LICENSE AGREEMENT FOR “OUTREACH MADE EASY: A TOOLKIT FOR COMMUNICATING YOUR DISTRICT’S REOPENING PLANS”
PLEASE CAREFULLY READ THIS LICENSE AGREEMENT (“AGREEMENT”) BEFORE PURCHASING “OUTREACH MADE EASY: A TOOLKIT FOR COMMUNICATING YOUR DISTRICT’S REOPENING PLANS” (THE “SCHOOL REOPENING TOOLKIT”). BY PURCHASING THE SCHOOL REOPENING TOOLKIT, EITHER AS A STANDALONE PRODUCT OR WITH THE COACHING PACKAGE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE THAT (i) YOUR ACCESS TO AND USE OF THE MATERIALS IN THE SCHOOL REOPENING TOOLKIT IS SUBJECT TO THE TERMS AND CONDITIONS CONTAINED HEREIN; (ii) YOU ARE OF LEGAL AGE IN YOUR JURISDICTION TO ENTER INTO A BINDING AGREEMENT; (iii) IF YOU ARE ACCESSING, DOWNLOADING OR USING THE MATERIALS IN THE SCHOOL REOPENING TOOLKIT ON BEHALF OF YOUR EMPLOYER OR ANOTHER PARTY, YOU HAVE OBTAINED ANY NECESSARY APPROVALS; (iv) IF YOU ARE ACCESSING, DOWNLOADING OR USING THE MATERIALS IN THE SCHOOL REOPENING TOOLKIT ON BEHALF OF YOUR EMPLOYER OR ANOTHER PARTY, YOU AGREE TO THIS AGREEMENT ON BEHALF OF SUCH PARTY AND YOURSELF, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ACCEPT THIS AGREEMENT ON BEHALF OF SUCH PARTY, AND TO CAUSE SUCH PARTY TO BE FULLY BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT; AND (v) IF YOU HAVE PURCHASED THE COACHING PACKAGE, PRIOR TO PERFORMING THE COACHING PACKAGE, FORTHRIGHT ADVISING LLC DOES NOT NEED TO OBTAIN ANY ADDITIONAL INSURANCE, PERMITS OR PERMISSIONS TO COMPLY WITH ANY APPLICABLE LAWS, RULES OR REGULATIONS. IF YOU DO NOT AGREE TO THE FOREGOING OR ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT ACCESS, USE OR DOWNLOAD ANY SCHOOL REOPENING TOOLKIT MATERIALS ON BEHALF OF YOURSELF OR ANY OTHER PARTY.
1. Definitions.
The following terms shall have the following definitions for the purposes of this Agreement:
A. “Forthright” means Forthright Advising LLC, a North Carolina limited liability company.
B. “Toolkit Materials” means the materials that are included in the School Reopening Toolkit.
C. “Licensee” or “You” means you and any employer or other party on behalf of which you purchase, access, download or use the Toolkit Materials.
D. “Purpose” means school reopening plan outreach-related activities.
E. “Territory” means the geographic area(s) in which the families served by you, your employer or other party on behalf of which you purchase, access, download or use the Toolkit Materials live.
F. “Effective Date” means the date you receive the file containing the Toolkit Materials.
2. Grant of Rights.
A. Subject to the terms and conditions contained in this Agreement, Forthright hereby grants Licensee a limited, non-exclusive, non-transferable, non-sublicensable and royalty-free right and license, during the Term, to use, reproduce, publish, broadcast, distribute, disseminate, publicly display, and otherwise exploit the Toolkit Materials, and to modify, alter, edit, and create derivative works of the Toolkit Materials that are designated as being editable and available in Word format (“Licensee Derivative Works,” included in the definition of Toolkit Materials), in all media, whether now known or later developed, solely in the Territory and in connection with the Purpose. Notwithstanding anything to the contrary contained in this Agreement, Licensee may not use, reproduce, publish, broadcast, distribute, disseminate, publicly display, or otherwise exploit any Toolkit Materials with the intent of earning a profit or for commercial purposes.
