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BERTHA® LICENSE AGREEMENT
This License Agreement (hereinafter ‘Agreement’) is made and effective as of the date it is submitted and assigned by and between:
Firestorm Solutions, LLC, Licensor, a company organized and existing under the laws of the state of Delaware, with a registered address at 1000 Holcomb Woods Parkway, Suite 130, Roswell GA, 30076
And Licensee, an organization interested in implementing a behavioral risk and threat assessment program (hereinafter “Deliverables.”)
Licensor is willing to grant to the Licensee, a non-exclusive, non-transferable License to use the Deliverables for the term and specific purpose set forth in this agreement.
NOW, THEREFORE, in consideration of the foregoing, and of the mutual promises and undertakings contained herein, and other good and valuable consideration, the parties agree as follows:
A. “Agreement” means this License Agreement which includes the attached Schedule.
B. “Schedule” means the Schedule attached to and made a part of this Agreement.
C. “Deliverables” means the products or services provided by Licensor to Licensee including:
- BeRThA® Program document (provided in digital format)
- Recorded, on-demand BeRThA® documentation walkthrough
- Online, on-demand Behavioral Management Team (BMT) training
- Virtual Behavioral Risk Screening consultation, upon request
- Three (3) consulting hours (via telephone) which can be used for assistance with:
- The selection of social media monitoring tools and/or anonymous reporting tool;
- The structuring of a Central Repository to aggregate and manage reports/tips;
- Review of policies related to bullying, sexual harassment, hostile workplace, weapons and workplace violence.
D. “Party” means a person or entity who has executed this Agreement.
E. “Stakeholders” means those individuals permitted by Licensee to utilize the Deliverables, including employees, students, parents of students, visitors, customers, patrons, vendors, contractors and others who receive training on the Deliverables.
F. “Term” means the term of this Agreement, commencing on the Commencement Date set forth in the attached Schedule, and expiring on the anniversary of the Commencement Date, unless otherwise renewed.
G. “Commencement Date” is the date that Licensee anticipates first initiating any of the Deliverables listed in (c) above and is indicated in the attached Schedule.
H. “Renewal Date” is the date of the first year anniversary or any subsequent annual anniversary of the Commencement Date and is indicated in the attached schedule.
I. “Confidential Information” means information that is: by its nature, confidential; is designated in writing by Licensor as confidential; the Licensee knows or reasonable ought to know is confidential; Information comprised in or relating to any Intellectual Property Rights of Licensor.
J. “Intellectual Property Rights” means all rights in and to any copyright, trademark, trading name, design, patent, know how (trade secrets) and all other rights resulting from intellectual activity in any field and any application or right to apply for registration of any of these rights and any right to protect or enforce any of these rights, as further herein.
II. LICENSE GRANT
Licensor grants to Licensee a non-exclusive, non-transferable license for the Term to use the Deliverables for the specific purpose specified in this Agreement, subject to the terms and conditions set out in this Agreement.
III. LICENSEE’S OBLIGATIONS
The Licensee cannot use the Deliverables for purposes other than as specified in this Agreement. The Licensee may permit its Stakeholders to use the Deliverables for the purposes described in this Agreement, provided the Licensee takes all necessary steps and imposes the necessary conditions to ensure that all Stakeholders using the Deliverables do not commercialize or disclose the contents of it to any third person, or use it other than in accordance with the terms of this Agreement. The Licensee will not distribute, sell, license or sub-license, let, trade or expose for sale the Deliverables to a third party. No copies of the Deliverables are to be made other than as expressly approved by Licensor. Licensee shall ensure that the Deliverables retains all Licensor copyright notices and other proprietary legends and all trademarks or service marks of Licensor. Any changes made to the Deliverables, or the content therein, by Licensee are made at Licensee’s own risk.
It is up to Licensee to determine which Deliverables (including forms, data, approaches, processes, information, plans, training) Licensee is going to use and have those Deliverables validated by Licensee’s professionals and legal counsel.
IV. INDEPENDENT CONTRACTOR
Licensor is an independent contractor, working under his/her own supervision and direction and is not a representative of Licensee.
V. INTELLECTUAL PROPERTY RIGHTS
All Intellectual Property Rights over and in respect of the Deliverables are owned by Licensor. Although the Deliverables may contain or reflect Licensee materials, the Deliverables will also include items reused and reusable by Licensor in its business, and will contain or reflect Confidential Information and Intellectual Property Rights of Licensor. The Licensee does not acquire any rights of ownership in the Deliverables.
Neither Party may use, disclose or make available to any third party the other Party’s Confidential Information, unless such use or disclosure is done in accordance with terms of this Agreement. Each Party must hold the other Party’s Confidential Information secure and in confidence, unless disclosure is required by law, judicial or legislative body or government agency, or was approved for release in writing by the other Party, but only to the extent of and subject to such conditions as may be imposed in such written authorization. This clause will survive termination of the Agreement.
VII. DISCLAIMERS & RELEASE
TO THE EXTENT PERMITTED BY LAW, LICENSOR WILL IN NO WAY BE LIABLE TO THE LICENSEE OR LICENSEE STAKEHOLDERS OR ANY THIRD PARTY FOR ANY LOSS OR DAMAGE, HOWEVER CAUSED (INCLUDING THROUGH NEGLIGENCE) WHICH MAY BE DIRECTLY OR INDIRECTLY SUFFERED IN CONNECTION WITH ANY USE OF THE DELIVERABLES. THE DELIVERABLES ARE PROVIDED BY LICENSOR ON AN ‘AS IS’ BASIS. LICENSOR WILL NOT BE HELD LIABLE BY THE LICENSEE OR LICENSEE STAKEHOLDERS IN ANY WAY, FOR ANY LOSS, DAMAGE OR INJURY SUFFERED BY THE LICENSEE, LICENSEE STAKEHOLDERS OR BY ANY OTHER PERSON RELATED TO ANY USE OF THE DELIVERABLES OR ANY PART THEREOF. NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT, IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY CLAIMS, DAMAGES OR LOSS WHICH MAY ARISE FROM THE MODIFICATION, COMBINATION, OPERATION OR USE OF THE DELIVERABLES. LICENSOR MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE FEASIBILITY, COMPLETENESS, ACCURACY OR EFFICACY OF THE DELIVERABLES OR ANY RECOMMENDATIONS, FINDINGS, ADVICE, WHETHER ORAL OR WRITTEN. IT IS UP TO LICENSEE TO DETERMINE WHICH DELIVERABLES (INCLUDING FORMS, APPROACHES, PROCESSES, INFORMATION, PLANS, TRAINING) LICENSEE IS GOING TO USE AND HAVE THOSE DELIVERABLES VALIDATED BY LICENSEE’S PROFESSIONALS AND LEGAL COUNSEL. LICENSEE MAY CHOOSE TO ADOPT OR DISREGARD LICENSORS’ RECOMMENDATIONS OR ADVICE AT ITS OWN DISCRETION AND AT LICENSEE’S OWN RISK. LICENSEE’S EXCLUSIVE REMEDY FOR BREACH OF THE FOREGOING WARRANTY WILL BE TO NOTIFY LICENSOR OF ANY BREACH WITHIN FIVE (5) DAYS AFTER THE SERVICES ARE RENDERED OR DELIVERABLES ARE DELIVERED, AND LICENSOR WILL, AT LICENSOR’S OPTION, EITHER RE-PERFORM THE SERVICES OR RE-DELIVER THE DELIVERABLES SO THAT THEY CONFORM TO THE WARRANTY OR REFUND THE FEES PAID BY LICENSEE FOR THE NON-CONFORMING SERVICES OR DELIVERABLES. LICENSEE IS SOLELY RESPONSIBLE FOR THE RESULTS IT OBTAINS IN EXECUTING AND IMPLEMENTING THE DELIVERABLES OR IN ADOPTING RECOMMENDATIONS CONTAINED THEREIN.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS LICENSE AGREEMENT, TO THE GREATEST EXTENT PERMISSIBLE UNDER LAW AND EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES: (A) IN NO EVENT WILL LICENSOR BE LIABLE UNDER THIS AGREEMENT FOR ANY LOSSES OR DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION ANY INCIDENTAL, DIRECT, INDIRECT, PUNITIVE, ACTUAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR OTHER DAMAGES, PAIN AND SUFFERING, PERSONAL HARM, EMOTIONAL DISTRESS OR SIMILAR DAMAGES, WHETHER IN CONTRACT, TORT OR OTHERWISE, WHICH RELATE IN ANY WAY TO LICENSOR, ITS AFFILIATES OR THE LICENSEE’S OR LICENSEE STAKEHOLDER ACTIONS OR FAILURES TO TAKE ACTION, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY; (B) IN NO EVENT WILL LICENSOR’S TOTAL AGGREGATE LIABILITY TO LICENSEE ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY STATEMENT OF WORK EXCEED THE TOTAL AMOUNT PAID TO LICENSOR BY LICENSEE UNDER THE RELEVANT STATEMENT OF WORK DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT(S) GIVING RISE TO SUCH LIABILITY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE (IT BEING UNDERSTOOD THAT LICENSOR’S LIABILITY TO LICENSEE MAY BE FURTHER LIMITED BY OTHER PROVISIONS OF THIS AGREEMENT); AND (C) IN NO EVENT WILL LICENSOR HAVE ANY LIABILITY FOR THE PERFORMANCE OR NON-PERFORMANCE OF ANY THIRD PARTY OR THIRD PARTY PRODUCTS, OTHER THAN A LICENSOR SUBCONTRACTOR.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN CATEGORIES OF DAMAGES AND AS A RESULT, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO LICENSEE. IN SUCH STATES, THE LIABILITY OF LICENSOR AND ITS AFFILIATES IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
LICENSEE AGREES TO DEFEND AND INDEMNIFY LICENSOR AND ITS AFFILIATES IF AN ACTION IS BROUGHT AGAINST LICENSOR AND OR ITS AFFILIATES IN RELATION TO THE DELIVERABLES OUTLINED HEREIN. LICENSEE AGREES THAT ANY CAUSE OF ACTION LICENSEE HAS OR THAT ACCRUES TO LICENSEE ARISING OUT OF OR RELATED TO THIS AGREEMENT MUST COMMENCE WITHIN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
Any failure or delay by either Party to exercise any right, power or privilege hereunder or to insist upon observance or performance by the other of the provisions of this License Agreement shall not operate or be construed as a wavier thereof.
