AestheticDRs LICENSE AGREEMENT
DEFINITIONS:
Unless otherwise defined in this
Agreement, the following terms shall have the meanings set forth below:
Licensee
means the person, business or entity that is approved via the application
submitted with today’s date. An
applicant becomes a licensee when AestheticDRs approves the application via
notification by US mail and or email and the license fee is received within 15
days of approval at the AestheticDRs office.
Licensor
means the entity licensing the applicant which in this case
is AestheticDRs, LLC.
Affiliate means any person or entity directly or indirectly
controlling, controlled by, or under common control with another person or
entity. “Control,” “controlled” and
“controlling” means the power to direct or cause the direction of the management
and policies of an entity and shall be deemed to exist if any person or entity
directly or indirectly owns, controls, or holds the power to vote fifty percent
(50%) or more of the voting securities of such other entity.
Business
Records means evidence of each business
transaction, and all financial, marketing, and other operating aspects of
Licensee.
Confidential Information means all methods for establishing,
operating and promoting the Dr. TED Diet™ program pursuant to Licensor’s
distinctive business format, plans, methods, data, processes, supply systems,
marketing systems, formulas, techniques, designs, layouts, operating procedures,
and Marks, information and know-how of Licensor, pricing from suppliers and such
other information as may be further developed periodically by Licensor.
Dr. TED Diet™ program means, collectively, the valuable know
how, Confidential Information, any existing or pending Patent Pending, other
information, Trade Secrets, methods, Licensee Manuals, standards, designs,
methods of trademark usage, Copyrighted Materials and copyrightable works,
service sources and specifications, proprietary software, confidential
electronic and other communications, methods of Internet usage, marketing
programs, and research and development connected with the operation and
promotion of the Dr. TED Diet™ program, as modified by Licensor and its
Affiliates from time to time and at any time.
Licensee
Manuals means Licensor’s operations manual and other written materials,
including information posted on Licensor’s Website and information sent to or
accessed by Licensee in print or electronic form, manuals, written procedures,
memoranda and their supplements loaned to Licensee by Licensor.
Marks
means Licensor’s trade names, trademarks, service marks, logos, decor, trade
dress, lay out, and commercial symbols, and similar and related words or
symbols, now or in the future associated with Licensor or the Dr. TED Diet™
program, whether or not they are registered.
Marketing
Programs means regional, national, or
international programs designed to increase business, such as marketing to
multi-area customers, Internet, shows, events, yellow pages, directories,
affinity marketing, vendor programs, and co-branding programs. Such programs may require Licensee’s
cooperation and participation, including refraining from certain channels of
marketing and distribution, and payment of commissions or referral fees. Licensee must also adhere to maximum
and minimum pricing to the extent permitted by law. All such programs are proprietary
trade secrets of Licensor.
Premises
mean the location which Licensor has approved within the Exclusive Territory, at
which Licensee operates the Dr. TED Diet™ program.
Product
means any Product, goods, or service
that incorporates, contains, or otherwise exploits the Dr. TED Diet™ program.
Trade Secret
means the whole or any portion or phase of any scientific or technical
information, design, process, procedure, formula, improvement, confidential
business or financial information, listing of names, addresses, or telephone
numbers, or other information relating to any business or profession which is
secret in the sense that it is not generally known to competitors of Licensor or
its Affiliates.
Transfer
means to voluntarily or involuntarily transfer, assign, sell, or encumber any
interest in or ownership or control of the rights to use the Dr. TED Diet™
program or this Agreement.
REQUIREMENTS FOR LICENSING:
Licensee
is a person, company or
corporation in the medical business and controls that business through ownership
of stock or other control. Licensee
must have a supervising physician at each location in accordance with the laws
of the State in which the Premise resides and desires to become an independent
licensee in the Dr. TED Diet™ program in the geographic area described on his
application and specifically the areas approved by the Licensor.
If Licensee is an entity, Licensee shall
complete and update throughout the term of this Agreement, as necessary, the
Statement of Ownership via US mail and email to AestheticDRs. If Licensee is a limited
liability company, partnership, corporation or other entity, Licensee shall
provide to Licensor with a copy of the organizational document creating such
entity, a resolution signed by all members, directors or partners, as
appropriate, designating the principal contact for the Dr. TED Diet™ program and
such other information about the entity as Licensor may request to permit it to
determine that such entity is validly existing and in good standing in the state
or states where it does business.
This principal contact must be a managing member, general partner or controlling
shareholder. Such representative
shall have the authority to speak for and bind Licensee in all matters
pertaining to this Agreement, and all matters relating to the Dr. TED Diet™
program.
Licensee’s place of business is reputable and one whose image in
the community is desirable for AestheticDRs to associate with and who will
reflect positively on other licensee’s.
Licensee will maintain a physician with a current doctor’s license who
acts as a supervising physician for its facilities.
Use of other Diet Programs:
Licensor acknowledges that Licensee may already use or desire to use in their
practice other diet programs not of a similar nature to The Dr. TED Diet™
program. Licensor acknowledges that being a Licensee of the Dr. TED Diet™ program
does not preclude Licensee from utilizing other diets that are not “Similar” to
the Dr. TED program.
An important part of the “Value” of being
a Dr. TED Licensee is the exclusive territory rights designated under the
License and the “Patent Pending” proprietary processes used in this diet. As the
exclusive provider of The Dr. TED program in the chosen territory the Pending
Patent will protect your rights and those of AestheticDRs from anyone that may
want to provide similar diets in your territory. If a Licensee terminates their
association with The Dr. TED program they will obviously be likely to honor the
protection of the Pending Patent and the protocols that make up its “USE”
application. A doctor or clinic does not have to have been a Dr. TED Licensee to
be in violation of this Pending “Use” Patent, but having been given the training
and materials of The Dr. TED Diet™, to continue to provide this or a “Similar
Diet” would violate the Pending Patent. As AestheticDRs proceeds with the
marketing of the Dr. TED across the country we will be notifying doctors that
are using our protected protocols that they are violating our Patent whether
Pending or Issued. Some of these protocols have been used independently before
but AestheticDRs has structured and refined them to create the highly successful
total program we are licensing. If a doctor HAS BEEN using some of these
protocols before becoming a Dr. TED Licensee, Aesthetic Drs will review on an
individual case basis whether the doctor may have them acknowledged as an
addendum to the agreement to exempt future conflict it the doctor terminates
their Dr. TED License. Proof of previous use would be part of any addendum.
