Lionheart Fitness Kids Certification and License Agreement
Lionheart Fitness Kids LLC (LHFK) and Certification Participant (“Participant”) enter into this agreement (the “Agreement”), which is to be effective the date of execution (the “Effective Date”).
1. Agreement: Participant wishes to become a Lionheart Fitness Kids Certified Coach or Assistant Coach through LHFK’s Certification Program. Upon successful certification, Participant will be granted the rights and undertake the obligations contained herein.
2. Grant of License Conditioned on Certification:
(a) Participant will complete all the necessary LHFK classes online to be come an “Certified Assistant Coach” OR Participant will complete all required LHFK classes via LHFK’s on-site training and testing to be come an “Certified Coach.”
(b) Participant will complete LHFK’s comprehensive study guide, training videos, marketing demonstration, lecture notes and/or on-site instruction (“Coursework”).
(c) Participant will successfully demonstrate his or her completion of Coursework and score 80 percent or higher on his or her on-site or on-line examination. Participant understands that LHFK has complete discretion as to the standards and requirements of the examination. Participant will be allowed to re-take the test if he or she does not initially pass.
i. Upon successfully passing of the examination, Participant will have 30 days to schedule his or her onsite training and 60 days to attend it. Failure to schedule and attend the on-site training in a timely manner will result in Participant being required to re-take the examination. Participant may then re-schedule their training after paying a late fee.
ii. Any candidate who fails to schedule their onsite training two successive times will be un-enrolled in the certification process. Any Fees paid by Participant will not be refunded and this Agreement will be cancelled. Participant may re-apply to participate in the certification program.
(d) Participant will provide proof of Child First Aid and CPR Certification.
(e) Participant authorizes LHFK to complete a public records background check immediately prior to final certification. Such background check will not
include a credit report and will be limited to seven years prior to certification. Participant will provide information required for its completion and execute LHFK’s Consent Form prior to full certification.
(f) Participant will pay the non-refundable Fee designated for his or her certification.
3. Warranties and Representations:
(a) Participant is at least 18 years or older in the case of certification as an Assistant Coach, or Participant is at least 21 years or older in the case of certification as a Coach.
(b) Participant otherwise has the right to enter into this Agreement and its execution and delivery will not violate any contract, or any other agreement to which Participant is a party.
(c) Participant understands and warrants that only after conditions in Section 2 are satisfied will Participant be granted the license contained herein. Participant further understands that the obligations contained herein are ongoing throughout Participant’s tenure as an Assistant Coach or Coach, as the case may be.
4. Certification Maintenance: Participant further warrants and represents that he or she will maintain certification by abiding by all standards and practices promulgated by LHFK. Should LHFK adopt additional standards or modify requirements after the Effective Date, Participant will be bound by such new standards with Notice from LHFK of their adoption. Specifically Participant warrants that:
(a) Participant will review and study all Coursework, presentation, marketing, and guideline materials provided by LHFK including, but not limited to: Child Development Basics (Motor, Speech, Vision, Hearing, and Social), Ages 2-5 and 6-12 Physical/Mental and Emotional Development, Sport Program Preparation, Essential Training Tips, Working with Special Needs
Children, Obstacle Course Safety, Sport Basics and Drills, LHFK Emergency
Procedures, and LHFK Class Policies (“Materials”).
(b) Participant will assure that all class Participants are provided with new and current Materials at the start of each course or class.
(c) Participant will teach each course and class to the best of his or her ability and behave appropriately and professionally at all classes and in all venues.
(d) Participant will not make any material changes or additions to the Materials without the written consent of LHFK. As such, Participant agrees to advise
LHFK of any material changes or additions in writing. Participant may make minor stylistic changes to the presentation to match his or her style of delivery and to enhance the students’ understanding of the content.
(e) At all times, Participant will ensure that he or she instructs each class consistently with the philosophy and mission statement of LHFK.
(f) Participant will not represent him or herself as an employee or representative of LHFK; but rather as a client, partner or certified coach of LHFK. Participant will not make any statements that would lead a student or third party to believe that Participant or Participant ’s company is an employee, agent, or other person with legal authority to bind LHFK.
(g) Participant will maintain his or her own General Liability Policy at all times and will provide a copy to LHFK upon demand.
(h) Participant will promote LHFK courses and other products and services appropriately and will not promote the Participant’s or his or her own business or products in the context of teaching a LHFK class.
(i) Participant will not do anything to negatively impact the LHFK brand and will exclusively use LHFK branded equipment in its classes.
5. Certification Contingent on Membership Maintenance: In addition to maintaining all standards referenced in Section 4. Participant will keep membership fees current or on temporary hold to continue active certification.
(a) Timing. Membership becomes active automatically upon the Participant’s certification. Certification lasts the duration of the Participant’s life so
long as membership remains current.
(b) Bonus Month. The first month is of membership is free.
(c) Monthly Fee. Members must pay thirty-nine dollars ($39) per month
(“Fee”) to keep membership active.
