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Kai Chi Do Instructor License Agreement

THIS IS A BINDING CONTRACT. THEREFORE, PLEASE READ THIS LICENSE AGREEMENT CAREFULLY BEFORE PROCEEDING. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, PLEASE PROCEED NO FURTHER AND EXIT.

License Agreement


This Instructor License Agreement (“Agreement”) is between Kai Chi Do Inc., a Florida corporation (“Licensor”) and the Licensee (“Instructor”).

This Agreement will only take effect upon the occurrence of all of the following (the “Effective Date”):
(i) your acceptance of the terms and conditions of this Agreement and
(ii) Licensee’s payment in full of all license fees to be paid in advance to Kai Chi Do Inc.

Use of the Licensed Marks or Licensed Works (as defined below) prior to the Effective Date, or after the expiration or earlier termination of this Agreement, will constitute trademark infringement.

BACKGROUND

Licensor, Kai Chi Do Inc., owns and has exclusive rights to license the use of: (i) certain trademarks and service marks (“Licensed Marks” or “Marks”), including Kai Chi Do® and (ii) manuals, handouts, videotapes, and promotional materials related to Kai Chi Do, including all copyrights, trade secrets, publicity rights, privacy rights, and other intellectual property (“Body of Work” or “Licensed Works”) related to or in connection with its body-mind exercise and lifestyle program known as “Kai Chi Do” and/or “kaichido”.

Licensee (“Instructor”) desires to conduct classes to instruct others to perform Kai Chi Do and/or present Kai Chi Do in workshops, at conference, and at retreats (collectively, the “Licensed Services” or “Services”).

Kai Chi Do Inc. is willing to permit Licensee’s use of the Licensed Marks and the Licensed Works under the terms and conditions set forth in this Agreement. This Agreement defines the terms and conditions of the legal relationship between Kai Chi Do Inc. and Instructor. This is a binding, enforceable legal contract. Upon completion of the registration process, Instructor affirmatively agrees to be bound by these terms and conditions, and is deemed to have accepted them. Failure to adhere to these terms and conditions may result in revocation of the Kai Chi Do Instructor license and termination of all associated benefits.

INSTRUCTOR DUTIES

In consideration for qualification to teach Kai Chi Do classes, Instructor agrees to do the following:

(a). REGISTRATION: Instructor must be at least 18 years of age, and must provide the requested contact information including, but may not be limited to, name, email address, mailing address, and phone number at sign up.
(b). TRAINING: Instructor must complete training requirements as established by Kai Chi Do Inc. including both in-person and online training. Instructor agrees that they will not copy, reproduce, distribute, transmit, broadcast, display, sell, or otherwise exploit any content of the password protected Kai Chi Do Instructor website, except where permission has been given by Kai Chi Do Inc. in writing.
(c). LICENSE FEE: Instructor shall submit an Annual License Fee to Kai Chi Do Inc. for use of the Marks and Body of Work. Licensee’s payment of such fees will be required for Licensee to continue using the Licensed Marks and Licensed Works under this Agreement. Failure to pay the Annual License Fee will constitute a breach of this Agreement, and will entitle Kai Chi Do Inc. to terminate this Agreement. Instructor agrees to pay the License Fee annually for as long as Instructor conducts Kai Chi Do classes and/or other Licensed Services. Instructor may discontinue the Kai Chi Do license at any time, provided they do not teach Kai Chi Do classes or promote themselves as a Kai Chi Do Instructor during any period in which the license has been discontinued. Instructor will not receive a credit or refund of any training or license fees paid if they discontinue the license. Discontinuation of the Kai Chi Do License and/or lapse in payment of the Annual License Fee for more than one year will require the Instructor to repeat the Instructor Training for the Level of License they wish to resume.
(d). CONTACT INFORMATION: Instructor shall keep Kai Chi Do Inc. informed of his/her current mailing address, phone number, and email address by updating their account information in the Instructor Training Website.
(e). PROFESSIONALISM: Instructor shall conduct Kai Chi Do classes in accordance with the highest standards of quality and professionalism , in accordance with all federal, state, and local laws and ordinances, and in accordance with the policies and guidelines established by Kai Chi Do Inc. in its Instructor License Agreement.
1. Instructor agrees that they will not practice or attempt to provide Kai Chi Do services while impaired by alcohol, drugs of any kind, or physical or mental disability.
2. Instructor agrees to provide services only within the boundaries of his or her particular competencies and expertise, and provide only those services and use only those techniques for which he or she is qualified by education, training, or experience.
3. Instructor agrees not to represent himself or herself in any untruthful, misleading, or deceptive manner to clients, colleagues, or the public.
(f). QUALITY STANDARDS: Instructor agrees that the nature and quality of all Services rendered by Instructor under the Marks shall conform to the standards set by Kai Chi Do Inc. as explained in the Instructor Training requirements, Kai Chi Do Instructor Trainings, as set forth in the Kai Chi Do Instructor Training Manual and/or Instructor Training Website, and as may otherwise be defined by Kai Chi Do Inc.
(g). QUALITY MAINTENANCE: Instructor agrees to cooperate with Kai Chi Do Inc. in facilitating Kai Chi Do Inc. control over the nature and quality of the Services offered by the Instructor under the Marks, to permit observation of the Instructor’s classes, and to supply Kai Chi Do Inc. with evidence confirming compliance with this Agreement upon request.
(h). CPR CERTIFICATION: Instructor agrees to maintain current CPR certification.
(i). MARKETING AND ADVERTISING:
1. Instructor acknowledges that Kai Chi Do is a fitness and personal growth activity designed to enhance quality of life, and is not a substitute for medical diagnosis and/or treatment.
2. Instructor agrees that they will not knowingly mislead or make false claims about what students or participants will receive from Kai Chi Do or from the Instructor.
3. Instructor agrees to use the Kai Chi Do trademark and Kai Chi Do website URL www.kaichido.com on all materials promoting Kai Chi Do classes or other Licensed Services.
4. Instructor agrees not to produce or advertise any other products, materials, and/or workouts using the Kai Chi Do name unless authorization is given in writing by Kai Chi Do Inc.
(j). SECURITY: Instructors agree to protect the security of their account and password. Instructors agree that they will not share their account password with anyone.

