Product Submission Agreement
In order to protect You (Product Developer and any Co-Developers) and MINDFULL PRODUCTS, You and MINDFULL PRODUCTS enter into this Product Submission Agreement, which shall be binding on both Parties from the time You submit Your Product Submission to MINDFULL PRODUCTS. In that regard, to the extent that there are Co-Developers for Your Product, You represent that You are authorized to agree to the terms of this Agreement on behalf of Yourself and any Co-Developers. Thus, all references to “You” below refer both to You and any Co-Developers.
1. Let’s Keep Things Confidential.
With regard to the Product described in the Product Submission Questionnaire submitted herewith, and all information provided about that Product by the Product Developer, MINDFULL PRODUCTS agrees to keep the Product and all such information confidential generally in the same manner as MINDFULL PRODUCTS keeps its own proprietary information confidential, and to use such information only for the purpose of exploring the possible commercialization of the Product. These confidentiality obligations do not apply to information that (a) was publicly known and made generally available in the public domain prior to the time of disclosure by Product Developer; (b) becomes publicly known and made generally available after disclosure by Product Developer through no action or inaction by MINDFULL PRODUCTS; (c) is already in the possession of MINDFULL PRODUCTS at the time of disclosure by Product Developer; or (d) is obtained by MINDFULL PRODUCTS from a third party without a breach of such third party’s obligations of confidentiality.
2. Everything Is Accurate.
You represent and warrant to MINDFULL PRODUCTS that all information contained in the Product Submission Questionnaire is true, correct and complete. You acknowledge and understand that MINDFULL PRODUCTS will be relying on the accuracy of information in the Product Submission Questionnaire to evaluate the Product and to consider the possibility of its commercialization.
3. We’ll Need Some Time.
a. While MINDFULL PRODUCTS evaluates Your Product for possible commercialization, which evaluation shall not take longer than ninety (90) days from receipt of the Product Submission Questionnaire, and in exchange for MINDFULL PRODUCTS’ undertaking to spend time and effort evaluating whether to commercialize Your Product, You shall: (a) not undertake, or assist third parties to undertake, any commercialization of the Product, and to the extent that such efforts have already commenced as of the time of this Agreement, You shall immediately cease such efforts; and (b) cooperate with MINDFULL PRODUCTS in providing any additional information and documentation that MINDFULL PRODUCTS may reasonable request of You to further its evaluation of Your Product.
b. You acknowledge that (1) during the period of evaluation MINDFULL PRODUCTS is not obligated to provide to You the status of its evaluation; and (2) MINDFULL PRODUCTS does not promise or guaranty that it will agree to commercialize your Product, and nothing in this Product Submission Agreement shall be deemed an obligation upon MINDFULL PRODUCTS to commercialize Your Product.
4. A Small Fee Please.
By making this submission, You acknowledge that MINDFULL PRODUCTS shall undertake time and resources to evaluate Your Product. To help defray associated costs, You agree to pay to MINDFULL PRODUCTS a non-refundable fee of Ten Dollars ($10) at the time of submission. You also acknowledge that MINDFULL PRODUCTS does not promise, and has not promised, that You will receive any financial gain from the submission of information about Your Product.
5. What Happens If We Do?
If in its sole discretion MINDFULL PRODUCTS decides to commercialize Your Product, MINDFULL PRODUCTS shall notify You of such decision, and shall present to You for signature a Commercialization Agreement, the terms of which are provided on the MINDFULL PRODUCTS website at www.mindfullproducts.com, and which shall be the sole Agreement governing the efforts by MINDFULL PRODUCTS to commercialize Your Product. You acknowledge that Your refusal to execute the Commercialization Agreement following the decision by MINDFULL PRODUCTS to commercialize Your Product shall immediately terminate all further obligations MINDFULL PRODUCTS has to You with regard to Your Product.
5. What Happens If We Don’t?
If in its sole discretion MINDFULL PRODUCTS decides not to commercialize Your Product, MINDFULL PRODUCTS shall notify You of such decision, and the terms of this Agreement shall terminate immediately, except that MINDFULL PRODUCTS shall continue to adhere to the confidentiality provisions set forth herein for a period of two (2) years from the date of this Agreement. Under such circumstances, MINDFULL PRODUCTS shall have no right to commercialize Your Product, and You shall have no legal and equitable claim against MINDFULL PRODUCTS for its decision not to do so, shall have no legal and equitable claim against MINDFULL PRODUCTS for anything else relating to the Product, the information about the Product, the terms of this Agreement, or the Product Submission Questionnaire. MINDFULL PRODUCTS is not obligated to return any materials submitted by Product Developer.