Examples of diets that ARE NOT “similar “to The Dr. TED program are, those which
utilize prescription diet medications
such as those which utilize prescription diet medications
such as
Phentermine (Adipex-P,
Obenix, Oby-Trim), phenteramazine (Meridia, Orlistat, Xenical, Bonitril)
or use a protein sparing medically supervised diet such as
Medifast or Optifast that use pre-packaged food programs. Licensee acknowledges that “similar”
programs are those using transdermal creams to deliver prescription medicines
and other protocol features outlined in the patent application describing the
Dr. TED Diet™. Licensee agrees
that it will not use any diet program that uses similar transdermal creams,
whole body vibration equipment and is based on similar protocols utilized by the Dr. TED Diet™ program
as outlined in the patent application submitted to the United States Patent and
Trademark Office. Licensee holds harmless Licensor for
any possible medical misconduct involving other diet programs such as those who
advocate sending needles, syringes and medicine home with patients to inject
themselves as is sometimes used in other diets.
Licensor is not dictating medicine practiced and understands that for
certain medical reasons such as diabetes type I it may be in the patient’s
interest to do so, but Licensee agrees as stated above to hold Licensor harmless
in the event he does other diets utilizing such methods.
EXCLUSIVE TERRITORY:
During the Term, and for so long as Licensee is in compliance with
all of its obligations hereunder, except as otherwise provided in this
Agreement, and subject to Licensor’s reservation of rights, Licensor will not
establish or license another person or entity to establish another Licensee or
offer Dr. TED Diet™ program or other exclusive programs introduced by the
Licensor within the area encompassed by the boundaries set forth in Licensor’s
acceptance and grant of license letter.
Licensee may not operate or license any person or entity outside
its exclusive territory.
TERM:
This Agreement and the
License granted shall continue for a period of three (3) years (“Term”). This Term shall begin on the date this Agreement is
executed by Licensor, subject, however, to termination in accordance with the
provisions of this Agreement.
Licensee is granted the right to renew this agreement at the
end of the three (3) year period for another three (3) years at the then
prevailing monthly license fee being offered by the Licensor.
FEES:
Licensee must pay a
monthly license fee (“Monthly License Fee”),
as set forth in the letter of acceptance and license from AestheticDRs on the
date due as described in same letter, plus, if due and payable, any late
charges, penalties or if applicable federal, state or municipal taxes.
All monthly license payments are non-refundable except as
expressly provided below. All
payments must be made by automatic bank draft, Visa or MasterCard Credit Card. Licensor may allow any
other method of payment, including cashier's check, cash, certified check, or money order.
If the Licensee does not already have acceptable diet
equipment, Licensee must purchase an approved body vibration machine, an
approved body composition analyzer, a supply of Patient Information booklets,
Patient Tri folds, Transdermal creams and other Products, all as determined by
Licensor. Licensor makes
Products and services available to Licensee for purchase. Licensee must pay for
such Products or services purchased from Licensor or Licensor’s Affiliates when
the order is placed, in accordance with the procedures set forth in the Licensee
Manuals. If Licensee fails to pay for the Products or services when placing an
order, the order will not be processed.
Monthly License Fees are considered late when they are 10
calendar days past due. Licensee
agrees to pay a late fee in the amount of 3% per month in such instance on the amount
due. Licensee must pay any damages,
expenses through appeal, collection costs, and reasonable attorneys’ fees
Licensor incurs in connection with Licensee’s failure to make any required
payments.
Licensee will promptly pay when due all taxes, fees, debts,
expenses, and assessments of the Dr. TED Diet™ program, including payroll taxes.
Licensee agrees that AestheticDRs territory
Licensee is not an asset in consideration of any bankruptcy filing or lien
process that the Licensee may be party to.
ADVERTISING AND
MARKETING:
Licensee acknowledges that local advertising in the Exclusive Territory is
Highly Recommended to advise the public of The Dr. TED Diet™ Program. Many
Licensees are able to enroll a significant number of diet customers from their
current patient group, they also receive personal referrals from their
successful patients but this is not usually a large enough number to make the
program the revenue success it can be. The diet industry has many competitors in
the marketplace which breeds confusion among consumers. Local advertising is an
important component in explaining the features of The Dr. TED Program
Licensee may advertise or promote in any media with a circulation inside the
Exclusive Territory as defined in the letter of acceptance and grant of license.
The Licensee may also advertise in media that primarily focuses on the Exclusive
Territory but may circulate in contiguous zip-code areas as long as those
zip-codes are not assigned to another Licensee. If there are two or more
Licensees in a Metro or Urban area where advertising may infringe on the rights
of a Licensee because it is visible or present outside of the Exclusive
Territory of the Licensee placing the ad, the advertising Licensee must request
permission from the Licensor in advance a minimum of ten business days before
placing the advertisement. The request must be made in writing and Licensor has
the right to approve or withhold approval at their discretion.
When Licensee Territories are close enough in proximity to create possible
frequent overlaps in circulation or ad coverage, Licensor will confer with the
Licensees to possibly arrange for joint advertising that may be more beneficial
than placing ads just for any one territory.
Licensor may
provide Licensee with advertising and marketing materials, which may include,
but are not limited to, video and audiotapes, multimedia, print-ready
advertising materials, posters, and other items to be used for local advertising
and marketing activities Licensor
may use any advertising developed by Licensee, without cost, and provide the
advertising to other Licensees.
Licensee may be allowed to participate in Licensor’s
National Marketing Programs if such programs should become available, however,
any such National Marketing program that may or may not develop, may not be
sufficient to support the Dr. TED Diet™ program and Advertizing may be necessary
by Licensee to develop the Dr. TED Diet™ program.
RESERVATION OF RIGHTS:
Licensee acknowledges that Licensor and its Affiliates retain the
exclusive right, among others:
i.
to use, and to
license others to use, the Marks for the operation of Dr. TED Diet™ programs at
any location outside of the Exclusive Territory;
ii.
to use the Marks and the Dr. TED Diet™ program and other
trademarks and Marks owned by AestheticDRs in connection with the provision of
other services and Products or in alternative channels of distribution outside
the Exclusive Territory.
LICENSOR’S DUTIES:
i.
Licensor will provide initial and continuing services as it
deems necessary or advisable to further Licensee’s use of the Dr. TED Diet™
program, as a whole and in connection with protecting the Marks and goodwill of
Licensor.
ii.
Licensor will specify
or approve certain equipment, advertising materials and supplies used in the Dr.
TED Diet program.
iii.
Licensor will provide initial training and assistance to
Licensee, as Licensor may determine to be appropriate, at its corporate
headquarters or at another location designated by Licensor or through some other
method approved by Licensor.
Licensee must attend and satisfactorily complete the initial training program
prior to using the Dr. TED Diet™ program.
The training program consists of a discussion of the Dr. TED Diet™
program, protocols, techniques, procedures, and methods of operation, customer
service, sales and marketing, support procedures and instructions on quality
standards and practical experience in the use of the Dr. TED Diet™ program. Licensee is responsible for personal
travel, accommodation, and other costs for itself and any of its employees while
attending training. Other methods and locations of training approved by
Licensor may be utilized if agreeable to both parties.
vi.
