This webpage (the “Site”), including the terms and conditions set forth in Sections 1 to 11 below (the “Agreement”), contains the agreement between Scend, LLC, a Florida limited liability company (“Licensor”) whose address is 12802 Science Drive, Orlando, Florida, 32826, and those third party dealership entities who have completed and submitted The A-Team Academy Membership Authorization form concerning Licensee’s use of the trademark THE A-TEAM (as hereinafter further defined as the Mark) and Licensee’s utilization, from time to time, of the ideas, trade secrets, know how, copyrighted materials and other intellectual property that may be made available, from time to time, by Licensor to Licensee in connection with the Mark (collectively the “Licensed Intellectual Property”), effective as of the date indicated on The A-Team Academy Membership Authorization form (the “Effective Date”). Your access to this site and/or use of the mark constitutes your acceptance of this Agreement and its terms and conditions, and indicates your acceptance and agreement to follow and be bound by this Agreement.

This Agreement constitutes a legal, binding agreement between you and Licensor.  There may be additional or different terms and conditions stated elsewhere on the Site that apply to your access and use of the Site and/or that apply to your relationship with Licensor, including but not necessarily limited to The A-Team Academy Membership Authorization form, the Site’s “Terms and Conditions” and Privacy Policy, the Creative Materials Notice included with Materials provided to you, and/or any Advertising Agency Agreement entered into between you and Licensor (collectively the “Related Agreements”).  If you do not agree to all of the terms and conditions contained herein and in the Related Agreements, you must not access or use the Site or use the mark.

Licensee acknowledges that this Agreement contains, among other things, provisions concerning venue, choice of law, limitations of liability, limitations of warranties, indemnification, non-competition, non-solicitation, and waiver of jury trial.

BACKGROUND

Licensor has developed, continues to develop, and owns the rights in and to: (1) that certain trademark and service mark THE A-TEAM, both in word and design form, standing alone and in connection with other designs (the “Mark”) for use in connection with automobile dealership services, automobile dealership marketing and operations, and most particularly automobile dealership call center services; and (2) trademarks, copyrights, trade secrets, and know-how in and to advertisements, sales training methodologies, and related creative materials used in connection with the Mark (the “Materials”).

Licensee engages and has engaged in the automobile dealership business for a substantial time prior to entering this Agreement.  Licensee is also a member in good standing of “The A-Team Academy Program,” as indicated in the fully-executed “The A-Team Academy Membership Authorization Form” between Licensor and Licensee, which is incorporated by reference as if fully set forth herein (the “Authorization Form”).  Licensee desires to use the Mark and the Materials.

AGREEMENT

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which the parties hereto acknowledge, Licensor and Licensee agree as follows:

1. License to Mark and Materials.

1.1 Non-Exclusive License Grant .  On the terms and conditions set forth herein as of the Effective Date and for the Term (as defined in Section 2 of this Agreement), Licensor hereby grants to Licensee a non-transferable, non-exclusive license to: (A) use the Mark and the Materials solely at the dealership locations listed on The A-Team Academy Membership Authorization form for, and directly in connection with, the sales process with customer prospects for Licensee’s automobile dealership(s); and (B) to make derivative works of the Materials (the “Derivative Works”) only by adding information specific to Licensee’s business operations or otherwise modifying the Materials to meet and comply with all of the legal, regulatory, contractual and other requirements and obligations applicable to Licensee and its business and sales operations; and (C) to copy and make reproductions of the Mark and the Materials for use solely in connection with the activities described in (A) above; provided that: (1) any third party engaged to make any copy or reproduction or otherwise utilize any Mark or Material for the benefit of Licensee (a “Licensee Vendor”) shall be advised, in writing by Licensee, that the Mark and the Materials and all Licensed Intellectual Property therein are the sole property of Licensor; and (2) Licensee shall notify Licensor, in writing, of the name, contact information, and dates of utilization of each Licensee Vendor no later than the date Licensee first engages such Licensee Vendor in connection with the Mark or the Materials.  Subsections (A), (B), and (C) of this Section 1.1 are defined as the “Licensed Rights”.

