STATEMENT OF RELATIONSHIP
PRODUCT LICENSE AGREEMENT
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The following is a legal agreement between You (the person or authorized representative of an entity) and Zahourek Systems, Inc., (“Zahourek”) which governs the use of the appropriate trademarks, copyrights, and other proprietary rights as listed here as may be updated from time to time, related to Zahourek’s various products and services for sculpturally based learning models and systems (collectively, the “Intellectual Property”). By purchasing or using any of Zahourek’s products and services including any previous purchases and uses, you accept the terms of this Agreement as a legally binding document without any other conditions or declarations. If you do not agree with these terms, You cannot purchase or use the products and your purchase price will be refunded less repackaging costs.
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In order to protect and prevent others from incorrectly using Zahourek’s brand names of goods and services as well as other intellectual property, your rights to use the Intellectual Property and Zahourek’s products are subject to this agreement and the restrictions specified herein. Zahourek reserves any right not expressly granted to You. You own the purchased product and materials but Zahourek retains ownership of all trademarks, copyrights, and other intellectual property relating to the Zahourek products and systems itself.
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“Product” shall mean the product(s) or service(s) which You have acquired or purchased as indicated on your sales order, quote, invoice, receipt, product labeling, or the like.
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“Associated Intellectual Property” shall mean only those specific trademarks and/or copyrights as associated with your Product and which at least one trademark must be used under the terms of this agreement. A full listing of the Associated Intellectual Property rights can be found here, as may be updated from time to time.
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In consideration of payment of the license fee, which is part of the purchase price for the Product, Zahourek hereby grants to You a personal, non-exclusive, non-assignable, worldwide, and royalty-free license to use the Associated Intellectual Property under the terms and conditions explained in this Agreement. These rights are rescindable by Zahourek without notice at Zahourek’s sole discretion.
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You are only authorized to use the Associated Intellectual Property in association with your Product for respectable educational uses and You may only use the Associated Intellectual Property in advertisements, websites, fliers, brochures, course catalogs, and editorial articles if in accordance with the policy statements which include proper attribution along with other policies as specified here as may be updated from time to time. Zahourek does not grant any other use of the Associated Intellectual Property in independent publications without prior written authorization from Zahourek.
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If your Associated Intellectual Property includes any corollary copyrights for use, then You have the right to use, display, and copy the specified corollary copyrighted material for promotional purposes only and only in association with your Product. Use of all of the Associated Intellectual Property must be in accordance with the trademark and copyright policies as specified here as may be updated from time to time. You agree to maintain the quality of the services you provide related to your Product as specified in the trademark policy as referenced above. For purposes of assuring compliance with the relevant standards, You agree to permit Zahourek or its representatives to inspect at reasonable times the products or services that You provide and agree to provide to Zahourek samples of all literature and other materials bearing or distributed under the trademark(s) as reasonably requested by Zahourek. Under these policies and quality requirements, You agree that Zahourek exercises control over the quality of the goods and services of its marks.
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You are not authorized to use any of the Intellectual Property which is not specifically listed as corollary to your Product. You cannot use the Associated Intellectual Property or any materials relating to the Intellectual Property in connection with any business activity unrelated to the Zahourek products and systems unless authorized. Zahourek is sensitive to the quality and content of the photographs taken of their products and models. Accordingly, You are not authorized to create derivative works, take photographs, images, and videos of the Product or display such photographs, images and videos without express written authorization of Zahourek. However, Zahourek allows personal, non-commercial, non-sequential photographs of Zahourek’s models for social networking use (e.g., a photograph of a student with a Maniken® model from a class posted on Facebook is allowed for personal, non-commercial use), (the “Photo Exception”). Except for the rights granted herein, You cannot incorporate any of the Intellectual Property or derivative works or photographs, images, and videos of the Products into other works without the express written authorization by Zahourek. All rights, title, and interest of the Intellectual Property and Associated Intellectual Property shall remain with Zahourek and all derivative works or photographs, images, and videos of the Product created by You, other than by standard use, are hereby assigned to Zahourek. Should You teach classes using your Product, Zahourek obligates, or as otherwise required by Zahourek, You to advise your students that the class is offered as an educational tool only and that by participating in the class, no rights, including any right to take photographs other than the Photo Exception, to any of the Intellectual Property or Products are granted to the students. The license rights granted herein remain with the Product; upon any sale or destruction of the Product, your license rights will terminate and the license rights will transfer to any subsequent owner.
