Class and Camp Curriculum License Agreement

The Licensee is deemed to have agreed to and signed this Agreement, effective immediately, by purchasing, opening, saving, downloading, copying, duplicating, printing, transferring, or otherwise using Curiosity Zone’s Curriculum, as described below.  
This license agreement (the “Agreement”) is entered into as of the date of purchase, open or download, whichever is first (the “Effective Date”), by and between CURIOSITY ZONE SCIENCE LLC, a Virginia limited liability company (“CURIOSITY ZONE”) and the undersigned (“Licensee”).  CURIOSITY ZONE and Licensee may be referred to hereinafter individually as a “Party” or collectively as the “Parties.”
WHEREAS, CURIOSITY ZONE is a developer and provider of educational materials, tools, products and services for students, teachers and educators, especially in the categories of science, technology, engineering and mathematics (STEM); 
WHEREAS, Licensee desires to license CURIOSITY ZONE’S curriculum for use in an educational program; 
WHEREAS, pursuant to the terms of this Agreement, CURIOSITY ZONE grants and Licensee receives a license to use the Curriculum, as defined below and set forth herein.
NOW THEREFORE, in consideration of the foregoing and the mutual promises and covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. License.  
a. Subject to the terms, conditions and limitations of this Agreement, CURIOSITY ZONE hereby grants to Licensee the nonexclusive, nontransferable  license to use curriculum purchased or otherwise obtained from CURIOSITY ZONE (“the Curriculum”) solely in connection with an educational program.  
b. Licensee shall be permitted to create revisions, edits, modifications, customizations, improvements, translations, adaptations and other materials derived from the Curriculum (collectively “Derivative Works”), subject to Section 6(a) below.
2. Conditions of License.  This License is expressly subject to the following terms and conditions:
a. Payment of Licensing Fee.  Licensee agrees to pay CURIOSITY ZONE a one-time royalty in the amount specified by CURIOSITY ZONE. Receipt of full payment by CURIOSITY ZONE from Licensee is a condition precedent to use of the Curriculum. Renewals or extensions of this Agreement are subject to additional fees, to be agreed upon by CURIOSITY ZONE and Licensee prior to renewal or extension.  The royalty is nonrefundable.
b. Duration of Use.  The license for each unit of Curriculum shall run for up to 12 consecutive months, commencing as of the Effective Date.
c. Scope of Use.  
i. Licensee shall not use the Curriculum for any purpose whatsoever within 18 miles of the following address:  43135 Broadlands Center Plaza, Suite 123, Ashburn, VA  20147 (the “non-compete zone”).
ii. Licensee may use each licensed Curriculum unit in up to 5 classrooms or locations, or for to 100 students per week per Curriculum license, whichever results in the smaller number of students.  Licensee will provide location or enrollment data to CURIOSITY ZONE within 10 business days upon CURIOSITY ZONE’s reasonable written request. Licenses with a larger scope of use may be available for an additional fee.
d. Field of Use.  The Curriculum may be used only for educational programming for children.
e. Use of CURIOSITY ZONE Marks.  Licensee is permitted to use CURIOSITY ZONE’s word mark “Curiosity Zone®” (the “Licensed Mark”), with the precise spelling, spacing, capitalization, punctuation and ® symbol as shown above between the quotation marks, in relation to the permitted use of the Curriculum, subject to the terms and conditions set forth herein, provided that Licensee (1) shall not use this or any other of CURIOSITY ZONE’s marks in any legal names, URLs, or web addresses whatsoever, and (2) shall not create the actual or implied impression that CURIOSITY ZONE is affiliated with Licensee in any way other than through the Curriculum license.  Licensee shall not use any other of CURIOSITY ZONE’S marks, including but not limited to the CURIOSITY ZONE graphical logos, the Ever wonder? trademark, the Experiment Exchange name or logos, or the name or likeness of Captain Curiosity or other CURIOSITY ZONE characters, without the prior written consent of CURIOSITY ZONE.  
f. Confidentiality.  Licensee shall keep the Curriculum confidential and protect such material from unauthorized disclosure, publication or dissemination, whether by its employees, agents or representatives, using at least the same degree of care that Licensee uses to protect its own confidential information but in no event less than reasonable care, and shall not disclose or disseminate or permit disclosure or dissemination to any Curriculum to any other person or entity.  Licensee shall not disseminate the Curriculum to any Person that is not an employee of Licensee without CURIOSITY ZONE’s prior written approval.  
g. Updates to the Curriculum or new content relating to the Curriculum created by CURIOSITY ZONE, if any, shall be made available to Licensee on the same terms and conditions as other similarly situated licensees, in CURIOSITY ZONE’s sole discretion. CURIOSITY ZONE shall be under no obligation, however, to update the Curriculum or to create new content.
