YESS Academy Healthy Lifestyles
e-Learning License Agreement

LICENSE AGREEMENT TERMS AND CONDITIONS

This License Agreement is by and between the Licensee listed on the Term Sheet and The YESS Institute, a Colorado nonprofit corporation with an address at 1385 S. Colorado Blvd., Building A, Suite 610, Denver, CO 80222 (“YESS”).

For good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties agree as follows:

1. Curriculum

As between YESS and Licensee, YESS owns all right, title and interest in and to the curriculum listed on the Term Sheet (“Curriculum”).

2. Term

The term of this Agreement shall commence on the Effective Date and shall continue for a period of one year (“Initial Term”). The parties may extend the Initial Term for additional one-year periods (each a “Renewal Term”) upon mutual agreement in writing. The Initial Term and any Renewal Terms shall be collectively referred to as the “Term”.

3. License

Subject to the terms of this Agreement, YESS hereby grants to Licensee a non-exclusive, limited, royalty-free, fully paid-up right and license to use and teach the Curriculum solely in connection with the Licensed Use.

4. Ownership

All intellectual property rights, including without limitation, the copyright in and to the Curriculum and any training materials provided to Licensee by YESS, are owned or controlled by YESS.

5. Restrictions on Use

Licensee has no right to copy, modify, distribute, or otherwise exploit the Curriculum except as set forth herein. Licensee shall not provide access to the Curriculum beyond the Licensed Use as set forth on the Term Sheet. Licensee shall not edit or remove any YESS trademarks, copyright notices, and/or disclaimers included in the Curriculum. Licensee may only permit individuals who have received the YESS Curriculum training to teach the Curriculum to students. Licensee (and its teachers) must teach the Curriculum strictly in accordance with the training provided by YESS. Licensee shall provide to every teacher or user who will be teaching or otherwise using the Curriculum the “User Checklist” sheet attached as Exhibit A.

6. Liquidated Damages & Assistance in the Event of a Breach

In the event that anyone acting under the authority of the Licensee breaches any of the restrictions on use set forth in this Agreement, including without limitation, those set forth on the User Checklist (collectively, “Restrictions on Use”), Licensee hereby agrees to pay to YESS, as partial damages and not as a penalty, an additional amount equal to the Total Fees Due (even if the Total Fees Due have already been paid.) The parties agree that the foregoing amount is a reasonable estimation of a portion of the damages that would be sustained by YESS in the event of a violation of the Restrictions on Use. The parties agree that the payment by Licensee of such liquidated damages is a partial remedy and shall in no way prevent YESS from seeking any other remedy available to it, at law or in equity. In furtherance of the foregoing, Licensee acknowledges that any violation of the Restrictions on Use would cause irreparable harm and significant injury which would be difficult to ascertain in its entirety. Accordingly, Licensee agrees that, in the event of any breach of the Restrictions on Use, in addition to Licensee’s payment of liquidated damages as contemplated by this Section, Licensor may seek injunctive relief, in addition to any other remedies that may be available to Licensor at law or in equity.

7. Compensation

Licensee shall pay to YESS the Total Fees Due set forth on the Term Sheet, in a manner mutually agreed by the parties. YESS shall submit to Licensee by email an electronic invoice for the monthly portion of the License Fee, and Licensee shall pay such invoice within thirty days from receipt of such invoice.

8. Disclaimer

The curriculum and training are provided “as is” and yess hereby disclaims all warranties, whether express, implied, statutory, or otherwise, and yess specifically disclaims all implied warranties of merchantability, fitness for a particular purpose, title and non-infringement, and all warranties arising from course of dealing, usage, or trade practice. Without limiting the foregoing, yess makes no warranty of any kind that the curriculum or training will meet licensee’s or any other person’s requirements, achieve any intended result, or be error-free. All third-party materials that may be contained in the curriculum or training are provided “as is” and any representation or warranty of or concerning such third-party materials is strictly between licensee and the third-party owner or distributor of the third-party materials.

9. Limitations of Liability

a. Exclusion of damages. In no event will YESS be liable under or in connection with this agreement or its subject matter under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, and otherwise, for any consequential, incidental, indirect, exemplary, special, enhanced or punitive damages, regardless of whether such persons were advised of the possibility of such losses or damages or such losses or damages were otherwise foreseeable, and notwithstanding the failure of any agreed or other remedy of its essential purpose.

b. Cap on monetary liability. In no event will the collective aggregate liability of YESS under or in connection with this agreement or its subject matter, under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, and otherwise, exceed the aggregate fees paid to yess under this agreement in the preceeding calendar year. The foregoing limitation applies notwithstanding the failure of any agreed or other remedy of its essential purpose.

10. Miscellaneous

a. Entire Agreement. This Agreement sets forth the entire understanding of the parties with respect to the subject of this Agreement and supersedes all prior agreements, understandings, statements, representations, warranties, or covenants, written or oral, made by either party except as expressly set forth herein.

b. Dispute Escalation. In the case of a dispute between Licensee and YESS, upon the written request of either party (“Dispute Escalation Request”), each party will appoint a designated representative who does not devote substantially all of his or her time to performance under this Agreement, whose task it will be to meet for the purpose of endeavoring to resolve such dispute. Such representatives shall discuss the issue and negotiate in good faith in an effort to resolve the dispute without resorting to a formal proceeding. If such dispute cannot be mutually resolved by such parties within thirty (30) days of the date of the Dispute Escalation Request, then either party may pursue litigation. However, this Section shall not limit either party’s rights to (i) terminate this Agreement in accordance with the provisions of this Agreement, (ii) institute any action, suit, claim or proceeding to avoid expiration of any applicable statute of limitations or other limitations period, or (iii) seek injunctive or other equitable relief.
c. Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of Colorado without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Colorado. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Colorado in each case located in Denver, CO, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
d. Assignment. Except as provided in this Section, this Agreement may not be assigned or otherwise transferred, nor may any right or obligation hereunder be assigned or transferred, by either party without the express written consent of the other party which shall not be unreasonably withheld; provided, however, that either party may, without such consent, assign the agreement and its rights and obligations hereunder to its affiliates or to a purchaser of all or substantially all of the assets of such party. Any purported assignment in violation of this section shall be void and of no effect. Any permitted assignee shall assume all assigned obligations of its assignor under the Agreement. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
e. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
f. Notices. All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement have binding legal effect only if in writing and addressed to a party’s Program Manager as set forth on the Term Sheet, or as subsequently amended in accordance with this Section. Notices sent in accordance with this Section shall be deemed effectively given: (i) when received, if delivered by hand, with signed confirmation of receipt; (ii) when received, if sent by a nationally recognized overnight courier, signature required; (iii) when sent, if by email and if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (iv) on the third day after the date mailed by certified or registered mail, return receipt requested, postage prepaid. For purposes of this Section, notices may be sent to YESS by email to the following address: YESS Institute, Attn: Executive Director, 1385 S. Colorado Blvd., Denver, CO 80222.
g. Severability. If any provision of this Agreement is held to be unenforceable, then that provision is to be construed either by modifying it to the minimum extent necessary to make it enforceable (if permitted by law) or disregarding it (if not). If an unenforceable provision is modified or disregarded in accordance with this Section, the rest of the Agreement is to remain in effect as written, and the unenforceable provision is to remain as written in any circumstances other than those in which the provision is held to be unenforceable.

h. Survival. All sections of the Agreement which by their nature should survive termination will survive, including, without limitation, accrued rights to payment, use restrictions, indemnity obligations, confidentiality obligations, and limitation of liability.
i. Waiver Amendment. No waiver under this Agreement shall be valid unless it is given in writing and duly executed by the party to be charged therewith. This Agreement may not be amended or modified except by a written document signed by Licensee and YESS.
j. Counterparts. This Agreement will be enforceable upon the exchange of scanned signatures. This Agreement may be executed in one or more counterparts, each of which will be deemed an original. All counterparts so executed will constitute one Agreement binding on both parties.
k. Retroactive Effect. The parties acknowledge and agree that to the extent either party has been performing in connection with elements described in this Agreement prior to the Effective Date, the terms and conditions of this Agreement shall retroactively govern each party’s performance in connection with the subject matter hereof.

i. Interpretation. For purposes of this Agreement, (i) the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”; (ii) the word “or” is not exclusive; (iii) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole; and (iv) words denoting the singular have a comparable meaning when used in the plural, and vice-versa. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, and attachments mean the sections of, and exhibits, and attachments attached to this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The exhibits and attachments referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.
m. Attorneys’ Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party
EXHIBIT A
YESS INSTITUTE HEALTHY LIFESTYLES CURRICULUM LICENSE AGREEMENT
USER CHECKLIST

Thank you for your involvement in the Healthy Lifestyles Program! We value your participation and experience in getting this valuable information to our youth. This program is proprietary to YESS Institute and is a source of income to continue our mission. As a nonprofit entity, every dollar counts. The following are important restrictions on use:

  • Do not use the Curriculum except as expressly authorized.
  • Do not post the Curriculum or any portion thereof to any website.
  • Do not excerpt portions of the Curriculum for use in any other materials.
  • Do not share or distribute the Curriculum (including your login information) to any other person or entity not directly involved in your organization’s provision of the Healthy Lifestyles Program.
  • Do not use the Curriculum for more than one year unless your organization has renewed its license agreement with YESS.
  • Your school or organization can be liable for liquidated damages and attorneys’ fees if you breach any of the foregoing.