B9 Robot Builders Club VENDOR MEMBERSHIP AGREEMENT
Agreement dated as of _______________
(“Effective Date”) between B9Creations, LLC ("B9 Creations") on
the one hand, and ________________________________ on the other (“Vendor”).
1. DEFINITIONS: For the purposes of this Agreement, the
following terms shall have the following meanings:
A.
“Event of Default” shall have the meaning set forth in Paragraph 10(A).
B.
“Indemnified Parties” shall have the meaning set forth in Paragraph 12(B).
C.
“Listed Items” means the following: (a) Vendor created B9 Robot replica
parts residing on the club site and (b) B9 Builders Club Member Merchandise related
to the Club, directly or indirectly derived from "Lost in Space" and
residing on the club site.
D.
“Member Discount” the discount given to Club members. Listed items offered to the general public must
have both a “non members” price and a “members only” price. The members only price must be at least 5%
below the non members cost.
E.
The “Club Site” means the internet based web site located at www.b9robotbuildersclub.com . Only vendor items displayed for sale on this
site are covered by the copyright protection afforded under the B9 Robot
Builders Club License granted to B9Creations.
Other advertisement of listed items is allowed as long as the member
discount is displayed and the address of the Club Site is present.
2. RIGHTS:
A. Grant of Rights: B9Creations hereby grants to Vendor (subject to Vendor’s execution of this Agreement) the right to develop and list for sale such items that are approved by B9Creations. All rights not expressly granted are hereby reserved.
B. No Assignment or Sublicense: Vendor may not assign,
sublicense or otherwise transfer all or any of the rights granted hereunder.
3. TERM: The Term shall commence upon the signing of
this agreement and B9Creations’ receipt of the Vendor Membership fee, and shall
continue for one (1) year (the “Term”) unless sooner terminated as set forth in
paragraph 10 below. At the end of the
Term the term may be renewed if both parties agree.
4. ROYALTY: Vendor Membership dues and listing fees are
all that is required. There is no
royalty on listed items.
5. VENDOR FEES: Vendor agrees to pay a non-refundable fee of
$28 per year. This fee includes the
right to list two (2) items. Additional
items may be listed at the rate of $15 per item per year. These fees are in addition to the standard
club membership fee of $28 per year.
6. DISTRIBUTION: Vendor represents, warrants, and covenants
the following:
A.
Vendor agrees that during the Term of this Agreement it will diligently
manufacture, sell, distribute and promote their Listed Items.
B.
Vendor agrees that: (i) it will not harm, misuse or bring into disrepute the B9
Robot Builders Club or its reputation or that of B9Creations or that of Synthesis;
(ii) it will manufacture, promote, sell and distribute Listed Items in an
ethical manner in accordance with the terms and intent of this Agreement and as
specified in paragraph 16(B); (iii) it will not incur or create any expenses
chargeable to B9Creations without the prior written approval of B9Creations;
(iv) it will comply with all laws and regulations pertaining to the
manufacture, sale, advertising or use of the Listed Items and shall maintain
the highest quality and standards and shall comply with any regulatory agencies
which shall have jurisdiction over the Listed Items; (v) it will not register
or be involved in the registration or use of any domain name incorporating any
of the trademarks, copyrights or other marks of the “Lost In Space” Property or
any names which may be similar thereto.
C.
Vendor shall obtain all necessary consents and authorizations required
in connection with the manufacture, distribution and sale of the Listed Items.
D.
Vendor shall, at all times, issue appropriate disclaimers which give
notice to its customers that B9Creations, Synthesis Entertainment, Space
Productions and IAPLLC are not responsible for the claims, product quality or
in any way the business practices of this Vendor and/or its members and/or
dealers and affiliates.
E.
Vendor shall also make it clear to its customers that the merchandise
sold and/or created and derived from the activities of the Vendor and its
affiliates and members are for non-commercial, home use only.
7. APPROVALS/QUALITY
OF MERCHANDISE/WARRANTIES OF VENDOR:
A. Vendor agrees that the Listed Items shall at all times be of
the highest standards and of such style, appearance and quality as to protect
and enhance the B9 Robot Builders Club and the good will pertaining
thereto. The Listed Items shall meet B9Creations’
quality standards and specifications and shall be manufactured, sold,
distributed and promoted in accordance with B9Creations’ requirement(s)
hereunder and in accordance with all applicable Federal, State, local and other
applicable laws. The quality and style
of such Listed Items shall be subject to the approval of B9Creations.
B. Inspection: Vendor
agrees to allow B9Creations, upon reasonable notice and during normal business
hours, to enter the premises where the Listed Items are manufactured or stored,
and to provide B9Creations with such information as it may request from time to
time, to determine whether the Listed Items are manufactured, packaged, labeled
and shipped in full compliance herewith.