LICENSEE /LICENSOR RELATIONSHIP

The legal relationship between Kai Chi Do Inc. and Instructor shall be that of Licensor and Licensee. Instructor understands and agrees that Instructor is not an employee of Kai Chi Do Inc. This Agreement does not constitute and shall not be construed as creating a partnership, joint venture, or an employee-employer relationship. Certified Kai Chi Do Instructor is an independent position. Training as a Kai Chi Do Instructor offers no guarantee of income.

Instructor shall have no authority to make or accept any offers or representations on behalf Kai Chi Do Inc. or to otherwise bind Kai Chi Do Inc. in any manner. Neither party will represent the other party in any capacity, bind the other party to any contract, or create or assume any obligation on behalf of the other party for any purpose whatsoever, except as expressly authorized by this Agreement.

Instructor shall not make any statements or take an actions in any media whatsoever, including, without limitation, electronic media, print media, wireless media or the world wide web, that reasonably may contradict the relationship set forth herein, that reasonably may confuse or mislead any person regarding the nature of the relationship between Kai Chi Do Inc. and Instructor.

LICENSE TO USE LICENSED MARKS AND BODY OF WORK; RESTRICTIONS ON USE.

1. Subject to the terms and conditions of this Agreement, and subject to Licensee’s payment of all license fees in full to Kai Chi Do Inc, Licensor hereby grants to Licensee a non-exclusive, non-transferable, revocable, limited license to use the Licensed Marks and Body of Work solely in conjunction with the Licensed Services, and to promote the Licensed Services to be offered by the Instructor.
2. Kai Chi Do Inc. offers basic and advanced Instructor training (“Level”). Instructor Level determines the scope of an Instructor’s Licensed Services.
(a) Basic Level Instructors (“Kai Level”) and Intermediate Level Instructors (“Chi Level”) are permitted to teach Kai Chi Do classes.
(b) In addition to teaching Kai Chi Do classes, Advanced Instructors (“Do Level Trainers”) are permitted to teach the in-person component of the required training for a student to become a Kai Level Instructor as set for in the Do Level Trainer Manual.
3. This Agreement does not confer on Licensee any right to grant licenses or sublicenses to others to use the Licensed Marks and/or Licensed Works, and Licensee’s rights and obligations under the license will not be assigned, delegated, sublicensed, or otherwise transferred in any way in whole or in part.
4. Nothing in this Agreement will give Licensee any right, title or interest in the Licensed Marks or Licensed Works other than the right to use the Licensed Marks and Licensed Works in accordance with this Agreement.
5. Nothing contained herein will in any way limit the right of Kai Chi Do Inc. to use or further license the Licensed Marks and Licensed Works.
6. Licensee will not, at any time during the Term or following expiration or termination of this Agreement for any reason, directly or indirectly:
(a) Use, register or attempt to register the Licensed Marks or Licensed Works (in whole or in part), or any other marks or works which are confusingly similar to the Licensed Marks as, or as a part of (individually or in combination), a trademark, service mark, Internet domain name, trade name, or business name;
(b) Use the Licensed Marks in conjunction with any other mark without the prior written consent of Kai Chi Do Inc.;
(c) Use any marks confusingly similar to the Licensed Marks;
(d) Use the Licensed Marks or Licensed Works in an unlawful manner, or in any manner that may reflect adversely on the Licensed Marks, the Licensed Works, on the good name of Kai Chi Do Inc., or on Kai Chi Do Inc.’s products or services;
(e) Challenge Kai Chi Do Inc.’s right, title or interest in the Licensed Marks or Licensed Works or the validity of the licenses granted under this Agreement;
(f) Sell the Licensed Works except as otherwise authorized by Kai Chi Do Inc. in writing.
(g) It is further agreed that damage from such use by the Licensee shall be incalculable, therefore Kai Chi Do Inc. shall be entitled to equitable or injunctive relief to enforce this provision without the need to prove damages or harm.

