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 United States and of each specific country within which the Listed Items will be distributed.

 

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, LLC

___________________                                  c/o Michael Joyce

___________________                                  21670 Starview Lane

___________________                                  Deadwood, SD 57732

                                                                        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 South Dakota,  any action in connection with this Agreement shall be filed in South Dakota; and each party waives any objections to the venue and accepts the personal jurisdiction of the state and federal courts of the State of South Dakota.

 

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: