This License Agreement (“Agreement”) is entered into as of the date you begin a course (the “Effective Date”) by and between Ivy Ladder, LLC, a Massachusetts limited liability company (“Ivy Ladder”), and you (“Licensee”).
Ivy Ladder developed a unique, proprietary program regarding career planning and related activities, among other elements (the “Program”). The Program includes modules, lessons, homework, course materials, tests, and other resources, as well as a website, written materials, videos, and other media.
All aspects of the Program, including any associated trademarks and copyrights, in addition to all other trademarks, copyrights, materials, or concepts in connection with the Program or Ivy Ladder constitute Ivy Ladder’s intellectual and proprietary property and are collectively referred to as the “Ivy Ladder Marks.”
Ivy Ladder is willing to license the Ivy Ladder Marks upon the terms and conditions of this Agreement and Licensee desires to use the Ivy Ladder Marks upon the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and promises contained in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1.Terms of License.
1.1.License. Ivy Ladder hereby grants to Licensee a non-exclusive, nontransferable, limited license (the “License”), without warranty, to use the Ivy Ladder Marks and utilize the Program. Licensee accepts the License, during the Term of this Agreement, subject to the terms and conditions set forth in this Agreement.
1.2.Ivy Ladder Title. This Agreement is not intended to, and does not, convey ownership to Licensee of the Ivy Ladder Marks or the Program or any rights in copyrights, trademarks, trade secrets, moral rights, or any other proprietary rights. Ivy Ladder grants to Licensee only the rights specifically stated in this Agreement. Licensee’s exercise of its rights under this Agreement shall be deemed consistent with and not in violation of any of Ivy Ladder’s intellectual property rights in the Ivy Ladder Marks or the Program.
1.3.Restrictions. Licensee shall not disassemble, reverse engineer or reverse compile the Program, or any part of the Program, and shall only use the Ivy Ladder Marks and the Program as permitted under this Agreement. Licensee shall not remove or alter any copyright or other proprietary notices affixed to or embedded in the Program.
2.Ownership of Marks. Licensee acknowledges that Ivy Ladder owns the Ivy Ladder Marks. Licensee will take no action inconsistent with such ownership and all use of the Ivy Ladder Marks by Licensee shall inure to the benefit of and be on behalf of Ivy Ladder. Nothing in this Agreement shall give Licensee any right, title or interest in the Ivy Ladder Marks other than the right to use the Ivy Ladder Marks in accordance this Agreement. Licensee shall not attack Ivy Ladder’s title to the Ivy Ladder Marks or attack the validity of this Agreement.
3.Restricted Use of Ivy Ladder Marks and Other Prohibited Activities. Without limiting the restrictions that may otherwise apply to Licensee’s use of the Ivy Ladder Marks, Licensee shall not use the Ivy Ladder Marks or engage in any of the following activities:
3.1.Use of Ivy Ladder Logos and Stylized Writing. Licensee shall not alter the form or appearance of any of the Ivy Ladder logos or stylized marks, regardless of where used, including, but not limited to, the proportion, color and font.
3.2.Ivy Ladder Materials. Licensee shall not copy, duplicate, sell, distribute or otherwise disseminate any materials Licensee obtains by virtue of this Agreement.
3.3.Use of Ivy Ladder Marks Other Than to Program Classes. This Agreement does not grant to Licensee any right to use, and Licensee shall not use, any of the Ivy Ladder Marks for purposes of promoting any workshop, training, instruction, session, or other activity other than a Program class.
4.1.Definition of Confidential Information. During the term of this Agreement, both parties may be exposed to certain information, not generally known to the public, and which has been identified by the disclosing party at the time of disclosure as being confidential by means of an appropriate marking that it is confidential, or if disclosed orally, is identified as confidential at the time of disclosure and followed up with a written summary marked “confidential” or the like within thirty (30) days of oral disclosure (collectively the “Confidential Information”).
4.2.Exclusions to Definition. Section 7.1 shall not preclude a party from using or disclosing the same or similar information as the other's Confidential Information to the extent that such same or similar information (i) is generally known to the public on the Effective Date; (ii) becomes generally known after the Effective Date other than as a result of an act or omission of the receiving party; (iii) is rightfully known to the receiving party prior to its receipt thereof from the disclosing party; (iv) is or was disclosed by the disclosing party generally without restriction on disclosure; (v) is received by the receiving party lawfully from a third party without breach of any obligation of trust; or (vi) independently developed by the receiving party without use of the disclosing party’s Confidential Information.
