PERFORMANCE LICENSE AGREEMENT
 

THIS IS AN AGREEMENT (THE “AGREEMENT”) BETWEEN _____________________ of _____________________________________ [address] (“YOU” OR “THE LICENSEE”) AND Mooreni LLC, an Idaho limited liability Company with a principal place of business at 13250 North Dechambeau Way, Boise, Idaho 83714 (“LICENSOR”).  THIS AGREEMENT IS EFFECTIVE AS OF _______________, 2022 (“EFFECTIVE DATE” the date of Purchase).

 

In consideration of the mutual covenants contained herein and for other good and valuable consideration, the parties hereto agree as follows:  
 

SECTION 1.         LICENSE.

          1.1.      License Grant.  Licensor grants to Licensee and Licensee accepts from Licensor for the duration of the term of this Agreement a perpetual, non-royalty-bearing, non-exclusive, revocable, non-sublicensable and non-transferable license under Licensor’s trade secrets (the “License”) to perform Mentis Oculo 1919 [also known as the Mind's Eye Box Deluxe] (the “Illusion”), specifically excluding the Exposure of the illusion (the “Licensed Use”).  All other rights are expressly reserved to Licensor.

          1.2.     Exposure. Exposure is defined as revealing the secrets, inner workings, mechanics, or methods of performing an illusion, to any other person or entity, by any means, including but not limited to, in-person Exposure or Exposure through video.

          1.3.     Title.  Subject only to the License, Licensor shall retain all right, title and interest in and to the Illusion and all derivative works.

          1.4.     Restrictions.  Except as otherwise expressly permitted herein, Licensee and its principals, agents and employees shall not (and shall not allow any third party) to: (i) remove any product identification, copyright, trademark or other notices (including digital watermarks or other digital rights management technologies); (ii) provide, lease, lend, rent, or otherwise use or allow others to use the Illusion to or for the benefit of third parties, including but not limited to entities with which the Licensee or the principals of the Licensee are affiliated in any way; or (iii) modify, or, except to the extent expressly authorized herein, incorporate into or with other music or media or create a derivative work of any part of the Illusion.  

 

SECTION 2.         TERM AND TERMINATION.

          2.1.     Term.  This Agreement shall commence on the Effective Date, and shall continue until terminated as provided herein.

          2.2.     Termination.  Licensor may terminate this Agreement (a) for cause if Licensee fails to cure any material breach of this Agreement within thirty (30) days after written notice of such breach or (b) immediately in the case of a breach of Sections 1.1 or 1.4.  Sections 1.1, 1.4, 3, 4, and 5 shall survive termination. 

 

SECTION 3.         INDEMNIFCATION

Products sold under this Agreement are inherently associated with activities which could lead to death or serious injury.  By purchasing a product offered, sold, or made available through Mooreni LLC, the Licensee explicitly releases Licensor and its business partners from all liability and waives all legal rights whatsoever related to use of the product. This shall be the case no matter how or where the item was used.

By purchasing a product from Licensor, Licensee agrees to:

          3.1.     Assume ANY and ALL RISKS of INJURY OR DEATH resulting from use of the product,

          3.2.     WAIVE, RELEASE, and NOT SUE, MAKE ANY CLAIMS OR FILE ANY ACTIONS against Licensor or any other owner or operator of businesses offering products through Mooreni LLC, or any one of the aforementioned entities and each of their insurance carriers, subsidiaries, affiliates, officers, directors, shareholders, members, representatives, assignees, employees, volunteers and agents, as well as any manufacturers and distributors (hereinafter the “Indemnified Parties” collectively, the “Indemnified Party” individually) that are based on, arise or result from, in whole or in part, use of the product, and

3.3INDEMNIFY, DEFEND AND HOLD THE INDEMNIFIED PARTIES HARMLESS, from any and all claims, demands, actions, causes of action, losses or liabilities whatsoever arising from or related to participation in any activity and any loss, damage or injury, including death, that may be sustained by buyer or assignee, or caused to others or their property by buyer or assignee.  Licensee also agrees to pay all costs, including reasonable attorneys’ fees and disbursements, incurred by any Indemnified Party in defending an investigation, claim or suit brought by or on behalf of Licensee or assignee.

 

SECTION 4.        LIMITATION OF LIABILITY.

NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, LICENSOR SHALL NOT BE LIABLE OR OBLIGATED WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY (i) FOR ANY AMOUNTS IN EXCESS IN THE AGGREGATE OF THE FEES PAID TO LICENSOR BY LICENSEE; (ii) FOR ANY SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, FOR ANY LOST PROFITS, COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS); OR (iii) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL.  SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO LICENSEE.

 

SECTION 5.         CONFIDENTIALITY.

          5.1.     Confidential Information. Licensor may disclose to Licensee inventions, trade secrets, and proprietary information concerning the Illusion, including drawings, specifications, computer printouts, memoranda and correspondence, this Agreement and all  Exhibits, either attached or marked as Exhibits and shipped with the product, and/or other technical information which is not in the public domain and which has been reasonably restricted by Licensor as confidential, hereinafter referred to as the “Confidential Information.”  Licensee warrants and agrees that the Confidential Information shall be used solely for the purposes stated in Section 1.1. Licensee expressly acknowledges that its receipt of the Confidential Information does not constitute a sale or an offering for sale of the Confidential Information. Licensor may disclose to the Licensee Confidential Information either orally or in writing (including graphic material). Information that is disclosed in writing without an appropriate letter, proprietary stamp, or legend, or that is disclosed orally, shall constitute Confidential Information if (a) it would be apparent to a reasonable person, familiar with Licensor’s business and the industry in which it operates, that such information is of a confidential or proprietary nature, the maintenance of which is important to Licensor, or if (b) Licensor, within thirty (30) days after such disclosure, advises Licensee that such information is confidential. Furthermore, Licensee shall not make, have made, reverse engineer, use or sell for any purpose any product or other item using, incorporating or derived from any Confidential Information of Licensor without Licensor’s prior written consent. 

          5.2.     Third Party Disclosure. Licensee shall not disclose the Confidential Information of Licensor to any third party; provided, however, that Licensee may disclose the Confidential Information of Licensor to its employees, attorneys, accountants, financial advisors or consultants (collectively, “representatives”) having a bona fide need to know the Confidential Information if such representatives are bound in writing to Licensee by obligations of confidentiality at least as restrictive as the terms set forth herein. In the event Licensee discloses Confidential Information of Licensor to such representatives, Licensee shall be liable for any unauthorized disclosure thereof by such representatives or third parties. Licensee shall exercise the same degree of care it normally uses to protect its own Confidential Information, but in no event less than reasonable care.

          5.3.     Property Rights. Any Confidential Information supplied by Licensor shall remain the property of Licensor, including, but not limited to, derivatives, summaries, notes, and electronics files (extant and archived), and nothing in this Agreement shall restrict Licensor from using, disclosing, or disseminating its own Confidential Information in any way. 

          5.4.     Right to Audit. On Licensor’s written request Licensee shall furnish Licensor with a signed certification certifying that the Illusion is being used pursuant to the terms of this Agreement.

 

SECTION 6.         GENERAL PROVISIONS.

          6.1.     Cumulative Remedies.  The remedies under this Agreement shall be cumulative and not alternative and the election of one remedy for a breach shall not preclude pursuit of other remedies unless as expressly provided in this Agreement.

          6.2.     Governing Law.  This Agreement shall be governed in all respects by the substantive laws of the State of Idaho, United States of America (excluding conflict of laws rules) as applied to agreements entered into and to be performed entirely within the State of Idaho between Idaho residents, without regard to the U.N. Convention on Contracts for the International Sale of Goods.  Any dispute regarding this Agreement shall be subject to the exclusive jurisdiction of and venue within the state or federal courts located in the state of Idaho, and the parties agree to submit to the personal and exclusive jurisdiction and venue of these courts.

          6.3.     Notices.  All notices, statements, and reports required or permitted by this Agreement shall be in writing and deemed to have been effectively given and received: (i) five (5) business days after the date of mailing if sent by registered or certified U.S. mail, postage prepaid, with return receipt requested; (ii) when transmitted if sent by e-mail and a copy of such e-mail is promptly sent by another means specified in this Section 6.3; or (iii) when delivered if delivered personally or sent by express courier service.  Notices shall be addressed as follows:                                                 

                                                                                                                                        

To Licensor:                 Mooreni LLC

                                    Attn: John C. Moore

                                    13250 North Dechambeau Way

                                    Boise, Idaho  83714

                                    moorenimagic@gmail.com

                       

          6.4.     Assignment.  Licensee shall not assign or otherwise transfer any of its rights, obligations or licenses hereunder without the prior written consent of Licensor, including any assignment by operation of law as a result of the merger or acquisition of Licensee, and only upon the original Licensee’s fully divesting itself, himself or herself of all possession of the Illusion and all media and copies thereof.  Subject to the foregoing, the provisions of this Agreement shall apply to and bind the successors and permitted assigns of the parties.  

