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."
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
(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
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.
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.
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
(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 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
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.
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:
rent, lease, or lend or
directly or indirectly transfer the Licensed Software to any third party;
reverse engineer, decompile,
or disassemble the Licensed Software;
create derivative works based
on the Licensed Software;
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
copy, make available or
distribute the Licensed Software to any third party.
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
(b) Termination by either Party for
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
(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
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.
(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
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;
breaches of TEAMBUILDR's confidentiality obligations;
gross negligence or willful misconduct; or
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:
breaches of Training Facilitator's confidentiality
any personal injury (including death) or damage to property
resulting from Training Facilitator acts or omissions;
Facilitator's gross negligence or willful misconduct; or
Facilitator's breach of any material representation or warranty in this
(c) Indemnity Procedure.
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.
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.
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
16. No Third Party Beneficiaries.
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.
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.
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
If to TEAMBUILDR: TEAMBUILDR
19. Force Majeure.
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.
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.
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.
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.
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.
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.
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.
agrees to comply with all applicable laws, regulations, and ordinances relating
to their performance hereunder.
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.
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.
WHEREOF, each of
the Parties, by its duly authorized representative, has entered into this Agreement
as of the Effective Date.