80/20 Endurance Learning

COACHING CERTIFICATION AND LIMITED LICENSE AGREEMENT

This Coaching Certification and Listing Agreement is made by and between 80/20 ENDURANCE, LLC, a Utah Limited Liability Company, with principal offices at 1916 N. 1150 E., Lehi, Utah (“80/20 Endurance”) and You (individually or collectively referred to as the “Coach” ).

SECTION 1. PARTIES

1.0 This Agreement is a non-exclusive license to operate as a Coach using 80/20 Endurance’s Training System, certain Proprietary Marks, and Intellectual Property, granted by 80/20 Endurance and to Coach. 

SECTION 2. GRANT OF THE COACHING RIGHTS

2.0 Initial Certification Fee. Payment is due upon accepting this Agreement. This payment and a completion of the training must occur prior to commencing any coaching activities or usage of the Proprietary Marks.

2.1 As a result of the expenditure of time, effort and money, 80/20 Endurance has acquired experience and skill in the continued development of the 80/20 Endurance Training System (the “System”) and the 80/20 Endurance brand which involve the conceptualization, design, specification, development, operation, marketing, and licensing of training materials and associated concepts for the sale of proprietary and non-proprietary coaching products. 

2.2 In connection with the System, we own or have the right to license certain intellectual property. This property includes training material, trademarks, service marks, logos, emblems, trade dress, trade names, including 80/20 Endurance, and other indicia of origin (collectively, the “Proprietary Marks”), as well as copyrights. The Proprietary Marks include trademarks on the Principal Register of the United States Patent and Trademark Office. From time to time we may supplement or modify the list of Proprietary Marks.  

2.3 As a Company, 80/20 Endurance has the right to establish “Standards” for various aspects of the System that include the physical characteristics and quality coaching programs; the products that are sold; the qualifications of Coaches; Codes of Conduct for Coaches, and all other things affecting the experience of consumers who patronize the System. 80/20 Endurance will make those Standards available to the Coach through Manuals, Training, and in other forms of communication, which we may be updated from time to time. 80/20 Endurance may from time to time vary Standards as it deems necessary or desirable for the System.

2.4 The Coach is responsible for his/her own conduct and for otherwise exercising day-to-day control over coaching decisions, including setting the prices for Coaching Activities, setting appointments, finding clients, when and where to conduct Coaching Activities, and other business decisions. The Coach nonetheless will have the responsibility to adhere to the Standards of the System as they now exist and may from time to time be modified. The Coach acknowledges that commitment the Standards of the System is important to 80/20 Endurance, to the Coach, and to other coaches in order to promote the goodwill associated with 80/20 Endurance’s System and Proprietary Marks, and that this Agreement should be interpreted to give full effect to this paragraph.

2.5  Wherefore, for the Term of this Agreement, 80/20 Endurance grants the license, and the Coach accepts the obligation, to operate Coaching Activities within 80/20 Endurance’s System, using 80/20 Endurance’s intellectual property, only in accordance with 80/20 Endurance’s Standards and the other terms of this Agreement. 80/20 Endurance retains the right to operate or license others to operate coaching services and other concepts, and to grant other licenses relating to the Proprietary Marks, at such locations and on such terms as we choose. We may use or license others to use the Proprietary Marks in ways that compete with your location and that draw customers from the same area as your Coaching Activities. 

2.6   Renewal of License. This Agreement shall not automatically renew upon the expiration of the Term. The Coach has an option to renew the License upon the expiration of the Term for additional terms of one year (the “Renewal Terms”) if, and only if, each and every one of the following conditions have been satisfied:

(i) The Coach has maintained the Standards and otherwise sustained compliance with the terms and conditions of this Agreement over the Term; there must not have any uncured defaults under this Agreement at the time you provide notice; all debts and obligations to 80/20 Endurance under this Agreement or otherwise must be current through the expiration of the Term; and 80/20 Endurance has not issued more than two Notices to Cure or other default notices over the course of the Term;

(ii) The Coach must pay the then-current renewal fee when requesting renewal;

(iii) The Coach must show evidence of being up to date with all Standards and Trainings at their own cost. 

SECTION 3. TRAINING

3.0 Before the Coach commences any Coaching Activities, and from time to time thereafter, 80/20 Endurance will make various mandatory and optional training programs. The Coach agrees to timely and successfully complete all training that 80/20 Endurance designates as mandatory.

