Welcome to Scribd, the world's digital library. Read, publish, and share books and documents. See more
Download
Standard view
Full view
of .
Look up keyword
Like this
1Activity
0 of .
Results for:
No results containing your search query
P. 1
EN Innovator Agreement - version 5 5

EN Innovator Agreement - version 5 5

Ratings: (0)|Views: 4 |Likes:
Published by jh41740

More info:

Published by: jh41740 on Sep 11, 2008
Copyright:Attribution Non-commercial

Availability:

Read on Scribd mobile: iPhone, iPad and Android.
download as PDF, TXT or read online from Scribd
See more
See less

06/16/2009

pdf

text

original

 
EDISON NATION INNOVATOR AGREEMENT
This innovator agreement (“AGREEMENT”) is between (1) the person or persons identified at the end of this AGREEMENT as being the “INNOVATORS” (hereinafter referred to collectively as “INNOVATOR”); and(2) Edison Nation, LLC, a limited liability company organized and existing under the laws of the State of NorthCarolina and having a principal office and place of business at 520 Elliot Street, Charlotte, North Carolina 28202(hereinafter “EDISON NATION”). INNOVATOR and EDISON NATION are sometimes referred to herein as“PARTIES” and each, individually, as a “PARTY”.WHEREAS EDISON NATION, whether directly or through one or more affiliated companies(“AFFILIATES” and each an “AFFILIATE”), has or has access to expertise in the review, analysis, evaluation,design, development, improvement, manufacture, commercialization and/or distribution of consumer andcommercial products and services;WHEREAS EDISON NATION conducts and manages innovation searches seeking out innovations inproducts and services for acquisition, one or more innovation searches of which may be sponsored by one or morenational manufacturers or retailers;WHEREAS INNOVATOR has one or more ideas (“INNOVATION”) that INNOVATOR desires to submitto EDISON NATION for consideration of possible commercialization of one or more products based on theINNOVATION (“INNOVATIVE PRODUCT”), information about which is set forth on EXHIBIT A attachedhereto, such commercialization to be performed by EDISON NATION and/or an affiliated entity of EDISONNATION and/or an entity in privy to EDITION NATION;WHEREAS INNOVATOR purports and warrants to be the sole owner of all rights, title and interests inand to the INNOVATION, including all intellectual property rights associated therewith (including, but not limitedto any and all inventions; any and all domestic, foreign and international patents and patent applications, includingany reissue, reexamination, extension, renewal, substitution, conversion, confirmation, division, continuation,continuation-in-part, provisional, nonprovisional, and the like of any patent or patent application, and any patent orpatent application claiming a right of priority to any of the foregoing; all domestic, foreign and internationaltrademarks and trademark applications and registrations, and related URLs and websites; all domestic and foreigncopyrights; trade secrets; know-how; and designs; and including any refinements, changes, variations, derivatives,and improvements of the foregoing; and any past or present right or cause of action arising under any of theforegoing, including the right to sue for infringement) which are incorporated in, embodied by, or otherwisedirectly related to the INNOVATION (“INTELLECTUAL PROPERTY”); andWHEREAS EDISON NATION desires to review, analyze and evaluate (collectively “CONSIDER”) theINNOVATION for purposes of possible acquisition of the INTELLECTUAL PROPERTY;THEREFORE, in consideration of the rights and obligations of the PARTIES herein contained, and forother good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the PARTIESagree as follows:
1. SUBMISSION FOR CONSIDERATION BY EDISON NATION
1.1 INNOVATOR hereby acknowledges that this AGREEMENT is being entered into only after carefulconsideration of this AGREEMENT and the “Innovator Assignment and Commercialization Agreement”, andthat INNOVATOR has had full and fair opportunity to seek legal advice concerning the rights and obligationsof the PARTIES to this AGREEMENT.1.2 The PARTIES acknowledge that this AGREEMENT is being concurrently submitted with a true, accurate, andcomplete response to an innovation search (“INNOVATION SEARCH”) on the
 Edison Nation
website(www.edisonnation.com), and that this AGREEMENT is being electronically signed and submitted through the
 Edison Nation
website together with with a non-refundable fee of $25, which fee is intended to defray costsassociated with the evaluation of the INNOVATION by EDISON NATION. Upon successful receipt byEDISON NATION of both the electronic signature to this AGREEMENT and the response by INNOVATOR tothe INNOVATION SEARCH, and upon confirmation of payment by INNOVATOR of the required $25 fee,EDISON NATION shall electronically communicate in an email to INNOVATOR the electronically signedAGREEMENT, the response by INNOVATOR to the INNOVATION SEARCH, and a receipt for the $25payment, which email shall serve as documentation of INNOVATOR’S submission (“SUBMISSIONACKNOWLEDGEMENT”).1.3 The “SUBMISSION DATE” shall be set forth in the (“SUBMISSION ACKNOWLEDGEMENT”).1.4 INNOVATOR does not transfer under this AGREEMENT any rights, interests, or title in or to any tangible
 
