I. PURPOSE AND BACKGROUND
The purpose of this Agreement is to clearly identify the roles and responsibilities of each party as they relate to the Affiliate’s utilization of RSB’s programming.
RSB is a one-of-a-kind, Indianapolis-based nonprofit gym founded in 2006 to provide a uniquely effective form of physical exercise to people who are living with Parkinson’s. It operates to improve the quality of life for persons with Parkinson’s through a non-contact boxing-based fitness curriculum (“Curriculum”) in conjunction with its trademark, ROCK STEADY BOXING®, and other trademarks, trade names, service marks or logos described in Exhibit A.
This Agreement will help expand RSB’s reach and allow its programming to be shared with more people across the country in desperate need of an improved quality of life because of Parkinson’s.
This Agreement serves to address intellectual property, quality control, naming, audits and reviews, pricing, indemnification and other topics in order for the Affiliation to go smoothly.
II. AGREEMENT BETWEEN PARTIES
Core Terms and Fees
1. Recitals. The Purpose and Background recitals from Article I, above, are hereby incorporated as a part of this Agreement.
2. Term. This Agreement shall remain in effect for a period of twelve (12) months from the date of its execution by the parties. It will be automatically extended for additional subsequent twelve (12) month periods unless, at least 30 calendar days prior to the end of any such period, either party provides written notice to the other that it intends not to renew this Agreement.
3. Authorization. Affiliate shall be authorized to represent itself as an RSB Affiliate and conduct the RSB Curriculum, pursuant to and in accordance with this Agreement.
4. General Fees and Payments. RSB shall not require any affiliation fees upon the execution of any agreement nor for royalties based on sales, revenue, ramp installations or other similar measure. This arrangement is not created for the purpose of RSB to gain fees nor is it for the profit of RSB. The purpose of the arrangement is purely to further expand the reach of the RSB Curriculum and increase the number of people being assisted. However, RSB shall require payment by Affiliate for some or all of the following:
a. Training;
b. Advertising;
c. Renewal;
d. Inventory;
e. Transfer;
f. Rent;
g. Performance Reviews/Audits;
h. Any back-office services provided by RSB; and
i. Any payment of expenses incurred by RSB or its personnel from paragraphs 4.a. through 4.h., above, which includes but is not limited to travel, airfare, hotel, car rental and gas, meals, and staff or volunteer time.
Any fees that are payable from Affiliate to RSB shall be for an above-defined purpose and must not merely be derived from the existence of the parent-affiliate relationship.
5. Fees. The Affiliate is required to pay an annual fee (or 12 monthly payments , which must be paid via an auto-pay system) for RSBs services in providing continuous training, access to partnerships/collaborations with other relevant organizations, various Curriculum-related resources, and quality assurance. The annual fee as well as all other fees connected with this Agreement can be found on RSB’s pricing sheet. This pricing sheet may be updated periodically at the discretion of RSB, subject to the terms of paragraph 49.
6. Renewal Fees. The renewal fee to be paid by the Affiliate may be materially different from the initial fee, but need not be. The renewal fee shall cover on-going resources and updated trainings. RSB shall notify the Affiliate of any increase in the renewal fee at least sixty (60) days prior to the end of the term of this Agreement. This Agreement shall renew on the 15th day of the month in which the Affiliate first entered into the relationship with RSB.
7. Late Fees. If any payment to be made to RSB by the Affiliate is more than fifteen (15) days past due, then Affiliate shall be subject to a late fee at the discretion of RSB.
8. Re-Activation Fees. If an Affiliate has been terminated by RSB for any reason, then such Affiliate shall be charged a re-activation fee to become an affiliate again plus any outstanding annual fees and late fees. Affiliate’s payment due dates and renewal dates shall remain as the original dates. Prior to approval for re-activation a new application is required.
Obligations and Continued Assistance
9. RSB’s Obligations and Continued Assistance. So long as Affiliate is in good standing under this Agreement, RSB will provide Affiliate with:
a. The use of RSB’s wholesale discount through selected retailers;
b. Affiliate’s location and contact information listed on www.RockSteadyBoxing.org;
c. An online private Affiliate discussion forum for all Affiliates;
d. Access to all RSB application paperwork, training videos and documents, and medical research through the online Affiliate Management System;
e. Updates regarding training methods and RSB “Affiliate Certification Training” curriculum;
f. Access to RSB personnel to answer questions and facilitate implementation of the Curriculum; and
g. Other communications and support made available from time to time to all Affiliates.