6. Also Important To Know.
a. This Product Submission Agreement constitutes the entire understanding and agreement between the Parties with respect to the matters referred to herein. You acknowledge that You are not submitting the Product Submission Questionnaire in reliance on any promise, representation or warranty not specifically set forth in this Product Submission Agreement. The terms of this Agreement shall not be modified by any oral representation made before or after the submission of the Product Submission Questionnaire; and any modifications must be in writing and signed by MINDFULL PRODUCTS and by You to take effect.
b. This Agreement shall be construed in accordance with and governed by the laws of the State of California. Any action to enforce or interpret this Agreement shall be brought only in a federal or state court located within Orange County, California, and each Party hereby submits to the jurisdiction of any such court.
This Agreement is effective as of the date of submission of Your Product Submission Questionnaire. By Your submission of the Product Submission Questionnaire, You and any Co-Developers acknowledge that You and any Co-Developers have read and understood the terms of this Agreement, and agree to be bound by the terms of the Agreement, and that if You and any Co-Developers have any questions You and any Co-Developers have sought advice from a lawyer.
Product Commercialization Agreement
(Revised January 6, 2016)
This Product Commercialization Agreement is a legally binding contract between MINDFULL PRODUCTS (sometimes referred to as “Us” or We”) and the Product Developer(s) listed above (sometimes referred to as “You”) with regard to the Product identified above. This Agreement governs the relationship between You and MINDFULL PRODUCTS in terms of how We will go about commercializing the Product, how (and when) You will be paid, who owns what, and other stuff the lawyers insisted We say. You and any Co-Developers should read it carefully before signing this Agreement.
MINDFULL PRODUCTS and You agree as follows:
1. WHO OWNS WHAT.
You hereby irrevocably sell and assign to MINDFULL PRODUCTS all worldwide rights, title and interest in and to the Product described above, including all current and future rights to all worldwide Intellectual Property related to the Product and any improvements, modifications and changes to the Product. Intellectual Property includes, but is not limited to, patents, trademarks, copyrights, trade secrets and any other means of protecting any and all aspects of the Product, including its design, materials, commercial impression, and manufacturing processes, and further including all rights to enforce any such Intellectual Property. The Intellectual Property transferred shall include all specifications, engineering drawings, sketches, artwork, promotional materials, and the like that You may have already generated or later generate in association with the Product, and shall also include any trademarks You have adopted in association with Product. Unless otherwise indicated, the term “Product” as used in this Agreement refers to the Product in its current version as well as improvements, modifications and changes thereto in the future. MINDFULL PRODUCTS shall be the sole owner of any marketing and sales materials developed by or on behalf of MINDFULL PRODUCTS with respect to the Product, and shall be the sole owner of all copyrights in such materials.
2. WHAT YOU GET PAID.
In exchange for the transfer of rights set forth above, MINDFULL PRODUCTS shall pay You a Royalty, as set forth below:
2.1 If the product is sold by or on behalf of MINDFULL PRODUCTS, MINDFULL PRODUCTS shall pay You a Royalty in an amount equal to five percent (5%) of the Net Sales of the Product. Net Sales is defined as revenues actually received by MINDFULL PRODUCTS for sales of the Product, less the sum of the following: (1) sales taxes, tariffs, duties, use and similar taxes or impositions, (2) outbound transportation prepaid or allowed, (3) amounts allowed or credited on returns, (4) cost of collections. No Royalties are due to You with respect to Products provided to distributors and/or customers purely as samples or for promotion.
2.2 If MINDFULL PRODUCTS elects, within its sole discretion, to grant a license under the Intellectual Property herein to a third party to sell the Product, MINDFULL PRODUCTS shall pay You a Royalty in an amount equal to fifty percent (50%) of the revenues actually received by MINDFULL PRODUCTS from the third party for the licensed sale of the Product.
2.3 MINDFULL PRODUCTS will pay You on a quarterly basis 45 day after close of each calendar quarter beginning February 15th of each calendar year. With each payment, You will be provided a statement of accounting showing how the Royalty was calculated. You shall have the right (during normal business hours and on at least 10-days’ notice, but in no case more than once per calendar year) to inspect MINDFULL PRODUCTS’s accounting records relating to sales of the Product to verify the accuracy of the Royalty payment made, and You agree to keep all such information strictly confidential and use it only to verify the accuracy of the payment due.
2.4 If You believe that MINDFULL PRODUCTS has failed to make any payment due to You on a timely basis, MINDFULL PRODUCTS shall have 30 days after receipt of written notice from You, in which such notice shall clearly state facts supporting the alleged failure, to make any payment due.
