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TEAMBUILDR, LLC

Confidential Information

TEAMBUILDR TRAINING FACILITATOR AGREEMENT

This TEAMBUILDR AGREEMENT (collectively with the Exhibits attached hereto, this "Agreement") is made and entered into this ___ day of ______________ (the "Effective Date"), by and between TEAMBUILDR LLC., a Maryland limited liability company ("TEAMBUILDR") and __________ ("TRAINING FACILITATOR") having its principal place of business at ___________ ___________________________________________________________________.  TEAMBUILDR and TRAINING FACILITATOR are collectively referred to as the "Parties" and individually as a "Party."

RECITALS

WHEREAS, TEAMBUILDR provides a portal for coaches, teams, and organizations to collaborate with players, students and clients on athletic training and fitness programs.

WHEREAS, the TEAMBUILDR Services are designed to provide a forum to assist players, students, coaches, trainers and others in developing and maintaining a system to design, track, report and maintain a consistent training program for trainees ("Trainees").

WHEREAS, Training Facilitator has players or clients who have been provided with a pre-designed physical training program that players and clients complete and report results:

WHEREAS, TEAMBUILDR desires to provide, and Training Facilitator desires to receive for its' and their Trainees use, the TEAMBUILDR portal;

WHEREAS, Training Facilitator desires to endorse the TEAMBUILDR Services and enroll  its' Trainees that desire to receive the TEAMBUILDR services; and

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:

1.     DESCRIPTION OF TEAMBUILDR SERVICES.

(a)   Services.  Subject to the terms and conditions of this Agreement, during the Term (as defined in Section 10 below) TEAMBUILDR will provide Training Facilitator with access to an online portal to assist players, students, coaches, trainers and others ("Trainees") in developing and maintaining a system to design, track, report and maintain a consistent training program.

(b)  Fees for Training Facilitator.  The fees and expenses, if any, to be charged to Training Facilitator  for use of TEAMBUILDR online portal shall be as set forth on Exhibit A attached hereto. Each Trainee shall be required to accept the terms and conditions of the Online User Agreement ("User Agreement").  In the event that Training Facilitator's Trainees desire additional services from TEAMBUILDR, then those services and costs, if any, shall be directly between TEAMBUILDR and Trainee.

2.     Trainee Participation.

Training Facilitator. Training Facilitator will use commercially reasonable efforts to: (i) encourage Trainees to utilize the TEAMBUILDR services; (ii) provide non-dedicated resources to market and support such TEAMBUILDR services; and (iii) keep TEAMBUILDR informed as to issues encountered by Trainees utilizing such TEAMBUILDR Services.

3.     Marks.

Either Party's use, display or reference to the other Party's proprietary indicia, trademarks, service marks, trade names, logos, symbols and/or brand names (collectively "Marks") will be subject to the advance written approval of that Party, which approval will not be unreasonably withheld.  Neither Party may remove, destroy or alter the other Party's Marks.  Each Party agrees that it will not challenge or assist others to challenge the rights of the other Party or its suppliers or licensors in the Marks or the registration of the Marks, or attempt to register any trademarks, service marks, trade names, logos, symbols, brand names or other proprietary indicia confusingly similar to the Marks.  Neither Party grants any rights in the Marks or in any other trademark, trade name, service mark, business name or goodwill of the other except as expressly permitted hereunder or by separate written agreement of the Parties.

4.     RELATIONSHIP Manager.

Each Party will designate a relationship manager ("Relationship Manager") that will supervise the Party's activities hereunder.  A Party may change its Relationship Manager upon notice, to include email, to the other Party's Relationship Manager.  The TEAMBUILDR Relationship Manager and the Training Facilitator Relationship Manager will each serve as the principal point of contact for the other Party for the resolution of any issues or problems that may arise hereunder. 

