EXHIBIT 10.3
MASTER MERCHANDISING LICENSE AGREEMENT
This agreement ("Agreement") is made as of September 15, 1999, between
Universal Studios Licensing, Inc. ("Universal"), with its principal office at
100 Universal City Plaza, Building 509/15, Universal City, California 91608
(Attn: Senior Vice President, Legal and Business Affairs), and Power Photo
Kiosks, Inc., Licensee"), with its principal office at 181 Whitehall Drive,
Markham, Ontario, Canada L3R 9T1 (Attn: President).
1. UNVERSAL PROPERTY: The "Universal Property" is, individually and
collectively, those certain theatrical motion pictures, television programs
and/or Characters set forth on the Schedule(s) attached hereto and incorporated
herein by this reference (the "Schedule(s)"). Unless otherwise specifically set
forth herein, "Character" shall mean the name, title, voice and likeness
(namely, the design, representation, icon, costume, make-up, accessories,
traits, mannerisms and image) created, owned or controlled by Universal, its
parent and/or any of its or their subsidiaries, affiliates or licensors (each,
including Universal, a "Universal Entity" and all collectively the "Universal
Entities").
2. LICENSE: Pursuant to the terms and conditions of this Agreement,
Universal grants to Licensee, and Licensee takes from Universal, the
non-transferable, non-assignable right to use the Licensed Property solely in
connection with the manufacture of the Licensed Article(s) and the distribution
and sale of the Licensed Article(s) and for Advertising and Promotion in the
License Territory during the License Term ("License").
3. LICENSED PROPERTY: The "Licensed Property" is the tide and logo (e.g.,
Character(s), artwork) and such other elements of the Universal Property
supplied to Licensee by Universal.
4. LICENSED ARTICLE(S): The "Licensed Article(s)" consists of those
articles set forth on the Schedule(s) which display, embody or make use of the
Licensed Property and all collateral materials, including, without limitation,
tags, packaging, packing inserts, wrapping and labeling ("Packaging"), produced
by or for Licensee, subject to Approval and any restrictions herein, for
distribution and sale by Licensee in the License Territory during the License
Term.
5. ADVANCE: Licensee shall pay Universal, in each case, a non-refundable,
non-returnable advance against Royalties in the amount of United States Dollars
set forth on the applicable Schedule(s) ("Advance"), which amount shall be due
and payable upon execution of the applicable Schedule(s) and payment of which is
a condition precedent to the License.
6. GUARANTEE: Licensee guarantees that it shall pay the amount of United
States Dollars set forth on the applicable Schedule(s) ("Guarantee"), less only
the Advance and/or Royalty payments specified thereon which have already been
paid, subject to acceleration as set forth herein, no later than: (a) thirty
(30) days after the expiration of the License Term or upon such earlier date as
may be set forth on such Schedule(s); or (b) five (5) days after the earlier
termination of this Agreement.
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7. ROYALTY: Licensee shall pay Universal a "Royalty" of the percentage set
forth on the applicable Schedule(s) of one hundred percent (100%) of the Royalty
Base Price for all Licensed Article(s) sold, less only actual cash and/or credit
returns for defective merchandise. The "Royalty Base Price" is defined as no
less than Licensee's regular, full, "top-of-the-line", in- territory delivered
wholesale price without deduction of any sort whatsoever. Licensee agrees that
it shall invoice each Licensed Article sold and shall sell the Licensed
Article(s) solely on a cash or credit basis (with credit deemed the same as cash
for purposes hereof). Without limiting the foregoing, Licensee shall not
distribute the Licensed Article(s) without charge, on any so-called "barter"
basis, as a give-away, by special sale, as a premium of any kind or as a prize
or attraction as part of any fund-raiser, in connection with any bundling or
sampling arrangement, contest or lottery without Approval. Licensee shall not
sell and ship Licensed Article(s) "FOB" (freight on board) unless it verifies
the actual cost of shipping and insurance and adds such amount to the price
before computing and paying the Royalty to Universal or unless a separate
Royalty rate is specified in the applicable Schedule. The amount paid to
Universal as a Royalty on any sale to other licensees of any Universal Entity or
to Universal's or Licensee's parent, subsidiaries or affiliates shall in no
event be less than the amounts paid on sales to customers not related to
Licensee or Universal. Royalties shall not be payable on samples required to be
provided to Universal hereunder.
8. LICENSE TERM: The "License Term" shall commence as of the date of the
Schedule(s) and shall continue until the date or for the period of time set
forth on the Schedule(s), unless terminated earlier as provided herein or by
operation of Law.
9. LICENSE TERRITORY AND LANGUAGE:
(a) Licensee's rights herein shall be limited to the right t
manufacture, distribute and sell the Licensed Article(s), and to engage in
Advertising and Promotion, solely in the License Territory specified on the
applicable Schedule(s) in the English language or such other language(s)
set forth thereon ("License Territory"); provided that Licensee shall be
permitted to manufacture the Licensed Article(s) outside of the License
Territory for distribution and sale within the License Territory only.
(b) Licensee shall not, nor shall it authorize others to, solicit,
advertise, distribute, sell, use or otherwise exploit the Licensed
Article(s) in any other territory. Licensee shall not knowingly sell the
Licensed Article(s) to customers who sell the Licensed Article(s) in any
geographic area outside the License Territory. Licensee shall not fulfill
orders from outside the License Territory unless required to do so by law
established by any government with applicable jurisdiction, in which case
Licensee shall promptly notify Universal in writing of the order(s),
providing Universal with full details thereof.
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10. EXCLUSIVITY: This License shall be non-exclusive.
11. ADVERTISING AND PROMOTION: Licensee shall have the right to use the
Licensed Property to market, advertise and promote for sale the Licensed
Article(s) during the License Term in the License Territory ("Advertising mid
Promotion"). Licensee shall not state or imply that any Universal Entity or
Character, or any actor performing in or person related to the Universal
Property or the Licensed Property, endorses the Licensee, its products and/or
services or the Licensed Article(s).
12. DUTY TO EXPLOIT LICENSE: Licensee shall: (a) us its best efforts during
the License Term (i) to manufacture the Licensed Article(s); and (ii) to
distribute and sell the Licensed Article(s) and engage in Advertising and
Promotion in the License Territory; (b) commence Advertising and Promotion of
the Licensed Article(s) in the License Territory on the Marketing Date set forth
on the applicable Schedule(s); and (c) ship the Licensed Article(s) and make the
Licensed Article(s) available for sale throughout the License Territory on the
Shipping Date set forth on the applicable Schedule.
13. FREE COPIES, PURCHASED COPIES: Licensee shall, at its expense, ship to
Universal, at the address set forth above, thirty (30) free copies of each of
the Licensed Article(s). The Universal Entities shall have the right to purchase
additional copies of each of the Licensed Article(s) at Licensee's most
favorable discounted price.
14. NO DEDUCTIONS: Licensee shall pay all amounts due Universal in United
States Dollars at the then-applicable exchange rate. Except as specified in the
Royalty Paragraph herein, no deduction shall be made for any reason including,
without limitation, expenses related to currency exchange or transmission or for
cash or other discounts, uncollectible accounts or for costs incurred in tile
development, design, manufacture, distribution, sale, Advertising and Promotion
or exploitation of the Licensed Article(s). All taxes, levies or other charges
imposed in the License Territory in connection with the rights granted hereunder
shall be paid by Licensee, and no deductions for such taxes, levies or charges
shall be made from amounts due Universal herein.
15. ROYALTY STATEMENTS AND PAYMENTS:
(a) For purposes of measuring and computing Royalty payments Advances
and/or Royalties paid in respect to the Licensed Article(s) set forth on
any one Schedule shall not be deducted from or offset against the Advance
and/or Royalty payments for the Licensed Article(s) on any other Schedule.
(b) Licensee shall, within thirty (30) days of the end of each
calendar quarter (March 31, June 30, September 30 and December 31 of each
year), commencing with the first full calendar quarter following Licensee's
execution of this Agreement and continuing until a final Certification of
Wind-Up is delivered, furnish Universal complete statements, certified to
be accurate by an authorized representative of Licensee, specifying the
License Territory, a description of the Licensed Article(s), a description
of the Licensed Property used therein or
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thereon (including, without limitation, any and all names and likenesses
from the Licensed Property which appear in or on the Licensed Article(s)
(including, without limitation, any Packaging) and/or Advertising and
Promotion), the amount due Universal and the following additional
information cross-referenced against the applicable "sku" number(s); the
wholesale price, invoice price, quantity invoiced, Royalty rate and
deductions for actual cash and credit returns of defective merchandise
(including the amount and quantity related thereto) (" Royalty Statement(s)
"). The amount shown to be payable to Universal shall be paid
simultaneously with the rendering of the respective Royalty Statement.
(c) Interest, compounded monthly, at the rate of one percent (1 %) per
month (or if not legally permissible, then at the then maximum legal
interest rate) shall accrue on any amount due to Universal from and after
the date upon which said payment is due until the date payment is actually
received by Universal. Universal's receipt or acceptance of any Royalty
Statement or Royalty payment pursuant to this Agreement (or the negotiating
of any check or draft constituting payment of any Royalty) shall not
preclude any Universal Entity from questioning the correctness thereof at
any time or exercising any of its rights related thereto. In the event that
any inconsistencies or mistakes are discovered in any Royalty Statement or
Royalty payment, Licensee shall immediately rectify such inconsistencies or
mistakes and shall pay the appropriate Royalty to Universal, if applicable.
(d) Within thirty (30) days from the end of the last full calendar
quarter during which Licensee is authorized herein to manufacture,
distribute and sell the Licensed Article(s), Licensee shall deliver to
Universal a complete statement, certified to be accurate by an authorized
representative of Licensee, detailing (including referencing the "sku"
number) the number of Licensed Article(s) manufactured, distributed,
invoiced and sold by Licensee and the actual cash or credit returns for
defective merchandise received by Licensee during the License Term and
restating and summarizing the contents of all prior Royalty Statements
("Certification of Wind-Up").
16. RECORDS AND AUDIT: Licensee shall maintain and keep (at Licensee's
principal place of business and at its sole expense) accurate books of account
and records covering all matters and transactions relating to the License and
this Agreement. Universal and its duly authorized representative(s) shall have
the right, upon reasonable notice and at all reasonable hours of the day, to
examine and copy and otherwise audit said books of account, records and all
other documents and materials in the possession or under the control of Licensee
with respect to the License and this Agreement. Licensee shall maintain and keep
all such books of account and records available for at least three (3) years
after expiration or earlier termination of this Agreement. Licensee shall, upon
demand by Universal but not more than once during the License Term, at its own
expense, furnish to any Universal Entity a detailed statement prepared and
certified by Licensee's Chief Financial Officer or other authorized
representative detailing Royalties and all information required in Royalty
Statements. If any audit discloses deficiencies, said amount shall be
immediately paid to Universal, and if any audit performed at Universal's expense
discloses deficiencies of five percent (5 %) or more of the total amount of
Royalties due Universal, Licensee shall reimburse Universal for the costs of
such audit.
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17. CLEARANCE/RE-USE OBLIGATIONS COSTS AND EXPENSE: Licensee acknowledges
that Licensee's use of the Licensed Property for the purposes specified herein
may be subject to contractual restrictions and/or obligations as set forth in
agreements between the Universal Entities and third parties, and Licensee agrees
that it shall be solely Licensee's responsibility to obtain and pay for any and
all rights, clearances, permissions, approvals and the like that may be
necessary or required with respect to Licensee's use of any voice, person's
likeness or performance, audio and/or audio/visual clips, music contained in the
Universal Property or the Licensed Property (and Licensee shall promptly provide
Universal with copies of all documents evidencing any such consents and
clearances as they are obtained); provided, however, that Universal shall use
its reasonable efforts to: (i) notify Licensee of any such necessary
restrictions or required consents of which it is aware; and (ii) assist Licensee
in connection with obtaining such required clearances, however nothing herein
shall obligate Universal to obtain such clearances.
