SUPER FAN PACKS VENDOR AGREEMENT
This SuperFan Packs Vendor Agreement (“Agreement”) is made effective as of the date set forth below by and between Fan Packs LLC d/b/a SuperFan Packs (“SuperFan Packs”) located at 24043 ST Route 511, Wellington, Ohio 44090 and the entity and/or individual who enters into this Agreement as set forth below or on any application form (“Vendor”). This Agreement sets out the terms and conditions under which Vendor may utilize the SuperFan Packs Program as defined below.
By clicking on the “I AGREE” button at the end of this Agreement, by signing this Agreement or by continuing to use the SuperFan Packs Program, it becomes a legally binding contract. Vendor acknowledges and agrees that: (i) it has reviewed and understands the Agreement; (ii) it agrees to be legally bound by the terms and conditions of the Agreement; and (iii) its use of the SuperFan Packs Program and any related products or services will be governed by this Agreement. If Vendor does not agree or is not willing to be bound by the terms and conditions of this Agreement, Vendor should not click on the “I AGREE” button and should not seek to obtain or use the SuperFan Packs Program.
RECITALS
WHEREAS, SuperFan Packs provides a system that allows Vendor to share its cards with the collector world through the SuperFan Packs and through an individualized online shop, the services set forth in Exhibit A and related goods and services (the “SuperFan Packs Program”); and
WHEREAS, SuperFan Packs wishes to provide SuperFan Packs Program to Vendor so that Vendor may utilize SuperFan Packs Program.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
AGREEMENT
SECTION ONE – SERVICES PROVIDED BY SUPERFAN PACKS
1.01. Services. SuperFan Packs will provide the portions of the SuperFan Packs Program as set forth on the attached Exhibit A. SuperFan Packs and Vendor shall agree upon the services to initially be provided under this Agreement and may update, amend and changes the goods and services provided to the Vendor. Vendor shall enter into the agreement for the SuperFan Packs Program for the end users acceptable to SuperFan Packs in its reasonable discretions which includes third party beneficiary language as set forth in Schedule 1.
1.02. Limited License. SuperFan Packs hereby grants to Vendor a perpetual, revocable (but only as provided herein), worldwide, nonexclusive, non-sublicensable, and non-transferable license, under intellectual property rights owned or licensed by SuperFan Packs, to use SuperFan Packs Program provided however that: (a) such license is subject to all obligations and restrictions imposed on Vendor in this Agreement; (b)such license extends only to Vendor’s employees and contractors, but only to the extent that such employees and contractors use SuperFan Packs Program for the sole purpose of marketing card on the behalf of Vendor, and for no other purpose whatsoever; (c) such license extends only to Vendor use of SuperFan Packs Program solely to perform the functions specified herein, and in compliance therewith, and (d) while exercising such license, Vendor shall treat SuperFan Packs Program as SuperFan Packs’ Confidential Information under this Agreement.
1.03. Limitations on Rights Granted. Except as expressly provided to the contrary in this Agreement, Vendor shall not, and shall not knowingly cause or permit any non-party, to use or reproduce SuperFan Packs Program. Vendor shall not, and shall not knowingly cause or permit any non-party, to disassemble, decompile, decrypt, extract, reverse engineer, prepare a derivative work based upon, distribute, or time share SuperFan Packs Program, or otherwise apply any procedure or process to SuperFan Packs Program in order to ascertain, derive, and/or appropriate for any reason or purpose, the source code or source listings for SuperFan Packs Program or any algorithm, process, procedure or other information contained in SuperFan Packs Program. Except as expressly authorized herein, Vendor may not rent, lease, assign, sublicense, transfer, modify, alter, or time share the SuperFan Packs Program.
1.04. Independent Contractors. The relationship of SuperFan Packs and Vendor is that of independent contractors. Neither Vendor nor its employees, consultants, contractors or agents are agents, employees, partners or joint ventures of SuperFan Packs, nor do they have any authority to bind SuperFan Packs by contract or otherwise to any obligation. They will not represent to the contrary, either expressly, implicitly, by appearance or otherwise.
1.05. Compliance With Laws. Vendor will comply with all applicable international, national, state, regional and local laws and regulations in performing its duties hereunder and in any of its dealings with respect to the SuperFan Packs Program. Vendor has the sole responsibility to verify SuperFan Packs’ list of Vendor payment processors to be used under terms of this Agreement to determine if SuperFan Packs can properly transmit the necessary information to Vendor’s payment processor. Vendor shall be solely responsible for credits, returns, disputes and all costs associated with data transmissions.
SuperFan Packs is not liable for all Vendor losses, chargebacks, fines, credits, returns, disputes and all costs associated with data transmissions and transactions, including, but not limited to, any fraudulent transactions processed and all associated fees and costs (collectively “Vendor Losses”). This liability of Vendor to SuperFan Packs includes reimbursing SuperFan Packs for any Vendor Losses that SuperFan Packs has contractually agreed to pay with any of SuperFan Packs’s vendors.
