General Terms and Conditions applicable to ESSENTRICS Licenses

These general terms and conditions are applicable to all license agreements between ESSENTRICS NL (“Licensor”) and its teachers of ESSENTRICS Classes (“Licensee(s)”).
Definitions

In these terms and conditions and in License agreements governed by these conditions the following defined terms are used:

“Agreement” means the License;

“ESSENTRICS Classes” means classes which conform to the workouts based on The Esmonde Technique, instruction lessons and classes, all as set out and/or shown in videos, photos, clips (visual and audible) by ESSENTRICS NL or authorised by ESSENTRICS NL or purchased via or shown on www.essentrics.nl, www.essentrics-store.eu and/or www.essentrics.com;

“ESSENTRICS Training Series” means training of teachers of ESSENTRICS Classes conform the description on www.essentrics.nl, www.essentrics-store.eu, www.essentrics.com, the ESSENTRICS Workbooks, the ESSENTRICS DVDs and other ESSENTRICS materials, and as otherwise designated by Licensor from time to time;

“Intellectual Property” means all statutory and other proprietary rights of Licensor in respect of copyright and neighbouring rights (including future copyright), all rights in the Trademark as hereafter defined, as well as other registered and unregistered trade marks, registered and unregistered designs, and other rights arising out of intellectual activity in the field of physical education;

“License” means the license to use the Intellectual Property subject to the terms and conditions of a License Agreement between Licensor and Licensee;

“Related Services and Products” means any services and products that relate to or are used in connection with the ESSENTRICS Classes, including but not limited to Pre-Choreographed workouts and other workouts, workshops, master classes and other training sessions, DVD’s, video clips, manuals, other publications centered around the ESSENTRICS Classes;

“Territory” means The European Union; and

“Trademark” means the trademark “ESSENTRICS” (word mark), registered as Community trademark since 14 January 2011 under no. 8544637 for amongst others the arranging and conducting of training and workshops in the field of sports classes and physical education. Trademark shall also mean all other trademarks, trade names, styles, and logos, which are or may come under the control or proprietorship of Licensor, and which are used in connection with the ESSENTRICS Classes and Related Services and Products under the License and any modifications of additions thereto, including any additions or modifications to the classifications for goods and services.

License, scope of License and ownership of Intellectual Property

1. Subject to certification of the Licensee by the Licensor as described under paragraph 2.2, the Licensor grants to the Licensee, and the Licensee accepts, a non-exclusive, non-transferable license to use the Intellectual Property in connection with the ESSENTRICS Classes and sale of Related Services and Products in the Territory during the term of the License, all subject to the terms and conditions set forth herein and in the License Agreement. For the purposes of the License, Licensor may extend the License to other trademarks and other Intellectual Property that Licensor may designate expressly from time to time.
2. The License granted and all other rights derived from the License by the Licensee are subject to and conditional on certification of the Licensee by the Licensor. The Licensee will be granted the required certification provided Licensee has complied en continues to comply with the applicable requirements to become an ESSENTRICS teacher as these will be communicated from time to time by Licensor.
3. Licensee agrees to use the Intellectual Property for which Licensee has a License only in combination with the Trademark and in the form and manner as set forth in these General Terms and Conditions and in the License Agreement, and as otherwise prescribed in manuals or other communications from time to time by Licensor. Licensee may not make use of the Intellectual Property or any parts thereof for the purpose of any workout or programme other than the ESSENTRICS Classes.
4. Without in any way limiting the generality of the foregoing restrictions, Licensee’s use of the Intellectual Property and the Trademark shall be limited as follows:

• 4.1 Describing the ESSENTRICS Classes
  Licensee shall not use the Trademark in a combination with any other trademarks, trade names or other terms unless expressly approved in writing by the Licensor. For example, Licensee shall not refer to a class using the expression ESSENTRICS -Abs, Beginner ESSENTRICS or ESSENTRICS Pilates. However, Licensee may use the Trademark followed by descriptive words, for example ESSENTRICS – for beginners, as is expressly used on www.essentrics.nl, www.essentrics-store.eu or www.essentrics.com in respect of ESSENTRICS Classes.
• 4.2 Printed materials, websites and e-mail
  (i) Licensee may use the Trademark on e-mail, printed promotional material and websites whose sole purpose is to promote Licensee’s ESSENTRICS Classes. All use of the Trademark on such materials shall include a registered trademark notice ® where appropriate and a legend in the following form: ESSENTRICS® is a trademark of ESSENTRICS NL and is used under license. When using the Trademark in publicly accessible means of communication, Licensee shall adhere to all applicable laws, including the laws governing e-mail and online advertising and marketing and privacy and data protection laws. When using the Trademark on a website, each website page on which any of the Trademark appears shall include a registered trademark notice ® and the legend indicated above. The website shall furthermore include a prominent hyperlink on the homepage to ESSENTRICS’ official Dutch website, www.essentrics.nl or ESSENTRICS official International website www.essentrics.com.
  (ii) Licensee shall not use the Trademark in combination with other trademarks, trade names or other terms unless approved in writing by Licensor.
  (iii) Licensee shall not include any unsavoury content on its website, blog or social network account (such as Facebook or Twitter) that Licensor determines in its sole and absolute discretion to be dilutive, disparaging, or otherwise detrimental to the Trademark. Licensee shall remove any such content from its website upon request by Licensor.
• 4.3 Promotional videos
  Licensee may create promotional videos of up to 2:30 minutes each, which feature Licensee demonstrating an ESSENTRICS Class solely for the purposes of promoting Licensee’s ESSENTRICS Classes and under the following terms and conditions:
  (i) If Licensee uses a title for such video, then the title should be “ESSENTRICS class with..” Licensee’s name must be in the title.
  (iii) Internet videos created pursuant to this paragraph may be streamed only on Licensee’s own website that complies with the terms of the License or through other recognised Internet video websites such as Youtube® or Facebook®. Licensee may not stream, publish or distribute any videos that feature an ESSENTRICS class or that otherwise mention ESSENTRICS through any other medium.
  (iv) Licensee shall not include any content on Internet videos that Licensor in all reasonableness considers to be dilutive, disparaging, or otherwise detrimental to Licensor’s Intellectual Property. Licensee shall remove any such content from its website upon request by Licensee.
• 4.4 Radio and television
  Licensee shall only be permitted to use the Trademark in radio or television advertising with Licensor’s prior written consent, which consent may be withheld in Licensor’s sole and absolute discretion.
• 4.5 Bona fide news coverage
  Licensee may promote Licensee’s ESSENTRICS Classes through live news coverage or print news media such as newspapers and magazines, by any mainstream news organisation or print publisher. However, without Licensor’s prior written consent such live news coverage shall not include more than five (5) minutes of ESSENTRICS routines. Licensee shall notify Licensor of any such promotion and, if possible, provide Licensor with a copy of the article or the footage for such news coverage, as appropriate.
• 4.6 Sales of original ESSENTRICS ® Products
  Licensees who purchase original ESSENTRICS® Products directly from www.essentrics.nl, www.essentrics-store.eu or www.essentrics.com for resale with Licensor’s prior written consent may use the Trademark in accordance with the License to identify and promote retail sale of such products.

5. Restricted use of the Intellectual Property and the Trademark; Prohibited Activities.
   Without limiting the restrictions that may otherwise apply to Licensee’s use of the Intellectual Property, Licensee shall not use the Intellectual Property or engage in any of the following activities:

• Licensee shall not alter the form of appearance of the Trademark or Related Services and Products, including, but not limited to, the proportion, colour and font;
• Licensee shall not manufacture, create or distribute any merchandise or other promotional items bearing the Trademark or anything similar related to the Trademark;
• Licensee may not use the Trademark as part of its domain name.
• Licensee shall not use the Trademark for purposes of identifying a business or company of Licensee.
• Licensee shall not copy, duplicate, sell or distribute any materials Licensee obtained by virtue of becoming a Licensee, such as, but not limited to, the ESSENTRICS Training Series.
• Licensee may not use the Trademark as the title of a Newsletter or other printed (online) publication.
• Except as expressly set forth in these Terms and Conditions, Licensee may not film, record, create or stream any recordings including DVD’s of an ESSENTRICS class, or which depict or otherwise imitate ESSENTRICS choreography.

