This license agreement ("Agreement") is between
("Licensee") and ET Training Systems, LLC ("Licensor") and governs licensee uses
of Licensor's products. LICENSEE SIGNATURE AND PAYMENT SIGNIFIES LICENSEE
ACCEPTANCE OF THESE TERMS AND CONDITIONS. There are no cancellations for of
Subject to the terms of this license agreement, ET Training
Systems, grants Licensee a non-transferable, non-exclusive right to
manufacture, have manufactured, and/or sell Licensed Products within the
Licensed Territory for use within Licensed Field.
Product(s)" included under this agreement are
included under this agreement are
aid by sports or rehabilitation".
All other rights
"Product Name" and
accompanying materials (if applicable), including without limitation,
patents, trademarks, copyright and all other rights, are retained by ET
Training Systems, LLC.
This Agreement is effective for a period of ___ years
commencing on or after ("Commence Date")____________________________.
Licensee Selling Rights will be limited to the following
geographic countries and regions: United States of America.
The Licensee may not sell or attempt to sell the Products
outside of their territory
prior written consent of ET Training Systems.
Payments And Reports
In consideration of rights granted by ET Training Systems
to Licensee under this Agreement, Licensee will pay ET Training Systems the
A nonrefundable license
documentation fee in the amount of $___________, due and payable when this
Agreement is executed by Licensee;
An annual license reissue fee in
the amount of $______________, due and payable on each anniversary of the
Effective Date beginning on the first anniversary;
A running royalty equal to ___ %
of Net Sales for Licensed Products Sold by Licensee and covered by ET
Training Systems Patent Rights; and
During the Term of this
Agreement and for 1 year thereafter,
Licensee agrees to keep
complete and accurate records of its Sales and Net Sales of Licensed
Products under the license granted in this Agreement in sufficient detail
to enable the royalties payable hereunder to be determined.
Licensee agrees to permit ET
Training Systems or its representatives, at ET Training Systems expense,
to periodically examine its books, ledgers, and records during regular
business hours for the purpose of and to the extent necessary to verify
any report required under this Agreement.
If the amounts due to ET
Training Systems are determined to have been underpaid, Licensee will pay
the cost of the examination and accrued interest at the highest allowable
Within 30 days after March 31,
June 30, September 30, and December 31, beginning immediately after the
Effective Date, Licensee must deliver to ET Training Systems a true and
accurate written report.
Even if no payments are due ET
Training Systems, giving the particulars of the business conducted by
Licensee(s), if any exist, during the preceding 3 calendar months under this
Agreement as are pertinent to calculating payments hereunder. This report
will include at least:
the quantities of Licensed Subject Matter that
it has produced;
the total Sales;
the calculation of royalties thereon; and
the total royalties computed and due ET
Simultaneously with the delivery
of each report, Licensee must pay to ET Training Systems the amount, if any,
due for the period of each report.
All amounts payable here by
Licensee must be paid in United States funds without deductions for taxes,
assessments, fees, or charges of any kind. Checks must be payable to
Licensee may reproduce the product for resale within in the
guideline of ET Training Systems specification.
Licensee may produce print
media, including advertising and promotional materials, editorial
publications and consumer merchandise;
Licensee may advertise by
Internet, intranet, online or Web-based media provided the resolution of the
images equal to or exceed 72dpi;
Licensee may advertise by
Television and Radio Broadcast and exhibitions;
Restrictions on Use
The Licensee may not Sublicense,
sell, assign, convey or transfer any of its rights under this Agreement.
The Licensee, except as
specified in writing by Licensor, has no authority and shall not attempt to
act for or on behalf of the Licensor or to bind the Licensor to any contract
or in any other manner.
The Licensee must retain the
product name of "dForce Trainer" when any Licensed Subject Matter is being
distributed or sold by Licensee.
Licensee may not use any product
image in a pornographic, defamatory, libelous or otherwise illegal manner,
whether directly or in context or juxtaposition with other materials. This
includes but is not limited to the use of an Image in conjunction with any
unflattering or controversial subjects, including but not limited to sexual
issues, abortion, sexually transmitted diseases, physical or mental illness,
illness of any kind, birth control, illegal activities, prostitution or
phone call centers, illegal drug use or any other illegal activity.
Uses of Company Name
Licensee may not use the name of ET Training Systems
without the prior written consent of ET Training Systems.
Licensee must permanently and legibly mark all products and
documentation manufactured or sold by it under this Agreement with a patent
notice as may be permitted or required under Title 35, United States Code.
