1. Background MOSSA owns, or has exclusive rights to, the trademarks, copyrights, patents, choreography, arrangements of music, logos, designs, manuals, training materials, video tapes, audio tapes, CD’s, DVD’s, trade secrets and other intellectual property (collectively, the “Intellectual Property”) related to the programmed exercise routines conducted to music known by the marks Group Power, Group Fight, Group Centergy, Group Blast, Group Ride/R30, Group Groove, Group Active, Group Core, ViPR Workout and ViPR Move (collectively the “Marks”). MOSSA may amend this list of exercise routines from time to time to add or subtract additional routines by giving notice to INSTRUCTOR. INSTRUCTOR would like to conduct workouts to instruct others to perform the exercise routine checked above (the “Exercise Routine”). This Agreement defines the terms and conditions of the legal relationship between MOSSA and INSTRUCTOR regarding the Exercise Routine. This is a binding, enforceable legal document as of the Effective Date. By signing this Agreement, you are acknowledging that you have read and understood the Agreement, and agreed to all of its terms and conditions.
2. Instructor Duties. In consideration for MOSSA training the INSTRUCTOR in the Exercise Routine, INSTRUCTOR agrees to do the following:
a. Training: Attend and participate in training conducted by MOSSA in the Exercise Routine. If INSTRUCTOR completes the training and displays, in MOSSA’S sole opinion, a high level of skill, MOSSA will train INSTRUCTOR to teach workouts and individuals in the Exercise Routine. INSTRUCTOR may not use the Exercise Routine without completing this training.
b. Completion Assessment Video: Submit a video recording of a workout taught by INSTRUCTOR and the designated administration fee to MOSSA within 90 days of completion of Initial Training. MOSSA will evaluate the video and reasonably determine INSTRUCTOR’S completion. Failure to submit such video recording will automatically result in loss or denial of completion. INSTRUCTOR understands and agrees that employment of INSTRUCTOR is at the sole discretion of the Licensed Facilities and STEP has no obligation regarding employment of INSTRUCTOR.
c. Professionalism and Standards: Conduct the Exercise Routine in accordance with the high standards of quality and professionalism associated with MOSSA, in accordance with all federal, state, provincial and local laws and ordinances and in accordance with policies and guidelines established by MOSSA from time to time.
d. Licensed Facilities: Only conduct workouts or instruction in the Exercise Routine at facilities currently licensed by MOSSA for the Exercise Routine and in good standing (the “Licensed Facility” or “Licensed Facilities”). INSTRUCTOR shall have the responsibility of confirming the licensing status of Licensed Facilities with MOSSA through the website at www.mossa.net or by calling 800-729-7837.
3. Termination. This Agreement may be terminated by MOSSA or INSTRUCTOR upon seven (7) days prior written notice by the terminating party, for any reason or no reason whatsoever. Upon termination, INSTRUCTOR shall immediately cease and forever desist all use of the Exercise Routine(s) and Intellectual Property and INSTRUCTOR’S completion shall be immediately revoked. Sections 4-9 of the Agreement shall remain in force following termination.
4. Non-Infringement and Return of Intellectual Property. INSTRUCTOR acknowledges that (a) MOSSA has a valid and protectable interest in all of the Intellectual Property, including, without limitation, the Exercise Routine, including the choreography and the arrangement of music, which is copyright protected, the training courses, materials and manuals, which are copyright protected and trade secrets of MOSSA, and the Marks; and (b) MOSSA has agreed to provide INSTRUCTOR with limited access to and a license to use MOSSA’s Intellectual Property only because INSTRUCTOR has agreed to comply with the terms of this Agreement. Therefore, INSTRUCTOR agrees not to (x) use, display, or reproduce any of MOSSA’s Marks or variants thereof, or use any other trademarks or service marks in connection with the Exercise Routine, or create derivative works based on the Exercise Routine, without the prior written permission of MOSSA; (y) use, reproduce, distribute, or disclose to any party any or all of the training courses, materials, manuals, or other items or Intellectual Property provided by MOSSA to INSTRUCTOR constituting a trade secret of MOSSA as defined under applicable law; or (z) use, reproduce or perform the Exercise Routine other than during the term of, and in accordance with the provisions of, this Agreement. Upon termination of this Agreement for any reason, INSTRUCTOR shall immediately cease all use of the Intellectual Property and return to MOSSA any and all documents or other items containing any confidential or trade secret information of MOSSA, including, without limitation, all manuals, tapes, CD’s, DVD’s, choreography notes and training materials.