6. Licensee acknowledges that the Intellectual Property is the exclusive property of the Licensor, and will not, as long as the License is in place, assert any claim of ownership to the Intellectual Property by virtue of the Licensee’s use of the Intellectual Property, or otherwise. Licensee agrees it will take no action inconsistent with such ownership of the Licensor and that all use of the Intellectual Property by Licensee shall inure to the benefit of and be on behalf of the Licensor.
7. Licensee agrees to promptly notify Licensor if Licensee becomes aware of any unauthorised use of the Intellectual Property by a third party. Licensor shall have the sole right and discretion to bring infringement proceedings involving the Intellectual Property. Licensor shall bear the entire cost and expense of such action and retain the proceeds of any settlement or recovery in any such action. Licensee agrees to cooperate with Licensor in enforcing and protecting the Intellectual Property upon request of Licensor.

Quality standards and quality control

1. Licensee agrees that the nature and quality of the ESSENTRICS Classes given by Licensee under the Trademark shall conform to the standards set by Licensor as explained in the ESSENTRICS Training Series and as otherwise designated by Licensor from time to time. Licensee shall refrain from giving ESSENTRICS Classes on a higher level than the level for which Licensee has been certified by ESSENTRICS EU. Licensee shall refrain from any deviation from the pre-choreographed routines, as described in the ESSENTRICS Training Series, including, but not limited to, using different routines or exercises. The limitation in the previous sentence does not apply to a Licensee who holds a Level 4 certification,

Licensee agrees to cooperate with Licensor in facilitating Licensor’s control over the nature and quality of the ESSENTRICS Classes offered by Licensee, to permit observations of Licensee’s ESSENTRICS Classes, and to provide Licensor with evidence confirming compliance with the License upon request. Licensee shall comply with all applicable laws and regulations and obtain all appropriate approvals, licenses and permits pertaining to the ESSENTRICS Classes and the promotion therefore.

Confidential Information

Parties or their associated companies shall not during the License or at any time after termination of the License, directly or indirectly (a) use for their own purposes or those of any other person, company, business entity or other organisation whatsoever, or (b) disclose to any person, company, business entity or other organisation whatsoever, any information relating or belonging to the other Party or its associated companies which by nature should be regarded as confidential. This type of confidential information includes but is not limited to any such information relating to techniques underlying the ESSENTRICS Classes, customer lists or requirements, price lists or pricing structures, marketing and sales information, business plans or dealings, financial information, and generally any document marked “Confidential” (or with a similar expression in any language whatsoever), or any information which a Party have been told is confidential or which a Party might reasonably expect the other Party would regard as confidential, or any information which has been given to the other Party.

Term and termination

This Agreement shall continue for an indefinite period of time from the date of signing of the License, unless terminated earlier pursuant to this article.

• Each of the Parties shall have the right to terminate the License upon written notice to the other party with due observance of a three months’ notice.
• Licensor shall have the right to terminate the License with immediate effect upon written notice to Licensee:

1. in the event of a breach of any of the provisions of the License by Licensee and such breach has not been remedied within 7 days after being requested by Licensor to do so;
2. in the event that the Licensee no longer fulfils the certification requirements in order to function as an ESSENTRICS® teacher for his certification level;
3. Licensee is unable to pay its debts due, suspends or threatens to suspend the making of payments (surséance van betaling), becomes subject to the Dutch Debt Rescheduling (Natural Persons) (Wet Schuldsanering Natuurlijke Personen), takes steps to cease or ceases to carry out its business as a going concern, enters into winding-up, liquidation, or bankruptcy proceedings, either voluntary or involuntary, or enters into an arrangement for the benefit of creditors;
4. in the event a receiver or administrator (bewindvoerder) is appointed over all or part of the assets of the Licensee;
5. in the event that there is a change in the control, ownership or management of the Licensee which, in the sole opinion of the Licensor, has materially affected the ability of the Licensee to carry out its obligations under the License in a manner satisfactory to the Licensor.

Consequences of termination

Upon termination of the License Licensee shall immediately discontinue all use of the Intellectual Property as well as any and all confusingly similar signs and marks. In the event Licensee created any unauthorised printed materials containing any sign or contents subject to any of the Licensor’s Intellectual Property, Licensee shall immediately destroy all such printed materials or hand such materials over to Licensor. The Licensee shall refrain from engaging in any act, which would lead a person to think that the Licensee is still associated or connected with the Licensor.

The exercise of the right of termination by Licensor shall be without prejudice to the right to collect all sums due and owing to it, to seek monetary relief for the breach of any of the provisions of the License, or to enforce any other right which arose prior to termination.

The Licensee shall return to the Licensor all confidential information, in whatever form, and all copies thereof, and make no further use thereof upon the first request of the Licensor.