Licensor will provide reasonable ongoing assistance by
telephone, electronic mail, or other form of communication to Licensee during
normal business hours.
v.
Licensor may develop new service methods, as and when
Licensor deems beneficial to the Dr. TED Diet™ program or other programs offered
by the Licensor. Licensor will offer
such new service methods to Licensee on terms determined by Licensor.
vi.
Licensor will continue to improve, modify, and revise the
Licensee Manuals and the specifications, standards, and operating procedures and
rules of the Dr. TED Diet™ program, as
it deems appropriate.
vii.
Licensor reserves the right to implement a centralized
purchasing system for Licensees and negotiate prices and terms with suppliers
and to receive rebates from such purchases by Licensees. Licensor may utilize such rebated
funds in any manner it chooses.
LICENSEE’S DUTIES:
In addition to those duties and obligations set forth in
other parts of this Agreement, Licensee agrees as follows:
i.
The Licensee must operate under the direction of
a Medical Director that holds a license in the state where the exclusive
territory is located. Licensee affirms that the Dr TED Diet program will only be
conducted under the supervision of a Medical Director and if the medical
Director of record is replaced by the licensee, a notice of change of the
Medical Director will be immediately sent to the licensor. This notice will include the new DEA
# and a copy of the new Medical Directors State Medical License.
ii.
Licensee agrees to (i) comply with all applicable
laws, ordinances and regulations or rulings, or licensing requirements, of every
nature whatsoever which in any way regulate or affect the operation of its Dr.
TED Diet program, (ii) pay all taxes and business expenses when due; and, (iii)
comply with all laws covering occupational hazards, accommodations for the
disabled, including without limitation, the Americans with Disabilities Act,
health, workers’ compensation insurance and unemployment insurance. Licensee agrees to modify its
Premises, at its expense, if necessary, to comply with any such applicable laws
or regulations. Licensee shall not
engage in any activity or practice that result, or may reasonably be anticipated
to result, in any public criticism of the Dr. TED Diet™ program or any part
thereof.
iii.
Notwithstanding Licensor’s right to require Licensee to use
the Dr. TED Diet™ program in accordance with this Agreement, Licensee and
Licensor recognize that the practice of medicine is a profession requiring
independent judgment, skill and training and is governed in many particulars by
state and federal authorities. Any
inconsistency between the Dr. TED Diet™ program or Licensor’s advice and the
dictates of good medical practice, or any legal requirement of that practice, is
inadvertent and not an effort to cause Licensee to deviate from proper
practices. Therefore, Licensee and
Licensor understand and agree that (i) in all cases, lawful, regulatory
requirements take precedence over both any inconsistent advice, counsel or other
guidance, whether written or oral, given by Licensor on any topic and anything
inconsistent in the Dr. TED Diet™ program; (ii) no business advice given by
Licensor nor any aspect of the Dr. TED Diet™ program shall be taken as advice in
respect of the practice of the profession of medicine, as defined by law; (iii)
Licensee’s judgment governs in all matters pertaining to the use of the Dr. TED
Diet program, the advising of patients, communications with other physicians on
professional matters and each and every aspect of the professional practice of
medicine; (iv) in any case in which Licensee believes Licensor’s advice or the
Dr. TED Diet™ program contravene the practice of the profession of medicine or
any legal requirements of that practice, Licensee will notify Licensor, orally
and in writing, immediately; and (v) Licensee is solely responsible for the
practice of medicine at the Premises and the results of that practice.
vi.
Licensee and its employees shall maintain a clean and
attractive appearance, and give prompt, courteous and efficient service to the
public so as to preserve, maintain and enhance the reputation and goodwill of
the Dr. TED Diet™ program.
v.
All signs to be used on or in connection with the Dr. TED
Diet program that deviates from signage recommended by Licensor must be approved
in writing by Licensor prior to their use by Licensee.
vi.
Licensee shall train its employees according to standards
and procedures established by Licensor.
vii.
Should Licensor notify Licensee at any time of defects,
deficiencies or unsatisfactory conditions in the appearance or conduct of the
Dr. TED Diet™ program, Licensee shall correct immediately any such items. Licensee shall establish and maintain
an image and reputation for the Dr. TED Diet™ program consistent with the
standards set forth in this Agreement, the Licensee Manuals, or as otherwise
specified by Licensor.
viii.
Licensee shall, during the Term, and after the termination
or expiration of the Term, indemnify Licensor and its officers, directors and
employees, and hold them harmless against all claims, demands, losses, damages
(including punitive damages), costs, suits, judgments, penalties, expenses
(including reasonable attorneys’ fees and amounts paid in settlement or
compromise) and liabilities of any kind, whether or not ultimately determined to
be meritorious (and including damages suffered by Licensee or any of its
property) (collectively, “Damages”) for which they are held liable, or which they incur
(including attorney’s fees and costs, travel, investigation and living expenses
of attorneys, employees and witness fees) in any litigation or proceeding as a
result of or arising out of: (i) a breach of
this Agreement, or any other agreement between the parties, or any breach of the
lease or other instrument by which the right to occupy the Premises is held, by
Licensee; (ii) any injury to, or loss of property of, any person in, or on, the
Premises or other Dr. TED Diet™ program premises; (iii) Licensee’s taxes,
liabilities, costs or expenses of the use of the Dr. TED Diet™ program; (iv) any
negligent or willful act or omission of Licensee, its employees, agents,
servants, contractors or others for whom it is, in law, responsible; or (v) any
advertising or promotional material distributed, broadcast or in any way
disseminated by Licensee, or on its behalf unless such material has been
produced, or approved in writing, by Licensor.
MODIFICATION OF Dr.TED
Diet PROGRAM:
Licensor reserves the right to change, improve, or further develop the Dr. TED
Diet program, or any part of the Dr. TED Diet™ program at any time. Licensee must promptly accept and
comply with any change to the Dr. TED Diet™ program and make any reasonable
expenditure as necessary to comply.
Any modifications to the Dr. TED Diet™ program developed by Licensee in whole or
in part shall be proprietary to and owned by Licensor or its affiliates and may
not be used or transferred by Licensee other than as provided in this Agreement.
OWNERSHIP AND USE OF
MARKS:
The distinguishing characteristics of the Dr. TED Diet™ program include all
trademarks and trade names, confidential operating procedures, pending Patents,
confidential operations manual, standards and specifications for equipment,
services and Products, methods of service, management and marketing programs,
and sales techniques and strategies.
All of these distinguishing characteristics may be changed, improved, and
further developed by Licensor from time to time. They are the Confidential
Information and Trade Secrets of Licensor or its Affiliates and are designated
by and identified with the Marks described in this Agreement.