18. APPROVALS, OUALITY STANDARDS AND MANUFACTURING:
(a) "tApproval(s)" or "Approved" shall mean Universal's prio written
consent, which may be given or withheld in Universal's sole discretion.
Universal's silence or failure to respond to a request for approval shall
in no event be deemed Approval.
(b) "Artwork" shall mean and refer to, without limitation, all visual;
audio, audio- visual, literary, digital, artistic and other creations,
including, without limitation, artwork, designs, text, typefaces, models,
samples, casts, coloring, discs, video sequences, film, sound recordings,
ingredients, molds, prints, printing plates, silkscreens, packaging and
other similar materials.
(c) "Licensee Materials" shall mean and refer to all materials using
or incorporating the Licensed Property which are prepared by or for
Licensee for the design or production of the Licensed Article(s),
including, without limitation, all Artwork.
(d) Right of Approval: The Licensed Article(s), all Advertising and
Promotion and the Licensee Materials shall be submitted as specified herein
to Universal for Approval. In no event shall Licensee use, reproduce,
distribute, sell, disseminate or otherwise exploit, in any manner or for
any purpose, the Licensed Article(s), Advertising and Promotion and/or
Licensee Materials, or any element or portion thereof, without Approval.
Any modification or variation in the Licensed Article(s), Advertising and
Promotion and/or the Licensee Materials, or any element or portion thereof,
shall be resubmitted to Universal for Approval. Approval of an element for
a particular Licensed Article does not imply Approval of such element for
use in connection with a different Licensed Article. Neither Approval nor
the appearance of copyright and/or trademark notices displayed on or
affixed to any Licensed Article(s) or Advertising and Promotion shall mean
or in any way imply, or be interpreted or deemed to mean or in any way
imply, that the Universal Entities; (i) endorse or warrant the
merchantability and/or fitness for use and/or safety of any Licensed
Article(s) or Advertising and Promotion; or (ii) approve of, consent to,
endorse or agree with any representation of Licensee embodied in, affixed
to or displayed upon any Licensed Article(s) or Advertising and Promotion.
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Any Approval shall not waive, diminish or negate Licensee's indemnification
obligations to Universal herein.
(e) Approval Process: Licensee shall create and deliver to Universal
each proposed design for the Licensed Article(s) in the form of written
and/or illustrated concepts ("Concepts"). Licensee shall make changes to
the Concepts as requested by Universal. Upon Approval of the Concepts,
Licensee shall create and deliver to Universal final designs for the
Licensed Article(s) ("Designs"). Licensee shall make changes to the Designs
as requested by Universal. Upon Approval of the Designs, Licensee shall
produce and deliver to Universal prototypes plus two (2) color photocopies
or photographs for each of the Licensed Article(s) incorporating the
Designs ("Prototypes"). Licensee shall make any changes to the Prototypes
requested by Universal and ship new Prototypes for each Licensed Article
for Approval. Approval of all Prototypes shall authorize the commencement
of commercial production. The Licensed Article(s) shall not differ in any
respect from the Approved Prototype.
Licensee shall not commence commercial production of any Licensed
Article(s) unless and until Universal has fully and finally Approved the
Prototype therefor. Prior to distribution of Licensed Article(s) to the
public, Licensee shall ship to Universal eighteen (18) samples of the
Licensed Article(s) ("Production Samples"). Licensee agrees that Universal
shall have the right to request, or have its representative take, further
samples at random from production runs from time to time as Universal may
reasonably determine in order to assure that proper quality control has
been established by Licensee. In the event that any Production Sample does
not receive Approval during the commercial production period, Licensee
shall suspend commercial production of the applicable Licensed Article(s)
until such time as Universal has Approved a revised Production Sample.
Universal may additionally require that the Licensed Article(s) be
immediately recalled if it believes in its reasonable judgment that the
Licensed Article(s) may pose a health or safety hazard or be detrimental to
the goodwill of any Universal Entity. The Licensed Article(s) shall not
differ in any respect from the Approved Production Samples.
Licensee shall produce and deliver to Universal for Approval prior to
production and/or use thereof all concepts, designs and samples
("Advertising Elements") of any Advertising and Promotion, including,
without limitation, all press releases, that Licensee intends to use in
relation to the marketing, distribution and sale of the Licensed
Article(s). Licensee shall not distribute or disseminate any Advertising
and Promotion, or any element thereof or materials related thereto, unless
and until Universal has Approved the Advertising Elements, and the
Advertising and Promotion shall not differ in any respect from the
Advertising Elements as Approved. All Concepts, Designs, Prototypes,
Production Samples and Advertising Elements requiring Approval hereunder
shall be delivered to Universal on an expedited and insured basis.
At all reasonable times and upon reasonable notice, Universal's
representative(s) shall have access to any Licensee Materials and/or
Licensed Article(s), Concepts, Designs, Prototypes, Production Samples and
Advertising Elements regardless of their location. Universal shall have the
right to enter and inspect all premises and facilities (including, without
limitation, storage and shipping facilities) of Licensee and its designers,
manufacturers, suppliers, warehousers and/or shippers (collectively,
"Manufacturers") in order to ensure that the manufacture, Packaging,
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labeling, Advertising and Promotion and distribution of Licensed Articles
comply with Licensee's obligations hereunder and all Laws. Licensee shall
provide all information requested by Universal regarding the design,
testing, manufacture, quality control, storage and shipment of the Licensed
Article(s).
(f) No Sublicense: Manufacture of Articles by Third Parties:
(i) Licensee shall not be entitled to sublicense any of its
rights under this Agreement. In the event the Licensed Article(s)
(including Packaging) are to be manufactured or supplied by a third
party, whether the third party is located within or outside the United
States, Licensee shall notify Universal of the name and address of
such third-party Manufacturer(s) and must obtain Approval. If
requested by Universal, Licensee shall immediately deliver to
Universal any agreements between Licensee and such Manufacturers (in
which Licensee shall require the Manufacturer agrees to be bound by
all terms and conditions in this Agreement applicable to its function
as Manufacturer of the Licensed Article(s)). In no event shall
Approved third-party Manufacturers be entitled to grant any rights to
subcontractors. Universal shall have the right to require Licensee to
use a manufacturer agreement supplied to Licensee by Universal.
Licensee agrees to furnish Universal copies of all agreements between
Licensee and any Manufacturer(s) within ten (10) business days of the
execution thereof. Upon Universal's request, Licensee shall terminate
any agreement between Licensee and any Manufacturer if such
Manufacturer violates any agreements for the protection of the
Universal Entities.
(ii) Licensee agrees to strictly enforce against its
Manufacturer(s) all of the provisions in the agreement between
Licensee and such Manufacturer(s) for the protection of the Universal
Entities and to advise Universal of any violations thereof by any
Manufacturer(s). Licensee shall take all actions necessary to bring
such violations to an immediate halt at Licensee's sole expense and
shall fully compensate the Universal Entities for any cost, expense or
loss they sustain. If, by reason of Licensee's failure to supply the
above-mentioned agreements to Universal or failure to give Universal
the name of any Manufacturer(s), any Universal Entity makes any
representation or takes any action and is thereby subjected to any
penalty or expense, Licensee shall compensate the Universal Entity for
any cost, expense or loss it sustains.
19. TRADEMARK, COPYRIGHT AND GOODWILL:
(a) Trademark and Copyright: Licensee shall do whatever is
necessary to protect the Copyright, Trademark and similar rights in
the Licensed Article(s) in the License Territory including, without
limitation, by registering itself in the License Territory as an
authorized user of the Trademark and joining with Universal to pursue
infringers of those rights at Universal's expense. "Copyright" shall
mean the copyrights and design patents, and any renewals or extensions
thereof, in and to the Universal Property and all derivative works
thereof in any medium now known or hereafter devised including,
without limitation, motion pictures and other audiovisual works;
electronic, interactive multimedia and on-line works; literary,
musical, dramatic, pictorial, graphic, architectural and sculptural
works; industrial designs; sound recordings; and any and all ancillary
or subsidiary works based thereon "Trademark"
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shall mean the words, names, titles, symbols, logos, designs, phrases,
trademarks, service marks, collective marks, certification marks, trade
names and trade dress associated with the Universal Property, and any
combination of the foregoing, now, heretofore or hereafter in use,
whether registered, pending registration or subsisting at common law.
Neither the Licensed Property nor the Licensed Article(s) shall appear or
be used, reproduced or otherwise exploited in any medium, whether now known
or hereafter devised, in conjunction with any other property or materials,
including, without limitation, any name, character, symbol, logo, design,
likeness or literary or artistic material owned or controlled by any
Universal Entity, Licensee or any third parry, without Approval. Unless
specifically granted as part of the Licensed Property or as otherwise
required by Universal, neither the License nor the Licensed Property shall
include the right to use in any manner or medium the names and/or logos of
any Universal Entity (collectively, "Universal Name and Logo"), and any
references to the Universal Name and Logo in this Agreement shall not grant
or be construed to grant any rights therein. Licensee shall use no
markings, legends or notices on or in association with tile Licensed
Article(s) and any Advertising and Promotion other than as specified herein
and as may from time to time be specified by Universal, without Approval.
Any materials provided by any Universal Entity to Licensee, including,
without limitation, all Artwork, are and shall remain the exclusive
property of the Universal Entities ("Universal Materials"). None of: (i)
this Agreement; (ii) any action, omission or statement by any Universal
Entity or Licensee; or (iii) Licensee's use of the Licensed Property,
Copyright, Trademark, Universal Materials and/or Universal Name and Logo
shall in any way confer or imply a grant of rights, title or interest
thereto or to the Universal Property or to any elements or portions thereof
(including, without limitation, ideas, themes, plots, stories, sequence of
events, mood, setting, pace, characterizations, any Character, dialogue,
titles and other material) or any other rights (including, without
limitation, Intellectual Property Rights or the goodwill associated
therewith), the ownership of which shall remain solely and exclusively with
the Universal Entities. Licensee irrevocably and unconditionally transfers
and assigns to Universal in perpetuity and throughout the universe any and
all of Licensee's right, title and interest, if any (including, without
limitation, the rights generally known as "moral rights") in and to all
Licensed Article(s), Licensee Materials and Advertising and Promotion, all
of which shall, upon theft creation, become and remain the exclusive
property of Universal and shall be prepared by an employee-for-hire of
Licensee (under Licensee's sole supervision, responsibility and monetary
obligation) or as a work-for-hire by a third party who assigns to Universal
in writing and in perpetuity throughout the universe all right, title and
interest in the same. For purposes of this Agreement, "Intellectual
Property Rights" means any patent, copyright, registered design, trademark,
service mark, trade name, trade dress or other industrial or intellectual
property rights subsisting in the License Territory in connection with the
Universal Property, Licensed Property, Universal Materials, Universal Name
and Logo, Licensee Materials and Licensed Article(s) and applications for
any of the foregoing.
Licensee agrees that it shall not at any time apply for registration
of any copyright, trademark or other designation or file any document with
any governmental authority or take any action which would affect the
ownership of the Copyright, Trademark and Universal Name and
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Logo. Licensee shall inform Universal of the first date of use and first
date of use in interstate commerce for the Licensed Article(s).
Licensee's obligations under this Agreement shall in no event be
diminished or deterred in the event that the Licensee shall be sued by a
third party for copyright or trademark infringement or any other matter
arising out of this Agreement and, further, Licensee agrees that it
shall not assert the pendency of such claim as an offset against or to
avoid any of its obligations under the terms of this Agreement.
(b) Copyright: The copyright notice specified by Universal must be
permanently affixed in a reasonably prominent position in the order and
manner specified by Universal on each Licensed Article and on all
Advertising and Promotion. The License granted hereunder is expressly
conditioned upon the full and complete compliance of Licensee with the
provisions of this Paragraph and upon Licensee's complete compliance with
the provisions of the United States Copyright Act and the registration and
notice provisions of the License Territory and of the Universal and Berne
Copyright Conventions.
(c) Trademark: When a Trademark is used on or in onnection with the
Licensed Article(s) and/or for Advertising and Promotion, the Licensee
shall: (i) abide by the trademark laws and what are considered to be sound
practices in regard to trademark notice provisions in the License
Territory; (ii) properly use the "(TM)" or "(R)" designation and other
trademark notice and information, as instructed by Universal; and (iii) not
use the Trademark as the generic name of the Licensed Article(s) and/or
Advertising and Promotion.
(d) Goodwill: Licensee recognizes the great value of the publicity and
goodwill associated with the Trademark, Copyright, Universal Name and Logo,
Universal Property, Licensed Property and Universal Materials, acknowledges
that they have acquired secondary meaning in the minds of the public and
agrees that the Trademark, Copyright, Universal Name and Logo, Universal
Property, Licensed Property, Universal Materials and all rights and
goodwill in them belong exclusively to the Universal Entities. Licensee
assigns and transfers to Universal all goodwill created by Licensee's use
of the Trademark, Copyright, Universal Name and Logo, Universal Property,
Licensed Property, Universal Materials, Licensee Materials and Licensed
Article(s). Licensee shall not, either during or after the License Term,
assert any claim to such goodwill or take any action that could be
detrimental to such goodwill.
20. RESERVED RIGHTS:
(a) Universal reserves unto itself and/or its designees all rights now
known or hereafter devised in and to the Universal Property, Licensed
Property, Universal Materials, Copyright, Trademark and Universal Name and
Logo throughout the universe in perpetuity, except the rights specifically
granted to Licensee herein. Nothing in this Agreement shall be construed to
prevent any Universal Entity from: (a) granting other licenses or rights to
exploit the Universal Property, Licensed Property, Copyright, Trademark,
Universal Materials, Universal Name and Logo or goods bearing any likeness,
characterization or representation thereof; or (b) using or exploiting the
same or discontinuing or changing the use thereof in any manner whatsoever
except as specified herein. Other than the rights granted in accordance
with the terms
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and conditions hereof, Licensee shall have no rights in or to the Universal
Property, Licensed Property, Universal Materials, Copyright, Trademark and
Universal Name and Logo or to exploit any goods utilizing the Universal
Property, Licensed Property, Universal Materials, Copyright, Trademark and
Universal Name and Logo or any likeness, characterization or representation
thereof or otherwise to deal in or with the Universal Property, Licensed
Property, Universal Materials, Copyright, Trademark and Universal Name and
Logo or any likeness, characterization or representation thereof.
(b) With respect to the Universal Property, Licensed Property, Universal
Materials, Copyright, Trademark and Universal Name and Logo, Universal
reserves unto itself and/or its designees the right: (i) to manufacture,
advertise, promote, display, sell and otherwise exploit articles similar
and/or identical to the Licensed Article(s) and products directly or
indirectly competitive with the Licensed Article(s) for use in connection
with premiums, promotional, direct-mail and/or in-theater sales and/or
giveaways; (ii) to grant additional merchandising licenses to third
parties; and (iii) to manufacture, advertise, promote, display, sell and
otherwise exploit such articles and products in or in connection with any
and all facilities owned, operated and/or controlled by any of the
Universal Entities.
(c) Except as otherwise specified in the applicable Schedule(s), Licensee
shall not directly sell or distribute the Licensed Article(s) door to door
or via direct mail order response, in or to any store selling to the public
in so-called "outlet malls" or similar markets, via broadcast or electronic
communications media (including, without limitation, broadcast
transmission, cable television, direct broadcast satellite, fiber-optic or
wire pathway, microwave transmission, telephone line or any other means now
known or hereafter devised) or via on-line services (which shall mean and
include the Internet, the World Wide Web or other similar or related means
now known or hereafter devised), all of which are deemed reserved
distribution channels for Universal.
21. PROTECTIONS: Licensee shall have a continuing obligation during the
License Term and for six (6) months thereafter to protect and safeguard the
Universal Property, Licensed Property, Universal Materials, Licensee
Materials, Copyright, Trademark, Universal Name and Logo and the Licensed
Article(s) within Licensee's possession, custody or control against theft,
misuse, infringement and unauthorized use thereof and any similar harm
thereto or to Universal's goodwill in connection therewith (collectively,
"Harm"). Without limiting the foregoing, Licensee shall employ such
actions, steps, procedures, standards and measures, as Universal shall from
time to time reasonably require.
Licensee shall immediately notify Universal in writing of any actual,
alleged or suspected Harm which may come to Licensee's attention. Should
legal action against any third party in connection with such Harm be deemed
necessary by any Universal Entity, then it shall have the right: (a) to
demand that Licensee undertake such legal proceedings at Universal's
expense; and/or (b) in its sole discretion and at its expense, to commence
such actions or to join any actions previously commenced by any other
person or entity. With respect to all claims and suits to prevent against
Harm in which Licensee or any Universal Entity is a party, each shall have
the right to employ counsel of its own choice and Universal or its designee
shall have the right to
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control the litigation and any settlement thereof. If Universal elects to
control such proceedings, it shall be entitled to receive and retain all
amounts awarded as damages, profits or otherwise in connection with such
suit. If, however, Licensee controls the litigation, all recoveries shall
be applied first to reimburse all costs and expenses incurred in such
action, including, without limitation, reasonable attorneys' fees, and the
balance shall be divided equally between the applicable Universal Entities
and Licensee.
22. INSURANCE: Licensee shall obtain and maintain in full force and
effect during the License Term and for a period of not less that one (1)
year thereafter, at its sole cost and expense, the following insurance: (a)
comprehensive general liability insurance (including, without limitation,
coverage for bodily injury, personal injury, property damage, casualty loss
and contractual and trademark liability) with limits of not less than One
Million Dollars (US $1,000,000) per occurrence, Three Million Dollars (US
$3,000,000) aggregate; (b) product liability insurance providing full
indemnification and defense against claims, liabilities, damages, demands
and causes of action, actual or alleged, arising out of any defects in or
use or misuse of the Licensed Article(s) with limits not less that One
Million Dollars (US $1,000,000) per occurrence, Three Million Dollars (US
$3,000,000) aggregate; and (c) workers' compensation and employers'
liability insurance, where applicable, in accordance with local law.
Within thirty (30) days following the execution of this Agreement by
Licensee, it shall provide certificates of insurance to Universal
certifying that the Universal Entities and any other entity specified by
Universal have been added as additional insureds to each of the insurance
policies set forth above and that before any proposed cancellation or
material modification in the coverage the insurance carrier will give the
certificate holder(s) not less than thirty (30) days' prior written notice
thereof. Upon receipt of any such notification, Universal shall have the
right to purchase replacement insurance from an insurance carrier of
Universal's choice and charge Licensee for all costs thereof or terminate
the Agreement unless Licensee provides Universal with proof of having
obtained replacement insurance within twenty-one (21) days from the date of
such notification from the insurance carrier. Licensee agrees to pay all
such costs immediately upon submission by Universal. Any claims covered by
Licensee's insurance policies shall not be offset or reduced in any amount
whatsoever by any other insurance which the Universal Entities may
independently maintain.
Licensee's insurance shall be carried by a licensed insurer qualified
in the State of California with a rating in accordance with the BEST Rating
Guide of A-6 (or its equivalent) or better. Each policy required hereunder
shall contain a waiver of subrogation. Licensee shall notify Universal of
all claims regarding the Universal Property, Licensed Property, Universal
Materials, Licensee Materials, Licensed Article(s), Copyright, Trademark or
Universal Name and Logo under any of the foregoing policies of insurance
promptly upon the filing thereof.
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23. REPRESENTATIONS AND WARRANTIES:
(a) Licensee: Licensee represents and warrants all of the
following:
(i) Licensee is a company duly organized, validly existing
and in good standing under the laws of the state and/or country of its principal
office, with full power and authority to execute and deliver this Agreement and
to perform its obligations and maintains its principal executive office at the
address set forth herein. The execution, delivery and performance of this
Agreement have been duly authorized by all necessary actions of Licensee and
this Agreement constitutes a valid and binding obligation of Licensee
enforceable against Licensee in accordance with its terms; and the consent of no
other entity or person is required for Licensee to fully perform all of its
obligations or services herein
(ii) Licensee shall comply with and act in accordance with:
(A) any and all applicable laws and other legal obligations of or in the License
Territory including, without limitation, local, state and federal directives,
rules, assessments, regulations, filing requirements, ordinances, statutes,
codes, judgments and civil or common law; and (B) conventions and treaties to
which the United States or any legal subdivision thereof is a party
(individually and collectively, "Law" or "Laws"). In addition, Licensee shall
comply with all manufacturing, distribution, retail and marketing policies and
strategies which are promulgated by the Universal Entities and provided to
Licensee in writing from time to time.
(iii) The making of this Agreement by Licensee does not
violate any agreement, right or obligation between Licensee and any other
person, entity, firm or corporation, and the permission and/or agreement of no
other person, entity, firm or corporation is required to execute this Agreement
or perform the obligations herein; and neither the execution and delivery of
this Agreement nor the performance of any or all of the terms, obligations and
services herein shall breach, be in conflict with or constitute a default under
any agreement or commitment to which Licensee is a party or violate any Law
applicable to Licensee.
(iv) The Licensed Article(s) and all Advertising and
Promotion shall be of high quality in design, material and workmanship and
suitable for their intended purpose; no injurious, deleterious or defamatory
material, writing or images shall be used in or on the Licensed Article(s) or
Advertising and Promotion; the Licensed Article(s) shall be merchantable and fit
for the intended use herein, shall in all respects be safe to consumers and
shall be manufactured and distributed as follows; (A) without the use of child
labor (the term "child" refers to a person younger than the age for completing
compulsory education, but in no case shall a child younger than fourteen (14)
years of age be so used); (B) in an environment providing workers and employees
with a safe and healthy workplace in compliance with all applicable Laws; (C)
employing only persons whose employment is voluntary and not using prison labor
or corporal punishment (or other forms of mental or physical coercion) as a form
of discipline for workers or employees; (D) complying with all applicable wage
and hour Laws, including minimum wage, overtime and maximum hours, and utilizing
such other fair employment practices as defined by applicable Laws; (E) not
discriminating in its hiring and employment practices on the grounds of race,
religion, national origin, political affiliation, sexual orientation,
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gender or any criteria protected by applicable Law; and (F) complying with all
applicable environmental and animal cruelty Laws.
(v) Licensee shall undertake a level of customer
service and provide warranties to consumers at least as favorable as is standard
in its industry.
(vi) No person or entity other than the Universal
Entities has or shall have any right, title or interest in or to the Licensed
Article(s) which is or may become prior, superior or equal to the right, title
or interest of Licensee therein or thereto.
(vii) Licensee shall not create, incur or permit any
encumbrance, lien, security interest, mortgage, pledge, assignment or other
hypothecation upon the License or permit the commencement of any proceeding or
foreclosure action on the License or to obtain any assignment thereof, whether
or not involving any judicial or nonjudicial foreclosure sales, and there is not
now and shall not be any agreement to which Licensee is a party or by which it
may be bound that requires the subordination in right of payment of any of its
obligations herein.
