Back Pocket Physical Kit License Agreement (Pilot)
Last Updated: August 2023
1. Acceptance of the Agreement
a.
This Back Pocket Physical Kit License Agreement (Pilot) (“Agreement”) is entered into by and between Shaney A. LLC, a Wisconsin limited liability company (“Back Pocket”, “our”, “we”, or “us”) and the person or entity identified on the online order form on Back Pocket’s website (“Licensee”, “you”, or “your”), and governs your use of the content and materials contained in the Back Pocket Physical Kit (the “Kit”) ordered by you.
b.
This Back Pocket Physical Kit License Agreement (Pilot) (“Agreement”) is entered into by and between Shaney A. LLC, a Wisconsin limited liability company (“Back Pocket”, “our”, “we”, or “us”) and the person or entity identified on the online order form on Back Pocket’s website (“Licensee”, “you”, or “your”), and governs your use of the content and materials contained in the Back Pocket Physical Kit (the “Kit”) ordered by you.
2. Fees, License; Restrictions; Intellectual Property
a.
In consideration of the licenses granted hereunder, Licensee shall pay Back Pocket the fees set forth in the applicable order form.
b.
Subject to the terms and conditions of this Agreement, solely during the Term (defined below in Section 3), Back Pocket grants to Licensee a limited, non-exclusive, non-sublicensable, non-transferable license to: (i) use, perform, and display the Kit solely for internal use by the number of authorized users or teachers of Licensee as set forth in the order form (“Authorized Users”) for the number of students set forth in the order form (“Students”); and (ii) reproduce and distribute copies of the student-facing “Master Copy Worksheets” in the Kit (“Student Worksheets”) solely to Students for such Students’ personal use.
c.
Licensee shall not: (i) display, perform, distribute, or otherwise share or make available in any manner any portion of the Kit to, for, or with any person or entity who is not an Authorized User or Student; (ii) except as expressly set forth in Section 2(b), reproduce or distribute in any manner the materials set forth in the Kit, without express written permission from Back Pocket; and (iii) obscure, alter, or remove any copyright and trademark notices or other legends, attributions, or notices appearing on any materials in the Kit and will ensure that any authorized copies of Student Worksheets contain the same copyright and trademark notices and other legends, attributions or notices as they appear in the Kit or as otherwise may be instructed by Back Pocket from time to time.
d.
No other rights or licenses are hereby granted to the Licensee. Back Pocket reserves all rights not expressly granted to Licensee under these Terms. Neither these Terms nor the licenses granted hereunder convey any ownership right in the Kit, and all copies thereof, including, without limitation, all copyrights, patents, patent rights, trademarks, trade secrets, service marks, designs, logos, and other intellectual property or proprietary rights therein (collectively, “Intellectual Property Rights”). Except for the express licenses granted these Terms, all right, title and interest in and to the Kit, and all copies thereof, including, without limitation, all Intellectual Property Rights therein, are and will remain the sole and exclusive property of Back Pocket. The Kit is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties.
e.
If you suggest or recommend changes to the Kit, including without limitation, new content or features relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), we are free to use such Feedback. You hereby assign to us all right, title, and interest in, and we are free to use, without any attribution or compensation to you or any third party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever.
3. Term and Termination
This Agreement shall start from the date that you agree to this Agreement until the end of the school year set forth in the order form (“Term”). In the event of a breach of this Agreement by Licensee, Back Pocket may terminate this Agreement upon thirty (30) days’ notice if the breach is not cured within such thirty-day period. Upon expiration or termination for any reason, Licensee shall cease all use of the Kit (including, without limitation, use in any classroom or teaching setting or with any students) and, if requested by Back Pocket, destroy all copies of such Kit.
4. Limited Warranty; Disclaimer of Warranties
a.
Back Pocket warrants to Licensee that as of the date of delivery, the materials on which the Kit is printed on shall be free from substantive defects. Back Pocket’s entire liability and Licensee’s exclusive remedy for any breach of limited warranty set forth above shall be repair or replacement of such defective materials or, at Back Pocket’s option, a refund of the fee paid for the defective portion of the Kit upon the return thereof by Licensee.
b.
