RETAILER VARIANT PROGRAM

TERMS & CONDITIONS

 

The DC Retailer Variant Program (“Program”) is a program allowing comic book retailers (each, a “Retailer”) to commission and purchase from DC Comics (“DC”) artwork (“Art”) to be included as variant comic cover art on select physical DC comic issues (“Variant(s)”) to be purchased by Retailer through one of DC’s distributors (“Distributor”), subject to the terms and conditions herein.

1. Variant Process. Retailer may submit a request for Variant(s) by fully completing and submitting the digital Retailer Variant form. DC shall review Retailer’s request and confirm details of the approved Variant(s), and, if Retailer confirms that it wishes to proceed, Distributor shall fulfill Retailer’s order. DC shall not engage the artist for the Variant(s) and no work will begin on the Variant(s) until Retailer has provided such confirmation. DC cannot guarantee the timing of the Variant(s) for a particular month. Upon confirmation, Distributor shall invoice Retailer for the Variant(s) pursuant to its standard terms and process.
2. Variant Details.
   1. Subject to DC’s prior written approval, Retailer may offer suggestions for the selection of the artist and cover design. DC cannot guarantee availability of suggested artists, and DC may disapprove proposed designs for any reason. Proposed designs that include homages, third-party likenesses, and/or tie-ins to other media are generally not approved by DC due to additional rights and copyright implications. 
   2. To ensure accuracy and manage deadlines, all communication with the selected artist regarding the Variant(s) must go through DC. Retailer shall not provide any editorial direction to the artist for the Variant(s) without DC’s prior written approval of any such direction.
   3. If Retailer wishes to partner with another retailer or any other third party, such as, without limitation, another comic book publisher, actor, writer, or artist, or any commercial establishment or non-profit entity, on the Variant(s), such relationship must be disclosed and approved by DC in advance in writing.
   4. DC shall not provide the exact same Art to any other retailer for use on a retailer variant cover. DC may otherwise reproduce and use the Variant(s) and/or the Art in any manner it deems appropriate, including, without limitation, on merchandise, in prints, as cover art for international licensed editions, and in its own publications as supplementary content. Furthermore, DC may provide other retailers with variations of the Art for use on variant covers, including differently colored or black-and-white versions of the Art or the Art with different backgrounds. Prior to such use, DC shall remove from the Variant or the Art any of Retailer’s intellectual property (including trademarks, logos, and related elements) delivered to DC by Retailer to be used in the Variant (“Retailer Property”), unless otherwise agreed by DC and Retailer.
3. Use of Variant.
   1. Retailer shall not alter the Variant(s) or the Art. Retailer shall not use the Variant(s) or the Art for any purpose whatsoever other than for sale or giveaway to individual consumers as described herein and in the advertising and promotion of such comic book issue. Without limiting the foregoing, Retailer shall not use the Variant(s), the Art, or any of DC characters, logos, artwork, symbols, or trade dress in any of the following ways without DC’s prior written approval in each instance:
      1. On any merchandise (e.g., shirts, prints, posters, stickers, collectibles, bags).
      2. On any other publication or format other than the final Variant(s).
      3. As a component of a diptych or otherwise in conjunction with imagery on any other publication or product.
   2. Retailer may only sell or give away the Variant(s) as clearly identifiable comics. Without limiting the foregoing, Retailer shall not include the Variant(s), the Art, or any of DC characters, logos, artwork, symbols, or trade dress as part of, or in promotion for, a blind bag, mystery pack, sealed surprise bundle, or similar promotion.  
   3. Retailer shall not reveal the Variant(s) or indicate publicly that it will be offering the Variant(s) before the embargo date that DC communicates to Retailer in the order confirmation. DC reserves the right to discontinue future sales of Variant(s) to any Retailer who violates the embargo date restriction.
   4. Retailer may sell the Variant(s) purchased from DC for any price, but as DC does not wish to support price-gouging of DC’s customers, DC strongly encourages Retailer to limit the sales price of the Variant(s) to (i) no more than five (5) times the suggested retail price of the corresponding DC comic book for unsigned Variant(s), and (ii) no more than ten (10) times the suggested retail price of the corresponding DC comic book for autographed Variant(s). DC reserves the right to discontinue future sales of Variant(s) to any Retailer who sells Variant(s) at prices that exceed DC’s suggested limits.