(viii) There is no pending or threatened litigation
which may affect the legality, validity or enforceability of this Agreement or
any of the transactions contemplated herein or Licensee's ability to fully
perform its obligations herein.
(ix) Licensee shall not misuse or take any action or
conduct its operations in such manner as to bring public ridicule, contempt,
censure or disparagement upon the Licensed Article(s), Licensed Property,
Universal Property, Universal Materials, Universal Name and Logo and/or the
Universal Entities.
(x) Licensee has paid or will pay any and all re-use
and/or license fees to the appropriate person or entity (which fees may include
a calculation and payments in satisfaction of pension and welfare obligations)
and has obtained or will obtain written and executed authorizations for such use
from the person or entity having the right to grant such permissions.
(xi) None of the representations or warranties made
by Licensee in this Agreement as of the date hereof and none of the statements
contained in any agreement or other document or report furnished by or on behalf
of Licensee to any of the Universal Entities in connection with this Agreement
contain any untrue statement of a material fact or omit any material fact
necessary to make such statements accurate in light of the circumstances under
which they were made.
(xii) Licensee shall not attack the title to or any
rights of the Universal Entities in and to the Universal Property, Licensed
Property, Universal Materials, Licensee Materials, Universal Name and Logo or
Licensed Article(s) or attack the validity of this Agreement.
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(xiii) Licensee shall exercise its best efforts to
manufacture sufficient quantities of the Licensed Article(s) to fill orders and
to meet the market demand in the License Territory, shall maintain the highest
standards of quality and quality control, and shall diligently and continuously
distribute and offer for sale the Licensed Article(s) and fulfill all orders for
the Licensed Article(s). Licensee shall not manufacture quantities of the
Licensed Article(s) during the License Term which it does not reasonably expect
to sell during the License Term and shall not manufacture any additional
quantities of Licensed Article(s) during any applicable Sell-off Period herein.
(b) Universal: Universal represents and warrants all of the following;
(i) It owns or controls the rights granted herein.
(ii) It is a company duly organized, validly existing
and in good standing under the laws of the state and country of its principal
office, with full power and authority to execute and deliver this Agreement and
to perform its obligations, and maintains its principal executive office at the
address set forth hereinabove.
(iii) The Universal Entities do not make any
warranties or representations as to the popularity, success, viewership or
continuing exploitation of or marketing and advertising budget with respect to
the Universal Property or Licensed Property and make no warranty or
representation as to the amount of gross sales, net sales or profits Licensee
shall derive under this Agreement from the sale or distribution of the Licensed
Article(s).
24 INDEMNIFICATION: Licensee shall defend, indemnify and forever hold
harmless the Universal Entities and each of their respective officers,
directors, shareholders, employees, agents, representatives, assigns and
successors-in-interest (collectively, "Related Parties") from and against any
and all claims, liabilities, penalties, losses, costs, damages, demands,
actions, causes of action, suits, proceedings, judgments and expenses including,
without limitation, amounts paid in settlement, attorneys' fees, court costs and
other legal expenses arising out of, connected with, and/or relating to; (a) the
Licensed Article(s), Advertising and Promotion and/or the Licensee Materials;
(b) any act or omission of Licensee, its parents, subsidiaries, Manufacturers,
contractors, designers, distributors and/or vendors and any representatives,
employees, affiliates and/or agents of any of the foregoing relating to such
entities' use or misuse of the Licensed Property, Universal Property, Universal
Materials and/or Universal Name and Logo; and (c) the breach or alleged breach
of any of Licensee's representations, warranties and agreements set forth
herein. The Universal Entities shall have the right to defend any such action or
proceeding with attorneys of their own selection. Any amount which Licensee may
be obligated to pay the Universal Entities and Related Parties pursuant to this
Paragraph shall be paid by Licensee upon demand, with interest at the prime rate
from the date incurred. The provisions of this Paragraph shall survive
termination of this Agreement.
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25. DEFAULT: The occurrence of one or more of the following shall
constitute a default under this Agreement: a breach or alleged breach by
Licensee of any of its representations and warranties herein; any failure by
Licensee to adhere to the approval process herein or Universal's directions with
respect thereto; the distribution, sale or shipment of any Licensed Article(s)
not Approved by Universal; any failure of Licensee to perform any of Licensee's
covenants or obligations or to meet any conditions under this Agreement
including, without limitation, any failure to pay any portion or any amounts
specified herein on or before the date when due or to make any payments required
of Licensee herein; any actual or attempted assignment, sublicense or other
transfer by Licensee of any or all of the rights granted to Licensee herein or
the delegation of any of the duties or obligations of Licensee herein without
Approval; any actual or attempted use, authorization or permission by Licensee
to use the Universal Property, Universal Name and Logo, Licensed Article(s)
Licensed Property, Advertising and Promotion, Universal Materials or Licensee
Materials in any manner, medium or territory not specifically granted in this
Agreement; any event of bankruptcy or other form of insolvency as specified
herein; any merger, consolidation or other reorganization of or involving any
Licensee Group Member or any sale of an equity interest in a Licensee Group
Member, as a result of which, in either instance, twenty-five percent (25%) or
more of the equity interest in such Licensee Group Member without Approval,
after the completion of such transaction, is owned, controlled or held by any
person or entity who prior to such transaction did not own, control or hold at
least twenty-five percent (25%) of the equity interest in such Licensee Group
Member (as used herein, the term "Licensee Group Member" shall refer to Licensee
and any person or entity owning, controlling or holding, directly or indirectly,
twenty- five percent (25%) or more of the equity interest in Licensee); any
alleged or actual breach or violation of or failure to perform any of Licensee's
obligations herein; and any alleged or actual breach or violation of or failure
to perform any of Licensee's obligations under, or the termination prior to
expiration of or any default under, any other agreement or document between any
of the Universal Entities and Licensee.
26. BANKRUPTCY:
(a) Bankruptcy: If Licensee becomes insolvent or makes an assignment
for the benefit of its creditors or any arrangement regarding insolvency, or if
Licensee discontinues its business, or if a receiver is appointed for Licensee
or its business, the License shall, without notice, terminate automatically upon
the occurrence of any such event. In the event that the License so terminates,
neither Licensee nor its receivers, representatives, trustees, agents,
administrators, successors and/or assigns shall have any right to manufacture,
distribute, sell, exploit or in any way deal with the Licensed Article(s),
Licensed Property, Advertising and Promotion, Licensee Materials or Universal
Name and Logo except with and pursuant to Universal's special Approval and
written instructions. If Licensee files a petition in bankruptcy or is
adjudicated a bankrupt, or if a petition in bankruptcy is filed against Licensee
and any order for relief under the United States Bankruptcy Code is entered,
Licensee must assume or reject this Agreement within sixty (60) days after such
order for relief is entered. If Licensee does not assume this Agreement within
such sixty (60) day period, Universal may at its sole option, terminate this
Agreement effective immediately upon notice to Licensee, without further
obligation or liability of Universal under this Agreement.
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(b) Financial Statements and Further Assurances: Licensee shall
furnish to the Universal Entities such financial statements and other financial
information as the Universal Entities may from time to time reasonably request.
All such financial statements shall show all material contingent liabilities and
shall accurately and fairly present the results of operations and the financial
condition of Licensee at the dates and for the period indicated. Should any
Universal Entity at any time determine or suspect that Licensee's financial
condition may cause Licensee to be unable to adequately exploit the Licensed
Article(s) or perform any of its other obligations under this Agreement, such
Universal Entity may request, and Licensee shall provide, any and all other
evidence of Licensee's financial viability and ability to perform. Failure to
provide any such evidence or to otherwise adequately persuade such Universal
Entity, in its sole judgment, of Licensee's ability to adequately perform its
obligations under this Agreement shall be a breach of this Agreement and shall
entitle Universal to terminate this Agreement effective immediately upon notice
to Licensee.
27. TERMINATION:
(a) Termination with Notice and Right to Cure: Universal
shall have the right, in its sole discretion, in addition to any and all other
rights and remedies and at no cost or expense to itself, to declare a material
breach of this Agreement and to terminate this Agreement effective immediately
upon notice to Licensee at any time upon the occurrence of any default set forth
in the Default Paragraph other than those specified in subparagraphs (b) or (c)
below, provided that Licensee shall have a period not to exceed thirty (30) days
from the date of notice by Universal of such default to cure the default to
Universal's sole satisfaction.
(b) Automatic Termination: This Agreement shall terminate immediately
and automatically, without notice, upon the occurrence of any of the following
events of default as specified in the Default Paragraph, each of which shall be
deemed a material breach of this Agreement: (i) assignment or sublicense; (ii)
unauthorized use; (iii) bankruptcy or (iv) the distribution, sale or shipment of
Licensed Article(s) not Approved by Universal.
(c) Termination with Notice: Universal shall have the right
in its sole discretion, in addition to any and all other rights and remedies and
at no cost or expense to itself, to declare a material breach of this Agreement
and to terminate this Agreement effective immediately upon notice to Licensee at
any time: (i) upon or after the occurrence of any of the following events of
default as specified in the Default Paragraph (A) change of ownership, and (B)
breach of other agreements; (ii) should any term or provision of this Agreement
pertaining to the payment of monies to Universal be declared by a court of
competent jurisdiction to be invalid, illegal or otherwise ineffective; or (iii)
upon a breach of any material term of this Agreement not reasonably capable of
cure within thirty (30) days.
(d) If this Agreement is terminated, all unpaid fees, Advances,
Guarantees, Royalties and/or any other payments due to Universal in accordance
with the provisions of this Agreement shall be immediately due and payable to
Universal. The failure of Universal to exercise a right to terminate this
Agreement shall not operate as a waiver by Universal of any
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right of termination at a later date, whether for the same or upon a new breach.
Upon termination of this Agreement, Licensee shall cease production and
distribution of the Licensed Article(s) and any Advertising and Promotion and
shall provide Universal with adequate and appropriate proof of same. There shall
be no Sell-off Period if termination results from a breach by Licensee.
(e) If this Agreement is terminated by Universal in accordance with
the terms herein, and if Licensee is a party to additional agreements between
Licensee and any Universal Entity, each such Universal Entity shall have the
right to immediately terminate any or all of such additional agreements whether
or not a right of termination would otherwise exist under the terms of those
additional agreements and irrespective of any cure periods provided for in those
agreements.
28. EFFECT OF TERMINATION OR EXPIRATION: Upon and after the expiration or
earlier termination of this Agreement, all of the following shall occur: (a)
Licensee shall permanently discontinue the manufacture, distribution, sale and
any other activities related to the Licensed Property, Licensed Article(s) and
Advertising and Promotion; (b) Licensee shall immediately terminate all
agreements with Manufacturers, distributors, salespeople and other persons or
entities relating to the Licensed Property, Licensed Article(s) and Advertising
and Promotion; (c) all rights granted to Licensee hereunder shall immediately
revert to Universal, which shall be free to license such rights to any other
person or entity; (d) except during the Sell-off Period, if one is permitted
hereunder, Licensee shall have no further right to exploit or in any way deal
with the Licensed Article(s), Universal Property, Licensed Property, Universal
Materials, Trademark, Copyright or Universal Name and Logo or make any further
reference to them, direct or indirect, or anything deemed by Universal to be
similar to any of them; (e) Licensee shall not be relieved or released from any
of its obligations existing prior to the date of such termination or expiration
including, without limitation, the payment of all fees, Advances, Guarantees,
Royalties and/or any other payments due hereunder; (f) Licensee shall comply
with the Inventory, Sell-off and Destruction Paragraph; and (g) Licensee's
representations, warranties and indemnity obligations hereunder shall survive
expiration or termination.
