Navigator Network TM (NN) Licensing Agreement
This License Agreement (“Agreement”) is entered into between Explore the Magic of Motion, LLC (“EMM”), and you (“Host”), and is effective as of host’s date of enrollment in the Navigator Network (“NN”) (“New Host Effective Date”). EMM and Host are each referred to singularly as a “Party” and collectively as the “Parties.”
EMM owns the EMM IP (as that term is defined below) and uses the EMM IP in connection with educational services in the field of health, teamwork, physical activity and physical therapy (“Services”). Host has completed an official EMM Host training and desires to become a NN member and make use of the EMM IP. NN membership is open only to individuals. A business, organization, company, or other entity, including a clinic, cannot be a NN member.
In consideration of the foregoing, the mutual promises set forth below, and Host’s subscription to the NN program, the Parties agree as follows:
1. Definitions. For purposes of this Agreement, the following terms have the following meanings:
1.1. Initial Term & Term. The initial term is for a period to be set by EMM and shall begin from the New Host Effective Date. The Initial Term can be found on www.explorethemagicofmotionllc.com. Following the Initial Term, the Agreement automatically renews for indefinite successive one-month periods, unless either 1)EMM terminates the Agreement; or 2) Host cancels his/her membership, pursuant to EMM’s cancellation policy (“Term”).
1.2. EMM Marks. Means certain standard word trademarks and/or service marks owned by EMM, including Magic of Motion®; Healing Through Motion®; Healing People, Changing Lives®; Explore the Magic of Motion™; Healthy Teams™; as well as certain trademarked logos, such logos being attached as Exhibit A.
1.3. EMM Specialty Marks. Means certain specialty word trademarks and/or service marks owned by EMM, including Magic of Motion®; Healing Through Motion®; Healing People, Changing Lives®; Explore the Magic of Motion™; Healthy Teams™; as well as certain specialty trademarked logos, such logos being attached as Exhibit B.
1.4. Marks. Means the EMM Marks and EMM Specialty Marks.
1.5. EMM Copyrights. Means certain original literary, dramatic, musical, artistic, and other works within the meaning of the U.S. Copyright Act and the Berne Convention used in association with the Marks. The EMM Copyrights are valid, subsisting, and in full force and effect.
1.6. EMM IP. Means the Marks and EMM Copyrights.
1.7. NN Marks. Means certain word and logo trademarks and/or service marks, including NN™ and/or incorporating NN™ or the “ Navigator Network”.
1.8. EMM Related Parties. Means EMM’s affiliates, subsidiaries, related companies, employees, directors, officers, agents, vendors, and suppliers.
2. Grant of License. Subject to the terms hereof, EMM grants Host a limited, nonexclusive, nontransferable, revocable license, without warranty, (i) to use the EMM Marks to promote and host EMM events, and to use the NN Marks solely to identify Host as a NN member (“License”); and (ii) following completion of a specialty training, to use the EMM Specialty Marks associated with that specialty (“Specialty Mark License”) (e.g., following a Magic of Motion® training, Host may use the Magic of Motion marks to promote and host Magic of Motion® events).
Licensing also grants access to The CompassTM (Explore the Magic of Motion Platform) which offers an online venue that enables users (“Members”) to publish, offer, search for, and book services. Members who publish and offer services are “Hosts” and Members who search for, book, or use services are “Guests.” You must register an account to access and use many features of the Explore the Magic of Motion Platform and must keep your account information accurate. As the provider of the Explore the Magic of Motion Platform, EMM does not own, control, offer, or manage any Event Listings or Host Services. EMM is not a party to the contracts concluded directly between Hosts and Guests. EMM is not acting as an agent in any capacity for any Member, except as specified in the Payments Terms of Services (“Payment Terms”).
2.1. Territory. The License and Specialty Mark License are not valid in any country to which the U.S. restricts trade or where exercising rights hereunder would violate any law, regulation, or ordinance.
2.2. Affiliation. All uses of the EMM IP must be made in accordance with this Agreement and will not imply an affiliation with any third party, including an implied affiliation with any brand, organization or company, or with any individual not licensed hereunder. Where Host wishes to use the name, logo or marks of a third party in connection with the EMM IP, Host must obtain EMM’s prior approval. Notwithstanding the foregoing, EMM may use the business name, trade name and/or trademark of a school or facility where an EMM event is being held, so long as such use is subordinate to the Marks and the use is permitted by the school or facility.
2.3. Disparagement. Host must not make any unsavory remarks or comments and/or create any materials or content that EMM determines, in its discretion, dilutes, disparages, or is detrimental to the EMM IP, the EMM brand or the goodwill associated therewith. Host agrees to promptly comply with any instructions from EMM, including the removal, deletion or withdrawal of such remarks, content or materials.
2.4. Ownership of the EMM IP. EMM owns all right, title and interest in the EMM IP and Host must not take any action inconsistent with EMM’s ownership thereof. Host’s use of the EMM IP inures to the sole benefit of and is on behalf of EMM. In that regard, EMM shall own all live performance copyright rights in and to any EMM events taught by Host, including any copyright rights in the filming, recording, streaming, uploading or reproduction of such programs or events. Nothing in this Agreement gives Host any right, title or interest in the EMM IP other than the right to use the EMM IP as permitted herein. Host must not contest EMM’s ownership of the EMM IP, the validity or enforceability of the EMM IP, or the validity of this Agreement. Host must not register or attempt to register any trademark, service mark, logo, copyright, trade name or business name that incorporates “EMM” or the Marks, or any derivations thereof, nor can Host assist any party in doing so.
3. Fee. Host must pay EMM a subscription fee in an amount to be set by EMM (“Fee”), each and every month during the Initial Term and Term. The Fee is subject to change at EMM’s discretion. EMM reserves the right to establish, revise, modify or amend its billing practices, methods and fees, including its collection practices, payment practices, and fees for content or services provided on its website(s). Host agrees to accept notice of any changes by way of the changes posted on explorethemagicofmotionllc.com. Host’s failure to make timely payments due hereunder is a material breach permitting EMM to terminate this Agreement.
3.1. Third Party Payments. EMM accepts payments of the Fee from third parties (e.g., gyms). It is Host’s responsibility to ensure that the Fee is timely paid, regardless of whether the Fee is paid by Host or a third party. A third party paying the Fee may, at any time, contact EMM to cancel payment of the Fee. In the event the third-party cancels payment, it is the responsibility of Host to ensure that any current and future Fees are timely paid. EMM will make a reasonable attempt to inform Host of a third party’s cancellation of payment. EMM is not responsible for any loss or damage, including termination of this Agreement, suffered by Host as a result of non-payment of the Fee.
3.2. Third Party Use of NN Materials. This Agreement is between the Parties, regardless of whether the Fee is paid by Host or a third party. All NN materials distributed to Host are the property of EMM and Host. Any other use or distribution of such materials is prohibited, including the use of such materials by a party who pays Host’s Fee. Notwithstanding the foregoing, gyms and other facilities hosting Host’s EMM programs or approved events may use marketing materials made available to such parties by EMM.
3.3. Third Party IP Rights. Host must not include third party intellectual property rights in materials promoting Host’s events without EMM’s prior approval. However, use of the name of a school or facility where EMM events are being held is permitted if subordinate to the Marks and the use is permitted by the clinic or facility.
4. Proper Use of the Marks. Host must (i) use the Marks only in the forms shown in Exhibits A and B, including adhering to the colors, fonts, stylization, proportionality and other elements of the Marks; (ii) follow EMM’s brand use guidelines; (iii) use the appropriate trademark symbol (® or ™) with each use of a Mark; (iv) follow all instructions, requests and/or demands made by EMM concerning Host’s use of the EMM IP; and (v) use its best efforts to use the current versions of the Marks as provided by EMM.
4.1. Under License Language. Host must use the following “used under license” language on all materials, printed or electronic, which bear the Marks:
Explore the Magic of MotionTM, [insert other Marks, i.e., Magic of Motion®] and the Explore the Magic of Motion logos are trademarks of Explore the Magic of Motion, LLC, used under license.
4.2. Quality Standards. The nature and quality of Host’s marketing and services using the Marks must conform to the standards set by EMM (i) in the Host training courses and manuals; (ii) at explorethemagicofmotionllc.com; (iii) in EMM’s brand use guidelines; and (iv) in this Agreement. Host must cooperate with EMM in facilitating EMM’s control over the nature and quality of Host’s marketing and services, to permit observation of Host’s EMM programs or approved events, to promptly comply with all instructions from EMM, and to supply EMM with evidence confirming compliance with this Agreement.
4.3. Compliance With Laws. Host must comply with all applicable laws, regulations and ordinances in the country, state and locality in which Host offers EMM events and obtain all appropriate government approvals pertaining to marketing, advertising, or providing Host’s services, including any requirements for the instruction of children.
4.4. Promotional materials. Host may use the Marks on flyers, posters, emails and other printed materials whose sole purpose is to promote Host’s EMM events. Such materials must include the “used under license” language.
4.5. Email addresses. Host may use “EMM” or one or more of the EMM Specialty Marks, for which Host is licensed, as part of Host’s email address so long as Host uses such address solely for the promotion of Host’s EMM events and approved, related EMM’s activities.
4.6. Domain Names. Host may use “EMM” or one of the EMM Specialty Marks, for which Host is licensed, as part of Host’s domain name for a website promoting only Host’s EMM classes, approved events and related, but subordinate, EMM apparel and accessory sales (e.g., magicofmotionbyjennifer.com is acceptable for a Host named “Jennifer” licensed to teach Magic Of Motion® classes and whose website promotes only her EMM events and related EMM activities). Host may not register a domain name containing the other Marks. Registration and/or use of a domain name must adhere to the terms of this Agreement, including the following:
(a) Competing Services/Goods. Under a domain name containing the EMM mark, Host must not sell, offer for sale, advertise or promote any services or goods except Host EMM events and related, authorized EMM goods and activities.
(b) Transfer of Domain Name. In the event EMM determines it needs or desires to own a domain name registered or operated by Host incorporating the Marks, Host must, at EMM’s request, immediately transfer such domain name to EMM. EMM may reimburse Host for reasonable and documented out-of-pocket costs that Host paid to register the domain. EMM will not reimburse Host for any costs incurred in designing Host’s website, creating marketing materials, or any other costs incurred in connection with the domain name.
(c) NN Member Identification. Host must be identified in the Who is listing as the Registrant of a domain name used by Host containing the Marks. Host must include his/her Host number or profile link in the domain name registration information. Host must not use a privacy protection service in connection with the registration of a domain name.
(d) Domain Name Containing Country Name. A Host wishing to register or use a domain name containing “EMM” and the name of a country (e.g., explorethemagicofmotionaustralia.com) must obtain EMM’s approval in advance of such registration.
4.7. Internet Uses. Host may use the Marks on a website, including blogs and social media sites, where Host uses the Marks to promote Host’s EMM events in accordance with this Agreement and under the following guidelines:
(a) Trademark Notice. Host must include the “used under license” language on the home page of Host’s website, which must reference all Marks used on the site.
(b) Link to explorethemagicofmotionllc.com. Host must include a prominent hyperlink on the home page to explorethemagicofmotionllc.com.
(d) Ownership. Host must identify his/herself as the owner of Host’s Site by indicating his/her legal name on the home page. In addition, Host must post the following link on the home page to his/her NN profile: This site is owned and operated by [insert name], a licensed NN™ member. See my NN profile at: [insert link].
(e) AdWords/Keywords. Host must not use any Marks as AdWords, paid search, keywords or otherwise for search engine optimization and/or for creating “sponsored links”.
(f) Social Media Titles. Host must include his/her name in the title of any social media page(s) incorporating the Marks. In the case of group pages, all Hosts must be NN members and must be identified on the page. This Section applies to social media pages created and/or used for events.
4.8. Radio, Television and News Coverage. Host must not use the Marks on radio or television without EMM’s prior approval. Host may promote Host’s EMM events through live or print news coverage, or through mainstream news organizations or print publishers. In the event of such promotion, Host must inform the news organization or publisher of EMM’s brand use guidelines. With respect to live news coverage, such coverage must not include more than ten minutes of a EMM event without EMM’s prior approval. In the event Host is aware of the coverage, Host must notify EMM by email to exploreptmotion@gmail.com. In the event Host is not aware of the coverage in advance, Host must promptly notify EMM after the coverage and, when possible, provide a copy of the article or footage.
4.9. Sale of Genuine EMM Products. Host may use the Marks in connection with the resale of genuine EMM products purchased from EMM or an authorized distributor, so long as such sales are subordinate to Host’s EMM events. Host may resell original EMM products on online trade boards, provided Host identifies him/herself in such listings. Except as may be provided for in a separate agreement, I may not sell EMM products outside of the territory where those products were purchased (e.g., products purchased in the U.S. must be resold in the U.S. and not sold outside the U.S.).
4.10. Charitable Fund-Raising Services/Other Events. With EMM’s prior approval, Host may conduct EMM events in connection with fund raising activities for charitable or other worthy causes. Host is responsible for the handling of and proper disbursement of all fundraising related to the event. EMM reserves the right to prohibit Host from using EMM Marks, in connection with any fundraising activities that EMM determines, in its discretion, is in conflict with this Agreement or is inconsistent with EMM’s business objectives or interests.
5. Restricted Use of the Marks & EMM IP. EMM may use, or license others to use, the EMM IP in connection with various goods and services. Host must not use the EMM IP for purposes of promoting any workshop, training, instruction, or other activity except Host’s own EMM approved events. Host must not use any EMM IP to identify a school, facility, business or trade name, or any other facility, program, or product, except as authorized herein, without EMM’s prior approval. EMM reserves the right to remove any content posted on the Internet and/or used by Host that violates EMM’s rights in the EMM IP.
5.1. Never Modify the Marks. Host must use the Marks in accordance with the terms of this Agreement and refrain from modifying the Marks.
5.2. Never Use the Marks in Business or Trade Names. Host must not use the Marks in the name of a business or trade name including, for example, “Magic of Motion Center.”
5.3. Never Use the Marks as Verbs or Nouns. Host must not use the Marks as nouns or verbs including, for example, “I Love to Magic of Motion”, or “My clinic offers Magic of Motion”. Host must always use the Marks as adjectives including, for example, “I Love the Magic of Motion® program”.
5.4. Never Use the Marks as Titles to Newsletters or Publications. Host must not use the Marks, in whole or in part, as titles to print or digital newsletters or publications.
5.5. Merchandise. Host must not manufacture, create, offer for sale, sell or distribute any merchandise, including apparel, accessories, CDs, DVDs or promotional items, bearing the EMM IP or any names, designs or logos similar to the Marks. Notwithstanding the foregoing, Host may modify or repurpose official EMM products for Host’s personal use. Modification and repurposing includes, for example, cutting or altering an official EMM product from its intended use and form into a different use or form. Permitted modification and repurposing expressly excludes the application or combination of any EMM product or portion thereof, whether bearing the Marks or not, to any other non-EMM merchandise or products. Host must not offer for sale, sell, or distribute modified or repurposed EMM products.
5.6. NN Materials. Host must not copy, duplicate, sell, distribute, upload, stream or otherwise disseminate any NN materials, such as training workbook. their contents; training manuals; and CDs and DVDs. In the event of termination or cancellation of this Agreement, Host must retain Host’s NN materials, destroy them or return them to EMM.
5.7. Videos/Recording. Host must not film, record, stream live video, create DVDs or reproduce in any manner EMM events.
5.8. Mobile Applications. Host must not use the EMM IP in connection with a mobile application, including in the title, icon, and content of the application.
5.9. Program Names. Host may only use the program names for which Host is licensed to offer. Host must not alter the EMM program names or create his/her own program names (e.g., Magic of Motion® cannot be called “Magic of Movement” and Healing Through Motion® events can only be taught by a Host who has a Specialty License to teach the Healing Through Motion® program).
6. Termination. EMM may immediately terminate this Agreement and Host NN membership at any time, with or without cause, by giving Host written notice of _30_ days. Upon termination without cause, any Fee paid, but not used, will be returned to Host.
6.1. For Cause. EMM has the right to terminate this Agreement upon written notice in the event Host breaches this Agreement or as a result of any action or conduct by Host that EMM deems detrimental to the EMM IP, the EMM brand or the goodwill associated therewith. EMM may, in its discretion, provide Host with an opportunity to cure any breach prior to termination. Upon termination for cause, any Fee paid but not used will not be returned to Host.
6.2. Effect of Termination. Upon termination, Host must immediately (i) discontinue use of the EMM IP, including in any websites or email addresses used by Host; (ii) comply with this Agreement concerning NN materials; and (iii) transfer all domain names incorporating the Marks to EMM. All rights in the EMM IP and the goodwill associated therewith remain the exclusive property of EMM.
7. Cancellation by Host. Host may cancel this Agreement at any time after the Initial Term subject to the terms, conditions and processes set forth by EMM. Host can find these terms at: https://www.explorethemagicofmotionllc.com/terms-conditions
8. Third-Party Infringement. Host must promptly notify EMM of any unauthorized use of the EMM IP by a third party for which Host becomes aware. EMM has the sole right and discretion to take action, including, bringing an action involving the EMM IP and retaining the proceeds of any settlement or recovery in such action. Host agrees to cooperate with EMM in enforcing and protecting the EMM IP.
9. Interpretation & Enforcement. This Agreement shall be governed in all respects by and construed in accordance with the laws of the U.S. and the State of Delaware. Any legal action arising from or relating to this Agreement must be brought in a state or federal court located in Wilmington, Delaware. The Parties waive any challenge to personal jurisdiction or venue in those courts and hereby irrevocably subject themselves to the jurisdiction of any state or federal court within such county. The prevailing Party in any such action is entitled to recover its attorneys’ fees and costs. The Parties expressly waive the right to a jury trial in any action relating to this Agreement. Any judgment by a court under this Section is fully enforceable in Host’s country of residence.
10. Acceptance of and Modifications to Agreement. Payment of the Fee pursuant to this Agreement and/or completing the click-through process required to accept this Agreement shall be effective as an original signature and constitutes Host’s acceptance to the terms hereof. Host acknowledges that he/she has read and understands this Agreement in its entirety and that this Agreement may be modified at EMM’s discretion. Such changes may be effected by EMM’s posting of a change notice or new agreement on explorethemagicofmotionllc.com.com. Such modified terms are deemed incorporated herein and made part hereof. EMM will make commercially reasonable efforts to notify Host of all modifications prior to implementation. The enforceability of such changes is not contingent upon actual notification, provided that EMM has posted the changes on explorethemagicofmotionllc.com. In the event Host does not agree to abide by the terms of the Agreement, as modified, Host’s sole remedy is to terminate this Agreement. Host must monitor explorethemagicofmotionllc.com for changes to this Agreement.
11. Parties’ Relationship. The Parties’ relationship is that of licensor and licensee. Nothing herein shall be construed as creating any partnership, joint venture, agency, franchise, sales representative or employment relationship between the Parties, nor shall EMM be deemed to be acting in a fiduciary capacity with respect to Host. Host has no authority to make or accept any offers or representations on behalf of EMM or to act for or bind EMM in any manner. Host must not make statements or take actions that may contradict the relationship set forth herein or confuse or mislead any person regarding the nature of the Parties’ relationship.
12. Disclaimer & Limitation of Liability. EMM makes no representations or warranties, express or implied, with respect to NN, the EMM Services, or any EMM-related products, including warranties of fitness, merchantability, or non-infringement. Under no circumstances, or legal or equitable theory, whether in tort, contract, strict liability or otherwise, will EMM or the EMM Related Parties be liable to Host or any other person for any indirect, special, incidental or consequential losses or damages of any nature arising out of or in connection with this Agreement, including damages for lost profits, loss of goodwill, loss of data, work stoppage, accuracy of results, or computer failure or malfunction, even if an authorized representative of EMM has been advised of or should have known of the possibility of such damages. EMM makes no representation that the operation of EMM’s website(s) will be uninterrupted or error-free. EMM is not liable for the consequences of any interruptions or errors, although EMM will make commercially reasonable efforts to correct errors or interruptions. In no event will EMM be liable for any damages in excess of the Fees paid by Host during the six-month period preceding the date on which a claim arises.