3.1 The Coach specifically agrees to abide by 80/20 Endurance’s Code of Conduct. The Coach agrees that any violation of the Code of Conduct may result in immediate termination of this Agreement for cause. As part of the Code of Conduct, Coach will be required to complete the training and certification provided by SafeSport at Coach’s own cost. Failure to complete or the SafeSport certification or violations of the Code of Conduct may be grounds for immediate termination of this Agreement. 

SECTION 4. OPERATIONS

4.0 Operating in Accordance with Our Standards. The Coach agrees to operate all Coaching Activities in accordance with this Agreement and all of 80/20 Endurance’s Standards and Code of Conduct. 

4.1 Obey All Laws. Coach agrees to comply with all civil and criminal laws, ordinances, rules, regulations and orders of public authorities pertaining to the Coaching activities.

4.2 Determination of Prices. Coach is free to determine the prices charged for the Coaching Activities. 

4.3 Complaints. Coach must submit to 80/20 Endurance copies of any customer complaints relating to the Coaching Activities. Coach must also submit any communications from public authorities about actual or potential violations of laws or regulations relating to the Coaching Activities. 

4.4 Coach is not an agent, partner or joint venturer of 80/20 Endurance. Neither party has the power to bind the other. Nothing in this Agreement contemplates a fiduciary relationship. Neither party is liable for any act, omission, debt or any other obligation of the other, and you and we agree to indemnify and save each other harmless from any such claim and the cost of defending such claim.

4.5 Coach’s success in working as a Coach is speculative and depends, to an important extent, upon your ability as a business owner and a coach. 80/20 Endurance does not represent or warrant that the Coach will achieve a certain level of sales or be profitable, notwithstanding our approval of the Coach.  80/20 Endurance makes no warrantees, guarantees, or representations regarding the success of Coaching Activities. To the fullest extent possible by the law, 80/20 Endurance disclaims all warrantees, guarantees, and promises that have not been written in this Agreement. 

SECTION 5. PROPRIETARY MARKS

5.0 The Proprietary Marks will be provided and listed in the training materials. Coach may not use the Proprietary Marks outside of Coaching Activities without the prior written approval of 80/20 Endurance. 

5.1 Unless explicit permission is granted, Coach agrees not to use the Proprietary Marks or the names “80/20 Endurance”, “80/20”, or anything confusingly similar as part of any corporate or other legal name, or as part of any e-mail address, domain name, or other identification of Coach or Coach’s business, in any medium. In all approved uses of the Proprietary Marks on Coach’s business forms such as letterhead, invoices, order forms, receipts, and contracts, Coach must identify as our as an independent coach. 

5.2 Coach has no rights in the Proprietary Marks or the System other than those explicitly granted in this Agreement and may not sublicense the Proprietary Marks. All rights to the Proprietary Marks and System immediately terminate with the termination or expiration of this Agreement. 

5.3 Coach may not alter or use the Proprietary Marks in any unapproved manner. Any requests to use the Proprietary Marks in ways not set forth in the Standards provided must be  in writing and approved in writing by 80/20 Endurance prior to use. 

SECTION 6. RESTRICTIVE COVENANTS

6.0  Coach acknowledges that as a Coach, he/she will receive specialized training.  Coach further acknowledges that he/she will receive access to 80/20 Endurance’s confidential and proprietary information, including methods, practices, and products, which will provide a competitive advantage to Coach. As a condition of training, sharing confidential and proprietary information with, granting a license to operate as a Coach, and using 80/20 Endurance’s intellectual property, 80/20 Endurance requires the following covenants in order to protect our legitimate business interests and the interests of other Coaches in the System:

6.1 During the term of this Agreement, neither Coach nor any shareholder, member, partner, officer, director or guarantor of Coach, or any person or entity who is in active concert or participation with Coach or who has a direct or indirect beneficial interest in the Coaching Activities, may perform any act injurious or prejudicial to the goodwill associated with the Proprietary Marks or System.

6.2 During the term of this Agreement and at any time thereafter, neither Coach nor any shareholder, member, partner, officer, director or guarantor of Coach’s business, or any person or entity who is in active concert or participation with Coach or who has a direct or indirect beneficial interest in this Agreement, may contest, or assist others in contesting, the validity or ownership of the Proprietary Marks in any jurisdiction; register, apply to register, or otherwise seek to use or in any way control the Proprietary Marks or any confusingly similar form or variation of the Proprietary Marks; or reproduce, communicate or share any Confidential Information with anyone, or use for the benefit of anyone, except in carrying out the obligations under this Agreement.

6.3 Coach agrees that a breach of the covenants contained in this Section will be deemed to threaten immediate and substantial irreparable injury to 80/20 Endurance and gives 80/20 Endurance the right to obtain immediate injunctive relief without limiting any other rights 80/20 Endurance might have. If a court or other tribunal having jurisdiction to determine the validity or enforceability of this Section determines that, strictly applied, it would be invalid or unenforceable, then the time, geographical area and scope of activity restrained shall be deemed modified to the minimum extent necessary such that the restrictions in the Section will be valid and enforceable.

6.4 For purposes of this Agreement, the term “Confidential Information” means information relating to 80/20 Endurance or the System that is not generally available to the public, including Manuals, other trade secrets and all other information and know-how relating to the methods of developing, operating and marketing the Coaching Activities and the System. Coach must use best efforts to protect the Confidential Information.

SECTION 7. TRANSFERS

7.0 Transfer by 80/20 Endurance. 80/20 Endurance may assign rights to any person or entity that agrees in writing to assume all of our obligations. Upon transfer, 80/20 Endurance will have no further obligation under this Agreement, except for any accrued liabilities.

7.1 Transfer by Coach: 80/20 Endurance entered into this Agreement based on the qualifications of the Coach. No transfers of any kind by the Coach may occur without the express written consent of 80/20 Endurance.  

SECTION 8. DEFAULT AND REMEDIES

8.0 Coach will be in default under this Agreement under the following conditions:

a. If Coach breaches an obligation under this Agreement, or an obligation under another agreement, which agreement is necessary to engage in Coaching Activities.

b. If Coach uses or permit the use of any Confidential Information, for an unauthorized purpose.

c. If Coach files a petition in bankruptcy, are adjudicated a bankrupt, or a petition is filed against Coach and is either consented to by Coach or not dismissed within thirty days; or if Coach becomes insolvent or make an assignment for the benefit of creditors; or a bill in equity or other proceeding for the appointment of a receiver or other custodian for Coach’s business assets is filed and is either consented to by Coach or not dismissed within thirty days; or a receiver or other custodian is appointed for Coach’s business or business assets; or proceedings for composition with creditors is filed by or against Coach; or if Coach’s real or personal property is sold at levy.

d. If Coach is convicted of or pleads guilty or no contest to a felony or crime involving moral turpitude, or any other crime or offense that is injurious to 80/20 Endurance’s System or the goodwill enjoyed by our Proprietary Marks.

e. If Coach commits a fraud upon 80/20 Endurance or a third party relating to this Agreement or the services provided thereunder. 

f. If Coach intentionally or negligently cause harm or injury to come to a Client.  

g. If Coach begins a romantic or sexual relationship that Coach commences after the start of a coaching relationship with a client.

h. If Coach is violates the Code of Conduct or any Standards set forth by 80/20 Endurance. 

8.1 Coach will have the following opportunities to cure a default under this Agreement.

a. Seven-Day Cure Period. The Cure Period for any breach set forth in Paragraph 8.0(a), (b) and minor breaches of Paragraph 8.0(h) (to be determined at the sole discretion of 80/20 Endurance) will be seven days after delivery of notice of default to you in our then-standard form or forms of communication. Coach must provide written confirmation that the breach has been cured and provide any requested documentation that relates to the breach and the cure. 

b. No Cure Period. No Cure Period will be available if Coach commits an act of fraud with respect to Coach’s acquisition or performance of this Agreement; or in any violations of Paragraphs 8.0(c)-(h)if In addition, no cure period will be available for any 

8.2 In addition to all the remedies provided at law or by statute for the breach of this Agreement, if 80/20 Endurance believes the actions of the Coach pose a threat to the health or safety of customers, employees, or other persons, 80/20 Endurance will have the right to take such action as it deems necessary to protect these persons, and the goodwill enjoyed by the Proprietary Marks. Such actions may include any or all of the following: 80/20 Endurance may require Coach to immediately close and suspend operation of any Coaching Activities and correct such conditions. After investigation by 80/20 Endurance, we may elect to offer a cure period or terminate the agreement depending on the severity of the situation.  The Coach will solely be responsible for all losses or expenses incurred in complying with the provisions of this subsection. 

8.3 Because of the importance of Coach’s compliance with Standards and Code of Conduct to protect the goodwill enjoyed by the Proprietary Marks and the other Coaches, Coach agrees that the remedies described elsewhere in this Agreement, as well as monetary damages or termination at a future date, may be insufficient remedy for a breach of the Standards or Code of Conduct. Accordingly, the Coach agrees not to contest the appropriateness of injunctive relief for such breaches, and consent to the grant of an injunction in such cases without the showing of actual damages, irreparable harm, or the lack of an adequate remedy at law. In order to obtain an injunction, 80/20 Endurance must show only that the Standard/Code of Conduct in issue was adopted in good faith, that it is a Standard of general applicability in that locale, and that Coaching is violating or are about to violate that Standard. A Standard of general applicability is one that applies to all Coaches throughout the 80/20 Endurance Coaching Program.  

8.4 Termination and Expiration. If the Coach commits a default referenced in Paragraph 8.1 or if Coach fails to timely cure any default that may be cured, 80/20 Endurance may terminate this Agreement. Termination will be effective immediately upon receipt of a written notice of termination unless a notice period is required by law, in which case that notice period will apply. Upon termination or expiration of this Agreement, Coach will no longer have any rights granted by this Agreement. 

8.5 In the event of termination or expiration of this Agreement: 

a. Coach must immediately cease operation of Coaching Activities and no longer represent to the public as an 80/20 Endurance coach.

b. Coach must immediately cease all use of Proprietary Marks, trade secrets, confidential information, and manuals, and cease to participate directly or indirectly in the use or benefits of the System.

c. Coach must, within ten days, return all originals and copies of operating manuals, plans, specifications, and all other materials relating to the operation of the Coaching Activities, all of which is acknowledged to be 80/20 Endurance’s property. Any electronic copies must be destroyed. 

d. Upon request within thirty days from the date of termination due to default or expiration, Coach must remove all indicia of Proprietary Marks. 

8.6 Indemnification. Coach will indemnify and hold 80/20 Endurance, its parent, subsidiaries and affiliates, including their respective members, officers, directors, employees, agents, successors and assigns, harmless from all claims related in any way to Coach’s operation in Coaching Activities. This indemnification covers all fees (including reasonable attorneys’ fees), costs and other expenses incurred by 80/20 Endurance or on our behalf in the defense of any claims. 80/20 Endurance’s right to indemnity shall be valid notwithstanding that joint or concurrent liability may be imposed by statute, ordinance, regulation or other law. 80/20 Endurance will notify Coach of any claims covered by this paragraph, and Coach shall have the opportunity to assume the defense of the matter. 80/20 Endurance shall have the right to participate in any defense that is assumed by Coach, at its own cost and expense. No settlement of any claim against 80/20 Endurance shall be made without prior written consent if 80/20 Endurance would be subjected to any liability not covered by Coach or Coach’s insurer.

SECTION 9. DISPUTE RESOLUTION

9.0 Waiver of Rights. Parties waive and agree not to include in any pleading or arbitration demand: class action claims; demand for trial by jury; claims for lost profits; or claims for punitive, multiple, or exemplary damages. If any pleading is filed that contains any of these claims or a jury demand, or if a court determines that all or any part of the waivers are ineffective, then the pleading shall be dismissed with prejudice, leaving the pleading party to its arbitration remedy. No claim by either of us can be consolidated with the claims of any other party. If such claims and demands cannot be waived by law, then the parties agree that any recovery will not exceed two (2) times actual damages.

9.1 Arbitration: Except as described in this paragraph, the Parties agree to resolve all disputes through binding arbitration under it’s the American Arbitration Association’s Commercial Arbitration Rules (or another nationally established arbitration association acceptable to you and us) and under the Federal Rules of Evidence. The exception to the mandatory arbitration is that we shall have the option to submit to a court any of the following actions: to collect fees due under this Agreement; for injunctive relief; to protect our intellectual property, including Proprietary Marks; and to terminate this Agreement for a default. The Parties agree to subject matter jurisdiction and personal jurisdiction in the State of Utah and for the venue of any legal action to be in Lehi, Utah. This Agreement is governed by Utah law. 

SECTION 10. MISCELLANEOUS

10.0 Captions, paragraph designations and section or subsection headings are included in this Agreement for convenience only, and in no way define or limit the scope or intent of the provisions. Wherever the Agreement uses the word “including”, it means “including but not limited to.”

10.1 Notices. All notices shall be sent by prepaid private courier or certified mail to the addresses set forth in this Agreement, or to such other addresses as provided in writing. All notices to 80/20 Endurance shall be sent to “Attention: Legal Department.”

10.2 This Agreement and the documents referred to herein shall be the entire, full and complete agreement between the Parties concerning the subject matter of this Agreement, which supersedes all prior agreements. This Agreement may be executed in multiple counter-parts by facsimile or otherwise. This Agreement may only be modified in a writing signed by all Parties.