   5. Retailer may, at its own cost and expense, arrange to have Variant(s) autographed by artists, creators, actors, or other persons substantially connected to the Variant(s), and for any autographed Variant(s), Retailer may create a Certificate of Authenticity (“COA”) at the Retailer’s expense for the autographed Variant(s) with DC’s prior written approval. The COA shall (i) not include any DC characters, logos, artwork, symbols, or trade dress; (ii) not imply the COA is produced, approved, numbered, or authenticated by DC; and (iii) use Retailer’s branding and language identifying Retailer as the source of the COA. DC may reject a Retailer-created COA for any reason.
   6. DC shall have the right to approve all marketing materials and announcement and promotional plans for the Variant(s) prior to their implementation or dissemination (including, but not limited to, graphics, ads, social posts, teasers, videos, and in‑store signage). Retailer shall submit to DC for approval all such marketing, advertising, and any other promotional materials created, developed, and/or otherwise featuring the Variant(s) or the Art. Any materials to be submitted for DC’s approval should be sent to dccustomcovers@dc.com. If any changes or modifications are required to be made to any submitted elements, or should any such elements be disapproved, Retailer shall resubmit revised elements to DC. If DC fails to respond, the elements shall be deemed disapproved. After DC has approved any submitted elements, such elements shall not be materially changed without DC’s prior written consent.
4. Program Requirements.
   1. Retailer must be in good standing with DC and Distributor to participate in the variant cover program. DC reserves the right to remove any retailer from the variant cover program at any time for any reason.
   2. The location, size, and placement of Retailer’s name and logo shall be determined by DC in its good faith discretion. Any requests for the Variant(s) are subject to DC’s approval and space/design limitations.
   3. Retailer’s order must meet minimum order quantity requirements, which may be updated from DC from time to time. DC will provide the current requirements when Retailer submits its request. The current minimum order quantities are as follows:
      1. For DC titles, excluding Vertigo and Absolute Universe titles: one thousand (1,000) units, of which one thousand (1,000) units must be full trade dress.
      2. For Absolute Universe titles: two thousand (2,000) units, of which one thousand (1,000) units must be full trade dress and the remaining one thousand (1,000) units must be full trade dress, trade dress-free, or foil.
      3. For Vertigo titles: one thousand (1,000) units in any approved format.
   4. The quantities provided in the confirmation email are considered “final sale quantity” and will be used for shipping and billing purposes once Retailer confirms the order.
   5. Retailer must finalize its order within three (3) business days of receipt of the final cover. Any orders finalized after this 3-business day window will be subject to a late fee of ten percent (10%) of the total cost of the order.
   6. Retailer acknowledges that Retailer’s purchase, distribution, or sale of third-party publications featuring unlicensed uses of DC’s characters, logos, artwork, symbols, or trade dress on covers, as variants or otherwise, will render Retailer ineligible to participate in future DC variant cover programs and may result in a suspension of all purchasing privileges of DC publications.
5. Ownership. DC or its creators or licensors own the copyright, trademark rights, and all other rights in DC’s characters, logos, artwork, symbols, and trade dress, and excluding the Retailer Property, in the Variant(s) and the Art. Retailer retains the copyright, trademark rights, and all other rights in the Retailer Property. Retailer shall not claim any copyright interest or trademark rights in or to the Variant(s), the Art, DC logo(s), or any of DC’s or its creators’ or licensors’ characters, logos, artwork, symbols, and trade dress and shall not act adversely to any copyright, trademark, or proprietary rights held by DC.
6. Representations and Warranties. Retailer represents and warrants that (i) it has full power and authority to enter into this Program; (ii) it has secured all necessary rights for the use of the Retailer Property in the Variant(s); (iii) nothing in the Retailer Property does or will defame any person, firm, or other entity or infringes upon any copyright, right of privacy or publicity, or any other right of any person, firm, or entity; and (iv) it shall at all time comply with all laws and regulations, including, but not limited to, copyright and trademark laws, labor and employment laws, anti-bribery and anti-corruption laws, and consumer product safety laws, or other similar laws, regulations, and/or official requirements relating or pertaining to the distribution or use of the Variant(s).