SECTION TWO – THE SUPERFAN PACKS PROGRAM
2.01. Providing SuperFan Packs Program. During the term of this Agreement, SuperFan Packs shall provide the SuperFan Packs Program and use its commercially reasonable efforts to provide the SuperFan Packs Program and maintain them in an uninterrupted and error-free fashion consistent with its practices in effect as of the date of this Agreement. However, the parties acknowledge that the SuperFan Packs Program is computer network based services which may be subject to outages and delay occurrences. In such an event, SuperFan Packs shall use its commercially reasonable efforts to diligently and promptly remedy any and all material interruptions. SuperFan Packs will not be liable in any manner for any interruptions, outages, or other delay occurrences relating to the SuperFan Packs Program including any attributed to SuperFan Packs’ vendors.
SECTION THREE – PAYMENT OF FEES
3.01. Fees in General. Vendor shall pay fees to SuperFan Packs as set forth herein, in the application for the SuperFan Packs Program, as set forth in the attached Exhibit A, as set forth on SuperFan Packs’ website and as disclosed to Vendor in any other documents or materials by SuperFan Packs. SuperFan Packs may change the fees and other amounts set forth herein at any time in SuperFan Packs sole discretion.
3.02. Fees for SuperFan Packs Program. Vendor agrees to pay SuperFan Packs for the SuperFan Packs Program as invoiced to Vendor by SuperFan Packs on a net fifteen (15) day basis. Interest shall accrue at the lesser of 1.0% per month or the maximum amount permitted by applicable law (“Late Fee”) for any fees that remain unpaid beyond any due dates. In the event of a dispute made in good faith as to the amount of fees, Vendor agrees to remit payment on any undisputed amount(s); and, the Late Fee shall not accrue as to any disputed amounts unless not paid within thirty (30) calendar days after said dispute has been resolved by both parties. Vendor shall have sixty (60) days from the payment by Vendor of any fees due under this Agreement to notify SuperFan Packs of any errors in payment of fee by Vendor. If Vendor does not notify SuperFan Packs within the sixty (60) day time period, Vendor shall be deemed to have accepted without question such fee payment and may not in the future contest the amount Vendor paid or seek reimbursement for any discrepancies. Upon receipt of notice, SuperFan Packs shall have thirty (30) days to correct any errors
SECTION FOUR – TERM AND TERMINATION
4.01. Term. The initial term of this Agreement shall be for a period of three (3) year, commencing on the date first set forth below. This Agreement shall thereafter be automatically renewed for additional terms of one (1) year each unless either party notifies the other no later than ten (10) days prior to the end of the current term that it does not wish to renew this Agreement.
4.02. Default. Either party shall have the right to terminate this Agreement at any time if:
(a) the other party breaches any of the provisions of this Agreement and fails to cure such breach within ten (10) days of its receipt of written notice thereof from the non-breaching party; or
(b) the other party (i) fails to pay its debts or perform its obligations in the ordinary course of business as they mature; (ii) becomes the subject of any voluntary or involuntary proceeding in bankruptcy, liquidation, dissolution, receivership, attachment or assignment or composition for the benefit of creditors.
4.03. Termination by SuperFan Packs. SuperFan Packs may terminate this Agreement for any reason, or no reason at all, by providing Vendor with one (1) days notice.
4.04 Effect of Termination. Upon termination of this Agreement: (a) Vendor’s license to use the SuperFan Packs Program shall be automatically and immediately revoked, (b) Vendor shall immediately stop using such SuperFan Packs Program and shall either destroy or deliver to SuperFan Packs any originals and copies of the SuperFan Packs Program in Vendor’s possession, custody or control or in the control of any entity or individual to which Vendor has provided the SuperFan Packs Program, (c) Vendor shall provide to SuperFan Packs a written certification of such destruction or delivery, signed by an authorized agent of Vendor, and (d) Vendor shall promptly pay to SuperFan Packs all fees and charges accrued and unpaid through the effective date of the termination.
SECTION FIVE – OBLIGATIONS.