29. NO OFFSET: Licensee shall have no right to offset any --------- amounts
owing or allegedly owing to Licensee from any Universal Entity from amounts
otherwise payable by Licensee hereunder.
30. INVENTORY, SELL-OFF AND DESTRUCTION:
(a) Inventory: Licensee shall furnish to Universal, not less
than twenty-one (21) days before the expiration of the License Term and nor more
than five (5) days after receipt of a notice of termination, termination by
operation of Law or the automatic termination of this Agreement, a statement
certified by an authorized representative of Licensee showing the number and
description of the Licensed Article(s) and/or Advertising and Promotion
materials on-hand held for Licensee's inventory or in process of manufacture
(collectively, "Inventory"), specifying the quantity, type, class, category, sku
number and condition of all items of the Inventory ("Initial Inventory
Statement"). Universal shall have the right, upon reasonable notice and during
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normal business hours, to enter all premises where the Inventory is located, to
take a physical inventory to verify the Initial Inventory Statement and/or
condition or the Inventory set forth in any condition statement. Refusal by
Licensee to submit to such physical inventory shall cause Licensee to forfeit
any opportunity it may otherwise have to sell off such Inventory as provided
herein.
(b) Sell-off: In the event that this Agreement has expired pursuant to
its terms and the Guarantee has been received by Universal, then Licensee shall
have the right to sell the remaining Licensed Article(s) within the License
Territory for a period of sixty (60) days following expiration of the License
Term ("Sell-off Period") provided that: (i) the provisions of this Agreement,
including those concerning the calculation and payment of Royalties, shall
remain in force and effect during the Sell-off Period; (ii) notwithstanding any
grant of exclusivity, the License shall not be exclusive to Licensee during the
Sell-off Period; and (iii) within thirty (30) days from the expiration of the
Sell-off Period, Licensee shall furnish to Universal a statement showing the
quantity, type, class, category, sku number and condition of Licensed Article(s)
and/or Advertising and Promotion materials then on hand or held for Licensee's
inventory ("Final Inventory"). Licensee's right of sell-off shall itself
terminate automatically if Licensee (or its Manufacturer(s)) breaches any term,
condition, obligation, representation or warranty herein during the Sell-off
Period.
(c) Destruction and Surrender: At the expiration or earlier
termination of this Agreement, Licensee shall destroy the Universal Materials
and Licensee Materials unless otherwise directed by Universal. Licensee shall
deliver to Universal and/or its designee(s) any of the Universal Materials or
Licensee Materials which Universal has ordered not destroyed at Licensee's sole
cost. If this Agreement is terminated, Licensee shall deliver the Initial
Inventory Statement to Universal and/or its designee(s) and then destroy the
Inventory, unless otherwise directed by Universal. If any Inventory remains
after the Sell-off Period and after delivery of the Final Inventory Statement to
Universal, Licensee shall, as directed by Universal, either: (i) donate such
Inventory to K.I.D.S., a non-profit charitable organization benefiting children
that is supported by Universal (and Licensee shall be permitted to obtain any
tax benefit attributable to or allowed in connection with such donation); or
(ii) destroy such Inventory, unless otherwise directed by Universal. Licensee
shall sell to Universal all of the Inventory which Universal has ordered not
destroyed at or below cost, and Universal and/or its designee(s) shall reimburse
Licensee for its actual out-of-pocket costs of shipping (and insuring during
shipment) such Inventory to any point of destination specified by Universal
and/or its designee(s).
Following the destruction and/or delivery to Universal of the Universal
Materials and Licensee Materials and the destruction and/or sale to Universal of
the Inventory, Licensee shall submit, within thirty (30) days, a statement
certified by an authorized representative of Licensee attesting to and detailing
the destruction and/or delivery of such Universal Materials and Licensee
Materials and the destruction and/or sale of all such Inventory (the
"Disposition of Inventory Statement"). Universal and/or its designee(s) and
their respective representatives shall have the right, upon reasonable notice
and during normal business hours, to enter Licensee's and/or any third parties'
premises and facilities and have access to books and records and take physical
inventory to verify the Disposition of Inventory Statement. Universal and/or its
designee(s) and
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their respective representatives shall also have the right, upon reasonable
notice and during normal business hours, to enter the premises where the
Inventory, Universal Materials or Licensee Materials are located to take
possession of and remove the same.
31. REMEDIES; Except as otherwise expressly provided herein, no remedy
granted to either party herein shall be exclusive of any other remedy, and each
remedy shall be cumulative with every other remedy herein or now or hereafter
existing at law, in equity, by statute or otherwise. In the case of any breach
by Licensee, in addition to and/or instead of Universal's right of termination
as provided herein, Universal shall have the right to declare the Guarantee
immediately due and payable and to pursue all appropriate remedies at law or in
equity for such breach. Licensee acknowledges that any breach by Licensee shall
cause the Universal Entities irreparable harm for which there is no adequate
remedy at law and, in the event of such breach, the Universal Entities shall be
entitled to injunctive or other equitable relief. Licensee further agrees and
confirms that forbearance by the Universal Entities to enforce any right or
remedy following any breach shall not be a waiver of any of their respective
rights to elect or enforce the same right or remedy for later breaches. Licensee
recognizes and confirms that, in the event of a breach by Universal, the damage
to Licensee, if any, shall not be irreparable or sufficient to entitle Licensee
to injunctive or other equitable relief. Consequently, Licensee's rights and
remedies shall be limited to the right, if any, to seek damages at law, and
Licensee shall not have any right to terminate or rescind this Agreement or any
part of this Agreement, nor shall Licensee enjoin, restrain or interfere with
Universal's exploitation of its rights in the Universal Property, Licensed
Property, Universal Materials, Copyright, Trademark, Universal Name and Logo or
any other right of Universal whatsoever. Licensee agrees to limit its claims for
relief in the event of a breach by Universal of this Agreement to claims against
Universal and waives any right it may otherwise have to bring claims against any
other Universal Entity.
32. EXPENSES: The Universal Entities shall be entitled to recover from
Licensee all of their legal and auditing costs, fees and expenses incurred in
the enforcement of any provisions of this Agreement; provided, however, that
auditing fees related to the collection of the Royalty shall only be recoverable
to the extent provided in the Royalty Statements and Payments Paragraph.
33. NO ASSIGNMENT OR SUBLICENSING: The rights granted hereunder are and
shall be personal to Licensee, and shall not be assigned, transferred,
sublicensed, mortgaged or otherwise encumbered by Licensee or by operation of
Law without Approval. Any purported sublicense or assignment by Licensee of any
rights granted herein shall be void and shall constitute a breach of this
Agreement. Universal may assign its rights and obligations under this Agreement
to any person or entity.
34. CONFIDENTIALITY AND NONDISCLOSURE: Licensee acknowledges that, in the
course of the performance of this Agreement, Licensee may obtain confidential
information or materials from the Universal Entities including, without
limitation, the following items related to the Universal Property, Universal
Materials and/or Licensed Property: underlying literary material, creative
elements, style guides, research material and data, specifications, processes,
technological developments or other proprietary materials. Licensee shall, at
all times both
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during the License Term and thereafter, keep all of such confidential
information in confidence and trust. Licensee shall not use such confidential
information other than as expressly permitted herein or by Approval. Licensee
agrees to return to Universal any written, printed or other materials embodying
such confidential information and/or materials, including all copies or excerpts
thereof, given to or acquired by Licensee in connection with this Agreement.
Licensee shall not directly or indirectly disclose to the public or to any
non-essential person and/or entity any of the terms of this Agreement without
Approval, unless otherwise required to do so by any law established by any
government with applicable jurisdiction. Licensee acknowledges that any breach
of the foregoing will cause irreparable injury to the Universal Entities not
readily measurable in monetary amounts; consequently, the Universal Entities
shall, without waiving any other rights or remedies, be entitled to injunctive
and/or declaratory relief in connection with any breach or threatened breach
hereof. Licensee further agrees to execute Universal's standard Confidentiality
Agreement upon Universal's request.
35. NOTICES: Any notice or other communication required or permitted to be
given shall be in writing addressed to the respective party at the address set
forth in the introductory Paragraph hereof and may be personally served,
telecopied or sent by registered or certified mail, postage prepaid, return
receipt requested and shall be deemed given: (a) if served in person, when
served; (b) if telecopied, on the date of transmission if confirmed before 3:00
p.m. (Los Angeles time) on a business day and otherwise on the following
business day, provided that a hard copy of such notice is also sent pursuant to
(c) below; or (c) if by certified or registered mail, on the third (3rd)
business day after deposit in the mail, postage prepaid. Notices to Universal
shall be addressed to the Senior Vice President, Legal and Business Affairs,
telecopy number (818) 866- 0311. Notices to Licensee shall be addressed to Ron
Thompson, telecopy number (905) 948-8377.
36. GOVERNING LAW, VENUE, JURISDICTION AND JURY WAIVER: This Agreement, and
its validity, construction and effect, shall be governed by and enforced in
accordance with the internal laws of the State of California (i.e., without
reference to the conflicts of laws provisions thereof) and the federal laws of
the United States. Licensee consents to the exclusive jurisdiction of any state
or federal court empowered to enforce this Agreement located in Los Angeles
County, California, and waives any objection thereto on the basis of personal
jurisdiction or venue. Universal and Licensee waive their respective rights to
trial by jury of any cause of action, claim, counterclaim or cross-complaint in
any action, proceeding and/or hearing brought by either Universal against
Licensee or Licensee against Universal on any matter whatsoever arising out of,
or in any way connected with, this Agreement, the relationship between Universal
and Licensee, any claim of injury or damage or the enforcement of any remedy
under any law, statute or regulation, emergency or otherwise, now or hereafter
in effect. The parties understand that jury trial waivers are fully enforceable
under California law.
37. WAIVER, MODIFICATION AND AMENDMENT: No modification, amendment or
waiver of any of the provisions contained in this Agreement, or any future
representation, promise or condition in connection with the subject matter of
this Agreement, shall be binding upon any party to this Agreement unless made in
writing and signed by a duly authorized representative or agent of such party.
The failure by either party to enforce, or the
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delay by either party in enforcing, any of said party's rights under this
Agreement shall not be construed as a continuing waiver of such rights, and said
party may, within such time as is provided by the laws established by any
government with applicable jurisdiction, commence appropriate suits, actions or
proceedings to enforce any or all of such rights. A waiver by either party of a
default in one or more instances shall not be construed as a waiver in other
instances.
38. NO JOINT VENTURE: This Agreement does not constitute and shall not be
construed to constitute an agency, a partnership or a joint venture between
Universal and Licensee. Licensee shall have no right to obligate or to bind the
Universal Entities in any manner whatsoever, and nothing contained in this
Agreement shall give or is intended to give any rights of any nature to any
third party.
39. ADDITIONAL DOCUMENTS: Upon Universal's request, Licensee shall promptly
execute and deliver to any Universal Entity such further documents and
instruments, in form and substance satisfactory to such Universal Entity, to
confirm and effectuate the terms and conditions of this Agreement, and, in the
event that Licensee fails or is unable to execute any such documents or
instruments, Licensee appoints Universal its attorney-in-fact with the full
right and authority to execute and deliver the same, which such appointment
shall be deemed a power coupled with an interest and shall be irrevocable under
any and all circumstances.
40. SEVERABILITY: If any term or provision of this Agreement, as applied to
either party or any circumstance, for any reason shall be declared by a court of
competent jurisdiction to be invalid, illegal, unenforceable, inoperative or
otherwise ineffective, that provision shall be limited or eliminated to the
minimum extent necessary so that this Agreement shall otherwise remain in full
force and effect and enforceable, provided, however, that if any term or
provision of this Agreement pertaining to the payment of monies to Universal
shall be declared invalid, illegal, unenforceable, inoperative or otherwise
ineffective, Universal shall have the right to terminate this Agreement as
provided herein.
