Terms and Conditions

NON-EXCLUSIVE LICENSE OF COPYRIGHTED MATERIALS FROM VSOW

 

           This Agreement is made and entered into on the Effective Date by and between Licensee and VSOW.  All terms in bold and italicized text are defined in Article 1 below.

 

BACKGROUND

 

           VSOW is the business of developing business of providing consulting services to businesses.  VSOW created certain IP Assets based on years of experience and expertise in the providing of those consulting services.  Those IP Assets include certain Trade Secrets as well as the Copyrighted Materials.

 

           VSOW is agreeable to licensing the Copyrighted Materials to individuals who are not currently clients of VSOW and who are not licensees of the Trade Secrets so long as all such Licensees comply with the terms and conditions of this Agreement.

 

In consideration of the mutual promises, undertakings and covenants herein, and for other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties respectively grant, covenant and agree as follows:

 

ARTICLE I

DEFINITIONS

 

1. “Agreement” means this “NON-EXCLUSIVE LICENSE OF COPYRIGHTED MATERIALS FROM VSOW”.

 A. “Effective Date” means the date on which Licensee has expressed agreement to abide by the terms and conditions of this Agreement.

 B. “License” means the non-exclusive license grant by VSOW to Licensee of the Copyrighted Materials as set forth in Article II.

 

1.2      “Fee” means the monetary payment by Licensee to VSOW in conjunction with the downloading of the Copyrighted Materials. Payment of the Fee and compliance with the terms and conditions of the Agreement constitute binding preconditions for the License rights granted to Licensee.

1.3      “IP Assets” means all of the IP Rights owned or licensed by VSOW.  The IP Assets owned or licensed by VSOW include but are not limited to the Copyrighted Materials and the VSOW Trade Secrets.

 A. “Copyrighted Materials” means the following materials that are associated with the VSOW 12 Tools^TM trademark:

• PDF containing a representation of all 12 VSOW tools.
• Microsoft Powerpoint files containing editable versions of Tools 1, 6 and 8
• Microsoft Excel files containing editable versions of Tools 2, 3, 5, 7, 9, 10, 11, 12
• Microsoft Word File containing editable version of Tool 4

 B. “VSOW Trade Secrets” means collectively all Trade Secrets owned by VSOW that relate to the different processes and methodologies relating to visual systems of work.

 

1.4      “IP Rights” means collectively all legally cognizable intellectual property rights in all jurisdictions of the world. IP Rights include but are not limited to: (A) Copyrights; (B) Patent Rights; (C) Trademark Rights; (D) Trade Secrets; (E) Know-How; (F) rights of publicity; and (G) all other forms of proprietary rights.

 

1. “Copyrights” means collectively all cognizable rights under the copyright laws of all the jurisdictions of the world.  Copyrights includes collectively: unregistered copyrights, registered copyrights, the rights to pursue copyright protection, and the rights to create derivative works.
2. “Patent Rights” means collectively all cognizable rights under the patent laws of all the jurisdictions of the world.  Patent Rights includes issued utility and design patents, pending published and non-published patent applications, and the right to file patent applications.  Patentable subject matter can also include and overlap with Trade Secrets and Know-How.
3. “Trademark Rights” means collectively all cognizable rights under the trademark laws and trade dress laws of all the jurisdictions of the world. Trademark Rights collectively includes common law trademarks and trade dress, unregistered trademarks and trade dress, registered trademarks and trade dress, and pending applications to register trademarks and trade dress.
4. “Trade Secrets” means information relating to business processes and/or tools that have either potential or actual economic value by virtue of not being generally known and that is subject to reasonable efforts to preserve its value.  Trade Secrets can include business processes and/or tools where individual components may be found in the public domain, but when taken as a whole constitute a unified process or approach that affords a competitive advantage.  Trade Secrets can include improvements and extensions to Trade Secrets made with reference to Trade Secrets.
5. “Know-How” means information relating to business processes and tools.  Know-How can include information that would otherwise be included in a trade secret except that it is not a secret.  Information that VSOW asserts is a Trade Secret that is subsequently deemed in a binding decision by a court to not be eligible for trade secret protection is deemed to be Know-How.

 

1.5       “Laws” means collectively all laws and regulations (at the national/federal, state, and local levels) throughout the world.

 

1.6       “Losses” means collectively any liability, demand, claim, action, cause of action, cost, damage, diminution in value, deficiency, penalty, fine, or expense (including court costs and reasonable attorneys’ fees and expenses) by or to a third party, and all amounts paid in the investigation, defense, or settlement of any of the foregoing.

 

1.7      “Parties” means collectively VSOW and Licensee.  “Party” refers individually to either VSOW or Licensee as the context dictates.

1. “Licensee” means the individual human being identified as the purchaser of the License rights at the time in which the Copyrighted Materials were downloaded.
2. “VSOW” means David T. VSOW Consulting, LLC, a Michigan limited liability company with offices at 5492 Cottonwood Dr. in Ypsilanti, Michigan 48197.
3. “Indemnified Party” a Party to this Agreement seeking indemnification pursuant to the terms of this Agreement.
4. “Indemnifying Party” a Party from whom indemnification is sought pursuant to the terms of this Agreement.

 

ARTICLE II

LICENSE OF IP ASSETS

 

2.1      License Grant.  VSOW hereby grants Licensee a non-exclusive, perpetual, and revocable right to use the Copyrighted Materials for internal business purposes.  This grant is subject to and contingent upon Licensee fulfilling all of Licensee’s obligations set forth under this Agreement, including complying with all of the use restrictions of Section 2.3 and the payment of the Fee.

 

2.2      Reservation of Rights.  Title to all IP Assets are retained by VSOW, its suppliers, and its licensors.  All IP Rights that are not specifically and expressly conveyed to Licensee pursuant to this Agreement are reserved and retained by VSOW.  The License granted to Licensee does not include any Patent Rights or any Trademark Rights.  VSOW retains sole and exclusive title to all of the Copyrighted Materials.

 

2.3      Use Restrictions.  Licensee agrees to the following restrictions on the use of the Copyright Materials.  Breach of this provision is ground for terminating the License grant of Section 2.1.  

 

1. Licensee shall not copy any of the Copyrighted Materials.
2. Licensee shall not or utilize more copies of the Copyrighted Materials than the number of Licenses purchased.
3. Licensee shall not distribute or transfer derivate works of the Copyrighted Materials to any third parties.
4. Licensee shall not distribute, transfer, or sublicense the Copyrighted Materials.
5. Licensee shall not assert that Licensee is the author of the Copyrighted Materials or deny that VSOW is the creator and copyright owner of the Copyrighted Materials.
6. Licensee shall not use the Copyrighted Materials for external business purposes, such as using the Copyrighted Materials for the benefit of third parties as a consultant, service bureau, application service provider, or other form of service provider.
7. Licensee shall not utilize any IP Assets relating to the Copyrighted Materials such as Trademark Rights or VSOW Trade Secrets unless such IP Assets are separately licensed by Licensee in a separate agreement.

 

ARTICLE III

IP RIGHTS

 

3.1    No Challenges.  Licensee shall not challenge the validity of VSOW’s title or any other aspect of the Copyrighted Materials while this Agreement is in force.  Nor shall Licensee make any attempt to register or claim any IP Rights in the Copyrighted Materials or any derivative works of the Copyrighted Materials.  

 

3.2      Enforcement of IP Rights. Licensee agrees to inform VSOW promptly of any known possible infringement, misappropriation, passing off or unfair competition relating to any of the Copyrighted Materials by any third party.  VSOW shall have the sole right to determine whether any action shall be taken in on account of any infringement, misappropriation, passing off or unfair competition relating to the Copyrighted Materials. 

 

ARTICLE IV

COMPENSATION

 

4.1      Fee.  The Fee paid for in exchange for the License grant to Licensee is non-refundable. 

 

4.2      Taxes.  All payments to VSOW under this Agreement shall be net of all sales, use, and other income-based taxes which may be imposed upon such payments. 

 

ARTICLE V

DURATION AND TERMINATION PROVISIONS

5.1      Duration.

 

           This Agreement shall commence on the Effective Date.  Unless this Agreement is otherwise terminated by a Party as provided in this Agreement, this Agreement shall remain effective on a perpetual basis until the earlier of: (A) the copy of the Copyrighted Materials licensed as part of the transaction ceases to exists; or (B) the License is terminated due to breach of the Agreement by Licensee.

 

5.2      Termination for Cause. 

 

           In the event of a material breach of any obligation under this Agreement, either Party may terminate this entire Agreement upon written notice to the other Party.  Termination by either Party shall not be deemed to be the terminating Party‘s sole or exclusive remedy for a breach of this Agreement by the other Party, and the aggrieved Party shall be entitled to any and all available legal and equitable remedies.

 

5.3      Termination for Convenience.  Licensee may terminate this Agreement for convenience upon destroying/deleting its copies of the Copyrighted Materials and certifying to VSOW in writing that such materials have been deleted.

 

5.4      Survival.  Expiration or termination of this Agreement terminates the applicable License grant of Section 2.1.  All other sections of this Agreement shall survive termination.

 

5.5      Affirmative Post-Termination Obligations.  Upon termination of this Agreement, the Parties shall mutually cooperate to bring about an orderly termination of their relationship as licensor and licensee, and Licensee shall certify to VSOW that the Copyrighted Materials are no longer in the possession of Licensee.

 

 

ARTICLE VI

DISCLAIMERS, DAMAGES EXCLUSIONS, AND LIABILITY LIMITATIONS

WARRANTIES, WARRANTY DISCLAIMERS AND INDEMNIFICATION

 

6.1      Warranties by Licensee.  Licensee acknowledges, understands, represents and warrants that Licensee shall comply with all of the restrictions set forth in Articles II and III of this Agreement.

 

6.2      Disclaimer of warranties by Parties  With the sole exception of Section 6.1 and notwithstanding any other provision hereof, VSOW and Licensee MAKE NO OTHER REPRESENTATIONS OR WARRANTIES WHATSOEVER, expressed or implied, by operation of Law, or otherwise.

 

THE COPYRIGHTED MATERIALS ARE PROVIDED TO LICENSEE ON AN “AS IS” BASIS WITH ABSOLUTELY NO WARRANTIES.

 

6.3      Indemnification.                                      

(a)        Licensee shall indemnify and hold VSOW harmless from and against any and all Losses to a third party arising from a breach of warranty by Licensee.

(b)           VSOW shall indemnify and hold Licensee harmless from and against any and all Losses to a third party arising from a breach of warranty by VSOW.

 

6.4      Liability Cap.  With the exception of the payment of Fees, the liability pursuant to this Agreement of either Party to the other Party is capped at the total Fees received by VSOW in the prior 12-month period. 

 

ARTICLE VII

INTERPRETATION/DISPUTES

7.1      Interpretation.

 

1. Severability.  If any part, term, or provision of this Agreement is found illegal or in conflict with any valid controlling Law, the validity of the remaining provisions will not be affected thereby.  In the event that the legality of any provision of this Agreement is brought into question because of a change in applicable Law, the Parties shall communicate openly with each other in a good faith manner to reconcile the change in Law with the provisions of this Agreement.
2. Waiver. The waiver of a breach of this Agreement may only occur by an express writing signed by the waiving Party.  Such a written waiver will not constitute a waiver of any other breach.
3. Integration.  This Agreement represents the entire understanding between the Parties. This Agreement supersedes all other agreements between the Parties that relates in any way to the Copyrighted Materials.  All (if any) prior agreements, drafts, representations, statements, negotiations, marketing materials, and undertakings relating to the subject matter of this Agreement are hereby superseded by this Agreement. 
4. Conflicts. All reasonable efforts shall be made to interpret the provisions of this Agreement in such a manner that are consistent with each other.  If no such construction is possible, then all reasonable efforts shall be made to: (1) interpret the scope of the conflict in the narrowest way possible; and (2) give preference to the relatively more specific provision over the relatively more general provision. 

 

7.2      Disputes.

 

1. Governing Law.  This Agreement is governed exclusively by the substantive laws of the State of Michigan (without regard to its law of conflicts).
2. Venue. All disputes arising pursuant to this Agreement must be exclusively litigated in the federal courts located in the Eastern District of Michigan, or alternatively, in the state courts located in Oakland County, Michigan.
3. Purposeful Availment.  By executing the Agreement, both Parties purposely avail themselves to the provisions set forth above in this Section 7.2.  Both Parties agree the adjudication of any dispute in the state of Michigan is not an inconvenient forum for either Party.
4. Exclusions.  The United Nations Convention on Contracts for the International Sale of Goods (CISG) and the Uniform Computer Information Transactions Act (UCITA) do not apply in any way to this Agreement.
5. Attorney Fees and Litigation Costs.  In a dispute between the Parties, the Party that prevails, or at least substantially prevails, against the other Party may recover its litigation expenses.  Litigation expenses shall include reasonable attorney fees, court costs, expert witness fees, and other related expense from the non-prevailing Party.

 

ARTICLE VIII

GENERAL PROVISIONS

 

8.1      Assignments.  This Agreement imposes personal obligations on the Parties.  Neither Party may assign this Agreement without the express written consent of the other Party.  Such consent may be withheld for any reason or for no reason at all.  Any attempt by either Party to assign any or all of its rights pursuant to this Agreement is null and void ab initio.  Either Party may assign this Agreement without the permission of the other Party in the context of a merger, acquisition, or divestiture involving all or substantially all of the assigning Party’s assets.

 

8.2      Cooperation.  Each Party will execute any instruments reasonably believed by the other party to be necessary to implement the provisions of this Agreement.

 

8.3      Relationship of the Parties. 

 

1. No Agency, Partnership, or Employer Relationship.  Nothing in this Agreement or any circumstances associated with it or its performance give rise to any relationship of agency, partnership or employer and employee between Parties or their Personnel.
2. No Third-Party Beneficiaries.  There are no third-party beneficiaries to this Agreement.  No person who is not a party to this Agreement will have any rights pursuant to the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.

 

8.4      Contractual Notifications.  All contractual notifications must comply with this section.  A Party giving notice under the Agreement shall do so in writing.  All notices must be either hand delivered, sent by overnight courier, sent via first class mail through the U.S. Postal Service, or sent via e-mail with a subsequent phone call or voice mail message to confirm that the notice has been received.

 

1. Notification Recipients/Addresses.  Contractual notifications must be sent to all the Personnel at the addresses listed on the applicable Attachment.  Each Party is free to amend their notice information upon providing written notice to the other Party.
2. Service of Notices. Any notice in accordance with Section 8.4 is deemed to have been received: (1) on the date of delivery (if hand delivered); (2) on the date after sending (if sent by overnight courier); (3) five days after the date of posting (if sent by prepaid post) or (4) on the date of delivery if sent to the applicable e-mail address set forth on the applicable Attachment so long as a confirming voice mail message and/or fax is set to the applicable contact information set forth on Attachment.

 

8.5      Amendments. Except as set forth in Section 8.4 above, this Agreement may only be amended by a mutually agreed upon writing that is executed by both Parties.

 

8.6      Force Majeure.  Neither Party will be liable for any default or delay in performance of its obligations under this Agreement if and to the extent the default or delay is caused, directly or indirectly, by a force majeure event. 

 

8.6      Date/Time. For all purposes for which the date or time is to be determined pursuant to this Agreement, the applicable date and time are the date and time in Detroit, Michigan.  For example, the date of a contractual notice set forth in Section 8.4 above is the date in Detroit, Michigan on which such notification is accomplished.

 

Agreed to in form and in substance, by both VSOW and Licensee.  This signature page may be executed in counterparts, meaning that each Party may sign a separate but identical copy of the signature page.  The signed copies together shall together form the executed signature page for the Agreement.

 

Agreed to in form and in substance.