3. Term.  The Term of this Agreement shall begin on the Effective Date and shall continue for 1 year or until the Agreement is earlier terminated by either Party in accordance with Section 4.  The Term may be renewed by mutual agreement of the Parties.
4. Termination.
a. For Cause.  CURIOSITY ZONE may terminate this Agreement in the event Licensee materially breaches this Agreement and fails to cure said material breach within thirty (30) days of receiving written notice of said material breach from CURIOSITY ZONE.  Notice shall include a description of the asserted breach. The following acts shall constitute a material breach (“Material Breach”) of the Agreement:
i. Failure to pay the licensing fee in full.
ii. Any use by Licensee of the Curriculum in any Duration of Use, Scope of Use or Field of Use other than specified in this Agreement.
iii. Any uncorrected failure or any systemic material failure to materially comply with the quality control obligations under Section 7.
iv. Any unauthorized disclosure or failure to hold the Curriculum in confidence.
v. Any application by Licensee or its affiliates to register or cooperation in any effort by any third party to register the Licensed Marks or any trademarks, service marks, domain names or trade names containing the Licensed Marks or that are confusingly similar to or dilutive of the Licensed Marks anywhere in the world in connection with any products or services.
vi. Any challenge or participation in any challenge by Licensee or its affiliates against CURIOSITY ZONE relating to the Curriculum during the Term. 
vii. A Change in Control of Licensee without the prior written consent of CURIOSITY ZONE to transfer or sublicense the Curriculum. 
viii. Licensee becomes insolvent or bankrupt, makes an assignment for the benefit of its creditors, or has a receiver, manager or similar officer appointed for the whole or any part of its assets or business, or discontinues its business, or there is an order or resolution made for its dissolution or liquidation. 
b. Other than For Cause.  This Agreement may be terminated at any time by a mutual written agreement of the Parties.  
c. Effect of Expiration or Termination.  Upon expiration or termination of this Agreement, all rights and licenses granted to Licensee hereunder shall automatically and immediately cease and terminate and Licensee shall have no further right to use the Curriculum in any manner or for any purpose.  Licensee, at CURIOSITY ZONE’s election, shall promptly (a) return the Curriculum (including both originals and any copies thereof in Licensee’s possession or control) to CURIOSITY ZONE, and/or (b) destroy the foregoing and provide CURIOSITY ZONE with satisfactory proof of such destruction.
5. Assignment; Sublicensing.  This Agreement remains personal to Licensee and may not be assigned, transferred or sublicensed without CURIOSITY ZONE’s prior written consent.  
6. Intellectual Property Rights.  
a. Ownership of Curriculum.  Licensee acknowledges that CURIOSITY ZONE retains all copyright and other intellectual property ownership rights in and to the Curriculum and that Licensee acquires no ownership rights or interest in or to the Curriculum.  CURIOSITY ZONE reserves all rights not expressly herein granted to Licensee with respect to the Curriculum.  To the extent Licensee creates Derivative Works from the Curriculum, such Derivative Works will automatically be deemed part of the Curriculum for the purposes of this Agreement.  
b. Ownership of Curiosity Zone Science Marks.  The Parties agree and acknowledge that CURIOSITY ZONE is the sole and exclusive owner or licensee (with rights to sublicense) of all right, title and interest in all of the Curiosity Zone Science marks and all the goodwill associated therewith.  Licensee understands, accepts and agrees that any permitted usage of any CURIOSITY ZONE Mark, including all goodwill in that Mark, shall inure solely to the benefit of CURIOSITY ZONE.  Nothing in this Agreement shall be construed as granting to Licensee any rights, title or interests in or to the CURIOSITY ZONE Marks, other than the rights granted hereby to use the Licensed Marks in accordance with this Agreement.  The Licensee shall not apply to register the Licensed Marks or any trade names, domain names, trademarks or service marks that contain the Licensed Marks or are confusingly similar to or dilutive of the Licensed Marks.  After the expiration or termination of the Agreement, Licensee shall not use, register, apply to register or cooperate in any use, application to register or registration of the Licensed Marks or any trade names, trademarks or service marks that contain the Licensed Marks or are confusingly similar to or dilutive of the Licensed Marks.  Licensee shall not, during the Term or thereafter, attack CURIOSITY ZONE’s title to or in the Licensed Marks, the validity of the Licensed Marks, or any registration thereof, or oppose any effort by CURIOSITY ZONE to register any of the Licensed Marks or variations or formatives thereof anywhere in the world.