B. Licensee hereby irrevocably assigns to Forthright, without additional consideration, all right, title and interest in and to the Licensee Derivative Works and any intellectual property or proprietary rights in any of the foregoing, and any goodwill associated therewith, in all media, whether now known or later developed, throughout the world, in perpetuity, subject to a license back to Licensee to use the Licensee Derivative Works in the same manner as the license to use the Toolkit Materials as provided in Section 2.A. above. All uses and rights in the Licensee Derivative Materials and any goodwill associated therewith shall inure to the exclusive benefit of Forthright and Forthright may register and protect the same as its own.
3. Licensee Obligations.
A. Licensee shall use the Toolkit Materials in compliance with the Purpose and the standards and directions concerning usage described in this Agreement and that Forthright may provide to Licensee from time to time. Forthright reserves the right to direct Licensee to conform to such further standards and directions in Forthright’s sole discretion. Licensee will comply with all laws, rules, regulations and requirements of any state, federal or local governmental or administrative body which apply to Licensee and its purchase and use of the Toolkit Materials (“Applicable Laws”), including without limitation those pertaining to preaudit processes and to notice and marking requirements with respect to use of the Toolkit Materials in the Territory.
B. In the event that any of the Toolkit Materials are or may become subject to a claim of infringement or other third-party objection, Forthright may require that Licensee cease use of such Toolkit Materials, and Licensee promptly shall cease use of all such Toolkit Materials.
C. Licensee shall not, and shall cause any third party within its control not to, use the Toolkit Materials or the Licensee Derivative Works in a manner that distorts, frustrates or is contrary to the purpose, intention or policy of Forthright or of the Toolkit Materials, as determined by Forthright.
D. Upon Forthright’s request, during and after the term of this Agreement, Licensee shall, without further consideration, provide Forthright with any documents, materials, consents or signatures as requested by Forthright in connection with Forthright pursuing registration, protection or enforcement of Forthright’s rights in any Toolkit Materials. Forthright shall have no duty to Licensee to protect or preserve its rights in the Toolkit Materials.
4. Ownership of and Rights in the Toolkit Materials.
A. Licensee acknowledges that, as between Forthright and Licensee, Forthright is the owner of all right, title and interest in and to the Toolkit Materials, and of the goodwill associated therewith. Licensee acquires no right, title, interest or claim of ownership in or to the Toolkit Materials, apart from the specific license granted here. Licensee will not contest Forthright’s ownership or the validity of the Toolkit Materials at any time nor use the Toolkit Materials in any manner other than as specifically authorized herein. All rights in the Toolkit Materials not granted to Licensee pursuant to this Agreement are expressly reserved to Forthright and may be used by Forthright without limitation or restriction.
B. Licensee shall not, and shall cause any third party within its control not to: (i) take any steps that may impair the rights of Forthright in or to the Toolkit Materials; or (ii) register or apply for registration in any jurisdiction, of any Toolkit Materials or any intellectual property which includes or incorporates any Toolkit Materials, any other mark or intellectual property owned by Forthright, or any other mark, name, term, slogan, tagline, logo, design, configuration or other designation that is a variation, derivative, modification or confusingly similar to the foregoing.
C. Licensee shall not take any action against any third party making or threatening to make unauthorized use of any Toolkit Materials or otherwise infringing upon the Toolkit Materials without the prior written consent of Forthright. Forthright may file and control any action for infringement by any third party regarding any Toolkit Materials and shall have complete control over all aspects of any such action. The proceeds resulting from such action, if any, shall be retained solely by Forthright.
5. Representations and Warranties.
A. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, FORTHRIGHT MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE TOOLKIT MATERIALS, AND EXPRESSLY DISCLAIMS ALL SUCH REPRESENTATIONS AND WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SOLE AND EXCLUSIVE RIGHTS OR VALIDITY OF ANY REGISTRATION THEREFOR.
B. Licensee represents, warrants and covenants to Forthright that:
i. Licensee has the authority to enter into this Agreement and to perform its obligations hereunder, and Licensee’s entry into this Agreement and performance of its obligations hereunder is not in violation of any Applicable Laws or of any agreement or other instrument to which it is a party or by which it may be bound.
ii. Licensee’s use of the Toolkit Materials shall comply with the terms and conditions of this Agreement and all Applicable Laws, and shall not reflect adversely upon the reputation, image or goodwill of Forthright.
iii. Other than any portion(s) of the Licensee Derivative Materials for which Licensee provides notice to Forthright, all materials that are created, developed and/or reduced to practice by or on behalf of Licensee that make use of any Toolkit Materials, including, without limitation, any Licensee Derivative Materials: (a) are either Licensee’s sole, exclusive and original work or works for which Licensee has previously been granted the necessary assignment, licenses, consents, waivers and rights for use in connection with Licensee’s activities in the manner so used and do not contain any restriction or encumbrance that would prevent Forthright from exercising the benefit of the assignment granted to it by Licensee; and (b) do not infringe, violate or misappropriate the trademark, copyright, patent or other intellectual property or proprietary rights of any person or entity, or violate any Applicable Law.
6. Term and Termination.
The term of this Agreement shall begin on the Effective Date and shall continue until terminated by either party (“Term”) pursuant to this Section. Either party shall have the right to terminate this Agreement in the event that the other party breaches any of its material obligations under this Agreement and fails to cure said breach within thirty (30) days after the non-breaching party provides the breaching party with written notice. Forthright shall have the right to terminate this Agreement without cause.
7. Effect of Termination.
Upon termination or expiration of this Agreement, all rights granted to Licensee hereunder shall automatically terminate and revert to Forthright, and Licensee shall immediately cease and discontinue all use of the Toolkit Materials and any content or intellectual property or proprietary rights confusingly similar thereto, and shall destroy all materials incorporating or bearing the same.
8. Miscellaneous.
A. Construction. The parties agree that they have had the opportunity to read this Agreement and obtain the advice of legal counsel, and further agree that the provisions set forth herein are fair and reasonable. The headings in this Agreement are for convenience only and do not constitute terms of this Agreement.
B. Assignment. This Agreement and all its rights and duties hereunder are personal to Licensee and, without the prior written consent of Forthright, shall not be transferred, assigned, leased, sublicensed or otherwise encumbered by Licensee or by operation of law. Forthright may assign its rights and duties hereunder.
C. Notices. Any and all notices, demands, requests, approvals and other communications from Licensee to Forthright under this Agreement (i) shall be in writing and sent by email to the following email address: help@forthrightadvising.com and (ii) shall designate an email or postal address for Forthright’s notices to Licensee.
D. Governing Law. This Agreement shall be governed by the laws of the State of North Carolina, U.S.A., without regard to conflict of law principles. Each party irrevocably submits to the exclusive jurisdiction of the federal and state courts located in Wake County, North Carolina, U.S.A., and unconditionally waives any objection to the venue in such courts. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees.
E. Nature of Relationship. The parties are independent contractors and nothing herein shall be construed so as to make a party a partner, employee, joint venturer, agent or representative of the other party for any purpose whatsoever.
F. No Third-Party Beneficiaries. This Agreement is made solely for the benefit of the parties and their respective heirs, executors, personal representatives, successors and assigns. Nothing contained in this Agreement will confer any rights upon, nor will this Agreement be construed to create any rights in, any other person.
G. Equitable/Injunctive Relief. Licensee agrees that a breach or threatened breach by Licensee of its obligations under this Agreement may cause Forthright irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of breach or threatened breach by Licensee, Forthright will be entitled to seek injunctive or other equitable relief without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise. In no event shall Licensee be entitled to interfere with, restrain, enjoin, or otherwise impair use of the Licensee Derivative Materials. Licensee’s sole remedy in any or all claims relating to this Agreement shall be an action at law for damages, if any.
H. Limitation of Liability. IN NO EVENT WILL FORTHRIGHT BE LIABLE TO LICENSEE OR ANY OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, RELIANCE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF DATA OR PROFITS, OR FOR INABILITY TO USE THE TOOLKIT MATERIALS, EVEN IF FORTHRIGHT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL FORTHRIGHT’S LIABILITY FOR ANY DAMAGES OR LOSS TO YOU OR ANY OTHER PARTY EXCEED THE AMOUNT YOU PAID FOR THE TOOLKIT MATERIALS AND, IF APPLICABLE, COACHING PACKAGE, LESS SERVICE FEES FOR CREDIT CARD PROCESSING.
