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EXHIBIT 10.29
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CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE
PORTIONS OF THIS EXHIBIT FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED
ARE DENOTED BY THE SYMBOL ****.
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VICTORY DISTRIBUTION, INC.
LICENSE AGREEMENT
THIS AGREEMENT, dated as of June 6, 2000, between Victory
Distribution, Inc., a Florida corporation with its principal office at 1000
Universal Studios Plaza, Building 22A, Orlando, Florida 32819 ("VDI"), and Drew
Pearson Marketing with its principal office at 15006 Beltway Drive,
Addison, Texas 75001 (the "Licensee"), as follows.
WHEREAS, VDI controls copyrights, trademark rights, and other
proprietary rights in and to the television program known as DOOLEY AND PALS or
THE DOOLEY AND PALS SHOW or other similar names (the "Property") and;
WHEREAS, the Licensee desires to obtain from VDI a license to
manufacture and sell certain merchandise products using said copyrights,
trademarks, and other proprietary rights;
WHEREAS, Stalwart Productions, Inc. with its principal office at
1338 Yale Street, Suite E, Santa Monica, California 90404 ("Agent/SPI") serves
as exclusive worldwide licensing and merchandising agent for VDI for the
Property and is VDI's authorized agent for certain dealings with Licensee as
described below.
NOW, THEREFORE, the parties agree as follows.
1. GRANT OF LICENSE. VDI grants to the Licensee, on the terms and
conditions set forth in this Agreement, the nonexclusive interactive right and
license to use the Copyrights and Trademarks in connection with the manufacture,
distribution, sale, and advertising of the Licensed Products in the Territory.
The term "Licensed Products" shall mean the following items: Standard headwear
defined as bucket hats, visors, baseball caps, j-caps, and
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sun bonnets; cold weather headwear defined as knit hats, fleece hats and berber
hats; and mittens, gloves and scarves sold only in sets with the headwear.
2. DISTRIBUTION. All Markets.
3. PERIOD OF AGREEMENT. The period of this Agreement shall be from
June 6, 2000, through June 5, 2003.
4. TERRITORY. United States, its territories and possessions.
5. ROYALTIES AND ADVANCES. In consideration for the rights granted
to it under this Agreement, the Licensee agrees to pay VDI the following:
(a) Upon execution of this Agreement the Licensee agrees to
pay VDI a non-refundable Advance Royalty Amount, of
$****.
(b) Royalties in an amount equal to **** percent (****%) of
the Net Wholesale Sales derived by Licensee on all sales
of Licensed Products, based upon the invoiced price of
each item minus freight costs, reasonable quantity and
trade discounts, rejections, actual returns and credits.
(c) Minimum Guarantee total Royalties of $****, less any
Advance Royalty Amount that is paid by Licensee to VDI.
All amounts and Royalty Statements due VDI under this Agreement shall be
remitted by the Licensee to the following address:
VICTORY DISTRIBUTION, INC.
Atten. Licensing Department
1000 Universal Studios Plaza
Building 22A
Orlando, Florida 32819
With a Copy of each Royalty Statement to:
Stalwart Productions, Inc.
Atten: Susan Notarides
1338 Yale Street #E
Santa Monica, California 90404
6. MARKETING PLANS. Within 90 days of the execution of this
Agreement, and on or before each one-year anniversary of the commencement date
of this Agreement, the
**** Confidential treatment is being requested for these portions of this
Agreement.
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Licensee shall provide the Agent/SPI with a written marketing plan with respect
to the Licensed Products. Each such marketing plan shall include, on an
Article-by-Article basis, a marketing timetable, sales projections, channels and
methods of distribution, nature and amount of advertising and advertising
expenditures, and any other information that Agent/SPI may ask the Licensee to
include for a Marketing Date of Spring 2001. Each marketing plan shall contain
specific information for the one-year period immediately succeeding its
submission and general estimates or projections for subsequent periods during
which this Agreement remains in effect.
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7. VDI'S APPROVAL OF LICENSED PRODUCTS, ADVERTISING, CONTAINERS,
MATERIALS, ETC.
