This is an agreement between Bang Productions, Inc. (the "COMPANY") and you, the purchaser (the "DISTRIBUTOR") governing any and all orders placed by you from us.
For good and valuable consideration, and in consideration of the mutual covenants and conditions set forth, and with the intent to be legally bound thereby, COMPANY and DISTRIBUTOR hereby agree as follows:
A. DEFINED TERMS. Unless the parties, in writing, agree otherwise, the following defined terms shall have the meanings set forth herein:
2. PRODUCT COST; RISK OF LOSS; RESALE PRICING
A. PRODUCT COST. DISTRIBUTOR agrees to pay COMPANY, the price of PRODUCTS plus shipping and handling costs, as agreed by the parties in accordance with separate purchase order(s). Title to PRODUCTS and all risk of loss shall pass to DISTRIBUTOR at the time of delivery by the COMPANY to the shipping carrier.
B. TERMS OF PAYMENT. Payment shall be due and payable within thirty (30) days of DISTRIBUTOR's receipt of the PRODUCT order from the COMPANY. In the event any order submitted by the DISTRIBUTOR is cancelled by the DISTRIBUTOR for any reason before shipment, the DISTRIBUTOR shall pay to the COMPANY any loss, damage or expenses incurred as a result of the cancelled order.
C. PAST DUE ACCOUNTS. The Parties agree that all invoices and bills are due and are to be paid by DISTRIBUTOR to COMPANY within thirty (30) days of receipt of PRODUCTS. Any payments not made within such thirty day period shall accrue interest from the date due until the date paid at twelve percent (12%) per annum or the maximum per annum rate allowable by law, whichever is lower.
D. RESALE PRICING. DISTRIBUTOR acknowledges and agrees that DISTRIBUTOR will not sell any PRODUCT to any Customer at a price that is below the Quantity Wholesale Price.
3. ACCEPTANCE OF ORDERS AND RETURNS
A. RETURNS IN GENERAL. DISTRIBUTOR must contact COMPANY prior to returning any Product(s) for any reason in order to obtain a RETURN AUTHORIZATION number. All returns must have a RETURN AUTHORIZATION number clearly written on the outside of all packages. Returns that do not have a RETURN AUTHORIZATION number clearly written on the outside of the package will not be accepted. PRODUCT(s) must be returned intact, in the same condition the PRODUCT(s) were originally delivered, including the PRODUCTS' original packaging unless the return is because such PRODUCT is defective. All requests to return PRODUCT(s) must be made within ten (10) business days of receipt of the PRODUCT(s) by DISTRIBUTOR or such PRODUCT(s) will be will be deemed "Overstocked Product ".
B. EFFECT OF RETURN. Upon receipt of a return made in compliance with Section 3A of this Agreement, COMPANY will compensate DISTRIBUTOR as follows, for:
4. LICENSE AND INTELLECUAL PROPERTY
A. NON-EXCLUSIVE REVOCABLE LICENSE TO USE COMPANY MARKS. Subject to the terms and conditions of this Agreement, COMPANY hereby grants to DISTRIBUTOR, in conjunction with DISTRIBUTOR's promotion, advertising, and distribution of the PRODUCTS, a non-exclusive, non-transferable, revocable right and license, subject to COMPANY's prior written approval:
B. UNAUTHORIZED USE:
C. NO OTHER LICENSES. DISTRIBUTOR's rights in and to the COMPANY's Content, the COMPANY's Marks, and the COMPANY's PRODUCTS shall be limited to those expressly granted in this Agreement. DISTRIBUTOR hereby agrees and acknowledges that COMPANY is the sole and absolute owner of any and all intellectual property associated with any promotional or other material generated by the DISTRIBUTOR with respect to the PRODUCTS. DISTRIBUTOR further acknowledges and agrees that COMPANY retains all ownership rights to the COMPANY's intellectual property, and COMPANY may revoke the license granted herein at anytime. Notwithstanding any provisions contained herein to the contrary, COMPANY will retain exclusive ownership rights to the COMPANY MARKS.
5. REPRESENTATIONS; WARRANTIES; AND LIMITATION OF LIABILITY
A. Each party represents and warrants that it has the right, title, interest and authority to enter into this Agreement and to fully perform its obligations hereunder, and that the rights granted hereunder shall not violate the rights of any third party. Each party represents and warrants that its conduct hereunder shall conform to all applicable federal, state and local law and regulation.
B. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER UNDER THIS AGREEMENT FOR ANY FORM OF SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY KIND (WHETHER OR NOT FORESEEABLE), EVEN IF INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO DAMAGES RESULTING FROM THE MISUSE OR UNAUTHORIZED USE, EXPLOITATION OF ANY AND ALL OF COMPANY'S INTELLECTUAL PROPERTY OR PURPORTED TRANSFER OF INTEREST IN ANY OF COMPANY'S INTELLECTUAL PROPERTY BY DISTRIBUTOR. SUCH ACTION SHALL RESULT IN IMMEDIATE LEGAL ACTION AGAINST DISTRIBUTOR FOR ALL AVAILABLE RELIEF INCLUDING, BUT NOT LIMITED TO, INJUNCTIVE RELIEF, DAMAGES, LOST PROFITS, AND MISAPPROPRIATION.
C. COMPANY WARRANTS THAT IT HAS GOOD AND MARKETABLE TITLE TO THE PRODUCTS SOLD TO DISTRIBUTOR.
Each party hereby indemnifies and holds harmless the other party, its parent, affiliated and subsidiary companies, their officers, directors and employees ("Indemnities") from any and all liabilities, claims, causes of actions, suits, losses damages, fines, judgments and expenses (including reasonable attorneys' fees) which may be incurred as a consequence of any breach of the covenants, warranties, representations and agreements herein. In the event any such claim is asserted by third parties, the contacted party agrees to immediately notify the other of the claim. Either party shall be afforded the opportunity to defend such claim, using legal counsel of its choice, at its own expense. Both parties reserve the right to resolve or settle any such claims, after consultation with the other party.
7. GOVERNING LAW AND VENUE
This Agreement and all matters arising out of or otherwise relating to this Agreement shall be governed in accordance with the laws of the State of Florida and controlling U.S. federal law. All disputes subject to arbitration under this Agreement shall be resolved under the procedure set forth in this Agreement, in Miami-Dade County, Florida. All Parties irretrievably consent to this form of dispute resolution and venue. Venue for any litigation permitted under this agreement or required by law shall be in Miami-Dade County, Florida, and the parties agree to accept service of process by mail in any such litigation.
8. BINDING ARBITRATION
If there is a dispute between the parties arising out of or otherwise relating to this Agreement, the parties shall meet and negotiate in good faith to attempt to resolve the dispute. If the parties are unable to resolve the dispute through direct negotiations, then, except as otherwise provided herein, either party may submit the issue to binding arbitration in accordance with the then-existing Commercial Arbitration Rules of the American Arbitration Association. The arbitration shall be conducted in Miami-Dade County, Florida, and conducted by a single arbitrator. The party bringing the action shall initially be responsible for paying all costs for arbitration, including the arbitrator's fees. The arbitrator shall have no authority to award any punitive or exemplary damages; certify a class action; add any parties; vary or ignore the provisions of this Agreement; and shall be bound by governing and applicable law. This Section shall not apply to any breach (or any allegation which if true would constitute a breach) of any matter relating to intellectual property. THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY JURY IN REGARD TO ANY MATTER RELATING TO COMPANY MARKS OR COMPANY INTELLECTUAL PROPERTY.
9. RELATIONSHIP OF PARTIES
Nothing in the Agreement shall be deemed to constitute, create, imply, give effect to, or otherwise recognize a partnership, joint venture or formal business entity of any kind; and the rights and obligations of the Parties shall be limited to those expressly set forth herein.
A. TO DISTRIBUTOR. Unless otherwise requested in writing by DISTRIBUTOR, all notices from COMPANY to DISTRIBUTOR shall be sent to the same address as the address at which DISTRIBUTOR is billed by COMPANY.
B. TO COMPANY. Notices to COMPANY shall be sent to the same address as set forth on COMPANY's invoice to DISTRIBUTOR.
If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement.
12. ATTORNEYS' FEES
In the event of any litigation or arbitration permitted under this Agreement, the prevailing party shall be entitled to an award of reasonable attorneys' fees, including attorneys' fees incurred on appeal and costs, including all costs incurred with respect to any arbitration brought hereunder.
Neither party may assign this Agreement or the rights and obligations hereunder to any third party without the prior express written approval of the other party which shall not be unreasonably withheld.
The section headings contained herein are for convenience in reference and are not intended to define or limit the scope of any provision of this Agreement.
This Agreement constitutes the entire understanding of the Parties, and revokes and supersedes all prior agreements between the Parties. It shall only be modified or amended in writing signed by the Parties hereto and specifically referring to this Agreement. This Agreement shall take precedence over any previous or other documents which may conflict with this Agreement.
16. BINDING AGREEMENT
The parties acknowledge that they have read the foregoing agreement, and accept the legally binding nature of this agreement. Both parties have had an opportunity to consult with counsel regarding the terms of this agreement, and have either done so, or voluntarily waived the opportunity to do so.