          6.5.     Relationship. No relationship, such as one of an independent contractors, partners, franchisees or joint venturers, is created between the Parties by this Agreement. No employees, consultants, contractors or agents of one party are employees, consultants, contractors or agents of the other party, nor do they have any authority to bind the other party by contract or otherwise to any obligation, except as expressly set forth herein.  Neither party will represent to the contrary, either expressly, implicitly or otherwise.

          6.6.     Third Party Beneficiaries.  Licensee acknowledges and agrees that there are no third party beneficiaries of this Agreement.

          6.7.     Headings.  The descriptive headings of this Agreement are intended for reference only and shall not affect the construction or interpretation of this Agreement.

          6.8.     Severability.  If any covenant set forth in this Agreement is determined by any court to be unenforceable by reason of its extending for too great a period of time or by reason of its being too extensive in any other respect, such covenant shall be interpreted to extend only for the longest period of time and to otherwise have the broadest application as shall be enforceable.  The invalidity or unenforceability of any particular provision of this Agreement shall not affect the other provisions hereof, which shall continue in full force and effect.

          6.9.     Waiver of Rights.  The failure of either party to insist, in any one or more instances, upon the performance of any of the terms, covenants, or conditions of this Agreement or to exercise any right hereunder, shall not be construed as a waiver or relinquishment of the future performance of any rights, and the obligations of the party with respect to such future performance shall continue in full force and effect.

          6.10.    Entire Agreement; Conflict.  This Agreement, together with all Exhibits hereto, constitutes the complete, final and exclusive statement of the terms of the Agreement among the parties pertaining to the subject matter hereof and supersedes all prior agreements, understandings, negotiations and discussions of the parties.  No modification or rescission of this Agreement shall be binding unless executed in writing by the party to be bound thereby.  In the event of any conflict between the terms and conditions of this Agreement and an Exhibit, the terms and conditions of the Exhibit shall prevail.

          6.11.    Force Majeure.  Either party shall be excused from any delay or failure in performance hereunder, except the payment of moneys by Licensee, caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to, acts of God, earthquake, floods, lightning, labor disputes and strikes, other labor or industrial disturbances, riots, war, acts of the public enemy, insurrections, embargoes, blockages, regulations or orders of any government, agency or subdivision thereof, shortages of materials, rationing, utility or communication failures, casualty, novelty of product manufacture or other unanticipated product development problems, and governmental requirements. The obligations and rights of the party so excused shall be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay, provided that such party shall give notice of such force majeure event to the other party as soon as reasonably possible.

          6.12.    Presumptions/Review.  In construing the terms of this Agreement, no presumption shall operate in either party’s favor as a result of that party’s counsel’s role in drafting the terms or provisions hereof.  Further, it is agreed that Licensee has had a full and fair opportunity to review the terms herein and to consult with legal counsel before subscribing.  Accordingly, because Licensee has had ample review opportunities and because Licensee is and was free to elect not to accept these terms, Licensee acknowledges that this is not a contract of adhesion. 

          6.13.    Authority.  Each party represents that all corporate action necessary for the authorization, acceptance and delivery of this Agreement by such party and the performance of its obligations hereunder has been taken.

          6.14.    Legal Expenses.  The prevailing party in any legal action brought by one party against the other and arising out of this Agreement will be entitled, in addition to any other rights and remedies it may have, to reimbursement for its expenses, including court costs and reasonable attorneys' fees.

          6.15.    Taxes.  Any taxes on income to Licensee generated through use of the Illusion shall be the sole responsibility of Licensee.

          6.16.    Further Inquiries and Attribution.  To the extent Licensee receives inquiries from any third party(ies) relating to the Illusion, e.g., inquiries regarding titles of the Illusion, authorship, or Licensor identity, Licensee shall respond that it is using the Illusion under license from Licensor and shall provide the inquiring third party(ies) with Licensor’s contact information.  

 

 

Agreed to by the parties as of the Effective Date.

 

MOORENI, LLC                                                        [Licensee]

 

 

NAME: JOHN C. MOORE                                        NAME:                                                           

 

SIGNATURE:                                                            SIGNATURE:                                    

 

TITLE: OWNER                                                        TITLE:                                                

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Exhibit A to Performance License Agreement ( PDF Instructions and materials to be provided upon receipt of the Illusion)

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Hawley Troxell Ennis & Hawley LLP

Bradlee Frazer, Esq.

Jonathan Wheatley, Esq.

877 West Main Street

Boise, Idaho 83701

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