GCI-POS LEASE AGREEMENT
This GCI-POS Lease Agreement (“Agreement”) is entered into between the subscriber (“Retailer”) and The Game & Comic Industry Database, Inc. (“GCI-DB”).
Recitals
Whereas, the GCI-DB designs, owns, hosts and leases websites and a Point-of-Sale program (“GCI-POS”) and industry data (“Content”) for use by retailers in the game and comic book industry; and
Whereas, the GCI-POS includes product Content obtained by the GCI-DB; and
Whereas, Retailer retails games, comic books and related products; and
Whereas, Retailer desires to lease the GCI-POS from the GCI-DB, which the GCI-POS will display Content for view and interaction by Retailer’s customers;
NOW, THEREFORE, in consideration of the mutual promises set forth herein and other good and valuable consideration, the receipt and sufficiency of which are acknowledged, and intending to be legally bound, the parties agree as follows:
- Website Lease – the GCI-DB is the owner of the GCI-POS associated website (the “Website”). Retailer hereby leases the Website from the GCI-DB on the terms and conditions set forth herein. Under the terms of the Agreement, the GCI-DB shall provide Retailer sufficient login access to the Website to permit Retailer to view and manage all relevant content. The GCI-DB shall host the Website on the GCI-DB’s own dedicated servers or on any other servers the GCI-DB may obtain space for site hosting.
- Design – the GCI-DB will design and build the Website within thirty (30) days of Retailer’s selection from the GCI-DB’s available templates (“Templates”) as of the Effective Date. The design and search engine optimization techniques used for the Website shall be solely developed by the Lessor.
- Modifications
a. Custom Modifications to Templates – Retailer may seek custom modifications to Retailer’s selected Template at the outset of the lease or any time during the term of the lease. Any custom modifications shall be billed on a time and materials basis at the rates set forth herein. Custom modifications shall be completed within a commercially reasonable period of time.
b. Updated Templates – the GCI-DB may, from time to time, update the available Templates (“Updated Template”). In the event that an Updated Template becomes available from the GCI-DB, Retailer may elect to have the Updated Template applied to the Website, if reasonably feasible, upon payment of a Template Update Fee. Template Updates shall be completed within a commercially reasonable period of time. - Content – Retailer is licensed for all Content incorporated into the Website. Upon selection of a Template, Retailer shall provide, at Retailer’s sole expense, all text, graphics, and artwork required to incorporate Retailer’s brand into the selected Template. Retailer shall also provide, at Retailer’s sole expense, all text, graphics and artwork for Retailer’s requested modifications.
- Access
a. Retailer Access – Retailer will be required to maintain a username and password for Retailer to access the Website at the retailer level. Retailer is solely responsible for maintaining the username and password information in a secure manner. Any access to the Website via the username and password then assigned to Retailer shall be Retailer’s sole responsibility even if the access was not authorized by Retailer.
b. Customer Access – Retailer may provide customer level login access to its customers. Retailer is solely responsible for assigning, maintaining, and securing customer level access logins. - Term
a. Initial Term – The initial term of this Agreement shall be for twelve (12) months from the Effective Date herein.
b. Automatic Renewal – Unless otherwise terminated as provided herein, this Agreement shall automatically renew for an additional twelve (12) month term and the end of each preceding term. - Software/Updates – Except as expressly stated, Retailer has no rights whatsoever to the GCI-POS. The GCI-DB reserves the right update, modify, or alter the GCI-POS at any time so long as the functionality of the system is substantially maintained or enhanced.
- Domain Name
a. Domain Name and Ownership – Domain Name registration shall at all times remain in the name of Retailer and shall remain the responsibility of Retailer during the duration of this Agreement. Failure to properly register or maintain the Domain Name shall not relieve Retailer from any allegations under this Agreement. - Fees – The fees applicable to this Agreement are set forth in the GCI-DB’s fee schedule which is attached hereto as Exhibit “A” and incorporated into this Agreement as if fully set forth herein. The fee schedule is subject to change on an annual basis. All fees are nonrefundable. Invoices not received within thirty (30) days of their invoice date shall be deemed past due and shall incur a late fee equal to the lower of 1.5% per month or the highest rate permissible by law until paid in full.
- Termination
a. Termination with Cause – Either Party may terminate this Agreement with cause if the other party fails to cure a material breach within thirty (30) days after delivery of a Notice to Cure. Material breach includes failure to pay an invoice when due.
b. Termination for Convenience – Retailer may terminate this Agreement for any reason at any time after the Effective Date by delivery of a Notice of Termination of this Agreement, which Notice of Termination shall effectively terminate this Agreement thirty (30) days after delivery of such Notice of Termination; however, no portion of the Fees (billed monthly) will be refunded for any reason.
c. Non-Renewal – Either Party may elect not to renew this Agreement for an additional twelve (12) month term by delivery of a Notice of Non-renewal at least sixty (60) days prior to the expiration of the then existing term. If a Notice of Non-renewal is not delivered at least sixty (60) days prior to the expiration of the then existing term, this Agreement shall automatically renew for an additional twelve (12) month term.
d. Effect of Termination – Upon termination of this Agreement, all rights granted to Retailer shall immediately terminate. The GCI-DB shall be entitled to immediately take down the Website, including termination of all access by Retailer and/or Retailer’s customers. - Indemnification – Retailer agrees to indemnify and hold harmless the GCI-DB, its contractors, and its licensors, and their respective directors, officers, employees and agents from and against any and all claims and expenses, including attorneys’ fees, arising out of Retailer’s use, or use by any customer of Retailer, of the GCI-POS and Website, including but not limited to violations of this Agreement or the rights of third parties.