13. Indemnification. Host agrees to indemnify, defend, and hold harmless EMM and the EMM Related Parties from any and all losses, liabilities, damages and expenses (including attorneys’ fees and costs) as a result of any claims, demands, actions or other proceedings made or instituted by a third party which arises out of any (i) criminal and/or negligent acts of Host; (ii) breach by Host of this Agreement; or (ii) other act or omission of Host.
14. Nature of Services. EMM programs or events may not be safe or appropriate for everyone. Any information EMM may provide to Host through a EMM training, in EMM materials, or on EMM’s website(s) regarding health, teamwork, physical activity and physical therapy is intended solely as educational aids and are not substitutes for medical advice nor establishes a patient-provider relationship. Host is encouraged to seek medical advice before providing the Services, or if Host experiences any medical condition affecting Host’s ability to provide the Services. Host must ensure that he/she complies with all applicable laws, regulations and ordinances governing the instruction of children in the country, state, and locality where Host offers programs. EMM and the EMM Related Parties assume no responsibility for any consequence relating directly or indirectly from any action or inaction of Host based on the information, services, or other material provided by EMM. While EMM strives to provide complete, up-to-date, and accurate information on its website(s) and in other materials, EMM and the EMM Related Parties do not guarantee, and will not be responsible or liable for, any damage or loss related to the accuracy, completeness, or timeliness of such information. Host releases from liability, and holds harmless EMM and the EMM Related Parties for any accident, injury, illness, death, loss, damage to person or property, or other consequences suffered by any person arising or resulting from Host’s provision of the Services. If Host is injured providing the Services, Host assumes any financial obligations for any medical costs Host may incur. EMM assumes no responsibility for any medical expenses, injury, or damages suffered by Host, or Host’s participants, in connection with the provision of the Services.
15. Notices. Any notice, request, demand or other communication given hereunder may be given to a Party at the addresses set forth below. Any notice or request hereunder must be given by registered or certified mail, return receipt requested; courier; or, e-mail.
If to EMM: United States Corporation Agents Inc., 300 Delaware Avenue, STE 210-A, Wilmington, DE 19801-1607. E-mail: exploreptmotion@gmail.com
If to Host: To the email address on Host’s NN registration or on his/her profile page.
16. No Waiver & Reservation of Rights. EMM’s failure to enforce a provision of this Agreement will not constitute a waiver of its right to subsequently enforce such provision or other provisions hereof. EMM reserves all rights not granted herein. To submit questions regarding this Agreement please visit the Contact Us page on explorethemagicofmotionllc.com.
17. Sharing of Participants Personal Data. These terms apply to the names and email addresses of participant’s who signed up for Host’s online classes and agreed to allow EMM to collect and share this Participant Personal Data with you, the Host. For purposes of Applicable Privacy Laws (which, for the purpose hereof, means the California Consumer Privacy Act of 2018, as amended (“CCPA), the EU Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 (“GDPR”), and any other data protection, privacy, data breach, or similar or related laws), Host acknowledges that Host and EMM are each a separate and independent controller of the Participant Personal Data. Host further acknowledges that Host does not and will not process Participant Personal Data with EMM as a joint controller. Host agrees to comply with all applicable obligations under all Applicable Privacy Laws (inclusive of the GDPR), and that Host is individually and separately responsible for Host’s own compliance and individually and separately liable for Host’s failure to comply.
Host shall process Participant Personal Data only for the purposes of contacting them concerning Hosts EMMTM events, provided such processing strictly complies with all Applicable Privacy Laws and Host’s obligations hereunder. Host shall comply fully with all Applicable Privacy Laws with respect to Host’s processing, use, transfer, and/or deletion of Participant Personal Data. In the event Host receives a request from a student relating to Host’s processing, use, transfer and/or deletion of the Participant’s Personal Data, Host agrees to promptly comply with such request in accordance with Applicable Privacy Laws. Without limiting the foregoing, Host agrees to promptly comply with any student request pursuant to Article 16 (Right to rectification), Article 17 (Right to erasure), or Article 18 (Right to restriction of processing) of the GDPR that relates in any way to the Participant Personal Data. In the event Host receives a request from a student relating to EMM’s processing of the Participant’s Personal Data, Host agrees to (i) promptly notify EMM of such request; (ii) direct the student to EMM in order to enable EMM to respond directly to the request; and (iii) reasonably cooperate with EMM in responding to such request.