TERM AND TERMINATION

This Agreement is effective on the Effective Date for an initial term of 12 months (the “Term”) and will automatically renew on the anniversary of the Effective Date in each succeeding year for subsequent periods of 12 months until this Agreement is terminated. Kai Chi Do Inc. will have the right to immediately terminate this Agreement for cause and without liability upon the occurrence of one or more of the following:
(a) Negligent and/or intentional misconduct in professional work, including, but not limited to, physical or emotional abuse, disregard for safety, or the unauthorized release of confidential information.
(b) Licensee’s use of the Licensed Marks or Licensed Works in a manner which, in Licensor’s sole determination, is directly, explicitly or maliciously disparaging of Kai Chi Do Inc. or its products and services and which remains uncured for 3 days following notice from Kai Chi Do Inc.;
(c) Any material breach by Licensee of its obligations under this Agreement which is not described in the foregoing (a) or (b), and which remains uncured for 15 days or more following notice of such breach from Kai Chi Do Inc.

Upon termination of the Agreement:

(a) Licensee will immediately cease any and all use of the Licensed Marks and Licensed Works;
(b) Licensee will cease use of the Instructor Training Website and teleconferences; and
(c) Licensee will not be entitled to any refund of fees paid.

The right to terminate in the event of breach is without prejudice to Kai Chi Do Inc.’s right to exercise other remedies that may be available in equity or at law. 
Upon expiration or termination of this Agreement for any reason any clause that by its nature extends beyond the Term will survive and continue in force.

INDEMNIFICATION

Physical exercise can be a dangerous activity. There are inherent risks in any physical activity, including fitness training or other similar activities that may be offered by Instructors. Kai Chi Do involves physically demanding exercise including breathwork, aerobics, and stretching. Instructor acknowledges and agrees that as a result of the physical nature of Kai Chi Do classes, Kai Chi Do may not be safe or appropriate for everyone. Instructor further acknowledges and agrees that any information Kai Chi Do Inc. may provide to Instructor through a Kai Chi Do website or otherwise regarding health and fitness is intended solely as a general educational aid and is not a substitute for medical or healthcare advice. Instructor further acknowledges that Instructor has been encouraged to seek the advice of a physician or other qualified healthcare professional if Instructor has experienced any medical condition that may affect Instructor’s ability to provide the Services.

Licensee will indemnify, defend, and hold harmless Kai Chi Do Inc. and its affiliates, and their respective officers, directors, shareholders, employees and agents from and against all losses (including reasonable attorney fees) asserted directly or indirectly by Licensee or any other person arising out of or related to: (a) the Licensed Services provided by Licensee; (b) Licensee’s actions or omissions, including the use of the Licensed Marks and Licensed Works by Licensee; (c) Licensee’s breach of this Agreement; (d) any negligence, recklessness, intentional misconduct, violation of law, or other wrongful act or omission of Licensee or any of its employees or agents; or (iv) any physical injury or damage to property arising out of the Licensed Services; in each case, whether arising from or in connection with a demand, action, regulatory action, lawsuit, proceeding, judgment, settlement, appeal or other post judgment proceeding and whether asserted in contract, tort, strict liability or otherwise.

