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S’WET™ License Agreement
This License Agreement (“Agreement”) is entered into between JENNI LYNN FITNESS, LLC (“JLF”), and you (“Instructor”), and is effective as of Instructor’s date of completion of the S’WET™ INSTRUCTOR TRAINING (“Effective Date”). JLF and Instructor are referred to singularly as a “Party” and collectively as the “Parties.”
JENNI LYNN FITNESS, LLC owns the S’WET™ IP (defined below) and uses the S’WET™ IP in connection with educational services in the field of aquatic fitness (“Services”). Instructor has completed an official S’WET™ Instructor Training (“Program”) and desires to become a S’WET™ instructor and make use of the S’WET™ IP. This license is assigned directly to individuals only; a business, organization, company or other entity, including a gym or fitness facility, cannot hold the license or righter therein separately, and without connection to a licensed S’WET™ instructor.
In consideration thereof, the Parties agree as follows:
1. Definitions. For purposes of this Agreement, the following terms mean:
1.1. Initial Term & Term. The initial term is for a period of one (1) year from the Effective Date. Following the Initial Term, the Agreement may be renewed for indefinite successive one-month periods unless JLF terminates the Agreement or Instructor fails to renew annually pursuant to JLF’s cancellation policy (“Term”).
1.2. S’WET™ Marks. (“Marks”) means certain word trademarks and/or service marks owned by JLF, including S’WET by Jenni Lynn Fitness™ and S’WET™, as well as certain trademarked logos.
1.3. S’WET™ Copyrights. Means certain original literary, dramatic, musical, artistic and other works within the meaning of the U.S. Copyright Act used in association with the Marks. JLF Copyrights are valid, subsisting and in full force and effect.
1.4. S’WET™ IP. Means the Marks and JLF Copyrights.
1.5. S’WET™ Related Parties. Means JLF’s affiliates, subsidiaries, related companies, employees, directors, officers, agents, vendors and suppliers.
2. Grant of License. Subject to the terms hereof, JLF grants Instructor a limited, nonexclusive, non transferable, revocable license, without warranty, to use the S’WET™ Marks to promote and teach Instructor’s S’WET™ classes and approved events, and to use the Marks solely to identify as a certified S’WET™ instructor (“License”).
2.1. Territory. The License is not valid in any country to which the U.S. restricts trade or where exercising rights hereunder would violate any law, regulation or ordinance.
2.2. Affiliation. All uses of the S’WET™ IP must be made in accordance with this Agreement and cannot imply an affiliation with any third party, including an implied affiliation with any brand, organization or company, and/or with any individual not licensed hereunder. Where an Instructor wishes to use the name, logo or marks of a third party in connection with the S’WET™ IP, Instructor must obtain JLF’s prior approval. Notwithstanding the foregoing, Instructor may use the business name, trade name and/or trademark of a gym or facility where a S’WET™ class or approved event is being held, so long as such use is subordinate to the Marks and the use is permitted by the gym or facility.
2.3. Disparagement. Instructors must not make any unsavory remarks or comments and/or create any materials or content that JLF determines, in its discretion, dilutes, disparages, or is detrimental to the S’WET™ IP, the JLF or S’WET™ brand or the goodwill associated therewith. Instructor agrees to promptly comply with any instructions from JLF, including the removal, deletion or withdrawal of such remarks, content or materials.
2.4. Ownership of the S’WET™ IP. JLF owns all right, title and interest in the S’WET™ IP and Instructor must not take any action inconsistent with JLF’s ownership thereof. Instructor’s use of the S’WET™ IP ensures the sole benefit of and is on behalf of JLF. In that regard, JLF shall own all performance copyright rights in and to any S’WET™ classes or events taught by Instructor, including any copyright rights in the filming,
recording, streaming, uploading or reproduction of such classes or events. Nothing in this Agreement gives Instructor any right, title or interest in the S’WET™ IP other than the right to use the S’WET™ IP as permitted herein. Instructor must not contest JLF’s ownership of the S’WET™ IP, the validity or enforceability of the S’WET™ IP, or the validity of this Agreement. Instructor must not register or attempt to register any trademark, service mark, logo, copyright, trade name or business name that incorporates “S’WET” or the Marks, or any derivations thereof.