(d) Hold Fee. Participant may put his or her membership on hold for $15 per month, upon Notice to LHFK. The hold will begin on the first day of the subsequent month following Notice. During such hold, membership and certification will be inactive. Participant can resume membership with Notice and payment of the subsequent month’s membership Fee. Hold periods may not exceed 180 days total for every three years. Hold
periods in excess of 180 days will be deemed a cancellation.
(e) Cancellation. Participant may cancel his or her membership at any time.
Certification will remain current but inactive for a period of 12 months after cancellation. As such, during those 12 months, Participant may not teach LHFK classes and all provisions granting rights in this License Agreement will be suspended. If membership is not activated within 12 months, certification will be cancelled and require new certification.
(f) Reactivation Fee. Membership can be reactivated within 12 months of cancellation with payment to LHFK of a $200 reactivation fee. Upon payment Participant’s certification will become active and Participant’s rights granted in this License Agreement will become active. Participant will continue to undertake all obligations herein upon activation.
6. Rights Granted to Teach LHFK Classes:
(a) All Certified Coaches shall have the right to teach LHFK classes independently or with the assistance of a Certified Assistant Coach.
(b) All clients of Participants must register for all classes through their LHFK
profile page. Participant will direct their clients accordingly.
(c) All Certified Assistant Coaches shall have the right to teach LHFK fitness classes with a Certified Coach.
(d) LHFK shall have the right to Participant’s name and likeness to the extent necessary to promote class and programs, including a profile or page designated to the Participant on LHFK’s website.
7. Method of Payment to Participant: Participant is required to set up a PayPal account for the purpose of receiving tuition funds (“Funds”) from students enrolled in their classes. All payments made to LHFK will be released to the Participant 7-10 days after the start date of each class. Participant has read and understands LHFK’s Student Refund Policy, Transfer Policy and Arrival and Dismissal Policy. Participant will not act in contravention of such policies and agrees to cooperate with LHFK in its efforts to enforce those policies.
8. Ownership and Confidentiality of Intellectual Property:
(a) All Materials, or other intellectual property whatever kind or nature, written, furnished, conceived, performed or composed by LHFK remains the sole and exclusive property of LHFK. Materials are to be kept Confidential and Participant will not distribute Materials to anyone not authorized by LHFK.
(b) All coursework and style formats created and/or modified by Participant and approved by LHFK in connection with the a LHFK class or program and all the results and proceeds of Participant’s services in connection with the program (including, without limitation, all ideas, premises, concepts, plots, themes, stories, titles, subtitles, suggestions, characters, characterizations, dialogue, bibles, outlines, scripts, storyboards, drawings, designs, recordings, graphics, animation, materials and/or any other results originated, created, prepared, suggested, devised, developed, furnished or rendered by Participant in connection with LHFK), and each and every element thereof (and all revisions thereto), whether or not in writing, are herein collectively referred
to as the "Work."
(c) Participant warrants that such approved Work is the result of his or her own efforts and are not the property of or subject to the rights of any third party. Such approved Work is specifically ordered and commissioned by LHFK and as such is a "work made for hire" as such term is defined under the United States copyright laws and similar laws of other jurisdictions, and LHFK shall be deemed the author thereof. Participant acknowledges that LHFK, as the author of the Work, is the sole and exclusive owner of all rights in and to the same in all media (now known or hereafter developed) throughout the world in perpetuity, and is entitled to the copyrights (and all extensions and
renewals thereof) therein and thereto, with the right to make such changes
therein and such uses thereof as LHFK may determine in its sole discretion. To the extent that the Work is not deemed a “work made for hire” for any reason, Participant hereby irrevocably assigns all rights of every kind (including, without limit all copyrights and all extensions and renewals thereof) in and to the Work to LHFK, in any and all media (now known or hereafter developed), throughout the world in perpetuity.
9. Rights Granted to Participant:
(a) Grant of License for Use. Upon completion of certification and while Participant has observed and performed all of the covenants, warranties and obligations herein, Participant shall be granted a license for use (“License for Use”) of “Lion Heart Fitness Kids” name for the purpose of promoting or advertising Participant’s services and classes authorized by LHFK. Such use includes and is limited to the right to use the LHFK name on Participant’s website or other promotional materials, solely for the purpose of advertising that Participant is a certified by the LHFK program, the use of Materials, methods, and training provided by LHFK in any of his or her classes and use of LHFK staff and infrastructure for the purpose of booking and payment for LHFK classes. LHFK hereby grants Participant such non-exclusive, non- transferable License for Use.
(b) Grant of License to Trademarks: LHFK grants to Participant the non- exclusive, non-transferable, limited right and license to use the LHFK trademark (“Marks”), exclusive to and solely in connection with Participant’s instruction and promotion of LHFK courses. Participant agrees that it will not use the Marks in any of the following ways: as part of the domain name for
its website; or as part of its company name or trade name. At no time, during or after the term of this Agreement, will Participant challenge or assist others to challenge LHFK’s ownership or exclusive rights to the Marks or attempt
to register any of the Marks or any other trademarks, service marks or trade
names that are similar to the Marks. Participant agrees that all uses of the Marks will include the correct designation as either ® or TM or SM and any other guidelines relating to the Marks that LHFK adopts and notices to Participant.
Participant will not acquire any right, title or interest in or to any of the LHFK’s intellectual property not specifically granted herein. LHFK expressly reserves all rights other than those being conveyed or granted in this Agreement.
(a) LHFK may terminate this Agreement and any rights attendant hereto with Notice to Participant of his or her breach of any part of this Agreement or for;
(b) His or her inattention to or failure to perform duties or uphold LHFK’s policies and standards;
(c) Engaging in activities or conduct injurious to LHFK’s reputation or that of its affiliates including, without limitation, engaging in immoral acts which
become public information or repeatedly conveying to one person, or conveying to an assembled public group, negative information concerning
LHFK or its affiliates;
(d) Commission of an act of dishonesty, including, but not limited to, misappropriation of funds or any property of LHFK; or
(e) Commission by the Participant of an act, which constitutes a misdemeanor
(involving an act of moral turpitude) or a felony.
(f) Breach of any part of this Agreement and/or any terms incorporated therein.
On termination, Participant will immediately cease using the Marks
and Materials and shall and cease holding themselves out as certified by LHFK.
11. Indemnification: Participant will defend, indemnify, and hold LHFK harmless from and against any and all claims, losses, actions, demands or damages (including reasonable attorney’s fees, court costs and costs of other professionals), arising out of or relating to: (i) Participant ’s breach of its representations and warranties in this Agreement; (ii) a claim that any Work infringes any patent or copyright, misappropriates any trade secret of any third party or violates any intellectual property rights of any third party.
12. Limitations of Liability: Neither LHFK or its affiliates shall be liable or responsible to Participant for, and Participant hereby waives and releases LHFK and its affiliates from any claim for, any indirect, incidental, special,
punitive, or consequential damages (including, without limitation, lost profits,
lost business, lost revenues, and any cost of replacement services), regardless of whether such party is informed of the possibility the same may exist. The total aggregate liability of LHFK and its affiliates shall be limited to the amount of money, which was collected as part of the course for the claim at issue. Such claim will be limited to a claim for monetary damages and any claim for injunctive relief is hereby waived.
13. Confidential Information: In the course of performing this Agreement, LHFK
may make available sensitive business information, including, without limitation,
business, financial, and/or accounting plans, records and/or information; customer records and/or information, including, without limitation, customer lists; any materials, records and/or information concerning any patents, copyrights, trademarks, service marks, trade secrets, proprietary rights, and/or any other intellectual property, whether now existing or subsequently developed; the terms
of the Agreement; and/or any non-public materials, records, and/or information on
any products and/or services (“Confidential Information”). Participant agrees that, except as authorized in writing, he or she will: (i) preserve and protect the confidentiality of all Confidential Information; (ii) not disclose to any third party the existence, source, content or substance of the Confidential Information or make copies of Confidential Information; (iii) not deliver Confidential Information to any third party, or permit the Confidential
Information to be removed from its business premises; (iv) not use Confidential Information in any way other than to fulfill its obligations under this Agreement; (v) not disclose, use or copy any third party information or materials received in confidence for purposes of work performed under this Agreement; and (vi) require each of its employees who works on or has access to the Confidential Information to sign a suitable confidentiality agreement and be advised of the confidentiality and other applicable provisions of this Agreement.
14. Governing Law; Arbitration: This Agreement will be governed by and construed under the laws of the state of California and the parties will subject themselves to the jurisdiction of San Francisco, California as the exclusive jurisdiction and venue for any action or proceeding brought by LHFK and relating to this Agreement. In the event Participant claims a breach by LHFK of this Agreement and the parties are unable to resolve the dispute informally, then such dispute shall be submitted to final and binding arbitration. The arbitration shall be initiated and conducted according to either the JAMS Streamlined (for claims under $250,000) or the JAMS Comprehensive (for claims over $250,000) at the San Francisco office of JAMS.
15. Waiver: The failure of a party to insist upon strict adherence to any term of this Agreement on any occasion will not be considered a waiver or deprive that party of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement.
16. Independent Contractor Relationship: LHFK’s relationship with Participant will be that of a contractor and nothing in this Agreement should be construed to create a partnership, joint venture, or employer-employee relationship. Participant is not the agent of LHFK and is not authorized to make any representation, contract, or commitment on behalf of LHFK.
17. Entire Agreement; Amendment: This Agreement constitutes the full and entire understanding and agreement between the parties relating to all of the matters included in this Agreement. All amendments to this Agreement must be in writing signed by both parties.
18. Counterparts: This Agreement may be executed in counterparts, each of which will be enforceable against the party actually executing the counterpart, and all of which together will constitute one instrument.
19. Notices: All notices required to be sent by this Agreement will be to the addresses below and will be deemed delivered five days after being sent by regular U.S. Mail or upon receipt of a return receipt when sent by email with return receipt requested.