EXCEPT AS SET FORTH IN SECTION 4(A) ABOVE, THE KIT IS PROVIDED “AS IS,” AND BACK POCKET MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. LICENSEE ACKNOWLEDGES THAT THE KIT IS NOT INTENDED TO BE USED AS MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT OF ANY MEDICAL CONDITION. BACK POCKET MAKES NO WARRANTY OF ANY KIND THAT THE KIT OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON'S REQUIREMENTS OR ACHIEVE ANY INTENDED RESULT. ANY THIRD-PARTY WEBSITES OR DOCUMENTS LINKED FROM THE KIT ARE SOLELY FOR CONVENIENCE ONLY, AND ACCESSING SUCH WEBSITES OR DOCUMENTS ARE ENTIRELY AT YOUR OWN RISK AND SUBJECT TO THE TERMS AND CONDITIONS OF USE FOR SUCH WEBSITES OR DOCUMENTS.
5. Indemnification
Licensee shall indemnify, hold harmless, and defend Back Pocket from and against any and all losses, damages, liabilities, costs (including reasonable attorneys' fees) resulting from any third-party claim, suit, action, or proceeding relating to (a) Licensee’s (and Authorized Users’) breach of this Agreement, or (b) Licensee’s (or Authorized Users’) acts or omissions in using the Kit (including, without limitation, the results from using the Kit). Licensee may not enter into any third-party agreement which would, in any manner whatsoever, affect Back Pocket’s rights, constitute an admission of fault by Back Pocket, or bind Bock Pocket in any manner, without Back Pocket’s prior written consent.
6. Limitation of Liability
a.
IN NO EVENT SHALL BACK POCKET BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY KIND, REGARDLESS OF THE FORM OF ACTION (WHETHER IN TORT, CONTRACT, WARRANTY, OR ANY OTHER THEORY OF LAW) ARISING OUT OF OR RELATED TO THE KIT OR THIS AGREEMENT AND EVEN IF FORESEEABLE OR KNOWN IN ADVANCE.
b.
IN NO EVENT SHALL BACK POCKET’S TOTAL LIABILITY TO LICENSEE FOR ANY AND ALL CLAIMS RELATING TO OR ARISING UNDER THIS AGREEMENT OR THE KIT, EXCEED THE FEES ACTUALLY PAID BY LICENSEE TO BACKPOCKET FOR THE KIT.
7. Beta Online Platform Access for Kit Materials.
During the Term, the Authorized Users have the option to also access Back Pocket’s beta online website platform (“Platform”), which contains online training materials and digital copies of the materials in the Kit. Such access is governed by and subject to Licensee and applicable Authorized Users agreeing to the Beta Platform Terms of Use found at https://www.backpockettools.com/copy-of-back-pocket-physical-kit-lice. For avoidance of doubt, access to the Platform may be terminated at any time by Back Pocket, without liability to Licensee.
8. Miscellaneous
This Agreement will be interpreted, construed, and enforced in accordance with the laws of the State of Wisconsin, without reference to its choice of law rules. Each party hereby irrevocably consents to the jurisdiction of the courts of the State of Wisconsin with venue in the state or federal courts in Dane County. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction, and such invalid, illegal, or unenforceable term or provision will be enforced to the maximum extent permissible under applicable law. No failure of either party to exercise or enforce any of its rights under this Agreement shall act as a waiver of subsequent breaches and the waiver of any breach shall not act as a waiver of subsequent breaches. Licensee shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Back Pocket. Any purported assignment or delegation in violation of this Section is null and void. All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and addressed to the parties at the addresses set forth in the order form. This Agreement and your order form constitute the sole and entire agreement between Back Pocket and Licensee regarding the Kit. This Section 8 and Sections 2(d), 2(e), 4, 5, and 6 survive any termination of this Agreement.