10. Affiliate’s Obligations. During the Term of this Agreement, Affiliate shall:
a. Identify its RSB classes as an affiliate program of RSB;
b. Affiliate acknowledges that RSB programs are for non-contact fitness and not for any form of sparring, fighting, or contact with another person;
c. Offer RSB classes only to those persons diagnosed with Parkinson’s disease, or Atypical forms of Parkinson’s including; Corticobasilar Ganglionic Degeneration (CBD), Progressive Supranuclear Palsy (PSP), Dementia with Lewy Bodies (DLB), Multiple Systems Atrophy (MSA).
d. Offer RSB classes for a minimum of sixty (60) minutes (90 minutes is the ideal length);
e. Require an RSB Certified Coach to direct the RSB classes. The training for such coaches is to be provided by RSB pursuant to paragraph 21;
f. Maintain in full force and effect all insurance as RSB may reasonably specify and in such coverages, limits and amounts as RSB requires and provide evidence of the same at RSB’s request. Such insurance must name RSB as an additional insured and provide proof of insurance as of the Effective Date of this Agreement and on each subsequent renewal date;
g. Be solely responsible for and shall bear all costs and liabilities associated with its facility, the organization, programming, membership fees or dues, operation, publicity, marketing, promotion, advertising, equipping, supply, fundraising, funding, incorporation, legal affairs and all other aspects of business, including selection, compensation, monitoring and supervision of employees, contractors, staff members;
h. Be solely responsible for the supervision and monitoring of participants, clients, visitors and patrons, and carrying out the RSB class in a proper, safe, professional and legal manner;
i. Obtain written assumption of risk and waivers of liability from any individual who uses or participates in the RSB class. Such waivers shall be signed in advance of any use or participation in the class, and shall release and hold harmless RSB, and RSB’s officers, affiliates, directors, agents, staff, volunteers, suppliers, licensors, licensees and employees from and against any and all actions, judgments, settlements, claims, liabilities, losses, damages, expenses, and costs (including court costs and attorney’s fees), including, without limitation, for any property damage, personal injury, death or any other action, claim, liability, loss, damage or expense against Affiliate based on Affiliate’s operation of Affiliate’s business or premises; and
j. Promptly notify RSB of any litigation commenced or threatened against Affiliate.
Affiliate acknowledges and agrees that failure to comply with any of the above-listed items constitutes a breach of this Agreement and subjects this Agreement to termination in RSB’s sole discretion.
Licensed Marks and Technology
11. Grant of License. RSB has developed and owns the names Rock Steady Boxing, RSB, its programming descriptions, certain logos, a color scheme, branding, font usage practices, and related copyrighted and/or proprietary materials as reflected on the attached Exhibit A (collectively, the RSB “Licensed Marks”). RSB hereby grants Affiliate a nonexclusive, nontransferable right and license to use, reproduce, distribute, and display RSB Licensed Marks and the right to conduct the Curriculum as an RSB affiliate. RSB shall provide the use of the RSB Licensed Marks, and access to RSB’s branded marketing materials for as long as Affiliate and RSB are affiliated. Affiliate shall not use the RSB Licensed Marks other than in direct connection with the Curriculum and marketing and fundraising for the same (each as described further below). If/when the affiliation between RSB and Affiliate ceases, for whatever reason, Affiliate shall cease and desist from using any and all RSB Licensed Marks.
12. Affiliate’s Licensed Marks Acknowledgements. Affiliate expressly acknowledges and agrees that Affiliate is not permitted to and shall not use the Licensed Marks, described in more detail below, for the following purposes:
a. As a part of the formal or registered name for a partnership, corporation, limited liability company, sole proprietorship or other legal entity unless Affiliate receives prior written consent from RSB which permission may be granted or withheld in RSB’s sole and absolute discretion;
b. As an element in an Internet domain name, unless Affiliate receives prior written consent from RSB which permission may be granted or withheld in RSB’s sole and absolute discretion;
c. In connection with the production, advertising, marketing, and sale of merchandise including but not limited to boxing gloves and hand wraps unless Affiliate receives prior written consent from RSB which permission may be granted or withheld in RSB’s sole and absolute discretion;
d. In connection with offering or conducting training or services that are distinct from the Curriculum. Affiliate shall in no way imply that such services are approved, endorsed, sanctioned or promoted by RSB; and
e. In any manner that is not expressly provided for in this Agreement and is without RSB’s prior written approval.
13. Use of Licensed Marks. Affiliate shall use the Licensed Marks only as described below:
a. Affiliate shall use the Licensed Marks only in the form shown in Exhibit A or as otherwise approved in writing by RSB. Any unauthorized use of the Licensed Marks by Affiliate shall constitute a breach of this Agreement. Affiliate acknowledges and agrees that any use of the Licensed Marks other than in accordance with this Agreement or otherwise directed in writing by RSB, without RSB’s prior consent, is an infringement of RSB’s rights therein and that the right to use the Licensed Marks granted herein does not extend beyond the termination or expiration of this Agreement.
b. Affiliate acknowledges that the unauthorized use of the Licensed Marks will cause irreparable injury to RSB and that damages are not an adequate remedy. Accordingly, Affiliate hereby consents to the entry of an injunction, without bond, prohibiting any conduct by Affiliate in the event Affiliate uses, or threatens to use, the Licensed Marks in an unauthorized manner. Affiliate further agrees to pay all costs and expenses (including reasonable attorney’s fees at all levels) incurred by RSB in connection with obtaining such injunction.
c. Affiliate’s use of the Licensed Mark shall be in a commercially acceptable manner to protect the value of the Licensed Mark and goodwill associated therewith. Further, the nature and quality of the use of the Licensed Mark by Affiliate shall, throughout the Term, conform to the use and quality standards established by and under the control of RSB. Affiliate acknowledges that RSB has the right and duty to assure that the use of the Licensed Mark by Affiliate meets RSB’s quality standards at all times. Affiliate must receive RSB’s prior written consent for all publications and materials bearing the Licensed Marks before using such publications and materials and Affiliate shall permit RSB, or its designee, to monitor the quality of the advertising and marketing in which the Licensed Mark is used. Affiliate shall also (a) only use the Licensed Mark in the manner approved by RSB in RSB’s sole discretion; and (b) supply RSB with specimens of Affiliate’s use of the Licensed Mark upon RSB’s request.
d. Affiliate shall not create, display, promote, advertise, distribute or use, directly or indirectly, any derivative, modification or confusingly similar version of any Licensed Marks or any other name, logo, trademark, trade name or service mark, including but not limited to the taglines “fighting back against Parkinson’s” and “In this corner: Hope.”, in whole or in part. Affiliate shall include where appropriate the registered trademark designation ® and a statement that the Licensed Marks are used under license from RSB, and other proprietary notices as reasonably required by RSB or by law. Affiliate may add the location name or tagline to the Licensed Marks; provided, however, that the location name or tagline does not appear as a part of the original logo.
e. RSB shall have the right to prohibit any use by Affiliate of the Licensed Marks in connection with the Curriculum or on any marketing, advertising, or promotional materials if RSB believes that the use of such materials by Affiliate will be damaging to or dilutive of the value of the Licensed Marks. Affiliate will immediately cease any use of the Licensed Marks upon RSB’s request.
f. Affiliate shall comply with all applicable laws, rules and regulations pertaining to the proper use and designation of trademarks in each country or territory in which Affiliate uses the Licensed Marks.
14. Ownership of Licensed Marks. Affiliate acknowledges and agrees as follows:
a. That the Licensed Marks and all rights therein and goodwill pertaining thereto belongs exclusively to RSB and that all rights and goodwill resulting from Affiliate’s use of the Licensed Marks inures to the benefit of RSB and will not create any right, title or interest for Affiliate in the Licensed Marks. In addition, all printed, audio and video materials made available to Affiliate in relation to the Curriculum shall remain the property of RSB, although Affiliate may continue to use such materials for purposes of providing the Curriculum through the Curriculum, so long as this Agreement is in effect.
b. That it has no interest in the Licensed Marks other than the license granted under this Agreement and that RSB shall remain the sole and exclusive owner of all right, title and interest in and to the Licensed Marks and all modifications, updates, improvements, derivative works and enhancements related thereto, whether made by Affiliate and whether during or after the Term.
c. That this Agreement shall not restrict RSB’s right to use and/or license the Licensed Marks in any way. Affiliate agrees that it will do nothing inconsistent with RSB’s ownership of the Licensed Marks. Affiliate shall not do or cause to be done any act or thing contesting, opposing or challenging or in any way impairing or tending to impair any of RSB’s right, title, and/or interest in or to the Licensed Marks (or any portion thereof). Affiliate shall not register or attempt to register the Licensed Marks or any other RSB Licensed Marks in any jurisdiction and will not oppose RSB’s registration or use of the Licensed Marks, alone or with other words or designs, in any jurisdiction.
15. Changes to Licensed Marks. Affiliate hereby irrevocably assigns, transfers, releases and conveys to RSB, from the moment of its creation, all right, title and interest in and to any modification, enhancement, update, improvement or derivative work related to or based on the Licensed Marks and all intellectual property rights embodied in or pertaining to any of the foregoing.
