RETAIL LICENSING AGREEMENT
AGREEMENT made as of the 10th day of May, 2000, by and between
WINTERLAND, 1951 Fairway Drive, San Leandro, California 94577 (hereinafter
"Licensor") and FAMOUS FIXINS, INC., 2500 West 57th Street, Suite 1112, New
York, New York 10107 (hereinafter "Licensee").
ARTIST: 'N SYNC
LICENSED PROPERTY: names, symbols, emblems, designs, service marks,
trademarks, copyrights in graphic designs, logos,
visual representations, and likenesses of Artist
LICENSED AREA: United States and Canada
LICENSED TERM: 5/1/00-4/30/02
LICENSED PRODUCTS: the following items whose packaging, wrapping,
ROYALTIES:
Guaranteed Minimum Payment: $100,000
Minimum Royalty Base: Minimum wholesale selling price for similar
quantities sold, less 20%
If, at any time during the Licensed Term, Licensee:
(a) pays the third-party licensor of any licensed property
similar to the Licensed Property herein a royalty rate greater than that payable
to Licensor set out above; or
(b) either (i) sets a minimum cost as a base for calculating
royalties for the licensing to any third party of any licensed property similar
to the Licensed Property herein which is higher than the Minimum Royalty Base
herein: or (ii) when there is no Minimum Royalty Base herein, sets a minimum
royalty base with any third party for any licensed property similar to the
Licensed Property herein;
then the royalty rate paid to such third party or the minimum royalty base on
which such third party is paid shall be substituted for the Royalty Rate or
Minimum Royalty Base set out above, as the case may be, as of the date of the
agreement with such third party to pay such higher royalty rate or set such
higher minimum royalty base.
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COPYRIGHT NOTICE: (C)2000 Zeeks, Inc.
TRADEMARK NOTICES: Winterland (TM)
The trademark for 'N SYNC shall be designated by Licensor during the
product-approval process.
INITIAL ON-SALE DATE: To be determined
LICENSOR PRICE FOR
LICENSED PRODUCT: Licensee's cost plus 20%
This agreement includes the terms and conditions on the pages attached
hereto and made a part hereof.
IN WITNESS WHEREOF, the parties hereto have executed this agreement as
of the date and year first written above.
WINTERLAND FAMOUS FIXINS, INC.
("Licensor") ("Licensee")
By: /s/ Donna Tice By: /s/ Jason Bauer
Name: Donna Tice Name: Jason Bauer
Title: Chief Executive Officer Title: President
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TERMS AND CONDITIONS
1. Grant of Rights.
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1.1 Licensor hereby grants Licensee and Licensee hereby accepts
the nonexclusive right to utilize the Licensed Property in
connection with the manufacture, advertisement, distribution
and sale of Licensed Products in the Licensed Area during the
Licensed Term. All other rights with respect to the Licensed
Property are hereby expressly reserved by Licensor.
1.2 As used in this agreement, the term "Licensed Property"
means each of the elements specified on page 1 hereof
individually and all such elements associated therewith, the
Licensed Property having a secondary meaning in the mind of the
public. Licensee acknowledges that the Licensed Property
(including all rights therein and goodwill associated
therewith) shall, as between Licensee and Licensor, be and
remain Licensor's exclusive and complete property. Licensor
reserves the right to lease, authorize, or permit use of the
Licensed Property by third parties, as it may see fit. Licensee
will not use or authorize use of the Licensed Property in any
manner, at any time, or in any place not specifically licensed
herein.
2. Payment Accounting
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2.1 For the license granted herein, Licensee will pay
Licensor the following:
2.1.1 an advance of $50,000 upon execution of this agreement,
which shall not be returnable in whole or in part to Licensee;
2.1.2 the balance of the Guarantee (i.e., $50,000) payable as
follows:
2.1.2.1 $25,000 on or before November 1, 2000; and
2.1.2.2 $25,000 on or before January 31, 2002.
