Purchase Agreement Terms

WHEREAS, Grantor is the owner of, or has the exclusive license to, all intellectual property rights, including any and all trademarks, patents, trade secrets, copyrights, moral rights and know-how, associated with or relating to the “Ironwill Kids™ Power Up! Program” (the “Program”), together with any and all ancillary materials for the Program, including course materials, workbooks, teaching manuals, teaching guides, lesson plans, recipes, artwork and any other materials distributed by Grantor in connection with the Program (the “Program Materials”); and

WHEREAS, Purchaser wishes to offer the Program to a specific number of students/participants..

NOW, THEREFORE, Grantor and Purchaser, in consideration of the mutual agreements herein, and for other good and valuable consideration the receipt of which is hereby acknowledged, agree as follows:

I. LICENSE

Grantor hereby grants to Purchaser, subject to the terms, conditions and limitations set forth herein as well as Exhibit A hereto, the right to offer the Program, and use the Program Materials, for a period predetermined by the Grantor and Licensee (the “Term”) unless earlier terminated by written notice from Grantor.  Upon completion of the Term, the license provided by Grantor to Purchaser to offer the Program and/or to use the Program Materials hereunder shall immediately and automatically terminate.

II. OWNERSHIP

Grantor retains all right and title in and to the Program and the Program Materials.  Grantor’s exclusive rights in and to the Program and the associated Program Materials extend to any and all formats for the Program and the Program Materials, whether digital or printed, and any and all media, whether in existence as of the date of this Agreement or thereafter created.  Purchaser acknowledges and agrees that Purchaser acquires no ownership interest in or to the Program and/or the Program Materials under this Agreement.  Purchaser acknowledges that it has had no part in the creation or development of the Program and/or the Program Materials.  Any and all improvements in or to the Program and/or the Program Materials, whether or not they arise under the rights conveyed under this Agreement, shall belong exclusively to Grantor, and Purchaser hereby irrevocably transfers, assigns and conveys to Grantor, without further consideration, all right, title and interest of Purchaser in or to any such improvements.

III. CONFIDENTIAL INFORMATION

During the Term, and after the termination of this Agreement, Purchaser shall treat as confidential and shall not divulge or disclose to, or use for the benefit of, any other person or entity, any proprietary and non-publicly available information supplied by Grantor to Purchaser (including, but not limited to, any of the Program Materials that are not publicly used in connection with the Program), and the following types of information or material both existing and contemplated, regarding Grantor, the Program and/or the Program Materials: plans, strategies, policies, resolutions, drawings, designs, proposals, suppliers, marketing and sales plans, pricing information,  prospects, market research data, recipes and/or formulas, data and know-how, product concepts or designs, techniques, forecasts, research, development and experimental activities, ideas and technical information, and personnel information (collectively, “Confidential Information”).

Purchaser and Grantor agree that damages would be an insufficient remedy for the unauthorized use and/or disclosure of such Confidential Information.  Accordingly, Purchaser and Grantor hereby agree that in addition to any other available legal or equitable remedies, Grantor would be entitled to injunctive relief, including specific performance, without the obligation to post a bond or any other form of security, in order to prevent any such use or disclosure, together with its costs and expenses incurred in seeking to enforce the terms of this clause of the Agreement, including reasonable attorneys’ fees.

IV. INFRINGEMENT

Neither Purchaser nor any third party shall use, modify, alter, create derivative works from or copy the Program and/or the Program Materials without the prior express written permission of Grantor.  Purchaser acknowledges and agrees that it will use its best efforts to inform all employees, subcontractors and others who may provide services in connection with the Program, and/or have access to the Program Materials, of Grantor’s exclusive rights in and to the Program and the Program Materials, and of the limitations on the Purchaser’s use thereof.  Purchaser also agrees that it will take all reasonable measures to avoid disclosure and unauthorized use of the Program and the Program Materials.

V. ASSIGNMENT

Except as provided herein, Purchaser may not assign, transfer or convey this Agreement or any right or interest arising out of this Agreement without Grantor’s written consent.

VI. DISCLAIMER OF WARRANTIES

THE PROGRAM AND PROGRAM MATERIALS ARE PROVIDED TO PURCHASER ON AN “AS IS” AND “AS AVAILABLE” BASIS.  ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW (INCLUDING, BUT NOT LIMITED TO, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE).  IN PARTICULAR, BUT NOT AS A LIMITATION THEREOF, GRANTOR MAKES NO WARRANTY THAT THE PROGRAM AND PROGRAM MATERIALS: (A) WILL MEET PURCHASER’S REQUIREMENTS; (B) WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE OR THAT DEFECTS WILL BE CORRECTED; (C) WILL BE FREE OF ALLERGENS OR OTHER HARMFUL INGREDIENTS; (D) WILL BE SAFE FOR HUMAN CONSUMPTION; (E) WILL RESULT IN ANY SPECIFIC WEIGHT LOSS, HEALTH OR OTHER BENEFIT OR RELATED OUTCOME; AND/OR (F) WILL BE ACCURATE OR RELIABLE.  THE PROGRAM AND PROGRAM MATERIALS MAY CONTAIN ERRORS, PROBLEMS OR OTHER LIMITATIONS.  NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY PURCHASER FROM GRANTOR OR OTHERWISE THROUGH OR FROM THE PROGRAM AND/OR PROGRAM MATERIALS, SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT.