5. Exclusivity. INSTRUCTOR acknowledges and agrees: (a) that MOSSA is investing significant time, energy and money in training INSTRUCTOR in the Exercise Routine; (b) that it is critical for the safety, health and satisfaction of participants that the Exercise Routine only be taught in Licensed Facilities by instructors who have completed their Assessment Video in compliance with the MOSSA policies and guidelines; and (c) that MOSSA would be significantly damaged if the Exercise Routine were taught outside of Licensed Facilities, or by instructors without current completion, or not in compliance with the MOSSA policies and guidelines
6. Damages and Relief for Breach. INSTRUCTOR acknowledges that MOSSA’S rights set out in Sections 2(d), 4 and 5 are special, unique and of extraordinary character and that, in the event that INSTRUCTOR violates this Agreement, MOSSA will be without adequate remedy at law. INSTRUCTOR agrees, therefore, that in the event he or she violates the terms of Sections 2(d), 4 or 5, MOSSA may, in addition to any remedies at law for damages or other relief, recover from INSTRUCTOR all costs of enforcement of these provisions, including, but not limited to, court costs and reasonable attorney's fees. In addition, to the extent INSTRUCTOR teaches the Exercise Routine in violation of Section 2(d) of this Agreement, INSTRUCTOR shall pay to MOSSA as liquidated damages, and not as a penalty, the sum of US$300.00 (per Exercise Routine) representing the license fee of a facility, multiplied by the number of months INSTRUCTOR has breached the Agreement, multiplied (if applicable) by the number of facilities in which INSTRUCTOR has provided services breaching the Agreement. INSTRUCTOR acknowledges and agrees that the actual losses to be suffered by MOSSA in the event of violation of Section 2(d) will be difficult to ascertain, and that these reasonable liquidated damages have been arrived at after a good faith effort to estimate such losses.
7. Independent Contractor. In carrying out the obligations and duties under this Agreement, it is understood and agreed that INSTRUCTOR is acting as an independent contractor and not as an agent, partner, joint venturer or employee of MOSSA. Neither party shall have the right to bind or obligate the other in any manner whatsoever nor shall a party be liable for the representation, act or omission of the other party, which is contrary to the provisions of this Section.
8. Applicable Law. This Agreement shall be construed, controlled and interpreted according to the laws of the State of Georgia and INSTRUCTOR specifically consents to jurisdiction in Georgia, agrees that venue for any dispute shall be only in the District Court for the Northern District of Georgia, Atlanta Division, or Cobb Superior Court, State of Georgia, and agrees to accept service of process by certified mail and waive any jurisdiction or venue defenses otherwise available.
9. Miscellaneous. MOSSA may freely assign this Agreement. INSTRUCTOR may not assign this Agreement. All provisions in this Agreement are severable, and the unenforceability or invalidity of any provision shall not affect the validity or enforceability of the remaining provisions. The waiver by either party of a default of any provision of this Agreement by the other party shall not operate as a waiver of any subsequent default of the same or any different provision by such party. This Agreement contains the complete agreement between the parties regarding the Exercise Routine and supersedes all other similar agreements or understandings between the parties regarding the Exercise Routine. All notices required under this Agreement shall be made, if to MOSSA, to the address set forth above and, if to INSTRUCTOR, to the address set forth in Schedule A, and shall be deemed received 3 days after deposit in the U.S. Mail or Canadian Mail or 1 day after deposit if sent via overnight mail. This Agreement may be amended only by writing executed by both parties. The Exercise Routines are physically demanding. Therefore, it is important that you are in very good physical shape. It is required that you participate in all aspects of the training for the entire time. If you have any medical conditions, including, but not limited to, heart problems, asthma or if you are pregnant, you must check with your doctor before participating in the training to confirm your ability to participate in and complete the training. Both parties represent that they have carefully read and considered and fully understand the provisions contained in this Agreement. Both parties hereto agree that they expressly require that the Agreement to be entered into between them, together with all related documents, all be drawn up, executed and distributed in the English language only. Les Parties aux presentes conviennent expressement que le Contrat qu”ils concluront entre eux, ainsi que tous les documents connexes ou qui s’y rattachment, soient entierement rediges, signes et distribues en Anglais seulement.
Each party agrees that the electronic signatures, whether digital or encrypted, of the parties included in this Agreement are intended to authenticate this writing and to have the same force and effect as manual signatures. Electronic signature include any electronic sound, symbol, or process attached to or logically associated with a record and executed and adopted by a party with the intent to sign such record, including facsimile or email electronic signatures.