THIS INDEPENDENT OPERATOR AGREEMENT (this "Agreement"), is made and entered into on ___________, 20__ (the "Effective Date"), by and between: _______________________, an [individual/company] with an operating address in _________________ (hereinafter referred to as "OPERATOR") and AFN Sports, LLC, an Illinois limited liability company (d/b/a "KNOCKERBALL®") (hereinafter referred to as "COMPANY"). OPERATOR and COMPANY, may each be referred to herein, individually as a "Party," and collectively as the "Parties." This Agreement reflects the agreement of the Parties to engage in business on the terms set forth below, as well as such other terms and conditions as the Parties may agree. Any and all substantive terms contained herein shall be deemed binding and conclusive as to the terms hereof. Any contractual terms not specifically set forth herein, shall first be determined vis-a-vis the course of dealing between the Parties and thereafter, what would otherwise be commercially reasonable in the respective field.
WHEREAS, COMPANY has created, invented, possesses and/or owns or has access to, valuable, intellectual property surrounding "KNOCKERBALL®," confidential and proprietary information, experience, relationships and/or technology generally related to the methodologies and the components thereof, and all related issues, marketing models, financial models and business models (COMPANY "Confidential Information" as more particularly defined below), which COMPANY has revealed and/or will reveal to OPERATOR in confidence, for the purposes of allowing OPERATOR to carry on and conduct an independently owned and operated bubble soccer business, using certain of the "KNOCKERBALL®" intellectual property;
WHEREAS, COMPANY and OPERATOR desire to establish the parameters of OPERATOR's use of the KNOCKERBALL® intellectual property as well as, provide for related terms and conditions; and
WHEREAS, the Parties consider their ongoing relationship and potential business relationship to be independently valuable:
NOW, THEREFORE, for and in consideration of the ongoing and potential relationship between COMPANY and OPERATOR, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, COMPANY and OPERATOR, intending to be legally bound, do hereby agree as follows:
- Recitals. The Parties agree the above recitals are true and correct and incorporated herein.
- Term. This Agreement shall be for a one (1) month period and shall be automatically renewed (unless otherwise terminated as set forth herein) for twelve (12) consecutive months through one (1) year after the effective date of execution; however, certain provisions as noted below shall survive the natural expiration of this Agreement. The Agreement may thereafter be mutually renewed by the Parties.
- Operational Terms. COMPANY and OPERATOR each agree, as follows:
- The Brand. COMPANY has expended time, money and effort to develop a unique system devoted primarily to sales of bubble soccer equipment. COMPANY identifies, markets and advertises its goods and services with the "KNOCKERBALL®" brand, service mark, trade name and registered trademark.
- Grant of License. Subject to the terms and conditions of this Agreement and OPERATOR's continuing faithful performance, COMPANY hereby grants OPERATOR the non-exclusive right and license to operate an independent bubble soccer business under the KNOCKERBALL® mark. OPERATOR agrees to purchase bubble soccer balls and related products solely from COMPANY, which agrees to sell to OPERATOR all of OPERATOR's requirements for KNOCKERBALL® brand bubble soccer balls at the prices and on the terms established by COMPANY from time to time. OPERATOR agrees that is shall not use any other brands for bubble soccer balls or related equipment, where KNOCKERBALL® brand bubble soccer balls or related equipment is available.
- Rights upon Termination. Upon termination, OPERATOR agrees to terminate the use of all COMPANY references, marks, logos, and videos, with the exception of on-going use of KNOCKERBALL® branded bubble balls and other KNOCKERBALL® bubble ball equipment that displays the KNOCKERBALL® mark and logo, within ten (10) days from effective date of the termination. Upon termination, any continued use of KNOCKERBALL® branded bubble balls and other KNOCKERBALL® bubble ball equipment that displays the KNOCKERBALL® mark and logo may only be used in manners that do not suggest any affiliation or relationship with COMPANY. OPERATOR understands that the KNOCKERBALL® mark is solely owned by AFN SPORTS LLC d/b/a KNOCKERBALL®.
- OPERATOR agrees that COMPANY maintains full rights in any licensed domain names/URL's and websites, specifically created for said OPERATOR under the terms of this Agreement. Any and all fees paid for the construction and provision of an OPERATOR website are non-refundable in the event of termination. Upon Termination, COMPANY shall continue to own and operate such domain names/URL's and websites;
- In the event that OPERATOR has any rights to domain names/URL's, has purchased any "adwords," and/or is using any underlying metadata in any online capacity, directly or indirectly related to the KNOCKERBALL® brand, including without limitation, the use of "KB," as to such domain names/URL's and websites, OPERATOR shall immediately upon Termination, turn over same to COMPANY, and as to such "adwords" and metadata, OPERATOR shall cease and desist from and further use of same; and,
iii. OPERATOR shall cease and desist from the reference to the KNOCKERBALL® brand, in any social media.