5.     REPRESENTATIONS AND WARRANTIES OF TEAMBUILDR.

TEAMBUILDR represents and warrants to Training Facilitator that TEAMBUILDR:

(a)   is a limited liability company duly authorized and in good standing in the State of Maryland;

(b)  possesses the necessary rights, title and licenses in and to the Licensed Software (as defined in Section ­­­9 below) necessary to perform its obligations hereunder;

(c)   has the right to enter into this Agreement and to perform its obligations hereunder;

(d)  has obtained all consents, approvals and other authorizations necessary for the performance of its obligations hereunder;

(e)   will perform the TEAMBUILDR Services and related support using reasonable care and skill;

(f)   will keep in place  measures as reasonably necessary to monitor and protect against unauthorized access to TEAMBUILDR systems and Trainees information;

(g)   will assist Training Facilitator with information deemed necessary for NCAA rules and regulations  related to the services.

6.     REPRESENTATIONS AND WARRANTIES OF Training Facilitator.

Training Facilitator represents and warrants to TEAMBUILDR that Training Facilitator;

(a)   possesses the necessary rights, title and licenses necessary to perform its obligations hereunder;

(b)  has the right to enter into this Agreement and to perform its obligations hereunder;

(c)   has obtained all consents, approvals and other authorizations necessary for the performance of its obligations hereunder;

(d)  will use the most current marketing materials as provided by TEAMBUILDR from time to time, in Partner's marketing activities relating to the TEAMBUILDR Services and

(e)   has obtained the requisite consent and authorization, as required under applicable law, from its Trainee's for TEAMBUILDR to send communications and emails to such Trainees.

Warranty Disclaimer.  Except as specifically provided in Section 5 and Section 6, both Parties expressly disclaim all warranties of any kind, express or implied, to the fullest extent permitted by law, including but not limited to the implied warranties of merchantability, fitness for a particular purpose and non-infringement.  Neither Party will make any representations or warranties on the other party's behalf without the other party's express written consent.

7.     Payment Terms; Taxes.

All prices are in United States dollars and do not include sales, use, value-added or import taxes, customs duties or similar taxes that may be assessed by any jurisdiction.  Amounts due hereunder are payable thirty (30) days after receipt of invoice, unless otherwise provided herein.  A Party may dispute in good faith any amounts invoiced under this Agreement.  Each Party agrees to pay a late charge of 1% per month or the maximum lawful rate, whichever is less, for all amounts not paid within thirty (30) days of receipt of invoice.  All taxes and duties which are imposed by or under the authority of any government or any political subdivision thereof on the amounts charged under this Agreement will be borne by Training Facilitator and will not be considered a part of, a deduction from or an offset against such amounts charged by TEAMBUILDR.

8.     User Agreement Relationship.

The User  Agreements entered into between TEAMBUILDR and each Trainee  during the Term are the sole and exclusive property of TEAMBUILDR, and Partner has no right, title, license or interest in such User Agreement now, or in the future, or after the termination or expiration of this Agreement.  TEAMBUILDR is solely responsible for providing the TEAMBUILDR Services to any User under a User Agreement.  Each User Agreement will become effective upon acceptance by TEAMBUILDR, in TEAMBUILDR's sole discretion. Training Facilitator will have no authority to bind TEAMBUILDR contractually with respect to a User Agreement or otherwise.  TEAMBUILDR will have the right at any time, and from time to time, to terminate an existing User Agreement with any Trainee pursuant to the terms of such User Agreement.  No User Agreement will be valid or binding until accepted by TEAMBUILDR. Training Facilitator will use reasonable efforts to notify TEAMBUILDR when any Trainee is no longer a Trainee of Training Facilitator.

9.     LICENSED SOFTWARE; RESTRICTIONS: Proprietrary Rights and Intellectual Property.

(a)   Licensed Software; Restrictions.  During the Term of this Agreement, TEAMBUILDR agrees to host the software used in connection with the TEAMBUILDR Services (the "Licensed Software") on a computer or computers operated and maintained by TEAMBUILDR or its agents.  TEAMBUILDR grants to Training Facilitator a non-exclusive license to use, access, display, run, or otherwise interact with the functionality of the Licensed Software, together with any updates, upgrades or additions thereto, as reasonably required for Partner to use the TEAMBUILDR Services as set forth in this Agreement.  TEAMBUILDR will provide Training Facilitator access to any updates, upgrades or other additions in its sole discretion.  TEAMBUILDR will make the Licensed Software available to Training Facilitator through the Internet.  Except as otherwise set forth in this Agreement, Partner will not:

(i)             rent, lease, or lend or directly or indirectly transfer the Licensed Software to any third party;

(ii)           reverse engineer, decompile, or disassemble the Licensed Software;

(iii)          create derivative works based on the Licensed Software;

(iv)          remove, modify or obscure any copyright, trademark, patent or mask work notices that appear on the Licensed Software or that appear during use of the Licensed Software; or

(v)           copy, make available or distribute the Licensed Software to any third party.

