Bikram - Gabrielle Raiz - Final Dismissal and Tolling Agreement

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DISMISSAL & TOLLING AGREEMENT

This Dismissal and Tolling Agreement (Agreement) is made effect

August 13, 2013 (the Effective Date), by and between: (1) Bikrams Yoga CollegL.P. (the College) and Bikram Choudhury (Bikram) (collectively, the Bikram

the one hand; and (2) Gabrielle Raiz also known as Gabrielle Scanlon and doing bu

Hot Yoga Doctor (Raiz) and Robert Scanlon (Scanlon) (collectively, the Raiz

the other. For convenience, the Bikram Parties and the Raiz Parties shall each be reindividually as a Party and collectively as the Parties.

RECITALS

WHEREAS, Bikram is an individual residing in Los Angeles, Califo

WHEREAS, the College is a limited partnership organized and existilaws of the state of California with its principal place of business in Los Angeles, C

WHEREAS, Raiz and Scanlon are individuals residing in Australia afounders and only shareholders of Colete Pty Ltd. (Colete).

WHEREAS, Colete is Proprietary Limited company organized and e

the laws of Australia.

WHEREAS, Colete owns the www.hotyogadocotor.com and the ww

yoga-noosa-australia.com/ websites that promote the Raiz Parties, publishes, distrib

various products developed by the Raiz Parties, and offers teacher training courses tRaiz Parties.

WHEREAS, Raiz signed a Teacher Training Course Registration Ag

July 13, 2001 (Teacher Training Agreement).

WHEREAS, on September 7, 2011, the Bikram Parties filed a Comp

United States District Court for the Central District of California (District Court)

Raiz Parties and certain other parties alleging claims for (1) Copyright Infringement(2) Trademark Infringement; (3) False Designation of Origin; (4) Dilution; (5) UnfaCompetition; (6) Unfair Business Practices; (7) Breach of Contract; and (8) Inducin

Contract (the Federal Court Action).

WHEREAS, the Bikram Parties claimed in the Federal Court Action

thi th t th R i P ti i f i d Bik P ti i ht i f


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Consuelo B. Marshall and given Case No. 2:11-cv-07377-CBM-VBK.

WHEREAS, on September 10, 2012, the Raiz Parties filed an Answeand Counterclaims in the Federal Court Action, along with a Demand for Jury Trial.

WHEREAS, on September 25, 2012, the Raiz Parties filed a Correct

Defenses and Counterclaims in the Federal Court Action, along with a Demand for J

WHEREAS, the Raiz Parties claim that they do not use the DialogueBikrams other copyrighted materials and are therefore not infringing on a copyrigh

Dialogue or any other copyrighted materials.

WHEREAS, the Raiz Parties First Claim for Relief sought declarato

that the Sequence is incapable of receiving copyright protection, Second Claim for R

declaratory judgment that the Dialogue is not protected by copyright, Third Claim fsought declaratory judgment that the Teacher Training Agreement is void as an unla

compete agreement, and Fourth Claim for Relief alleged statutory and common law

competition.

WHEREAS, the Parties filed a Joint Scheduling Conference Report P

Rule 26(f) on November 7, 2012 but have not exchanged any discovery.

WHEREAS, all other defendants to the District Court Action have eidismissed by the court or by the Parties or were never served with process.

WHEREAS, on December 14, 2012, the District Court in a separate,

federal court action involving the Bikram Parties and assigned to the Honorable Otiand given Case No. CV-11-05506-OWD (SSx) issued an Order granting a Motion f

Summary Judgment (Summary Judgment Order) holding, among other things, thaSequence is not covered under [Bikram Parties] copyrights and thus, there can be

infringement.

WHEREAS, the Bikram Parties contend that the Summary Judgmen

wrongly decided and presently plan to appeal the Summary Judgment Order to the N

Court of Appeals.

WHEREAS, the Parties recognize that a ruling by the Ninth Circuit C

Appeals on this issue may have an impact on the disposition of the Federal Court A

wish to consider the result of the Bikrams Parties likely appeal of the Summary JuOrder before possibly continuing to pursue their claims, counterclaims and defenses

F d l C t A ti


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WHEREAS, the Bikram Parties and the Raiz Parties agree to preserv

quo with respect to any applicable statutes of limitations or any rules of law or equit

or purport to limit the time period within which their respective claims must be resoactions must be commenced as it existed as of September 7, 2011, the date Bikram P

Complaint in the Federal Court Action, and not count the time period between Septe2011 and the date this Agreement is effectively terminated against any statute of lim

any rules of law or equity which limit or purport to limit the time period within whic

respective claims must be resolved or actions must be commenced.