1.2 Limitations on License Grant.  Licensee shall be responsible for and timely pay all costs incurred in connection with the exercise of the Licensed Rights.  Licensee acknowledges and agrees that no trademark, trade name, service mark, copyright, trade secret, or other intellectual property rights of any kind whatsoever, other than the Mark are the Materials, are licensed to Licensee hereunder, including but not limited to “The A-Team Bootcamp” mark, “The A-Team Academy” mark, the “Call Commando” mark, the “For The People” mark, and the “Nicer, Newer” mark.  Licensee shall exercise the Licensed Rights in good faith strictly in accordance with the quality control provisions of Section 1.6 of this Agreement so as to maximize the value of and goodwill associated with the Marks and the Materials and not to damage or otherwise negatively affect the value of the Marks or the Materials.  Licensee specifically acknowledges and agrees that the Licensed Rights do not include the grant to Licensee of any right to engage in any other activity relating to any other intellectual property of Licensor or concerning any other trademarks, service marks, copyrights, trade dress, trade names, or materials of Licensor, including, without limitation: (A) modification, amendment or enhancement of the Mark or Materials; or (B) the right to adopt or utilize any mark, designation, domain name, or trade name that is deceptively similar to, or would cause confusion with the Mark or any other trademark, service mark, or trade name of Licensor; or (C) the right to use the Mark or any of the Materials or any portion thereof as part of a company name, domain name, or trade name.  Licensee acknowledges the Licensor has not made, and will not make, any determination or representation or warranty that the use of the Mark or the Materials, in whole or in part, complies with or is permissible by Licensee and LICENSEE IS SOLELY RESPONSIBLE FOR DETERMINING THAT THE EXERCISE OF THE LICENSED RIGHTS, IN WHOLE OR IN PART, AND THE OPERATION OF LICENSEE’S BUSINESS ARE IN FULL COMPLIANCE WITH THE APPLICABLE LEGAL, REGULATORY, CONTRACTUAL AND OTHER REQUIREMENTS APPLICABLE TO LICENSEE.

1.3 Grant Back.  Licensee hereby assigns to Licensor all right, title and interest in and to Derivative Works, sub-brands, taglines, slogans, copyrights, and all intellectual property arising from or in connection with Licensee’s exercise of the Licensed Rights, at no cost to Licensor, and Licensee shall do all acts necessary to ensure that the title in and to such Derivative Works, sub-brands, taglines, slogans, copyrights, and intellectual property is assigned to Licensor.

1.4 No Requirement to Exercise Licensed Rights.  Licensee shall have no obligation whatsoever to exercise all or any part of the Licensed Rights and shall be solely responsible for determining if, when, and whether to do so, and the extent of doing so.

1.5 Licensor Property.  Licensee agrees and acknowledges that the Mark and the Materials, the Licensed Intellectual Property, the Derivative Works, and all other trademarks, service marks, copyrights, trade names, domain names, and/or trade secrets owned by Licensor whether or not licensed to Licensee (collectively “Licensor’s Intellectual Property”) shall at all times remain the sole and exclusive property of Licensor, and that the use of the Mark shall inure to the benefit of Licensor.  Licensee waives and relinquishes any and all interests or rights Licensee may have or hereafter acquire in Licensor’s Intellectual Property in favor of Licensor, and Licensee hereby assigns to Licensor any right, title, and interest Licensee may have now or in the future in or to Licensor’s Intellectual Property.  Licensee agrees that it will not infringe upon the Mark, nor will Licensee incorporate the Mark or any portion thereof into Licensee’s trademarks, service marks, company name, Internet address, domain names, or any other similar designations.  Neither Licensee nor any of its employees or affiliated companies shall, during the Term of this Agreement or at any time thereafter, apply for or seek registration of any words, trademarks, service marks, trade names, or logos which are the same as or confusingly similar to the Mark or any other trademark owned by Licensor as of the date hereof or which may in any manner be used in unfair competition therewith.  Licensee further undertakes and agrees that it will not at any time do, or so far as it is able, allow to be done, any act or thing which may in any way diminish, dilute or adversely affect the reputation or value of the Mark.