16. Infringement of Licensed Marks. Affiliate must notify RSB immediately if Affiliate receives notice, or is informed, of any infringing or unauthorized use of the Licensed Marks. RSB shall have the sole right to handle disputes with third-parties concerning the Licensed Marks. If RSB undertakes the defense or prosecution of any dispute or litigation pertaining to the Licensed Marks, Affiliate must sign any documents and do acts as may, in RSB’s attorneys’ opinion, be necessary to the defense or prosecution. RSB is not obligated to defend Affiliate’s right to use the Licensed Marks or against claims of infringement or unfair competition arising out of Affiliate’s use of the Licensed Marks.
17. Technology. RSB shall make available the use of RSB technology including, but not limited to, the AMS system, LMS technology, and web domain (the “Technology”). Affiliate acknowledges that this Technology is owned by RSB and is available for use only in furtherance of Affiliate’s execution of the RSB Curriculum. At no time shall Affiliate copy, take, utilize, or replicate the Technology other than within the context of the authorized Curriculum. If/when the affiliation between RSB and Affiliate ceases, for whatever reason, Affiliate shall cease and desist from using any and all Technology.
18. Marketing. Affiliate shall market the Curriculum to local communities to aid in identifying potential participants in need of benefits provided by the Curriculum. Affiliate and RSB shall collaborate marketing efforts by using collateral material and advertising developed and approved by RSB. Alternately, RSB will provide collateral artwork so that Affiliate can print their materials locally. If Affiliate wishes to develop materials locally, the design must be approved by RSB to ensure that use of Licensed Marks is appropriate; in such events, the Licensed Marks is owned by RSB as a work for hire and subject to all other terms of this Agreement. Upon RSB request, Affiliate shall provide samples of actual advertising, promotional materials, educational, and other materials prepared by or for Affiliate. If/when the affiliation between RSB and Affiliate ceases, for whatever reason, Affiliate shall cease and desist from using any and all RSB-related marketing materials, regardless of whether the materials were created by RSB or by Affiliate and approved by RSB.
19. Quality Control. Affiliate understands and agrees that it shall, at all times, operate the Curriculum in a manner consistent with the high standing, reputation, and goodwill of RSB, and with the goals and values embodied within the Curriculum standards and policies. Affiliate may not operate the Curriculum in any manner that would reflect adversely upon RSB. As such, and as contemplated by this Agreement, RSB may monitor the quality and manner in which Affiliate operates the Curriculum. Affiliate will take such steps as RSB reasonably requests with such monitoring, and acknowledges that RSB may take any action it considers necessary to ensure that Affiliate’s activities in operation the Curriculum are consistent with the reputation for quality and safety associated with RSB.
20. Confidentiality. In working together on the Curriculum, RSB and Affiliate may share non-public information (“Confidential Information”), including but not limited to: data, books, records, properties, contracts, concepts, ideas, know-how, techniques, computer programs, marketing plans, client names, manuals, guidelines, Licensed Marks, Technology, and any other technical, financial, or business information.
a. RSB and Affiliate shall each use the other party’s Confidential Information only in connection with activities under this Agreement and will keep this information confidential. All Confidential Information furnished under this Agreement is and will remain the property of the furnishing party and such information in the possession of the other party shall be destroyed.
b. Affiliate acknowledges that the unauthorized use or disclosure of Confidential Information will cause irreparable injury to RSB and that damages are not an adequate remedy. Affiliate accordingly covenants that it shall not at any time, without RSB’s prior written consent, disclose, use, permit the use thereof, copy, duplicate, record, transfer, transmit, or otherwise reproduce such Confidential Information, in any form or by any means, in whole or in part, or otherwise make the same available to any unauthorized person or source, except as may be required by applicable law or authorized by this Agreement. Disclosure of the Confidential Information may be made in judicial or administrative proceedings, but only to the extent Affiliate is legally compelled to disclose the Confidential Information and provided that Affiliate first gives RSB the opportunity to obtain an appropriate protective order or other assurance that the confidential nature of the material to be disclosed will be maintained.
c. Affiliate acknowledges and agrees that if Affiliate develops any concept, process, design, service, or improvement in the operation or promotion of the Curriculum, RSB will be deemed to own the improvements and may use them and authorize other RSB Affiliates to use them without any obligation to compensate Affiliate. Any such Improvements will also constitute Confidential Information. Affiliate shall, at any time requested by RSB, execute assignments or other similar documents of all such intellectual property to RSB, including but not limited to, worldwide copyrights, moral rights, patents, right to obtain registrations, renewals, and reissues, and any and all such other rights of whatever kind now known or hereafter devised.
Training and Construction
21. Training. RSB shall provide Affiliate with a certification process involving an online course followed by a Skills Lab, as described below. These trainings are based on the best practices developed by the exercise, medical and rehabilitation professions and, specifically, on the standards and guidelines for health/fitness facilities and programs published by the American College of Sports Medicine, the Parkinson’s Foundation, and the Medical Fitness Association. RSB shall also provide a recertification process every two years that involves an online course.
22. Online Course. The online head coach training will include:
a. This 12-hour self-guided training encompasses all of the principles and techniques necessary to enhance the participant’s knowledge of coaching at a successful RSB affiliate location. Those completing both the online course and the in-person skills lab outlined below will be a Rock Steady Boxing Certified Head Coach and can independently lead RSB classes and an Affiliate program. online course are Rock Steady Boxing Certified Coaches and qualified to lead classes independently but are not able to oversee the program as a whole or manage other coaches.
23. Skills Lab. The Training Camp will include:
a. Hands-on trainings with the Curriculum;
b. Participation in various levels of Rock Steady Boxing classes
c. Hands-on training for boxing basics
24. Advanced Trainings. RSB shall provide advanced trainings and classes to Affiliates starting in the second year of this Agreement. These trainings are intended to provide Affiliates with on-going training and information about how to improve their implementation of the Curriculum regarding current best practices and their business operations as well.
Warranties, Representations, and Acknowledgements
25. RSB’s Warranties, Representations, and Acknowledgements.
a. Under no circumstances does RSB represent or imply that the Curriculum constitutes physical therapy, rehabilitation, or medical treatment of any kind or is a sufficient substitute for physical therapy, rehabilitation, or medical treatment of any kind.
b. RSB makes no warranties or representations about Affiliate’s own or Affiliate’s client’s safety, nor does it assume any liability whatsoever for what occurs under Affiliate’s direct or indirect supervision of clients.
c. Except as expressly described in this Agreement, RSB does not make any warranties, express, implied, arising from course of dealing, usage of trade, or statutory, as to the Licensed Marks, Curriculum or any matter whatsoever.
d. Except as expressly described in this Agreement, any and all warranties of title, merchantability, non-infringement, and fitness for a particular purpose are expressly excluded by RSB.
26. Affiliate’s Warranties, Representations, and Acknowledgements.
a. Affiliate warrants that it has completed the RSB Pre-Application Checklist.
b. Affiliate acknowledges and agrees that the Curriculum is a basic certification program providing basic education and information and in no way constitutes training for the professions of personal training and fitness training. Certification through RSB indicates, at most, that Affiliate has demonstrated intellectual understanding of the Curriculum presented in RSB’s program, and not the proven ability to teach clients safely or effectively. Further training may be required for Affiliate to achieve its goals and be able to teach the Curriculum to clients safely, effectively, or without injury.
c. Affiliate acknowledges and agrees that the Curriculum, Licensed Marks, and any other information or materials made available or provided to Affiliate by RSB hereunder are licensed or provided on an “as is” basis.
d. Affiliate acknowledges that it shall not have the right to make or pass on, and shall take all measures necessary to ensure that neither Affiliate nor any of its agents or employees shall pass on, any express or implied warranty on behalf of RSB to any third parties.
Staff and Clients
27. Staffing. Affiliate shall have the responsibility to select, supervise, and maintain appropriate staffing (whether employees, independent contractors or volunteers). Affiliate shall promptly notify RSB of any changes in its management team or key personnel responsible for the Curriculum.
28. Client Selection. Affiliate shall select clients who have been diagnosed with Parkinson’s disease and have received medical approval.
Fundraising
29. Funding. Affiliate will be solely responsible for funding its operation of the Curriculum, including, without limitation, raising private funds and securing contracts with third parties. Affiliate shall keep RSB informed about its fundraising efforts. This includes, without limitation, providing information about amounts received or committed from funders and grant-makers. Affiliate shall make available Affiliate’s fundraising materials for review by RSB. RSB shall have no obligation to provide Affiliate with any financial support in the form of loans, advances, grants, expense reimbursement, deferral or waiver of fees, or otherwise, except as otherwise provided by this Agreement. If/when the affiliation between RSB and Affiliate ceases, for whatever reason, Affiliate shall cease and desist from using any and all RSB-related fundraising materials, regardless of whether the materials were created by RSB or by Affiliate and approved by RSB.
Recordkeeping and Reporting
30. Recordkeeping. Affiliate shall maintain records in a manner such that RSB can evaluate compliance with this Agreement and obligations hereunder and shall make those records available for review by RSB on reasonable notice during the term of this Agreement and for a period of three years after its termination, regardless of the reason for termination. Affiliate shall cooperate with RSB in providing information relating to its activities under this Agreement.
31. Reporting. Affiliate shall regularly provide all reports regarding the Curriculum and its activities and operations, including financial reports, to RSB. Affiliate shall promptly provide other materials and information as may be reasonably requested by RSB.
Insurance and Indemnification
32. Insurance. Affiliate shall obtain, at its sole cost and expense, minimum insurance requirements, which include insurance for:
a. Commercial general liability claims in the amount of at least one million dollars in coverage per occurrence and two million dollars of total coverage.;
b. Volunteer Coverage/Accident Coverage (if not already included in the Commercial General Liability coverage) in the amount of at least one million dollars in coverage per occurrence and two million dollars of total coverage.
RSB shall be named as an additional insured. Affiliate shall provide proof of coverage (Certificate of Insurance) to RSB at the time of renewal.
33. Indemnification. Affiliate shall defend and indemnify RSB its officers, directors, agents, and employees, against all costs, expenses, and losses (including reasonable attorneys’ fees and costs) from claims of third parties against RSB based on Affiliate’s activities under this Agreement.
RSB shall defend and indemnify Affiliate from and against all claims from third parties that arise out of the use of the RSB Licensed Marks and/or Technology as authorized by this Agreement, in which the third party claims such use infringes, misappropriates, or violates the intellectual property of such third party. RSB shall not be obligated to indemnify Affiliate under this section to the extent such intellectual property claim arose out of the gross negligence or willful misconduct of Affiliate.
Non-Competition Covenants and Non-Solicitation
34. Non-Competition During Term. During the term of this Agreement, Affiliate, its Owners, officers, directors, and any guarantors and their respective spouses shall not, either directly or indirectly, as a proprietor, partner, investor, lender, shareholder, director, officer, member, manager, employee, principal, agent, representative, advisor, franchisor, franchisee, consultant or otherwise, engage in any other business that offers therapeutic boxing to persons who have Parkinson's disease (“Competitive Business”). The purpose of this covenant is to encourage Affiliate, its Owners, officers, directors, and any guarantors to use their best efforts to promote the Curriculum, and its services, and to protect the Curriculum, Confidential Information, and trade secrets.
35. Non-Solicitation of Employees. During the term of this Agreement, and for a period of one (1) year immediately following the date of termination or expiration of this Agreement, Affiliate, its Owners, officers, directors, and guarantors shall not employ or seek to employ any person who is, or within twelve (12) months of such employment or solicitation was, an employee of RSB, or other RSB Affiliates, or otherwise directly or indirectly induce that person to leave the employment, without obtaining that person's and the employer's prior written permission.
36. Enforcement of Non-Competition Covenants. Affiliate, its Owners, officers, directors, and guarantors acknowledge and agree that a violation of the terms of the Non-Competition Covenants in this Agreement would result in immediate and irreparable injury to RSB for which no adequate remedy at law is available. Accordingly, Affiliate, its Owners, officers, directors, and guarantors and their respective spouses hereby consent to the entry of an injunction, without bond, prohibiting any conduct by Affiliate in the event they are in violation of, or threaten violation of, the terms of the Non-Competition Covenants set forth in this Agreement. Affiliate further agrees to pay all costs and expenses (including reasonable attorney’s fees at all levels) incurred by RSB in connection with the enforcement of the Non-Competition Covenants set forth in this Agreement.
Termination
37. Termination by RSB. RSB may terminate this Agreement immediately upon written notice to Affiliate without an opportunity to cure if Affiliate:
a. Becomes insolvent or makes a general assignment for the benefit of creditors, or if a petition in bankruptcy is filed by Affiliate, or such a petition is filed against and consented to by Affiliate, or if a bill in equity or other proceeding for the appointment of a receiver of Affiliate or other custodian for the business or assets is filed and consented to by Affiliate, or if a receiver or other custodian (permanent or temporary) of Affiliate’s assets or property, or any part thereof, is appointed;
b. Makes or made any materially false statement or misrepresentation or omission in connection with the application process or this Agreement;
c. Fails to strictly comply with all applicable civil and criminal laws, ordinances, rules, regulations and orders of governmental authorities pertaining to the maintenance and operation of the business including, without limitation, those relating to health, safety, sanitation, employment, and taxation;
d. Uses the Licensed Marks in an unauthorized manner contrary to, or inconsistent with, this Agreement or RSB’s policies, standards or specifications, or otherwise directed in writing by RSB;
e. Discloses or causes to be disclosed any Confidential Information provided to Affiliate contrary to the provisions of this Agreement or fails to exercise reasonable care to prevent such disclosure;
f. Engages in or persists in conduct that would reflect unfavorably upon RSB, the Licensed Marks or upon the operation and reputation of RSB’s business, including, without limitation, a felony or any other criminal act, conduct or misconduct that would raise a substantial question about the Affiliate’s fitness or ability to provide Rock Steady Boxing classes or be in business with RSB;
g. Violate the in-term covenant not to compete by engaging in any other Competitive Business or opening any Competitive Business other than as an Affiliate of RSB during the term of this Agreement;
h. Attempts to transfer or assign this Agreement without prior written consent from RSB;
i. Fails to provide appropriate proof of insurance within one (1 months of the Effective Date of this Agreement.
In the event Affiliate is in default in the performance of any of the terms of this Agreement, other than those calling for immediate termination set forth above, RSB will provide Affiliate with written notice of such default and an opportunity to cure such default within a prescribed time frame designated by RSB. RSB reserves the right to modify the time period within which Affiliate must cure defaults in its discretion. RSB may, in addition to all remedies that RSB has available to it at law or in equity, declare this Agreement terminated upon giving thirty (30) days prior notice to Affiliate for any uncured breach of this Agreement by Affiliate.
In the event Affiliate is determined to be in default based on the provisions in this paragraph, then all outstanding fees will be due and owing at such time.
38. Termination by Affiliate. After one (1) year, Affiliate may terminate this Agreement at any time upon giving sixty (60) days prior written notice.
39. Effect of Termination. Upon termination of this Agreement, for any reason by either Party, Affiliate shall:
a. not accept new clients into the Curriculum, seek funding for the Curriculum, or enter into new contracts with third parties in connection with operation of the Curriculum;
b. immediately discontinue all use of the Licensed Marks;
c. cease all use of the RSB Curriculum;
d. pay all amounts due to RSB within five (5) days of the termination or expiration of the Agreement;
e. return and discontinue use of all proprietary information, including but not limited to forms, manuals, advertising material, insignias, and slogans and provide proof of such discontinuance; and
f. strictly comply with all other provisions of this Agreement pertaining to post-termination obligations.
Notice
40. Notice. Notices under this Agreement shall not be deemed valid unless given or served in writing and forwarded by mail, postage prepaid, addressed or emailed as follows:
Rock Steady Boxing, Inc.:
Name, Title: Sara Roque, Affiliate Services Director
Address: 6847 Hillsdale Ct, Indianapolis, IN 46250
e-mail: sroque@rocksteadyboxing.org
phone number: 317-255-7035
[Name of Affiliate]:
Name, Title
Address 1
Address 2
e-mail address
phone number
Relationship of the Parties
41. Independent Relationship. RSB and Affiliate acknowledge and agree that RSB and Affiliate are independent, and no agency, partnership, joint venture, employee-employer or franchisee-franchisor relationship is intended or created by this Agreement. Neither party shall have any right or authority to assume or create any obligations of any kind or to make any representation or warranty on behalf of the other party, whether express or implied, or the power to bind the other party in any respect whatsoever.
42. Affiliate’s Employees. Affiliate’s personnel involved in its business shall at all times be employees or subcontractors/independent contractors of Affiliate and not of RSB. Affiliate shall be solely responsible for payment of all compensation for such personnel and all related taxes and benefits. It is Affiliate’s responsibility to avoid any confusion regarding whether Affiliate’s personnel are employees or subcontractors of Affiliate or RSB.
General Provisions
43. Tax Status. RSB shall at all times be in good standing as a nonprofit corporation that is exempt from federal income tax as a public charity under Sections 501(c)(3) and 509(a) of the Internal Revenue Code of 1986, as amended (the “Code”).
44. Corporate Governance. RSB shall conduct its activities in accordance with the terms of RSB Articles of Incorporation, Bylaws, and governance policies as exist or may be revised from time to time. Affiliate shall amend its Bylaws to acknowledge the existence of this Agreement and requirements to be bound thereto.
45. Governing Law. This Agreement and performance hereunder will be construed in accordance with the laws of the State of Indiana without regard to the principles of conflict of laws.