(a) The quality and style of the Licensed Products as well as any
carton, container, packing or wrapping material shall be subject to the express
written approval of VDI and Agent/SPI prior to licensing for distribution and
sale thereof by Licensee. Also, each and every tag, label, imprint or other
device used in connection with any Licensed Products and all advertising,
promotional or display material bearing the Property and or Licensed Products
shall be submitted by Licensee to VDI and Agent/SPI for express written approval
prior to use by Licensee. Such approval may be granted or withheld as VDI and
Agent/SPI in its sole discretion may determine.
(b) VDI and Agent/SPI agree to use reasonable efforts to notify the
Licensee in writing of approval or disapproval by VDI and Agent/SPI of any
materials submitted to Agent/SPI under this Agreement within 10 business days
after Agent/SPI's receipt of such materials, and agrees, in the case of a
disapproval, to notify the Licensee in writing of the reasons for disapproval.
VDI's and Agent/SPI's failure to respond within such 10-business-day period
shall not be deemed approval of the submission in question.
(c) Licensee shall, before selling or distributing any of the
Licensed Product furnish to Agent/SPI, for approval by Agent/SPI and VDI, free
of cost, for its express written approval, 1) one generic sample of Licensed
Products in question, 2) concept art, final artwork with copyright and trademark
notices, 3) pre-production prototype, 4) six final production samples. Also each
type of carton, container, packing and wrapping material used with each Licensed
Product, each and every tag, label, imprint or other device used in connection
with any Licensed Product, and all advertising, story board, script, promotional
or display material bearing the Property and/or Licensed Products. Said samples
shall be sent to Agent/SPI by means permitting certification of receipt at the
mailing address stated in the notice clause herein. After samples have been
approved by Agent/SPI and VDI pursuant to this clause, Licensee shall not depart
therefrom in any respect without the express prior written approval of Agent/SPI
and VDI. The prototypes shall conform to the requirements of Clause 8.
8. PROTECTION OF VDI'S RIGHTS AND INTERESTS. VDI and Licensee agree
that Licensee's utilization of the Property upon or in connection with the
manufacture, distribution and sale of the Licensed Products is conditioned upon
protection of VDI's rights and obtaining the goodwill resulting from such use.
Licensee agrees to protect VDI's rights and goodwill as set forth in this
Agreement.
(a) Good Will and Protection.
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(i) Licensee recognizes the great value of
the publicity and goodwill associated with the Property
and, in such connection, acknowledges that such goodwill
exclusively belongs to VDI and that the Property has
acquired a secondary meaning in the mind of the
purchasing public. Licensee further acknowledges that
all rights in any additional material, new versions,
translations, rearrangements, or other changes in the
Property which may be created by or for Licensee, shall
be and will remain the exclusive property of VDI and the
same shall be and will remain a part of the Property
under the terms and conditions of this Agreement.
(ii) VDI may, if it so desires, and in its
reasonable discretion, commence or prosecute any claims
or suits against infringement of its right in the
Property and may, if it so desires, join Licensee at
VDI's expense as a party in such suit. Licensee shall
notify VDI in writing of any activities which Licensee
believes to be infringements or utilization by others of
the Property ON Licensed -- Products. VDI shall have the
sole right to determine whether or not any action shall
be undertaken as a result of such activity and shall
have sole discretion in the accommodation or settlement
of any controversies relating thereto. Licensee shall
not institute any suit or take any action with respect
to any such infringement or imitation without first
obtaining the written consent of VDI to do so.
