Last updated: August 20, 2024
This Technology License and Services Agreement, effective as of this date (the “Effective Date”), is between Guitar Hospital, Inc. (a/k/a Galloup Guitars), a Michigan corporation with offices at 10840 Northland Drive Big Rapids, Michigan 49307 (“Galloup”), and this registered user (Company) as specified by computer identification information.
WHEREAS, Galloup is the owner of certain Technology and Trademarks (each as defined below); and
WHEREAS, Company wishes to use the Technology and Trademarks in connection with its design, manufacture and marketing of its guitar lines (the “Purpose”), and Galloup is willing to grant to Company a license to use the Technology and Trademarks on the terms and conditions set out in this Agreement.
NOW, THEREFORE, in consideration of the promises and premises set forth herein, and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
- Definitions.
- “Company Account” means the Company’s customer account to access the Technology and use the Trademarks for the Purpose under this Agreement, which shall be established using a single email address owned or otherwise uniquely associated with Company, in exchange for a Subscription Fee (defined below) to be paid to Galloup by Company according to the terms herein.
- “Confidential Information” means all information disclosed to Company by or on behalf of Galloup (whether disclosed before or after the Effective Date), written or unwritten, in any form whatsoever. Confidential Information shall not include information which: (i) is, at the time of disclosure, generally known to the trade or public; (ii) becomes at a later date, generally known to the trade or public through no fault of Company, and then only after said later date;
(iii) is lawfully possessed by Company, as evidenced by written or other tangible evidence, before receipt from Galloup; (iv) is disclosed to Company in good faith by a third party who has an independent right to such information without an obligation of confidentiality to Galloup or any other third party; or (v) was developed independently by Company without use of any Confidential Information.
- “Copyright(s)” means Galloup’s copyright(s) in the Technology and Documentation as ascribed in Sections 101 et seq. of the United States Copyright Act, as amended from time to time, and International Treaty provisions, in effect from time to time, relating to the protection of copyrights worldwide.
- “Designated Computer” means up to two (2) computers owned or leased by Company and located at Company’s guitar manufacturing premises.
- “Documentation” means user manuals, technical manuals and any other materials provided by Galloup, in printed, electronic or other form, that describe the installation, operation, functionality, use or technical specifications of the Technology.
- “Know-How” means technical information, directions, test protocols, procedures, processes, methods, formulae, techniques and other skills and knowledge owned or controlled by Galloup as of the Effective Date and relating to the Technology.
- “Licensed Product(s)” means guitars and other products, and any components thereof, that are designed, manufactured, modified or repaired using the Technology, and any product that features one or more of the Trademarks.
- “Subscription Fee” means a monthly fee to be paid by Company to Galloup in exchange for accessing the Technology and using the Trademarks for the Purpose according to the terms set forth herein.
- “Technology” means Galloup’s Acousonix™ Sonic Calculator™ instrument acoustics software tool, and all data and information contained therein, as in effect on the Effective Date and/or updated by Galloup after the Effective Date.
- “Trademark(s)” means Galloup’s rights in the marks “Galloup Guitars”, “Galloup School of Lutherie”, “Acousonix”, “Sonic Calculator” and the trade names “Galloup”, “Guitar Hospital” and “Bryan Galloup” and any trademarks, trade names, service marks, trade dress, domain names or logos with respect to such trademarks or trade names.
- “Usage Clicks” means the number of times the Company uses the Technology for the Purpose by clicking the “Calculate” icon used in the Acousonix™ Sonic Calculator™ System to generate an Acousonix Rating using one or more data inputs from the Company.
- Licenses.
- Technology License. Subject to the terms of this Agreement, Galloup hereby grants to Company a non-exclusive, non-transferable, non-sublicensable right and license (the “Technology License”) under the Copyrights (i) to access the Technology and the Documentation on the Designated Computer(s) and (ii) to use the Technology solely in accordance with the Documentation, solely for the Purpose, solely on the Designated Computer(s) at the physical location thereof and not via any remote access or other network. Company may download or otherwise make copies of the Documentation and use such Documentation solely in support of its licensed use of the Technology hereunder.