Licensee shall indemnify and hold harmless Kai Chi Do Inc. for losses, injuries, or damages (“Claim”) caused by Instructor’s act or omission to act, and/or the acts or omissions of employees, contractors, or agents of the Instructor. Instructor, at his/her expense shall (i) defend the Claim; (ii) pay any damages and costs assessed against Kai Chi Do Inc. (or payable by Kai Chi Do Inc. pursuant to a settlement agreement) arising out of the Claim; and (iii) reimburse Kai Chi Do Inc. for reasonable costs and expenses incurred by Kai Chi Do Inc. to provide the reasonable cooperation requested by Instructor or Venue.

DISCLAIMER OF WARRANTIES

Kai Chi Do Inc. does not make any express, implied or statutory warranties, and Kai Chi Do Inc. specifically disclaims all implied or statutory warranties, including the implied warranties of merchantability, fitness for a particular purpose, and non-infringement. Kai Chi Do Inc. grants the licenses in this Agreement on an “As Is” basis. We do our best to present only accurate and complete information, but we do not make any warranties or guarantees concerning the accuracy or completeness of information presented on this site or on other sites to which it links.

No warranty, guarantee, or representation is made by Kai Chi Do Inc., or other distributors of this program, as to the absolute correctness or sufficiency of any information or representation contained in the program, and Kai Chi Do Inc. assume no responsibility in connection therewith, nor can it be assumed that all acceptable safety measures are included in the program, or that other or additional measures may not be required under particular or exceptional conditions or circumstances.

Kai Chi Do Inc. and its service providers cannot assure that access to the Kai Chi Do Instructor website and online materials will be permanent, uninterrupted, or error free. Kai Chi Do, Inc. may, at its sole discretion, edit and/or remove content from the Instructor training website.

Requirements for teaching Kai Chi Do may vary by studio or gym, that may require additional fitness instructor certifications. Certain states may require additional certification to teach fitness classes. It is the sole responsibility of the Licensee to determine and meet what is required by your employer, as well as what is required by any laws or regulations that apply to you.

LINKS TO THIRD-PARTY WEBSITES

Kai Chi Do Inc. provides on the Instructor Training website, solely as a convenience to users, links to websites operated by our affiliates or other entities. If you use these links, you will leave this Website. If you decide to visit any linked website, you do so at your own risk and it is your responsibility to take all protective measures to guard against viruses or other destructive elements. We do not make any warranty or representation regarding, or endorse or otherwise sponsor, any linked websites or the information appearing thereon or any of the products or services described thereon. Links do not imply that Kai Chi Do Inc. is legally authorized to use any trademark, trade name, logo or copyright symbol displayed in or accessible through the links; or that any linked website is authorized to use any trademark, trade name, logo or copyright symbol of Kai Chi Do Inc.

Instructor agrees that their use of third party websites and resources, including without limitation their use of any content, information, data, advertising, products, or other materials on or available through such websites and resources, is at their own risk and is subject to the terms and conditions of use applicable to such sites and resources.

LIMITATION OF DAMAGES; LIMITATION OF LIABILITY

To the fullest extent permitted by applicable laws Kai Chi Do Inc., affiliates, subsidiaries, officers, directors, employees, and suppliers, shall not be liable for any losses and expenses of whatever nature and howsoever arising including, without limitation, any direct, indirect, special, punitive, or consequential damages, loss of use, loss of data, loss caused by a virus, loss of income or profit, loss of or damage to property, claims of third parties, or other losses of any kind or character, regardless of whether such damages were foreseeable or whether a party or any entity has been advised of the possibility of such damages or losses. This limitation of liability applies whether the alleged liability is based on contract, negligence, tort, strict liability or any other basis. Kai Chi Do Inc. shall not have any liability or responsibility for any acts, omissions or conduct of any Licensee or other third party.

The extent of Licensor’s liability under this agreement, to the exclusion of all other remedies in contract, tort, or otherwise, shall be limited to the pro-rata portion of the unused license fees paid by the Instructor. Some jurisdictions do not allow for the exclusion or limitation of incidental, consequential or special damages, or the exclusion or limitation of implied warranties, so the above limitations or exclusions may not apply to you. Notwithstanding any of the foregoing, the maximum liability of Licensor to Licensee under this agreement shall not exceed in the aggregate the amount of the annual license fee actually received by Licensor from Licensee for the licensed content.