If any product and/or image featuring a model is used in a
manner that would lead a reasonable person to believe that the model
personally uses or endorses a product or service, embarrassing or unduly
controversial to a reasonable person, Licensee must accompany each such use
with a statement that indicates that the person is a model and the Image is
being used for illustrative purposes only.
It is the Licensee
responsibility to obtain all permissions necessary to publish the product
images in the manner intended. Licensee must satisfy itself that the release
is adequate for Licensee's use.
Licensee agrees to indemnify and
hold ET Training Systems, officers, employees, agents and representatives,
harmless from any and all claims, demands, liabilities, damages, attorney's
fees, costs and expenses. Including without limitation those arising on
account of any injury or death of persons or damage to property caused by, or
arising out of, or resulting from the use of the "Product Name" or any
breach of this agreement.
In no event shall ET Training
Systems be liable for any indirect, special, consequential or punitive damages
(including, without limitation, damages for loss of profits or expected
savings or other economic losses, or for injury to persons or property)
arising out of or in connection with this Agreement or its subject matter,
regardless of whether ET Training Systems knows or should know of the
possibility of such damages.
Beginning at the time when any Licensed Subject Matter is
being distributed or sold by Licensee:
Licensee shall, at its sole cost
and expense, procure and maintain commercial general liability insurance in
amounts not less than $2,000,000 per incident and $2,000,000 annual
Licensee shall use reasonable
efforts to have ET Training Systems, its officers, employees and agents
named as additional insured. Such commercial general liability insurance
Product liability coverage;
broad form contractual
liability coverage for Licensee's indemnification under this Agreement;
Coverage for litigation costs.
The minimum amounts of insurance coverage required shall not be construed
to create a limit of Licensee's liability with respect to its
indemnification under this Agreement.
Licensee shall provide ET
Training Systems with written evidence of such insurance upon ET Training
Systems request. Licensee shall provide ET Training Systems with written
notice of at least fifteen (15) days prior to the cancellation, non-renewal
or material change in such insurance.
Licensee shall maintain such
commercial general liability insurance beyond the expiration or termination
of this Agreement during (i) the period that any Licensed Subject Matter
developed pursuant to this Agreement is being commercial distributed or sold
by Licensee; and (ii) the five (5) year period immediately after such
ET Training Systems represents and warrants that (i) it is
the owner of the entire right, title, and interest in and to Licensed Subject
Matter, (ii) it has the sole right to grant licenses thereunder, and (iii) it
has not knowingly granted licenses thereunder to any other entity that would
restrict rights granted to Licensee except as stated herein.
ET Training Systems, grant the
licenses on the terms and conditions contained in this agreement and any
ET Training Systems, makes no
other warranties, express or implied, regarding, including, without
limitation, any implied warranties of merchantability or fitness for a
ET Training Systems, shall not
be liable to licensee or any other person or entity for any general,
punitive, special, direct, indirect, consequential or incidental damages, or
lost profits or any other damages, costs or losses arising out of licensee's
use of the product (s).
Licensee, by execution hereof,
acknowledges, warrants and represents that (i) it has conducted sufficient
due diligence with respect to all items and issues pertaining to this
Agreement; and (ii) Licensee has adequate knowledge and expertise, or has
utilized knowledgeable and expert consultants, to adequately conduct the due
diligence, and agrees to accept all risks inherent herein.
Licensee may have additional rights under state law.
No rights to use the product (s)
are granted until the invoice relating to the product (s) is paid in full.
There are no cancellations.
The license contained in this
Agreement will terminate automatically without notice from ET Training
Systems, LLC if Licensee fails to comply with any provision of this Agreement.
Upon termination, Licensee must immediately (i) stop using the product(s),
(ii) destroy or, upon the request of ET Training Systems, LLC, return all
materials, including but not limited to documentation and prototypes to ET
Training Systems, and (iii) delete or remove the specification or images from
Licensee's premises, computer systems and storage (electronic or physical).