2.1.3 subject to the provisions of sub-paragraph 2.3
below, royalties at the Royalty Rate set out on page 1
hereof. The Royalty Rate shall be based on the
wholesale selling price on net sales of Licensed
Products. As used in this sub-paragraph 2.1.3, "net
sales" shall mean gross sales less returns, credits on
returns and freight and trucking charges, and
"wholesale selling price" shall exclude sales tax,
value-added tax or the equivalent actually paid and
freight and trucking charges. The Royalty Rate shall
be applicable to the gross selling price of all
Licensed Products delivered or shipped, without
deduction of any costs or expenses incurred in the
manufacture, advertisement, distribution, or sale
thereof, or from uncollectible accounts, but less
quantity and trade discounts and returns for credit.
Royalties due for each calendar quarter after the date
hereof shall be paid to Licensor within fifteen (15)
days after the last day thereof
2.2 For purposes of computing and paying Licensor's
royalties hereunder, if Licensee's actual gross selling price
for a unit of Licensed Product is less
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than the applicable Minimum Royalty Base, Licensee shall nevertheless
compute and pay Licensor's royalties on the basis of the applicable
Minimum Royalty Base.
2.3 Concurrently with each payment of royalties hereunder,
Licensee shall furnish Licensor with a complete and accurate
royalty statement (hereinafter "Statement") certified as to
accuracy by Licensee (or by an officer of Licensee if Licensee
is a corporation) and specifying the quantity sold, gross
selling price and purchaser of the Licensed Products. Licensee
shall furnish such Statement to Licensor whether or not any
Licensed Products have been sold during the quarter to which a
particular Statement refers. Licensee shall use statement
form(s) provided approved by Licensor. At its own expense and
upon demand by Licensor (but no more than once per year),
Licensee shall furnish Licensor with a detailed statement
prepared by an independent, certified public accountant,
specifying the quantity sold, sales price and purchaser of the
Licensed Products up to the date of Licensor's demand.
2.4 All payments made to Licensor shall be in United States
currency. Time is of the essence with respect to all payments
due Licensor. Interest at the rate of one and one-half percent
(1 1/2%) per month shall accrue on any amount due Licensor from
and after the date upon which said payment is due until the
date said payment is actually made. Licensor's receipt or
acceptance of any Statement or royalty paid pursuant to this
agreement (or the endorsement of any check or draft
constituting payment of any royalty) shall not preclude
Licensor from questioning the correctness thereof at any time
and in the event any inconsistencies or mistakes are discovered
in any Statement or royalty payment, Licensee shall immediately
rectify such inconsistencies or mistakes and pay Licensor the
appropriate royalty.
2.5 Licensee shall keep, maintain and preserve at its principal
place of business accurate books of account and records
covering all transactions relating to the license granted
herein and this agreement. Licensor and its duly authorized
representative shall have the right at all reasonable hours of
the day to examine said books of account, records and all other
documents and materials with respect to the subject matter and
terms of this agreement which are in Licensee's possession or
under its control and shall have free and full access thereto
to examine and make extracts and copies therefrom. Licensee
shall keep all such books of account and records available for
at least two (2) years subsequent to the date of expiration of
the Licensed Term, and Licensor and its duly authorized
representative shall have the right to examine such books of
account and records during such period of two (2) years, In the
event there are errors to Licensor's disadvantage of more than
five percent (5%), Licensee will pay auditing costs.
3. Samples; Approval.
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3.1 At its sole cost and expense prior to the manufacture,
distribution, or sale of the Licensed Products hereunder,
Licensee shall submit a prototype sample of each of the
Licensed Products to Licensor, together with any packaging
container, carton, enclosed material, tag, label, wrapping,
advertising, or
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promotional material for use in any media
(hereinafter "Packaging") Which will be associated in any
manner with or used to promote the Licensed Products. Licensee
shall not commence any manufacture, distribution, or sale of
Licensed Products unless and until Licensor provides written
approval of the artwork, design, quality and style of the
Licensed Products and the Packaging. Licensor shall endeavor to
provide Licensee with written approval or disapproval of the
Licensed Products and Packaging as promptly as is reasonably
possible.
