Bayou Brands agrees to work with Customer under the terms and conditions of this Agreement to create and develop content, including, but not limited to, visual designs, visual elements, graphic design, illustration, photography, animation, sounds, typographic treatments and text through Bayou Brands’ selection, arrangement and coordination of such elements together with Customer’s Content (as that term is subsequently defined) and/or third party materials (collectively referred to as the “Creative Content”). Customer agrees to provide input and feedback regarding the creation and development of the Creative Content but expressly acknowledges and agrees that Bayou Brands has final approval of all Creative Content.
In exchange for the time and effort that Bayou Brands expends in the creation of the Creative Content, Customer agrees to exclusively purchase various products, including, but not limited to, t-shirts, sweatshirts, pins, hats, koozies, posters, prints, stickers and other clothing or promotional items incorporating the Creative Content (collectively referred to as the “Products) from Bayou Brands through its BayouBrands.com website at wholesale prices agreed upon by the parties. Bayou Brands will assume sole responsibility for the fulfillment of all Product orders including the shipment of Products to Customers and/or its affiliates.
Customer warrants and represents that it owns all right, title and interest in, or otherwise has full right and authority to permit the use of any and all images, materials, information, photographs, trademarks, writings or other protected material provided by the Customer and incorporated into the Creative Content (the “Customer Content”). To the best of Customer’s knowledge, the Customer Content does not infringe upon the rights of any third party, and use of the Customer Content, including any trademarks or copyrighted material, in connection with the Creative Content does not and will not violate the rights of any third parties.
All Customer Content, including pre-existing trademarks and copyright material, shall remain the sole property of Customer and Customer shall be the sole owner of all rights in connection therewith. However, Customer hereby grants to Bayou Brands for the duration of this Agreement a non-exclusive, non-transferable royalty-free license to use, reproduce, and modify Customer Content solely in connection with Bayou Brands’ design and development of the Creative Content and fulfillment of Products incorporating the Creative Content.
All Creative Content, excluding any Customer Content elements incorporated therein, shall be the sole property of Bayou Brands and Bayou Brands shall be the sole owner of all rights in connection therewith. Customer acknowledges and agrees that the Creative Content created by Bayou Brands under this Agreement shall not be deemed a work for hire as that term is defined under Copyright Law and that Bayou Brands has not granted Customer a license of any kind with regard to the use of the Creative Content for any purpose.
Bayou Brands is an independent contractor, not an employee of Customer or its affiliates. This Agreement does not create a partnership or joint venture, and neither party is authorized to act as agent or bind the other party. The parties expressly acknowledge that this Agreement does not create an exclusive relationship between the parties, except to the extent that Customer expressly agrees that it will not purchase any Products incorporating the Creative Content from any source other than Bayou Brands and will not use the Creative Content for any purpose outside the terms of this Agreement.
Products incorporating the Creative Content shall remain available through the Bayou Brands website during the effectiveness of this Agreement. Upon written termination of this Agreement by either party, Bayou Brands will immediately cease the sale of all Products incorporating the Creative Content.
Bayou Brands warrants and represents that all Products sold through its website shall be free from defects in materials and workmanship, and agrees to replace any product that is defective in this way. Bayou Brands will not be liable to Customer and/or its affiliates in any way, other than to replace a Product that is defective in materials and/or workmanship. Bayou Brands shall not be liable for any lost profits or consequential damages of any kind.
CUSTOMER AGREES TO INDEMNIFY, SAVE AND HOLD BAYOU BRANDS HARMLESS FROM ANY ALL DAMAGES, LIABILITIES, COSTS, LOSSES OR EXPENSES ARISING OUT OF ANY CLAIM, DEMAND OR ACTION BY A THIRD PARTY INCLUDING COPYRIGHT AND/OR TRADEMARK INFRINGEMENT ARISING OUT OF THE USE OF THE CUSTOMER CONTENT. THIS INDEMNITY SHALL INCLUDE REIMBURSING BAYOU BRANDS FOR ALL COSTS AND ATTORNEYS’ FEES ASSOCIATED WITH ANY CLAIM OR ACTION BROUGHT AGAINST IT.
The Agreement shall be deemed executed in New Orleans, LA, and shall be interpreted under Louisiana Law. Customer agrees to personal jurisdiction and venue within the Parish of Orleans, State of Louisiana.
Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in New Orleans, LA, before one arbitrator.
The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.