7. Indemnification. Retailer shall defend (at DC’s option), indemnify, and hold harmless DC from and against any actions, claims, losses, liabilities, damages, costs, or other expenses whatsoever (including attorneys’ fees), whether direct or indirect, whether fixed or contingent, that are threatened against or incurred by DC arising out of, resulting from, or in connection with the Variant(s) in any manner, including any allegations which if true would constitute a breach by Retailer of any of the foregoing representations or warranties. Retailer shall cooperate fully in all respects with DC in the conduct and defense of any such allegations.
8. Confidentiality. DC or Distributor may provide, make available, or disclose certain information to Retailer, including with respect to designs, drawings, story lines, plans, formulae, processes, programs, systems, new product or technology information, software, manufacturing, development, or marketing techniques, business strategies, publishing and/or development plans, supplier information, customer information, financial information, pricing information, and any other information of a similar nature, and any analyses, compilations, studies, reports, presentations or other materials containing or based in whole or in part on such information (collectively, the “Confidential Information”). Confidential Information shall not, however, include information that (a) becomes generally available to the public, other than as a result of a breach by Retailer of the terms of this Program, (b) was or becomes available to Retailer on a non-confidential basis prior to DC or Distributor’s disclosure herein, and (c) has been independently developed by Retailer without violating this Program. Retailer shall not use the Confidential Information in any way detrimental to DC or Distributor; shall hold the Confidential Information in strict confidence; and shall treat such Confidential Information with the same degree of care as it accords its own Confidential Information of similar nature, and in no event will it use less than reasonable care to protect such Confidential Information. Without limiting the foregoing, Retailer agrees it shall not reproduce or use the Confidential Information and shall not discuss, distribute, disseminate, or otherwise disclose the Confidential Information or the substance or contents thereof, in whole or in part, in its original form or in any other form, with or to any other person or entity other than: (i) to those of its representatives who need to know such information for purposes of fulfilling its obligations hereunder, and (ii) in the Retailer becomes legally compelled (e.g., by deposition, subpoena, civil investigative demand, or other similar process) to disclose any Confidential Information; provided, however, Retailer shall (x) give DC prompt prior written notice of any such required release or disclosure so that DC may have every opportunity to seek a protective order or other appropriate remedy, and (y) only furnish that portion of the Confidential Information which is legally required.
9. No Partnership, Joint Venture, or Agency; No Third-Party Beneficiaries. This Program does not constitute, and shall not be construed to constitute, an agency partnership or joint venture between DC and Retailer. Neither party has any right to obligate or bind the other in any manner, except as otherwise specifically provided for herein. Nothing herein gives or is intended to give any rights of any kind to any third party. Neither party shall have any responsibilities to any employee hired by the other or any obligations assumed by the other in exercising the rights granted herein. 
10. Governing Law; Dispute Resolution; Damages. This Program is governed by and construed in accordance with the laws of California, without regard to its conflict of laws provisions that would require the application of the laws of a different jurisdiction. The state and federal courts of California shall have exclusive jurisdiction over the parties and any case or controversy arising under this Program, regardless of any choice of law rules. Any action or proceeding involving any such case or controversy shall be brought only in those courts in Los Angeles County.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT FOR INDEMNIFICATION OBLIGATIONS, UNDER NO CIRCUMSTANCES SHALL DC BE LIABLE TO THE RETAILER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES IN ANY MANNER IN CONNECTION WITH OR ARISING OUT OF THIS PROGRAM, REGARDLESS OF THE FORM OF ACTION OR THE BASIS OF THE CLAIM AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

11. Severability. If any term or provision herein shall be held by a court of competent jurisdiction to be illegal, invalid, or unenforceable in whole or in part, such determination will not affect any other term or provision hereof, and the illegal, invalid, or unenforceable term or provision will be replaced by an enforceable, valid, and legal term or provision that most closely meets the commercial intent of the parties.