VII. LIMITATION OF LIABILITY

PURCHASER EXPRESSLY UNDERSTANDS AND AGREES THAT GRANTOR SHALL NOT BE LIABLE TO PURCHASER OR ANY THIRD-PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL AND/OR EXEMPLARY DAMAGES INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF GRANTOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), TO THE FULLEST EXTENT PERMISSIBLE BY LAW FOR: (A) THE USE OF, OR THE INABILITY TO USE, THE PROGRAM OR PROGRAM MATERIALS; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND/OR SERVICES; (C) THE FAILURE TO REALIZE ANY SPECIFIC WEIGHT LOSS, HEALTH OR OTHER BENEFIT OR RELATED OUTCOME; (D) ANY ACCIDENT INVOLVING ANY STUDENT, PROGRAM PARTICIPANT OR OTHER THIRD PARTY; (E) ANY CHOKING, ALLERGIC REACTION OR NEGATIVE HEALTH OUTCOME OF ANY STUDENT OR PROGRAM PARTICIPANT; (F) THE MALFUNCTION OF, OR DEFECT IN, ANY BLENDERS, UTENSILS OR OTHER EQUIPMENT PROVIDED BY GRANTOR; AND (G) ANY OTHER MATTER RELATING TO THE PROGRAM AND/OR PROGRAM MATERIALS.  THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION, IN THE AGGREGATE INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND ANY AND ALL OTHER TORTS.  PURCHASER HEREBY RELEASES GRANTOR FROM ANY AND ALL OBLIGATIONS, LIABILITIES AND CLAIMS IN EXCESS OF THE LIMITATIONS STATED HEREIN.  IF APPLICABLE LAW DOES NOT PERMIT SUCH LIMITATION, THE MAXIMUM LIABILITY OF GRANTOR TO PURCHASER UNDER ANY AND ALL CIRCUMSTANCES WILL BE ONE THOUSAND DOLLARS ($1,000.00).  THE NEGATION OF DAMAGES SET FORTH ABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN PURCHASER AND GRANTOR.  ACCESS TO THE PROGRAM AND PROGRAM MATERIALS WOULD NOT BE PROVIDED TO PURCHASER WITHOUT SUCH LIMITATIONS. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS ON LIABILITY AND IN SUCH JURISDICTIONS GRANTOR’S LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW

VIII. INDEMNIFICATION AND PURCHASER RESPONSIBILITY

Purchaser agrees that it shall be solely responsible for any and all parental disclosures, food allergy disclosures and/or required notices associated with, as well as the general safety of any child participating in, the Program as operated by Purchaser at the Location.  Purchaser agrees to defend, indemnify and hold harmless Grantor, its affiliates and their respective directors, officers, employees and agents from and against any and all damages, liabilities and other costs (including attorneys’ fees) incurred as a result of a claim, action or proceeding brought by a third party to the extent arising out of or related to  the Program as operated by Purchaser at the Location. Purchaser

IX. GENERAL

No waiver of any provision of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other provision hereof, nor shall such waiver constitute a waiver in any other instance.  No waiver shall be binding unless executed in writing by both parties.

This Agreement is made under and shall be construed according to the laws of the State of New York (without regard to conflict of law principles).  All actions brought to enforce the terms of this Agreement shall be commenced in the Supreme Court of New York for the County of New York, State of New York or the United States District Court for the Southern District of New York.

If any action at law or in equity, including an action for declaratory relief, is brought to enforce or interpret the provisions of this Agreement, the prevailing party will be entitled to reasonable attorneys’ fees, in addition to any other relief to which the prevailing party may be entitled.

This document contains the entire agreement between the parties with respect to the subject matter contained herein and supersedes any previous understandings, commitments or agreements, oral or written.  All additions or modifications to this Agreement must be made in writing and must be signed by both parties and must refer to this Agreement by its complete name.

If any provision of this Agreement is declared invalid by any court of competent jurisdiction, applicable statute or rule of law, then such provision shall be deemed automatically adjusted to the minimum extent necessary to conform to the requirements for validity as declared at such time and, as so adjusted, shall be deemed a provision of this Agreement as though originally included herein.