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Terms of Service - License Agreement

PLEASE READ THE FOLLOWING LICENSE AGREEMENT TERMS AND CONDITIONS CAREFULLY BEFORE DOWNLOADING OR USING THE AIRHEADS PRO BASE TEMPLATE. THESE TERMS AND CONDITIONS CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND THE MERWIN GROUP.

If You do not or cannot accept this Agreement, You are not permitted to use the template base or services. Do not download or use the template base or services in that case. You accept and agree to the terms of this Agreement on Your own behalf and/or on behalf of Your company, organization, educational institution, or agency, instrumentality, or department of the federal government as its authorized legal representative, by doing either of the following: (a) checking the box displayed at the end of this Agreement if You are reading this on an TC Merwin Group website; or (b) clicking an “Agree” or similar button, where this option is provided by The Merwin Group.

This LICENSE AGREEMENT ("Agreement") is entered into by and between The Merwin Group, LLC, a Nevada limited liability company, as “Licensor” and  “Licensee” with reference to the following facts.

RECITALS

WHEREAS, Licensor is the owner of the Licensed Property (as defined below); and

WHEREAS, Licensee wishes to use the Licensed Property in the Territory (as defined below) and Licensor is willing to grant Licensee a license to use the Licensed Property on the terms and conditions set out in this Agreement.

NOW THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

  1. Definitions. For purposes of this Agreement, the following terms have the following meanings:

"Effective Date" has the meaning set forth in the preamble.

"Law" means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, award, decree, other requirement, or rule of law of any federal, state, local, or foreign government, or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.

"Licensed Property" means THE AIRHEADS PRO Base Template for Real Estate Transaction Coordination.

"Licensee" has the meaning set forth in the preamble.

"Licensor" has the meaning set forth in the preamble.

"Person" means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.

"Term" has the meaning set forth in Section 8.1.

"Territory" means the United States.

  1. License.

    1. License Grant. Subject to the terms and conditions of this Agreement, Licensor hereby grants to Licensee a non-exclusive, non-transferable right and license to use the Licensed Property during the Term.

    2. Reservation of Rights. Licensor reserves all rights not expressly granted to Licensee under this Agreement.

  2. Ownership and Registration.

    1. Acknowledgment of Ownership. Neither this Agreement, nor any act, omission, or statement by Licensor or Licensee, conveys any ownership right in any of the Licensed Property, or to any element or portion thereof, or other materials provided by or on behalf of Licensor under this Agreement. Except for the licenses expressly granted to Licensee in this Agreement, Licensee acknowledges that all right, title, and interest in and to the Licensed Property, and the goodwill resulting from Licensee's use of the Licensed Property, are owned by and will remain with Licensor.  Licensee agrees not to dispute or challenge, or assist any Person in disputing or challenging, Licensor's rights in and to the Licensed Property or the validity of any trademark or copyright, and any applications therefor which may have been or may be filed in the future, relating to the Licensed Property.   

    2. Licensee Restrictions. Licensee agrees that it shall not, during the Term or thereafter, directly or indirectly:

      1. do, omit to do, or permit to be done, any act which will or may dilute the Licensed Property, or which will or may invalidate or jeopardize any registration of any rights in and to the Licensed Property or any element thereof; or

      2. apply for, obtain, or assist any Person in applying for or obtaining any registration of any copyright, patent, trademark, or other designation, or take any other action, which would or may affect ownership of the Licensed Property.

    3. Maintenance of Registrations. Licensor shall, at its own expense, take all reasonable steps to maintain the existing registrations relating to the Licensed Property and prosecute to registration any pending applications for so long as the Licensed Property is being used in commerce as required by applicable Law. Licensee shall provide, at Licensor's request and at Licensor's expense, all necessary assistance with such maintenance and prosecution.

  3. Compliance with Laws. In exercising its rights under this Agreement, Licensee shall comply with, and shall ensure that the Licensed Product is used in compliance with, all applicable Laws.

  4. Protection of the Licensed Property.

    1. Notification. Licensee shall immediately notify Licensor in writing with reasonable detail of any: (a) actual, suspected, or threatened infringement of the Licensed Property, claim that any of the rights in and to the Licensed Property is invalid, or opposition to any of the rights in and to the Licensed Property; (b) actual, suspected, or threatened claim that use of the Licensed Property infringes the rights of any third party; (c) any person applies for, or is granted, a registered trademark or copyright by reason of which that person may be, or has been, granted rights which conflict with any of the rights granted to Licensee under this Agreement; or (d) any other actual, suspected or threatened claim to which the Licensed Property may be subject.

    2. Actions. With respect to any of the matters listed in Section 5.1: (a) Licensor has exclusive control over, and conduct of, all claims and proceedings; (b) Licensee shall provide Licensor with all assistance that Licensor may reasonably require in the conduct of any claims or proceedings; and (c) Licensor shall bear the cost of any proceedings and will be entitled to retain all sums recovered in any action for its own account.

  5. Payment.  Licensee shall pay to Licensor a royalty of $4,999.00 upon execution of this Agreement.  

  6. Representations and Warranties.

    1. Mutual Representations and Warranties. Each party represents and warrants to the other party that:

      1. it is duly organized, validly existing, and in good standing as a corporation or other entity as represented herein under the Laws of its jurisdiction of incorporation or organization;

      2. it has the full right, power, and authority to enter into this Agreement and to perform its obligations hereunder;

      3. the execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary organizational action of the party; and

      4. 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.

    2. Licensor's Representations and Warranties. Licensor represents and warrants, solely to and for the benefit of Licensee, that it owns the Licensed Property.