3.2 After receipt of Licensor's approval as set out in
sub-paragraph 3.1 above, Licensee shall not cause or permit any
deviation or variation in the artwork, design, quality, or
style of the Licensed Products or Packaging without Licensor's
written approval prior to any such deviation or variation.
Licensor shall own all copyrights in the Licensed Products and
Packaging. Licensor shall have no obligation to register any
copyrights.
3.3 Licensee agrees to periodically give written notice of and
inform all persons, firms, or corporations to which it
distributes Licensed Products as to the appropriate copyright
and/or trademark notice(s) to be used in connection with
advertising, promotion, display and sale of Licensed Products.
3.4 Promptly after initial shipment of each of the Licensed
Products, Licensee will so notify Licensor and furnish Licensor
with twenty (20) free samples of each Licensed Product. During
the continuance of this agreement, Licensee shall:
3.4.1 permit access by a representative selected by
Licensor to Licensee's floor stock for sampling
purposes at any time during normal business hours
without advance notice;
3.4.2 within fifteen (15) days after receipt of
written request therefor, furnish Licensor with
further samples of each Licensed Product then being
sold by Licensee and as packaged for shipment by it,
it being understood Licensee shall not be obligated
to furnish such samples free of charge more than once
in any calendar quarter; and
3.4.3 sell additional quantities of Licensed Products
to Licensor at the lowest price charged any third
party upon receipt of written request therefor or the
price set out on page 1, if any, whichever is lower.
4. Licensee's Obligations; Reservation of Rights.
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4.1 Licensee represents and warrants the Licensed
Products will be:
4.1.1 of a high standard in style, appearance
and quality;
4.1.2 manufactured, advertised, distributed and sold
in accordance with all applicable federal, state and
local laws and in a manner which will not reflect
adversely upon Licensor or those with whom it has
contractual arrangements with respect to the Licensed
Property; and
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4.1.3 diligently advertised and distributed
throughout the Licensed Area. Licensee also warrants
it will use its best efforts to obtain maximum sale
thereof in the Licensed Area during the Licensed
Term.
4.2 Licensee shall distribute and sell Licensed Products
outright, not on an approval, consignment sale, or return
basis, and only through the following channels: to jobbers,
wholesalers and distributors for distribution and sale to
retail stores and to retailers selling directly to the public.
Notwithstanding the foregoing, Licensee shall not, without
Licensor's express prior written consent, knowingly distribute
or sell Licensed Products through any of the foregoing
channels where such sale or distribution is or will be made:
4.2.1 for publicity or promotional tie-in
purposes, combination sales, premiums, give-aways, or
at concert sites; or
4.2.2 by any similar means of merchandising or
where the business methods and practices are questionable.
All rights not specifically granted to Licensee
herein are expressly reserved to Licensor. As such,
Licensee may not distribute or sell Licensed Products
by any other method not specifically permitted
herein. If Licensee distributes or sells any Licensed
Products at a special price to any of its
subsidiaries or to any other person, firm, or
corporation related in any manner to it or its
officers, directors, or major stockholders, it shall
pay a royalty on such sale based upon the price
generally and customarily charged the trade by it.
4.3 In addition, Licensor reserves the right to manufacture,
distribute and sell or grant others the right to manufacture,
distribute and sell the Licensed Products in connection with a
direct mail offer, premium giveaway, self-liquidator,
commercial tie-in, fan club and/or promotion of and/or sale
and/or distribution of merchandise at Artist's concerts and
live performances.
4.4 Licensee shall not offer for sale, advertise or publicize
any Licensed Products via the Internet, television, radio,
newspapers, magazines, in catalogs, or through any other media
without Licensor's prior written approval in each instance,
which approval may be granted or withheld by Licensor at its
sole discretion.