(b)  Proprietary Rights and Intellectual Property. Training Facilitator acknowledges and agrees that, as between TEAMBUILDR and Training Facilitator, all right, title and interest in and to the TEAMBUILDR Services to include but not limited to its' online portal  and its' contents,  and any part thereof, including, without limitation, all patents, copyrights, trade secrets and all other intellectual property rights therein and thereto, and all copies thereof, in whatever form, including any written documentation and any upgrades shall at all times be and remain solely with TEAMBUILDR.  Training Facilitator shall not be an owner or licensee of the TEAMBUILDR portal and related software.

10.  TERM AND TERMINATION.

(a)   Term.  This Agreement will become effective as of the Effective Date and remain in full force and effect for one (1) year (the "Initial Term").  Upon the expiration of the Initial Term, this Agreement will automatically renew for one or more additional terms of one (1) year (each, a "Renewal Term") unless and until either Party notifies the other Party in writing of its intent to terminate at least ninety (90) days prior to the expiration of the then-current Term.  The Initial Term, together with any and all Renewal Terms, is sometimes collectively referred to as the "Term."

(b)  Termination by either Party for Cause.  Either Party may terminate this Agreement at any time upon written notice if the other Party has failed to cure a material breach of this Agreement within thirty (30) days following written notice of that breach given by the non-breaching Party.  Notwithstanding anything in this Agreement to the contrary, either Party may terminate this Agreement at any time upon written notice to the other Party if the other Party engages in fraud, intentional misrepresentation or willful misconduct in connection with its performance of this Agreement.

(c)   Termination for Convenience.  At any time after one year from the Effective Date, either Party may terminate this Agreement in whole or in part for convenience upon sixty days (60) days prior written notice to the other party without any additional obligation or liability.

(d)  Duties upon Termination.  The provisions of Sections 3, 5, 6, 7, 8, 9, 12, 13, 14, 15,  27, and this Section 10 will survive termination of this Agreement.  All other rights and obligations of the Parties will cease upon termination of this Agreement.  Upon termination of this Agreement, Training Facilitator will immediately cease access to the online portal, and will return or destroy at TEAMBUILDR's election, all information and materials relating to TEAMBUILDR or containing a TEAMBUILDR Mark.  The term of any license or rights granted hereunder will expire upon expiration or termination of this Agreement.

11.  No Agency.

The relationship of TEAMBUILDR and Training Facilitator established by this Agreement is that of independent contractors, and nothing contained in this Agreement will be construed to: (i) give either Party the power to direct and control the day-to-day activities of the other; (ii) deem the Parties to be acting as partners, joint venturers, co-owners or otherwise as participants in a joint undertaking; or (iii) except as expressly provided herein permit either Party or any of either Party's officers, directors, employees, agents or representatives to create or assume any obligation on behalf of the other Party for any purpose whatsoever.

12.  Confidentiality Obligations.

TEAMBUILDR and PARTNER hereby confirm that the provisions of a mutual non-disclosure agreement between TEAMBUILDR and PARTNER, if executed, shall be in full force and effect and apply to all information furnished by either party in connection the TEAMBUILDR Services.

 

13.  Indemnification.

(a)   TEAMBUILDR Indemnity. TEAMBUILDR will indemnify, defend and hold Partner harmless from and against any and all losses, liabilities, damages, and claims, and all related costs, expenses and other charges (including all reasonable attorneys' fees and reasonable costs of investigation, litigation and settlement) ("Losses") incurred by Training Facilitator and its affiliates and their respective officers, directors, employees, agents, successors, assigns and sub licensees arising out of or connected with any third party claim relating to:

(i)             any allegation that the Licensed Software violates or infringes upon any valid patent, copyright, trade secret or other intellectual property under the laws of the United States;

(ii)           breaches of TEAMBUILDR's confidentiality obligations;

(iii)          TEAMBUILDR's gross negligence or willful misconduct; or

(iv)          TEAMBUILDR's breach of any material representation or warranty in this Agreement.