5.01. Confidential Information. The parties acknowledge that in their performance of their duties hereunder either party may communicate to the other (or its designees) certain confidential and proprietary information, including without limitation information concerning the SuperFan Packs Program and the know‑how, technology, techniques, or business or marketing plans related thereto (collectively, the “Confidential Information”) all of which are confidential and proprietary to, and trade secrets of, the disclosing party. Confidential Information does not include information that: (i) is public knowledge at the time of disclosure by the disclosing party; (ii) becomes public knowledge or known to the receiving party after disclosure by the disclosing party other than by breach of the receiving party’s obligations under this section or by breach of a third party’s confidentiality obligations; (iii) was known by the receiving party prior to disclosure by the disclosing party other than by breach of a third party’s confidentiality obligations; or (iv) is independently developed by the receiving party. As a condition to the receipt of the Confidential Information from the disclosing party, the receiving party shall: (i) not disclose in any manner, directly or indirectly, to any third party any portion of the disclosing party’s Confidential Information; (ii) not use the disclosing party’s Confidential Information in any fashion except to perform its duties hereunder or with the disclosing party’s express prior written consent; (iii) disclose the disclosing party’s Confidential Information, in whole or in part, only to employees and agents who need to have access thereto for the receiving party’s internal business purposes; (iv) take all necessary steps to ensure that its employees and agents are informed of and comply with the confidentiality restrictions contained in this Agreement; and (v) take all necessary precautions to protect the confidentiality of the Confidential Information received hereunder and exercise at least the same degree of care in safeguarding the Confidential Information as it would with its own confidential information, and in no event shall apply less than a reasonable standard of care to prevent disclosure. The receiving party shall promptly notify the disclosing party of any unauthorized disclosure or use of the Confidential Information. The receiving party shall cooperate and assist the disclosing party in preventing or remedying any such unauthorized use or disclosure.
5.02. Indemnification. Vendor agrees to indemnify, defend, and hold harmless SuperFan Packs, its employees or agents from and against any loss, liability, damage, penalty or expense (including attorneys’ fees, expert witness fees and cost of defense) they may suffer or incur as a result of (i) any failure by Vendor or any customer, employee, agent or affiliate of Vendor to comply with the terms of this Agreement; (ii) any warranty or representation made by Vendor being false or misleading; (iii) negligence of Vendor or its customers, subcontractors, agents or employees, (iv) any representation or warranty made by Vendor or any employee or agent of Vendor to any third person other than as specifically authorized by this Agreement or (v) any alleged or actual violations by Vendor or its customers, subcontractors, employees or agents of any card association rules, governmental laws, regulations or rules.
5.03. Disclaimer of All Warranties. THE SUPERFAN PACKS PROGRAM IS PROVIDED “AS IS” WITHOUT ANY WARRANTY WHATSOEVER. SUPERFAN PACKS DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, TO VENDOR AS TO ANY MATTER WHATSOEVER, INCLUDING ALL IMPLIED WARRANTIES OF VENDORABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SUPERFAN PACKS OR ITS EMPLOYEES OR REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF SUPERFAN PACKS’ OBLIGATIONS.
5.04. Limitation of liability. SUPERFAN PACKS SHALL NOT BE LIABLE TO VENDOR OR TO ANY OTHER THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SUPERFAN PACKS PROGRAM, WHETHER FORESEEABLE OR UNFORESEEABLE, AND WHETHER BASED ON BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT, OR OTHER CAUSE OF ACTION (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, GOODWILL, PROFITS, INVESTMENTS, USE OF MONEY, OR USE OF FACILITIES; INTERRUPTION IN USE OR AVAILABILITY OF DATA; STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS; OR LABOR CLAIMS), EVEN IF SUPERFAN PACKS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES SHALL SUPERFAN PACKS’ TOTAL LIABILITY TO VENDOR OR ANY THIRD PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNTS PAID BY VENDOR UNDER THIS AGREEMENT IN THE PRIOR SIX (6) MONTHS REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON WARRANTY, CONTRACT, TORT OR OTHERWISE.
5.05. Taxes. Vendor shall pay, indemnify and hold SuperFan Packs harmless from (i) any sales, use, excise, import or export, value-added, or similar tax or duty, and any other tax or duty not based on SuperFan Packs’ income, and (ii) all government permit fees, customs fees and similar fees which SuperFan Packs may incur with respect to this Agreement. Such taxes, fees and duties paid by Vendor shall not be considered a part of, a deduction from, or an offset against, payments due to SuperFan Packs hereunder.
5.06. Vendor represents and warrants to SuperFan Packs as follows:
(a) Vendor has the full power and authority to execute, deliver and perform this Agreement. This Agreement is valid, binding and enforceable against Vendor in accordance with its terms and no provision requiring Vendor’s performance is in conflict with its obligations under any charter or any other agreement (of whatever form or subject) to which Vendor is a party or by which it is bound.
(b) Vendor is duly organized, authorized and in good standing under the laws of the state of its organization and is duly authorized to do business in all other states in which Vendor’s business make such authorization necessary or required.