- Territorial Provisions. No exclusive territory. OPERATOR's business shall be conducted at a location of OPERATOR's choosing. COMPANY reserves the right, either directly and/or through others, to operate or license others to operate KNOCKERBALL® bubble soccer businesses, which may operate in OPERATOR's sales and marketing area. COMPANY does not guarantee any specific territory or distance between OPERATOR and any other operator. COMPANY makes no representations or warranties regarding specific territories or territorial protection of OPERATOR's business. COMPANY does not warrant or represent that no other KNOCKERBALL® operator will solicit or make any sales within the sales and marketing area of OPERATOR's business, and OPERATOR expressly acknowledges that such solicitations or sales may occur. COMPANY shall have no duty to protect OPERATOR from any such sales, solicitations, or attempted sales. OPERATOR recognizes and acknowledges that OPERATOR will compete with other KNOCKERBALL® locations that are now, or that may in the future be, located near or adjacent to OPERATOR's operations.
- Use of Mark. COMPANY is the sole and exclusive owner of the KNOCKERBALL® mark and KNOCKERBALL® name and all goodwill associated with or generated by use of the mark. OPERATOR's use of the KNOCKERBALL® mark does not vest OPERATOR with any interest therein other than the non-exclusive license to use the mark for the purposes granted by this Agreement. COMPANY, in its sole discretion, is entitled to control all decisions concerning the KNOCKERBALL® mark. OPERATOR is authorized to use the KNOCKERBALL® mark only in connection with the operation of a KNOCKERBALL® bubble soccer business and only in the manner that COMPANY authorizes and only for the period of time authorized by COMPANY. OPERATOR's right to use the KNOCKERBALL® mark is limited to use during the term of this Agreement and in compliance with standards prescribed by COMPANY from time to time. OPERATOR must prominently display the KNOCKERBALL® mark in the manner that COMPANY prescribes on all signs that COMPANY designates.
- Non-disparagement. OPERATOR will not (i) at any time commit any act that would impair the value of the KNOCKERBALL® mark or the goodwill associated with the mark, including but not limited to, disparage the COMPANY and/or its goods or services (ii) at any time engage in any business or market any product or service under any name or mark that is confusingly or deceptively similar to the KNOCKERBALL® mark; (iii) use the KNOCKERBALL® mark as part of OPERATOR's corporate or trade name, or as part of any e-mail address, web-site address, domain name, or other identification of OPERATOR's business in any electronic medium without COMPANY's express, written consent; or (iv) use any trademark, trade name, service mark, logo, slogan or emblem that COMPANY has not authorized for use in connection with OPERATOR's bubble soccer business, including any co-branding or cross-promotional efforts containing the name, trademark, service mark, logo or emblem of any third party, without COMPANY's approval.
- Advertising. Recognizing the importance of the standardization of advertising to the furtherance of the goodwill and public image of the KNOCKERBALL® mark, OPERATOR shall not use the KNOCKERBALL® mark in advertising in any manner that COMPANY shall find objectionable. Before their use by OPERATOR, samples of all advertising, marketing and promotional materials shall be submitted to COMPANY for approval within the thirty (30) day period preceding their intended use. Any internet website, social media site or channel (such as, but not limited to, Facebook and Twitter accounts or sites) and other digital or electronic marketing channels or media, whether now existing or hereafter created (collectively "Electronic Channels") are deemed "advertising" under this Agreement and will be subject to prior approval by COMPANY.
- Website & KB USA License - COMPANY will provide to OPERATOR an initial KNOCKERBALL® License, as well as the primary construction, installation and hosting of an OPERATOR KNOCKERBALL® Website, with Editor privileges only, for the initial, non-refundable License Fee of $ _________________. The License and hosting shall continue, unless notified in writing 15 days in advance, on a month to month basis, with charges as per the KNOCKERBALL® Affiliate Brochure, commencing the 1st Day of the next Calendar Month from the Effective Date of Agreement on Page 1 of this agreement at the OPERATOR's selected rate below of:
Affiliate Package $99/month ________ KNOCKERBALL PRO Package $149/month _________
If administrator or FTP privileges are desired of the provided website, OPERATOR can create and host their own website (subject to turn over to COMPANY upon Termination) and is not obligated to use the COMPANY provided website but the finished website, to achieve standardization and goodwill and public image of the KNOCKERBALL® mark, must be approved by COMPANY and must contain unique content differing from that of other KNOCKERBALL® OPERATOR websites and the COMPANY websites. Direct copy & paste or plagiarization of website content is not authorized. COMPANY may offer additional support, for OPERATOR's website at COMPANY's then current rate.
- Marketing - COMPANY has and may in the future adopt various marketing programs for brand and product support including a national forum for KNOCKERBALL® operators, certain discounts on products and apparel, legal forms, business contacts, directory listings, unique access to knockerball.org, video and still assets, and potential commissions for the resale of products as a result of both referral or web re-directing. COMPANY reserves the right to modify or eliminate any current or future offerings.
- KB Forum - Upon execution of this Agreement and receipt by COMPANY of OPERATOR's initial product order, OPERATOR will be invited to participate in the KB Nation Forum. COMPANY reserves the right to eliminate posts it considers objectionable as detrimental to the brand development, insulting, or containing harsh or derogatory language. Ultimately, COMPANY reserves the right to eliminate an OPERATOR from the forum at any time and will provide OPERATOR with written notification in such an event.