This Agreement will earlier terminate:
If this Agreement is terminated for any cause:
automatically if Licensee
becomes bankrupt or insolvent and/or if the business of Licensee is placed
in the hands of a receiver, assignee, or trustee, whether by voluntary act
of Licensee or otherwise; or
upon 30 days written notice
from ET Training Systems if Licensee breaches or defaults on its
obligation to make payments (if any are due) or reports, in accordance
with the terms of Article 5, unless, before the end of the 30 day period,
Licensee has cured the default or breach and so notifies ET Training
Systems, stating the manner of the cure; or
upon 90 days written notice if
Licensee breaches or defaults on any other obligation under this
Agreement, unless, before the end of the 90 day period, Licensee has cured
the default or breach and so notifies ET Training Systems, stating the
manner of the cure; or
at any time by mutual written
agreement between Licensee, and ET Training Systems, upon 180 days written
notice to all parties and subject to any terms herein which survive
nothing herein will be
construed to release either party of any obligation matured prior to the
effective date of the termination;
after the effective date of
the termination, Licensee may sell all Licensed Products and parts it has
on hand at the date of termination, if it pays earned royalties thereon
according to the terms of Article 4; and
Licensee will be bound by the
provisions of Articles 11 (Indemnification), 12 (Insurance), and 22
(Confidential Information and Publication) of this Agreement.
Licensor reserves the right to
revoke the license of any product (s) that is improperly represented by
licensee. Upon notice of any revocation of a license for any product (s),
Licensee shall immediately cease producing and selling the product (s).
If one or more of the provisions
contained in the Agreement is found to be invalid, illegal or unenforceable in
any respect, the validity, legality and enforceability of the remaining
provisions shall not be affected. Such provisions shall be reformed only to
the extent to make it enforceable.
Choice of Law
This Agreement will be governed in all respects by the laws
of the State of Michigan without reference to its laws relating to conflicts
of law. Licensee agrees that the State Court of Michigan, Wayne County and the
Federal Court for the District of Michigan are the agreed and appropriate
forums for any such suit, and consent to service of process by registered mail
or overnight courier with proof of delivery.
No action of ET Training Systems, LLC, other than express written waiver,
may be construed as a waiver of any provision of this Agreement.
INFRINGEMENT BY THIRD PARTIES
Licensee, at its expense, can
file lawsuit against any infringement by third parties and it is entitled to
retain recovery from such enforcement.
Licensee must pay ET Training
Systems a royalty on any monetary recovery if the monetary recovery is for
damages or a reasonable royalty in lieu thereof.
If Licensee does not file suit
against any infringement within 6 months of knowledge thereof, then ET
Training Systems can file lawsuit against any infringement by third
parties on behalf of itself and/or Licensee, ET Training Systems retains
all recoveries from such enforcement.
In any infringement suit or
dispute, the parties agree to cooperate fully with each other. At the
request and expense of the party bringing suit, the other party will permit
access to all relevant personnel, records, papers, information, samples,
specimens, etc., during regular business hours.
Confidential Information And Publication
ET Training Systems and Licensee
each agree that all information contained in documents marked "confidential"
and forwarded to one by the other (i) be received in strict confidence, (ii)
be used only for the purposes of this Agreement, and (iii) not be disclosed by
the recipient party, its agents or employees without the prior written consent
of the other party, except to the extent that the recipient party can
establish competent written proof that such information:
was in the public domain at the time of
later became part of the public domain through
no act or omission of the recipient party, itís employees, agents,
successors or assigns;
was lawfully disclosed to the recipient party
by a third party having the right to disclose it;
was already known by the recipient party at
the time of disclosure;
was independently developed by the recipient;
is required by law or regulation to be
Each partyís obligation of confidence hereunder
shall exist while this Agreement is in force and for a period of 3 years
contains all the terms of the license agreement and no terms or conditions may
be added or deleted unless made in writing and signed by an authorized
representative of both parties.
This Agreement constitutes the only agreement between the parties for Licensed
Subject Matter and all other prior negotiations, representations, agreements,
and understandings are superseded hereby.
Any notice required by this
Agreement must be given by prepaid, first class, certified mail, return
receipt requested and addressed to:
ET Training Systems, LLC
P.O. Box 1924
Royal Oak, Michigan 48068
Or, in the case of Licensee
or other addresses as may be given from time to time
under the terms of this notice provision.
Licensee must comply with all
applicable federal, state and local laws and regulations in connection with
its activities pursuant to this Agreement.
This Agreement will be construed
and enforced in accordance with the laws of the United States of America and
of the State of Michigan.
Failure of ET Training Systems to
enforce a right under this Agreement will not act as a waiver of that right
or the ability to later assert that right relative to the particular
Headings are included herein for
convenience only and shall not be used to construe this Agreement.
If any part of this Agreement is
for any reason found to be unenforceable, all other parts nevertheless
IN WITNESS WHEREOF, parties hereto have caused their duly
authorized representatives to execute this Agreement.
ET Training Systems, LLC
Chief Administrative Officer or