NOW THEREFORE, for good and valuable consideration, the receip

hereby acknowledged, it is agreed as follows:

ARTICLE I

BASIC SETTLEMENT TERMS

1.1 Dismissal of the Federal Court Action Without Prejudice. W(7) days after all the Parties execute this Agreement, the Parties shall file a joint stip

dismiss without prejudice all claims and counterclaims asserted in the Federal Cour

1.2 Termination Date. This Agreement shall terminate upon oneproviding written notice of cancellation to the non-terminating Party, in which case

Agreement will terminate on the 30th business day after the dispatch of such notice accordance with Section 1.4 hereof (the Termination Date).

1.3 Tolling Provision. In any action or proceeding brought after Court Action is dismissed without prejudice by any Party to this Agreement againstParty to this Agreement arising in connection with or related to the claims, countercdefenses asserted in the Federal Court Action, the period between September 7, 201

the Bikram Parties filed a Complaint against the Raiz Parties) and the Termination D

Agreement (hereinafter the Tolling Period) shall not be included in determining th

applicability of any statute of limitations or any rules of law or equity which limit olimit the time period within which their respective claims must be resolved or action

commenced, including defenses such as waiver, estoppel and laches. Any and all st

limitations or other rules of law or equity based on the lapse of time in bringing or aClaims, Counterclaims or Defenses shall be tolled among the Parties during the Toll

1.4 Notices. Any notice provided under this Agreement, includintermination pursuant to Section 1.2, shall be sent on the same day by both U.S. Mai

and shall be deemed received when dispatched.


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Telephone: (310) 553-6700

Facsimile: (310) 246-6779

[email protected]@omm.com

If to the Raiz Parties:

Jordan Susman, Esq.Freedman + Taitelman, LLP

1901 Avenue of the Stars, Suite 500

Los Angeles, California 90067Telephone: (310) 201-0005; (310) 201-4294

Facsimile: (310) 201-0045

[email protected]

1.5 Promotion, Advertising and Marketing. The Parties agree nodirectly or indirectly, in acts relating to the promotion, marketing or advertising of t

services or products aimed at causing the public to believe that the Parties are agents

affiliates, franchisees and/or licensees of the other Parties, that the Parties yoga servproducts are the other Parties services or products, or that the Parties yoga service

are approved, endorsed or otherwise authorized by the other Parties.

1.6 Disclaimer on Websites. Within thirty one (31) days after allexecute this Agreement, the Raiz Parties agree to publish a disclaimer on the bottom

page of any yoga-related website owned or controlled directly or indirectly by the R

by Colete, including www.hotyogadocotor.com and www.bikram-yoga-noosa-austr

which states: The Hot Yoga Doctor, Gabrielle Raiz, Colete Pty Ltd and their assocwebsites, products and services are in no way endorsed by, sponsored by or affiliate

Bikram Yoga. For more information about Bikram Yoga please visitwww.BikramYoga.com. The foregoing disclaimer shall be published on the releva

for a period of eighteen (18) months starting from the date of its initial publication.

1.7 Disclaimer on Email List Serve Mailings. Starting within thidays after all Parties execute this Agreement, the Raiz Parties agree to include a discidentical to the one in Section 1.6 of this Agreement on the bottom of any email sen

yoga-related email list serve owned or controlled directly or indirectly by the Raiz P

Colete. The foregoing disclaimer shall be published for a period of eighteen (18) m

from the date of the disclaimers initial publication.

1 8 Disclaimer on Products The Raiz Parties agree to include a d


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content on www.bikram-yoga-noosa-australia.com website that refers to the Bikram

that was identified for removal in the July 16, 2013 Memorandum titled List of Re

Deletions of References to Bikram Trademarks From Raizs Noosa Website providcounsel for the Bikram Parties to counsel for the Raiz Parties on July 16, 2013.

1.10 Removal of Certain Raiz-Related Content from Website. Wit(60) days after all Parties execute this Agreement, the Bikram Parties agree to remo

any content which refers to the Raiz Parties, including but not limited to, any and alto the Federal Court Action, from the following three web pages: (1)

http://www.bikramyoga.com/Documents/Bikram-Yoga-ads-Yen-Yoga-Cease-Desis

(2) http://www.bikramyoga.com/Documents/Complaint.pdf; and(3) http://www.bikramyoga.com/BikramYoga/Scoliosis.php.

1.11 Bikram Yoga Noosa Website. Within thirty-one (31) days afexecute this Agreement, the Raiz Parties, directly or through Colete, shall cause all

URL: www.bikram-yoga-noosa-australia.com/ to transfer to a new URL and websit

not incorporate the word Bikram or any word that is similar in sound and/or sight to

1.12 Attorneys Fees. Each Party shall bear its own attorneys feeconnection with the Federal Court Action and this Agreement.1.13 Use of Agreement. Except as specifically stated in this Agre

Agreement shall in no way affect, waive or limit any rights, claims or defenses of an

parties to this Agreement, other than those based on the statutes of limitations or any

or equity which limit or purport to limit the time period within which claims must bactions must be commenced. This Agreement shall not be deemed to constitute an

any liability by any of the parties hereto.

ARTICLE II

REPRESENTATIONS AND WARRANTIES

2.1 The Raiz Parties represent and warrant that they do not currenof Bikrams copyrighted materials in a manner that infringes upon the exclusive righChoudhury and/or Rajashree Choudhury as set forth under 17 U.S.C. 106 of the C

including but not limited to unauthorized copying, unauthorized distribution, creatio

substantially similar derivative works, and/or the use of such materials while deliverservices. The Raiz Parties further specifically represent and warrant that they do no

use the Dialogue or non-functional language substantially similar to that used in the


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this Dismissal and Tolling Agreement.

2.2 Each Party represents and warrants to the other Parties that it power and authority to execute and deliver this Agreement and to consummate the tcontemplated hereby, and the execution, delivery and performance of this Agreemenduly authorized by all necessary action by it, and has been duly executed and delive

constitutes the legal, valid, and binding obligation of it enforceable against it in acco

its terms.

2.3 The person signing this Agreement on behalf of the College drepresents that he or she is duly authorized, and has the full right and authority, to exAgreement on behalf of the College.

2.4 Each Party acknowledges and represents that it (i) has fully anread this Agreement prior to its execution; (ii) has been fully apprised by its attorney

legal effect and meaning of this document and all terms and conditions hereof; (iii) hopportunity to make whatever investigation or inquiry it deemed necessary or appro

connection with the subject matter of this Agreement; (iv) has been afforded the opp

negotiate as to any and all terms hereof; and (v) is executing this Agreement voluntafrom any undue influence, coercion, duress or menace of any kind.

2.5 Each Party acknowledges and agrees that the other Parties harepresentation or promises concerning the subject matter of this Agreement except t

expressly contained in this Agreement and further acknowledges and agrees that it i

into this Agreement on the basis of any promise or representation, expressed or impthan as provided expressly in this Agreement.

2.6 Indemnification. Each Party shall indemnify and hold the othits related released parties, and each of them, harmless from and against any claim, c

action, loss, liability, damage, cost or expense (including attorneys fees and costs) a

any breach by such Party of any Representation or Warranty contained in Article II Agreement.

ARTICLE III

MISCELLANEOUS PROVISIONS

3.1 Entire Agreement. This Agreement represents the entire agreunderstanding between the Parties with respect to the subject matter hereof. There a

agreements, understandings, representations or warranties between the Parties with


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authorized representative on behalf of each Party.

3.3

Governing Law. This Agreement shall be governed by and caccordance with the laws of the State of California, without giving effect to principl

conflicts of law that would require the application of laws of another jurisdiction.

3.4 Successors in Interest. This Agreement shall be binding uponthe benefit of the Parties hereto and their respective successors and assigns.

3.5 Interpretation. The terms of this Agreement have been freely arms length by parties of equal bargaining power, each represented by competent cown choosing. No provision or ambiguity in this Agreement shall be resolved again

regardless of which Party may be deemed to have drafted this Agreement.

3.6 Headings. The headings and captions of the various sectionsAgreement are for convenience only and shall not define, limit or amplify the terms

Agreement in any way and shall have no effect on its interpretation.

3.7

Severability. If any term or provision of this Agreement is foinvalid, illegal, or unenforceable, the remaining terms and provisions shall remain fu

and enforceable.

3.8 Counterparts. This Agreement may be executed simultaneoumore counterparts, each of which shall be deemed an original, but all of which toget

constitute one and the same instrument.

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Facsimile Signatures. This Agreement may be executed by fsignatures and/or PDF signatures delivered by email, and such facsimile or PDF sign

be deemed to be as valid as an original signature whether or not confirmed by deliveoriginal signatures, although it is the Parties intent to deliver the original signatures

delivery of the facsimile or PDF signatures.

3.10 Further Assurances. Each Party shall cooperate fully in the edelivery of this Agreement and shall take, or cause to be taken, such further action th

reasonably necessary or appropriate to effectuate or facilitate the purpose and intentAgreement, including the execution and delivery of any further documents that mayor appropriate.

3.11 No Admission of Liability. Nothing in, or regarding, this Agbe construed to suggest, even remotely, that any Party has engaged in any wrongful

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Bikram - Gabrielle Raiz - Final Dismissal and Tolling Agreement

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