4.5 Licensee shall not enter into any sub-license or agreement
for the manufacture, distribution, or sale of Licensed
Products. Licensee shall not have the Licensed Products
manufactured for it by a third party without Licensor's prior
written approval and unless said third party enters into an
agreement with Licensor not to supply the Licensed Products to
anyone other than Licensee in the form set out on Exhibit "A"
attached hereto. Any attempt by Licensee to grant sub-licenses
or to assign or part with possession or control of the license
granted pursuant to this agreement or any of its rights under
this agreement shall constitute a material breach of this
agreement.
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5. Copyright; Trademark.
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5.1 "Notice" as used in this paragraph shall mean the
copyright and/or trademark notice and/or appropriate notice of
registration, application for registration, or use of any
licensed trademark or service mark.
5.2 Licensee shall print, stamp, or mold the Notice on all
Licensed Products and each package or container used in
connection therewith and on each label, advertisement and
promotional release concerning any. Licensed Products, all in
accordance with instructions from Licensor, including without
limitation instructions with respect to position and letter
size. No Licensed Product or any pack-age, container, label,
advertisement, or promotional release upon which the notice is
printed, stamped, or molded pursuant to the preceding sentence
shall contain any other copyright notice whatsoever without
Licensor's prior written consent thereto. Licensor may change
such Notice at any time and from time to time, effective no
less than thirty (30) days after receipt by Licensee of notice
of such change.
5.3 Licensee acknowledges and agrees as follows:
5.3.1 All copyrights, trademarks, service marks and
the rights to same referred to in sub-paragraph 5.2
above in the name of and/or owned by Licensor shall
be and remain Licensor's sole and complete property;
5.3.2 All such copyrights, trademarks, service marks
and the rights to same in the name of or owned by any
copyright proprietor other than Licensor or Licensee
shall be and remain such copyright proprietor's sole
and complete property;
5.3.3 All trademarks and service marks and/or the
right to use same arising out of the license hereby
granted to use the Licensed Property shall be and
remain Licensor's sole and complete property;
5.3.4 Licensee shall not at any time acquire or claim
any right, title, or interest of any nature
whatsoever in any such copyright, trademark, or
service mark by virtue of this agreement or its uses
thereof in connection with the Licensed Products; and
5.3.5 Any right, title, or interest in or relating to
any such copyright, trademark, or service mark which
comes into existence as a result or during the term
of the exercise by Licensee of any right granted it
hereunder shall immediately vest in Licensor.
Licensee acknowledges the validity of all such
copyrights, trademarks, or service marks and agrees
never to contest or assist others in contesting the
validity thereof.
6. Infringement. Licensee agrees to assist Licensor to the
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extent necessary in the procurement of any protection or to
protect any of Licensor's rights to the Licensed Property,
and Licensor may, if it so desires, commence or prosecute
any claims or suits in its own name, in Licensee's name, or
it may join Licensee as a party thereto. Each party shall
provide the other with
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written notice of any infringements
or imitations by others of the Licensed Property on articles
similar to those covered by this agreement which may come to
its attention, and Licensor shall have the sole right to
determine whether or not any action shall be taken on
account of any such infringements or imitations. Licensee
shall not institute any suit or take any action on account
of any such infringements or imitations without Licensor's
prior written consent.
7. Mutual Warrantees and Representations; Indemnification.
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7.1 Licensor warrants and represents as follows:
7.1.1 It is free to enter into and fully perform
this agreement;
7.1.2 All ideas, creations, materials and
intellectual property furnished by it in connection
with the Licensed Property (except for matters in the
public domain or material which it is fully licensed
to use) will be its own and original creation.