(b)  Training Facilitator Indemnity.  Training Facilitator will indemnify, defend and hold TEAMBUILDR harmless from and against any and all Losses incurred by TEAMBUILDR and its officers, directors, employees, agents, successors, and assigns arising out of or connected with any claim relating to:

(i)             breaches of Training Facilitator's confidentiality obligations;

(ii)           any personal injury (including death) or damage to property resulting from Training Facilitator  acts or omissions;

(iii)          Training Facilitator's gross negligence or willful misconduct; or

(iv)          Training Facilitator's breach of any material representation or warranty in this Agreement.

(c)   Indemnity Procedure.

(i)             Procedure.  Any Party entitled to the benefits of indemnification under this Article 13 (an "Indemnified Party") and seeking indemnification for any Losses or potential Losses from a claim asserted by a third party against the Indemnified Party (a "Third Party Claim") will give written notice to the Party obligated to provide indemnification hereunder (an "Indemnifying Party") specifying in detail the source of the Loss or potential Loss under Section 13(a) or Section 13(b), as the case may be.  Written notice to the Indemnifying Party of the existence of a Third Party Claim must be given by the Indemnified Party promptly after the Indemnified Party receives notice of the potential claim, except that the Indemnified Party will be foreclosed from seeking indemnification pursuant to this Article 13 by any failure to provide such prompt notice of the existence of a Third Party Claim to the Indemnifying Party only to the extent that the Indemnifying Party actually incurs an incremental Loss, out-of-pocket expense or otherwise has been materially damaged or prejudiced as a result of such delay.

(ii)           Defense.  The Indemnifying Party may elect to compromise or defend, at the Indemnifying Party's own expense, any Third Party Claim, except as otherwise provided in this paragraph (ii).  The assumption of the defense, compromise and settlement of any Third Party Claim by the Indemnifying Party will be an acknowledgment of the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to such claim under this Article 13.  If the Indemnifying Party elects to compromise or defend a Third Party Claim, it will, within thirty (30) days after receiving notice of the Third Party Claim (ten (10) days if the Indemnifying Party states in such notice that prompt action is required), notify the Indemnified Party of its intent to do so, and the Indemnified Party will cooperate, at the expense of the Indemnifying Party, in the compromise of, or defense against, such Third Party Claim.  If the Indemnifying Party elects not to compromise or defend against the Third Party Claim, or fails to notify the Indemnified Party of its election to do so as provided above, or otherwise abandons the defense of such Third Party Claim, the Indemnified Party may compromise or defend such Third Party Claim at the costs and expenses of the Indemnified Party.  Notwithstanding anything to the contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party reasonably concludes that there are specific defenses available to the Indemnified Party which are different from or in addition to those available to the Indemnifying Party, then the Indemnified Party will have the right to assume and direct the defense of such Third Party Claim at the Indemnified Party's expense.  However, neither the Indemnifying Party nor the Indemnified Party may settle or compromise any claim over the objection of the other, except that (i) consent to settlement or compromise will not be unreasonably withheld by the Indemnified Party and (ii) if the sole settlement relief payable to a Third Party in respect of such Third Party Claim is monetary damages that are paid in full by the Indemnifying Party and such settlement includes an unconditional term releasing the Indemnified Party and its Affiliates and customers from all liability in respect of such Third Party Claim, the Indemnifying Party may settle such claim without the consent of the Indemnified Party.

(d)  Correction of Infringement.  In addition to TEAMBUILDR's indemnification obligations under this Article 13, if a claim for infringement under Section 13(a) (i) occurs, or if TEAMBUILDR reasonably determines that such a claim is likely to occur, TEAMBUILDR will (i) procure for Partner the right to continue using such infringing item; or (ii) replace or modify the infringing item so that it becomes non-infringing.  If neither option is reasonably available to TEAMBUILDR, TEAMBUILDR may terminate this Agreement.

(e)   Exceptions to TEAMBUILDR's Indemnity Obligation.  Despite the provisions of this Article 13, TEAMBUILDR has no obligation with respect to any claim of infringement that is based upon or arises out of any non-TEAMBUILDR misuse of the TEAMBUILDR Services or the intellectual property related thereto.

The provisions of Section 13 state the sole and exclusive obligations and limitation of liability of the Parties for any patent, copyright, trademark, trade secret or other intellectual property rights infringement claims by third Parties and are in lieu of any warranties in respect of non-infringement, all of which are disclaimed.

14.  Limitation of Liability.

(a)   Limitation of Liability.  Except for liability arising out of a Party's indemnification obligations, breaches of confidentiality, or willful misconduct, each Party's liability for all claims arising out of this Agreement, whether in contract, tort or otherwise, will be limited to $1,000.00.

(b)  Limitation of Damages.  In no event will either Party be liable to the other or any third party for any loss of data, loss of business profits, business interruption, or other special, incidental, consequential or indirect damages arising from or in relation to this Agreement, the use of the TEAMBUILDR Services, however caused and regardless of theory of liability.  This limitation will apply even if such Party has been advised or is aware of the possibility of such damages.

15.  Non-Waiver.

No waiver by either Party of a breach of any provisions of this Agreement will constitute a waiver of any prior or subsequent breach of the same or any other provision of this Agreement.

16.  No Third Party Beneficiaries.

This Agreement is solely for the benefit of the Parties hereto and their successors and assigns and no other person or entity will have any right, interest, remedy or claim under or based upon this Agreement or any of representations, warranties, covenants or agreements contained herein.

17.  Applicable Law.

This Agreement will be governed by, construed and enforced in accordance with the laws of the State of Maryland, without giving effect to its conflict of laws rules or principles.

18.  Notices.

Any notice required or permitted hereunder will be in writing and will be delivered as follows (with notice deemed given as indicated): (i) by personal delivery when delivered personally; (ii) by established overnight courier upon written verification of receipt; (iii) by facsimile transmission when receipt is confirmed orally; or (iv) by certified or registered mail, return receipt requested, upon verification of receipt.  All notices must be sent to the contact person for notices listed below.  Either Party may change its contact person for notices and/or address for notice by means of notice to the other Party given in accordance with this Section.

If to TEAMBUILDR:  TEAMBUILDR

                                    Attention: Legal Department

                                    2270 Beaver Road

                                    Landover, MD 20785

                                   

19.  Force Majeure.

Neither Party shall be liable for any default or delay in the performance of its obligations hereunder (except for payments) if and to the extent such default or delay is caused, directly or indirectly, by acts of God, governmental acts, accidents, wars, terrorism, riots or civil unrest, fires, storms, earthquakes, floods or elements of nature, or any other similar cause beyond the reasonable control of such party, provided such default or delay could not have been prevented by reasonable precautions and cannot reasonably be circumvented by the non-performing Party through the use of commercially reasonable alternative sources, workaround plans or other means.

20.  AssignMENT.

Neither Party may assign, delegate nor otherwise transfer the rights or obligations associated with this Agreement, in whole or in part, without the prior written consent of the other party; provided however, no written consent shall be required to assign this Agreement to any parent or the wholly owned subsidiary of the party.   Furthermore, no written consent shall be required for either party to assign this Agreement to its successor as a result of a merger, acquisition, sale, transfer or other disposition of all or substantially all of its assets.  Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties, their respective successors and permitted assigns.  Notwithstanding, TEAMBUILDR may subcontract certain support services, provided that no such use of subcontractors shall relieve TEAMBUILDR of its obligations under this Agreement.

 

21.  Modifications AND AMENDMENTS.

Except as provided otherwise in this Agreement, no amendment or modification of this Agreement will be valid unless in writing signed by both Parties.

22.  Entire Agreement.

This Agreement constitutes the entire understanding of the Parties with respect to its subject matter, and any and all prior or contemporaneous agreements, understandings or representations are terminated and canceled in their entirety.  Neither this Agreement, nor any provision contained in this Agreement or any Exhibit hereto, will be interpreted in favor of or against either Party to this Agreement because such Party or its legal counsel drafted this Agreement, or such provision or Exhibit.  In addition, no draft of this Agreement, or Exhibit, will be used when interpreting this Agreement, any provision contained in this Agreement or any Exhibit.  The terms of this Agreement will control in the event of any inconsistency with the terms of any Exhibit hereto. 