items, including any products, prototypes, or proofs-of-concept, and it is the intent of the PARTIES that thisAGREEMENT not be deemed to constitute an “offer of sale” or “sale” under 35 U.S.C. §102(b).
2. CONSIDERATION BY EDISON NATION
2.1 (a) During the TERM, EDISON NATION shall CONSIDER the INNOVATION with respect to theINNOVATION SEARCH for which the submission was made as well as for other INNOVATIONSEARCHES that may be conducted by EDISON NATION. EDISON NATION shall CONSIDER theINNOVATION for additional INNOVATION SEARCHES without any resubmission or further payment of any fee so long as this AGREEMENT has not been terminated and the INNOVATOR remains an active“gold member” of the
 Edison Nation
website. Such consideration by EDISON NATION shall not be anevaluation of the merits of any prototype and/or commercial sample for purposes of purchase thereof byEDISON NATION, and such consideration may be performed manually, by computer analysis, or both.(b) At some point during an INNOVATION SEARCH, the INNOVATION may be declared to be in the finalstages of consideration for commercialization. The period of time starting on the date on which theINNOVATION is deemed to be selected for final consideration for commercialization and continuing forsix (6) months thereafter shall be hereinafter referred to as a “FINAL CONSIDERATION PHASE”.2.2 During the TERM of this AGREEMENT as defined in Section 5 hereof, in consideration for EDISONNATION’s promise to CONSIDER the INNOVATION, INNOVATOR hereby agrees to enter into andimmediately sign, without negotiation, the ASSIGNMENT AND COMMERCIALIZATION AGREEMENTattached hereto as EXHIBIT B, including all of the terms and obligations thereof, upon receipt of notice(“NOTICE OF SELECTION”) of selection for commercialization of the INNOVATION.2.3 During any FINAL CONSIDERATION PHASE, INNOVATOR shall not (1) submit the INNOVATION forconsideration or evaluation by any product submission company or the like, nor (2) entertain or explore otheravenues for commercializing the INNOVATION or any part thereof without the prior written consent of EDISON NATION.2.4 Unless and until the NOTICE OF SELECTION is received by INNOVATOR, EDISON NATION shall notreceive any rights, title, and interests in, to, and under any of the INTELLECTUAL PROPERTY.
3. REPRESENTATIONS, WARRANTIES AND INDEMNITY
3.1 INNOVATOR REPRESENTS AND WARRANTS TO EDISON NATION AND ANY AFFILIATE THAT:(a) INNOVATOR IS THE SOLE OWNER OF ALL RIGHTS, INTERESTS, AND TITLE IN AND TO THEINTELLECTUAL PROPERTY THAT IS INCORPORATED IN, EMBODIED BY, OR OTHERWISEDIRECTLY RELATED TO THE INNOVATION OR THAT IS IDENTIFIED ON THE IP LIST;(b) INNOVATOR HAS THE RIGHT AND ABILITY TO ENTER INTO THIS AGREEMENT;(c) INNOVATOR HAS THE RIGHT AND ABILITY TO ENTER INTO THE ASSIGNMENT ANDCOMMERCIALIZATION AGREEMENT ATTACHED HERETO AS EXHIBIT B;(d) DURING THE TERM OF THIS AGREEMENT, INNOVATOR SHALL NOT SELL, HYPOTHECATE,ASSIGN, PLEDGE, TRANSFER, GRANT, OR OTHERWISE ENCUMBER ANY TYPE OF INTERESTIN THE INNOVATION OR THE INTELLECTUAL PROPERTY;(e) INNOVATOR HAS NO SPECIFIC KNOWLEDGE OF ANY CLAIMS TO, OR REASONS WHYINNOVATOR DOES NOT HAVE CLEAR TITLE TO, THE INNOVATION OR ANY OF THEINTELLECTUAL PROPERTY;(f) INNOVATOR HAS NO SPECIFIC KNOWLEDGE OF ANY INTELLECTUAL PROPERTY,INCLUDING ANY PATENT, THAT WOULD BE INFRINGED BY A PROTOTYPE ORCOMMERCIAL SAMPLE OF INNOVATOR THAT REPRESENTS THE INNOVATION;(g) ALL STATEMENTS, DISCLOSURES AND REPRESENTATIONS MADE BY INNOVATOR,WHETHER WRITTEN OR ORAL, ARE TRUE, ACCURATE AND COMPLETE; AND(h) WITHOUT IN ANY WAY LIMITING THE FOREGOING, INNOVATOR CERTIFIES THATINNOVATOR HAS NOT WITHHELD OR MISCHARACTERIZED ANY INFORMATIONREGARDING INNOVATOR, INNOVATOR’S BACKGROUND, THE INNOVATION, THEINTELLECTUAL PROPERTY, OR ANY MATERIAL FACTS PERTAINING TO THERETO.3.2 INNOVATOR SHALL INDEMNIFY AND HOLD HARMLESS EDISON NATION AND ANY AFFILIATEOR PARTY IN PRIVY WITH EDISON NATION FROM AND AGAINST ALL CLAIMS, DEMANDS,ACTIONS, LAWSUITS, PROCEEDINGS, DAMAGES, INJURIES, EXPENSES, COSTS, ANDATTORNEYS' FEES RESULTING FROM, RELATING TO, CONCERNING OR IN CONNECTION WITH
 