5.07. Trademarks. Subject to the limitations in this Agreement, SuperFan Packs grants Vendor the nonexclusive right and license to use SuperFan Packs’ trademarks (the “Trademarks”) during the term of this Agreement solely in conjunction with the use of the SuperFan Packs Program. SuperFan Packs grants no rights in the Trademarks or in any other trademark, trade name, service mark, business name or goodwill of SuperFan Packs except as licensed hereunder or by separate written agreement of the parties. Vendor agrees that it will not at any time during or after this Agreement assert or claim any interest in or do anything that may adversely affect the validity of any Trademark or any other trademark, trade name or product designation belonging to or licensed to SuperFan Packs (including, without limitation registering or attempting to register any Trademark or any such other trademark, trade name or product designation). During the term of this Agreement, Vendor agrees not to use any trademark, trade name or product name confusingly similar to a trademark, trade name or product name of SuperFan Packs, except for the Trademarks expressly licensed hereunder. Upon expiration or termination of this Agreement, Vendor will immediately cease all display, advertising and use of all of the Trademarks and will not thereafter use, advertise or display any trademark, trade name or product designation which is, or any part of which is, similar to or confusing with any Trademark or with any trademark, trade name or product designation associated with SuperFan Packs or any of SuperFan Packs’ products and services.
5.08. Intellectual Property. “Intellectual Property” means all of the following owned by a party: (i) trademarks and service marks (registered and unregistered) and trade names, and goodwill associated therewith; (ii) patents, patentable inventions, computer programs, and software; (iii) databases; (iv) trade secrets and the right to limit the use or disclosure thereof; (v) copyrights in all works, including software programs; and (vi) domain names. The rights owned by a party in its Intellectual Property shall be defined, collectively, as “Intellectual Property Rights.” Other than the express licenses granted by this Agreement, SuperFan Packs grants no right or license to Vendor by implication, estoppel or otherwise to the SuperFan Packs Program or any Intellectual Property Rights of SuperFan Packs. Each party shall retain all ownership rights, title, and interest in and to its own products and services (including in the case of SuperFan Packs, in the SuperFan Packs Program) and all intellectual property rights therein, subject only to the rights and licenses specifically granted herein. SuperFan Packs (and not Vendor) shall have the sole right, but not the obligation, to pursue copyright and patent protection, in its sole discretion, for the SuperFan Packs Program and any Intellectual Property Rights incorporated therein. Vendor will cooperate with SuperFan Packs in pursuing such protection, including without limitation executing and delivering to SuperFan Packs such instruments as may be required to register or perfect SuperFan Packs’ interests in any Intellectual Property Rights and any assignments thereof. Vendor shall not remove or destroy any proprietary, confidentiality, trademark, service mark, or copyright markings or notices placed upon or contained in any materials or documentation received from SuperFan Packs in connection with this Agreement.
5.09. Non-Solicitation. (a) During the period that this Agreement is in effect and for the five (5) year period immediately following termination, cancelation or expiration of this Agreement, Vendor shall not directly or indirectly through another entity (i) induce or attempt to induce any employee of, or consultant to, SuperFan Packs or its subsidiaries to leave the employ of, or consultancy to, SuperFan Packs or its subsidiaries, or in any way interfere with the relationship between SuperFan Packs or its subsidiaries and any employee or consultant thereof, (ii) hire any person who was an employee of, or consultant to, SuperFan Packs or its subsidiaries at any time during the twelve-month period immediately prior to the date on which such hiring would take place without the prior written consent of SuperFan Packs (it being conclusively presumed by the parties so as to avoid any disputes under this section that any such hiring within such twelve-month period is in violation of clause (i) above); (iii) call on, solicit or service any customer, referral partner, affiliate, agent, supplier, licensee, licensor, consultant, contractor or other business relation of SuperFan Packs or its respective subsidiaries in order to induce or attempt to induce such person to cease doing business with SuperFan Packs or its subsidiaries, or in any way interfere with the relationship between any such customer, referral partner, affiliate, agent, supplier, licensee, licensor, consultant, contractor or other business relation and SuperFan Packs or its subsidiaries (including, without limitation, making any negative statements or communications about SuperFan Packs or its subsidiaries); or (iv) call on, solicit, or take away or attempt to call on, solicit, or take away any of SuperFan Packs’ customers, referral partners, affiliates, agents and vendors on whom Vendor called or with whom Vendor became acquainted during its contractual relationship with SuperFan Packs, either on its behalf or that of other person, firm, or corporation.
(b) If, at the time of enforcement of the covenants contained in this section above (the “Protective Covenants”), a court shall hold that the duration, scope or area restrictions stated herein are unreasonable under circumstances then existing, the parties hereto agree that the maximum duration, scope or area reasonable under such circumstances shall be substituted for the stated duration, scope or area and that the court shall be allowed to revise the Protective Covenants to cover the maximum duration, scope and area permitted by law. Vendor agrees that the Protective Covenants are reasonable in terms of duration, scope and area restrictions and are necessary to protect the goodwill of SuperFan Packs’ businesses and agrees not to challenge the validity or enforceability of the Protective Covenants.
5.10. Merchant Account Services. In the event Vendor applies for and is approved for merchant account services, Vendor’s use of such services shall be governed by the terms of the applicable merchant account services agreement. Merchant account services are not covered by this Agreement.