2.5 MINDFULL PRODUCTS does not guaranty the amount, if any, of Royalties that may accrue based upon commercialization of the Product. In other words, if despite commercially reasonable efforts by MINDFULL PRODUCTS the Product is not commercially successful, no minimal royalties are due to You.
3. WHAT WE ARE GOING TO DO.
MINDFULL PRODUCTS shall use commercially reasonable efforts to commercialize the Product. MINDFULL PRODUCTS shall have the right in its sole discretion to: (a) modify, improve and change the Product; (b) determine all matters relating to manufacturing, marketing, sales and licensing of the Product, including selecting Product names, designs, packaging, advertising, and distribution channels; (c) choose the geographic region of the world to market the Product, and (d) seek or refrain from seeking protection of the Product under the laws of patents, trademarks, copyrights and trade secrets, as well as under any other applicable laws and regulations. Nothing contained in this Agreement shall prohibit, restrict or limit in any way the ability of MINDFULL PRODUCTS to independently develop and/or commercialize any other products and/or inventions even if they are similar to or compete with the Product. Nothing in this Agreement shall be deemed to be an obligation on MINDFULL PRODUCTS to enforce any Intellectual Property rights herein.
4. YOU AGREE TO ASSIST US.
If requested by MINDFULL PRODUCTS, and for no additional consideration, You shall (a) provide input as to the Product on any of Your prior commercialization efforts, (b) allow Us to identify You in legal and promotional materials regarding the Product, and (c) sign such documents and do such acts as are reasonably necessary to confirm You as the developer and/or inventor of the Product, and to confirm MINDFULL PRODUCTS’s sole ownership of the Product and the related Intellectual Property, including but not limited to inventor declarations, copyright registration applications, confirming invention assignments, and the like. For as long as the Product and the related Intellectual Property are owned by MINDFULL PRODUCT or its successors or assignees, You also agree not to hinder or interfere with the efforts by or on behalf of MINDFULL PRODUCTS to commercialize the Product; specifically without limitation You agree (a) not to disparage MINDFULL PRODUCTS or its successors or assignees, or the distributors, licensees, and agents of MINDFULL PRODUCTS or its successors or assignees; (b) not to disparage the Product, and (c) to refrain from making, using or selling, or assisting others to make, use or sell, (i) the Product and any improvement, modification or change thereto, and (ii) any other product developed for, or intended for, sales in competition with the Product.
5. PROMISES, PROMISES.
We are relying on what You tell us and what You have already told us, including the information provided in the Product Submission Questionnaire. You represent and warrant to Us:
5.1 You are the sole owner of the Product and all related Intellectual Property, free from any and all encumbrances; no other person or company has, or has claimed to have, any rights or interests in the Product or the related Intellectual Property.
5.2 To the extent that You co-developed the Product with others, You shall identify such others above, and they shall be a signatory to this Agreement such that they are bound by the same obligations set forth herein by which You are bound. Thus, any reference to “You” herein shall be deemed applicable to You and any co-developers of the Product.
5.3 To the best of Your knowledge, the Product does not infringe any patent, copyright, trade secret, trade dress, or other intellectual property of any person or company.
5.4 You have full power and authority to enter into this Agreement and to transfer the Product and related Intellectual Property to MINDFULL PRODUCTS.
5.5 You have not previously entered into any agreement to commercialize the Product.
5.6 No finder, broker or other person is entitled to any payment or other consideration as a result of Your entry into this Agreement.
5.7 Prior to signing this Agreement, You have (a) disclosed in writing to MINDFULL PRODUCTS all material facts and matters related to the Product and the related Intellectual Property, and (b) provided MINDFULL PRODUCTS with all drawings, specifications, photos, prototypes, patent applications, trademarks, trademark registration applications, copyright registration applications, correspondence, patentability and/or infringement searches and opinions, non-disclosure agreements, and other agreements relating to the Product and related Intellectual Property.
6. SHHHHH (CONFIDENTIALITY).
You shall keep confidential (generally in the same manner as You keep confidential Your own proprietary information) all proprietary information and materials relating to (a) this Agreement, (b) the Product and related Intellectual Property, and (c) any information MINDFULL PRODUCTS provides to you relating to efforts to commercialize the Product. These confidentially obligations do not apply to information that (a) was publicly known and made generally available in the public domain prior to this Agreement, or (b) becomes publicly known and made generally available after disclosure through no action or inaction by any Party to this Agreement.
With regard to any breach by You of this Agreement or of any representation by You in this Agreement, You agree to indemnify, defend and hold harmless MINDFULL PRODUCTS and its managers, members, agents, employees and representatives from and against any claim, demand, liability or damages arising out of or relating to such breach and/or representation.