A BREACH OF ANY OF INNOVATOR’S REPRESENTATIONS AND WARRANTIES.3.3 ANY BREACH BY INNOVATOR OF ANY REPRESENTATION, WARRANTY, OR OBLIGATION OFTHIS SECTION SHALL BE DEEMED HEREIN A MATERIAL BREACH.
4. RESOLUTION OF DISPUTES
4.1 If a dispute, controversy or claim (“DISPUTE”) arises out of or relates to this AGREEMENT, or the breachthereof, the PARTIES agree to submit the DISPUTE to mediation to be administered by the AmericanArbitration Association in accordance with the local rules of the United States District Court for the WesternDistrict of North Carolina applicable to mediation. Mediation will be mandatory prior to resorting toarbitration.4.2 If the DISPUTE is not settled or resolved by mediation, then the DISPUTE shall be settled by arbitrationadministered by the American Arbitration Association under its Patent Arbitration Rules before a panel of threearbitrators. The site of the arbitration shall be Charlotte, North Carolina, and any award rendered shall bebinding and not appealable. The PARTIES agree that any award rendered by such arbitration may be filed inany court of competent jurisdiction for enforcement, but not for review or any other proceedings beyondenforcement.4.3 The prevailing PARTY in arbitration shall be entitled to recover its reasonable costs, fees, and expenses that aredirectly associated with the arbitration and mediation. Such recovery shall be included in the arbitration awardfor enforcement through the judicial system.4.4 Any award for EDISON NATION or an AFFILIATE against INNOVATOR may include specific performanceby INNOVATOR in accordance with one or more obligations of this AGREEMENT, including execution of theASSIGNMENT AND COMMERCIALIZATION AGREEMENT attached hereto AS EXHIBIT B.4.5 EXCEPT AS PROVIDED IN SECTION 4.3, NO MONETARY DAMAGES SHALL BE AVAILABLE TOINNOVATOR, WHETHER ARISING DIRECTLY OR INDIRECTLY FROM THE DISPUTE, AND IN NOEVENT SHALL AN AWARD TO INNOVATOR INCLUDE ANY INDIRECT, SPECIAL, INCIDENTAL,CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OFPROFIT, REVENUE, OPPORTUNITY, DATA, OR USE.
5. TERMINATION
5.1 During any FINAL CONSIDERATION PHASE, the PARTIES jointly may agree to terminate thisAGREEMENT; however, neither PARTY shall have the unilateral right to terminate this AGREEMENT evenif a material breach occurs by the other PARTY.5.2 INNOVATOR shall have the unilateral right to terminate this AGREEMENT without cause by written notice toEDISON NATION at any time that is outside of any FINAL CONSIDERATION PHASE.5.3 EDISON NATION shall have the unilateral right to terminate this AGREEMENT without cause by writtennotice to INNOVATOR at any time that is (A) outside of any FINAL CONSIDERATION PHASE, and (B)after the end of the period of time in which EDISON NATION is considering the INNOVATION with respectto the INNOVATION SEARCH for which the submission was made.5.4 Any means of specifically indicating termination of this AGREEMENT that is provided for by EDISONNATION on the
 Edison Nation
website shall be deemed “written notice” hereunder.5.5 The term of this AGREEMENT (“TERM”) shall begin on the INNOVATION CONSIDERATION STARTDATE and shall end when this AGREEMENT is terminated in accordance with either Section 5.1, 5.2 or 5.3.
6. MISCELLANEOUS PROVISIONS
6.1 Notices. Any notices and communications required or permitted under this AGREEMENT shall be deemedmade and delivered when actually received in writing by the receiving party, or three (3) days after beingtransmitted by registered or certified mail, return receipt requested, addressed to the receiving party. Forpurposes of notice, the notice address for EDISON NATION shall be the address set forth in the preambleabove, and the notice address for INNOVATOR shall be the address first set forth below for INNOVATOR.Any of the PARTIES may change its address by notice to the other PARTY in accordance with this paragraph.6.2 Entire Agreement. This AGREEMENT constitutes the entire AGREEMENT between the PARTIES withrespect to the subject matter hereof, and no modifications or revisions hereto shall have any force or effectunless made in writing and executed by all PARTIES. Any oral representations or agreements made prior tothis AGREEMENT are hereby merged and superseded by this AGREEMENT.6.3 Severance. In the event that any provision of this AGREEMENT is declared void or unenforceable, suchprovision shall be deemed severed from this AGREEMENT, and this AGREEMENT shall otherwise remain in

You're Reading a Free Preview

Download
scribd
/*********** DO NOT ALTER ANYTHING BELOW THIS LINE ! ************/ var s_code=s.t();if(s_code)document.write(s_code)//-->