46. Venue. A party asserting a claim against the other party may initiate a suit, action or legal proceeding to resolve the claim; provided, however, that such suit, action, or legal proceeding shall only be brought in a court of competent jurisdiction in the same county as the then-current principal office of RSB. Each of the parties irrevocably and unconditionally consent to the jurisdiction of each such court in any suit, action or proceeding and waive any objection which it may have to the laying of venue of any such suit, action or proceeding in any of such courts. To the fullest extent permitted by law, Affiliate irrevocably submits to the jurisdiction of such forum and waives the right to any objection to the jurisdiction or venue of such forum.
47. Limitations. Affiliate shall not carry on any activities that are not in furtherance of and consistent with the charitable purposes of RSB within the meaning of Section 501(c)(3) of the Code.
48. Severability. If any part, section, sentence or clause of this Agreement shall be held to be indefinite, invalid or otherwise unenforceable, the provision which is indefinite, invalid or unenforceable shall be deemed deleted, and the remaining part of this Agreement shall continue in full force and effect.
49. Modification. The terms of this Agreement and any of the policies, reference sheets, documents, etc. mentioned herein may be amended from time to time. The amendments shall be effective at the time notice of such is sent, unless otherwise noted. If the amendments reduce Affiliate’s rights or increase Affiliate’s responsibilities, RSB will provide notice via email and provide at least twenty-one (21) days advance notice. By continuing to use the services outlined under this Agreement after any amendments, Affiliate agrees to abide and be bound by those amendments. If Affiliate does not agree with any amendments to this Agreement, Affiliate may terminate its relationship with RSB.
50. Headings. All headings are for reference purposes only and shall not control or alter the meaning of this Agreement as set forth in the text.
51. Waiver. Either Party’s waiver of, or failure to exercise, any right provided for in this Agreement, shall not be deemed a waiver of any further or future right under this Agreement.
52. Assignment. This Agreement, or the rights granted to Affiliate under this Agreement, may not be assigned, transferred, or sub-licensed, without the express prior written consent of RSB. RSB may grant, assign or sublicense this Agreement or any of its rights or obligations herein in its sole discretion.
53. Binding Effect. This Agreement shall bind and inure to the benefit of and be enforceable by RSB, the Affiliate, and their respective permitted successors (including personal representatives, heirs and legatees), agents, contractors, employees, owners, and other similarly situated persons.
54. Effective Date. This Agreement shall be in effect upon the signature of the authorized officials of RSB and Affiliate.
55. Name of Affiliate. Affiliate agrees and acknowledges that it uses its name under license with RSB. Affiliate has done all appropriate name availability searches in their respected state and represents that it is authorized to utilize this name under corporate and intellectual property law.
56. Entire Agreement. This Agreement constitutes the only agreement, and supersedes all prior agreements and understandings, both written and oral, among the Parties with respect to the subject matter hereof. Any Exhibits hereto are a material part of this Agreement and are incorporated by reference. This Agreement, including any Exhibits hereto, may not be amended or modified, except in a writing signed by both Parties to this Agreement. Each provision of this Agreement shall be separately enforceable, and the invalidity of one provision shall not affect the validity or enforceability of any other provision. The failure of either Party to exercise any of its rights under this Agreement shall not be deemed a waiver of such rights.
57. Multiple Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together constitute one and the same instrument.
58. Signatures. The Parties signing below hereby represent and warrant that such individuals are authorized to sign on behalf and bind their respective entities and do so intend to bind them by signing below.
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Pricing Sheet
1. Initial Fee for new affiliate = $1,000
2. Renewal Fee = $1,000 or $105.67 a month
a. Those locations with an individually negotiated or grandfathered fee will remain at the established rate
3. Late Fees = $35
4. Re-Activation Fee = $80
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Exhibit C
Limitations on Use of RSB Curriculum and Licensed Marks by Senior Living Facilities and other Residential Programs
1. The terms of this Exhibit shall control over any terms to the contrary in the main agreement.
2. The Affiliate agrees to use the RSB Curriculum and Licensed Marks solely for the benefit of Affiliate’s residents and not for use by the general public.
3. The Affiliate agrees to maintain accurate records of the use of the RSB Curriculum and Licensed Marks and to make such records available to RSB upon request.
4. The Affiliate acknowledges that any unauthorized use or distribution of the RSB Curriculum and Licensed Marks may result in irreparable harm to RSB and that RSB may seek injunctive relief, in addition to any other remedies available at law or in equity.
5. The limitations on use of the RSB Curriculum and Licensed Marks forth in this Exhibit C shall survive termination or expiration of this Agreement.
6. The Affiliate acknowledges that it has read and understood the terms of this Exhibit C and agrees to be bound by its terms.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.
ROCK STEADY BOXING, INC.