- Warranty Claims - OPERATOR agrees to use best efforts to fix or patch broken units prior to making claims for warranty for Knockerballs that are put into rental service. Certain product failures may be deemed unsafe for future use and the OPERATOR and COMPANY agree that those units that possess certain failures must be pulled out of service immediately. For example: any unit where the strap joint has pulled away from the main unit, broken handles, or those units that will not hold a minimum of 2.8 lbs. of pressure during extended play. Warranty period of a KNOCKERBALL® is one (1) year from the date of purchase and Warranty replacement is half (14) price. Warranty does not transfer to new business owner if business is sold;
- Limitation of Liability - COMPANY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO ANY PROGRAM DOCUMENTATION OR OTHER MATERIAL FURNISHED HEREUNDER, OR ANY COMPONENT THEREOF, AND EXPRESSLY EXCLUDED ARE ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT THERETO. WE HAVE NO LIABILITY FOR CONSEQUENTIAL, EXEMPLARY, INCIDENTAL OR PUNITIVE DAMAGES.
- Business Management - OPERATOR acknowledges that: (i) COMPANY will have no responsibility for the day-to-day operations or management of OPERATOR's business, including ensuring the safety and security of OPERATOR's customers or employees; (ii) OPERATOR independently controls the operation of
its business and the results of its operations will depend almost exclusively on OPERATOR's business acumen and promotional and managerial efforts; and (iii) COMPANY has no responsibility for or control or supervision of OPERATOR's employment or other business practices.
- Indemnification - COMPANY will not be liable by reason of any act or omission by OPERATOR in its operation of the KNOCKERBALL® business or for any claim, cause of action or judgment arising therefrom against OPERATOR or COMPANY. OPERATOR must hold harmless, defend (with COMPANY's choice of counsel) and indemnify COMPANY, and COMPANY’S respective equity holders, officers, directors, agents and employees, from and against any and all losses, expenses, judgments, claims, costs (including reasonable attorney fees) and damages arising out of or in connection with any claim against COMPANY, or cause of action in which COMPANY is, or becomes a named defendant, counter-defendant, third-party defendant or is otherwise brought into a claim or litigation, that arises, directly or indirectly, out of the construction or operation of, or in connection with, OPERATOR's KNOCKERBALL® business, other than a claim, against COMPANY, which is finally determined to have resulted solely and directly and only from COMPANY's gross negligence;
- Insurance —OPERATOR must obtain prior to the of receipt of the Knockerballs themselves and maintain throughout the term of this Agreement such insurance coverages with such limits as specified below under policies issued by carriers rated "B+" or better by A.M. Best COMPANY:
- Workers' compensation and other insurance required by law;
- Commercial general liability insurance on an "occurrence" form covering all operations by or on behalf of you, providing insurance for bodily injury liability, property damage liability, premises and operations liability, products and completed operations liability and, blanket contractual liability ("umbrella policy") insuring the obligations assumed by OPERATOR under this Agreement.
The limits of liability required for the policies specified in (ii) above are: $1,000,000.00 each occurrence (combined single limit for bodily injury and property damage); $1,000,000.00 personal injury liability; $1,000,000.00 aggregate for products - completed operations; and $2,000,000.00 general aggregate. COMPANY and FAN SPORTS LLC, an Illinois limited liability company must be named as an additional insured on all policies on a primary, non-contributory, basis and remain a Certificate Holder. A copy of all policies shall be provided to COMPANY as received by OPERATOR. These are only the minimum coverages required. COMPANY does not represent or warrant that these coverages are adequate. OPERATOR should consult with insurance advisors to assure that all required coverages as well as any additional types of coverages or higher limits that they may recommend are held. Upon request, operator must deliver to COMPANY, all copies of all such policies of insurance and proof of payment therefor. All policies required hereunder must provide that the insurer will endeavor to give COMPANY written notice not less than thirty (30) days before the date the coverage is canceled, altered, or permitted to lapse or expire.
Upon the failure of OPERATOR to provide a copy of the compliant policies to COMPANY, COMPANY may take down any subject websites, remove access to the subject forums and remove OPERATOR from the directory, pending the production to COMPANY of the compliant policies.
- OPERATOR shall use his/her/its best efforts to perform the Operational Terms set forth herein. Noting, that although the COMPANY will not dictate the time, manner or method for the performance of the services hereunder, OPERATOR shall in all cases, perform under this Agreement in a faithful, diligent, responsible, and professional and workmanlike manner, using as high a degree of skill and care as is commercially reasonable under the circumstances, but with no less degree of skill and care than the industry standard;
- Notwithstanding anything herein to the contrary, unless otherwise expressly granted in writing by the COMPANY in a separate signed writing, OPERATOR shall have no authority to bind the COMPANY to any contract, agreement or obligation, the acts of OPERATOR shall in no way constitute the acts the
COMPANY, and OPERATOR shall not represent to any third party that OPERATOR has any express or implied authority to bind the COMPANY to any such contract, agreement or obligation; and,
- COMPANY and OPERATOR shall agree on all other substantive terms as necessary.
- Nondisclosure Obligations: COMPANY and OPERATOR, each understanding that thee will likely be an exchange of Confidential Information (as defined below), agree to treat such confidential Information as follows:
- Confidential Information. For purposes of this Agreement, By way of illustration and not limitation, the term "Confidential Information" includes (a) trade secrets, inventions, recipes, designs, concepts, discoveries, techniques, developments, methodologies, photographs, mask works, ideas, processes, formulae, source and object code, data, programs, works of authorship, know-how, and improvements, notes, drawings, molds, specifications, job site photographs, analyses, studies, drafts, computer programs and programming, software, engineering reports or analyses, product catalogs and manufacturing materials for producing products; (b) information regarding plans for research, development, new products, patenting, marketing and selling, business plans, budgets and unpublished financial statements, licenses, prices and costs, functional overviews, screen layouts, report layouts, processing flow charts and other work products, drawings, proposals, job notes, reports, records, and specifications, whether the foregoing have been developed by or for the disclosing Party or otherwise obtained by the disclosing Party; (c) business relationships, contacts, suppliers and customers, prospects, strategies, records, files, or other similar information; (d) product agreements, service agreements, licenses, and negotiations; (e) disclosing Party's policy and operating manuals or procedures, work-flow systems, product-design processes and systems and strategies for providing services; (f) personnel and staff lists, salary, or benefit information; and (g) any other confidential or private information concerning matters relating to the business of the disclosing Party, any of its customers, customers contacts, licenses, the prices it obtains or has obtained for the sale of its products and services, or any other confidential information concerning the business of the disclosing Party and the disclosing Party's good will. The term "Confidential Information," includes, without limitation, information and data, whether in written, oral, graphic or machine-readable form, whether or not patentable or copyrightable, but shall not include that which is (i) publicly available by other than unauthorized means, (ii) disclosed to others by the disclosing Party or other proper Party without restriction, (iii) rightfully received from a third Party without restriction, (iv) discoverable by common observation, through publicly or commercially available sources, or by inspection or analysis of products in the market place, or (v) general skill and knowledge, in whatever form or medium, furnished or disclosed by the Parties to each other (or to the related entities, employees, officers, directors, stockholders or other representatives of the other), including without limitations, drawings, plans, models, designs, proposals, marketing plans and data, product or service specifications, product performance information, computer programs, manufacturing information, financial data and personnel statistics. Further, the identity of "key" individuals and their contact information shall also be deemed Confidential Information;
- Maintenance of Confidentiality. The Parties each agree that Confidential Information of the other is confidential, proprietary and is a valuable trade secret of such Party and each agrees to hold all Confidential Information of the other in strict confidence. The Parties each further agrees to use Confidential Information of the other solely for purposes of pursuing the possible political and/or business relationship described above, and each agrees that such Confidential Information of the other will not be used in any way to adversely affect such Party's political position, business, assets or prospects or to compete with such Party. The receiving Party shall have a duty to protect all Confidential Information which is (i) Disclosed by the providing Party in writing (to include electronic transmissions and data files) and is marked as "Proprietary" or "Confidential," or with a similar legend, at the time of disclosure, (ii) Disclosed by the providing Party in any other manner and is identified as proprietary or confidential at the time of disclosure and is summarized and designated as proprietary or confidential in a written memorandum delivered to receiving Party within fifteen (15) days of the disclosure; during this fifteen (15) day period, such Information so disclosed shall be provided the same protection as provided Information marked with a restrictive legend in accordance with this paragraph or which is (iii) Confidential Information which is otherwise of the type and nature that is should be treated as confidential or proprietary;
- Safeguard of Confidential Information. Each Party shall take reasonable precautions to prevent the unauthorized disclosure or use of Confidential Information provided to it. A Party will be considered to have met this obligation if it treats the providing Party's Confidential Information with the same degree of care with which it safeguards its own confidential and proprietary information from disclosure or misuse, but with no less than reasonable care. Neither Party will make or permit disclosure of any Confidential Information of the other, directly or indirectly, under any circumstance or by any means, within its organization or to any third persons, except to its employees to whom disclosure is necessary for the purposes authorized above. Neither Party will copy, transmit, reproduce, summarize, quote, discuss with third Parties or make any commercial or other use whatsoever of the Confidential Information, or permit others to take any of the foregoing actions, except the disclosures to employees permitted by the preceding sentence. Each Party agrees to use all reasonable efforts to safeguard the Confidential Information against loss, theft, or other inadvertent disclosure and agrees generally to take all reasonable
steps necessary to ensure the maintenance of confidentiality. Any analyses, compilations, studies or other documents that are prepared for either Party's internal use and which reflects the Confidential Information will be kept confidential by that Party to the same extent as the Confidential Information itself. A receiving Party will not, during its relationship with disclosing Party or at any time thereafter, use or disclose, directly or indirectly in any manner, any Confidential Information of the disclosing Party, including the fact that Confidential Information has been made available to the receiving Party for any purpose other than in furtherance of the relationship with disclosing Party. The provisions of this Agreement regarding disclosure and use of Confidential Information shall survive the termination or expiration of this Agreement and shall be effective forever;
- Exclusions. The obligations imposed by this Agreement will not apply to any Confidential Information of a Party that (a) is already in the possession of the other Party as evidence by written records (other than as a result of disclosure from the Party seeking to maintain confidentiality); or (b) is or becomes publicly available through no fault of the other Party or of its employees officers, directors, stockholders, or other representatives; or (c) is obtained from a source other than the Party seeking to maintain confidentiality through no breach of confidence by the other Party;
