INTELLECTUAL PROPERTY LICENSE AGREEMENT

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This license agreement (the “Agreement”), effective as of the date signed by Licensee (hereinafter, the “Effective Date”), is entered into by and between GYHB LLC dba The Functional Medicine Project (“Licensor”), and the individual or entity signing below as the Licensee, (“Licensee”). Licensor and Licensee are each referred to herein as a “Party” and together, as the “Parties.” This Agreement sets forth the terms pursuant to which Licensor will provide, and Licensee will be permitted to use, the materials as described herein. The Parties hereto agree as follows:

1.     License of Materials and Restrictions.

(a)        License of Materials. Subject to the terms and conditions of this Agreement, Licensor hereby grants to Licensee a one-time, non-exclusive, worldwide, non-transferable, non-sublicensable (other than to Patients, as defined herein) license (the “License”) to use and exploit the intellectual property content more fully described in Schedule “A” attached hereto and incorporated herein by this reference (the “Materials”), during the License Term (as defined herein) and solely in connection with Licensee’s treatment of its Patients.  Licensor reserves all rights not expressly granted to Licensee under this Agreement.

(b)       Access to Materials. By accessing the Materials on any subdomain or domain owned or operated by Licensor, including but not limited to any subdomain or domain at “functionalmedicineproject.org” (the “Site”), the Licensee agrees that they have read, understood, and agree to be bound by all of the terms in this Agreement, as well as the terms contained in the Site’s terms and conditions linked to here https://www.functionalmedicineproject.org/terms-and-conditions. If they do not agree with all of this Agreement or the Site’s terms and conditions, then Licensee is expressly prohibited from using the Materials and must discontinue use immediately.

(c)        Restrictions. The License granted to Licensee hereunder is subject to the following restrictions (unless prior written permission is obtained in advance in each instance):

• Licensee may not amend, delete, augment, edit, distort, or otherwise modify, in any manner, the Materials;

• Licensee may not exploit any third-party elements incorporated in the Materials separately and apart from such incorporation;

• Other than to Patients, Licensee may not sublicense or otherwise transfer the License or this Agreement in general to any third party at any time (and any such transfer or sublicense shall be void ab initio); 

• Licensee may not assign the License without the prior written consent of the Licensor; and

• Licensee may not display the Materials in any of the following manners:

• In connection with, adjacent to, and/or in a manner that encourages, directly or indirectly, the viewer to engage in any immoral or illegal activity of any kind; or

• In a manner that can reasonably be considered immoral, illegal, indecent, harassing, pornographic, lewd, incendiary, defamatory, libelous, or otherwise patently offensive.

2.     Payment of Fees/Costs. As full and complete consideration for the rights herein granted, Licensee shall pay Licensor the fee of $249 per course during the Term, which Fees are subject to modification upon Licensor’s provision of written notice to Licensee 30 days prior to change. Beginning after 60 days from signing this Agreement, Licensee will pay a monthly fee of $179, charged to credit card or deducted from bank account on the 15th of the month. The Monthly Affiliate Fee of $179 will be waived if two or more Total Health Reset Courses have been purchased using the Licensee’s Unique Clinician Code during the prior month.  This Monthly Affiliate fee is subject to modification upon Licensor’s provision of written notice to Licensee 30 days prior to change. Licensee understands and agrees that Licensee is responsible for paying fees to the Licensor, according to the terms in this Agreement, even if those Fees differ from the current Fees. Licensee agrees to allow The Functional Medicine Project and GYHB, LLC to keep a credit card or bank withdrawal information on file to be used to pay the Monthly Affiliate Fee. 

3.     Term and Termination.

(a)        Term and Termination. The term of this Agreement shall commence as of the date that Licensee receives the Materials and continue in perpetuity so long as the Fees identified in Paragraph 2 are paid timely (the “License Term”). Notwithstanding the foregoing, if either Party is in material breach of any term hereof (including without limitation any representation and warranty) and such breach, if capable of cure, is not cured within two (2) weeks of the non-breaching Party’s provision of notice to the breaching Party detailing such breach, this Agreement may be terminated by the non-breaching Party immediately upon its provision of written notice to the breaching Party. If Licensee is the terminating Party, it shall be entitled to a pro-rata refund of the Fee. For clarity, Licensee shall not be entitled to a refund of that portion of the Fee applicable to Licensee’s exploitation of the Materials pursuant to the terms hereof prior to any breach by Licensor.

(b)       Effect of Termination. Upon termination of this Agreement, Licensee and Patients shall cease exploitation of the Materials and shall provide Licensor with adequate and appropriate proof of same. Additionally, all of the following shall occur: (a) Licensee and Patients shall permanently discontinue exploitation of the Material and any other activities related to the Materials; (b) Licensee and Patients shall immediately terminate all third-party agreements relating to the Materials; (c) all rights granted hereunder shall immediately revert to Licensor; (d) Licensee shall not be relieved or released from any of its obligations existing prior to the date of such termination or expiration including, without limitation, payment of all payments due hereunder, which shall be immediately due and payable to Licensor; and (e) Licensee's and Licensor's insurance, representations, warranties, and indemnity obligations hereunder shall survive expiration or termination.

4.     Credit. Licensee shall provide Licensor with an appropriate credit on all versions of the Materials equal in all respects to any other similar credits Licensee may provide, in substantially the form: © 2022 GYHB LLC. [insert title of materials] made available courtesy of GYHB LLC.

5.     Representations and Warranties. Each Party represents and warrants that: (i) it has the full corporate right, power and authority to enter into this Agreement, to grant the rights granted hereunder and to carry out the terms and conditions contained herein without violating any law; (ii) the execution of this Agreement by such Party, and the performance by such Party of its obligations and duties hereunder, do not and will not violate or conflict with any agreement to which such Party is a party or by which it is otherwise bound; and (iii) when executed and delivered by such Party, this Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms. Licensor further represents and warrants that Licensor holds all rights necessary to permit the License and use of the Materials by Licensee solely as contemplated for hereunder and without modification thereto, and that Licensee’s authorized use thereof shall not violate of any third party right of any kind and/or any applicable law, rule, or regulation. Licensee further represents and warrants that: (i) it will not engage or participate in any activity or course of action that could diminish or tarnish the image or reputation of the Materials and/or Licensor, or cause confusion as to the ownership of the Materials; (ii) Licensee will obtain and pay for all costs incurred in connection with obtaining the approval of all individuals or entities whose consent may be required in connection with Licensee's use of the Materials; and (iii) subject to Licensor’s indemnification obligations, the Materials will not infringe or otherwise violate any third party right or any applicable law.

6.     Indemnifications.

(a)        Licensor shall indemnify and hold Licensee harmless from and against any loss, damage, liability, claim, demand, suit and expense (including reasonable outside attorneys' fees, court costs and litigation expenses; expert witness fees; and the cost of court reporters) ("Loss") which may be incurred by Licensee as the result of any third party claim, demand, suit, or proceeding ("Claim") made or brought against Licensee to the extent based upon or arising directly out of (i) any material uncured breach of any of the terms of this Agreement by Licensor or the negligence or willful misconduct of Licensor; or (ii) any permitted use of the Materials by Licensee hereunder, except to the extent that such Claims are subject to indemnification by Licensee as set forth in Section 6(b) below.

(b)       Licensee shall indemnify, defend and hold harmless Licensor from any Loss which may be incurred by Licensor to the extent based upon or arising from any third-party Claim made or brought against Licensor (and/or any affiliate, employee, agent, or assign of Licensor) arising out of Licensee’s material breach of this Agreement (including without limitation any unauthorized use of the Materials), negligence, violation of applicable law, and/or negligence or willful misconduct.

(c)        Upon the assertion of any claim or the commencement of any suit or proceeding against the indemnified Party by a third party that may give rise to liability hereunder, the indemnified Party promptly shall notify the indemnifying Party of the existence of such claim, suit or proceeding and the indemnifying Party shall defend and/or settle the claim at the indemnifying Party’s own expense and with counsel of the indemnifying Party’s own selection. The indemnifying Party must obtain the indemnified Party’s prior written approval in connection with any settlement that could reasonably have an adverse effect on the indemnified Party’s business. Notwithstanding anything set forth herein to the contrary, the indemnified Party shall at all times have the right, following written notification to the indemnifying Party in connection therewith, to fully control the defense of any such claim, suit or proceeding in lieu of the indemnifying Party, in which case, the indemnifying Party shall be responsible for reimbursing the indemnified Party for all of the indemnified Party’s costs of defense, including reasonable attorney’s fees, in addition to any Loss, within thirty (30) days following the date of the indemnified Party’s invoice in connection therewith.

7.     Limitation on Liability. IN NO EVENT SHALL LICENSOR BY LIABLE UNDER THIS AGREEMENT TO LICENSEE FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, INCONVENIENCE, LOSS BUSINESS OPPORTUNITIES, DAMAGE TO GOOD WILL OR REPUTATION, AND COSTS OF COVER, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND/OR EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LICENSOR’S AGGREGATE LIABILITY FOR ANY CLAIMS RELATING TO THIS AGREEMENT WILL BE LIMITED TO AN AMOUNT EQUAL TO THE SUM OF MONEY PAID BY LICENSEE TO LICENSOR HEREUNDER. ANY CLAIMS MADE PURSUANT TO THIS SECTION MUST BE MADE WITHIN ONE YEAR OF THE INCIDENT TO WHICH THEY RELATE OR FOREVER BE BARRED.

8.     Ownership. Subject to terms hereof, Licensor retains all right, title, and interest in and to the Materials. This Agreement does not convey any ownership rights in the Materials, or to any element thereof, to Licensee or any third-party (including Patients). Licensee further acknowledges that any and all goodwill arising out of Licensee’s exploitation of the Materials shall inure solely to Licensor’s benefit. 

9.     Confidentiality. Each Party (the “Recipient”) shall take all commercially practicable steps to protect proprietary and confidential information and materials (hereinafter “Confidential Information”) provided by the other Party or its representatives (the “Discloser”) from improper disclosure. The term Confidential Information shall include the existence and terms of this Agreement. Confidential Information shall not include information previously known to Recipient or materials to which Recipient had access prior to the provision of such information or materials by Discloser; information or materials that are now or later become publicly known; information or materials provided to Recipient by a third party not bound by a duty of confidentiality to Discloser; information or materials independently developed by a Party without use of any Confidential Information of the other Party; or information or materials approved for release or disclosure by the Discloser without restriction. Recipient shall inform Discloser of all inquiries into, or requests for, Discloser’s Confidential Information by third parties and shall disclose Confidential Information to such third parties only when legally compelled to do so and after notice to Discloser, or when so permitted or instructed by Discloser. Additionally, each Party agrees that prior to providing Confidential Information to any employee or agent, such Party will: (1) confirm that such provision is required in order to fulfill its contractual obligations hereunder; and (2) require each such individual to first agree, in writing, to confidentiality terms not less stringent than those set forth herein with respect to the information. 

10.  Insurance. Each Party agrees that during the term of this Agreement it will obtain and maintain insurance coverage in amounts sufficient to cover such Party’s obligations hereunder, including without limitation, its indemnification obligations.

11.  Independent Contractor. Licensor understands and agrees that, as an independent contractor, Licensor will not be treated as an employee of Licensee. Accordingly, Licensee will not withhold from the Fees it pays to Licensor any amount for taxes, including, without limitation, Income, Social Security, Medicare or any other taxes. Licensor shall not have any ability to bind Licensee to any agreements or other obligations and will not attempt to do so at any time.

12.  General.

(a)        Equitable Relief. Licensee acknowledges and agrees that any unauthorized use of the Materials by it would give rise to irreparable harm to Licensor for which monetary damages would not be an adequate remedy. As such, if Licensee’s use of the Materials violates the terms hereof or any applicable law, in addition to any and all other rights and remedies that may be available to Licensor, Licensor shall be entitled to seek immediate equitable relief, including without limitation a temporary restraining order, an injunction, specific performance, and any other similar such relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security, or prove actual damages or that monetary damages will not afford an adequate remedy. Licensee agrees that it will not oppose or otherwise challenge the appropriateness of equitable relief or the entry by a court of competent jurisdiction of an order granting equitable relief, in either case, consistent with the terms hereof.

(b)       Governing Law. This Agreement shall be governed by the laws of Oregon without regard to its conflict of laws principles. The Parties hereby agree that any action arising out of this Agreement will be brought solely in the state and federal courts located in Lane County, Oregon. Both Parties hereby submit to the exclusive jurisdiction and venue of any such court. THE PARTIES HEREBY AGREE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TO WAIVE ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY CLAIM, COUNTERCLAIM, OR ACTION ARISING FROM THE TERMS OF THIS AGREEMENT.

(c)        Severability. In the event that any term of this Agreement is deemed to be invalid, the Parties shall use all reasonable efforts to negotiate in good faith to amend the term to eliminate any such invalidity, illegality, or unenforceability to the extent practically possible, taking into full account their original intent when entering into this Agreement the remaining provisions hereof shall continue in full force and effect.

(d)       Waiver. Waiver by either Party of any term or condition of this Agreement shall not be deemed to be a waiver of any other term or condition or of any later breach of this Agreement.

(e)        Entire Agreement. This Agreement along with the Exhibit “A” attached hereto represents the entire understanding between the Parties and supersedes all previous and contemporaneous verbal or written negotiations or agreements, if any, on the subject matter hereof. No modification of this Agreement shall be effective unless set forth in writing and signed by a duly authorized representative of each Party hereto. 

(f)         Survival. The rights, duties, obligations and liabilities of the Parties which are intended to survive shall survive the termination of this Agreement, including without limitation, the terms addressing confidentiality, representations and warranties, indemnifications, and insurance obligations.

(g)        Counterparts. This Agreement may be executed in counterparts, including electronic copies, each of which shall be deemed an original and all of which together shall constitute one and the same document.

 

 

AGREED TO AND ACCEPTED BY:

 

GYHB LLC                                                                                       LICENSEE

 

By:

 

 

By:

 

 

Name:

 

 

 

Name:

 

 

Title:

 

 

 

Title:

 

 

 

Exhibit A. Materials

 

Licensor has developed and licenses, on a per-user basis, its Material, marketed under the name “Total Health Reset Course” (“Course”) which consists of an online course portal containing educational materials developed by Licensor on the subjects of functional health and wellness. Additionally, the Materials consists of a proprietary content delivery system, including videos, emails, documents, timings, coaching checklists, outlines, reports, questionnaires, FAQs, and other information provided by Licensor. The Course portal presents a structured educational program through which users progress over time.