7.2 Licensor will at all times indemnify and hold Licensee
harmless from and against any and all claims, damages,
liabilities, costs and expenses, including reasonable
attorneys' fees, arising out of any breach by Licensor of any
representation, warranty, or agreement made by it herein,
provided Licensee notifies Licensor in writing promptly upon
Licensee's acquisition of knowledge of any such claim or suit
and that such indemnity shall not exceed the value of
royalties accrued or advances paid to Licensor, whichever is
greater. The above warranty shall apply only to final
judgments entered by a court having jurisdiction thereof or
settlements entered into with Licensor's written consent,
which shall not be unreasonably withheld. Licensor shall have
the option, at any time prior to judgment, of undertaking and
conducting the defense of any claim or suit which may be
subject to the indemnification provisions of this paragraph.
Licensee shall not enter into any settlement of any claim or
suit which may be subject to the indemnification provisions of
this paragraph without Licensor's express written consent.
7.3 Licensee warrants and represents as follows:
7.3.1 It is duly organized under applicable law and
has the right and authority to enter into and perform
this agreement.
7.3.2 It will comply with all applicable governmental
laws, rules and regulations in connection with the
manufacture, distribution sale and/or use of the
Licensed Products and its activities hereunder. The
Licensed Products are not manufactured in so-called
"sweatshops" or under other abusive conditions, and
in compliance with all federal and state labor,
health, safety and related laws.
7.4 Licensee hereby indemnifies and agrees to hold
Licensor and its officers, directors and shareholders harmless
from;
7.4.1 any claims or suits arising out of any alleged
defects in the Licensed Products;
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7.4.2 Licensee's unauthorized use of any patent,
process, method, or device, infringement of any
copyright, trade name, patent, libel, or invasion of
the rights of privacy or publicity or other property
rights;
7.4.3 Licensee's failure to perform; or
7.4.4 Licensee's infringement or breach of any other
personal or property right of any person, firm, or
corporation by Licensee, its officers, employees,
agents, or anyone directly or indirectly acting by,
through, on behalf of, pursuant to contractual
agreement or any other relationship with Licensee in
connection with the preparation, manufacture,
distribution, advertising, promotion and/or sale of
Licensed Products and/or any material relating
thereto and/or naming or referring to any performers,
personnel, marks and/or elements.
With respect to the foregoing indemnification,
Licensee shall defend and hold Licensor, its
respective subsidiaries and affiliates and its
employees and agents harmless at no cost and expense
to them whatsoever, including but not limited to
attorneys' fees and court costs. Licensor shall have
the right to defend any such action or proceeding
with attorneys of its own selection. Licensee hereby
agrees it shall indemnify and forever hold Licensor,
its respective subsidiaries and affiliates and its
employees and agents harmless against and from any
and all claims (whether justified or unjustified),
costs, liabilities, judgments, damages and expenses,
including without limitation reasonable attorneys'
fees arising out of any breach or alleged breach by
Licensee of any provision of this agreement or any
misrepresentation made by Licensee herein or any act
not expressly authorized by this agreement.
8. Insurance.
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8.1 At its sole cost and expense throughout the Licensed Term
and the Sell-Off Period, Licensee shall obtain and maintain
standard product liability insurance, the form of which must
be acceptable to Licensor, from a qualified insurance company
licensed to do business in the State of California, naming
Licensor, its respective subsidiaries and affiliates and its
employees and agents as additional named insureds; such policy
shall provide protection against any and all claims, demands
and causes of action arising out of any defects or failure to
perform, alleged or otherwise, in the Licensed Products or any
material used in connection therewith or any use thereof.
Coverage shall be a minimum of $1,000,000 combined, single
limit for each single occurrence for bodily injury and
$100,000 for property damage. Said policy shall provide for
ten (10) days' notice by the insurer to Licensor by registered
or certified mail, return receipt requested, in the event of
any modification, cancellation, or termination of said policy.
Licensee shall furnish Licensor with a certificate of
insurance for the policy providing such coverage within thirty
(30) days after the date of this agreement, and in no event
shall Licensee manufacture, distribute, or sell Licensed
Products prior to receipt by Licensor of such evidence of
insurance.
8.2 At its sole cost and expense throughout the Licensed Term
and the Sell-Off Period, Licensee shall obtain and maintain
standard advertiser's liability
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insurance, the form of which
must be acceptable to Licensor from a qualified insurance
company licensed to do business in the State of California,
naming Licensor, its respective subsidiaries and affiliates
and its employees and agents as additional named insureds.
Coverage shall be a minimum of $500,000/$1,000,000. Said
policy shall provide for ten (10) days' notice by the insurer
to Licensor by registered or certified mail, return receipt
requested, in the event of any modification, cancellation, or
termination of said policy. Licensee shall furnish Licensor
with a certified copy of the policy providing such coverage
within thirty (30) days after the date of this agreement, and
in no event shall Licensee manufacture, distribute, or sell
Licensed Products prior to Licensor's receipt of such evidence
of insurance.
9. Termination.
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9.1 In the event Licensee:
9.1.1 manufactures, sells, offers for sale,
distributes, or uses any Licensed Products or
advertising thereof without Licensor's prior written
approval as set out in paragraph 3.1 above or uses
the Licensed Property in any manner not authorized
under this agreement;
9.1.2 fails to place Licensed Products on sale to
the general public on or before the initial on-sale date;
9.1.3 fails to actively manufacture, advertise,
distribute, or sell Licensed Products in all portions of the
Licensed Area;
9.1.4 fails to sell any Licensed Products during
any calendar quarter;
9.1.5 fails to make any payment or furnish any
Statement in accordance herewith (time is of the
essence with respect to Statements and payments);
9.1.6 fails to comply with any other of its
obligations hereunder, or in the event a voluntary
petition in bankruptcy is filed by Licensee or an
involuntary petition in bankruptcy is filed against
Licensee and not dismissed within thirty (30) days
thereafter or Licensee takes advantage of any
insolvency law;
then in any of such events, Licensor shall have the
right, at its option and in addition to any other
right of any nature it may have at law or in equity,
to do any or all of the following:
9.1.6.1 terminate this agreement;
9.1.6.2 delete from the operation of this agreement any
elements(s) of the Licensed Property or any Licensed
Products;
9.1.6.3 require immediate payment of all
royalties then due or becoming due
hereunder, all upon written notice to
Licensee.
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9.2 In the event Licensee is prevented from manufacturing or
distributing the Licensed Products because of any act of God,
unavoidable accident, fire, epidemic, strike, lockout or other
labor dispute, war, riot or civil commotion, act of public
enemy, enactment, rule, order or act of government or
governmental instrumentality (whether federal, state, local,
or foreign), or other cause of a similar or dissimilar nature
beyond Licensee's entire control, and such condition continues
for a period of three (3) months or more, either party hereto
shall have the right to terminate this agreement upon at least
thirty (30) days' notice to such effect to the other,
effective at any time during the continuation of such
condition.
10. Expiration; Termination; Sell-Off Period. Upon expiration or
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termination of this agreement, all rights granted Licensee
shall forthwith revert to Licensor, with the following consequences:
10.1 Licensor shall thereafter be free to license others to
use the Licensed Property in connection with the manufacture,
advertisement, distribution and sale of items identical or
similar to the Licensed Products in the Licensed Area.
