THIS SPEAK OUT! LICENSE AGREEMENT
(“Agreement”) is made effective as of the day executed (including
electronically signed or otherwise accepted) by a Provider (as defined below),
and to be by and between the Provider, as Licensee, and Parkinson Voice
Project, Inc., a Texas non-profit organization with office located at 646 North
Coit Road, Suite 2250, Richardson, Texas 75080 (“Licensor”).
WHEREAS,
Licensor has expended considerable time, effort, and resources in developing an
effective program and goodwill that combine education, individual speech
therapy (branded as “SPEAK OUT!®”), and speech and singing groups (branded as
“The LOUD Crowd®”);
WHEREAS,
Licensor is the sole creator and/or owner of worldwide intellectual property
rights in and to the Licensed Property (as defined below) and is offering to
grant to Licensee a license under those rights, subject to the terms and
conditions set forth herein;
WHEREAS,
Licensee is a clinician/clinic working with persons with disorders related to
Parkinson’s and related movement disorders and is desirous of providing
services pertaining to, and as a licensee under, the Licensed Property (a “Provider”);
and
NOW,
THEREFORE, in consideration of the mutual covenants, terms, and conditions
set forth herein, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Licensor by provision of this
Agreement, and Licensee by its execution of same, agree as follows:
1. License.
1.1.
Grant of Rights.
Subject to the terms and conditions of this
Agreement,
Licensor hereby grants to Licensee, for the Term (as defined
below), a limited, non-exclusive,
non-transferable, non-sublicensable license, solely to display and use the
Licensed Property for the Usage purposes set forth below.
1.2.
The Licensed
Property. The Licensed Property are
defined as (i) SPEAK OUT!® and The LOUD Crowd® program materials, including but
not limited to therapy provision and any copyrightable expression (such as
video presentations, the SPEAK OUT!® Workbooks, The LOUD Crowd®
Workbooks, SPEAK OUT!® & The LOUD
Crowd® eLibrary, and Therapy Flashcards);
(ii) any
plain text (or spoken) use of SPEAK OUT!® or The LOUD Crowd®, including the
registration designations SPEAK OUT!® and The LOUD Crowd®, but this license does not include, and
Licensee agrees not to use, SPEAK OUT!® or The LOUD Crowd®, or any trademark
confusingly similar thereto, in any stylized, graphic design, or image-based
form, whether the same, similar to, or differing from the manner, such as in
logo form, as used or owned by Licensor; and
(iii) a limited
right to use “PARKINSON VOICE PROJECT” only as an identifier as the developer
and source of either the SPEAK OUT!® or The LOUD Crowd® program, materials, and grants.
1.3. Reservation of Rights. Licensor hereby reserves all rights not
expressly granted to Licensee under this Agreement, including but not limited
to that Licensee receives no right under this Agreement to use SING OUT!®
2. Usage of the Licensed Property.
Notwithstanding any other provision to the contrary contained in this
Agreement:
2.1.
Usage. The
Licensed Property may be displayed and used: (i) in Licensee’s training and in
connection with providing therapy services to persons with Parkinson’s or
related movement disorders; and (ii) on or in connection with the promotion and
advertising of Licensee’s service, subject to Licensor’s review and approval.
2.2.
Compliance with
Licensor's Directions. Licensee agrees it will not display or use the
Licensed Property, except in the form and in such manner specifically set forth
in, and including the quality guidelines/control of, the program materials or
as otherwise approved in writing by Licensor in advance.
2.3.
Modifications.
Licensee shall not translate, edit, alter, modify, or create any copies or
derivative works, nor distribute same to any third party without authorization
from Licensee, of the Licensed Property.
2.4.
Prohibited Uses.
Licensee may not use the Licensed Property for or relating to any fundraising
purposes, nor may Licensee represent, suggest, imply, take any action likely to
confuse consumers as to its relationship with, or hold itself out as, an
employee, agent, partner, jointventurer of, or in any way affiliated with
(other than having received training from), Licensor.
3. Ownership and Protection.
3.1.
Acknowledgment
of Ownership. Except for the license expressly granted to Licensee in this
Agreement, Licensee acknowledges that the Licensed Property is the exclusive
and sole property of Licensor. If Licensee acquires or purports to acquire any
rights in the Licensed Property, including any copyright rights or goodwill
from the SPEAK OUT!® and The LOUD Crowd® trademarks (or similar trademarks), by
operation of law or otherwise, Licensee hereby irrevocably assigns such rights
to Licensor without further action by either party. Licensee agrees that it
shall not in any manner challenge or assist any person or entity in disputing
or challenging the ownership or validity of the Licensor relative to any
intellectual property, including but not limited to trademarks and copyrights,
subsisting in the Licensed Property.
4. Payments. Licensee shall not have to pay any
monetary consideration in exchange for the license granted hereunder, but
Licensee acknowledges valuable consideration received hereunder and gives its
own consideration, including but not limited to any one or more of its review,
understanding, acceptance of, and adherence to, the terms and conditions
herein.
