants in this Section, it shall be
presumed that Licensee has irreparably damaged WIM.
14.1 Agents. The Parties each warrant and represent to the other that this Agreement
was not brought about or participated in by any person as an agent or intermediary
and that all dealings with regard to the negotiation and consummation of this
Agreement were had between the Parties acting as principals; therefore, there is
no commission, finder’s fee, or other compensation payable to any person, firm,
partnership, association, corporation or other entity and the Parties agree to
defend against, indemnify, arid hold each other harmless from any claim by any
such person, firm, partnership, association, corporation or other entity for
commissions, finder’s fee or other similar compensation.
14.2 Notices. All notices or other communication provided for herein shall be given in
writing and delivered by courier or a recognized national overnight service, or by
facsimile to the addresses or facsimile numbers of the Parties set forth on Page I
of the Agreement (unless changed by notice to the other party as provided in this
paragraph). All notices sent under this Section shall be deemed given on the date
of service if personally served or if telescoped (if telescoped on a business day
and during business hours at the place of receipt if receipt is confirmed) and
twenty-four (24) hours after deposit with a recognized international overnight
service. The Parties may change the notice address upon proper notice as
14.3 Waiver; Modification. No change or modification of this Agreement shall be
valid or binding on the Parties, nor shall any waiver of any term or condition be
deemed a waiver of any such term, or condition in the future, unless such change
or modification or waiver shall be in writing and signed by the Parties.
14.4 Successors. Except as provided to the contrary herein, all the provisions hereof
shall bind and inure to the benefit of the Parties and their successors and assigns.
WIM shall be permitted to freely assign this Agreement. Licensee shall not
assign the Agreement without the prior written approval of WIM.
14.5 Severability. If any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect, in whole or in part, by judgment, order or decree of
any court or other judicial tribunal of competent jurisdiction, it shall be severed
from this Agreement and the remaining terms and provisions shall remain valid
and in full effect.
14.6 Applicable Law. This Agreement shall be construed, controlled and interpreted
according to the laws of the State of Illinois and Licensee specifically consents to
jurisdiction in Illinois, agrees that venue for any dispute shall be only in the District
court for the Northern District of Illinois, Eastern Division, or Cook County Courts, State
of Illinois, and agrees to accept service of process by certified mail and waive any
jurisdiction or venue defenses otherwise available. If any such dispute arises, this
Agreement and all its provisions remain in effect until such dispute is resolved, including
15. Prior Agreements Superseded.This agreement constitutes the entire agreement
between the parties and supersedes any prior understanding or agreement between
them respecting the subject matter hereof. There are no representations , arrangements, understandings,
or agreements, oral or written, between the Parties relating to the subject matter of the agreement,
except those fully expressed herein.
16. Relationship. This agreement does not convey to License any status as an
employee, partner, joint venturer, franchisee or agent of WIM. Licensee acknowledges
that, with respect to WIM, Licensee is solely an independent contractor.
Accordingly, Licensee shall have no authority or power to bind WIM, except as
otherwise specifically provided in this Agreement. The Parties acknowledge
and agree that WIM shall not be bound by any representations,
warranties, covenants, contracts, agreements or understandings made
by Licensee or to which may be subject that are inconsistent with any provision of this Agreement.