Limitation of liability and indemnity

• The Licensor or any of its affiliates shall not be liable to Licensee or to any other person for any consequential, special, indirect, incidental or speculative losses or damages of any nature which arises out of or in connection with the License including without limitation personal injuries (e.g., muscle strains, tears, pulls, broken bones, etc.), illness, death, or loss of property.
• Licensor makes no representations or warranties, express or implied, to Licensee with respect to the ESSENTRICS Classes or any implied warranties arising out of a course of performance, dealing or trade usage. In addition Licensor makes no representation that the operation of the website www.essentrics.nl and/or www.essentrics-store.eu will be uninterrupted or error-free. As such, Licensor shall not be liable for the consequence of any interruptions or errors, although Licensor agrees to use its reasonable effects to correct errors or interruptions promptly.
• Licensee hereby undertakes to the Licensor and any of its affiliates to indemnify the Licensor against, and hold him harmless from any and all losses, liabilities, damages, costs, charges, expenses (including legal fees and costs) that Licensor may suffer as a result of any claims, demands, actions or other proceedings made or instituted by a third party against any of them that arises out of any breach, or alleged breach, by Licensee of any provision of the License or from any other act on the part of the Licensee.
• Licensee acknowledges and agrees that as a result of the nature of ESSENTRICS Classes, ESSENTRICS Classes may not be safe and appropriate for everyone. Licensee further acknowledges and agrees that any information Licensor may provide to Licensee through www.essentrics.nl, www.essentrics-store.eu or otherwise regarding health and fitness is intended solely as general educational aid and is not a substitute for medical or healthcare advice. Licensee further acknowledges that Licensee has been encouraged to seek the advice of a physician or other qualified healthcare professional if Licensee has experienced any medical condition that may affect Licensee’s ability to provide the Classes. Licensor and its affiliates assume no responsibility for any consequence relating directly or indirectly to any action or inaction Licensee may take based on the information, services, or other material provided on www.essentrics.nl and/or www.essentrics-store.eu. While Licensor and its affiliates strive to provide complete, up-to-date and accurate information on its websites, Licensor and its affiliates do not guarantee and shall not be responsible for any damage or loss related to the accuracy, completeness, or timeliness of such information.

Miscellaneous provisions

• The legal relationship of parties shall be that of Licensor and Licensee. Nothing in the License shall be construed as creating a partnership, joint venture, agency, franchise, sales representative or employment agreement between the parties. Licensee shall have not authority to make or accept any offers or representations on behalf of Licensor or to otherwise bind Licensor in any manner. Licensee shall not make any statements in any media whatsoever that reasonably may contradict the relationship set forth herein and that reasonably may confuse or mislead any person regarding the nature of the relationship between parties.
• Licensor’s failure or agreement not to enforce the strict performance of any provisions of the License in a given instance shall not constitute a waiver of Licensor’s right to subsequently enforce such provision or any other provision of the Agreement;

Governing Law and Jurisdiction

• The License Agreement and all disputes or claims arising out of or in connection with it, shall be governed by and construed under the laws of The Netherlands.
• The courts of Amsterdam, the Netherlands, shall have exclusive jurisdiction over any dispute between the Parties arising out of or under the License.

“ESSENTRICS” LICENSE AGREEMENT between:

(1) LICENSOR (Daniëlle Christiane de Wildt), trading as ESSENTRICS NL, residing at Bos- en Lommerplantsoen 1U, 1055 AA Amsterdam, The Netherlands, and registered with Dutch Trade Register of the Chamber of Commerce in Amsterdam, The Netherlands, under number 34338159, hereinafter: the “Licensor” or “ESSENTRICS EU”; and

(2) TEACHER, hereinafter: the “Licensee”,

Whereas:

(A) Licensor is the rightful owner of all Intellectual Property and the Trademark in The European Union related to ‘ESSENTRICS’ (as defined hereinafter);

(B) Licensee wishes to become a teacher for ‘ESSENTRICS Classes’ (as described hereinafter) and wishes to use the Trademark in The European Union in relation to these classes;

(C) Subject to and conditional on certification of Licensee by Licensor, Licensor is willing to grant to Licensee and Licensee is willing to accept a License to use the Trademark to promote as teacher the ESSENTRICS Classes in The European Union, in accordance with the terms and conditions of this Agreement, as hereinafter set forth;

It is agreed as follows:

Definitions

In this Agreement, the following definitions apply:

“Agreement” means this Agreement;

“ESSENTRICS Classes” means classes conform the workouts, instruction lessons and classes, all as set out and/or shown in videos, photos, clips (visual and audible) by ESSENTRICS NL or authorised by ESSENTRICS NL or purchased via or shown on www.essentrics.nl, www.essentrics-store.eu and/or www.essentrics.com;

“ESSENTRICS Training Series” means training of teachers of ESSENTRICS Classes conform the description on www.essentrics.nl, www.essentrics-store.eu, www.essentrics.com, the ESSENTRICS Workbooks, the ESSENTRICS DVD’s and other ESSENTRICS materials, and as otherwise designated by Licensor from time to time;

“Intellectual Property” means all statutory and other proprietary rights of Licensor in respect of copyright and neighbouring rights (including future copyright), all rights in the Trademark as hereafter defined, as well as other registered and unregistered trade marks, registered and unregistered designs, circuit layouts, trade secrets, and other rights arising out of intellectual activity in the field of physical education;

“License” means the License to use the Trademark subject to the terms and conditions of this Agreement;

“Related Services and Products” means any services and products that relate to or are used in connection with the ESSENTRICS Classes;

“Territory” means The European Union.

“Trademark” means the trademark “ESSENTRICS” (word mark), registered as Community trademark at the Office for Harmonisation in the Internal Market on 14 January 2011 under no. 8544637 for amongst others the arranging and conducting of training and workshops in the field of sports classes and physical education, and any modifications or additions thereto, including any additions or modifications to the classification for goods and services. Trademark shall also mean all other trademarks, trade names, styles, and logo’s, which are under the control or proprietorship of Licensor, and which are used in connection with the ESSENTRICS Classes and Related Services and Products under this Agreement at the moment of the entering into of this Agreement, and any modifications of additions thereto, including any additions or modifications to the classifications for goods and services.

License

• Subject to certification of the Licensee by the Licensor as described under article 2.2, the Licensor hereby grants to the Licensee, and the Licensee hereby accepts, a non-exclusive, non-transferable license to use the Intellectual Property in connection with ESSENTRICS Classes and sale of Related Services and Products in the Territory during the term of the License, all subject to the terms and conditions set forth herein and in the ESSENTRICS General License Terms. For the purposes of the License, Licensor may extend the License to other trademarks and other Intellectual Property that Licensor may designate expressly from time to time.
• The grant of the License pursuant to article 2 of this Agreement and all other rights derived from this Agreement by the Licensee are subject to and conditional on certification of the Licensee by the Licensor. The Licensor will certify the Licensee once the Licensee has successfully completed the requirements to become an ESSENTRICS teacher.

Royalties

No royalties shall be due at the time of the entering into of this Agreement. In consideration of the rights granted under this Agreement, Licensor expressly reserves the right to require a reasonable royalty from the Licensee at a later stage. If Licensee does not accept the royalty schedule or the payment conditions, Licensor shall have the right to terminate the Agreement.

Term and termination

In addition to the termination provisions in the General License Terms Licensor shall have the right to terminate this Agreement with due observance of a three month notice period in case the Parties cannot reach agreement on the payment of a royalty as referred to in Clause 3, or on any other material amendments of the Agreement as desired by Licensor.

Notices

Any notice, request, claim, demand or other communication in connection with this Agreement shall be sufficiently given to the postal address or e-mail address set forth below (except with respect to a termination notice which notice shall be given pursuant to 5.2:

In case of a termination notice as set out in Article 4 of this Agreement such notice shall be given by registered mail to the postal address of the Licensee.

General Terms and Conditions; collision with other terms

• This License Agreement is subject to Licensor’s General Terms and Conditions applicable to ESSENTRICS Licences (“the General License Terms”), which Licensee confirms to have received and reviewed prior to the signing of this Agreement.
• In case of conflict this Agreement shall supersede the General License Terms and any other previously or simultaneously created documents, discussions or promises.

Governing Law and Jurisdiction

• This Agreement and all disputes or claims arising out of or in connection with it, shall be governed by and construed under the laws of The Netherlands.
• The courts of Amsterdam, The Netherlands, shall have exclusive jurisdiction over any dispute between the Parties arising out of or under this Agreement.

In witness whereof this Agreement has been entered into on the date Licensee has declared to have read and agreed to the terms stated in this Agreement.