41. COUNTERPARTS: This Agreement may be executed in one or more
counterparts, each of which shall be an original, but all of which together
shall constitute one agreement binding on all of the parties hereto
notwithstanding that all of the parties hereto are not signatories to the same
counterpart. Each of the parties agrees that a photographic or facsimile copy of
the signature evidencing a party's execution of this Agreement shall be
effective as an original signature and may be used in lieu of the original for
any purpose.
42. PARAGRAPH HEADINGS AND DEFINITIONS; Paragraph and subparagraph headings
are for case of reference only and shall not have any effect upon the
construction of this Agreement or any of the terms or provisions hereof. All
capitalized terms used herein shall be defined as set forth elsewhere in this
Agreement.
43. ENTIRE AGREEMENT: This Agreement, together with Schedule(s) "A" through
"Q" and all such additional Schedule(s) as are added hereto following the date
hereof and thereby made a part hereof, constitutes a single, integrated written
contract expressing the entire agreement of the parties concerning the subject
matter hereof. No covenants, agreements,
- 21 -
<PAGE>
representations or warranties of any kind whatsoever have been made by any party
to this Agreement except as specifically set forth in this Agreement. All prior
agreements, discussions and negotiations have been and are merged and integrated
into, and are entirely superseded by, this Agreement.
IN WITNESS WHEREOF, each party has executed this Agreement on the date
indicated below.
Power Photo Enterprises
("Licensee")
By: /s/ Ron Thompson
--------------------------
Its: President & COO
-------------------------
Date signed: Sept 23rd 1999
-------------------
Universal Studios Licensing, Inc.
("Universal")
By: /s/ C. CLeveland
--------------------------
Its: President
--------------------------
Date signed: 9/24/99
-------------------
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<PAGE>
SCHEDULE "A"
-----------
to the Master Merchandising License Agreement dated as of September 15, 1999
between Universal and Power Photo Enterprises
F&L #105123
Universal Property: The animated theatrical motion picture entitled The Land
Before Time" and related characters.
Licensed Article(s): Digitally-manipulated photos incorporating the Universal
Property, in four formats (16-up peel & stick, 4-up peel & stick, 1-up
non-stick portrait and 1-up non-stick postcard), to be sold in Licensee's
own kiosks.
Advance: One Thousand Two Hundred Fifty Dollars (US $1,250.00), payable
simultaneously upon the execution of this Schedule.
Guarantee: Five Thousand Dollars (US $5,000.00), payable as follows: (i) One
Thousand Two Hundred Fifty Dollars (US $1,250.00), payable simultaneously
upon the execution of this Schedule (i.e., the Advance); (ii) minimum sums
equal to Two Thousand Five Hundred Dollars (US $2,500.00), inclusive of the
Advance and any Royalties already paid, due and payable on or before
January 31, 2000; and (iii) minimum sums equal to Five Thousand Dollars (US
$5,000.00), inclusive of the Advance and any Royalties already paid, due
and payable on or before December 31, 2001.
Royalty: Five Percent (5%) of retail price.
License Term: From the date of execution of this Schedule until December 31,
2002.
License Territory: United States and Canada
Marketing/Shipping Date: No earlier than the execution of this Schedule and no
later than October 1, 1999.
Channels of Distribution: Licensee shall be permitted to sell the Licensed
Article(s) solely through its own photo kiosks.
Additional Insureds: Amblin Entertainment, Inc.
- S1 -
<PAGE>
LegalNotice: Unless otherwise directed by Universal Licensee shall use the
following legal notice in connection with the Licensed Article(s) and the
Advertising and Promotion thereof:
The Land Before Time and related characters are trademarks and copyrights
of Universal Studios and U-Drive Productions, Inc. Licensed by Universal
Studios Licensing, Inc. All rights reserved.
AGREED AND ACCEPTED:
Universal Studios Licensing, Inc. Power Photo Enterprises
("Universal") ("Licensee")
By: /s/ C Cleveland By: /s/ Ron Thompson
-------------------------------- -----------------------------
Its: President Its: President & COO
-------------------------------- -----------------------------
Dated: 9/24/99 Dated: Sept. 23rd 1999
-------------------------------- -----------------------------
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<PAGE>
SCHEDULE "B"
-----------
to the Master Merchandising License Agreement dated as of September 15, 1999
between Universal and Power Photo Enterprises
F&L #105124
Universal Property: The classic animated Characters known as "Woody Woodpecker
and Friends."
Licensed Article(s): Digitally-manipulated photos incorporating the Universal
Property, in four formats (16-up peel & stick, 4-up peel & stick, 1-up
non-stick portrait and 1-up non-stick postcard), to be sold in Licensee's
own kiosks.
Advance: Five Thousand Dollars (US $5,000.00), payable simultaneously upon the
execution of this Schedule.
Guarantee: Twenty Thousand Dollars (US $20,000.00), payable as follows: (i) Five
Thousand Dollars (US $5,000.00), payable simultaneously upon the execution
of this Schedule (i.e., the Advance); (ii) minimum sums equal to Ten
Thousand Dollars (US $10,000.00), inclusive of the Advance and any
Royalties already paid, due and payable on or before January 31, 2000; and
(iii) minimum sums equal to Twenty Thousand Dollars (US $20,000.00),
inclusive of the Advance and any Royalties already paid, due and payable on
or before December 31, 2001.
Royalty: Five Percent (5%) of retail price.
License Term: From the date of execution of this Schedule until December 31,
2002.
License Territory: United States and Canada
Marketing/Shipping Date: No earlier than the execution of this Schedule and no
later than October 1, 1999.
Channels of Distribution: Licensee shall be permitted to sell the Licensed
Article(s) solely through its own photo kiosks.
Additional Insureds: N/A
- S3 -
<PAGE>
Legal Notice: Unless otherwise directed by Universal Licensee shall use the
following legal notice in connection with the Licensed Article(s) and the
Advertising and Promotion thereof:
Woody Woodpecker and Friends and related characters are trademarks and
copyrights of Walter Lantz Productions, Inc. Licensed by Universal Studios
Licensing, Inc. All rights reserved.
AGREED AND ACCEPTED:
Universal Studios Licensing, Inc. Power Photo Enterprises
("Universal") ("Licensee")
By: /s/ C Cleveland By: /s/ Ron Thompson
-------------------------------- -----------------------------
Its: President Its: President & COO
-------------------------------- -----------------------------
Dated: 9/24/99 Dated: Sept. 23rd 1999
-------------------------------- -----------------------------
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<PAGE>
"C"
SCHEDULE "C"
-----------
to the Master Merchandising License Agreement dated as of September 15, 1999
between Universal and Power Photo Enterprises
F&L #105125
Universal Property: The live-action theatrical motion picture entitled "Blues
Brothers 2000."
Licensee acknowledges that no image(s) of any character(s) appearing in the
Universal Property which incorporate(s) the likeness(es) of any actor(s)
portraying such character(s) shall be utilized without Universal's consent.
Licensed Article(s): Digitally-manipulated photos incorporating the Universal
Property, in four formats (16-up peel & stick, 4-up peel & stick, 1-up
non-stick portrait and 1-up non-stick postcard), to be sold in Licensee's
own kiosks.
Advance: One Thousand Two Hundred Fifty Dollars (US $1,250.00), payable
simultaneously upon the execution of this Schedule.
Guarantee: Five Thousand Dollars (US $5,000.00), payable as follows: (i) One
Thousand Two Hundred Fifty Dollars (US $1,250.00), payable simultaneously
upon the execution of this Schedule (i.e., the Advance); (ii) minimum sums
equal to Two Thousand Five Hundred Dollars (US $2,500.00), inclusive of the
Advance and any Royalties already paid, due and payable on or before
January 31, 2000; and (iii) minimum sums equal to Five Thousand Dollars (US
$5,000.00), inclusive of the Advance and any Royalties already paid, due
and payable on or before December 31, 2001.
Royalty: Five Percent (5%) of retail price.
License Term: From the date of execution of this Schedule until December 31,
2002.
License Territory: United States and Canada
Marketing/Shipping Date: No earlier than the execution of this Schedule and no
later than October 1, 1999.
Channels of Distribution: Licensee shall be permitted to sell the Licensed
Article(s) solely through its own photo kiosks.
Additional Insureds: N/A
- S5 -
<PAGE>
LegalNotice: Unless otherwise directed by Universal Licensee shall use the
following legal notice in connection with the Licensed Article(s) and the
Advertising and Promotion thereof:
Blues Brothers 2000 is a trademark and copyright of Universal Studios.
Licensed by Universal Studios Licensing, Inc. All rights reserved.
AGREED AND ACCEPTED:
Universal Studios Licensing, Inc. Power Photo Enterprises
("Universal") ("Licensee")
By: /s/ C Cleveland By: /s/ Ron Thompson
-------------------------------- -----------------------------
Its: President Its: President & COO
-------------------------------- -----------------------------
Dated: 9/24/99 Dated: Sept. 23rd 1999
-------------------------------- -----------------------------
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<PAGE>
SCHEDULE "D"
-----------
to the Master Merchandising License Agreement dated as of September 15, 1999
between Universal and Power Photo Enterprises
F&L #105126
Universal Property: The live-action television series entitled "Hercules: The
Legendary Journeys."
Licensee acknowledges that no image(s) of any character(s) appearing in the
Universal Property which incorporate(s) the likeness(es) of any actor(s)
portraying such character(s) shall be utilized without Universal's consent.
Licensed Article(s): Digitally-manipulated photos incorporating the Universal
Property, in four formats (16-up peel & stick, 4-up peel & stick, 1-up
non-stick portrait and 1-up non-stick postcard), to be sold in Licensee's
own kiosks.
Advance: One Thousand Dollars (US $1,000.00), payable simultaneously upon the
execution of this Schedule.
Guarantee: Four Thousand Dollars (US $4,000.00), payable as follows: (i) One
Thousand Dollars (US $1,000.00), payable simultaneously upon the execution
of this Schedule (i.e., the Advance); (ii) minimum sums equal to Two
Thousand Dollars (US $2,000.00), inclusive of the Advance and any Royalties
already paid, due and payable on or before January 31, 2000; and (iii)
minimum sums equal to Four Thousand Dollars (US $4,000.00), inclusive of
the Advance and any Royalties already paid, due and payable on or before
December 31, 2001.
Royalty: Five Percent (5%) of retail price.
License Term: From the date of execution of this Schedule until December 31,
2002.
License Territory: United States and Canada
Marketing/Shipping Date: No earlier than the execution of this Schedule and no
later than October 1, 1999.
Channels of Distribution: Licensee shall be permitted to sell the Licensed
Article(s) solely through its own photo kiosks.
Additional Insureds: Studios USA Television Distribution LLC.
- S7 -
<PAGE>
LegalNotice: Unless otherwise directed by Universal Licensee shall use the
following legal notice in connection with the Licensed Article(s) and the
Advertising and Promotion thereof:
Hercules: The Legendary Journeys is a trademark and copyright of Studios
USA Television Distribution LLC. Licensed by Universal Studios Licensing,
Inc. All rights reserved.
AGREED AND ACCEPTED:
Universal Studios Licensing, Inc. Power Photo Enterprises
("Universal") ("Licensee")
By: /s/ C Cleveland By: /s/ Ron Thompson
-------------------------------- -----------------------------
Its: President Its: President & COO
-------------------------------- -----------------------------
Dated: 9/24/99 Dated: Sept. 23rd 1999
-------------------------------- -----------------------------
- S8 -
<PAGE>
SCHEDULE "E"
-----------
to the Master Merchandising License Agreement dated as of September 15, 1999
between Universal and Power Photo Enterprises
F&L #105127
Universal Property: The live-action television series entitled "Xena: Warrior
Princess."
Licensee acknowledges that no image(s) of any character(s) appearing in the
Universal Property which incorporate(s) the likeness(es) of any actor(s)
portraying such character(s) shall be utilized without Universal's consent.
Licensed Article(s): Digitally-manipulated photos incorporating the Universal
Property, in four formats (16-up peel & stick, 4-up peel & stick, 1-up
non-stick portrait and 1-up non-stick postcard), to be sold in Licensee's
own kiosks.
Advance: One Thousand Five Hundred Dollars (US $1,500.00), payable
simultaneously upon the execution of this Schedule.
Guarantee: Six Thousand Dollars (US $6,000.00), payable as follows: (i) One
Thousand Five Hundred Dollars (US $1,500.00), payable simultaneously upon
the execution of this Schedule (i.e., the Advance); (ii) minimum sums equal
to Three Thousand Dollars (US $3,000.00), inclusive of the Advance and any
Royalties already paid, due and payable on or before January 31, 2000; and
(iii) minimum sums equal to Six Thousand Dollars (US $6,000.00), inclusive
of the Advance and any Royalties already paid, due and payable on or before
December 31, 2001.
Royalty: Five Percent (5%) of retail price.
License Term: From the date of execution of this Schedule until December 31,
2002.
License Territory: United States and Canada
Marketing/Shipping Date: No earlier than the execution of this Schedule and no
later than October 1, 1999.
Channels of Distribution: Licensee shall be permitted to sell the Licensed
Article(s) solely through its own photo kiosks.
Additional Insureds: Studios USA Television Distribution LLC.
- S9 -
<PAGE>
LegalNotice: Unless otherwise directed by Universal Licensee shall use the
following legal notice in connection with the Licensed Article(s) and the
Advertising and Promotion thereof:
Xena: Warrior Princess is a trademark and copyright of Studios USA
Television Distribution LLC. Licensed by Universal Studios Licensing, Inc.
All rights reserved.
AGREED AND ACCEPTED:
Universal Studios Licensing, Inc. Power Photo Enterprises
("Universal") ("Licensee")
By: /s/ C Cleveland By: /s/ Ron Thompson
-------------------------------- -----------------------------
Its: President Its: President & COO
-------------------------------- -----------------------------
Dated: 9/24/99 Dated: Sept. 23rd 1999
-------------------------------- -----------------------------
- S10 -
<PAGE>
SCHEDULE "F"
-----------
to the Master Merchandising License Agreement dated as of September 15, 1999
between Universal and Power Photo Enterprises
F&L #105128
Universal Property: The characters and settings embodied in the video game
property entitled "Crash Bandicoot."
Licensed Article(s): Digitally-manipulated photos incorporating the Universal
Property, in four formats (16-up peel & stick, 4-up peel & stick, 1-up
non-stick portrait and 1-up non-stick postcard), to be sold in Licensee's
own kiosks.
Advance: Two Thousand Five Hundred Dollars (US $2,500.00), payable
simultaneously upon the execution of this Schedule.
Guarantee: Ten Thousand Dollars (US $10,000.00), payable as follows: (i) Two
Thousand Five Hundred Dollars (US $2,500.00), payable simultaneously upon
the execution of this Schedule (i.e., the Advance); (ii) minimum sums equal
to Five Thousand Dollars (US $5,000.00), inclusive of the Advance and any
Royalties already paid, due and payable on or before January 31, 2000; and
(iii) minimum sums equal to Ten Thousand Dollars (US $10,000.00), inclusive
of the Advance and any Royalties already paid, due and payable on or before
December 31, 2001.
Royalty: Five Percent (5%) of retail price.
License Term: From the date of execution of this Schedule until December 31,
2002.
License Territory: United States and Canada
Marketing/Shipping Date: No earlier than the execution of this Schedule and no
later than October 1, 1999.
Channels of Distribution: Licensee shall be permitted to sell the Licensed
Article(s) solely through its own photo kiosks.
Additional Insureds: N/A
- S11 -
<PAGE>
LegalNotice: Unless otherwise directed by Universal Licensee shall use the
following legal notice in connection with the Licensed Article(s) and the
Advertising and Promotion thereof:
Crash Bandicoot and related characters TM & (C) Universal Interactive
Studios, Inc. Licensed by Universal Studios Licensing, Inc. All rights
reserved.
AGREED AND ACCEPTED:
Universal Studios Licensing, Inc. Power Photo Enterprises
("Universal") ("Licensee")
By: /s/ C Cleveland By: /s/ Ron Thompson
-------------------------------- -----------------------------
Its: President Its: President & COO
-------------------------------- -----------------------------
Dated: 9/24/99 Dated: Sept. 23rd 1999
-------------------------------- -----------------------------
- S12 -
<PAGE>
SCHEDULE "G"
-----------
to the Master Merchandising License Agreement dated as of September 15, 1999
between Universal and Power Photo Enterprises
F&L #105129
Universal Property: The classic set of characters known as the Universal Studios
Monsters, consisting of Frankenstein, the Bride of Frankenstein, Dracula,
the Mummy, the Wolf Man, the Creature from the Black Lagoon and the
Invisible Man.
Licensee shall use only the character images and shall not utilize any images of
any character(s) which incorporate(s) the likeness(es) of any actor(s) that
portrayed such character(s) unless; (i) such use is approved by Universal;
and (ii) Licensee provides Universal with documentation of consents from
the applicable actors estates (or the designated representative(s)
therefor) with respect to such usage.
Licensed Article(s): Digitally-manipulated photos incorporating the Universal
Property, in four formats (16-up peel & stick, 4-up peel & stick, 1-up
non-stick portrait and 1- up non-stick postcard), to be sold in Licensee's
own kiosks.
Advance: Seven Thousand Five Hundred Dollars (US $7,500.00), payable
simultaneously upon the execution of this Schedule.
Guarantee: Thirty Thousand Dollars (US $30,000.00), payabl as follows; (i) Seven
Thousand Five Hundred Dollars (US $7,500.00), payable simultaneously upon
the execution of this Schedule (i.e., the Advance); (ii) minimum sums equal
to Fifteen Thousand Dollars (US $15,000.00), inclusive of the Advance and
any Royalties already paid, due and payable on or before January 31, 2000;
and (iii) minimum sums equal to Thirty Thousand Dollars (US $30,000.00),
inclusive of the Advance and any Royalties already paid, due and payable on
or before December 31, 2001.
Royalty: Five Percent (5%) of retail price.
License Term: From the date of execution of this Schedule until December 31,
2002.
License Territory: United States and Canada.
Marketing/Shipping Date: No earlier than the execution of this Schedule and no
later than October 1, 1999.
- S13 -
<PAGE>
Channels of Distribution: Licensee shall be permitted to sell the Licensed
Articles(s) solely through its own photo kiosks.
Additional Insureds: N/A
LegalNotice: Unless otherwise directed by Universal License shall use the
following legal notice in connection with the Licensed Article(s) and the
Advertising and Promotion thereof.
The Universal Studios Monster and trademarks and copyrights of Universal
Studios. Licensed by Universal Studios Licensing, Inc. All rights reserved.
AGREED AND ACCEPTED:
Universal Studios Licensing, Inc. Power Photo Enterprises
("Universal") ("Licensee")
By: By:
-------------------------------- -----------------------------
Its: Its:
-------------------------------- -----------------------------
Dated: Dated:
-------------------------------- -----------------------------
- S14 -
<PAGE>
SCHEDULE "H"
-----------
To the Master Merchandising License Agreement dated as of September 15, 1999
between Universal and Power Photo Enterprises
F&L #105130
Universal Property: The live-action theatrical motion picture entitled
"Dudley-Do-Right."
Licensee acknowledges that the rights granted hereunder are limited solely to
the Universal Property as defined above and do not include the right to
utilize the classic animated characters on which the Universal Property is
based, any characters or other element(s) from the theatrical motion
picture entitled "The Adventures of Rocky & Bullwinkle," or any other
motion picture(s) based on, related to or derived from the Universal
Property, and/or the classic characters on which it is based, other than as
set forth above. Licensee further acknowledges that no image(s) of any
character(s) appearing in the Universal Property which incorporate(s) the
likeness(es) of any actor(s) portraying such character(s) shall be utilized
without Universal's consent.
Licensed Article(s): Digitally-manipulated photos incorporating the Universal
Property, in four formats (16-up peel & stick, 4-up peel & stick, 1-up
non-stick portrait and 1-up non-stick postcard), to be sold in Licensee's
own kiosks.
Advance: Six Hundred Twenty-Five Dollars (US $625.00), payable simultaneously
upon the execution of this Schedule.
Guarantee: Two Thousand Five Hundred Dollars (US $2,500.00), payable as follows:
(i) Six Hundred Twenty-Five Dollars (US $625.00), payable simultaneously
upon the execution of this Schedule (i.e., the Advance); (ii) minimum sums
equal to One Thousand Two Hundred Fifty Dollars (US $1,250.00), inclusive
of the Advance and any Royalties already paid, due and payable on or before
January 31, 2000; and (iii) minimum sums equal to Two Thousand Five Hundred
Dollars (US $2,500.00), inclusive of the Advance and any Royalties already
paid, due and payable on or before December 31, 2001.
Royalty: Five Percent (5%) of retail price.
License Term: From the date of execution of this Schedule until December 31,
2002.
- S 15 -
<PAGE>
License Territory: United States and Canada.
Marketing/Shipping Date: No earlier than the execution of this Schedule and no
later than October 1, 1999.
Channels of Distribution: Licensee shall be permitted t sell the Licensed
Article(s) solely through its own photo kiosks.
Additional Insureds: Jay Ward Productions, Inc.
LegalNotice: Unless otherwise directed by Universal Licensee shall use the
following legal notice in connection with the Licensed Article(s) and the
Advertising and Promotion thereof:
"DUDLEY DO-RIGHT"(C)Universal Studios. Dudley-Do Right and related
characters are trademarks and copyrights of Jay Ward Productions, Inc.
Licensed by Universal Studios Licensing, Inc. All rights reserved.
AGREED AND ACCEPTED:
Universal Studios Licensing, Inc. Power Photo Enterprises
("Universal") ("Licensee")
By: /s/ C Cleveland By: /s/ Ron Thompson
-------------------------------- -----------------------------
Its: President Its: President & COO
-------------------------------- -----------------------------
Dated: 9/24/99 Dated: Sept. 23rd 1999
-------------------------------- -----------------------------
- S16 -
<PAGE>
SCHEDULE "I"
-----------
To the Master Merchandising License Agreement dated as of September 15, 1999
between Universal and Power Photo Enterprises
F&L #105131
Universal Property: The live-action theatrical motion picture presently entitled
"The Adventures of Rocky & Bullwinkle."
Licensee acknowledges that the rights granted hereunder are limited solely
to the Universal Property as defined above and do not include the right to
utilize the classic animated characters on which the Universal Property is
based, any characters or other element(s) from the theatrical motion
picture entitled "Dudley Do-Right," or any other motion picture(s) based
on, related to or derived from the Universal Property, and/or the classic
characters on which it is based, other than as set forth above. Licensee
further acknowledges that no image(s) of any character(s) appearing in the
Universal Property which incorporate(s) the likeness(es) of any actor(s)
portraying such character(s) shall be utilized without Universal's consent.
Licensed Article(s): Digitally-manipulated photos incorporating the Universal
Property, in four formats (16-up peel & stick, 4-up peel & stick, 1-up
non-stick portrait and 1-up non-stick postcard), to be sold in Licensee's
own kiosks.