23.  Severability.

Should any provisions of this Agreement be determined to be invalid or unenforceable under any law, rule or regulation, that determination will not affect the validity or enforceability of any other provision of this Agreement.

24.  Counterparts.

This Agreement may be executed in any number of counterparts, each of which, when so executed and delivered, will be deemed an original, and all of which will constitute one and the same Agreement.

25.  Remedies.

Except as provided herein, the rights and remedies of each Party set forth in this Agreement are not exclusive and are in addition to any other rights and remedies available to it at law or in equity.

26.  Compliance with Laws.

Each Party agrees to comply with all applicable laws, regulations, and ordinances relating to their performance hereunder.

27.  Arbitration.

Any controversy or dispute arising out of or relating to this Agreement, or the breach thereof, which cannot otherwise be resolved as provided above will be resolved by arbitration conducted in accordance with the commercial arbitration rules of the American Arbitration Association ("AAA") and judgment upon the award rendered by the arbitral tribunal may be entered in any court having jurisdiction thereof.  The arbitration tribunal will consist of a single arbitrator mutually agreed by the Parties, or in the absence of such agreement within thirty (30) calendar days from the first referral of the dispute to the AAA, designated by the AAA.  The place of arbitration will be at a mutually agreed upon location, unless the Parties will have agreed to another location within fifteen (15) calendar days from the first referral of the dispute to the AAA.  The arbitral award will be final and binding.  The Parties waive any right to appeal the arbitral award, to the extent a right to appeal may be lawfully waived.  Each Party retains the right to seek judicial assistance: (i) to compel arbitration; (ii) to obtain interim measures of protection prior to or pending arbitration, (iii) to seek injunctive relief in the courts of any jurisdiction as may be necessary and appropriate to protect the unauthorized disclosure of its proprietary or confidential information, and (iv) to enforce any decision of the arbitrator, including the final award.

The arbitration proceedings contemplated by this Section 28 will be as confidential and private as permitted by law.  To that end, the Parties will not disclose the existence, content or results of any proceedings conducted in accordance with this Section 28, and materials submitted in connection with such proceedings will not be admissible in any other proceeding, provided, however, that this confidentiality provision will not prevent a petition to vacate or enforce an arbitral award, and will not bar disclosures required by law.

IN WITNESS WHEREOF, each of the Parties, by its duly authorized representative, has entered into this Agreement as of the Effective Date.


Exhibit A to the Training Facilitator Agreement

 

1.    As used herein, "User" is defined as Training Facilitator's Trainees as supplied by Training Facilitator as eligible to enroll in the TEAMBUILDR Service by accepting the User  Agreement on the TEAMBUILDR portal.

2.    Training Facilitator shall enroll or provide TeamBuildr with each Trainee to receive the services for a minimum of twelve (12) months.

3.    TEAMBUILDR invoices will be due next 30 days from date of invoice.  Invoices will be for the number of Users identified above.  Partner will be responsible for notifying TEAMBUILDR of any previously enrolled Trainee that should be removed from their program.  Pricing excludes applicable taxes.

4.    TEAMBUILDR shall not begin to provide the services as described in this Agreement until Training Facilitator has returned this signed Agreement along with any required Purchase Order (PO) to cover the services.

5.    Training Facilitator agrees to allow TEAMBUILDR to use its' name and logo on the TEAMBUILDR online portal, website, and marketing materials for the sole purpose of identifying Training Facilitator as a client of TEAMBUILDR.

 

Support Details:

 

1.    Training Facilitator Support provided by TEAMBUILDR includes the following:

a.     Training Facilitator Team training program setup in the TEAMBUILDR portal

b.     TeamBuildr functionality questions for online portal boarding questions

c.     General questions

 

2.    Supplemental Trainee Support provided by TEAMBUILDR include the following

a.     Portal FAQ access

b.     Portal Video and audio support

c.     Email question support

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