SECTION SIX – GENERAL PROVISIONS
6.01. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable for any reason, the remaining provisions not so declared shall nevertheless continue in full force and effect, but shall be construed in a manner so as to effectuate the intent of this Agreement as a whole, notwithstanding such stricken provision or provisions.
6.02. Drafting. No provision of this Agreement shall be construed against any party merely because that party or counsel drafted or revised the provision in question. All parties have been advised and have had an opportunity to consult with legal counsel of their choosing regarding the force and effect of the terms set forth herein. This Agreement shall be deemed to be jointly prepared by the parties and therefore any ambiguity or uncertainty shall be interpreted accordingly.
6.03 Waiver. No term or provision of this Agreement shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other party, whether express or implied, shall not constitute a consent to, waiver of, or excuse for any different or subsequent breach.
6.04. Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Vendor may not assign this Agreement without the written consent of SuperFan Packs. SuperFan Packs may assign this Agreement in its sole discretion without the written consent of Vendor.
6.05. Amendments. This Agreement may be amended by SuperFan Packs by posting a new version of this Agreement within the control panel or any place that Vendor has access to in order to view the revised Agreement. Any new version of this Agreement will immediately replace in its entirety this Agreement.
6.06. Notices. All notices and other communications required or permitted under this Agreement shall be in writing and given by personal delivery, telecopy (confirmed by a mailed copy), or first class mail, postage prepaid, sent to the addresses set forth herein.
6.07. Section Headings: The section headings contained in this Agreement are for convenient reference only, and shall not in any way affect the meaning or interpretation of this Agreement.
6.08. Entire Agreement; Binding Effect. This Agreement, including the application form, all schedules, exhibits and attachments thereto, sets forth the entire agreement and understanding of the parties hereto in respect of the subject matter contained herein, and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, partner, employee or representative of any party hereto. This Agreement shall be binding upon and shall inure only to the benefit of the parties hereto and their respective successors and assigns. Nothing in this Agreement, express or implied, is intended to confer or shall be deemed to confer upon any persons or entities not parties to this Agreement, any rights or remedies under or by reason of this Agreement.
6.09. Governing Law; Waiver of Jury Trial; Arbitration. This Agreement will be governed by and construed in accordance with the laws of the State of Ohio without reference to conflict of law provisions. Any action, proceeding, arbitration or mediation relating to or arising from this Agreement must be brought, held, or otherwise occur in the federal judicial district that includes State of Ohio. PLEASE READ THIS PROVISION CAREFULLY. IT PROVIDES THAT ANY DISPUTE MAY BE RESOLVED BY BINDING ARBITRATION. ARBITRATION REPLACES THE RIGHT TO GO TO COURT, INCLUDING THE RIGHT TO A JURY AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING. Any claim, dispute or controversy (“Claim”) by either Vendors or SuperFan Packs against the other, or against the employees, agents, parents, subsidiaries, affiliates, beneficiaries, agents or assigns of the other, arising from or relating in any way to this Agreement or to our relationship, including Claims regarding the applicability of this arbitration clause or the validity of the entire Agreement, shall be resolved exclusively and finally by binding arbitration administered by the American Arbitration Association, under its Commercial Arbitration Rules in effect at the time the Claim is filed, except as otherwise provided below. All Claims are subject to arbitration, no matter what theory they are based on or what remedy they seek. This includes Claims based on contract, tort (including intentional tort), fraud, agency, your or our negligence, statutory or regulatory provisions, or any other sources of law. Claims and remedies sought as part of a class action, private attorney general or other representative action are subject to arbitration on an individual (non-class, non-representative) basis, and the arbitrator may award relief only on an individual (non-class, non-representative) basis. The arbitration will be conducted before a single arbitrator and will be limited solely to the Claim between Vendor and SuperFan Packs. The arbitration, or any portion of it, will not be consolidated with any other arbitration and will not be conducted on a class-wide or class action basis. If either party prevails in the arbitration of any Claim against the other, the non-prevailing party will reimburse the prevailing party for any fees it paid to the American Arbitration Association in connection with the arbitration, as well as for any reasonable attorneys’ fees incurred by the prevailing party in connection with such arbitration. Any decision rendered in such arbitration proceedings will be final and binding on the parties, and judgment may be entered in a court of competent jurisdiction. Any arbitration hearing at which you appear will take place at a location within the federal judicial district that includes State of Ohio. This arbitration agreement applies to all Claims now in existence or that may arise in the future. Nothing in this Agreement shall be construed to prevent any party’s use of (or advancement of any Claims, defenses or offsets in) bankruptcy or repossession, replevin, judicial foreclosure or any other prejudgment or provisional remedy relating to any collateral, security or other property interests for contractual debts now or hereafter owed by either party to the other. IN THE ABSENCE OF THIS ARBITRATION AGREEMENT, VENDOR AND SUPERFAN PACKS MAY OTHERWISE HAVE HAD A RIGHT OR OPPORTUNITY TO LITIGATE CLAIMS THROUGH A COURT BEFORE A JUDGE OR A JURY, AND/OR TO PARTICIPATE OR BE REPRESENTED IN LITIGATION FILED IN COURT BY OTHERS (INCLUDING CLASS ACTIONS), BUT EXCEPT AS OTHERWISE PROVIDED ABOVE, THOSE RIGHTS, INCLUDING ANY RIGHT TO A JURY TRIAL, ARE WAIVED AND ALL CLAIMS MUST NOW BE RESOLVED THROUGH ARBITRATION.
