Confidential and Proprietary, All Rights reserved - Copyright Jan 2016, Pound Rockout Workout, LLC
This Pound Venue Agreement ("Agreement"), effective as of the date set forth above, is entered into between Pound Rockout Workout, LLC ("Pound" or "us" or "our") and the above referenced venue ("you") signing this Agreement (each a "Party"). You and Pound each agree and acknowledge:
Authorization. The Pound workout (the "Pound Workout") consists of a fitness class ("Class(es)") combining elements of music and choreography with the use of weighed drumsticks ("Ripstix") to achieve a strenuous fitness experience developed by Pound and taught by a Pound certified instructor ("Authorized Workouts"). Pound hereby authorizes you to offer the Pound Workout and host Classes at the venue listed above ("Venue") for the Term in accordance with the terms and conditions of this Agreement. The foregoing authorization is on a limited, non-exclusive, non-transferable and non-sublicensable basis. Nothing herein or otherwise provided by Pound to you shall operate as a guarantee or implication that you will successfully locate Pound certified instructors to teach Classes, or generate revenue from the activities authorized by this Agreement.
Restrictions. At all times during the Term, you hereby agree to use or permit only Pound authorized certified instructors to teach and lead the Classes. You shall only permit official Pound Ripstix and products ("Authorized Products") to be used during Classes, and no other products shall be offered or used during Classes. Authorized Products held at your facility shall be used exclusively for participation in the Pound Classes and no other use of such products is approved or may be made. You shall only permit Authorized Workouts to be performed and/or taught during Classes, and no other type of workouts may be offered, performed or taught during Classes. Classes must be offered, performed and taught with, during or in connection with Authorized Workouts. Teaching of Classes without Authorized Workouts is hereby expressly prohibited. Each participant in the Classes at your facility shall be required by you to, prior to participation in the Classes, sign a standard waiver, indemnification and release of liability covering (amongst others) Pound, and its members, managers, owners, officers, employees, contractors agents and affiliates as indemnitees. At no time during the Term, shall you offer or permit any other person to offer any competing or substantially similar workouts that combine the use of music and weighted drumsticks, or a similar workout tool. Neither you nor any of your agents or employees shall pass on, any express or implied warranty on behalf of Pound to any third-parties.
Pound Marks. Subject to the terms and conditions of this Agreement, during the Term, Pound grants you and you accept a limited, revocable, non-exclusive, non-transferable, non-assignable, non-delegable, and non-sublicensable license to use the Pound name, trademarks, trade names, service marks or logos set forth on Schedule 1 attached hereto (collectively "Pound Marks") in connection with the marketing, advertising and promotion of the Classes, Pound Workouts and Authorized Products. Any reproduction and use of the Pound Marks must make use of the specific Pound Mark(s) in exactly the format as such mark appears of Schedule 1 attached hereto. Nothing herein in any way shall give you any right, title or interest in or to the Pound Marks (or any portion thereof). Pound Marks may not be used by you unaccompanied by your venue or business name (e.g., the use of the Pound Marks as part of the formal or registered name of a legal entity or doing business as name). You shall not use the Pound Marks in connection with any activity that is illegal or that defames or ridicules Pound, its founders, members, managers, officers, employees, agents, sponsors, licensors, or licensees, or each of their products or services. You acknowledge that there is great value and good will associated with the Pound name and Pound Marks, and that the Pound Marks have a secondary meaning in the mind of the public. You shall use your best efforts to preserve, protect, and enhance the good will and value in the Pound name and Pound Marks.
Fees. Any purchase of Authorized Product shall be FOB Pound's distribution center, and payable in the manner required by Pound (e.g., COD, 50% or 100% upfront, etc.). Pound's standard policies shall be applicable to any product purchases (e.g., refund policy, trademark usage guidelines, marketing guidelines, etc.). All fees paid pursuant to this Agreement are non-refundable.
Term. The term of this Agreement shall be for a period of one (1) year from the effective date indicated in this Agreement (the "Initial Term"). Thereafter, the term shall automatically renew for successive one (1) year periods (each a "Renewal Term", which collectively with the Initial Term is referred to herein as the "Term") unless notice is given by either Party of an intention not renew the Agreement thirty (30) days prior to the expiration of the current term. This Agreement may be terminated before the end of the Term by providing thirty (30) days notice to the other Party. Such termination may be made for any reason, or no reason at all. You agree to return any and all Pound marketing and promotional materials, and all copies and electronic files of the same that may exist upon request or termination hereof. Sections 3, 5, 6, 7 and 8 shall survive termination or expiration of this Agreement.
Venue Responsibility. You hereby agree to indemnify, defend, protect and hold Pound and its officers, directors, managers, members, employees, contractors and affiliates harmless from any and all claims, demands, judgments, costs or any other liability, including reasonable attorney's fees and costs that Pound may incur as a result of or arising from (a) your status as a Pound Venue, (b) your use of the Pound Marks, (c) your offering of the Classes and Pound Workouts, (d) your breach of any representation or covenant in this Agreement, or (e) based on any injury, death, disability, loss or damage described herein, which involves you or your employees, contractors, agents or affiliates acts or omissions. You hereby agree to release and forever discharge Pound, its members, employees, officers, managers, instructors, contractors, agents and affiliates (collectively, all such parties including Pound are referred to herein as the "Released Parties") from any and all claims, actions, damages, liability, costs, expenses, and attorneys' fees which are related to, arise out of, or are in any way connected to Pound, Classes, Pound Workouts, Authorized Products or any training of current or prospective certified instructors at your Venue, whether or not such claims, actions, damages, liability, costs, expenses, and attorney fees are caused by the acts or omissions, negligent or otherwise, of Pound or any of the Released Parties or anyone else's participation in the Pound Workouts or Classes. By execution of this agreement, it is your intention to surrender and waive any rights to exercise any legal action or seek any damages against Pound and all Released Parties. You shall be responsible for maintaining and obtaining licenses and clearances for music played at the Venue, including without limitation music played during Classes.
Disclaimer of Warranties; Limited Liability. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT OR ANY POLICY INCORPORATED BY REFERENCE BY THIS AGREEMENT, POUND MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE CLASSES, POUND WORKOUTS OR AUTHORIZED PRODUCTS OR ANY OTHER SERVICES OR PRODUCTS PROVIDED BY POUND IN CONNECTION WITH THE AGREEMENT OR THE PERFORMANCE THEREOF. POUND EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE OR NON-INFRINGEMENT. TO THE EXTENT PERMITTED BY APPLICABLE LAW, POUND WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES OF ANY KIND, LOST PROFITS OR SAVINGS, OR LOSS OF BUSINESS, ARISING OUT OF OR RELATED TO THE AGREEMENT, THE CLASSES, POUND WORKOUTS OR AUTHORIZED PRODUCTS, EVEN IF POUND HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNLESS EXPRESSLY INDICATED IN THESE TERMS OR THIS AGREEMENT, UNDER NO CIRCUMSTANCE WILL POUND'S LIABILITY EXCEED THE LESSER OF THE AMOUNT OF FEES PAID BY YOU DURING THE PRIOR TWELVE (12) MONTHS OR ONE HUNDRED DOLLARS ($100).
Miscellaneous. The Parties to this Agreement are independent, and no agency, partnership, joint venture, employee-employer or franchisee-franchisor relationship is intended or created by this Agreement. Neither Party shall have any right or authority to assume or create any obligations of any kind or to make any representation or warranty on behalf of the other Party, whether express or implied, or the power to bind the other Party in any respect whatsoever. Your personnel (including certified instructors) involved in your business shall at all times be employees or subcontractors/independent contractors of you and not of Pound. You shall be solely responsible for payment of all compensation for such personnel and all related taxes and benefits for activities conducted at Venue. You agree to accept exclusive liability for complying with all applicable state, local and federal laws and any and all laws of the country of your residence, as applicable, including, without limitation, obligations such as payment of taxes. This Agreement will be governed by and construed in accordance with the internal laws of the State of California. By ordering, reviewing or using the Services, you expressly consent to the personal jurisdiction of the courts located in Orange County, California, for any lawsuit arising from or related to the Services provided or this Agreement. If any provision herein is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. You agree that you may not assign this Agreement nor grant, assign, delegate, sublicense or otherwise transfer any rights under this Agreement. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the Parties and their respective successors and assigns. This Agreement sets forth the entire understanding, and agreement of the Parties, and supersedes any and all prior and contemporaneous oral or written agreements or understandings between the Parties, as to the subject matter thereof. This Agreement may be changed only by a writing signed by both the Venue and Pound. In order to bind the Parties to this Agreement, their duly authorized representatives have signed their names below on the dates indicated. This Agreement shall be binding on both Parties when signed on behalf of each Party and delivered to the other Party (which delivery may be accomplished by facsimile or email transmission).