GOVERNING LAW AND JURISDICTION

This Agreement will be interpreted under, and any disputes arising out of this Agreement will be governed by, the laws of the State of Florida, without reference to its conflicts of law principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the interpretation or enforcement of this Agreement.

Licensee irrevocably consents to the jurisdiction of the state and federal courts located in Pinellas County, Florida, USA, in connection with all actions arising out of or in connection with this Agreement, and waives any objections that venue is an inconvenient forum. Licensee further agrees that it will not initiate any action against Kai Chi Do Inc. in any other jurisdiction. Licensee agrees that a final judgment in any such action or proceeding will be conclusive and may be enforced in any other jurisdiction (including the appropriate courts of the jurisdiction in which Licensee is resident or in which any property or an office of Licensee is located) by suit on the judgment or in any other manner provided by law. The prevailing party in any such action shall be entitled to recover its reasonable attorney’s fees and costs.

EFFECT OF INVALIDITY

If any court, arbitrator, or arbitration panel finds any provision of this Agreement to be invalid or otherwise unenforceable, that provision will be void to the extent it is contrary to applicable law. However, that finding will not affect the validity of any other provision of this Agreement, and the rest of this Agreement will remain in full force and effect unless enforcement of this Agreement without the invalidated provision would be grossly inequitable under all of the circumstances or would frustrate the primary purposes of this Agreement. Alternatively, if a court, arbitrator, or arbitration panel determines that any provision of this Agreement is not enforceable as expressly written, it is the intention of the parties that those provisions be modified by the court, arbitrator, or arbitration panel only as is necessary for them to be enforceable.

TIME LIMITATION ON CLAIMS

Instructor agrees that any cause of action arising out of or related to Kai Chi Do Inc. must commence within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred.

ELECTRONIC SIGNATURE AND CLICKTHROUGH AGREEMENT

This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. For purposes of this Agreement, use of a facsimile, e-mail, or other electronic medium shall have the same force and effect as an original signature.

Acceptance of this contract by the Licensee as an electronic clickthrough agreement, also known as a “click and accept” agreement, shall have the same force and effect as an original signature.

MODIFICATION TO TERMS AND CONDITIONS

Kai Chi Do Inc. reserves the right, at its sole discretion, to update the terms of this Agreement. Such changes may be effected by Kai Chi Do Inc.’s posting of a change notice or a new agreement on its website. Such modified terms shall be deemed incorporated herein and made part hereof. Kai Chi Do Inc. shall make reasonable efforts to notify Licensee of all such changes by email, at the email address that Licensee has provided in the Instructor Training Website account. It is the responsibility of the Licensee to keep this email account information accurate and current. The enforceability of changes to this Agreement shall not be deemed contingent upon actual notification. In the event Instructor does not agree to abide by the terms of the Agreement, as modified, Instructor’s sole remedy and recourse shall be to terminate this Agreement.

GENERAL CONDITIONS

This Agreement is the entire agreement between the parties concerning its subject matter and supersedes all prior and contemporaneous oral and written agreements, commitments, and understandings concerning its subject matter.

Licensee will not assign any right or delegate any duty under this Agreement, whether by transfer, merger, operation of law, or otherwise. Kai Chi Do Inc. may assign its rights and delegate its duties under this Agreement to any third party at any time without Licensee’s consent.

A party’s delay or failure to enforce or insist on strict compliance with any provision of this Agreement will not constitute a waiver or otherwise modify this Agreement. A party’s waiver of any right granted under this Agreement on one occasion will not (a) waive any other right; (b) constitute a continuing waiver; or (c) waive that right on any other occasion.

Section and paragraph headings are for convenience only and do not affect the meaning or interpretation of this Agreement. The words “includes” and “including” are not limited in any way and mean “includes or including without limitation.” The word “person” includes individuals, corporations, partnerships, limited liability companies, co-operatives, associations and other natural and legal persons. The term “and/or” means each and all of the persons, words, provisions or items connected by that term; i.e., it has a joint and several meaning. The word “will” is a synonym for the word “shall.” No rule of construction or interpretation that disfavors the party drafting this Agreement or any of its provisions will apply to the interpretation of this Agreement. Instead, this Agreement will be interpreted according to the fair meaning of its terms.

CONTACT

If you have any questions about this Agreement, or if you have technical questions about the operation of the Website, please contact us at email: charles_and_susan@kaichido.com

Updated October 14, 2015