(B) INDEMNIFICATION BY LICENSEE. Licensee shall indemnify VDI during
and after the Term hereof against all claims, liabilities (including settlements
entertain into in good faith with VDI's consent, not to be unreasonably
withheld) and expenses (including reasonable attorneys' fees) arising out of
Licensee's activities hereunder, or out of any defect (whether obvious or hidden
and whether or not present in any sample Licensed Product approved by VDI) in a
Licensed Product, or arising from personal injury or any infringement of any
rights of any other person by the manufacture, sale, possession or use of
Licensed Products, or their failure to comply with applicable laws, regulations
and standards. The parties indemnified hereunder include VDI, and its parents,
subsidiaries and affiliates, and co-producers and co-venturers of VDI. VDI's
licensors, its and their subsidiaries, its and their officers, directors,
employees and agents. This indemnity shall not apply to any claim or liability
relating to any infringement of the copyright of a third party caused by VDI's
utilization of the Licensed Products and
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Trademarks in accordance with this Agreement. With respect to the foregoing
indemnity, Licensee shall defend and hold harmless Indemnified Parties and each
of them at no cost or expense to them whatsoever, including but not limited to
reasonable attorneys' fees and court costs. VDI shall have the right but not the
obligation to defend any such action or proceeding at its own expense with
attorneys of its own selection.
(C) INDEMNIFICATION BY LICENSOR. VDI shall indemnify Licensee during
and after the Term hereof against all claims, liabilities (including settlements
entered into in good faith with Licensee's consent, not to be unreasonably
withheld) and expenses (including reasonable attorneys' fees) arising out of any
claim that Licensee's use of any representation of the Licensed Articles or the
Trademarks in accordance with the provisions of this Agreement infringes the
copyright of any third party or infringes any right granted by VDI to such third
party. Licensee shall not, however, be entitled to recover for lost profits.
(D) PRODUCT LIABILITY INSURANCE AND ADVERTISER'S LIABILITY
INSURANCE. The Licensee agrees to obtain and maintain during the term of this
Agreement, at its own expense, product liability insurance providing protection
(at a minimum, in the amount of $1,000,000 per occurrence/$2,000,000 annual
aggregate) applicable to any claims, liabilities, damages, costs, or expenses
arising out of any defects or alleged defects in the Articles. Such insurance
shall include coverage of VDI and Agent/SPI and its directors, officers, agents,
employees, assignees, and successors. Within 30 days after the execution of this
Agreement by VDI and Agent/SPI, the Licensee shall cause the insurance company
issuing such policy to issue a certificate to Agent/SPI confirming that such
policy has been issued and is in full force and effect and provides coverage of
VDI and Agent/SPI as required by this Clause and also confirming that before any
cancellation, modification, or reduction in coverage of such policy the
insurance company shall give VDI and Agent/SPI 30 days prior written notice of
such proposed cancellation, modification, or reduction.
9. SPECIFIC UNDERTAKINGS OF THE PARTIES.
(a) VDI warrants, represents and agrees that it has certain
ownership rights in and has the right to grant licenses to utilize the names
(including the name of the Property), characters, artists' portrayal of
characters, likeness and visual representations as included in the Property and
to grant the rights to the Property granted Licensee in this agreement.
(b) Licensee warrants, represents and agrees that:
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(i) It will manufacture, sell and distribute
the Licensed Products in an ethical manner and in
accordance with the terms and intent of this Agreement;
(ii) It will not create any expenses
chargeable to VDI;
(iii) It will not enter into any agreement
relating to the Property for commercial tie-ups or
promotions or otherwise, with any person or entity
engaged, in whole or in part, in the production of
television, without the prior written consent of VDI.
(iv) It will cause to be manufactured, sell
and distribute Licensed Products of a high standard and
of such quality, style and appearance as shall be
reasonably adequate and suited to their exploitation to
the best advantage and to the protection and enhancement
of the Property and the good will pertaining thereto;
that such Licensed Products will be manufactured,
packaged, sold and distributed and advertised in
accordance with all applicable (whether national,
federal, state, provincial or local) laws, and that the
policy of sale, distribution and or exploitation by
Licensee shall be of high standard and at the best
advantage of the Property and that the same shall in no
manner reflect adversely upon the good name of VDI, or
the Property.
10. TRADEMARK NOTICES AND PROTECTION. The Licensee agrees to affix
to the Licensed Products and to the Advertising Materials such trademark and
design notices as may be specified by VDI and Agent/SPI. When one of the
Trademarks is used as a trademark for any Article, the name shall be properly
used as a trademark in a larger or bolder type than the Article, and shall not
be used as the generic name of the Article.
(A) TRADEMARK USES INURE TO VDI'S BENEFIT. All trademark uses of the
Trademarks by the Licensee shall inure to the benefit of VDI, which shall own
all trademarks and trademark rights created by such uses. The Licensee hereby
assigns and transfers to VDI all trademarks and trademark rights created by such
uses of the Trademarks, together with the goodwill of the business in connection
with which such trademarks are used.
(B) TRADEMARK REGISTRATIONS. VDI shall have the right, but not the
obligation, to file in the appropriate offices of countries of the Territory
trademark or
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design applications relating to the use or proposed use by the Licensee of any
of the Trademarks in connection with the Licensed Products, such filings to be
made in the name of VDI or in the name of any third party selected by VDI.
(C) RECORDS RELATIVE TO TRADEMARK USES. The Licensee shall keep
appropriate records (including copies of pertinent invoices and correspondence)
relating to the dates when each of the Licensed Products is first placed on sale
or sold in each country of the Territory, and the dates of first use in each
country of each different Trademark on the Licensed Products and Advertising
Materials. At VDI's request, the Licensee shall supply VDI with samples of the
trademark usage in question and other information which will enable VDI to
complete and obtain trademark or design applications or registrations, or to
evaluate or oppose any trademark or design applications, registrations, or uses
of third parties.
(D) REGISTERED USER LAWS. As to those countries which require
applications to register the Licensee as a registered user of a Trademark or
Trademarks used on or in connection with the Licensed Products or which require
the recordation of this Agreement, the Licensee agrees to execute and deliver to
VDI such documents as may be necessary and as are furnished by VDI for such
purposes.
11. COPYRIGHT NOTICES AND PROTECTION.
(A) COPYRIGHT NOTICES. The authorization of VDI to the Licensee to
make public distribution of the Licensed Products and Advertising Materials is
expressly conditioned upon the following agreement of the Licensee. The Licensee
agrees to place on all Licensed Products and on all Advertising Materials the
copyright notice or notices as required by VDI and Agent/SPI.
(B) AFFIXATION OF NOTICE; NAME OF COPYRIGHT PROPRIETOR. The Licensee
acknowledges that proper copyright notices must be permanently affixed to all
Licensed Products and Advertising Materials and to any separate portions of
Licensed Products or Advertising Materials which contain the Program and which
are intended to be used separately by the purchaser or ultimate user. The
Licensee agrees that it will not, without VDI's prior written consent, affix to
the Licensed Products or the Advertising Materials a copyright notice in its
name or the name of any person, firm, or corporation other than VDI.
(C) ASSIGNMENT BY LICENSEE. The Licensee sells, assigns, and
transfers to VDI its entire worldwide right, title, and interest in and to all
"new works" or "derivative works" heretofore or hereafter created using the
Program, including, but not limited to, the copyrights and renewal copyrights
thereon, except for any portion contained in the Licensed Products that is
otherwise owned by Licensee as a separate work of
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authorship. If parties who are not employees of the Licensee living in the U.S.
make or have made any contribution to the creation of a "new work," so that such
parties might be deemed to be "authors" of the same as that term is used in
present or future U.S. copyright statutes, the Licensee agrees to obtain from
such parties a comparable full assignment of rights so that the foregoing
assignment by the Licensee vests in VDI full rights in the "new work," free of
any claims, interests, or rights of other parties. The Licensee agrees not to
permit any of its employees to obtain or reserve by oral or written employment
agreements any rights as "authors" of such "new works." At VDI's request, the
Licensee agrees to furnish VDI with full information concerning the creation of
"new works" and with copies of assignments of rights obtained from other
parties.
12. ROYALTIES; STATEMENTS.
(A) BASIS FOR COMPUTATION OF ROYALTIES. All royalties due to VDI
shall accrue upon the sale of the Licensed Products, regardless of the time of
collection by the Licensee. For purposes of this Agreement, an Article shall be
considered "sold" as of the date on which such Article is billed, invoiced,
shipped, or paid for, whichever event occurs first. If any Licensed Products are
consigned to a distributor by the Licensee, the Licensed Products shall be
considered "sold" by the Licensee as of the date on which such distributor
bills, invoices, ships, or receives payment for any of the Licensed Products,
whichever event occurs first.
(B) TIME OF PAYMENT; TIME FOR FILING ROYALTY STATEMENTS. The
Licensee shall pay all royalties owing to VDI under this Agreement for any
calendar quarter within 30 days following the end of the calendar quarter in
question. All royalty statements required to be submitted by the Licensee shall
be submitted within 30 days to VDI and Agent/SPI following the end of the
calendar quarter to which they relate and shall accompany the royalty payments
made to VDI.
13. DEDUCTIONS; TAXES.
(a) There shall be no deduction from the royalties owed to VDI for
uncollectible accounts, or for taxes, fees, assessments, or other expenses of
any kind which may be incurred or paid by the Licensee in connection with: (i)
royalty payments due VDI; (ii) the manufacture, sale, distribution, or
advertising of the Licensed Products in the Territory; or (iii) the transfer of
funds or royalties or the conversion of any currency into U.S. dollars. It shall
be the Licensee's sole responsibility at its expense to obtain the approval of
any governmental authorities; to take whatever steps may be required to effect
the payment of funds to VDI; to minimize or eliminate the incidence of taxes,
fees, or assessments which may be imposed; to enable it to commence or continue
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doing business in any country; and to comply in any and all respects with all
applicable laws and regulations.
(b) Notwithstanding the provisions of the preceding Clause, if (i)
any country imposes a withholding tax against VDI, as licensor, with respect to
the royalties payable to VDI by the Licensee on sales of the Licensed Products
in such country, (ii) such tax is paid by the Licensee on behalf of VDI, and
(iii) such tax is an income tax as to which a foreign tax credit is allowable to
VDI under Section 901 of the Internal Revenue Code of 1986, as amended, the
Licensee may deduct the amount of such withholding tax from the royalties paid
to VDI under this Agreement on the condition that the Licensee furnishes to VDI
all information and documentation required by VDI to enable VDI to obtain a
foreign tax credit on its U.S. income tax return with respect to such
withholding tax payment by the Licensee.
(C) ROYALTY STATEMENTS. The Licensee shall furnish to VDI and
Agent/SPI at the same time it makes payment of royalties, a full and complete
statement, duly certified by an officer of the Licensee to be true and accurate,
showing the number of each type of Article sold during the calendar quarter in
question, the total gross sales revenues for each such Article, an itemization
of all allowable deductions, if any, the Net Sales Price for each Article sold,
the amount of royalties due with respect to such sales, the quantities of each
Article on hand and in transit as of the end of such quarter, and the name and
address of each retailer to which the Licensee has sold the Licensed Products
during such quarter, together with such other pertinent information as VDI and
Agent/SPI may reasonably request from time to time. There shall be a breakdown
of sales of Licensed Products by country, and all figures and monetary amounts
shall first be stated in the currency in which the pertinent sales were actually
made. If several currencies are involved in any reporting category, that
category shall be broken down by each such currency. Next to each currency
amount shall be set forth the equivalent amount stated in U.S. dollars, and the
rate of exchange used in making the required conversion calculation. The rate of
exchange shall be the actual rate of exchange obtained by the Licensee on the
date of payment.
(D) ROYALTY ADJUSTMENTS. The receipt or acceptance by VDI and
Agent/SPI of any royalty statements furnished pursuant to this Agreement, or the
receipt or acceptance of any royalty payments made, shall not preclude VDI and
Agent/SPI from questioning their accuracy at any time. If any inconsistencies or
mistakes are discovered in such statements or payments, appropriate adjustments
shall be made immediately by the parties. The Licensee shall pay VDI interest on
a late royalty payment at an annual rate of ****% over the prevailing prime
interest rate in effect at Orlando, Florida, on the date on which such late
royalty payment should have been received by VDI.
**** Confidential treatment is being requested for this portion of this
Agreement
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14. BOOKS OF ACCOUNT AND OTHER RECORDS; AUDITS.
(A) RETENTION OF RECORDS. While this Agreement remains in effect and
for two years thereafter, the Licensee shall keep full and accurate books of
account and copies of all documents and other material relating to this
Agreement at the Licensee's principal office. VDI and Agent/SPI by their duly
authorized agents and representatives, shall have the right to audit such books,
documents, and other material, shall have access thereto during ordinary
business hours, and shall be at liberty to make copies of such books, documents,
and other material. At VDI's request, the Licensee shall provide an authorized
employee to assist in the examination of the Licensee's records.
(b) AUDITS BY VDI. If any audit of the Licensee's books and records
reveals that the Licensee has failed properly to account for and pay royalties
owing to VDI, and the amount of any royalties which the Licensee has failed
properly to account for and pay for any quarterly accounting period exceeds, by
5% or more, the royalties actually accounted for and paid to VDI for such
period, the Licensee shall, in addition to paying VDI such past due royalties,
reimburse VDI for its direct out-of-pocket expenses incurred in conducting such
audit, together with interest on the overdue royalty amount at an annual rate of
2% over the prevailing prime interest rate in effect at Orlando, Florida, on the
date on which such overdue royalty amount should have been paid to VDI.
15. TERMINATION.
(a) If Licensee files a petition in bankruptcy or is adjudicated a
bankrupt or if a petition in bankruptcy is filed against VDI or if Licensee
becomes insolvent or makes an assignment for the benefit of its creditors or an
arrangement pursuant to any bankruptcy law or if Licensee discontinues its
business or if a receiver is appointed for it or its business, the License
granted hereunder, without notice, shall terminate automatically (upon the
occurrence of any such event).
(b) If Licensee shall violate any of its obligations or conditions
under the terms of this Agreement, VDI shall have the right to terminate the
License herein granted upon thirty (30) days notice in writing, and such notice
of termination shall become effective, unless Licensee shall completely remedy
the violation and satisfy VDI that such violation has been remedied within the
fourteen day period.
(c) If the License granted hereunder is terminated in accordance
with the provisions of Sub clauses 14(a) or 14(b), all Gross Receipts
theretofore accrued shall become due and payable immediately to the depository
and VDI shall not be obligated to reimburse Licensee for any payment theretofore
paid by Licensee to VDI.
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(D) VDI'S RIGHT TO ELIMINATE COUNTRY FROM TERRITORY. If at any time
during the period of this Agreement the Licensee is not making regular sales of
more than a nominal nature of any of the Licensed Products in a country of the
Territory, VDI shall have the right, upon giving 30 days prior written notice to
the Licensee, to terminate the Licensee's rights for all Licensed Products for
such country.
(E) VDI'S RIGHT TO TERMINATE LICENSE FOR SPECIFIC ARTICLE. If at any
time during the period of this Agreement the Licensee is not making regular
sales of more than a nominal nature of a particular Article in a country of the
Territory, VDI shall have the right, upon giving 30 days prior written notice to
the Licensee, to terminate the Licensee's rights for such Article in such
country.
16. FINAL STATEMENT UPON TERMINATION OR EXPIRATION. As soon as
practical after termination or expiration of this Agreement, but in no event
more than 30 days thereafter, Licensee shall deliver to VDI a statement
indicating the number and description of Licensed Products which Licensee has on
hand (or in process of manufacture) as of (a) sixty (60) days prior to the end
of the Term of this Agreement, or (b) fourteen days after receipt from VDI of a
notice terminating this Agreement (in the event no such notice was given,
fourteen days after the occurrence of any event which terminates this Agreement)
whichever shall be applicable.