Licensee acknowledges
that Licensor or Licensor’s Affiliates are the sole and exclusive owner of the
Marks and of all right, title, interest, and goodwill of the Marks. Licensee further acknowledges that
the Marks designate the origin or sponsorship of the Dr. TED Diet™ program, the
Dr. TED Diet™ program, any services or Products, and that Licensor, a licensee of
the Marks, desires to protect the goodwill of the Marks and to preserve and
enhance the value of the Marks.
Licensee acknowledges and agrees that it will never dispute, contest, or
challenge, directly or indirectly, the validity or enforceability of the Marks
or Licensor ownership of the Marks, nor counsel, procure, or assist anyone else
to do the same, nor will it take any action that is inconsistent with Licensor
ownership of the Marks, nor will it represent that it has any right, title, or
interest in the Marks other than those expressly granted by this Agreement. Licensee acknowledges that all usage
of the Marks by Licensee and any goodwill established by Licensee’s use of the
Marks shall inure to the exclusive benefit of Licensor, and that this Agreement
does not confer any goodwill or other interests in the Marks upon expiration or
termination.
By its application for license,
Licensee is desirous of obtaining the
right to use the Dr. TED Diet™ program and in association therewith, the right to
use the Marks, and wishes to be assisted, trained, and Licensed to use the Dr.
TED Diet program pursuant to the provisions specified in this Agreement, subject
to the terms and conditions contained in this Agreement:
Licensee further acknowledges that it is of utmost
importance that the goodwill, stature, and image of quality associated with the
Marks be maintained and enhanced by Licensee.
Licensee will make no use of the Marks without the prior approval of
Licensor, this Agreement itself not constituting such approval. To maintain and enhance the goodwill
and image of quality associated by the public with the Marks, Licensee will
conduct its business in accordance with this Agreement. In connection therewith:
Licensee further acknowledges that Licensee’s right to use
the Marks is derived solely from this Agreement and is limited to the conduct of
business by Licensee pursuant to and in compliance with this Agreement and all
applicable standards, specifications, and operating procedures prescribed by
Licensor in the Licensee Manuals and elsewhere from time to time during the term
of this Agreement.
Upon Licensor’s request, Licensee will cooperate fully, both
before and after termination or expiration of this Agreement and at Licensee’s
expense, in confirming, perfecting, preserving, and enforcing Licensor’s rights
in the Marks, including but not limited to, executing and delivering to Licensor
such documents as Licensor reasonably requests for any such purpose, including
but not limited to, assignments, powers of attorney, and copies of commercial
documents showing sale and advertising of the Products and services. Licensee hereby irrevocably appoints
Licensor as its attorney-in-fact for the purpose of executing such documents.
Licensee will use the Marks in lettering, logos, print
styles, forms, and formats, including but not limited to, advertising and
promotional materials, invoices, signage, business checks, business cards,
invoices, stationery, interior décor, and promotional items such as clothing,
pens, mugs, etc., which have been approved by Licensor, and promptly follow
instructions regarding the Marks as provided in the Licensee Manuals and
otherwise given by Licensor from time to time.
Licensee agrees to safeguard and maintain the reputation and
prestige of the Marks and will not do anything that would tarnish the image of
or adversely impact the value, reputation or goodwill associated with the Marks. Licensee will never attempt to
dilute, directly or indirectly, the value of the goodwill attached to the Marks,
nor to counsel, procure, or assist anyone else to do the same.
Licensor may decide, in its sole and absolute discretion, to
apply to register or to register any trademarks with respect to any Products or
services. Failure of Licensor to
obtain or maintain in effect any such application or registration is not a
breach of this Agreement. Licensee
will not, before or after termination or expiration of the Agreement, register
or apply to register any of the Marks, or any trademark or logo confusingly
similar thereto, anywhere in the world.
Licensee
should identify the Marks with the appropriate superscript “®”, “SM” or “™” unless and
until advised by Licensor to use a different notice.
If Licensor determines the use of a Mark in connection with
the any Products or services provided by Licensee will infringe or potentially
infringe upon the rights of any third party or weakens or impairs Licensor’s
rights in the Marks, then upon notice from Licensor, Licensee will immediately
terminate or modify such use in accordance with Licensor’s instructions, and
Licensee will have no rights of damages, offset, or right to terminate this
Agreement as a result thereof.
i.
Licensee will not use any materials that are false or
misleading.
ii.
Licensee will ensure that all advertising, labeling,
packaging and other materials associated with the any Products or services sold
by Licensee fully conform to all applicable laws and regulations.
iii.
Licensee will conduct its business operations in accordance
with all applicable laws and regulations, including but not limited to, consumer
protection laws and regulations.
vi.
Licensee will control the quality of the Products or
services sold by Licensee to avoid Product quality problems or Product liability
claims that could reflect adversely on Licensee or Licensor in the minds of
consumers.
v.
Licensee shall not use any Mark or portion of any Mark as
part of a corporate or trade name, or with any prefix, suffix or other modifying
words, terms, designs or symbols, or in any modified form.
Licensee must use the Marks as the
identification of the Dr. TED Diet™ program, but must also identify itself as the
independent licensee of the Dr. TED Diet™ program in the manner prescribed by
Licensor. All Marks must be
displayed in the manner prescribed or authorized by Licensor. Licensee may not use without prior
written authorization from Licensor the Marks, or any words or symbols similar
to the Marks, alone or with any prefix, suffix, modifying words, terms, designs,
or symbols:
i.
as part of any entity or business name;
ii.
in conjunction with any documents, contracts, licenses,
permits and other official documents.
Any reference to the Marks in any document must state that Licensee’s use
of the Marks is limited by this Agreement;
iii.
in any form on the Internet, including, but not limited to,
addresses, domain names, links, metatags, locators, and search techniques;
vi.
in connection with the performance or sale of any
unauthorized services or;
v.
in any other manner not expressly authorized by Licensor.
In order to preserve the validity and integrity of the Marks
and Copyrighted Works licensed herein and to assure that Licensee is employing
the same in the operation of its Dr. TED Diet™ program properly, Licensor or its
agents shall have the right to enter and inspect the Premises and operating
procedures at any reasonable times.
Licensor shall have the right to observe the manner in which Licensee is
rendering its services and conducting its operations, to confer with Licensee’s
employees and customers, and to select Products and other items for testing of
content and evaluation purposes to make certain that all such tested items are
satisfactory and meet the quality control provisions and performance standards
established by Licensor.
If Licensor decides to modify or discontinue use of any
Mark, and/or use any additional or substitute trade names, trademarks, service
marks or other commercial symbols, Licensee shall comply with Licensor’s
directions within a reasonable time after notice to Licensee by Licensor. Licensor shall have no liability or
obligation whatsoever with respect to Licensee’s modification or discontinuance
of any Mark.
Any unauthorized use of the Marks by Licensee constitutes a
breach of this Agreement and an infringement of the rights of Licensor and in
and to the Marks.
Licensee shall notify Licensor within (five) 5 days of any
claim, demand, or cause of action based upon or arising from any attempt by any
other person, firm or corporation to use the Marks or any colorable imitation
thereof. Licensee shall also notify
Licensor of any action, claim or demand against Licensee relating to the Marks
within 5 days after Licensee receives notice of said action, claim, or demand. Upon receipt of timely notice of an
action, claim or demand against Licensee relating to the Marks, Licensor shall
have the sole right, but not the duty, to defend any such action. Licensor shall have the exclusive
right to contest or bring action against any third party regarding the third
party’s use of any of the Marks and shall exercise such right in the sole
discretion of Licensor. Licensor
shall control all actions but not be obligated to take any action. In any defense or prosecution of any
litigation relating to the Marks or components of the Dr. TED Diet™ program
undertaken by Licensor, Licensee shall cooperate with Licensor, execute any and
all documents, and take all actions as may be desirable or necessary in the
opinion of Licensor’s counsel, to carry out such defense or prosecution. At Licensor’s option, Licensee will
join in any action, in which case Licensor shall bear all the out-of-pocket
costs of Licensee for such participation.
If Licensee joins in an action, then the recovery, if any, from such
legal action shall be first applied to the total expenses associated therewith
and then split equally between Licensor and Licensee. Both parties shall make every effort
consistent with the foregoing to protect, maintain, and promote the Marks as
identifying the Dr. TED Diet™ program and only the Dr. TED Diet™ program.
All provisions of this Agreement applicable to the Marks
apply to any and all additional trademarks, service marks and commercial symbols
Licensor authorizes or licenses to Licensee to use after the date of this
Agreement.
Licensor retains the sole right to use the Marks and market on the Internet, including all use of websites, domain names; URL’s, linking, advertising, and co-branding arrangements. Licensee may advertise their participation in the Dr. TED Diet program, as an independent Dr. TED Diet Licensee. They may link to the National Dr. TED Diet website but all Internet advertising must be reviewed and approved by Licensor. Licensor retains the right to approve any link to or other use of its website.
LICENSOR MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE USE,
EXCLUSIVE OWNERSHIP, VALIDITY OR ENFORCEABILITY OF THE MARKS.
USE OF COPYWRITED
MATERIALS:
Licensee agrees that all material, including but not limited
to, all artwork and designs, created by Licensee or any other person or entity
retained or employed by Licensee, and used with the Marks (“Copyrighted Materials”) are works made for hire within the meaning of the United
States Copyright Act and are the property of Licensor, who shall be entitled to
use and license others to use the Copyrighted Materials subject to the
provisions of this Agreement unencumbered by moral rights. To the extent the Copyrighted
Materials are not works made for hire or rights in the Copyrighted Materials do
not automatically accrue to Licensor, Licensee irrevocably assigns and agrees to
assign to Licensor, its successors and assigns, the entire right, title, and
interest in perpetuity throughout the world in and to any and all rights,
including all copyrights and related rights, in such Copyrighted Materials,
which Licensee and the author of such Copyrighted Materials warrant and
represent as being created by and wholly original with the author. Where applicable, Licensee agrees to
obtain any other assignments of rights in the Copyrighted Materials from the
author or third parties to copyright owner, its successors, and assigns that may
be acquired.
Licensee will make no use of the Copyrighted Materials
without the prior approval of Licensor, this Agreement itself not constituting
such approval. To maintain and
enhance the rights in the Copyrighted Materials, Licensee agrees to safeguard
and maintain the value of the Copyrighted Works and will not do anything that
would adversely impact the value of the Copyrighted Works. Licensee will never attempt to
dilute, directly or indirectly, the value attached to the Copyrighted Works, nor
to counsel, procure, or assist anyone else to do the same.
If, in Licensor’s reasonable determination, the use of a
Copyrighted Work in connection with any Products or services will infringe or
potentially infringe upon the rights of any third party or weakens or impairs
Licensor’s rights in the Copyrighted Works, then upon notice from Licensor,
Licensee will immediately terminate or modify such use in accordance with
Licensor’s instructions, and Licensee will have no rights of damages, offset, or
right to terminate this Agreement as a result thereof.
Licensor
may decide, in its sole and absolute discretion, to apply to
register or to register any Copyrighted Works with respect to the Products or
any other Products or services.
Failure of Licensor
to obtain or maintain in effect any such application or
registration is not a breach of this Agreement.
Licensee will not, before or after termination or expiration of the
Agreement, register or apply to register any of the Copyrighted Works, or any
Copyrighted Work or logo substantially similar thereto, anywhere in the world.
MANUAL AND CONFIDENTIAL INFORMATION:
The Dr. TED Diet™ program and other exclusive programs
offered by AestheticDRs, Licensee Manuals, and Confidential Information are
proprietary, involve trade secrets of Licensor, and are disclosed to Licensee
solely on the express condition that Licensee agrees, and Licensee does hereby
agree: (i)
to adhere to all security procedures prescribed by Licensor for maintaining the
proprietary information as confidential; (ii) to disclose such information to
its employees only to the extent necessary to market services and for the operation of the
Dr. TED Diet™ program and other exclusive programs offered by AestheticDRs in
accordance with this Agreement; (iii) not to use any such information in any
other business or in any manner not specifically authorized or approved in
writing by Licensor; and (iv) to exercise the highest degree of diligence and
make every effort to maintain the absolute confidentiality of all such
information during and after the term of this Agreement, and follow Licensor’s
security procedures, which include the execution of approved nondisclosure
agreements, and intranet, extranet and Internet usage agreements when developed
by Licensor, by Licensee and any employee or agent who is allowed access.
Licensor will loan to Licensee during the term of the
License one or more copy(s of Licensor’s confidential operating Licensee
Manuals, which may be in print, on CD-ROM or DVD; on an access code-protected
company intranet or extranet, or through other media. The Licensee Manuals will at all
times remain the property of Licensor, and Licensee must immediately return the
Licensee Manuals to Licensor upon expiration, termination, or Transfer of this
Agreement. Licensor may periodically
update and revise the Licensee Manuals.
Licensee acknowledges that its entire knowledge of the operation of the
Dr. TED Diet™ program
and other
exclusive programs offered by AestheticDRs are and shall be derived from information disclosed to Licensee by Licensor and
that such information is proprietary Confidential Information and a Trade Secret
of Licensor. Licensee shall maintain
the absolute confidentiality of all such information during and after the term
of this Agreement, and shall not use any such information in any other business
or in any manner not specifically authorized or approved in writing by Licensor. Licensee is bound by the standards
for maintaining the privacy of the Licensee Manuals in the same manner as all
other Confidential Information set forth above.
Licensor acknowledges
and agrees that, except as otherwise provided by applicable law, Licensee owns
all Business Records with respect to patients and customers, and all other
Business Records created and maintained by Licensee.
Licensee shall maintain all patient records in a proper
manner compliant with HIPAA, State and Federal laws and hold AestheticDRs and
its sister companies harmless from any acts, errors or omissions creating a
civil or criminal liability situation due to Licensee’s negligence.
DEFAULT AND TERMINATION:
Licensee
may terminate this Agreement and the License to use the Dr.
TED Diet program at any time by providing Licensor at least 30 days prior
written notice. Any termination by
Licensee shall not entitle Licensee to a refund of any portion of the monthly
Fees whatsoever.
Licensor shall have the right to terminate this Agreement (subject
to any state laws to the contrary, where state law shall prevail), effective
upon 30 days written notice to Licensee, if:
i.
Licensee intentionally or negligently discloses to any unauthorized person the
contents of or any part of Licensor’s Licensee Manuals or any other Trade
Secrets or Confidential Information;
ii.
Licensee has failed to complete the training program to the
satisfaction of the Licensor;
iii.
Licensee becomes insolvent or is adjudicated a bankrupt; or
any action is taken by Licensee, or by others against Licensee under any
insolvency, bankruptcy or reorganization act, or if Licensee makes an assignment
for the benefit of creditors, or a receiver is appointed for Licensee;
vi.
Any material judgment (or several judgments which in the
aggregate are material) is obtained against Licensee and remains unsatisfied or
of record for 30 days or longer (unless a supersedes or other appeal bond has
been filed); or if execution is levied against Licensee’s business or any of the
property used in the operation of the Dr. TED Diet™ program and is not discharged
within 5 days; or if the real or personal property of Licensee’s business shall
be sold after levy thereupon by any sheriff, marshal or constable;
v.
Licensee or any owner of greater than 20% of Licensee entity
or operator is charged or convicted of a felony, a crime involving moral
turpitude, or any crime or offense that is reasonably likely, in the sole
opinion of Licensor, to materially and unfavorably affect Licensor, Dr. TED Diet™
program, Marks, goodwill or reputation thereof;
vi.
Licensee fails to pay any amounts due Licensor or affiliates
within 10 days after receiving notice that such amounts are overdue;
vii.
Licensee misuses or fails to follow Licensor’s directions
and guidelines concerning use of the Marks and fails to correct the misuse or
failure within 10 days after notification from Licensor;
viii.
Licensee sells, transfers or otherwise assigns the License,
an interest in the License or Licensee entity, this Agreement, the rights to use
the Dr. TED Diet™ program or a substantial portion of the assets used in the Dr.
TED Diet program owned by Licensee without complying with the provisions of
Section 14;
ix.
Licensee sells or offers for sale any unauthorized
merchandise, Product or service in conjunction with the Dr. TED Diet™;
x.
Licensee loses possession or the right of possession of all
or a significant part of the Premises through condemnation, casualty, lease
termination, mortgage foreclosure or otherwise and the premises for the use of
the Dr. TED Diet™ program is not relocated and reopened in new Premises within 30
days;
xi.
Licensee contests in any court or proceeding the validity
of, or Licensor’s ownership of the Marks;
xii.
Licensee is a corporation or other business entity and any
action is taken which purports to merge, consolidate, dissolve or liquidate such
entity without Licensor’s prior written consent; or
xiii.
Licensee receives from Licensor during the Term, 2 notices
of default with respect to Licensee’s obligations hereunder from Licensor within
a 12 month period, or 3 or more notices of default regardless whether such
notices of default relate to the same or different defaults, or whether such
defaults have been remedied by Licensee.
Upon termination of
this licensing agreement Licensee further agrees to immediately cease and will
no longer promote or utilize in any manner any diet similar to the Dr. TED Diet™
and its protocols and will not be involved in any entity or enterprises that
utilize the protocols and principles of the Dr. TED Diet™ program as outlined
above.
The 30 day termination right is held by the Licensors to protect the integrity of the Licensing program and its value to all Licensees in this agreement. The list of reasons that constitute “cause” for termination are included in this agreement and the Licensor is not anxious to terminate any Licensee that is actively practicing the Dr. TED Diet program in good faith, but the 30 day termination right must be reserved for those that don’t.
Effect of Termination
or Expirationspan>:
Upon the effective date of any termination or expiration of
this Agreement, all obligations that by their terms or by reasonable implication
survive termination, including those pertaining to non-competition,
confidentiality, and indemnity, will remain in effect, and Licensee must:
i.
promptly pay all amounts owed to Licensor based on the
operation of the Dr. TED Diet™ program through the effective date of termination
or expiration;
ii.
return to Licensor all copies of the Licensee Manuals,
customer lists, records, files, instructions, brochures, advertising materials,
agreements, Confidential Information and any and all other materials provided by
Licensor to Licensee or created by a third party for Licensee relating to the
operation of the Dr. TED Diet™ program, and all items containing any Marks,
Copyrights, Confidential Information, Trade Secrets and other proprietary items;
iii.
within 5 days cancel or assign all registrations relating to
Licensor’s use of any of the Marks;
vi.
cease doing business under any of the Marks, cancel any
assumed name registration that includes any of the Marks, assign all domain
names and Internet directory listings that contain the Marks to Licensor, and
refrain from identifying itself as an AestheticDRs Licensee;
If, within 30 days after termination or expiration of this
Agreement by Licensor, Licensee fails to remove all displays of the Marks from
the Premises which are identified or associated with the Dr. TED Diet™ program,
Licensor may enter the Premises to effect removal. In this event, Licensor will not be
charged with trespass nor be accountable or required to pay for any displays or
materials. If, within 30 days after
termination or expiration Licensee has not taken all steps necessary to amend or
terminate any registration or filing of any fictitious name or any other
registration or filing containing the Marks, Licensee hereby irrevocably
appoints Licensor as Licensee’s true and lawful attorney for Licensee, for the
purpose of amending or terminating all registrations and filings, this
appointment being coupled with an interest to enable Licensor to protect the Dr.
TED Diet program.
Termination or expiration of this Agreement will not affect,
modify or discharge any claims, rights, causes of action or remedies, which
Licensor may have against Licensee, whether such claims or rights arise before
or after termination.
TRANSFER:
Licensor’s
obligations under this Agreement are not personal, and
Licensor has the right to unconditionally assign and transfer this Agreement to
another person or business entity at any time.