2.5. Third Party Use of S’WET™ Materials. This Agreement is between the Parties only. All materials distributed to Instructor are the property of JLF and Instructor. Any other use or distribution of such materials is prohibited, including the use of such materials by a third party who hosts, employs or pays Instructor. Notwithstanding the foregoing, gyms and other facilities hosting Instructor’s S’WET™ classes or approved events may use marketing materials made available to such parties by JLF.
2.6. Substitutions for your S’WET™ Classes. This Agreement permits Instructor, and Instructor alone, to offer a S’WET™ class or approved event at any facility in which they are hosted or employed. Non-licensed instructors or employees, regardless of affiliation with Instructor, are not allowed to stand in or substitute for Instructor at any time. If Instructor is unable to attend their own S’WET™ class or approved event, Instructor agrees to inform their employer and/or facility that the class or event may proceed but without any S’WET™ IP, Marks or branding.
2.7 Non-Transferable S’WET™ IP Rights. Instructor may not transfer the rights of any kind herein to any other individual or entity, including their gym or fitness facility. If Instructor leaves or is no longer employed by the facility, the facility may not continue to offer S’WET™ classes, unless directly approved by JLF.
2.8. Third Party IP Rights. Instructor must not include third party intellectual property rights in materials promoting Instructor’s S’WET™ classes or approved events without JLF’s prior approval. However, use of the name of a gym or facility where S’WET™ classes or approved events are being held is permitted if subordinate to the Marks and the use is permitted by the gym or facility.
3. Proper Use of the Marks. Instructor must (i) use the Marks only in the forms shown in Exhibit A, including adhering to the colors, fonts, stylization, proportionality and other elements of the Marks; (ii) follow JLF’s brand use guidelines; (iii) use the appropriate trademark symbol (® or ™) with each use of a Mark; (iv) follow all instructions, requests and/or demands made by JLF concerning Instructor’s use of the S’WET™ IP; and (v) use its best efforts to use the current versions of the Marks as provided by JLF.
3.1. Quality Standards. The nature and quality of Instructor’s marketing and services using the Marks must conform to the standards set by JLF (i) in the instructor training courses and manuals; (ii) at jennilynnfitness.com; (iii) in JLFs brand use guidelines; and (iv) in this Agreement. Instructor must cooperate with JLF in facilitating JLF’s control over the nature and quality of Instructor’s marketing and services, to permit observation of Instructor’s S’WET™ classes or approved events, to promptly comply with all instructions from JLF, and to supply JLF with evidence confirming compliance with this Agreement upon request.
3.2. Compliance With Laws. Instructor must comply with all applicable laws, regulations and ordinances in the country, state and locality in which Instructor teaches S’WET™ classes and approved events and obtain all appropriate government approvals pertaining to marketing, advertising, or providing Instructor’s services, including any requirements for the instruction of children.
3.3. Promotional materials. Instructor may use the Marks on flyers, posters, emails and other printed materials whose sole purpose is to promote Instructor’s S’WET™ classes or approved events.
3.4. Internet Uses. Instructor may use the Marks on a website, including blogs and social media sites, where Instructor uses the Marks to promote Instructor’s S’WET™ classes and approved events in accordance with this Agreement.
3.5. Radio, Television and News Coverage. Instructor must not use the Marks on radio or television without JLF’s prior approval. Instructor may promote Instructor’s S’WET™ classes or approved events through live or print news coverage, or through mainstream news organizations or print publishers. With respect to live news coverage, such coverage must not include more than ten minutes of a S’WET™ class, approved event or S’WET™ exercise routine without JLF’s prior approval. In the event Instructor is aware of the coverage, Instructor must notify JLF by email. In the event Instructor is not aware of the coverage in advance, Instructor must promptly notify JLF after the coverage and, when possible, provide a copy of the article or footage.
3.6. Sale of Genuine JLF Products. Instructor may use the Marks in connection with the resale of genuine S’WET™ products purchased from JLF or an authorized distributor, so long as such sales are subordinate to Instructor’s S’WET™ classes or approved events. Instructor may resell original JLF products, excluding exclusive “SQUAD” membership only products, on online trade boards, provided Instructor identifies him/herself in such listings. Except as may be provided for in a separate agreement, Instructor may not sell JLF products outside of the territory where those products were purchased (e.g., products purchased in the U.S. must be resold in the U.S. and not sold outside the U.S.).
3.7. Charitable Fundraising Services/Other Events. With JLF’s prior approval, Instructor may conduct S’WET™ classes or events in connection with fund raising activities for charitable or other worthy causes.
4. Restricted Use of the Marks & S’WET™ IP. JLF may use, or license others to use, the S’WET™ IP in connection with various goods and services. Instructor must not use the S’WET™ IP for purposes of promoting any other workshop, training, instruction, choreography session, or other activity except Instructor’s own S’WET™ classes or approved events. Instructor must not use any S’WET™ IP to identify a gym, workout facility, business or trade name, or any other facility, program or product, except as authorized herein, without JLF’s prior approval. JLF reserves the right to remove any content posted on the Internet and/or used by Instructor that violates JLF’s rights in the S’WET™ IP.
4.1. Never Modify the Marks. Instructor must use the Marks in accordance with the terms of this Agreement and refrain from modifications (e.g., Instructor must not (i) refer to a class as, for example, “SWET” (no apostrophe), or “S’wet” (lowercase w-e-t.), or “S’Wet” (lowercase e-t).
4.2. Merchandise. Instructor must not manufacture, create, offer for sale, sell or distribute any merchandise, including apparel, accessories, CDs, DVDs or promotional items, bearing the S’WET™ IP or any names, designs or logos similar to the Marks.
4.3. Training Materials. Instructor must not copy, duplicate, sell, distribute, upload, stream or otherwise disseminate any materials, such as welcome kits, or their contents; training manuals; CDs and/or DVDs. Instructor must not play S’WET™ movies, or DVDs as part of a class. In the event of termination or cancellation of this Agreement, Instructor must retain Instructor’s training materials, destroy them or return them to JLF.
5. Termination. JLF may immediately terminate this Agreement at any time, with or without cause, by giving Instructor written notice.
5.1. For Cause. JLF has the right to terminate this Agreement upon written notice in the event Instructor breaches this Agreement or as a result of any action or conduct by Instructor that JLF deems detrimental to the S’WET™ IP, the JLF brand or the goodwill associated therewith. JLF may, in its discretion, provide Instructor with an opportunity to cure any breach prior to termination. Upon termination for cause, any fee paid but not used will not be returned to Instructor.
5.2. Effect of Termination. Upon termination, Instructor must immediately (i) discontinue use of the S’WET™ IP, including in any websites or email addresses used by Instructor; and (ii) comply with this Agreement concerning training materials. All rights in the S’WET™ IP therewith will remain the exclusive property of JLF.
6. Cancellation by Instructor. Instructor may cancel this Agreement at any time after the Initial Term subject to the terms, conditions and processes set forth by JLF by written notice.
7. Third-Party Infringement. Instructor must promptly notify JLF of any unauthorized use of the S’WET™ IP by a third party for which Instructor becomes aware. JLF has the sole right and discretion to take action, including bringing action involving the S’WET™ IP and retaining the proceeds of any settlement or recovery in such action. Instructor agrees to cooperate with JLF in enforcing and protecting the S’WET™ IP.
8. Interpretation & Enforcement. This Agreement will be construed in accordance with the laws of the U.S. and the State of New York. The Parties waive any challenge to personal jurisdiction or venue in those courts. The prevailing Party in any such action is entitled to recover its attorneys’ fees and costs. The Parties expressly waive the right to a jury trial in any action relating to this Agreement. Any judgment by a court under this Section is fully enforceable in Instructor’s country of residence.
9. Acceptance of and Modifications to Agreement. Instructor acknowledges that he/she has read and understands this Agreement in its entirety and that this Agreement may be modified at JLF’s discretion. In the event Instructor does not agree to abide by the terms of the Agreement, as modified, Instructor’s sole remedy is to terminate this Agreement.
10. Parties’ Relationship. The Parties’ relationship is that of licensor and licensee. Nothing herein shall be construed as creating any partnership, joint venture, agency, franchise, sales representative or employment relationship between the Parties, nor shall JLF be deemed to be acting in a fiduciary capacity with respect to Instructor. Instructor has no authority to make or accept any offers or representations on behalf of JLF or to act for or bind JLF in any manner. Instructor must not make statements or take actions that may contradict the relationship set forth herein or confuse or mislead any person regarding the nature of the Parties’ relationship.
11. Disclaimer & Limitation of Liability. JLF makes no representations or warranties, express or implied, with respect to JLF Services, or any JLF-related products, including warranties of fitness, merchantability or non-infringement. Under no circumstances, or legal or equitable theory, whether in tort, contract, strict liability or otherwise, will JLF or the JLF Related Parties be liable to Instructor or any other person for any indirect, special, incidental or consequential losses or damages of any nature arising out of or in connection with this Agreement, including damages for lost profits, loss of goodwill, loss of data, work stoppage, accuracy of results, or computer failure or malfunction, even if an authorized representative of JLF has been advised of or should have known of the possibility of such damages. JLF makes no representation that the operation of JLF’s website(s) will be uninterrupted or error-free. JLF is not liable for the consequences of any interruptions or errors, although JLF will make commercially reasonable efforts to correct errors or interruptions.
12. Indemnification. Instructor agrees to indemnify, defend and hold harmless JLF and the JLF Related Parties from any and all losses, liabilities, damages and expenses (including attorneys’ fees and costs) as a result of any claims, demands, actions or other proceedings made or instituted by a third party which arises out of any (i) criminal and/or negligent acts of Instructor; (ii) breach by Instructor of this Agreement; or (ii) other act or omission of Instructor. Instructor hereby releases JLF, its employees, owners and subcontractors from any claims, demands and causes of action arising from Instructor’s own participation in the training, as well as that of their own students or participants. Instructor understands that any exercise or fitness activity involves a risk of injury, and by participating in the training, hereby releases JLF, its employees, owners and subcontractors from any liability now or in the future including, but not limited to, heart attacks, muscle strains, pulls or tears, broken bones, shin splints, heat prostration, knee/lower back/foot injuries, and/or any other illness, soreness or injury, however caused, occurring during or after participation in the program.
13. Nature of Services. S’WET™ classes or events may not be safe or appropriate for everyone. Any information JLF may provide to Instructor through a JLF training, in JLF materials, or on JLF’s website(s) regarding health and fitness is intended solely as educational aids and are not substitutes for medical advice. Instructor is encouraged to seek medical advice before providing the Services, or if Instructor experiences any medical condition affecting the Instructor's ability to provide the Services. Instructor must ensure that he/she complies with all applicable laws, regulations and ordinances governing the instruction of children in the country, state and locality where Instructor teaches. JLF and the JLF Related Parties assume no responsibility for any consequence relating directly or indirectly from any action or inaction of Instructor based on the information, services, or other material provided by JLF. While JLF strives to provide complete, up-to-date and accurate information on its website(s) and in other materials, JLF and the JLF Related Parties do not guarantee, and will not be responsible or liable for, any damage or loss related to the accuracy, completeness, or timeliness of such information. Instructor releases from liability, and holds harmless JLF and the JLF Related Parties for any accident, injury, illness, death, loss, damage to person or property, or other consequences suffered by any person arising or resulting from Instructor’s provision of the Services. If Instructor is injured providing the Services, Instructor assumes any financial obligations for any medical costs Instructor may incur. JLF assumes no responsibility for any medical expenses, injury, or damages suffered by Instructor, or Instructor’s students, in connection with the provision of the Services.
14. No Waiver & Reservation of Rights. JLF’s failure to enforce a provision of this Agreement will not constitute a waiver of its right to subsequently enforce such provision or other provisions hereof. JLF reserves all rights not granted herein.