5. Representations and Warranties.
5.1.
Licensor’s
Representation and Warranties. Licensor represents and warrants, solely to
and for the benefit of Licensee, that it owns the Licensed Property in connection
with Licensee's permitted Usage.
5.2.
Licensee's Representations and Warranties. Licensee
represents and warrants that Licensee
will not engage or participate in any activity, course of action, and/or
communication that could diminish, tarnish the image or reputation, or
disparage, the Licensed Property,
Licensor, or Licensor’s business or services, or cause or be
likely to cause confusion as to the ownership, or the unauthorized use,
application, or provision, of the Licensed Property.
5.3.
Disclaimer of
Representations and Warranties. EXCEPT AS EXPRESSLY PROVIDED IN THIS
SECTION 5, LICENSOR EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS,
IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE LICENSED PROPERTY,
INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND WARRANTIES
THAT MAY ARISE OUT OF COURSE OF
DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE.
6. Remedies.
6.1.
Equitable Relief.
Licensee acknowledges that a breach by Licensee of this Agreement may cause
Licensor irreparable harm, for which an award of damages would not be adequate
compensation, and agrees that, in the event of such breach or threatened
breach, Licensor will be entitled to seek equitable relief, including a
restraining order, injunctive relief, specific performance, and any other
relief that may be available from any court, arbiter, or appropriate legal
authority, in addition to any other remedy to which Licensor may be entitled at
law or in equity. Such remedies are not exclusive but are in addition to all
other remedies available at law or in equity, subject to any express exclusions
or limitations in this Agreement to the contrary.
6.2.
Limitation of
Liability. LICENSOR WILL NOT BE LIABLE UNDER OR IN CONNECTION WITH THIS
AGREEMENT FOR INDIRECT, INCIDENTAL,
CONSEQUENTIAL, LIQUIDATED,
SPECIAL, OR EXEMPLARY DAMAGES OR PENALTIES, INCLUDING LOSSES OF BUSINESS,
REVENUE, OR ANTICIPATED PROFITS, REGARDLESS OF WHETHER SUCH DAMAGE WAS
FORESEEABLE AND WHETHER LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
7. Indemnification by Licensee. Licensee hereby
indemnifies and holds Licensor, free and harmless against and from all actions,
claims, suits, proceedings, losses, damages, costs, liabilities, reasonable attorney's
fees, and other direct and reasonable expenses which Licensor may suffer,
incur, or pay by reason of or arising out of Licensee’s business or use of the
Licensed Property.
8. Term and Termination.
8.1.
Term. The
Term of this Agreement shall commence upon the date of execution of this
Agreement and shall continue until it is terminated, or until it expires, with
expiration to occur on: (a) December 31st of the year the Agreement
is executed, if executed prior to October 1 of that year of execution; or (b)
December 31st of the year after the Agreement is executed, if the
Agreement is executed at any time from October 1 through December 31st.
8.2.
License Renewal.
Licensor reserves the right, at its sole discretion, to offer a Provider a
manner of license renewal or acceptance of new license terms, for example
starting a new period after the Term of this Agreement.
8.3.
Termination or
Suspension. Licensor may terminate this Agreement at any time without cause
(“Termination”). Licensor may terminate (also, “Termination”) this Agreement,
or suspend Licensor-selected rights granted to Licensee hereunder (“Suspension”),
upon any violation of the Agreement, including violation of any terms,
conditions, provisions, teachings, or directives of Licensor’s program
materials provided under this Agreement.
8.4.
Effect of
Termination or Suspension. Upon the expiration or Termination of this
Agreement for any reason, all rights licensed under this Agreement, or upon
Suspension any rights licensed in this Agreement and selected by Licensor, will
terminate to Licensee and revert immediately to Licensor. For Termination, Licensee shall cease all
usage, and for Suspension Licensee shall cease Licensorselected usage, of the
Licensed Property (anywhere in the world), and for either expiration,
Termination, or Suspension, Licensor may demand the return of any or all
Licensed Property and Licensorprovided materials relating thereto. Upon
expiration or Termination of this Agreement, or upon selection of certain
rights under Suspension by Licensor, Licensee shall lose all in the cases of
expiration or Termination, or selected upon Suspension, its rights hereunder,
such loss including but not limited to: (i) termination of Licensee’s
"SPEAK OUT! Provider" status, which will result in removal from
website identification: (ii) removal of Licensee from the SPEAK OUT! Providers’
Facebook Group; (iii) an inability of
Licensee’s
access to, and Licensee’s patient(s) to receive, SPEAK OUT!® and The LOUD
Crowd® Workbooks, access to the eLibrary, and therapy materials and any and all
other resources or materials provided by Licensor; (iv) and discontinuation of
Licensee’s clinic to be awarded SPEAK OUT!® & The LOUD Crowd® grants.
9. Waiver. No waiver by any party of any of the
provisions hereof will be effective unless explicitly set forth in writing and
signed by the party so waiving. Except as otherwise set forth in this
Agreement, no failure to exercise, or delay in exercising, any right, remedy,
power, or privilege arising from this Agreement will operate or be construed as
a waiver thereof; nor will any single or partial exercise of any right, remedy,
power, or privilege hereunder preclude any other or further exercise thereof,
or the exercise of any other right, remedy, power, or privilege.
10.Assignment. Licensee shall not assign any of
its rights or delegate any of its obligations under this Agreement without the
prior written consent of Licensor. Any purported assignment or delegation in
violation of this Section 10 is null and void. Licensor may freely assign or
otherwise transfer any of its rights or delegate any of its obligations under
this Agreement. This Agreement is binding upon and inures to the benefit of the
parties hereto and their respective permitted successors and assigns.
11.Severability. If any term or provision of this
Agreement is invalid, illegal, or unenforceable in any jurisdiction, such
invalidity, illegality, or unenforceability will not affect the enforceability
of any other term or provision of this Agreement or invalidate or render
unenforceable such term or provision in any other jurisdiction. Upon a
determination that any term or provision is invalid, illegal, or unenforceable,
the court may modify this Agreement to effect the original intent of the
parties as closely as possible in order that the transactions contemplated
hereby be consummated as originally contemplated to the greatest extent
possible.
12.Applicable Law. This Agreement, all its terms
and conditions, and all matters arising out of or related to this agreement,
including tort and statutory claims, shall be governed exclusively by and
interpreted under the statutory, decisional, administrative, and other laws of
Texas or United States federal law as applicable, without giving effect to any
conflict of laws provisions thereof that would result in the application of the
laws of a different jurisdiction.
13.Submission to Jurisdiction/Venue. Either party
shall institute any legal suit, action, or proceeding arising out of or
relating to this Agreement in the federal or state courts in each case located
in Dallas County, Texas, and each party irrevocably submits to the exclusive
jurisdiction of such courts in any legal suit, action, or proceeding. Service
of process, summons, notice, or other document by mail to such party's address
will be effective service of process for any suit, action, or other proceeding
brought in any such court.
14.Entire Agreement. This Agreement, including
and together with any related attachments and materials, constitutes the sole
and entire agreement of the parties with respect to the subject matter
contained herein, and supersedes all prior and contemporaneous understandings,
agreements, representations, and warranties, both written and oral, with
respect to such subject matter. Licensor
reserves the right to modify its terms and conditions of this Agreement at any
time.
15.Confidentiality: Licensee and its agents and
employees shall keep and hold in strict confidence all of the terms of this
Agreement.
16.Interpretation. For purposes of this
Agreement: (a) the words "include," "includes," and
"including" are deemed to be followed by the words
"without limitation";
(b) the word "or" is not exclusive; and (c) the words
"herein," "hereof," "hereby," and
"hereto" refer to this Agreement as a whole. This Agreement is
intended 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.
17.Amendments. No changes in the terms of this
Agreement shall be valid except when and if reduced to writing and signed by
the legally authorized individuals of each party.
18.No Third-Party Beneficiaries. This Agreement
is for the sole benefit of the parties hereto and their respective successors
and permitted assigns, and nothing herein, express or implied, is intended to
or will confer upon any third party any legal or equitable right, benefit, or
remedy of any nature whatsoever, under or by reason of this Agreement. To the extent that this Agreement includes
any restrictive condition or term during the Term of, or surviving, the
Agreement, Licensee itself agrees to abide by the condition or term and also not
to influence, control, or abide by another other person or entity in a manner
that would violate the condition or term as applied to Licensee.
19.Relationship of Parties. In no event shall any
relationship other than licensor and licensee be implied or created by this
Agreement, including but not limited to that of principal and agent,
partnership, or joint venture.
20.Captions, Underlining. The captions contained
herein are for convenience and reference only and shall not be deemed as part
of this Agreement or construed as in any manner limiting or amplifying the
terms and provisions of this Agreement to which they relate. The underlining of
certain portions of this Agreement shall not mean that such portions are to be
given any greater or lesser force or effect than the non-underlined portions.
21.Licensee execution by electronic means. Licensee agrees that to the extent Licensee
signs this Agreement electronically, including but not limited to a
click-through or click box or other electronic selection indicating an
affirmative acceptance hereof (including receiving and using materials under
the license), said electronic action taken is an execution hereof and the
legally binding equivalent to their handwritten signature.
22.Surviving provisions. Licensee’s obligations under Sections 3, 5.2,
5.3, 6, 7, 9, 11 through 20 will survive the expiration or termination of this
Agreement.
Licensee
acknowledges that it has read and understood, and hereby agrees to be bound by
each of the terms and conditions set forth in this Agreement.