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You will not adopt, use, register, or seek to register nor will you enable or assist others in adopting, using, registering, or seeking to register any mark reasonably deemed by Zahourek to be so similar to Zahourek’s marks that a likelihood of consumer confusion may be created. You acknowledge the validity of all marks and copyrights asserted by Zahourek and acknowledge all your past, present, and future uses of Zahourek’s or similar marks including but not limited to those listed under the Intellectual Property and Associated Intellectual Property shall inure to the benefit of Zahourek.
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Should You breach this Agreement, Zahourek may terminate the Agreement upon thirty (30) days notice to You, provided that You have not corrected such material breach during such period. Upon termination of this Agreement for any reason, You agree to discontinue all uses of the Associated Intellectual Property within 30 days of termination and all license rights are hereby revoked.
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You agree to indemnify, hold harmless, and defend Zahourek against all claims, liability, damages and expenses, including reasonable legal fees, incurred as a result of or related to any claim, whether threatened or pending, by any person in any way involving your use of the Intellectual Property or Associated Intellectual Property.
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The validity and interpretation of this Agreement shall be governed by and construed in accordance with Colorado law except as to copyright and other proprietary matters which may be preempted by United States laws and international treaties. In the event of any violation of this Agreement, Zahourek reserves the right to pursue any state law remedies (including contractual remedies) or remedies under federal laws or both. If You are a governmental unit, you agree to waive your governmental immunity to any suit and/or liability arising hereunder. The parties agree to exclusively submit any controversy or claim arising hereunder or in any way arising from their relationship or use of Intellectual Property to confidential binding arbitration in Larimer County, Colorado, to the extent permissible under law, before a reasonably priced single attorney having experience in enforcement of trademark and intellectual property rights for a growing business and who will enforce the contract according to its terms. Such arbitration shall be conducted in accordance with applicable law and the Commercial Arbitration Rules (CAR’s) of the American Arbitration Association (AAA) with each applicable law modified for efficiency and: a) to avoid the involvement of the AAA, b) to provide for the minimal amount of discovery and other pre-hearing procedures consistent with a fair resolution of the dispute, and c) to endeavor for the dispute to be resolved within 180 days of the arbitrator’s appointment unless the arbitrator determines that justice requires otherwise. For further efficiency, selection of the arbitrator shall be made promptly by two attorneys, one of which may be selected by each party. Any appropriate award, including but not limited to injunctive relief if deemed appropriate, rendered by the arbitrator may be entered in any court having jurisdiction thereof. The prevailing party may be entitled to recover reasonable attorney fees and costs incurred in such arbitration. In the event any claim or controversy arises which is not subject to binding arbitration under this section, the parties agree to submit to exclusive jurisdiction and venue for the resolution of such dispute in the District Court of Larimer County, Colorado, or to the extent necessary in federal court in the District of Colorado.
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Damages caused by a breach of this contract are uncertain and difficult to ascertain as it may affect Zahourek’s reputation. As a result, should a breach of this contract be found, You agree to pay to Zahourek as liquidated damages, and not as a penalty, an amount equal to 20% of all Your gross sales from the first instance of the wrongdoing through the elimination of the wrongdoing. Liquidated damages shall also include Zahourek’s attorney fees and costs (collectively, “Zahourek’s Liquidated Damages”). Alternatively and in lieu of Zahourek’s liquidated damages, Zahourek may elect to terminate this Agreement and recover its actual damages resulting from Your breach in accordance with Colorado law, in which case Zahourek may seek an award of such actual damages. If Zahourek elects to seek actual damages, Zahourek must provide You with written notice of such election within 30 days after the end of Your cure period, and if Zahourek fails to provide such notice, then Zahourek will only be entitled to Zahourek’s Liquidated Damages.
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You acknowledge and accept that (1) these terms constitute the entire agreement between You and Zahourek regarding its subject matter and to the extent inconsistent, supersedes any prior versions and past contracts; and (2) this Agreement applies to any past purchases or uses of Zahourek’s products. No modification by You to the terms or any additional authorization will be binding unless authorized by an officer of Zahourek in writing. Each time You purchase products from Zahourek, you agree to the then existing Product License Agreement including those terms provided in the linked pages Zahourek’s employees, licensees, or sales representatives are not authorized to modify this agreement or grant any additional authorization. Any express waiver or failure to exercise any right under the terms will not create a continuing waiver or any expectation of non-enforcement. If any provision of the terms is held invalid by any competent court, governmental entity or arbitrator, such provision will be replaced with a new provision that accomplishes the original business purpose, and the other provisions of the terms will remain in full force and effect.
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Should you have any questions concerning this agreement you may contact Zahourek Systems, Inc. at info@anatomyinclay.com or 1-800-950-9025.
The Statement of Relationship and Product License Agreement was revised 12/02/2016.