IX. GOVERNING LAW
This Agreement will be construed by and governed in accordance with the laws of the United States of America. The Parties submit to exclusive jurisdiction of the courts of the State of Georgia.
This Agreement and the license granted herein commences upon the Commencement Date and is granted for the Term, unless otherwise terminated by Licensor in the event of any of the following: (A) if the Licensee is in breach of any term of this Agreement and has not corrected such breach to Licensor’s reasonable satisfaction within seven (7) days of Licensor’s notice of the same (B) if the Licensee becomes insolvent or institutes (or there is instituted against it) proceedings in bankruptcy, insolvency, reorganization or dissolution, or makes an assignment for the benefit of creditors; or (C) the Licensee is in breach of any clause of this Agreement. Termination under this clause shall not affect any other rights or remedies Licensor may have.
XI. LICENSE FEE
In consideration of the Licensor providing the license to Licensee, Licensee shall pay a yearly license fee as stated in the attached Schedule of this Agreement and upon each anniversary date of this Agreement. Licensor will invoice Licensee on an annual basis. Licensee will pay all amounts set forth on Licensor’s invoices within thirty (30) days of receipt of invoice. The license fee and any other amounts payable by the Licensee to the Licensor, under this Agreement, are exclusive of any and all foreign and domestic taxes, which if found to be applicable, will be invoiced to Licensee and paid by Licensee within 30 days of such invoice. Amounts not paid when due will be subject to a late charge of one and one-half percent (1.5%) per month (18% per year) or any applicable legal maximum, whichever is less. Late charges are intended as liquidated damages, and reasonable estimates of the amounts necessary to compensate Licensor for costs and losses associated with delays in payment, and not as a penalty.
Licensor reserves the right to adjust the pricing of the license fee. Notice of a change in pricing will be provided by Licensor to Licensee a minimum of ninety (90) days before such pricing would go in effect.
This Agreement will renew automatically on the one-year anniversary or subsequent annual anniversaries of the Commencement Date unless notice of nonrenewal is given in writing by the licensee 30-days prior to the Renewal Date. The Licensor will email Licensee a reminder notice 60-days prior to the Renewal Date. Renewal cost is indicated in the attached schedule and applies to all subsequent renewals.
Licensee shall not assign any rights of this License Agreement, without the prior written consent of Licensor.
All notices required under this Agreement shall be in writing and shall be deemed given (A) when delivered personally; (B) five (5) days after mailing, when sent certified mail, return receipt requested and postage prepaid; or (C) one (1) business day after dispatch, when sent via a commercial overnight carrier, fees prepaid. All notices given by either Party must be sent to the address of the other as first written above (unless otherwise changed by written notice.)
This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which taken together shall constitute one instrument.
The Parties recognize the uncertainty of the law with respect to certain provisions of this Agreement and expressly stipulate that this Agreement will be construed in a manner that renders its provisions valid and enforceable to the maximum extent possible under applicable law. To the extent that any provisions of this Agreement are determined by a court of competent jurisdiction to be invalid or unenforceable, such provisions will be deleted from this Agreement or modified so as to make them enforceable and the validity and enforceability of the remainder of such provisions and of this Agreement will be unaffected.
XVII. ENTIRE AGREEMENT
This Agreement contains the entire agreement between the Parties and supersedes any previous understanding, commitments or agreements, oral or written. Further, this Agreement may not be modified, changed or otherwise altered in any respect except by a written agreement signed by both Parties.
Completion and submission of this form indicates that you have read and understand the terms of the Firestorm BeRThA® License Agreement.
ON BEHALF OF LICENSEE, I AM AUTHORIZED TO AND HAVE READ THIS AGREEMENT AND THE ATTACHED SCHEDULE AND AGREE TO ALL OF THE TERMS, CONDITIONS AND PROVISIONS CONTAINED ABOVE.