- Copyright Infringement and DMCA Policy – If any material located on or linked to the Website violates copyright, Retailer is required to remove such material or links in accordance with the Digital Millennium Copyright Act (”DMCA”) Policy.
- Intellectual Property – With the exception of any proprietary artwork or information (logos, contact information, Customer Information) provided by Retailer, all right, title and interest to the Website and any intellectual property included therein is the sole property of the GCI-DB. Nothing in this Agreement transfers from the GCI-DB to Retailer any the GCI-DB or third-party intellectual property, and all right, title and interest in and to such property will remain (as between the parties) solely with the GCI-DB.
- Limitation of Liability – In no event will the GCI-DB, or its suppliers or licensors, be liable with respect to any subject matter of this Agreement under any contract, negligence, strict liability or other legal or equitable theory for: (i) any special, incidental or consequential damages; (ii) the cost of procurement or substitute products or services; (iii) for interruption of use or loss or corruption of data; or (iv) for any amounts that increase the fees paid by Retailer to the GCI-DB under this Agreement during the twelve (12) month period prior to the date the cause of the action accrues. the GCI-DB shall have no liability for any failure or delay due to matters beyond their reasonable control. The foregoing shall not apply to the extent prohibited by applicable law.
- Warranties/Disclaimer
a. Retailer’s Warranties – Retailer warrants: (i) any and all content provided or uploaded by Retailer or any Retailer customer does not infringe proprietary rights of any third party; (ii) Retailer has fully complied with any third-party licenses related to any Retailer or customer content, including the Content; (iii) all Retailer and customer content is free of any viruses, worms, malware, Trojan horses or other harmful or destructive content; (iv) Retailer and customer content is not obscene, libelous, defamatory, hateful, or racially or ethnically objectionable.
b. The GCI-DB’s Warranties – THE GCI-DB HEREBY DISCLAIMS ALL NON-EXPRESSED WARRANTIES. THE GCI-DB IS MAKING THE WEBSITE AVAILABLE “AS IS” WITHOUT WARRANTY OF ANY KIND. RETAILER ASSUMES THE RISK OF ANY AND ALL DAMAGE OR LOSS FROM USE OF, OR INABILITY TO USE, THE WEBSITE OR THE SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE GCI-DB EXPRESSLY DISCLAIMS ANY AND ALL NON-EXPRESSED WARRANTIES, REGARDING THE SITE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. THE GCI-DB DOES NOT WARRANT THAT THE WEBSITE WILL MEET RETAILER’S REQUIREMENTS OR THAT THE OPERATION OF THE WEBSITE WILL BE UNINTERRUPTED OR ERROR-FREE. - Miscellaneous
a. This Agreement shall be governed by and construed under the laws of the State of Florida, U.S.A., without regard to principles of conflict of laws of any jurisdiction. The Parties agree to submit to the exclusive jurisdiction and venue of a state or federal court in and/or for Sarasota County, Florida for any proceeding arising from or related to this Agreement.
b. This Agreement and any Attachment hereto constitute the entire agreement of the Parties with respect to their subject matter, superseding all prior oral and written communications, quotations, proposals, negotiations, understandings, courses of dealing, agreements, contracts, and the like between the Parties. This Agreement shall take precedence over any other documents which may conflict with this Agreement.
c. This Agreement may be changed, amended or modified only by an instrument in writing signed by both Parties.
d. If any term of this Agreement is held invalid, illegal or unenforceable, in whole or in part, neither the validity, legality nor unenforceability of the remaining part of such term, nor the validity, legality or enforceability of any other term of this Agreement, will in any way be affected thereby.
e. The provisions of the Agreement shall be binding upon and shall inure to the benefit of the Parties hereto, their heirs, beneficiaries’ administrators, successors and assigns.
f. 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, conditioned or delayed.
g. No waiver by either Party of any default shall be deemed as a waiver of prior or subsequent default of the same or other provisions of this Agreement.
h. This Agreement may be signed in multiple counterparts which together shall form one original. The signatures of the Parties transmitted by facsimile or other electronic means shall be deemed to be original signatures for all purposes.
i. All demands, notices, and communications regarding and/or relating to this Agreement shall be in writing and shall be deemed to be delivered when both mailed and emailed to the addresses listed below:
Email: sales@gci-db.com
Address:
The Game & Comic Industry Database, Inc.
935 N Beneva Rd., Ste 902
Sarasota, FL 34232
Exhibit “A” Fee Schedule
Design and Setup – $199
Custom Modification – $65/Hour plus materials at cost
Lease – $199 if paid monthly
******All fees and rates above are subject to change annually******