8. GRANT BACK / TERMINATION / LIMITED LIABILITY.
8.1 If You have not received at least $30,000 in Royalties accrued with respect to the Product by February 15th of the year following the fifth anniversary of the first commercial sale of the Product, You may terminate this Agreement by written notice made to MINDFULL PRODUCTS at the address set forth below, unless and except if, within 45 days of MINDFULL PRODUCT’s receiving such written notice from You of termination, MINDFULL PRODUCTS pays to You the difference between $30,000 and the amount previously paid to You, in which case, the notice of termination shall be deemed null and void and not enforceable.
8.2 MINDFULL PRODUCTS may terminate this Agreement at any time and for any reason by giving You written notice.
8.3 In the event that either You terminate this Agreement pursuant to Paragraph 8.1, or We terminate this Agreement pursuant to Paragraph 8.2, (a) all Royalties shall cease to accrue thereafter; and (b) MINDFULL PRODUCTS shall timely transfer back to You all rights previously transferred herein from You to MINDFULL PRODUCTS; except that MINDFULL PRODUCTS or its licensee shall have six (6) months from the transfer back date to sell any Product remaining in inventory, and Royalties shall accrue with respect to such inventory Products actually sold, provided that, if the sale price of a Product remaining in inventory is less than 50% of the average selling price during the term of this Agreement then no Royalty shall be accrue on the sale of such Product.
8.4 The transfer back set forth in Paragraph 8.3 shall be Your only remedy if You terminate this Agreement, or if MINDFULL PRODUCTS terminates or breaches this Agreement. You hereby waive and release any claim now or in the future against MINDFULL PRODUCTS and its managers, members, agents, employees and representatives for general damages, consequential damages, special damages, statutory penalties and punitive damages, and any equitable relief, and agree to waive the provisions of California Civil Code Section 1542 as to any future claims or damages. In that regard, California Civil Code Section 1542 states: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
9. ENTIRE AGREEMENT.
This Agreement constitutes the entire understanding and agreement between the Parties with respect to the matters referred to herein, and supersedes any Product Submission Agreement signed by the Parties and the obligations and provisions therein. Each Party acknowledges that this Commercialization Agreement has not been executed in reliance on any promise, representation or warranty not expressly set forth in this Agreement. This Agreement shall not be modified by either party by oral representation made before or after the execution of this Agreement. All modifications must be in writing and signed by You (and any co-developer(s) as set forth above) and by an authorized agent of MINDFULL PRODUCTS.
MINDFULL PRODUCTS may assign this Agreement without Your prior consent, and any such assignment shall not relieve MINDFULL PRODUCTS of its obligations to You herein. You may designate in writing to MINDFULL PRODUCTS that another person receive the Royalties accrued herein, and the payment of such Royalties to such other person shall be deemed full performance by MINDFULL PRODUCTS with respect to such Royalties.
This Agreement shall inure to the benefit of and be binding upon the Parties and their respective successors, assigns, and heirs.
12. CONSTRUCTION OF AGREEMENT.
This Agreement shall be construed as if both Parties jointly prepared this Agreement. In that regard, We recommend that You seek the advice of counsel before signing this Agreement. Moreover, the titles of the Sections herein are not intended to limit the scope of any provisions set forth in the Sections, but are only provided to assist the reader.
In the event any one or more of the provisions in this Agreement should be determined to be invalid, illegal or unenforceable in any respect, the enforceability of the remaining provisions shall remain in effect.
14. GOVERNING LAW / VENUE.
This Agreement shall be construed in accordance with and governed by the laws of the State of California. Any action to enforce or interpret this Agreement shall be brought only in a federal or state court located within Orange County, California, and each Party hereby submits to the jurisdiction of any such court.
15. FURTHER ASSURANCES.
The Parties agree to perform such other acts as are reasonably required to carry out the obligations and spirit of this Agreement.
The relationship between the Parties is one of contract only. Neither this Agreement nor the dealings between the Parties shall be deemed to create any agency, partnership, joint venture or employment relationship. Neither Party has the authority or power to bind the other Party in any manner not expressly set forth herein.
17. COUNTERPARTS / COPIES.
This Agreement may be executed in multiple counterparts. The parties may rely on signature pages transmitted by facsimile or electronically (such as by emailed pdf file) as though they are originals.
This Agreement is entered into effective as of the date written above.
By Your signature(s) below, You and any Co-Developers acknowledge that You and any Co-Developers have read and understood the terms of this Agreement, and agree to be bound by the terms of the Agreement, and that if You and any Co-Developers have any questions You and any Co-Developers have sought advice from a lawyer.