    3. Licensee's Representations and Warranties. Licensee represents and warrants, during the Term and thereafter, that:

      1. Licensee will: (i) comply with all applicable Laws related to its use of the Licensed Property; and (ii) promptly notify Licensor if any government agency, regulatory body, or court advises Licensee that Licensee is not in compliance with any of the foregoing or requests or requires Licensee to discontinue use of the Licensed Property for any reason.

    4. No Equitable Relief. Notwithstanding any other provision to the contrary in this Agreement, Licensee acknowledges and agrees that (a) monetary damages at law are a fully adequate remedy to compensate Licensee for any breach or threatened breach of this Agreement by Licensor, and (b) an action at law for monetary damages is Licensee's sole and exclusive remedy for any such breach. No breach by Licensor of this Agreement will entitle Licensee to equitable relief, including specific performance, injunctive relief, rescission, or any other form of equitable remedy.

    5. Equitable Relief. Licensee acknowledges that a breach by Licensee of this Agreement may cause Licensor irreparable damages, for which an award of damages would not be adequate compensation, and agrees that, in the event of such breach or threatened breach, Licensor will be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance, and any other relief that may be available from any court, in addition to any other remedy to which Licensor may be entitled at law or in equity. Such remedies are not exclusive but are in addition to all other remedies available at law or in equity, subject to any express exclusions or limitations in this Agreement to the contrary.

  7. Term and Termination.

    1. Term. This Agreement will commence on the Effective Date and, unless terminated earlier in accordance with this Section 8, will remain in force for a period of one year (the "Term").  At the end of each term, this Agreement will automatically renew for additional one year terms unless either party provides the other with thirty (30) days prior written notice of its intent to terminate this Agreement at the expiration of the then current term.

    2. Termination in the Case of Sale or Transfer.  This Agreement will immediately terminate upon the sale of the assets of Licensee, or the sale of the business of Licensee, or the sale of more than 5 percent of the ownership interests in Licensee.

    3. Termination for Cause. Licensor has the right to terminate this Agreement immediately by giving written notice to Licensee if:

      1. Licensee breaches this Agreement and, if such breach is curable, fails to cure such breach within thirty (30) days of being notified in writing to do so. If the nature of the alleged breach is such that it cannot reasonably be cured within such thirty (30) day period, then the commencement of the cure within such time period, and the diligent prosecution to completion of the cure within forty – five (45) days from the initial written notice of breach shall constitute a cure thereof; or

      2. Licensee (i) becomes insolvent or admits its inability to pay its debts generally as they become due; (ii) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within twenty (20) business days or is not dismissed or vacated within forty – five (45) days after filing; (iii) is dissolved or liquidated or takes any corporate action for such purpose; (iv) makes a general assignment for the benefit of creditors; or (v) has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business; or

      3. Licensee challenges Licensor's ownership of the Licensed Property or the validity of any trademark, copyright, or patent, and any applications therefor.

  8. Post-Termination Rights and Obligations.

    1. Effect of Termination. On expiration or termination of this Agreement for any reason and subject to any express provisions set out elsewhere in this Agreement:

      1. all rights and licenses granted pursuant to this Agreement will cease and revert immediately to Licensor; and

      2. Licensee shall cease all use of the Licensed Property.

  9. Miscellaneous.

    1. Interpretation. For purposes of this Agreement, (i) the words "include," "includes," and "including" are deemed to be followed by the words "without limitation"; (ii) the word "or" is not exclusive; and (iii) the words "herein," "hereof," "hereby," "hereto," and "hereunder" refer to this Agreement as a whole. This Agreement is intended to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.

    2. Further Assurances. Each party shall, upon the reasonable request, and at the sole cost and expense, of the other party, promptly execute such documents and perform such acts as may be necessary to give full effect to the terms of this Agreement.

    3. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder must be in writing and will be deemed to have been given: (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or email of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient; and (d) on the fifth (5th) day after the date mailed, by certified or registered mail (in each case, return receipt requested, postage prepaid). Such communications must be sent to the respective parties at the following addresses (or at such other address for a party as specified in a notice given in accordance with this Section 10.3):

If to Licensor:

The Merwin Group, LLC

Attn: Nicole Merwin, Owner

7900 Rancharrah Parkway Ste.110

Reno, Nevada 89509

Email: nicole@themgsolution.com

  1. Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.

  2. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns, and nothing herein, express or implied, is intended to or will confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement.

  3. Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any claim, suit, action, or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.

  4. Attorneys' Fees. In the event that any claim, suit, action, or proceeding is instituted or commenced by either party hereto against the other party arising out of, or related to, this Agreement, the prevailing party will be entitled to recover its reasonable attorneys' fees and court costs from the non-prevailing party.

  5. Entire Agreement. This Agreement constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter.

  6. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect the enforceability of any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal, or unenforceable, a court may modify this Agreement to effect the original intent of the parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

  7. Assignment. The parties shall not assign any of its rights or delegate any of its obligations under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without the prior written consent of the other party. Any purported assignment or delegation in violation of this Section 10.10 is null and void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.

  8. Choice of Law; Venue. This Agreement and all matters arising out of, or relating to this Agreement, including tort and statutory claims are governed by the laws of the State of Nevada, without giving effect to any conflict of laws provisions thereof that would result in the application of the laws of a different jurisdiction.  The sole forum for any  legal suit, action, or proceeding arising out of, or relating to, this Agreement are the State and Federal Courts located in Washoe County, Nevada, and each party irrevocably submits to the exclusive jurisdiction of such courts in any legal suit, action, or proceeding.

  9. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party has authority to contract for or bind the other party in any manner whatsoever.

  10. Amendment and Modification. No amendment or modification to this Agreement is effective unless it is in writing and signed by an authorized representative of each party.

  11. Waiver. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

  12. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.  A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

  13. Non-Refundable Policy. All orders are non-refundable due to the digital nature of the products and services provided.

Last Updated: January 1st, 2023

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