- No Proprietary Right/Nonuse. The receiving Party hereby agrees that any Confidential Information is and shall remain the sole and exclusive property of the disclosing Party for use in the disclosing Party's business and shall be used solely in connection with furtherance of the business relationship with disclosing Party and shall not be used by receiving Party, directly or indirectly, in any other manner whatsoever. Under no circumstances whatsoever shall receiving Party have any proprietary or other legal right to the disclosing Party's Confidential Information during, or subsequent to the termination or cessation of, the business relationship of the Parties;
- Return of Documents. The receiving Party hereby agrees not to disclose, copy, or remove from the premises of the disclosing Party any documents, records, tapes or other media or format that contain or may contain Confidential Information, except as required by the nature of receiving Party's duties for the disclosing Party or as otherwise approved in writing by an authorized officer of the disclosing Party. Upon termination or cessation of the business relationship of the Parties, regardless of the reason for such termination or cessation, receiving Party hereby agrees to return immediately to the disclosing Party, or destroy at the disclosing Party's discretion, all originals and copies of documents, records, tapes, or any other media or format that contain or may contain Confidential Information. Furthermore, all Confidential Information belonging to disclosing Party will be and remain solely the property of disclosing Party. Any such return or destruction, as applicable, of Confidential Information shall be certified in writing by receiving Party to disclosing Party within three (3) days of the return or destruction. Any Confidential Information that is not returned or destroyed, including any oral Confidential Information, will continue to be kept confidential and subject of the terms of this Agreement;
- Mandatory Disclosure. In the event receiving Party is legally compelled to disclose Confidential Information belonging to disclosing Party, the receiving Party shall promptly notify disclosing Party of each such requirement so that disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. In any such event, receiving Party will only disclose such Confidential Information that s/he/it is advised by counsel to disclose and legally
required to be disclosed and shall exercise reasonable efforts to obtain assurance that confidential treatment will be accorded to such Confidential Information;
- Termination of Access; Right to Terminate Access. The receiving Party's access to Confidential Information shall automatically terminate at the termination or expiration of the relationship between the Parties with respect to the subject matter of this Agreement. Notwithstanding the foregoing, disclosing Party may immediately terminate access to its Confidential Information at any time; and,
- This clause shall be in force during the term of this Agreement and thereafter, for as long as applicable law allows; the intent being to protect Confidential Information forever.
- Non-Circumvention Obligations. The Parties understand that in the performance of this Agreement they may each reveal to each other, contacts and relationships which are not otherwise known to the general public or to whom the general public may otherwise not have access, and agree as follows:
- OPERATOR will not in any manner solicit, nor do business in any manner with individuals, entities, related parties or their affiliates ("Sourc(es)"), which were made available to them through this Agreement by COMPANY, without the prior written approval of COMPANY;
- Source shall include, without limitation, any contact, contract or transaction with all persons, companies (e.g., limited liability companies, etc.), firms, partnerships (e.g., general partnerships, limited liability partnerships, etc.), corporations (e.g., domestic, foreign, international), co-ventures, joint ventures, trusts or any other entity with which they or any associate, agent, employee, or representative are or may be in any way associated or concerned, no matter the country of origin or origination of the association;
- OPERATOR will not attempt either directly or indirectly, for the purposes of circumventing COMPANY, to make any contact with any individual or entity, including without limitation relationships, customers or clients, whose identity is made known to OPERATOR solely in connection with this Agreement, without the prior written approval of COMPANY. The identity of such individuals and entities shall be deemed proprietary and valuable to COMPANY.
- OPERATOR will maintain complete confidentiality regarding COMPANY's Sources and will disclose such Sources to third parties, only pursuant to the prior written approval of COMPANY;
- OPERATOR will not disclose names, addresses, e-mail address, telephone and tele-fax or telex numbers to any Sources, to third parties and OPERATOR recognizes such Sources as the exclusive property of COMPANY and they will not enter into any direct negotiations or transactions with such Sources;
- OPERATOR also undertakes not to make use of any third party to circumvent this clause; and,
- This clause shall be in force during the term of this Agreement and for one (1) year.
- Inventions and Creations Belong to Company.
- Ownership and Assignment of Creations. Any and all inventions, discoveries, improvements, creations, works or ideas (collectively "Creations") whether or not patentable, trademarkable or copyrightable which any Party has conceived or made or may conceive or make during the Term of this Agreement, and in any way, directly or indirectly, connected with COMPANY or its Confidential Information, shall be the sole and exclusive property of COMPANY. All Parties agree that (i) all works created by any Party or under COMPANY's direction in connection with COMPANY's businesses whether or not patentable or copyrightable are "works made for hire" and shall be the sole and complete property of COMPANY; (ii) any and all copyrights or patents to such works shall belong to COMPANY; and (iii) OPERATOR shall execute all documents that may be necessary to convey or assign any rights he/she/it may have in such Creations. To the extent such works are not deemed to be "works made for hire," OPERATOR hereby assigns all proprietary rights to improvements, modifications, adjustments, prototypes, or other developments regarding the subject matter of the COMPANY Confidential Information, including copyright and trademark, in these works to COMPANY without further compensation.
- If any of these improvements, modifications, adjustments, prototypes, or other developments made to the Creations becomes the subject of one or more intellectual property applications, the invention rights and any associated intellectual property rights shall be assigned from the inventing Party to COMPANY. All Parties agree to cooperate in the preparation and execution of any documents necessary to assign these invention rights and related intellectual property rights, and to participate in the prosecution of any related United States, International and other intellectual property rights applications in other any jurisdiction.
- In the event that the COMPANY is unable to for any reason, after reasonable effort, to secure any Party's signature on any document needed in connection with the actions specified in the preceding paragraph, all Parties hereby irrevocably designate and appoint the COMPANY and its duly authorized officers and agents as such Party's agent and attorney-in-fact, which appointment is coupled with an interest, to act for and on any Party's behalf to execute, verify, and file any such documents and to do all other lawfully permitted acts to further the purposes of the preceding paragraph with the same legal force and effect as if executed by any Party.
- Covenant Not to Compete. In accordance with this Agreement, the Parties will gain knowledge of certain proprietary information belonging to the COMPANY and valuable confidential business or professional information. The Parties
may also acquire substantial relationships with specific prospective or existing relationships, customers or clients and gain customer or client goodwill associated with the COMPANY's ongoing business. The Parties may additionally be provided with extraordinary or specialized training, specific to the Party's field of business and specific business. In light of the above, the Parties acknowledge and agree that the COMPANY is entitled to a Covenant Not to Compete and such restraint is reasonably necessary to protect the legitimate business interest or interests of the COMPANY.
- Accordingly, during the Term of this Agreement, and for a period of twelve (12) months after the end of the Term of this Agreement for any reason, OPERATOR shall not, directly or indirectly, through or with another person or entity, compete with the COMPANY anywhere where COMPANY does business, nor shall OPERATOR own an interest in or, as principal, agent, contractor, consultant, or employee or otherwise, engage in activities for or renders services to any firm or business that competes with the COMPANY, "Compete" being defined as conducting business in the field related to related bubble soccer, and marketing same and licensing same for commercial purposes, and any related fields and components thereof and all related issues, manufacturing models, marketing models and business models and any ancillary field related thereto. The territory shall be deemed to initially be the United States of America, and such other Countries as the COMPANY may be doing business at any time, and also those Countries in which COMPANY has reasonably advanced toward doing business. Notwithstanding the foregoing, OPERATOR may have an interest consisting of publicly traded securities constituting less than one percent (1%) of any class of publicly traded securities in any public company engaged in a business that competes with the COMPANY, so long as OPERATOR does not contract with, is not employed by and does not consult with, or become a director of or otherwise engage in any activities for, such company.
- "Compete" shall additionally include without limitation, soliciting, providing services to, or otherwise engaging in a business transaction with customers or clients of the COMPANY or any affiliate of the COMPANY, or directly or indirectly soliciting for employment any of the COMPANY's employees, or the employees of any of the COMPANY'S affiliates, or placing into public view any images, video, text or anything else created on behalf of the COMPANY, including but not limited to conceptual designs, works, b-roll, video, or images of any kind or any stage of completion or sharing, posting, displaying, or conversing about COMPANY projects on any social media or web sites, to include forums, personal pages or site, even whereas social media applications have been set to private (i.e Twitter, Facebook, YouTube, etc).
- Termination for Cause. COMPANY may terminate this Agreement For Cause in the following circumstance: (1) if OPERATOR is convicted of, or enters a plea of nolo contendere to, a felony, including any act of moral turpitude, (2) if OPERATOR commits an act of actual fraud, embezzlement, theft or similar dishonesty, (3) if OPERATOR commits any willful misconduct resulting in material harm to COMPANY or
- any of its subsidiaries, or (4) if OPERATOR fails, after receipt of detailed written notice and after receiving a period of at least fifteen (15) days following such notice, to cure such failure, to use its reasonable good faith efforts to follow the reasonable and lawful direction of COMPANY and to perform OPERATOR's obligations hereunder.
- Termination Without Cause. Either Party may terminate this Agreement, without "Cause" by delivering written notice to the other Party of such termination, at least thirty (30) days prior to the effective date of such termination.
- Actions on Termination. Upon any Termination of this Agreement, or upon the natural expiration thereof, OPERATOR shall:
- Comply with Paragraph 3(c) above as to the KNOCKERBALL® brand;
- Upon the completion of the actions in Paragraph 8(c)(i) above, execute a formal Termination Agreement in the form provided by COMPANY, noting that until such formal Termination is executed, COMPANY may continue to charge OPERATOR the monthly fee as previously agreed (without otherwise reinstating this Agreement), any shall apply said monthly fee to administrative costs and legal fees as they accrue; and,
iii. Continue to comply with Paragraphs 4, 5, 6 and 7 of this Agreement.
- Reinstatement. Subsequent to any Termination, in the event that the Parties desire to mutually reinstate the Agreement, OPERATOR agrees that it shall pay a $500.00 reinstatement fee to defray the COMPANY's administrative costs for the prior Termination.
- Attorneys' Fees - Applicable Law. This Agreement shall be governed by, and interpreted in accordance with, the
laws of the State of Illinois (without regard to choice of law principles).