C. Warranties:
Vendor represents, warrants, and agrees that (i)
all Listed Items shall be exploited in accordance with all applicable foreign,
national, state and local laws, treaties, rules and regulations; (ii) that any
content incorporated in the Listed Items not provided by B9Creation shall not
violate the copyright, trademark, publicity, or other right of any third party;
and (iii) each Listed Item shall be safe for public use, and shall be free of
any defect which could result in injury to persons using such Listed Item.
8. TRADEMARK AND COPYRIGHT: The vendor membership granted hereunder is
conditioned upon Vendor’s strict compliance with the provisions of this
paragraph 8 and with the notice provisions of copyright and trademark law of
the
Notices: Vendor
agrees that trademarks, copyrights and notices pertaining thereto shall be
displayed only in such form and manner as shall be required and/or specifically
approved in advance in writing by B9Creations.
The following legends are hereby approved by B9Creations and Synthesis
and shall appear clearly, visibly and recognizably at least once on all
artwork, literary text, instructions, packaging, labels, advertising, and
promotional and display materials used in connection with each Listed Item
where applicable.
(1)
Copyright and Trademark Notice:
(a) Lost in
Space®, Robot B9™ and Jupiter 2™ are ©2005 Space Productions. All Rights Reserved.
(b) Lost in
Space® is a
registered trademark of Space Productions Licensed by Synthesis Entertainment.
(c) The B9 Robot
Builders Club™ is ©2005 B9Creations, LLC. All
Rights Reserved.
A.
Protection of Copyrights, Trademarks, and Good Will: Vendor agrees to promptly notify B9Creations
of any actual or suspected infringements of the Listed Items which may come to
the attention of Vendor and to assist B9Creations and Synthesis, as and to the
extent they may request, to protect and enforce any of B9Creations’ and Synthesis’
rights.
(i) Vendor shall not undertake or permit any copying, duplication, reproduction or other exploitation of the Listed Items (or any portion or element thereof) except as expressly authorized hereunder.
(ii)
Except for catalogs, joint advertising, and promotional programs, and
the like, Vendor shall not commingle on Listed Items manufactured hereunder (or
in the advertising or promotion thereof) names, characters and/or likenesses
from any individual motion picture or television program which is included in
the “Lost in Space” property with those associated with any other motion
picture or television program without prior written consent.
9. LIABILITY INSURANCE:
Vendor acknowledges full responsibility and liability for all of their
Listed Items and holds B9Creations harmless from any and all Vendor
activity. Vendor, at their discretion, may
obtain and maintain throughout the Term, at its sole cost and expense, a
commercial general liability insurance policy, including product liability,
personal injury liability, contractual liability and advertiser’s liability,
from a qualified insurance company.
10. EVENTS
OF DEFAULT; TERMINATION:
A.
Event of Default: The occurrence of any one or
more of the following events shall constitute an “Event of Default” by Vendor
hereunder: (i)
any breach, violation or failure to perform by Vendor of any of Vendor’s
material obligations under this agreement; and (ii) any material breach of any
representation or warranty by Vendor contained in or made in connection with
this agreement.
B.
Right of Termination: If any Event of Default shall occur, B9Creations
shall notify Vendor of the default setting forth, in detail, the reason
therefore. If Vendor does not cure the
breach within thirty (30) days (unless a lesser period is provided herein), B9Creations
may elect to terminate this agreement.
C.
Bankruptcy: If Vendor files or suffers a
petition in bankruptcy which is not discharged within sixty (60) days of its
filing, or if Vendor becomes insolvent or makes an assignment for the benefit
of its creditors, or if Vendor discontinues its business, or suspends active
operations or any substantial part thereof, or if a receiver is appointed for Vendor
or its business, then notwithstanding anything to the contrary contained
herein, to the extent permitted by law, the rights hereby granted shall
terminate.
11. EFFECT OF TERMINATION: Upon and after the expiration or earlier
termination of
the agreement, all rights
granted to Vendor hereunder shall automatically and immediately revert to B9Creations,
and Vendor shall have no further right to exploit the Listed Items or related
material except for right to dispose of existing inventory of Listed Items as
set forth below. In the event of bankruptcy, B9Creations has the right to
purchase unsold inventory existing as of the date of filing of the petition of
bankruptcy at manufacturer’s cost, provided that Vendor may not produce Listed
Items in anticipation of bankruptcy.
12. INDEMNIFICATIONS:
A.
By B9Creations: B9Creations shall indemnify,
defend and hold harmless Vendor, its directors, officers, employees, and agents
against any breach by B9Creations of any representation or warranty made by B9Creations
hereunder. Vendor shall give B9Creations
prompt written notice of any such claim or suit. B9Creations shall have the option to
undertake and conduct the defense of any such suit so asserted or brought.