10.2 Licensee shall not thereafter manufacture, advertise,
distribute, or sell Licensed Products in any place whatsoever,
except that in the event of the expiration of this agreement
on the last day of the Licensed Term hereof or the termination
of this agreement pursuant to any provision of paragraph 9.2
above, Licensee may continue to sell any Licensed Products
previously manufactured and on hand on a nonexclusive basis
for a period of ninety (90) days after expiration of the
Licensed Term (hereinafter "Sell-Off Period"), in accordance
with all the terms and conditions contained in this agreement
and at prices which shall not, except with Licensor's prior
written consent, be lower than the prevailing, wholesale
price(s) charged by Licensee during the ninety-day period
immediately preceding such expiration or termination. Licensee
must ship said Licensed Products previously manufactured
within the Sell-Off Period. During the Sell-Off Period,
Licensee may not sell Licensed Products pursuant to this
paragraph to affiliated or related companies or to its
officers and/or directors;
10.3 In lieu of allowing Licensee to exercise its sell-off
rights described above, Licensor shall have the right to buy
back at Licensee's lowest wholesale price to third parties all
Licensed Products previously manufactured and on hand. In such
event, Licensor shall communicate its desire to exercise such
rights by written notice to Licensee after receipt of the
inventory described in sub-paragraph 10.5 below;
10.4 Notwithstanding anything to the contrary contained
herein, Licensee shall not manufacture, sell, or dispose of
any articles covered by this license after the expiration or
termination hereof based on Licensee's failure to affix notice
of copyright, trademark, or service mark registration or any
other notice to the articles, cartons, containers, packaging,
wrapping, or advertising, promotional, or display material, or
because of its departure from the quality and style approved
by Licensor pursuant to paragraph 3.1 above;
10.5 Sixty (60) days prior to the date of expiration of the
Licensed Term or ten (10) days after the effective date of
termination of the license prior to expiration date of the
Licensed Term, Licensee shall provide Licensor with a
statement
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indicating the number and description of Licensed
Products it or its manufacturer has on hand or is in the
process of manufacturing as of the date of said statement.
Licensor shall have the option of conducting a physical
inventory of Licensee or its manufacturer in order to verify
such statement of remaining inventory. If Licensee fails to
supply the statement of inventory and work in process or
refuses to permit Licensor to conduct such physical inventory,
Licensee shall forfeit its rights to dispose of any Licensed
Products subsequent to the date of expiration of the Licensed
Term or the effective date of any termination pursuant to the
provisions of this paragraph. During the last sixty (60) days
of the Licensed Term, Licensee shall not manufacture more than
one-half (1/2) of one hundred ten percent (110%) of the
Licensed Products manufactured in the previous one hundred
twenty (120) days without Licensor's written consent. Nothing
contained in this paragraph shall be construed to limit
Licensor's rights or remedies.
10.6 Licensee acknowledges that its failure (except as
otherwise provided herein) to cease the manufacture, sale, or
distribution of Licensed Products or any class or category
thereof upon expiration or termination of this agreement will
result in immediate and irreparable damage to Licensor and to
the rights of any subsequent licensee. Licensee acknowledges
and admits there is no adequate remedy at law for such failure
to cease manufacture, sale, or distribution and agrees that in
the event of such failure, Licensor shall be entitled to
equitable relief by way of temporary and permanent injunction
and such other and further relief as any court with competent
jurisdiction may deem just and proper.
10.7 Upon expiration or termination of this license, Licensee
shall turn over to Licensor all molds and other materials
which reproduce the Licensed Property or provide Licensor with
satisfactory evidence of the destruction of said molds and
other materials. Licensee shall be responsible to Licensor for
any damage caused by unauthorized use by Licensee or others of
such molds or materials of reproduction which are not turned
over or destroyed.
10.8 With respect to inventory and/or work in progress
remaining at expiration of the Licensed Term, any renewal
term, or the Sell-Off Period as permitted by this agreement,
such inventory shall first be offered for sale at Licensee's
cost by written notice to Licensor, and if Licensor declines
such offer, such inventory shall be destroyed within seven (7)
days thereafter, an affidavit of destruction signed by an
officer of Licensee being sent to Licensor within seven (7)
days after such destruction.
10.9 Licensee shall stamp out, cross out, or eliminate any
identification of Licensor, the Licensed Property and the
Licensed Products in any of its catalogs, so it is obvious to
the reader that such merchandise is no longer for sale. Within
six (6) months following the termination date hereunder,
Licensee shall reprint its catalog without any reference to
Licensor, the Licensed Property, or the Licensed Products.