7. Quality Control.
a. Value.  Licensee acknowledges that the Curriculum is extremely valuable and must continue to be associated only with high-quality goods and services in order to maintain its value. 
b. Quality of Licensee’s Business.  Licensee shall only use the Curriculum in connection with high-quality goods and services that comply with all applicable laws and regulations in the jurisdictions in which such goods and services are offered, sold, and/or rendered.  
c. Suspension. Without prejudice to the CURIOSITY ZONE’s right to terminate pursuant to Section 7 of this Agreement, the right to use the Curriculum shall be suspended in relation to any offering not complying with Section 7(b) above, until such time as Licensee has cured such non-compliance.  In the event CURIOSITY ZONE suspends Licensee’s rights to use the Curriculum, CURIOSITY ZONE will evaluate all submissions evidencing correction of the identified quality control failure within a commercially reasonable period normally not to exceed thirty (30) days from of receipt from Licensee.
d. Licensed Mark Usage.  Licensee will use the Licensed Mark in accordance with appropriate standards for mark usage as established by CURIOSITY ZONE.  Upon CURIOSITY ZONE’s reasonable request, Licensee will submit samples of its mark usage to CURIOSITY ZONE.  Licensee shall promptly correct any quality deficiencies identified by CURIOSITY ZONE.  
e. Generally.  Licensee shall, at all times, conduct its business and operations so as not to bring disrepute upon the Licensed Mark or CURIOSITY ZONE.  Licensee shall not use the Curriculum in a manner that causes physical or emotional distress or is disparaging to CURIOSITY ZONE.
8. Non-disparagement.  No Party to this Agreement shall, prior to or during the Term or anytime thereafter, make, publish, or in any other way disseminate any false statement concerning any other Party, its affiliates, licensees, assigns, employees and/or principals, or any of the foregoing parties’ products and/or services.
9. Dispute Resolution.  In the event a dispute arises under this Agreement, the Parties shall work together in good faith to try to resolve the dispute.
a. Mediation.  The Parties shall first attempt to resolve any disputes through a nonbinding mediation, with or without an independent mediator.  The dissatisfied Party shall provide written notice to the other Party specifying the area of disagreement and its proposed resolution.  The receiving Party shall respond with its position on the issue presented within thirty (30) days.  Mediation shall start within twenty (20) days thereafter and continue for so long as the Parties believe progress is being made.  If the Parties reach an impasse, dispute resolution shall proceed to binding arbitration pursuant to Section 9 (b) below.
b. Binding Arbitration.  The Parties hereby (i) irrevocably consent and agree that any action or proceeding arising under or in connection herewith shall be fully and finally resolved by binding arbitration in Leesburg, Virginia, in accordance with the rules and practices of the American Arbitration Association (“AAA”) from time to time in force and effect.  Such arbitration shall be administered by the AAA under its commercial arbitration rules and the parties agree to venue in Leesburg, Virginia.  Except with respect to equitable remedies of the parties hereunder, this agreement to arbitrate shall be the exclusive remedy for the resolution of such disputes under this Agreement and shall be specifically enforceable.  Judgment upon any award shall be entered in any court in Leesburg, Virginia.  The Parties hereby submit to the exclusive jurisdiction of the courts so selected, to the exclusion of any other court which might have had jurisdiction apart from this Section 11, waive any defense of lack of in personam jurisdiction of such courts and agree that service of process in any action before such courts may be made by mailing it to the Party to be served at the address written above.  Subject to the provisions below, the costs and expenses of arbitration shall be paid equally by the Parties.  Any determination made during such arbitration shall be final and binding on each Party and its successors and assigns, and judgment thereon may be entered in any court in Leesburg, Virginia.  Three (3) arbitrators shall be used.  The arbitrator(s) shall have continuing jurisdiction to implement their decision.  Each Party shall initially be responsible for its own costs and attorney’s fees, and shall share the expenses of the arbitration equally; provided that the arbitrator(s) shall award all expenses of the arbitration, costs and reasonable attorney’s fees to the prevailing Party.  The Federal Arbitration Act shall govern all proceedings brought hereunder.