- VENUE AND JURY WAIVER. IF ANY DISPUTE ARISES UNDER, OR RELATED TO, THIS AGREEMENT, THE PARTIES STIPULATE AND HEREBY AGREE THAT ANY LEGAL OR EQUITABLE ACTION OR PROCEEDING, REGARDLESS OF THE NATURE OF THE PROCEEDING SHALL BE BROUGHT ONLY IN THE CIRCUIT COURT OF THE SIXTEENTH JUDICIAL CIRCUIT COURT OF KANE COUNTY, ILLINOIS, OR THE EIGHTEENTH JUDICIAL CIRCUIT COURT OF DU PAGE COUNTY, ILLINOIS OR IN THE FEDERAL COURT OF THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, CLAIMS BASED SOLELY ON COPYRIGHT OR PATENT INFRINGEMENT SHALL BE BROUGHT ONLY IN THE FEDERAL COURTS OF THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION. THE PARTIES TO THIS AGREEMENT FURTHER STIPULATE AND HEREBY AGREE TO WAIVE ANY RIGHT TO A JURY TRIAL AND AGREE THAT ANY CLAIM OR DISPUTE SHALL BE RESOLVED BY A JUDGE IN A BENCH TRIAL SETTING.
- No Conflicting Obligations. OPERATOR hereby acknowledges and represents that OPERATOR's execution of this Agreement and performance of its obligations and duties for the COMPANY under this Agreement will not cause any breach, default, or violation of any other engagement, non-disclosure, confidentiality, non-competition, or other agreement to which OPERATOR may be a party or otherwise bound. OPERATOR hereby agrees that OPERATOR will not use in the performance of the services for the COMPANY or otherwise disclose to the COMPANY any trade secrets or confidential information of any person or entity (including any former employer) if and to the extent that such use or disclosure may cause a breach or violation of any obligation or duty owed to such employer, person, or entity under any agreement or applicable law.
- Waivers. Each Party understands and acknowledges that its obligations under this Agreement are for the benefit of the other Party and its successors and assigns the failure or delay of a Party in exercising any right, power or privilege will not operate as a waiver, nor will any single or partial exercise or the exercise of any other right, power or privilege operate as a waiver.
- Successors and Assigns. The terms of this Agreement shall apply to the Parties' successors, assigns, principals, officers, employees, and otherwise related persons and entities.
- Modification/Merger. If the Parties proceed without a more formal writing, the substantive terms herein shall be conclusive as to the agreement of the Parties. Further, to the extent that any additional substantive terms are in
issue, the course of conduct of the Parties shall be controlling as to such terms and thereafter any finder of fact shall look to what would otherwise be commercially reasonable in the respective field. This Agreement may not be modified in any other manner, except by written amendment executed by each of the Parties hereto, and no action or omission shall be construed as a waiver unless expressly stated in writing by the waiving Party; this Agreement is binding on the Parties, and their respective officers, directors, employees, successors, and permitted assigns.
- Specific Performance and Injunctive Relief. It is agreed that money damages may not be a sufficient remedy for any breach of the foregoing provisions of this Agreement, and an aggrieved Party will be entitled to injunctive relief, specific performance, and/or other appropriate remedy for any such breach. Such remedy will not be deemed to be the exclusive remedy for breach of this Agreement, but will be in addition to all of the remedies available under law and/or in equity. This provision, to the extent it is not practicable to enforce same before ADR as set forth in Paragraph 10, may be enforced in any appropriate State or Federal Court, and any required bond shall be deemed reasonable if in the amount of one thousand dollars ($1,000.00).
- Invalid Provisions. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision. Without limiting the generality of the foregoing, if any provision of this Agreement is held to be unenforceable because of a finding that it is unreasonable in any respect, the court of jurisdiction may determine the extent to which such paragraph or provision would be reasonable, and this Agreement shall be deemed amended accordingly and will be enforced to such extent.
- Continuing Assurances. Each Party shall, whenever and as often as reasonably requested to do so by the other Party, execute, acknowledge and deliver or cause to be executed, acknowledged or delivered, any and all agreements and instruments as may be necessary, expedient or proper to carry out the intent and purposes of this Agreement, providing that the requesting Party shall bear the cost and expense of such further agreements or documents (except that the Parties shall bear their respective attorneys' fees and costs).
- Independent Contractor. The Parties agree that nothing in this Agreement shall be deemed to create the relationship of partnership, joint venture, or an employer-employee (w2). OPERATOR hereby specifically waives any claim of rights or benefits, whether present or future, under the COMPANY's retirement plans or fringe benefits afforded its employees, or the COMPANY's payment of Social Security taxes, workmen's compensation, unemployment compensation or like benefits normally afforded its employees. OPERATOR and the COMPANY further acknowledge and agree that:
- OPERATOR, in OPERATOR's sole discretion, shall determine (i) when and where to perform this Agreement, and what facility to use, (ii) what tools or equipment to use in performing this Agreement, (iii) what workers, if any, to hire or to assist OPERATOR in performing this Agreement; and (iv) where to purchase supplies and services necessary for the OPERATOR to perform this Agreement, other than the KNOCKERBALL® brand bubble soccer balls and related equipment;
- COMPANY will not provide OPERATOR with any computer equipment and OPERATOR will perform this Agreement using computer equipment procured by OPERATOR without the advice or assistance of the COMPANY;
- the COMPANY will not provide OPERATOR with any detailed instructions or training relating to the running of their business;
- Consistent with OPERATOR's status as an independent contractor, the COMPANY will not provide OPERATOR with any company, individual or group insurance policy or any other kind of insurance coverage or employee benefit whatsoever; and,
- OPERATOR will hold itself out to the public as an independent contractor, separate and apart from COMPANY. OPERATOR will not make any contract, agreement, warranty or representation on COMPANY's behalf without COMPANY's prior written consent, nor incur any debt or other obligation in COMPANY'S name. This Agreement does not confer any rights or benefits to any person or entity not expressly named herein. OPERATOR must identify itself as the owner of the business in conjunction with the use of the KNOCKERBALL® mark, including on checks, invoices, receipts, letterhead and contracts, as well as at conspicuous locations on OPERATOR's premises in a form that specifies OPERATOR's name, followed by the phrase "an independently owned and operated business" or such other phrase as COMPANY shall direct.
