Educational Content License Agreement

 

This EDUCATIONAL CONTENT LICENSE AGREEMENT (the "Agreement"), effective as of the date of purchase (the "Effective Date"), is made by and between the educational institution listed on the order form as the licensee ("Licensee") and BIZKIDS PRACTICAL EDUCATION ASSN ("Licensor"), a not-for-profit society existing under the laws of BRITISH COLUMBIA with offices located at 2206 - 400 CAPILANO RD, PORT MOODY, BC V3H 0E1.

WHEREAS, Licensor is the owner of the Assets (as defined below) and wishes to grant to Licensee a license, and Licensee wishes to obtain a license to, the Assets for the uses and purposes described herein, each subject to the terms and conditions set forth herein.

WHEREAS, Licensor acknowledges that in some instances, Licensee’s licence to the Assets, as described herein, will be purchased by a third party, on behalf of and for the benefit of the Licensee and that such third party purchasers shall be referred to as “Purchasers” in this Agreement. In such cases, the Purchasers, along with the Licensor and Licensee, are parties to this Agreement and agree to be bound by all of its terms.

NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

  1. License.
    1. Grant of Rights. Subject to the terms and conditions of this Agreement, Licensor hereby grants to Licensee during the Term (as defined below) a non-exclusive, non-transferable (except as provided in Section 10.6), non-sublicensable license solely to display, transmit, use, and distribute the Assets at and in connection with Licensee’s educational institution (the "Educational Institution”) for purposes of delivering an internal educational program (the "Program"), provided that in no case may the Assets be directly or indirectly (a) posted on or catalogued within any social media, website, library or other online or physical location that can be accessed by the general public or other persons within the Educational Institution who are not part of the Program, (b) disclosed, used or copied more than reasonably necessary to deliver such Program internally, or (c) used to create or improve a competing or derivative Program. 
    2. Description of the Assets. The "Assets" are defined as any and all materials provided by Licensor, and for greater certainty include such materials or components thereof presented in any and all media whether now or hereafter known or developed ‎or by any and all technologies ‎and means of delivery whether now or hereafter known or devised‎.
    3. Reservation of Rights. Licensor reserves all rights not expressly granted to Licensee under this Agreement. No use by Licensor of the Assets in any medium or manner will be deemed to interfere with the limited permissions made to Licensee by Licensor herein.   
  2. Usage of the Assets. Notwithstanding any other provision to the contrary contained in this Agreement:
    1. Copyright Notices. Licensee shall ensure that its use of the Assets is marked with the appropriate copyright notices specified by Licensor in a reasonably prominent position in the order and manner provided by Licensor. Licensee shall abide by the copyright laws and what are considered to be sound practices for copyright notice provisions in their jurisdiction. Licensee shall not use any copyright notices that conflict with, confuse, or negate the notices Licensor provides and requires hereunder.
    2. Modifications. Licensee shall not translate, recast, edit, alter, modify, or create any derivative works of the Assets without the prior written consent of Licensor, which will not be unreasonably withheld, conditioned or delayed. 
    3. Restrictions. Each license is valid for use at (i) 1 location or (ii) for up to 350 students per year. If the Licensee exceeds these restrictions the Licensee may purchase an additional license to use the Assets at (i) an additional location or (ii) for up to 250 more students by contacting the Licensor at [email protected] for a discounted rate. Written permission from Build a Biz Kids is required before the Licensee may operate outside of the stated restrictions.
    4. Staff & Contractor Access. All individuals accessing the Asset must be employed or contracted by the Licensee. If employees or contractors are using their own devices to access the Asset, the Licensee shall cause to be inactivated and erased all digital copies of the Assets in said employee or contractors’ control and possession and return to the Licensee or, destroy, any tangible copies of the Assets. 
  3. Payment. As consideration in full for the rights granted herein, the Licensee, or where a Purchaser has been listed on an order form, the Purchaser, shall pay Licensor a fee in the amount specified by Licensor in each completed order form, payable upon terms specified by Licensor. Such consideration is exclusive of applicable taxes, which will be collected and remitted by Licensor as required by applicable law.
    1. Alternative Licensing Options: Depending on the Licensee’s vision for your school or business, the following alternative options may be available to the Licensee by contacting [email protected] 

These alternative licensing options are subject to additional Terms & Conditions as agreed upon in writing by both the Licensee and the Licensor. 

  1. Refund Policy. If for any reason you feel like the License of the Asset isn't right for your organization let us know within 14 days of your purchase and we will issue a 100% refund. After 14 days of purchase of your first year’s license is non-refundable.
  1. Ownership and Protection. 
    1. Acknowledgment of Ownership. Except for the licenses expressly granted to Licensee in this Agreement, Licensee acknowledges that all right, title, and interest in and to the Assets will remain with Licensor and its licensors. If Licensee acquires any rights in the Assets by operation of law or otherwise, Licensee hereby irrevocably assigns such rights to Licensor without further action by either party. Licensee agrees not to dispute or challenge or assist any person or entity in disputing or challenging Licensor's rights in and to the Assets.
    2. Protection of the Assets. 
      1. Notification. Licensee shall, at its sole expense, maintain any copies of the Assets within Licensee's possession, custody or control under reasonably appropriate measures (but at least as good as those used to protect its own valuable or confidential materials) to protect and safeguard the Assets from non-permitted use or copying. Licensee shall immediately notify Licensor in writing with reasonable detail of any: (i) actual, suspected, or threatened infringement of the Assets; (ii) actual, suspected, or threatened claim that use of the Assets infringes the rights of any third party; or (iii) any other actual, suspected, or threatened claim to which the Assets may be subject.
      2. Actions. With respect to any of the matters listed in Section 4.2(a), and without affecting any indemnities hereunder: (i) Licensor has exclusive control over, and conduct of, all claims and proceedings; (ii) Licensee shall provide Licensor with all assistance that Licensor may reasonably require in the conduct of any claims or proceedings; and (iii) unless the infringement is caused by Licensee, Licensor shall bear the cost of any proceedings, but Licensor in any event will be entitled to retain all sums recovered in any action for its own account.
  2. Confidentiality. From time to time, Licensor may disclose or make available to Licensee information about its business affairs, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, including the financial terms of the Agreement, business operations and strategies, marketing, creative elements, artwork, visual representations, research material and data, specifications, processes, and technological developments, whether orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as "confidential" (collectively, "Confidential Information"). Licensee agrees that the Assets are, except as to be properly delivered as part of the Program, Licensor’s Confidential Information. Confidential Information does not include information that, at the time of disclosure and as established by documentary evidence: (a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section by Licensee; (b) is or becomes available to Licensee on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was known by or in the possession of Licensee before being disclosed by or on behalf of Licensor; or (d) was or is independently developed by Licensee without reference to or use, in whole or in part, of any of Licensor's Confidential Information. Licensee shall: (i) protect and safeguard the confidentiality of Licensor's Confidential Information with at least the same degree of care as Licensee would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (ii) not use Licensor's Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (iii) not disclose any such Confidential Information to any person or entity, except: (A) to Licensee's officers, employees, agents, consultants, and legal advisors who need to know the Confidential Information to assist Licensee, or act on its behalf, to exercise its rights or perform its obligations under the Agreement, or (B) pursuant to applicable federal, provincial, state, municipal, or local law or regulation, or a valid order issued by a court or governmental agency of competent jurisdiction, provided that Licensee shall first make commercially reasonable efforts to provide Licensor with: (1) prompt written notice of such requirement so that Licensor may seek, at its sole cost and expense, a protective order or other remedy; and (2) reasonable assistance, at Licensor's sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure.
  3. Representations and Warranties.
    1. Mutual Representations and Warranties. Each party represents and warrants to the other party that:
      1. it is formed and validly existing under the laws of the jurisdiction of its formation; 
      2. it has the full right, power, and authority to enter into this Agreement and to perform its obligations hereunder;
      3. the execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary organizational actions of the party; and
      4. when executed and delivered by such party, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.
    2. Licensor's Representations and Warranties. Licensor represents and warrants, solely to and for the benefit of Licensee, that it owns or otherwise has the necessary rights to license the Assets in connection with Licensee's uses permitted hereunder.
    3. Licensee's Representations and Warranties. Licensee represents and warrants that:
      1. Licensee will not engage or participate in any activity or course of action that could diminish or tarnish the image or reputation of the Assets or Licensor, or cause confusion as to the ownership of the Assets; and
      2. Licensee's use of the Assets will not infringe, misappropriate, or otherwise violate Licensor’s intellectual property rights or other rights of any third party or violate any applicable regulation or law.
    4. Disclaimer of Representations and Warranties. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION , THE ASSETS ARE PROVIDED AS-IS AND AS-AVAILABLE, LICENSOR EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE LICENSED PROPERTY, INCLUDING ANY IMPLIED WARRANTY OR CONDITION OF TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE, IN EACH CASE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
  4. Indemnification.
    1. Licensee Indemnification. Licensee shall indemnify, defend, and hold harmless the Licensor, its affiliates, successors and assigns, and their respective officers, directors, employees, contractors, volunteers and personnel (each an "Indemnified Party") from and against any losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers, arising out of or in connection with any third-party claim, suit, action, or proceeding (each a "Third-Party Claim") relating to Licensee’s use of the Assets, except to the extent of caused by Licensor’s breach of its express representations, warranties or covenants hereunder.
    2. Indemnification Procedure. The Indemnified Party shall notify Licensee upon becoming aware of a Third-Party Claim under this Section 7. Licensee shall promptly assume control of the defence and investigation of such Third-Party Claim, with counsel reasonably acceptable to the Indemnified Party, and the Indemnified Party shall reasonably cooperate with Licensee in connection therewith, in each case, at Licensee's sole cost and expense. The Indemnified Party may participate in the defence of such Third-Party Claim, with counsel of its own choosing and at its own cost and expense. Licensee shall not settle any such Third-Party Claim on any terms or in any manner that adversely affects the rights of any Indemnified Party without such Indemnified Party's prior written consent (which consent shall not be unreasonably withheld, conditioned, or delayed). If Licensee fails or refuses to assume control of the defence of such Third-Party Claim, the Indemnified Party has the right, but no obligation, to defend against such Third-Party Claim, including settling such Third-Party Claim after giving notice to Licensee, in each case, in such manner and on such terms as the Indemnified Party may deem appropriate. Neither the Indemnified Party's failure to perform any obligation under this Section 7.2 nor any Indemnified Party's act or omission in the defence or settlement of any such Third-Party Claim will relieve Licensee of its obligations under this Section 7.2, except to the extent that Licensee can demonstrate that it has been materially prejudiced as a result thereof.
  5. Term and Termination.
    1. Term. The term of this Agreement commences as of the Effective Date and, unless terminated earlier as provided herein, will remain in force for a period set out in each order form (the "Term").
    2. Termination for Cause. Either party may terminate this Agreement on written notice to the other party if the other party materially breaches this Agreement and fails to cure such breach within 30 days after receiving written notice thereof. Licensor reserves the right to suspend access to the Asset immediately until the breach is cured. 
    3. Bankruptcy, Insolvency, or Financial Distress. Either party may terminate this Agreement by written notice to the other party if the other party: (a) becomes insolvent or admits its inability to pay its debts generally as they become due; (b) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven business days or is not dismissed or vacated within 45 days after filing; (c) is dissolved or liquidated or takes any corporate action for such purpose; (d) makes a general assignment for the benefit of creditors; or (e) has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
    4. Effect of Termination. Upon the expiration or termination of this Agreement for any reason, all rights licensed under this Agreement will revert immediately to Licensor and Licensee shall cause to be inactivated and erased all digital copies of the Assets in its control and possession and return or, at Licensor's written request, destroy, any tangible copies of the Assets. Upon Licensor's request, Licensee shall provide an affidavit to Licensor attesting to such erasure or destruction. In the event of the termination of this Agreement, no portion of any payments previously provided to Licensor under Section 3 shall be owed or be repayable to Purchaser or Licensee.
    5. Survival. Any rights or obligations of the parties in this Agreement which, by their nature, should survive termination or expiration of this Agreement will survive any such termination or expiration, including the rights and obligations set forth in Sections 10 through 10, inclusive.
  6. Remedies. 
    1. Equitable Relief. Licensee acknowledges that a breach by Licensee of this Agreement may cause Licensor irreparable damages, for which an award of damages would not be adequate compensation, and agrees that, in the event of such breach or threatened breach, Licensor will be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance, and any other relief that may be available from any court, in addition to any other remedy to which Licensor may be entitled at law or in equity. Such remedies are not exclusive but are in addition to all other remedies available at law or in equity, subject to any express exclusions or limitations in this Agreement to the contrary.
    2. Limitation of Liability. LICENSOR WILL NOT BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, LIQUIDATED, SPECIAL, EXEMPLARY OR AGGRAVATED DAMAGES OR PENALTIES, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, NOR FOR ANY LOSSES OF BUSINESS, REVENUE, GOODWILL, OR ANTICIPATED OR ACTUAL PROFITS WHETHER DIRECT OR INDIRECT.  LICENSOR’S MAXIMUM LIABILITY UNDER THIS AGREEMENT FOR DIRECT DAMAGES IN AGGREGATE SHALL NOT EXCEED THE AMOUNT PAID BY PURCHASER OR LICENSEE UNDER SECTION 3 DURING THE THEN-CURRENT TERM.
  7. General.
    1. Interpretation. For purposes of this Agreement, (a) the words "include", "includes", and "including" or similar language will be deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; and (c) the words "herein", "hereof", "hereby", "hereto," and "hereunder" refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to Sections, schedules, and exhibits refer to the Sections of, and schedules and exhibits attached to, this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement will be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. Any schedules and exhibits referred to herein will be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein.
    2. Entire Agreement. This Agreement, including and together with any related attachments and schedules, constitutes the sole and entire agreement of the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. 
    3. No Third-Party Beneficiaries. Except for Indemnified Parties, this Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns, and nothing herein, express or implied, is intended to or will confer upon any third party any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement.
    4. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party has authority to contract for or bind the other party in any manner whatsoever.
    5. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect the enforceability of any other term or provision of this Agreement, or invalidate or render unenforceable such term or provision in any other jurisdiction. 
    6. Assignment. Licensee shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Licensor. Any purported assignment or delegation in violation of this Section 10.6 is null and void. Licensor may freely assign or otherwise transfer any of its rights or delegate any of its obligations under this Agreement. 
    7. Successors and Assigns. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and permitted assigns.
    8. Amendments and Modifications. No amendment or modification to this Agreement is effective unless it is in writing and signed by an authorized representative of each party.
    9. Waiver. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof, or the exercise of any other right, remedy, power, or privilege.
    10. Governing Law. This Agreement and all related documents including all exhibits and schedules attached hereto, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute, are governed by, and construed in accordance with, the laws of British Columbia and the federal laws of Canada applicable therein.
    11. Choice of Forum. Any legal suit, action, litigation, or proceeding of any kind whatsoever in any way arising out of, from or relating to this Agreement, including all statements of work, exhibits, schedules, attachments, and appendices attached to this Agreement, the services provided hereunder, and all contemplated transactions, shall be instituted in the courts of British Columbia, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, litigation or proceeding. Service of process, summons, notice, or other document by mail to such Party's address set forth herein shall be effective service of process for any suit, action, litigation or other proceeding brought in any such court. Each Party agrees that a final judgment in any such suit, action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
    12. Counterparts. This Agreement may be executed in counterparts (including electronically), each of which is deemed an original, but all of which together are deemed to be one and the same agreement.