Licensor does not need permission of Licensee for the transfer or
assignment, and may transfer or assign free of any responsibility or liability
whatsoever to Licensee. Licensor may
also sell or issue its stock, other ownership interests, or
assets, whether privately or publicly; merge with, acquire, or be acquired by
another entity, including an entity that competes directly with Licensee; or
undertake a refinancing, recapitalization, leveraged buyout, or other economic
or financial restructuring.
Licensee’s obligations under this Agreement are personal and may not
be voluntarily or involuntarily sold, pledged, assigned, transferred, shared,
subdivided, sublicensed, encumbered or transferred in any way without the prior
express written approval of Licensor.
No Transfer of this Agreement or the right to use the Dr.
TED Diet program will be approved by Licensor or be effective unless and until
all of the following are satisfied:
i.
Licensee is not in default in the performance or observance
of any of its obligations under this Agreement or any other agreement with
Licensor at the time Licensee requests permission to transfer the Dr. TED Diet™
program or at the time of the transfer;
ii.
Licensee, and every principal of Licensee’s entity, have
executed a general release of Licensor, and all principals and Affiliates of
Licensor, from all claims that may be brought by Licensee or any principal;
iii.
the proposed transferee pays Licensor a transfer fee of
$500.00 to cover administrative, legal and other costs that may be associated
with the transfer;
vi.
the proposed transferee executes a Licensor’s then current
form of license agreement;
v.
Within 30 days before or after the intended transfer date,
the proposed transferee pays for, attends, and satisfactorily completes the
training program for new Licensees, unless the transferee is a current Licensee
in good standing in the Dr. TED Diet™ program, or the transferee has attended the
training program for new Licensees within
one year prior to the transfer date;
vi.The individual proposed transferee, or the stockholders,
partners, members, or trustees and beneficiaries of a proposed entity
transferee, each execute a personal guarantee of the transferee’s License
agreement, jointly and severally guaranteeing the performance of the proposed
transferee’s obligations;
vii.The proposed transferee demonstrates to Licensor’s
satisfaction that it, in all respects, meets Licensor’s standards applicable to
new Licensees regarding experience, personal and financial reputation and
stability, and any other conditions as Licensor may reasonably apply in
evaluating new Licensees. Licensor
must be provided all information about the proposed transferee as it may
reasonably require. Because of the
confidential information available to a Licensee, assignment to a competitor of
the Dr. TED Diet™ program may not be permitted and is up to the sole decision of
Licensor;
viii.Notwithstanding the preceding section, Licensee may Transfer
its rights and obligations under this Agreement without Licensor’s consent, to
an entity in which Licensee owns 100% of the outstanding stock, provided: (i) Licensee
remains a party to the Agreement and the entity is added as a co-party; (ii) the
entity’s activities are confined exclusively to operating the Dr. TED Diet™
program; and (iii) the entity assumes joint and several liability with Licensee
of all obligations under the License Agreement.
ix.
Upon the death of an individual Licensee or the death of the
sole owner of a Licensee that is an entity, the rights granted by this Agreement
shall terminate.
Licensor will have the right of approval of any proposed
transfers as outlined above, by estate of Licensee.
RESTRICTIVE COVENANTS
Confidential
Information: Licensee
acknowledges that its knowledge of the operation of the Dr. TED Diet™ program is
derived from Licensor’s Confidential Information.
Such Confidential Information is proprietary and constitutes valuable
trade secrets of Licensor. Licensee
acknowledges that the Marks and Dr. TED Diet™ program have valuable goodwill
attached to them, that the protection and maintenance thereof is essential to
Licensor; and, that any unauthorized use or disclosure of the Marks, the Dr. TED
Diet program or the Confidential Information will result in irreparable harm to
Licensor.
Licensee acknowledges that the Confidential Information is a
valuable asset of Licensor’s, includes Trade Secrets of Licensor and is
disclosed to Licensee on the condition that Licensee and Licensees’ owners and
employees who have access to the Confidential Information agree that during and
after the Term, they: (1) will not
use the Confidential Information in any other business or capacity; (2) will
maintain the absolute confidentiality of the Confidential Information;
and, (3) will adopt and implement all
reasonable procedures Licensor periodically requires to prevent unauthorized use
or disclosure of the Confidential Information including requiring employees and
owners who have access to the Confidential Information to execute nondisclosure
and non-competition agreements as Licensor may require periodically, and provide
Licensor, at Licensor’s request, with signed copies of each of those agreements.
The restrictions on the disclosure and use of the
Confidential Information will not apply to the following: (a) information and knowledge which
are or become generally known within the Exclusive Territory, other than through
disclosure Licensee makes (whether deliberate or inadvertent); and, (b) the
disclosure of the Confidential Information in judicial or administrative
proceedings to the extent that Licensee is legally compelled to disclose the
information, if Licensee has notified Licensor before disclosure and afforded
Licensor the opportunity to obtain an appropriate protective order or other
assurance satisfactory to Licensor of confidential treatment for the
Confidential Information required to be disclosed.
Injunctive Relief for
Breach: Licensee
acknowledges that, it will have access to Licensor’s Trade Secrets and
Confidential Information and therefore be in a unique position to use the
special knowledge gained as a Licensee.
Licensee acknowledges that a breach of the covenants contained in this
Section will be deemed to threaten immediate and substantial irreparable injury
to Licensor. Accordingly, Licensee
agrees that Licensor will have the right, without prior notice to Licensee and
without a bond, to obtain immediate injunctive relief without limiting any other
rights or remedies.
Application: In the event
that Licensee is not an individual, this Section will also apply to the
officers, directors, stockholders, partners, members, trustees, beneficiaries
and/or principals of Licensee, Licensee, and any persons controlled by,
controlling or under common control with Licensee.
DISPUTE RESOLUTION:
i.
Negotiation. The parties
will attempt to resolve any dispute relating to or arising out of this Agreement
by negotiation. Licensor will
provide a procedure for internal dispute resolution as set forth in the Licensee
Manuals, and this procedure may be revised periodically by Licensor’s:
ii.
Survival. This dispute
resolution clause shall survive the termination or expiration of this Agreement.
iii.
Governing Law/Consent
to Venue and Jurisdiction. Except to the
extent governed by the United States Trademark Act of 1946 (Lanham Act, 15
U.S.C. Sections 1051
et seq.) or other federal law, this Agreement shall be interpreted
under the laws of the state of Arizona and any dispute between the parties shall
be governed by and determined in accordance with the substantive laws of the
state of Arizona, which laws shall prevail in the event of any conflict of law. Licensee and Licensor have negotiated
regarding a forum in which to resolve any disputes which may arise between them
and have agreed to select a forum in order to promote stability in their
relationship. Therefore, if a claim
is asserted in any legal proceeding involving Licensee, its officers, directors,
managers or partners (collectively, “Licensee Affiliates”) and Licensor, its parent, subsidiaries or affiliates and
their respective officers, directors and sales employees (collectively, “Licensor
Affiliates”) the parties agree that the exclusive venue for disputes
between them shall be in the state and federal courts of Arizona and each party
waives any objection they may have to the personal jurisdiction of or venue in
the state and federal courts of Arizona.