- Surviving Termination. Section 4. (Nondisclosure Obligations) and Section 5. (Non-Circumvention Obligations) and all Paragraphs of this Agreement reasonably necessary for the continued enforcement of the intent of this Agreement shall be deemed in full force and effect, and shall survive for 21 years after the Termination of this Agreement.
- ACKNOWLEDGEMENT AND FURTHER INDEMINTY: OPERATOR ACKNOWLEDGES THAT THE USE OF BUBBLE SOCCER BALLS INCLUDING KNOCKERBALLS CAN RESULT IN SEVERE PERSONAL INJURY, PARALYSIS AND DEATH, INCLUDING, AMONG OTHER REASONS AND WITHOUT LIMITATION, UNDER CIRCUMSTANCES WHEN A BUBBLE SOCCER BALL IS NOT PROPERLY MAINTAINED OR USED WHEN ANY PORTION OF IT IS BROKEN OR MISSING AND/OR WHEN THE BUBBLE SOCCER BALL IS NOT ADEQUATELY INFLATED. OPERATOR ALONE WILL HAVE THE OPPORTUNITY TO CAREFULLY CHECK THE BUBBLE SOCCER BALLS BEFORE AND DURING EACH USE TO BE CERTAIN THAT THE BUBBLE SOCCER BALL BEING USED IS PROPERLY MAINTAINED FOR THE USER AND THAT THE TERRAIN WHERE THE BUBBLE SOCCER BALL IS TO BE USED IS APPROPRIATE FOR THE USE OF BUBBLE SOCCER BALLS. OPERATOR ACKNOWLEDGES THAT COMPANY WILL NOT BE PRESENT WHEN THE BUBBLE SOCCER BALLS ARE USED AND WOULD HAVE NO OPPORTUNITY OR ABILITY TO CHECK THE CONDITION OF THE BUBBLE SOCCER BALLS BEFORE AND DURING EACH USE. THEREFORE, IN ADDITION TO ALL OTHER OBLIGATIONS IN THIS AGREEMENT, AND AS ADDITIONAL CONSIDERATION FOR COMPANY GRANTING A LICENSE TO OPERATOR TO OPERATE AS AN INDEPENDENT CONTRACTOR AND TO MARKET AND USE COMPANY’S BUBBLE SOCCER BALLS AND OR KNOCKERBALLS, OPERATOR HEREBY IRREVOCABLY AGREES TO INDEMNIFY AND DEFEND COMPANY, FROM THE FIRST DOLLAR FORWARD, AND NOT MERELY TO REIMBURSE THE COMPANY, IN REGARD TO ANY AND ALL CLAIMS OF INJURY, DEATH OR OTHER DAMAGE, WHETHER PERSONAL, BODILY, PECUNIARY OR OTHER ARISING OUT OF THE USE OF BUBBLE SOCCER BALLS AND/OR KNOCKERBALLS OR ANY OTHER EQUIPMENT PROVIDED, RENTED, LEASED OR SOLD TO OPERATOR BY COMPANY.
OPERATOR FURTHER AGREES THAT IT IS OPERATOR’S SOLE RESPONSIBILITY, AND NOT THE RESPONSIBILITY OF COMPANY, TO INSTRUCT THE USER ON THE PROPER AND SAFE USE OF BUBBLE SOCCER BALLS AND/OR KNOCKERBALLS, AND TO INFORM THE USER THAT EVEN PROPER USE OF WELL MAINTAINED BUBBLE SOCCER BALLS AND/OR KNOCKERBALLS MAY STILL RESULT IN SEVERE INJURY, PARALYSIS OR DEATH.
OPERATOR ACKNOWLEDGES HAVING READ THIS AGREEMENT CAREFULLY, AND OPERATOR HAS OBTAINED THE ADVICE OF INDEPENDENT COUNSEL OF OPERATOR’S CHOOSING, OR HAS CHOSEN NOT TO OBTAIN COUNSEL, AND OPERATOR UNDERSTANDS AND ACCEPTS THE OBLIGATIONS THIS AGREEMENT IMPOSES ON OPERATOR WITHOUT RESERVATION. NO PROMISES OR REPRESENTATIONS HAVE BEEN MADE TO OPERATOR TO INDUCE OPERATOR TO SIGN THIS AGREEMENT OTHER THAN THE TERMS CONTAINED HEREIN. THE UNDERSIGNED WARRANTS THAT HE OR SHE IS AUTHORIZED BY OPERATOR TO SIGN THIS AGREEMENT AND DOES SO VOLUNTARILY AND FREELY.