17. EFFECT OF TERMINATION OR EXPIRATION. Upon expiration of the
License granted hereunder or the earlier termination thereof, all rights granted
to Licensee hereunder shall forthwith revert to VDI, and Licensee thereafter,
directly or indirectly, shall not use or refer to the Property or any name,
character, trademark or designation which in VDI's reasonable opinion is similar
to the Property, in connection with the manufacture, sale or distribution of
products of the Licensee. Licensee shall upon the expiration or termination turn
over to VDI all molds and other materials which reproduce the Licensed Products,
or give VDI satisfactory evidence of their destruction.
Licensee hereby agrees that at the expiration or termination of this
Agreement for any reason, Licensee will be deemed automatically to have
assigned, transferred and conveyed to VDI any and all copyrights, trademark or
service mark rights, goodwill or other right, title or interest in and to the
merchandising of the Property which may have been obtained by Licensee or which
may have vested in Licensee in pursuance of any endeavors covered hereby.
Licensee will execute, and hereby irrevocably appoints VDI its attorney-in-fact
(acknowledging that such power is coupled with an interest) to execute, if
Licensee falls or refuses to do so, any instruments requested by VDI to
accomplish or confirm the foregoing. Any such assignment, transfer or conveyance
shall be without consideration other than the mutual covenants and
considerations of this Agreement. Also, upon expiration or termination
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of this Agreement, VDI shall be free to license to others the right to use the
Property in connection with the manufacture, sale and distribution of the
Licensed Products.
Notwithstanding the foregoing The Licensee shall have the
non-exclusive right to sell any article listed in such inventory for a period of
120 days immediately following termination or expiration of this Agreement,
subject to payment of royalties to VDI on any such sales in accordance with the
terms of this Agreement.
18. REMEDIES OF GRANTOR.
(a) Licensee acknowledges that the failure of the Licensee to cease
the manufacture, sale or distribution of Licensed Products except as herein
permitted upon the expiration or earlier termination of the License granted
hereunder or the failure of Licensee to fulfill its obligations specified as
described in this Agreement, will result in immediate and irremediable damage to
VDI and to the rights of any other licensee of the Property. Licensee
acknowledges that VDI has no adequate remedy at law for any such failure
referred to or referenced to in this Clause and in the event of any such
failure, VDI shall be entitled to equitable relief by way of temporary and
permanent injunctions, in addition to such other further relief as any court of
competent jurisdiction may deem just and proper.
(b) If VDI uses any remedy afforded by this Clause, VDI shall not be
deemed to have elected its remedy or to have waived any other rights or remedies
available to it under this Agreement, or otherwise.
19. FORCE MAJEURE. Licensee shall be released from its obligations
hereunder in the event that governmental regulations or conditions arising out
of a state of national emergency or war, or causes beyond the control of
Licensee render performance by Licensee hereunder impossible. The release of
obligations under this Clause shall be limited to a delay in time for Licensee
to meet its obligations for a period not to exceed three (3) months, and if
there is any failure to meet such obligations after that period, VDI shall have
the absolute right to terminate this Agreement upon thirty (30) days notice in
writing. Such notice of termination shall become effective if Licensee does not
completely remedy the violation within the same thirty-day period and satisfy
VDI that such failure has been remedied.
20. RESERVATION OF RIGHTS. VDI reserves to itself the right to use
or sell the Licensed Products as premiums in the Territory, including such
Licensed Products that are not produced by the Licensee, and VDI shall have the
right to have the Licensed Products produced for premium use by any third party
it desires. However, VDI shall grant Licensee a fifteen (15) day first right of
refusal on premium items that fall within the scope of the specific type of
articles described hereunder. After such fifteen days, VDI shall be free to
grant such rights to any third party. Further, all rights in and to the Property
are retained by VDI for its
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own use, except for the specific rights in the Property licensed to the Licensee
under this Agreement. VDI reserves the right to use, and to license other
parties to use, the Property in the Territory for any purpose VDI may determine,
but neither VDI nor any party licensed by VDI shall have the right to use the
Property in any manner which would conflict with the rights granted to the
Licensee under this Agreement.
21. NOTICES. All notices to be given to the parties shall be as
follows.
If to VDI.
Victory Entertainment, Inc.
1000 Universal Studios Plaza
Building 22A
Orlando, Florida 32819
and to:
Stalwart Productions, Inc.
Atten: Susan Notarides
1338 Yale Street #E
Santa Monica, California 90404
If to Licensee:
Drew Pearson Marketing
Atten: Carta Masters
15006 Beltway Drive
Addison, Texas 75001
or at such other address as VDI or Licensee shall designate in writing from time
to time. All notices shall be in writing and shall either be served by Certified
or Registered Mail Return Receipt Requested, or telegraph, all charges prepaid.
Except as provided herein, such notices shall be deemed given when mailed or
accepted by the recipient, all charges prepaid, except that notices of change of
address shall be effective only after the actual receipt thereof.
22. WAIVER, MODIFICATION, ETC. No waiver, modification or
cancellation of any term or condition of this Agreement shall be effective
unless executed in writing by the party charged therewith. No written waiver
shall excuse the performance of any act other than those specifically referred
to therein. VDI makes no warranties to Licensee except those specifically
expressed herein.
23. NO PARTNERSHIP, ETC. This Agreement does not constitute and
shall not be construed as constituting an agency, a partnership or joint venture
between VDI and Licensee. Neither party hereto shall hold itself out contrary to
the terms of this Clause, and neither
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VDI nor Licensee shall become liable for any representation, act or omission of
the other contrary to the provisions hereof. This contract shall not be deemed
to give any right or remedy to any third party whatsoever unless said right or
remedy is specifically granted by VDI in writing to such third party.
24. NON-ASSIGNABILITY. The license granted hereunder is and shall be
personal to Licensee, and shall not be assignable by any act of Licensee or by
operation of law. Licensee shall not have Licensed Products manufactured for
Licensee by a third party unless Licensee first obtains VDI's approval in
writing and unless the third party enters into an agreement with VDI not to
supply Licensed Products to anyone other than Licensee. Any attempt by Licensee
to grant sub-licenses or to assign or part with possession or control of the
License granted hereunder or any of Licensee's rights hereunder without VDI's
prior written approval shall constitute a material breach of this Agreement. VDI
shall have the right to assign this Agreement, in which event VDI shall be
relieved of any and all obligations hereunder, so long as such Assignee shall be
owned or controlled by VDI or its parent company, Victory Entertainment Corp.
25. GOVERNING LAW. This Agreement shall be deemed to have been made
in, and shall be construed in accordance with the laws of the State of Florida,
and its validity, construction, interpretation and legal effect shall be
governed by the laws of the State of Florida, applicable to contracts entered
into and performed entirely therein, venue for any disputes under this Agreement
shall be Orange County, Florida.
26. MISCELLANEOUS. This Agreement sets forth the entire
understanding of the parties hereto relating to the subject matter hereof. No
modification, amendment, waiver, termination or discharge of this Agreement, or
of any of the terms, or provisions hereof shall be binding upon either party
hereto unless confirmed by a written instrument signed by Licensee and VDI and
Agent/SPI. No waiver by VDI, Agent/SPI or Licensee of any term or provision of
this contract or of any default here under shall affect the other's respective
rights thereafter to enforce such term or provision or to exercise any right or
remedy in the event of any other default whether or not similar. If any
provision of this Agreement shall be held void, voidable, invalid, or
inoperative, no other provision of this Agreement shall be affected as a result
thereof, and, accordingly, the remaining provisions of this Agreement shall
remain in full force and effect as though such void, voidable, invalid, or
inoperative provision had not been contained herein. Except as otherwise
provided in this contract, all rights and remedies herein or otherwise shall be
cumulative and none of them shall be in limitation of any other right or remedy.
This contract shall not be effective until signed by a duly authorized officer
of VDI and Agent/SPI and countersigned by a duly authorized officer of Licensee.
ACCEPTED AND AGREED.
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VICTORY DISTRIBUTION, INC. DREW PEARSON MARKETING
"VDI" "LICENSEE"
By: By:
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Its: Its:
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Dated: Dated:
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