- Trademark License. Subject to the terms and conditions of this Agreement, Galloup hereby grants to Company the non-transferable, non-exclusive, royalty-free right, license and privilege to use the Trademarks, including any registrations thereof, in connection with Company’s advertising, marketing, promotion, use, sale and distribution of the Licensed Products during the Term, unless sooner terminated in accordance with Section 3.4 (the “Trademark License”).
- Subscription Fee. In consideration for Technology License and Trademark License granted to Company by Galloup in Section 2.1 and 2.2, respectively, Company agrees to pay Galloup one of the following Subscription Fees for the respective Usage Clicks:
(a) Basic Subscription Fee: $12.99 per month to use the Technology and Trademarks for the Purpose for a usage rate of up to 1,000 Usage Clicks per year, as calculated from the Effective Date;
(b) Pro Subscription Fee: $24.99 per month to use the Technology and Trademarks for the Purpose for a usage rate of up to 2,500 Usage Clicks per year, as calculated from (i) the Effective Date (if Company opts for the Pro Subscription Fee at the Effective Date) or (ii) the date upon which the Usage Clicks exceeds 1,000 within one (1) year from the Effective Date (if Company opts for Standard Subscription Fee at the Effective Date);
(c) Pro Plus Subscription Fee: $250 per month to use the Technology and Trademarks for the Purpose for an unlimited number of Usage Clicks per year, as calculated from (i) the Effective Date (if Company opts for the Pro Plus Subscription Fee at the Effective Date) or (ii) the date upon which the Usage Clicks exceeds 2,500 within one (1) year from the Effective Date (if Company opts for Pro Subscription Fee at the Effective Date).
(d) Galloup reserves the right to adjust subscription fees or terms to the Company (i) for any reason Galloup deems necessary (ii) to be applied 30 days after notification on the acousonix.com website.
- No Implied Licenses. Nothing in this Agreement shall be construed to confer any rights upon Company by implication, estoppel or otherwise to any copyrights, trademarks, technologies, patent rights or other intellectual property rights of Galloup, or of any other entity, except as explicitly granted herein.
- No Reverse Engineering. Company shall not be permitted to, and shall not permit any person to: (a) disassemble, reverse engineer, or otherwise attempt to analyze the Technology or any Confidential Information relating thereto; (b) edit, modify, excerpt or otherwise change the Technology or the Documentation; (c) remove any product identification, copyright or other notices from any component of the Technology or Documentation; or (d) provide, lease, lend, or otherwise use or allow others to use or have access to the Technology or any portion thereof for the benefit of any third party. All rights, titles and interests not specifically and expressly granted by Galloup hereunder are hereby reserved.
- No Account Sharing. It is strictly forbidden for Company to share or otherwise permit, grant or allow any third-party to access the Company Account for any purpose whatsoever. Any violation of this Section 2.6 by Company, whether intentionally or through Company negligence, will be deemed a material breach of this Agreement and result in immediate account suspension and termination by Galloup, with a Sharing Violation Fee to be paid to Galloup by Company in the amount of $50 per unauthorized Usage Click within five (5) days of a Notice of Termination sent to Company by Galloup specifying the amount of the Sharing Violation Fee as determined forensically by Galloup.
- No Carry Over of Unused Usage Clicks. Any Usage Clicks that remain unused at the end of an anniversary of the Effective Date for the Standard Subscription Fee level (1,000) and Pro Subscription Fee level (2,500) shall not carry over to the following subscription year.
- Company Account Suspension. Company has the ability to suspend its Company Account at any time, which will pause any Subscription Fees due and also pause access to all services associated with the Company Account (e.g. access to the online database and online community). Company may reactivate its Company Account at any time, with the resumption of the applicable Subscription Fee, however any unused Usage Clicks will nonetheless expire at the end of each anniversary of the Effective Date.
- Intellectual Property Rights and Use Restrictions.
- Ownership. Company acknowledges that Galloup owns and shall retain all right, title and interest in and to (i) the Technology and Documentation and all Copyrights therein, as well as any derivative works (as such term is defined in United States Copyright Act of 1976, as amended from time to time) or intellectual property rights of or to the Copyrights, (ii) all Know- How and all improvements, modifications or developments thereof and all inventions arising therefrom, and (iii) all Trademarks, including the goodwill associated therewith (collectively, the “Galloup IP”). Company and hereby assigns, and shall cause its Affiliates and each of its and its Affiliates’ employees, consultants, agents and contractors to assign, to Galloup all of its or their right, title and interest in and to all intellectual property rights arising or derived from or relating to the Galloup IP and shall cooperate with Galloup to execute and deliver any and all documents that Galloup deems reasonably necessary to perfect and enforce Galloup’s rights hereunder.
- Prosecution and Enforcement. Galloup shall have the sole and exclusive right, at its sole expense, to prepare, file, prosecute or maintain any documents or rights with respect to the Copyrights, Trademarks, Know-How, and any derivative works thereof, and any intellectual property rights thereto, and to enforce or prosecute infringement of such rights. Company shall have no right to any recovery from any such enforcement or prosecution of infringement. Company shall cooperate in any action under this section, provided that Galloup reimburses Company for any costs and expenses incurred by Company in connection with providing such assistance.
- Trademark Protection. Company acknowledges that the Trademarks have established prestige and goodwill and are well recognized in the minds of the public and that it is of great importance to Galloup that the high standards and reputation that has been established be maintained in the use of the Trademarks and the Technology. Company shall keep to the established prestige and goodwill of Galloup in selecting all of Company’s advertising and business materials bearing the Trademarks. Placement, size and frequency of use of the Trademarks by Company in connection with Licensed Products or otherwise will be determined by mutual agreement of the parties on a product-by-product basis. Any and all goodwill arising from use of any Trademark by Company shall inure to the benefit of Galloup. Company shall, in all material respects, use the Trademarks in a manner reasonably calculated to prevent the Trademarks from becoming generic. Other than as expressly permitted herein, Company shall not use, authorize the use of, register or attempt to register any trademark, service mark or other designation confusingly similar to any Trademarks. Company shall not alter the Trademarks and shall not use the Trademarks in combination with any other marks, logos or trade names other than Company’s own established trademark, except with the prior written consent of Galloup.
- Termination of Trademark License: Company shall maintain the high quality and standards of the Licensed Products sold in connection with the Trademarks and shall safeguard the established prestige and goodwill of the Trademarks, at the same level of prestige and goodwill as Galloup. Galloup may, in its sole discretion, terminate the Trademark License unilaterally, without payment of any penalty or other liability. On receipt of notice of such termination, all rights to use the Trademarks shall terminate automatically, and Company shall immediately cease using the Trademarks, and shall cause its employees, contractors, representatives, agents and affiliates to cease such use. Galloup may audit Company’s Licensed Products during regular business hours and upon reasonable notice, in order to assess compliance with the Trademark protections in this Agreement, and Company shall cooperate with such audit, including without limitation by providing copies of written materials relevant to its use of the Trademarks.
- Warranties; Limitation of Liability.
- Limited Warranties. Galloup warrants that, during the Term, (i) the Technology will substantially contain the functionality described in the Documentation, and when operated in accordance with the Documentation, will substantially perform in accordance therewith, and (ii) the Services will be provided in a good and workmanlike manner, consistent with industry standards. The foregoing warranties will not apply and will become null and void if Company breaches any material provision of this Agreement, or if Company or any other person provided access to the Technology by Company, whether or not in violation of this Agreement:
- installs or uses the Technology on or in connection with any hardware or software not specified in the Documentation or expressly authorized by Galloup in writing;
- modifies or damages the Technology, or the media on which it is provided, including abnormal physical or electrical stress; or
- misuses the Technology, including any use of the Technology other than as specified in the Documentation, or other than for the Purposes, unless expressly authorized by Galloup in writing.
- Remedy. If, during the Term, the Technology fails to perform substantially in accordance with the Documentation, and such failure is not excluded from warranty pursuant to Sections 4.1(a)–4.1(c), Galloup will, subject to Company’s promptly notifying Galloup in writing of such failure, repair or replace such element of the Technology, provided that Company provides Galloup with all information Galloup reasonably requests to resolve the reported failure, including sufficient information to enable the Galloup to recreate such failure. The remedies set forth in Section 4.2 are Company’s sole remedies and Galloup’s sole liability under the limited warranties set forth in Section 4.1.
- Limited Warranties. Galloup warrants that, during the Term, (i) the Technology will substantially contain the functionality described in the Documentation, and when operated in accordance with the Documentation, will substantially perform in accordance therewith, and (ii) the Services will be provided in a good and workmanlike manner, consistent with industry standards. The foregoing warranties will not apply and will become null and void if Company breaches any material provision of this Agreement, or if Company or any other person provided access to the Technology by Company, whether or not in violation of this Agreement:
- Limitation of Liability. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN SECTION 4.1, THE TECHNOLOGY, TRADEMARKS AND SERVICES ARE DELIVERED “AS IS,” AND GALLOUP MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND CONCERNING THE TECHNOLOGY, THE COPYRIGHTS THE TRADEMARKS OR THE SERVICES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION,
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR THE ABSENCE OF LATENT OR OTHER DEFECTS, WHETHER OR NOT DISCOVERABLE. GALLOUP EXTENDS NO WARRANTIES OF ANY KIND AS TO THE TECHNOLOGY’S CONFORMITY WITH WHATEVER USER MANUALS OR OTHER LITERATURE MAY BE ISSUED FROM TIME TO TIME. IN NO EVENT SHALL GALLOUP OR ANY INDEMNITEE BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING ECONOMIC DAMAGES OR INJURY TO PROPERTY AND LOST PROFITS, REGARDLESS OF WHETHER GALLOUP SHALL BE ADVISED, SHALL HAVE OTHER REASON TO KNOW, OR IN FACT SHALL KNOW OF THE POSSIBILITY OF THE FOREGOING.
- Indemnity.
- Indemnification by Company. Company shall indemnify, defend, and hold harmless Galloup and its Affiliates, and their respective employees, contractors, agents, successors and assigns (the “Galloup Indemnitees”), against any liability, damage, loss, or expense (including reasonable attorneys’ fees and expenses) (“Losses”) incurred by or imposed upon any of the Galloup Indemnitees in connection with any claims, suits, actions, demands or judgments (“Claims”) arising out of any theory of liability (including without limitation actions in the form of tort, warranty, or strict liability and regardless of whether such action has any factual basis), concerning (a) any product, process, or service that is made, used, sold, or licensed pursuant to any right or license granted under this Agreement, (b) any breach by Company or its employees, directors, officers or agents (“Representatives”) of its obligations under this Agreement; (c) negligence or willful misconduct of Company or its Representatives; (d) any failure by Company or its Representatives to comply with applicable laws and regulations. The indemnification provided under this Section 6.1 shall not be available for Losses that arise out of Claims for which Galloup is obligated to indemnify the Company Indemnitees in Section 6.2.
- Indemnification by Galloup. Galloup shall indemnify, defend, and hold harmless Company and its Affiliates, and their respective employees, contractors, agents, successors and assigns (the “Company Indemnitees”), against any Losses incurred by or imposed upon any of the Galloup Indemnitees resulting from third party Claims that the Technology infringes the intellectual property rights of any third party (“Third Party IP”). Company’s remedy in the event that any element of the Technology or the use thereof in compliance with the Documentation actually infringes any Third Party IP shall be that Galloup shall, within thirty (30) days after Company’s request, either (a) modify the infringing element of the Technology such that it is no longer infringing, or (b) obtain and pay for all necessary licenses from third parties to permit Company to continue use of the Technology. The indemnification provided under this Section
6.2 shall not be available for Losses that arise out of Claims for which Company is obligated to indemnify the Galloup Indemnitees in Section 6.1, or arising from any of the events described in Sections 4.1(a)–(c).
- Confidential Information. Company acknowledges and agrees that all Confidential Information is confidential to and the sole and exclusive property of Galloup. Company will hold the Confidential Information in strictest confidence and will not use any Confidential Information except as expressly permitted by this Agreement. Company shall not disclose Confidential Information to any third party, except as authorized in writing by Galloup, except to Company’s Representatives on a need-to-know basis and subject to a written agreement by such Representative regarding its obligation to maintain the confidential status of such Confidential Information on terms at least as restrictive as those contained herein. Company shall be responsible for any breach of this Section 7 by such party or unauthorized use of Confidential Information by its Representatives. In the event that Company or any of its Representatives is requested pursuant to, or required by, applicable law, regulation or legal process to disclose any Confidential Information, if legally permissible, Company will promptly notify Galloup in writing of such request or requirement and the documents or Confidential Information requested, so that Galloup may seek a protective order or other appropriate remedy or, in its sole discretion, waive compliance with the terms of this Agreement. In the event that no such protective order or other remedy is obtained, or that Galloup does not waive compliance with the terms of this Agreement, Company will furnish only that portion of the Confidential Information which it is reasonably advised by its counsel is legally required and will exercise all reasonable efforts to obtain reliable assurance that confidential treatment will be accorded the Confidential Information to the extent possible.
- Non Solicitation. Subject to written waivers that may be provided by Galloup upon request in Galloup’s discretion, Company agrees that during the Term and for a period of two years after the termination of this Agreement, Company will not (i) hire, solicit, encourage, or take any other action which is intended to induce any employee of, or consultant to, Galloup (or any other person who may have been employed by, or may have been a consultant to, Galloup during the Term) to terminate his or her employment or relationship with Galloup in order to become employed by or otherwise perform services for Company or any third person or (ii) endeavor to entice away from Galloup or otherwise interfere with the relationship of Galloup with any person or entity who is, or was within the then-most recent twelve (12) month period, a client or customer of Galloup.
- Term and Termination.
- Term. The term of this Agreement shall be one (1) year from the Effective Date, unless earlier terminated by Galloup (the “Term”). The Trademark License shall expire automatically upon expiration of the Term, unless earlier terminated in accordance with Section
3.4. The Technology License shall survive expiration of the Term, except as set forth in Section 9.1(a). Galloup reserves the right to terminate this agreement ay anytime for any reason Galloup deems to be necessary.
- Survival of Technology License. In the event that Galloup terminates this Agreement for material breach by Company, all licenses granted to Company hereunder shall automatically expire on the date of notice of termination, without further action by Galloup. Except as set forth in the preceding sentence, the Technology License shall survive termination of this Agreement.
- Return of Confidential Information. Upon termination of this Agreement or at Galloup’s request, Company will promptly, and in any event, within ten (10) days after such termination or request, return to Galloup all Confidential Information and copies thereof, including any Galloup copyrighted materials, and will destroy all notes, abstracts or other documents of Galloup containing Confidential Information.
- Survival. The following sections shall survive termination or expiration of this Agreement: Sections 2.3, 2.5, 3, 5, 6, 7, 8, 9.1(a), 10, 11 and 13.
- Governing Law. This Agreement shall be governed by the laws of the State of Michigan, without regard to its principles of conflicts of laws.
- Assignment. This Agreement may not be assigned by Company without the prior written consent of Galloup.
- Injunctive Relief. Because of the unique nature of the Copyrights, Trademarks and Confidential Information, the parties understand and agree that Galloup will suffer irreparable harm in the event that Company fails to comply with any of its obligations hereunder and that monetary damages will be inadequate to compensate Galloup for such breach. Accordingly, Company agrees that Galloup will, in addition to any other remedies available to it at law or equity, be entitled to injunctive relief to enforce the terms hereof, without the necessity of posting any bond or undertaking, and will be entitled to recover all costs and expenses, including attorneys’ fees, incurred in any legal action arising under this Agreement.
- Miscellaneous. Unless expressly stated otherwise herein, any notice, demand, request or delivery required or permitted to be given by Galloup or Company pursuant to the terms of this Agreement shall be in writing and shall be deemed given (a) when delivered personally or (b) on the next business day after timely delivery to an overnight courier, addressed to the party at such party’s address as set forth above. This Agreement shall be binding on the successors and assigns of each party. Any provision of this Agreement which is determined by a court of competent jurisdiction to be void or unenforceable shall be severable from all other provisions of this Agreement and shall not be deemed to affect or impair the validity of any such other provisions of this Agreement. In the event of litigation relating to this Agreement, the prevailing party shall be entitled to recover from the other party its costs and expenses (including, without limitation, legal fees and expenses) incurred in connection with such litigation. This Agreement contains the full and complete understanding of the parties with respect to the subject matter hereof and supersedes all prior representations and understandings, whether oral or written. This Agreement may not be modified in any manner except by written amendments executed by each of the parties hereto. The failure or delay of either party to assert a right hereunder or to insist upon compliance with any term or condition of this Agreement in any specific instance shall not constitute a waiver of that right or excuse a similar subsequent failure to perform or breach of any such term or condition. No provision of this Agreement shall be deemed to have been waived except by a written instrument executed by the waiving party. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement, and by electronic (PDF) or facsimile delivery thereof.