11. Assignment. Any attempted or purported assignment or other transfer,
sub-license, mortgage, or other encumbrances of this agreement by
Licensee without Licensor's prior written
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approval shall be void and of no effect. Licensor may assign this
agreement in whole or in part, but shall furnish written notice of any
such assignment to Licensee.
12. No Partnership; Waiver.
----------------------
12.1 Nothing herein contained shall be construed to constitute
a partnership or joint venture between the parties hereto, and
neither party shall become bound by any representation, act,
or omission of the other. Licensee is an independent
contractor in the manufacture, advertisement, sale and
distribution of Licensed Products and will pay all sales taxes
and other charges imposed on either party by any law,
ordinance, or requirement of any government or governmental
instrumentality (whether federal, state, local, or foreign) in
connection therewith.
12.2 A waiver by either party of any term of condition of this
agreement in any instance shall not be deemed or construed to
be a waiver of such term or condition in the future or any
subsequent breach thereof. All remedies, rights, undertakings,
obligations and agreements contained in this agreement shall
be cumulative, and none shall be in limitation of any other
remedies, rights, undertakings, obligations, or agreements of
either party.
13. Notices. All notices required to be given hereunder
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shall be in writing and shall be delivered personally, by
facsimile (FAX), or by certified or registered
mail, return receipt requested, postage prepaid, as follows:
13.1 if to Licensee, at the address set out above,
Attention: Jason Bauer, FAX number (212) 245-7767, with a
courtesy copy to __________________________
_________________________, FAX number _______________;
13.2 if to Licensor, at the address set out above,
Attention: Business and Legal Affairs Department, FAX number
(510) 347-4022
Any notice so given shall be deemed effective upon receipt
by the party to whom it is addressed. Either party may
change the address to which notice is to be sent by giving
written notice of such change of address to the other party
as provided herein. Notwithstanding the foregoing, either
party's failure to send a courtesy copy of notices pursuant
to sub-paragraph 13.1 or 13.2 above, as the case may be,
shall not be deemed a material breach of this agreement.
14. Governing Law; Attorneys' Fees.
------------------------------
14.1 This agreement and all matters or issues collateral
thereto shall be governed by the laws of the State of
California applicable to contracts performed entirely therein.
14.2 The entire understanding between the parties hereto
relating to the subject matter hereof is contained herein, and
no warranties, representations, or undertakings are made by
the parties hereto except as expressly provided herein. This
agreement cannot be changed or terminated orally.
14.3 If any legal action or other proceeding is brought for
enforcement of this agreement or as a result of a breach,
default, or misrepresentation in
13
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connection with any of the
provisions of this agreement, the successful or prevailing
party shall be entitled to recover reasonable attorneys' fees
and other costs incurred in that action or proceeding in
addition to any other relief to which such party may be
entitled.
15. Artwork.
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15.1 As used in this agreement, "Artwork Fee" means the sum
Licensee shall pay Licensor for the use of any Licensed
Property on any Licensed Products. Payment of the Artwork Fee
entitles Licensee to use certain Licensed Property that is
created by or is in the possession of Licensor, including
slides, transparencies, separations and logo blacklines
(hereinafter "Artwork"). Licensee shall pay Artwork Fees in
accordance with the rates set out on Exhibit "B" attached
hereto. Upon request therefor, Licensor shall provide Licensee
with Artwork for the creation of Licensed Property as promptly
as is reasonably possible.
15.2 Artwork Fees are due and payable to Licensor in
accordance with the terms set forth in Licensor's invoice to
Licensee therefor. Licensee further agrees to pay Licensor all
costs incurred for the shipment, insurance, import duties
and/or taxes and handling of Artwork and the approval process
pursuant to the terms of this agreement. Such costs shall be
paid by Licensee pursuant to the terms of Licensor's invoices
to Licensee therefor.
(End of Terms and Conditions)