10. Indemnification.  To the extent permissible under the applicable law, neither CURIOSITY ZONE nor its successors, legal representatives and assigns, or their respective officers, agents or employees, shall be liable for any loss, damage, injury or other casualty of whatsoever kind, or by whomsoever caused (irrespective of negligence or fault, whether sole, concurrent, active, passive, comparative, strict, contractual or vicarious of CURIOSITY ZONE) (collectively, “Damages”), to the person or property of anyone, including Licensee or any of its affiliates, employees, agents or customers, relating in any way to Licensee’s or its affiliates’, employees’, agents’ or customers’ use of the Curriculum or advertisement, sale or provision of goods and services in relation to the Licensed Mark.  Licensee agrees for itself and its affiliates, employees, agents, customers, successors and assigns, to indemnify and hold harmless CURIOSITY ZONE, its successors, legal representatives, assigns and licensees, and their respective officers, agents and employees, from and against all claims, counterclaims, demands, liabilities, suits, actions, judgments, losses, costs and expenses (including all reasonable expenses and attorneys’ fees, in connection therewith) for any Damages arising from: (i) Licensee’s use of the Curriculum; (ii) Licensee’s manufacture, distribution, advertisement, marketing, promotion, sale or provision of goods and services in relation to the Licensed Mark; and/or (iii) any breach by Licensee of the Agreement.
11. Miscellaneous. 
a. No Relationship Created.  The relationship of the Parties is that of independent contractors and nothing contained in this Agreement shall be deemed or construed to create any partnership, joint venture or franchise relationship between CURIOSITY ZONE and Licensee, nor shall the execution, completion and implementation of this Agreement confer on either Party any power to bind or impose any obligations on the other Party or any third parties or to pledge the credit of the other Party.  
b. Binding Effect.  This Agreement shall be deemed to inure to the benefit of the Parties and bind the Parties hereto and their respective permitted successors and assigns. 
c. Governing Law; Venue.  This Agreement shall be governed and construed in accordance with the laws of the State of Virginia, without regard to its principles of conflicts of laws.  The parties stipulate to the sole and exclusive venue and jurisdiction in courts in the State of Virginia, County of Loudoun.  The prevailing party in any litigation or other proceeding between the parties pursuant to this Agreement shall be entitled to an award of its attorneys’ fees and court costs, in addition to any other relief to which it may be entitled.  
d. Specific Performance.  The Parties agree that irreparable damage would occur in the event that the provisions of this Agreement were not performed in accordance with their specific terms.  Accordingly, it is hereby agreed that the Parties shall be entitled to an injunction or injunctions to enforce specifically the terms and provisions hereof in any court of the United States or any state having jurisdiction, this being in addition to any other remedy to which they are entitled at law or in equity.
f. Severability. Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Agreement in any other jurisdiction.  If any provision of this Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable.  The Parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions, the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions. 
g. Waiver.  The failure of a Party at any time or times to demand strict performance by another Party of any of the terms, covenants or conditions set forth herein shall not be construed as a continuing waiver or relinquishment thereof and each Party may at any time demand strict and complete performance by the other of said terms, covenants and conditions.  Any waiver of such rights must be set forth in writing.
h. Force Majeure. Neither Party shall be deemed in default or otherwise liable hereunder due to its inability to perform  by reason of any fire, earthquake, flood, epidemic, accident, explosion, casualty, strike, lockout, labor controversy, riot, civil disturbance, act of public enemy, embargo, war, act of God, or any municipal, county, state, national or international ordinance or law or any executive, administrative, judicial or similar order (which order is not the result of any act or omission to act which would constitute a default under this Agreement), or any failure or delay of any transportation, power, or other essential thing required, or similar causes beyond the Party’s control.  In such case, the Party affected by the force majeure shall notify the other Party of its inability to perform. Any delay in performance shall be no greater than the event of force majeure causing the delay.
i. Interpretation.  The Parties have participated jointly in the negotiation and drafting of this Agreement.  This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting or causing any instrument to be drafted. 
j. Notices.  All notices, requests or other communications required or given in connection with this Agreement shall be in writing and shall be deemed given or made on the date hand-delivered by one Party to the other or the date mailed by registered, certified or express mail by the Party giving the same to the other Party at the address set forth above, or such other addresses as shall have been given by written notice. 
k. Counterparts; Electronic Transmission.  This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which shall be deemed one and the same instrument.  The Parties agree that electronic signatures shall suffice to bind the signing Party as if an original signature had been delivered.
l. Headings.  The headings appearing in this Agreement are inserted only as a matter of convenience and for reference only and in no way define, limit or describe the scope and intent of this Agreement or any of the provisions hereof. In the event of a conflict between the headings and the content of a section, the content of the section will control.
m. Entire Agreement.  This Agreement and the Schedules attached hereto and incorporated by reference constitute the entire agreement between the Parties related to its subject matter and supersede all prior agreements and understandings between the Parties related to its subject matter. No provision of this Agreement may be modified, amended or waived except by a written agreement between the Parties entered into after the date of this Agreement’s execution.  
n. Survival.  The Parties agree that the following Sections of this Agreement shall survive termination of this Agreement:  1, 2, 5, 6, 7, 8, 9, 10, 11.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the Effective Date of this Agreement.