1.6 Quality.  Licensee recognizes the importance to both parties of high standards of quality in relation to the provision of services and sale of products in any way connected with the Mark and the Materials under this license.  Accordingly, Licensee agrees: (i) to continue to adhere to the highest standards and ethics for automobile dealerships in the Territory; (ii) during Licensee’s normal business hours, to permit Licensor or its representative to visit its business premises to observe and inspect the business operations and practices of Licensee in order to verify Licensee’s compliance with the Code of Ethics; and (iii) to submit to Licensor, for Licensor’s advance examination and written approval, all advertising materials, marketing materials, promotional materials, and consumer communications of any kind whatsoever proposed for use by Licensee in connection with the Mark.  Licensee shall not use, distribute, publish, or disseminate any materials, advertising, advertising materials, marketing materials, promotional materials, or consumer communications that bear the Mark without Licensor’s prior written approval.

1.7 Infringement and Indemnification.  Licensee shall promptly notify Licensor of all infringements, misuses or unauthorized uses of the Mark, and of any proceeding threatened or commenced relating to the Mark, of which Licensee becomes aware.  If Licensor, after consultation with Licensee but in Licensor’s sole discretion, should decide to institute a legal action in its own name, it may do so at its own expense.  Licensor shall have the final decision with regard to the conduct of all such legal actions and shall retain all settlements, recoveries and judgments arising therefrom, after reimbursement to Licensee for out-of-pocket expenses, if any, incurred by Licensee in connection with such legal action taken at Licensor’s specific request or with Licensor’s written approval.  Licensee shall, at Licensee’s expense (except as aforesaid), cooperate with Licensor in the conduct of any such proceeding and assign, without compensation, any claims Licensee may have.  Licensee may not institute any legal action involving any of the Licensed Rights without the prior written approval of Licensor, which approval may be withheld in Licensor’s sole subjective discretion.

With respect to claims against one or both parties by third parties of unfair competition, product liability, negligence, proprietary right infringement (including the infringement of any third party rights in trademarks other than the Mark, copyright, patent or trade secret), or any other causes of action insofar as such claim, demand or action is attributable to the acts of Licensee in connection with its performance under this Agreement or claims arising out of Licensee’s violation of its obligations under this Agreement, Licensee shall (i) indemnify Licensor against any liability, cost, loss, or expense (including reasonable attorneys’ fees) of any kind; and (ii) hold harmless Licensor and save it harmless from any liability, cost, loss, or expense of any kind.

1.8 Licensee Fee.  In consideration of the Licensed Rights granted herein, Licensee agrees to pay Licensor the monthly license fee set forth in the Authorization Form.  Licensee fee payments made hereunder shall be made on the date when payment is due to Licensor pursuant to the Authorization Form or pursuant to Licensor’s written instructions.  Licensee shall in no event, without Licensor’s prior written authorization, be entitled to set off any amounts it may claim are owed to it by Licensor or any affiliated company, for any reason whatsoever, against any amounts owed to Licensor pursuant to this Section 1.8.  All late payments shall bear interest at a rate of two (2%) percent per month or, if such rate should exceed any applicable permissible legal interest rate, then at the highest legally permissible rate.  The operation of this Section is without prejudice to any other right or remedy Licensor may have under law or pursuant to the terms of this Agreement.