Licensor, Licensor Affiliates, Licensee and Licensee Affiliates each
waive their rights to a trial by jury.
vi.
Attorneys’ Fees. In any dispute
between the parties to this Agreement, including any dispute involving an
officer, director, employee or managing agent of a party to this Agreement, in
addition to all other remedies, the non-prevailing party will pay the prevailing
party all amounts due and all damages, costs and expenses, including reasonable
attorneys’ fees, incurred by the prevailing party in any legal action or other
proceeding as a result of such dispute, plus interest at the lesser of 2% per
month or the highest rate allowable by law, accruing from the first date such
dispute was submitted to any dispute resolution process including mediation,
arbitration or litigation.
v.
Limitations on Actions. Except for
payments owed by one party to the other, and unless prohibited by applicable
law, any legal action or arbitration proceeding brought or instituted with
respect to any dispute arising from or related to this Agreement or with respect
to any breach of the terms of this Agreement must be brought or instituted
within a period of two (2) years from the date of discovery of the conduct or
event that forms the basis of the legal action or proceeding.
RELATIONSHIP OF THE PARTIES:
i.
Independent Contractor. Licensee is an
independent contractor and is not an agent, partner, joint venture, or
beneficiary of Licensor, nor is Licensor a fiduciary of Licensee. Neither party will be bound or
obligated by the other, except as set forth in this Agreement. Licensee may not act as an agent in
Licensor’s name or on behalf of Licensor for any purpose whatsoever.
ii.
Operations and
Identification. Licensee must
identify itself in its dealings with the public and business entities as
“independently owned and operated” and separate from Licensor. Licensee’s employees are employees of
Licensee alone and are not, for any purpose, considered employees under the
control of Licensor. Licensor and
Licensee must file separate tax, regulatory, and payroll reports for each
party’s own operations, and must indemnify the other for any liability arising
from the other’s reports.
MISCELLANEOUS:
Entire Agreement: This
Agreement, together with all written related agreements, exhibits and
attachments, constitutes the entire understanding of the parties and supersedes
all prior negotiations, commitments, and representations.
Modification: No
modifications of the terms of this Agreement shall be valid unless made in
writing and executed by both Licensor and Licensee. However, the Licensee Manuals may be
periodically modified by Licensor and shall be enforceable against Licensee.
Waiver:
Licensor’s waiver of any particular right by Licensee will
not affect or impair Licensor’s rights as to any subsequent exercise of that
right of the same or a different kind; and any delay, forbearance or omission by
Licensor to execute will not affect or impair Licensor’s rights as to any future
exercise of those rights.
Severability: If any part of
this Agreement is declared invalid by an arbitrator or court for any reason, the
declaration will not affect the validity of any remaining portion. The remaining portion will remain in
force and effect as if this Agreement were executed with the invalid portion
eliminated or curtailed. All
partially valid and enforceable provisions shall be enforced to the extent that
they are valid and enforceable.
Conflict with Local
Law: If any
provision of this Agreement is inconsistent with a valid applicable law, the
provision will be deemed amended to conform to the minimum standards required to
comply. The parties may execute an
Addendum setting forth certain of these amendments applicable in certain
jurisdictions, which will apply only so long as and to the extent that then
applicable laws referred to in the addendum remain validly in effect.
Section Headings: Titles of articles and sections are used for convenience
of reference only and are not part of the text, nor are they to be construed as
limiting or affecting the construction of the provisions.
Continuation of
Agreement: The provisions
of this Agreement, which by their terms or by reasonable implication require
performance by Licensee after assignment, expiration or termination, remain
enforceable notwithstanding the assignment, expiration or termination of this
Agreement, including those pertaining to non-competition, intellectual property
protection, confidentiality and indemnity.
This Agreement inures to the benefit of and is binding on the respective
heirs, legal representatives, successors, and permitted assigns of the parties.
Notices.
Any and all notices required or permitted under this Agreement shall be in
writing and shall be personally delivered or sent by expedited delivery service
or certified or registered mail, return receipt requested, first-class postage
prepaid, or sent by prepaid facsimile, telegram or telex (provided that the
sender confirms the facsimile, telegram or telex by sending an original
confirmation copy by certified or registered mail or expedited delivery service
within three (3) business days after transmission) to the respective parties at
the addresses set forth following each party's signature, unless and until a
different address has been designated by written notice to the other party. Any notice shall be deemed to have
been given at the time of personal delivery or, in the case of facsimile,
telegram or telex, upon transmission (provided confirmation is sent as described
above) or, in the case of expedited delivery service or registered or certified
mail, three (3) business days after the date and time of mailing. Business days for the purpose of this
Agreement excludes Saturdays, Sundays and national holidays on which federally
chartered banks are authorized to close.
Joint and Several
Liability. If two or more
persons or entities or any combination sign this Agreement, each will have joint
and several liability. All owners
and controllers of an entity or association which comprise Licensee are jointly
and severally liable for the obligations of Licensee under this Agreement.
Cumulative Remedies. Rights and
remedies under this Agreement are cumulative.
No enforcement of a right or remedy precludes the enforcement of any
other right or remedy.
Set Off. Licensee may
not set off any amounts owed to Licensor under this Agreement nor may Licensee
withhold any amounts owed to Licensor due to any alleged non-performance by
Licensor under this Agreement.
Licensee waives any right to set off.
Completion of
Agreement. The parties
agree to acknowledge, execute and deliver all further documents, instruments or
assurances and to perform all further acts or deeds as may be reasonably
required to carry out this Agreement.
ACKNOWLEDGEMENT.
BY INDICATING ON THE INTERNET APPLICATION FOR THIS AGREEMENT
VIA THE AGREEMENT TO TERMS AND CONDITIONS CONTAINED HEREIN, LICENSEE
ACKNOWLEDGES THAT:
viii.
LICENSEE IS NOT A PARTY TO OR SUBJECT TO AGREEMENTS THAT
MIGHT CONFLICT WITH THE TERMS OF THIS AGREEMENT AND AGREES NOT TO ENTER INTO ANY
CONFLICTING AGREEMENTS DURING THE INITIAL TERM, INTERIM PERIOD, OR ANY SUCCESSOR
TERMS.
GRANT OF
LICENSE:
Grant of License. Subject to the
terms and conditions of this Agreement, Licensor will mail approval for license
to Applicant and in doing so grants to Licensee a license to use the Dr. TED
Diet program at the Premises in the Exclusive Territory designated in
the application to this Agreement for the term of this Agreement.