License
This Instructor Agreement (the Agreement) is made between:
- Clubbercise; and
- Instructor.
SUMMARY
a. Clubbercise designs and provides for the delivery of bespoke dance and fitness routines and merchandising in accordance with the Clubbercise branding and commercial practice. b. Clubbercise and the Instructor have agreed that the Instructor shall have, pursuant to the terms of this Agreement, a licence for the purposes of offering Clubbercise classes to third parties.
DEFINED TERMS
Clubbercise Instruction Materials means, amongst other things, material and instructions, a code of conduct and marketing materials for the delivery of bespoke Clubbercise dance and fitness routines to be used by an Instructor. Licence a non-exclusive licence to deliver Clubbercise dance and fitness routines and sell Clubbercise merchandise in accordance with the material and instructions provided in the Clubbercise Instruction Materials. Licence Period means the period from the date of acceptance of this Agreement until terminated. Licence Fees means the monthly payments required to be made by the Instructor for the Licence set out in this Agreement or under separate cover (such cover having been deemed to include the terms set out in this Agreement).
AGREEMENT
Clubbercise and the Instructor agree as follows:
1) LICENCE FOR USE
a) In consideration for the payments set out at Clause 2, Clubbercise grants to the Instructor a Licence for the Licence Period.
b) The Instructor shall receive the Clubbercise Instruction Materials which shall include access to music and updated choreography.
2) LICENCE PAYMENT
a) The Instructor shall pay Clubbercise the Licence Fees.
b) The Instructor shall set up a direct debit and shall pay Clubbercise the Licence Fees on the 23rd day of each month during the Licence Period.
c) Time for payment shall be of the essence.
d) All amounts payable by the Instructor are inclusive of amounts in respect of value added tax chargeable for the time being (VAT).
e) If the Instructor fails to make any payment due to Clubbercise by the due date for payment (Due Date) Clubbercise shall have the right to charge interest on the overdue amount at the rate of 6% per cent per annum above the then current Royal Bank of Scotland’s base rate accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.
3) COPYRIGHT; TRADEMARKS; INTELLECTUAL PROPERTY RIGHTS
All copyright, trademarks and intellectual property rights in or arising out of or in connection with this Agreement are owned by Clubbercise.
4) COVENANTS OF THE INSTRUCTOR
The Instructor confirms that during the term of this Agreement:
a) The Instructor shall, at all times, be a duly accredited Instructor and shall not, where such Instructor’s licence has been suspended or revoked, undertake any classes or promotion (or any other related matter) on behalf of Clubbercise;
b) The classes taught by the Instructor will conform to the standards set by Clubbercise (as explained on the Instructor training course, published in the Clubbercise Instruction Materials, and as otherwise identified by Clubbercise, at its sole discretion);
i) The Instructor shall not undertake any classes with the assistance of any person who is not a duly accredited Clubbercise Instructor;
c) Except where otherwise agreed, the Instructor shall ensure that only choreography featured on the official Clubbercise playlist will be used;
d) The Instructor shall ensure and be responsible for acting in accordance with any laws relating to email and mass marketing of the public;
e) The Instructor shall, at all times, abide by the Clubbercise Code of Conduct;
f) The Instructor shall, at all times, abide by adjudication decisions made by Clubbercise in the event of disagreement between Instructors or Instructors and venues (who have signed a venue licence agreement with Clubbercise); and
g) The Instructor shall not (directly or indirectly) market, produce, sell or distribute any nonofficial Clubbercise merchandise (including non-Clubbercise glow sticks) to any third party who has:
i) attended a Clubbercise class;
ii) expressed an interest in doing so; or
iii) expressed an interest in wearing or utilising Clubbercise merchandise, whether they have attended a Clubbercise class or event or not, without (in all cases) the express written permission of Clubbercise.
5) MARKETING; PROMOTION
The Instructor agrees to use the Clubbercise brand and trademark and as otherwise set out (in writing or otherwise) by Clubbercise as follows:
a) The Instructor may undertake marketing and promotion in accordance with the Clubbercise marketing guide1 and code of conduct;
b) The Instructor may only use the Clubbercise trademark as instructed in the online Clubbercise marketing guide;
c) The Instructor can sell official Clubbercise merchandise to class participants;
d) The Instructor can set up a Clubbercise related Facebook page, Twitter account, Instagram account or other social media account that uses the Clubbercise brand name provide that such page or account references (together) Clubbercise, the Instructor and a particular location, where Clubbercise is held by that Instructor. In all other circumstances, Clubbercise must give their permission to set up a Clubbercise related Facebook page, Twitter account, Instagram account or other social media account;
e) The Instructor shall not set-up a website which uses the Clubbercise brand name in its domain name;
f) The Instructor shall not share any video of Clubbercise classes or routines lasting more than 30 seconds with the general public;
g) The Instructor must not alter the appearance of the Clubbercise logo including, but not limited to, the proportion, colour and font; and
h) The Instructor must not share or re-sell any marketing materials obtained from Clubbercise.
6) INFRINGEMENT NOTIFICATION AND PROCEEDINGS
a) The Instructor shall promptly notify Clubbercise if they are aware of any unauthorized use of the Clubbercise brand, trademark, marketing materials or any other facet of the Clubbercise business; and
b) The Instructor shall co-operate with Clubbercise in enforcing and protecting the Clubbercise brand, trademark, marketing materials or any other facet of the Clubbercise business.
7) INSURANCE; LICENCES
The Instructor agrees that it shall, at their own cost and expense, have and maintain, at all times, all necessary:
a) general public liability insurance;
b) employers liability insurance;
c) any further insurances deemed typical of any venue where activities contemplated by this Agreement are undertaken; and
d) any relevant licences required (such as a music licence, as appropriate).
8) LIMITATION OF LIABILITY
a) Nothing in this Agreement shall limit or exclude the liability of the Instructor or Clubbercise for:
i) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors; or
ii) fraud or fraudulent misrepresentation. 1 This will be provided to the Instructor
b) Clubbercise shall under no circumstances whatever be liable to the Instructor, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with this Agreement.
c) The total liability of Clubbercise to the Instructor in respect of all other losses arising under or in connection with this Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the remaining value of the Licence to the Instructor once cancelled or terminated.
d) Except as set out herein, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement.
9) TERMINATION
a) Without limiting its other rights or remedies, each party may terminate the Licence by giving written notice to the other party if:
i) the other party commits (following due warning) a material breach of this Agreement and fails to remedy that breach within a reasonable time of that party being notified in writing of the breach;
ii) the other party suspends or ceases or it is likely that it is unable to carry on all or a substantial part of its business.
b) Without limiting its other rights or remedies, Clubbercise may terminate this Agreement with immediate effect by giving written notice to the Instructor if the Instructor fails to pay any amount due on the due date for payment.
c) Without limiting its other rights or remedies, each party shall have the right to cancel the Agreement by giving the other party 1 month’s written notice.
10) CONSEQUENCES OF TERMINATION
a) On termination of the Licence for any reason:
i) the Instructor shall immediately pay to Clubbercise all outstanding unpaid actual or pending invoices; and
ii) the parties shall return any materials which have not been fully paid for.
b) The accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of the Licence which existed at or before the date of termination or expiry; and
c) Clauses which expressly or by implication have effect after termination shall continue in full force and effect.
11) RENEWAL; AMENDMENT
a) The Licence will automatically renew at the end of the Licence Period (for an equivalent period) until the Agreement is cancelled.
b) Clubbercise may (acting reasonably) amend this Agreement at any time by giving the Instructor written notice.
c) If the Licence is terminated by Clubbercise but the Agreement has not been breached, then any unused Licence Fees will be paid to the Instructor.
12) ASSIGNMENT AND SUBCONTRACTING
a) Clubbercise may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Licence and may subcontract or delegate in any manner any or all of its obligations to any third party or agent.
b) The Instructor may not, without the prior written consent of Clubbercise, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under this Agreement.
13) NOTICES
a) Any notice or other communication required to be given to a party under or in connection with this Agreement shall either be in email (duly receipted), or in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business.
b) Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed.
14) WAIVER
A waiver of any right under this Agreement is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
15) NO PARTNERSHIP
Nothing in this Agreement is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
16) THIRD PARTIES
A person who is not a party to this Agreement shall not have any rights under or in connection with it.
17) VARIATION
Except as set out in this Agreement, any variation, including the introduction of any additional terms and conditions shall only be binding when agreed in writing.
18) GOVERNING LAW AND JURISDICTION
This Agreement and any dispute or claim arising out of or in connection with it shall be governed by and construed in accordance with English law and the parties irrevocably submit to the exclusive jurisdiction of the courts of England.