1. Term and Termination.  The term (the “Term”) of this Agreement shall commence on the Effective Date indicated on the fully-executed Authorization Form between Licensor and Licensee and shall continue until the earlier of the time that: (A) Licensee is no longer a member of Licensor’s “The A-Team Academy” program (the “Program”), for any cause or reason whatsoever; or (B) Licensee terminates this Agreement upon thirty (30) days written notice to Licensor; or (C) ninety (90) days after written notice from Licensor that it is terminating the Program; or (D) Licensor notifies Licensee that it has failed to pay any monthly license fee pursuant to Section 1.8 hereof within forty-five (45) days of the due date for such payment.  Licensor may terminate Licensee upon written notice for cause.  Upon a termination of this Agreement for any cause or reason whatsoever, Licensee shall immediately cease exercising the Licensed Rights, including, without limitation, the use of the Mark, and refrain from expressing (or causing others to express) to any third party any derogatory or negative opinions or statements concerning Licensor, its business operations, products and services, officers, directors, employees, the Mark, the Materials, or any of the Licensed Rights.
2. WARRANTIES.  EXCEPT FOR THE EXPRESS WARRANTY SET FORTH IMMEDIATELY HEREINBELOW IN THIS SECTION 3, LICENSOR MAKES NO WARRANTIES OR REPRESENTATIONS WHATSOEVER, INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY; ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; ANY WARRANTY CONCERNING INTELLECTUAL PROPERTY INFRINGEMENT; OR ANY WARRANTY THAT ANY OF THE MARKS OR MATERIALS CAN BE LAWFULLY UTILIZED BY LICENSEE IN ITS BUSINESS OPERATIONS.  Licensor warrants only that the Materials were independently created and developed by or for Licensor.
3. LIMITATION OF LIABILITY.  EXCEPT FOR INFRINGEMENT OF LICENSOR’S INTELLECTUAL PROPERTY, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF BUSINESS OR OTHER ECONOMIC DAMAGE, OR INJURY TO PROPERTY.  EACH PARTY ACKNOWLEDGES THAT THIS SECTION REFLECTS AN INFORMED, VOLUNTARY ALLOCATION OF THE RISKS (KNOWN AND UNKNOWN) THAT MAY EXIST IN CONNECTION WITH THIS AGREEMENT, THAT SUCH VOLUNTARY RISK ALLOCATION WAS A MATERIAL PART OF THE BARGAIN BETWEEN THE PARTIES, AND THAT THE ECONOMIC AND OTHER TERMS OF THIS AGREEMENT WERE NEGOTIATED AND AGREED TO BY THE PARTIES IN RELIANCE ON SUCH VOLUNTARY RISK ALLOCATION.
4. Restrictive Covenant.  Licensee and each person participating in “The A-Team Academy” program on behalf of Licensee (collectively being the “Restricted Parties”) hereby each agree that none of them shall: (A) ever: (1) disclose or allow any person or entity to have access to any Confidential Information (as defined below); or (2) make any use, commercial or otherwise, of any Confidential Information, except solely during the Term of this Agreement in connection with the exercise of the Licensed Rights or the operation of Licensee’s business; and (B) for the Term of this Agreement and a period of two (2) years after the termination of this Agreement, by whatever means and without regard to cause, engage in themselves, carry on, do business as, or have any interest in any business, group, organization, facility, venture or other entity or arrangement which engages in or carries on the provision of marketing and advertising related services, including but not necessarily limited to consulting, training, coaching, media buying, creation and licensing of advertising and/or promotional material, and seminars for car dealers (the “Business”) or any business activity substantially similar, in whole or in part, to the Business, whether as an employee, owner, sole proprietor, shareholder, independent contractor, partner, member, agent, officer, director or otherwise, in the United States; and (C) solicit, hire, compensate or engage as an employee, agent, contractor, shareholder, member, joint venturer, or consultant, whether or not for consideration, any of Licensor’s employees, subcontractors, or former employees; and (D) solicit, render services to, or accept business from any customer or former customer of Licensor or any of their subsidiary or parent entities or affiliates for any business activity.  The Restricted Parties acknowledge that the duration, activities restricted, and geographic scope of the provisions set forth in this Section 5 are reasonable and are reasonably necessary to protect the Business and Licensor.  If any court determines that the duration, activities restricted, or geographic scope, or any combination thereof, are unreasonable and that such provision is to that extent unenforceable, the Restricted Parties agree that the provision shall remain in full force and effect for the greatest time period, with respect to the broadest type of activities described, and in the greatest geographic area that would not render it unenforceable.  The Restricted Parties further acknowledge and agree that this Agreement is being entered into by the Restricted Parties in order to induce Licensor to enter into this Agreement and to provide Licensor’s Confidential Information to Licensee and to each person participating in “The A-Team Academy” program on behalf of Licensee.  The Restricted Parties acknowledge that no additional consideration beyond participation in “The A-Team Academy” program and Licensor’s provision of its Confidential Information to Licensee and to each individual participating on behalf of Licensee shall be necessary and that the obligations of Licensor provided herein are full and adequate consideration for the restrictions in this Section 5.  “Confidential Information” means the proprietary and non-public information of Licensor, including but not limited to Licensor’s know-how and trade secrets disclosed in connection with “The A-Team Academy” programs and materials.
5. Entire Agreement, Waiver and Modification, Captions and Partial Invalidity.  This Agreement together with any Related Agreements collectively set forth the entire understanding of the parties concerning the subject matter of this Agreement and the parties’ working relationship and incorporates all prior negotiations and understandings.  There are no covenants, promises, agreements, conditions, or understandings, either oral or written, between the parties hereto relating to the subject matter of this Agreement other than those set forth herein and in the Related Agreements.  No purported waiver by any party of any default by another party of any term or provision contained herein shall be deemed to be a waiver of such term or provision unless the waiver is in writing and signed by the waiving party.  No such waiver shall in any event be deemed a waiver of any subsequent default under the same or any other term or provision contained herein.  Except as set forth below, no alteration, amendment, change, or addition to this Agreement shall be binding upon any party unless in writing and signed by the party to be charged.  The captions and paragraph letters appearing in this Agreement are inserted only as a matter of convenience.  They do not define, limit, construe or describe the scope or intent of the provisions of this Agreement.  If any term or provision of this Agreement, or the application thereof to any person or circumstance, shall be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid, shall both be unaffected thereby and each term or provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law.  The Restricted Parties acknowledge that breach by any of them of the terms and conditions of Section 5 of this Agreement will result in irreparable harm to Licensor for which compensatory damages are an inadequate remedy.  The Restricted Parties therefore agree that in the event of such breach, Licensor shall be entitled to institute and prosecute proceedings in any court of competent jurisdiction, either in law or equity, without the posting of any bond or security, to enjoin such breach and/or specifically to enforce the performance of this Agreement.  This remedy is in addition to any other remedy available to Licensor, by judicial proceedings or otherwise, for breach of any provision of this Agreement.
6. Notices.  Any consent, waiver, notice, demand, request or other instrument required or permitted to be given under this Agreement other than day-to-day business communication shall be in writing and deemed to have been properly given upon: (A) actual delivery if hand delivered; (B) the next business day after transmission by overnight express courier service (e.g., Federal Express), freight prepaid to the address for such party set forth herein; or (C) three (3) business days after being sent by certified United States mail, return receipt requested, postage prepaid, to the address for such party set forth herein.  Either party may change its address for notices in the manner set forth herein.
7. Applicable Law, Jurisdiction, Venue and Forum.  This Agreement shall be construed and governed under and by the laws of the State of Florida for contracts entered and to be performed within the State of Florida.  The parties agree that, except for third party actions, exclusive venue for any legal action authorized hereunder shall be in Orange County, Florida, and jurisdiction shall be vested in the Circuit Court of the Ninth Judicial Circuit in and for Orange County, Florida, or the United States District Court for the Middle District of Florida, Orlando Division, as the case may be.  Both parties agree not to contest the venue set forth herein and not to contest the exercise of personal jurisdiction over the parties by any of the foregoing courts.  The parties hereby waive all rights concerning the exercise of personal jurisdiction of them by the foregoing courts.
8. WAIVER OF JURY TRIAL.  THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY WAIVE ALL OF THEIR INDIVIDUAL AND COLLECTIVE RIGHTS TO A TRIAL BY JURY ON ANY AND ALL ISSUES PERTAINING TO OR ARISING OUT OF THIS AGREEMENT, THE MARK, AND THE MATERIALS.
9. Attorney’s Fees.  In the event any litigation, mediation, arbitration, or controversy between the parties hereto arises out of or relates to any of Sections 1.1, 1.2, 1.3, 1.5, 1.6, 3, 4, 5, 8 or 9 of this Agreement, the prevailing party shall be entitled to recover from the other all of its reasonable attorneys’ fees, expenses and suit costs, including those associated with appellate and post-judgment collection proceedings.
10. Survival.  Sections 1.3, 1.5, 1.6, 1.7, and 3 through 10 shall survive the termination, cancellation or expiration of this Agreement by whatever means for whatever reason.