B.
By Vendor: Vendor shall indemnify and
hold harmless B9Creations and its successors, assigns, parents, subsidiaries,
affiliates, co-venturers, and all other parties
associated with the Club Site including, without limitation, Synthesis
Entertainment, Space Productions and IAPLLC, and their respective directors,
officers, members, managers, employees and agents (“Indemnified Parties”) from
and against all losses, costs, expenses (including attorneys’ fees), damages,
liabilities, claims, demands, causes of action and judgments that any of the
Indemnified Parties may incur or suffer arising out of or in connection with or
as a result of any breach by Vendor of any of Vendors’s
representations, warranties or obligations contained in this Agreement, or any
defect in or use by any person or entity of any Listed Item, or any
unauthorized use of any patent, copyright, design, mark, process, idea, method
or device. Vendor shall defend any such
action or proceeding with attorneys of its own selection at Vendors’s
cost and expense.
13. REMEDIES:
A.
Failure to Cease Exploitation: Vendor
acknowledges that its failure (except as otherwise specifically provided
herein) to cease the exploitation of the Listed Items in any type, class or
category thereof at the earlier of termination or expiration of this agreement
will result in immediate and irreparable damage to B9Creations, Synthesis Entertainment,
Space Productions and IAPLLC, and to the rights of any other vendors, licensors
or licensees of B9Creations, Synthesis Entertainment, Space Productions and
IAPLLC. In addition, Vendor acknowledges
that failure to immediately commence to market, manufacture, sell, and
distribute the Listed Items in substantial quantities throughout the Territory
and to continue to do so during the Term diligently and continuously shall
result in immediate and irreparable damage to B9Creations, Synthesis Entertainment,
Space Productions and IAPLLC. Vendor further acknowledges and admits that there
is no adequate remedy at law for such failure and Vendor therefore hereby
voluntarily and knowingly stipulates and agrees that in the event of any such
failure, B9Creations shall be entitled to seek injunctive relief and other
equitable remedies without the necessity of posting a bond, as well as costs
and attorneys’ fees.
B.
No Waiver: Failure of either party to
enforce any rights under this agreement shall not be construed as a waiver of
any other rights and remedies to which either party is entitled at law, in
equity or otherwise and all such remedies shall be cumulative and
non-exclusive. The prevailing party
shall be entitled to attorneys’ fees incurred in the enforcement of the
provisions of this agreement.
14. NOTICES: All notices required or desired to be
transmitted hereunder shall be in writing
and shall be transmitted by
registered or certified mail (postage prepaid and return receipt requested),
courier, messenger, or telecopier to the following
addresses:
VENDOR
B9CREATIONS, LLC
___________________
B9Creations
___________________ c/o Michael Joyce
___________________
___________________
Fax:
(605) 584-1880
15. NO JOINT VENTURE: Nothing herein contained shall be construed
to place the parties
in a partnership or
relationship of joint venturers, nor constitute any
party the agent of any other party.
Neither party shall have the power to obligate or bind the other in any
manner whatsoever.
16. MISCELLANEOUS:
A.
Entire Agreement: This agreement sets forth the
entire agreement and understanding of the parties with respect to the subject
matter hereof and supersedes all prior agreements, arrangements and undertakings
relating to the subject matter hereof.
No representation has been made which is not set forth herein.
B.
Vendor Business Practices: Vendor
agrees to adhere to the following rules in regards to operations of their
business. (i) Every effort will be made to maintain Listed
Items in sufficient quantity such that they are ready to ship immediately upon
payment received. (ii) In the event a
Listed Item is not available for immediate shipment and a deposit is required,
all descriptions and marketing of said item will include the following text:
“Item is made to order and not available for immediate shipment, a deposit is
required.” In addition, Vendor will
provide an expected shipping date. In
the event that the shipping date is not met Vendor will contact the buyer on or
prior to the promised shipping date and inform them of the expected the
delay. Vendor must offer a full refund
of the deposit at that time. The buyer
must be given the option of accepting the delay or receiving a full refund.
C.
Amendments: This agreement may be amended
or modified only by written instrument executed by each party hereto.
17. GOVERNING LAW:
This Agreement shall be construed under the laws of the State of
18. FORCE MAJEURE:
This agreement shall terminate in the event that any act of God, fire,
flood, public disaster or any action, rule, regulation, requirement or order of
any governmental authority, or any other cause or reason beyond the control of
the parties renders performance impossible and one party so informs the other
in writing of such causes. In such case
any and all Vendor fees are non refundable.
By
signing in the spaces provided below, the parties hereto have agreed to all of
the terms and conditions of this agreement.
VENDOR
___________________________ B9 CREATIONS, LLC
By: By:
Title: Title:
Date
Signed: Date Signed: