SPEAK OUT!® LICENSE AGREEMENT
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:
- 1.1 Grant of Rights. Subject to the terms and conditions of this Agreement, Licensor hereby grants to Licensee, during 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!®
- 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, joint- venturer of, or in any way affiliated with (other than having received training from), Licensor.
- 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.
- 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.
- 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.
- 6.1 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.
- 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.
- 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 Licensor- selected 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 Licensor- provided 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- Confidentiality: Licensee and its agents and employees shall keep and hold in strict confidence all of the terms of this Agreement.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.