6.10. Jurisdiction; Venue; Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio (irrespective of its choice of law principles). The parties hereby agree that any suit to enforce any provision of this Agreement or arising out of or based upon this Agreement or the business relationship between the parties hereto shall be brought in federal or state court in State of Ohio. Each party hereby agrees that such courts shall have exclusive personal jurisdiction and venue with respect to such party, and each party hereby submits to the exclusive personal jurisdiction and venue of such courts.
6.11. Attorney’s Fees. Should suit be brought to enforce or interpret any part of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs, including expert witness fees and fees on any appeal.
6.12. Vendor hereby grants to SuperFan Packs a nonexclusive, non-transferable right during the term of this Agreement to use Vendor’s name and logo to identify Vendor as a customer of SuperFan Packs on the SuperFan Packs web site and in SuperFan Packs’ collateral marketing materials.
6.13. Survival. All representations, covenants and warranties shall survive the execution of this Agreement, and sections 3.01, 3.02, 4.04, 4.05, 5.01, 5.02, 5.03, 5.04, 5.05, 5.06, 5.07, 5.08, 5.09, 5.10, 5.11, 6.01, 6.02, 6.03, 6.04, 6.05, 6.06, 6.07, 6.08, 6.09, 6.10, 6.11. 6.12 and 6.13 shall survive termination of this Agreement.
Exhibit A
SuperFan Packs will provide one or more of the following:
Superfan Packs branded foil
Superfan Packs branded boxes
Superfan Packs Co-branded Foil with custom QR
Superfan Packs Co-branded Boxes with custom QR
Superfan Branded Gift Paper
SFP Display Boxes
Vendor Access to Individual Store on Marketplace
SFP Software
Non Branded Foil
Percentage of Revenue for each completed sale on the marketplace: _7-10% + 30 cents/ transacation________
SCHEDULE 1
End User Agreement Provision
The product used by End User contains or uses material (“Third Party Materials”) provided by or licensed from third party companies (“Technology Providers”). Those Technology Providers require Vendor to make certain disclosures and pass along certain responsibilities to End User. For such Technology Providers, End User specifically acknowledges and agrees that: (a) the End User Agreement is between Vendor and End User, and the Technology Providers are not parties to the End User Agreement; (b) the Technology Providers and their parent, subsidiaries and affiliates are third party beneficiaries of the End User Agreement and, upon End User’s acceptance of the terms and conditions of the End User Agreement, the Technology Providers will have the right (and will be deemed to have accepted the right) to enforce the End User Agreement against End User; (c) Technology Providers have no obligation whatsoever in connection with the functionality or content of the services provided by Vendor to End User, or to furnish any maintenance or support services with respect thereto; (d) Technology Providers are not responsible for addressing any claims, losses, liabilities, damages, costs or expenses incurred by End User or a third party relating to the services provided by Vendor to End User, including without limitation (i) product liability claims; (ii) any claim that the services fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; (e) in the event of any third party claim that the services provided by Vendor to End User infringes such third party’s intellectual property rights, Technology Providers are not responsible for the investigation, defense, settlement and/or discharge of such claim; and (f) the Technology Providers reserve all rights in their respective Third Party Materials not expressly granted to End User in the End User Agreement, and End User’s use of the Third Party Materials contained or used in connection with the services provided by Vendor to End User is subject to the same restrictions as are set forth in the End User Agreement.
CONFIDENTIALITY AND TRADE SECRET AGREEMENT
The parties to this Confidentiality and Trade Secret Agreement (“Agreement”) are Fan Packs, LLC – DBA Superfan Packs (“Company”) and/or individual whose name and address are set forth below on the signature page for this Agreement (“Partner”).
Whereas, Company and Partner will be revealing confidential information and trade secrets to each other in connection with exploring a business opportunity of mutual interest (the “Opportunity”); and
Whereas, Company and Partner wish to protect this confidential information and trade secrets and their businesses would be substantially harmed by competitors knowing their confidential information and trade secrets;
Therefore, for good and valuable consideration, which the parties agree and warrant is sufficient to support enforcement of this Agreement, Company and Partner hereby agree as follows:
1. In reliance upon this Agreement, each of the parties (acting as a “Disclosing Party”) may disclose to the other (acting as a “Receiving Party”) Confidential Information of the Disclosing Party. Receiving Party hereby acknowledges and agrees that certain items of information currently in Receiving Party’s possession or later to come into Receiving Party’s possession presently constitute or shall constitute in the future valuable trade secrets or proprietary business information of Disclosing Party. Such items of information, which are herein collectively referred to as the “Confidential Information,” shall include the following, whether disclosed either directly or indirectly in writing, orally or by inspection of tangible objects and whether or not designated as “confidential” at the time of disclosure:
(a) All product plans, product formulae, customer requirements, inventions, discoveries, ideas, processes, designs, drawings, hardware, software formulations, specifications, and all other technical data used or useful in Disclosing Party’s business or related to any research and development activities carried on by Disclosing Party.
(b) All customer lists, accounting, costs, sales, and other information relating to Disclosing Party’s business.
(c) All other information of any type or description whatsoever which is protected by law as a trade secret or as proprietary information of Disclosing Party, or which has been designated to Receiving Party either orally or in writing as a trade secret or proprietary information of Disclosing Party. For purposes of the foregoing sentence, “trade secret” shall include, without limitation, any formula, device, or compilation of information not generally known in the industry which Disclosing Party uses in its business and which gives Disclosing Party an opportunity to obtain an advantage over competitors who do not know it.
(d) All Confidential Information (as herein defined) of all customers, contractors, and others with whom Disclosing Party had, has or will have a business relationship learned or acquired by Receiving Party during the course of or as a result of Receiving Party’s contractual relationship with Disclosing Party.
(e) The existence of this Agreement and its terms and the fact that the parties are engaged in any discussions, negotiations or proposals occurring hereunder.
All of the foregoing information shall be deemed “Confidential Information”. Notwithstanding the foregoing, Confidential Information shall not include any information that the Receiving Party can establish: (i) was publicly known or made generally available without a duty of confidentiality prior to the time of disclosure to Receiving Party by Disclosing Party; (ii) becomes publicly known or made generally available without a duty of confidentiality after disclosure to Receiving Party by Disclosing Party through no action or inaction of Receiving Party; or (iii) is in the rightful possession of Receiving Party without confidentiality obligations at the time of disclosure by Disclosing Party to Receiving Party as shown by Receiving Party’s then-contemporaneous written files and records kept in the ordinary course of business; provided that any combination of individual items of information shall not be deemed to be within any of the foregoing exceptions merely because one or more of the individual items are within such exception, unless the combination as a whole is within such exception
2. Receiving Party shall only use the Confidential Information during the term of this Agreement solely in connection with evaluating and engaging in discussions concerning the Opportunity. Receiving Party shall not, directly or indirectly, either during the term of its relationship with Disclosing Party or thereafter, disclose or use the Confidential Information other than as provided in this Agreement or directed in writing by Disclosing Party without the prior written consent of Disclosing Party.
3. Receiving Party shall not, directly or indirectly, either during the term of its relationship with Disclosing Party or thereafter, take, copy, or remove any of the Confidential Information from Disclosing Party’s premises, whether in the form of manuals, printed sheets, reproductions, personal notes, or otherwise, without the prior written consent of Disclosing Party.
4. Receiving Party shall at all times and forever safeguard and protect all of the Confidential Information of Disclosing Party to prevent its being exposed to, or taken by, unauthorized persons, and when entrusted to Receiving Party will exercise its best efforts to assure its safekeeping. Notwithstanding any provision of this Agreement to the contrary, in the event that Receiving Party is requested or required in writing pursuant to a judicial, administrative or governmental proceeding or is otherwise required by law to disclose any Confidential Information, Receiving Party may disclose any such requested Confidential Information provided that Receiving Party will immediately provide Disclosing Party with written notice of same and all related proceedings so that Disclosing Party may seek an appropriate protective order.
5. Upon request of a Disclosing Party, Receiving Party will deliver to Disclosing Party, within three (3) days of receiving such request, all Confidential Information which is in the possession or control of the Receiving Party.
6. Non-Solicitation.
(a) During the period that this Agreement is in effect and for the two-year period immediately following termination of this Agreement, each party shall not directly or indirectly through another entity (i) induce or attempt to induce any management level employee of, or consultant to, the other party or its subsidiaries to leave the employ of, or consultancy to, the other party or its subsidiaries, or in any way interfere with the relationship between the other party or its subsidiaries and any management level employee or consultant thereof, (ii) hire any person who was a management level employee of, or consultant to, the other party or its subsidiaries at any time during the twelve-month period immediately prior to the date on which such hiring would take place without the written consent of an officer of the other party (it being conclusively presumed by the parties so as to avoid any disputes under this section that any such hiring within such twelve-month period is in violation of clause (i) above); (iii) call on, solicit or service any customer, supplier, licensee, licensor, consultant, contractor or other business relation of the other party or its respective subsidiaries in order to induce or attempt to induce such person to cease doing business with the other party or its subsidiaries, or in any way interfere with the relationship between any such customer, supplier, licensee, licensor, consultant, contractor or other business relation and the other party or its subsidiaries (including, without limitation, making any negative statements or communications about the other party or its subsidiaries); or (iv) call on, solicit, or take away or attempt to call on, solicit, or take away any of the other party ‘s customers and vendors on whom the party called or became acquainted during its relationship with the other party, either on its behalf or that of other person, firm, or corporation; provided that nothing in this paragraph shall apply to (i) any management level employee who responds to general solicitations of employment or contact from any executive recruiter and/or employment agency not specifically directed toward employees of the other party, which general solicitations are expressly permitted or (ii) the employment of any person who contacts the other party on his or her own initiative without any direct or indirect solicitation from the other party.
(b) If, at the time of enforcement of the covenants contained in this section above (the “Protective Covenants”), a court shall hold that the duration, scope or area restrictions stated herein are unreasonable under circumstances then existing, the parties hereto agree that the maximum duration, scope or area reasonable under such circumstances shall be substituted for the stated duration, scope or area and that the court shall be allowed to revise the Protective Covenants to cover the maximum duration, scope and area permitted by law. Independent Contractor agrees that the Protective Covenants are reasonable in terms of duration, scope and area restrictions and are necessary to protect the goodwill of the parties’ businesses and agrees not to challenge the validity or enforceability of the Protective Covenants.
(c) If any party breaches, or threatens to commit a breach of, any of the Protective Covenants, the non-breaching party and its subsidiaries shall have the following rights and remedies, each of which rights and remedies shall be independent of the others and severally enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to it or its subsidiaries at law or in equity:
(i) the right and remedy to have the Protective Covenants specifically enforced by any court of competent jurisdiction, it being agreed that any breach or threatened breach of the Protective Covenants would cause irreparable injury and that money damages would not provide an adequate remedy; and
(ii) the right and remedy to require the breaching party to account for and pay over any profits, monies or other benefits derived or received as the result of any transactions constituting a breach of the Protective Covenants.
7. “Intellectual Property” means all of the following owned by a party: (i) trademarks and service marks (registered and unregistered) and trade names, and goodwill associated therewith; (ii) patents, patentable inventions, computer programs, and software; (iii) databases; (iv) trade secrets and the right to limit the use or disclosure thereof; (v) copyrights in all works, including software programs; and (vi) domain names. The rights owned by a party in its Intellectual Property shall be defined, collectively, as “Intellectual Property Rights.” Neither party grants any Intellectual Property rights to the other party by implication, estoppel or otherwise. Each party shall retain all ownership rights, title, and interest in and to its own products and services and all intellectual property rights therein. Each party shall have the sole right, but not the obligation, to pursue copyright and patent protection, in its sole discretion, for any of its own Intellectual Property. Neither party shall remove or destroy any proprietary, confidentiality, trademark, service mark, or copyright markings or notices placed upon or contained in any materials or documentation received from the other party in connection with this Agreement.
8. In any action at law or in equity to enforce or construe any of the provisions or rights under this Agreement, the unsuccessful party or parties to such litigation, as determined by the courts in a final judgment or decree, shall pay the successful part or parties all costs, expenses, and attorneys’ fees incurred therein by such successful party or parties (including without limitation such costs, expenses, and fees on any appeals), and if such successful party or parties shall recover judgment in any such action or proceeding, such costs, expenses, and attorneys’ fees shall be included in as part of such judgment. Any litigation concerning this agreement shall be venued in the state or federal courts located in Ohio, and each party consents to the personal and exclusive jurisdiction of such courts.
9. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any way.
10. The provisions of this Agreement shall inure to the benefit of and are binding on Receiving Party’s heirs, personal representatives, successors, and assigns, and the successors and assigns of Disclosing Party.
11. This Agreement and any question concerning its validity, construction, or performance shall be governed by the laws of the State of Ohio, irrespective of the place of execution or the place or places of performance. EACH PARTY HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY COMMON LAW OR STATUTORY OR OTHER CLAIMS UNDER LOCAL, STATE, OR FEDERAL LAW. EACH PARTY HEREBY ACKNOWLEDGES AND UNDERSTANDS THAT SUCH PARTY HAS A CONSTITUTIONAL RIGHT TO A JURY TRIAL BUT HAS FREELY AND VOLUNTARILY CHOSEN, WITH THE ADVICE OF COUNSEL, TO WAIVE THE RIGHT TO SUCH A JURY TRIAL AS TO ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
12. This Agreement sets forth the entire agreement and understanding of the parties hereto in respect of the subject matter contained herein, and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, partner, employee or representative of any party hereto. This Agreement may only be amended or otherwise modified except by a writing signed by the parties to this Agreement. This Agreement may be executed in two or more counter-parts and via facsimile, each of which shall be deemed an original, all of which together shall constitute one and the same instrument.