4.3.Obligation to Protect Confidential Information. Each party shall treat the Confidential Information received under this Agreement as they treat their own Confidential Information of like importance but shall not use less than reasonable care to protect the other party’s Confidential Information. The receiving party shall only disclose the Confidential Information of the other party to its employees, consultants, attorneys and accountants under nondisclosure terms consistent with this Agreement for use by such individuals in carrying out the obligations or exercising the rights of a party under this Agreement. Other than as described in the foregoing sentence, a party shall not use, copy or disclose the other party’s Confidential Information. A party receiving Confidential Information of the other shall protect it as such indefinitely after the termination of this Agreement until at least one of the exceptions in Section 7.2 applies. A party does not violate its obligations under Section 7 if it provides Confidential Information in response to a court order or other governmental body or is otherwise required to do so by operation of law; provided, however, that the party required to disclose Confidential Information of the other party shall notify the other party as soon as possible after learning of the disclosure obligation and shall cooperate with the other party, at the other party’s expense, in seeking to limit or prevent such disclosure.
4.4.Publicity. Except as required by law as relates to public and private offerings of securities and compliance with securities law, neither party shall make any press release or other public announcements or disclosures regarding the existence or contents of this Agreement without the express written consent of the other party. If a party is required to disclose the Agreement to the government, then before making such disclosure, it shall provide a draft of the proposed disclosure to the other party with an opinion of counsel as to the need to make the disclosure. Notwithstanding the foregoing to the contrary, Ivy Ladder may use Licensee’s name, logo and/or testimonials for marketing purposes and to identify Licensee as a user of the Program and Ivy Ladder’s services.
5.Infringement Notification and Proceedings. Licensee will promptly notify Ivy Ladder if Licensee becomes aware of any unauthorized use of the Ivy Ladder Marks or Program by a third party. Ivy Ladder shall have the sole right and discretion to bring infringement or unfair competition proceedings involving the Ivy Ladder Marks and to retain the proceeds of any settlement or recovery in any such action. Licensee will cooperate with Ivy Ladder in enforcing and protecting the Ivy Ladder Marks.
6.Term and Termination
6.1.Term. This Agreement shall commence as of the Effective Date and shall continue for an initial period of not more than 2 months and/or to the end of the beta test, whichever comes first.
6.2.Termination for Alleged Breach. If either party believes that the other has breached this Agreement in a material respect, then it shall notify the other, specifying in reasonable detail the alleged breach and supporting facts. The other party shall have thirty (30) days to remedy the alleged breach. If the alleged breach is not cured by the end of such 30 day cure period, then the party claiming breach may send the alleged breaching party a notice of termination, which shall be effective upon receipt.
6.3.Rights and Obligations Upon Termination. Each party’s rights and obligations shall terminate on the effective date of the termination or the expiration of this Agreement. Ivy Ladder will provide Licensee with a final invoice within thirty (30) days after the effective date of the termination or expiration and Licensee will pay Ivy Ladder within thirty (30) days of receipt of the invoice.
6.4.Survival. Any provision of this Agreement that by its very nature or context is intended to survive termination shall survive, including but not limited to Section 1 (“Terms of License”), Section 4 (“Ownership of Marks”), Section 7 (“Confidentiality”), Section 9 (“Term and Termination”), Section 10 (“Effect of Termination”) Section 12 (“Indemnification”), Section 13 (“Limitation of Liability”), Section 14 (“Warranties and Disclaimer of Warranties”), Section 15 (“Miscellaneous”).
7.Effect of Termination. Upon termination of this Agreement, Licensee shall immediately discontinue all use of the Ivy Ladder Marks as well as any and all confusingly similar names and marks, and the Program. In the event Licensee created any unauthorized printed materials containing the Ivy Ladder Marks, Licensee shall immediately destroy all such printed materials. In the event Licensee registered a domain name containing the Ivy Ladder Marks, Licensee shall transfer such domain name to Ivy Ladder. All rights in the Ivy Ladder Marks and the goodwill connected therewith shall remain the property of Ivy Ladder. Licensee shall also return or certify as to destruction of all of Ivy Ladder’s Confidential Information held or received by Licensee pursuant to this Agreement.
8.Relationship of Parties. The legal relationship between Ivy Ladder and Licensee shall be that of licensor and licensee. Nothing in this Agreement shall be construed as creating any partnership, joint venture, agency, franchise, sales representative or employment relationship between the parties, nor shall Ivy Ladder be deemed to be acting in a fiduciary capacity with respect to Licensee. Licensee shall have no authority to make or accept any offers or representations on behalf Ivy Ladder or to otherwise bind Ivy Ladder in any manner. Licensee shall not make any statements or take an actions in any media whatsoever, including, without limitation, electronic media, print media, wireless media or the world wide web, that reasonably may contradict the relationship set forth herein, that reasonably may confuse or mislead any person regarding the nature of the relationship between Ivy Ladder and Licensee.
9.Indemnification. Licensee shall indemnify, defend and hold harmless Ivy Ladder and any of its affiliates along with their directors, officers, employees and agents from any and all losses, liabilities, damages and expenses (including reasonable attorney’s fees and costs) that they may suffer as a result of any claims, demands, actions or other proceedings made or instituted by a third party against any of them that arises out of: (i) any breach by Licensee of any provision of this Agreement, (ii) the use of the Ivy Ladder Marks and the Program by Licensee, or (iii) any other act of malfeasance or nonfeasance on the part of Licensee.
10.Limitation of Liability. Under no circumstances and under no legal or equitable theory, whether in tort, contract, strict liability or otherwise, shall Ivy Ladder or any of its affiliates, employees, directors, officers, agents, vendors or suppliers be liable to Licensee or to 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, without limitation, 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 Ivy Ladder has been advised of or should have known of the possibility of such damages. In no event shall Ivy Ladder be liable for any damages in excess of the fees paid by Licensee pursuant to this Agreement during the six-month period preceding the date on which a claim arises. The parties acknowledge that neither party would have entered into this Agreement in the absence of the limitations set forth in this Section.
11.Warranty and Disclaimer of Warranties
11.1.General Warranties and Representations. Licensor represents and warrants that:
(a)The Program is and shall be Ivy Ladder’s own original work or within the scope of a license granted to Ivy Ladder, directly or indirectly, by the owner or copyright holder, and that as of the Effective Date, no claim of violation of an intellectual property or proprietary right has been asserted that has not been dismissed with prejudice against Ivy Ladder, or the applicable copyright holder, with regard to the foregoing, nor is Ivy Ladder aware of any such claim being contemplated by a third party.
(b)Ivy Ladder is authorized to enter into this Agreement and grant the rights and licenses described in this Agreement and has not entered into any other contract that (i) grants to any other person an exclusive license to the Ivy Ladder Marks or the Program, or (ii) conflicts with this Agreement.
11.2.Limited Remedy. Licensee’s exclusive remedy and Ivy Ladder’s sole obligation for breach of the foregoing warranty will be for Ivy ladder to modify or replace, or if modification or replacement is not practical within a reasonable period of time then refund a pro-rated portion of the Fee already paid, as applicable, by Licensee for the applicable Program or Ivy Ladder Mark.
11.3.Disclaimer of Warranties. Except for any express representations or warranties contained in this Agreement, Ivy Ladder makes no representations or warranties, express or implied, to Licensee with respect to the Program, the Ivy Ladder Marks or any products sold through Ivy Ladder, including, without limitation, warranties of fitness, merchantability, non-infringement or any implied warranties arising out of a course of performance, dealing, or trade usage. In addition, Ivy Ladder makes no representation that the operation of Ivy Ladder’s website will be uninterrupted or error- free. Ivy Ladder shall not be liable for the consequences of any interruptions or errors.
12.1.Controlling Law and Jurisdiction. This Agreement shall be governed and construed according to the laws of the Commonwealth of Massachusetts, without regard to any conflict of laws provisions. The parties consent to jurisdiction of the state or federal courts in the Commonwealth of Massachusetts, Norfolk County, for any dispute or controversy arising under or pursuant to this Agreement.