I. Entire Agreement. This Agreement constitutes the entire understanding and agreement of the parties and supersedes all prior written or oral agreements with respect to the subject matter. This Agreement may not be modified or amended unless in writing signed by the Parties.
J. Severability. If any provision of this Agreement shall be declared invalid or unenforceable by a court of competent jurisdiction or other legally recognized judicial authority, such provisions shall be enforced to the maximum extent possible so as to affect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect.
K. Survival. The provisions of Sections 4, 5, 7, 8 and any other provision that by its nature is intended to survive shall survive the expiration or termination of this Agreement.
TERMS AND CONDITIONS FOR THE COACHING PACKAGE
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. BY PURCHASING THE COACHING PACKAGE, YOU HAVE ACKNOWLEDGED AND ACCEPT THESE TERMS AND CONDITIONS. THESE TERMS AND CONDITIONS ARE SUPPLEMENTARY TO AND INCORPORATE THE LICENSE AGREEMENT FOR “OUTREACH MADE EASY: A TOOLKIT FOR COMMUNICATING YOUR DISTRICT’S REOPENING PLANS” (“AGREEMENT”).
1. Retention of Services.
You hereby retain and engage Forthright, and Forthright hereby accepts such engagement, to provide ten (10) hours of virtual coaching services on a mutually agreed upon schedule between the hours of 8:30 a.m. and 5:30 p.m. Eastern Monday-Friday, excluding holidays (the “Coaching Package”).
2. Scope and Performance of the Coaching Package.
A. Forthright shall provide marketing and communications consulting and training services related to implementing the Toolkit Materials.
B. The Coaching Package specifically excludes communications and marketing services in the nature of rapid response communications, graphic design, video production, printing, web development, and any other services not listed on Forthright’s website. (A list of Forthright’s services can be found here.)
C. Forthright reserves the right to decline to perform requested tasks.
D. Any work product prepared by Forthright shall be produced and delivered on a mutually agreed upon schedule.
E. Forthright shall determine the manner in which and the person by whom the Coaching Package will be carried out, taking into account, as far as is feasible, Your reasonable requests.
F. Forthright shall perform the Coaching Package in a timely fashion consistent with the standard of care and skill ordinarily exercised by members of the same profession currently practicing under similar circumstances.
G. Forthright may replace the person or persons charged with performing the Coaching Package for You.
H. Forthright shall conduct all verbal interactions with You over the telephone or virtually using Google Meet or Google Hangouts.
3. Coaching Package Timeline.
Performance of the Coaching Package must be completed on or before October 2, 2020. If any coaching hours have not been used as of that date, You will forfeit them.
4. Ownership of and Rights in Materials Created During Performance of the Coaching Package.
The parties expressly acknowledge and agree that the materials created during performance of the Coaching Package shall be considered Licensee Derivative Works, as that term is defined in the Agreement, and treated in accordance with the terms of the Agreement.
5. Your Obligations.
A. You shall fill out a survey to be provided by Forthright prior to Forthright commencing performance of the Coaching Package.
B. You shall designate one person as Forthright’s main point of contact.
C. You shall provide all cooperation required for the proper and timely performance of the Coaching Package, including but not limited to making available to Forthright in the specified form and manner all information and documents that Forthright deems necessary to be able to carry out the Coaching Package correctly.
D. You shall duly inform Forthright of any facts and circumstances that may be relevant in connection with the performance of the Coaching Package.
E. You shall guarantee the correctness, completeness and reliability of any information provided to Forthright.
6. Forthright’s Representations and Warranties.
Forthright hereby represents and warrants as follows:
A. Forthright will provide marketing and communications strategies in a competent and workman-like manner in accordance with accepted industry standards for comparable services in Wake County, North Carolina, U.S.A.
B. Forthright has the right to control and direct the means, details, manner and method by which the Coaching Package will be performed.
C. Forthright has the experience and ability to perform the Coaching Package.
D. Forthright has the right to perform the Coaching Package at any place or location and at such times as Forthright shall determine.
E. Forthright cannot guarantee or warrant a particular result for You.
F. OTHER THAN AS STATED HEREIN, FORTHRIGHT MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, WITH RESPECT TO THE COACHING PACKAGE. FORTHRIGHT HEREBY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.