Advance: One Thousand Dollars (US $1,000.00), payable simultaneously upon the
execution of this Schedule.
Guarantee: Four Thousand Dollars (US $4,000.00), payable a follows; (i) One
Thousand Dollars (US $1,000.00), payable simultaneously upon the execution
of this Schedule (i.e., the Advance); (ii) minimum sums equal to Two
Thousand Dollars (US $2,000.00), inclusive of the Advance and any Royalties
already paid, due and payable on or before January 31, 2000; and (iii)
minimum sums equal to Four Thousand Dollars (US $4,000.00), inclusive of
the Advance and any Royalties already paid, due and payable on or before
December 31, 2001.
Royalty: Five Percent (5%) of retail price.
License Term: From the date of execution of this Schedule until December 31,
2002.
License Territory: United States and Canada.
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<PAGE>
Marketing /Shipping Date: No earlier than the execution of this Schedule and no
later than October 1, 1999.
Channels of Distribution: Licensee shall be permitted to sell the Licensed
Article(s) solely through its own photo kiosks.
Additional Insureds: Jay Ward Productions, Inc.
LegalNotice: Unless otherwise directed by Universal Licensee shall use the
following legal notice in connection with the Licensed Article(s) and the
Advertising and Promotion thereof:
"The Adventures of Rocky & Bullwinkle" (C) Universal Studios. The
Adventures of Rocky and Bullwinkle and Friends and related characters are
trademarks and copyrights of Jay Ward Productions, Inc. Licensed by
Universal Studios Licensing, Inc. All rights reserved.
AGREED AND ACCEPTED:
Universal Studios Licensing, Inc. Power Photo Enterprises
("Universal") ("Licensee")
By: /s/ C Cleveland By: /s/ Ron Thompson
-------------------------------- -----------------------------
Its: President Its: President & COO
-------------------------------- -----------------------------
Dated: 9/24/99 Dated: Sept. 23rd 1999
-------------------------------- -----------------------------
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<PAGE>
SCHEDULE "J"
-----------
To the Master Merchandising License Agreement dated as of September 15, 1999
between Universal and Power Photo Enterprises
F&L #105132
Universal Property: The classic animated Characters known as "Rocky and
Bullwinkle and Friends."
Licensee acknowledges that the rights granted hereunder are limited solely to
the Universal Property as defined above and do not include the right to
utilize characters, images or any other elements from the theatrical motion
pictures "Dudley Do-Right", "The Adventures of Rocky & Bullwinkle" or any
other motion picture(s) based on or derived from the Universal Property as
defined above.
Licensed Article(s): Digitally-manipulated photos incorporating the Universal
Property, in four formats (16-up peel & stick, 4-up peel & stick, 1-up non-
stick portrait and 1-up non-stick postcard), to be sold in Licensee's own
kiosks.
Advance: One Thousand Six Hundred Twenty-Five Dollars (US $1,625.00), payable
simultaneously upon the execution of this Schedule.
Guarantee: Six Thousand Five Hundred Dollars (US $6,500.00), payable as follows:
(i) One Thousand Six Hundred Twenty-Five Dollars (US $1,625.00), payable
simultaneously upon the execution of this Schedule (i.e., the Advance);
(ii) minimum sums equal to Three Thousand Two Hundred Fifty Dollars (US
$3,250.00) inclusive of the Advance and any Royalties already paid, due and
payable on or before January 31, 2000; and (iii) minimum sums equal to Six
Thousand Five Hundred Dollars (US $6,500.00), inclusive of the Advance and
any Royalties already paid, due and payable on or before December 31, 2001.
Royalty: Five Percent (5%) of retail price.
License Term: From the date of execution of this Schedule until December 31,
2002.
License Territory: United States and Canada.
Marketing/Shipping Date: No earlier than the execution of this Schedule and no
later than October 1, 1999.
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<PAGE>
Channels of Distribution: Licensee shall be permitted t sell the Licensed
Article(s) solely through its own photo kiosks.
Additional Insureds: Jay Ward Productions, Inc.
LegalNotice: Unless otherwise directed by Universal, License shall use the
following legal notice in connection with the Licensed Article(s) and the
Advertising and Promotion thereof:
The Adventures of Rocky and Bullwinkle and friends and related characters
are trademarks and copyrights of Jay Ward Productions, Inc. Licensed by
Universal Studios Licensing, Inc. All rights reserved.
AGREED AND ACCEPTED:
Universal Studios Licensing, Inc. Power Photo Enterprises
("Universal") ("Licensee")
By: /s/ C Cleveland By: /s/ Ron Thompson
-------------------------------- -----------------------------
Its: President Its: President & COO
-------------------------------- -----------------------------
Dated: 9/24/99 Dated: Sept. 23rd 1999
-------------------------------- -----------------------------
- S 20 -
<PAGE>
SCHEDULE "K"
------------
to the Master Merchandising License Agreement dated as of September 15, 1999
between Universal and Power Photo Enterprises
F&L #105133
Universal Property: The classic live action theatrical motion picture "Animal
House,"
Licensee acknowledges that no image(s) of any character(s) appearing in the
Universal Property which incorporate(s) the likeness(es) of any actor(s)
portraying such character(s) shall be utilized without Universal's consent.
Licensed Article(s): Digitally-manipulated photos incorporating the Universal
Property, in four formats (16-up peel & stick, 4-up peel & stick, 1-up
non-stick portrait and 1-up non-stick postcard), to be sold in Licensee's
own kiosks.
Advance: One Thousand Two Hundred Fifty Dollars (US $1,250.00), payable
simultaneously upon the execution of this Schedule.
Guarantee: Five Thousand Dollars (US $5,000.00), payable a follows: (i) One
Thousand Two Hundred Fifty Dollars (US $1,250.00), payable simultaneously
upon the execution of this Schedule (i.e., the Advance); (ii) minimum sums
equal to Two Thousand Five Hundred Dollars (US $2,500.00) inclusive of the
Advance and any Royalties already paid, due and payable on or before
January 31, 2000; and (iii) minimum sums equal to Five Thousand Dollars (US
$5,000.00), inclusive of the Advance and any Royalties already paid due and
payable on or before December 31, 2001.
Royalty: Five Percent (5%) of retail price.
License Term: From the date of execution of this Schedule until December 31,
2002.
License Territory: United States and Canada.
Marketing/Shipping Date: No earlier than the execution of this Schedule and no
later than October 1, 1999.
Channels of Distribution: Licensee shall be permitted to sell the Licensed
Article(s) solely through its own photo kiosks.
Additional Insureds: N/A
- S 21 -
<PAGE>
LegalNotice: Unless otherwise directed by Universal, Licensee shall use the
following legal notice in connection with the Licensed Article(s) and the
Advertising and Promotion thereof:
Animal House is a trademark and copyright of Universal Studios. Licensed by
Universal Studios Licensing, Inc. All rights reserved.
AGREED AND ACCEPTED:
Universal Studios Licensing, Inc. Power Photo Enterprises
("Universal") ("Licensee")
By: /s/ C Cleveland By: /s/ Ron Thompson
-------------------------------- -----------------------------
Its: President Its: President & COO
-------------------------------- -----------------------------
Dated: 9/24/99 Dated: Sept. 23rd 1999
-------------------------------- -----------------------------
-S 22 -
<PAGE>
SCHEDULE "L"
------------
to the Master Merchandising License Agreement dated as of September 15, 1999
between Universal and Power Photo Enterprises
F&L #105135
Universal Property: The name, likeness, signature and voic of the legendary
martial artist known as Bruce Lee (as embodied in visual images supplied to
Licensee by Universal).
Licensee acknowledges that the rights granted hereunder are limited solely to
the Universal Property as defined above and do not include the right to
utilize any title(s), scene(s), image(s) or element(s) from any theatrical
motion picture(s) in which Bruce Lee appeared, as all such rights are
presently owned or controlled by third (i.e., non-Universal) parties.
Licensee hereby agrees that Licensee shall be solely responsible for
securing any and all rights, licenses, clearances, permissions, approvals
and the like which may be required with respect to any use by Licensee of
such elements from any such motion picture(s) and for providing evidence of
same to Universal upon request.
Licensed Article(s): Digitally-manipulated photos incorporating the Universal
Property, in four formats (16-up peel & stick, 4-up peel & stick, 1-up
non-stick portrait and 1-up non-stick postcard), to be sold in Licensee's
own kiosks.
Advance: Two Thousand Dollars (US $2,000.00), payable simultaneously upon the
execution of this Schedule.
Guarantee: Eight Thousand Dollars (US $8,000.00), payable as follows: (i) Two
Thousand Dollars (US $2,000.00), payable simultaneously upon the execution
of this Schedule (i.e the Advance); (ii) minimum sums equal to Four
Thousand Dollars (US $4,000.00), inclusive of the Advance and any Royalties
already paid, due and payable on or before January 31, 2000; and (iii)
minimum sums equal to Eight Thousand Dollars (US $8,000.00), inclusive of
the Advance and any Royalties already paid, due and payable on or before
December 31, 2001.
Royalty: Five Percent (5%) of retail price.
License Term: From the date of execution of this Schedule until December 31,
2002.
License Territory: United States and Canada.
Marketing/Shipping Date: No earlier than the execution of this Schedule and no
later than October 1, 1999.
Channels of Distribution: Licensee shall be permitted to sell the Licensed
Article(s) solely through its own photo kiosks.
Additional Insureds: The Bruce Lee Estate.
- S23 -
<PAGE>
LegalNotice: Unless otherwise directed by Universal, Licensee shall use the
following legal notice in connection with the Licensed Article(s) and the
Advertising and Promotion thereof:
BRUCE LEE and the Bruce Lee likeness are trademarks and copyrights of The
Bruce Lee Estate. Licensed by Universal Studios Licensing, Inc. All rights
reserved.
AGREED AND ACCEPTED:
Universal Studios Licensing, Inc. Power Photo Enterprises
("Universal") ("Licensee")
By: /s/ C Cleveland By: /s/ Ron Thompson
-------------------------------- -----------------------------
Its: President Its: President & COO
-------------------------------- -----------------------------
Dated: 9/24/99 Dated: Sept. 23rd 1999
-------------------------------- -----------------------------
-S24 -
<PAGE>
SCHEDULE "M" -S24 -
-----------
to the Master Merchandising License Agreement dated as of September 15, 1999
between Universal and Power Photo Enterprises
-S24 -
F&L #105136
Universal Property: The live action theatrical motion picture Slap Shot."
Licensee acknowledges that no image(s) of any character(s) appearing in the
Universal Property which incorporate(s) the likeness(es) of any actor(s)
portraying such character(s) shall be utilized without Universal's consent.
Licensed Article(s) Digitally-manipulated photos incorporating the Universal
Property, in four formats (16-up peel & stick, 4-up peel & stick, 1-up
non-stick portrait and 1-up non-stick postcard), to be sold in Licensee's
own kiosks.
Advance: Two Thousand Dollars (US $2,000.00), payable simultaneously upon the
execution of this Schedule.
Guarantee: Eight Thousand Dollars (US $8,000.00), payable as follows: (i) Two
Thousand Dollars (US $2,000.00), payable simultaneously upon the execution
of this Schedule (i.e., the Advance), (ii) minimum sums equal to Four
Thousand Dollars (US $4,000.00), inclusive of the Advance and any Royalties
already paid, due and payable on or before January 31, 2000; and (iii)
minimum sums equal to Eight Thousand Dollars (US $8,000.00), inclusive of
the Advance and any Royalties already paid, due and payable on or before
December 31, 2001.
Royalty: Five Percent (5%) of retail price.
License Term: From the date of execution of this Schedule until December 31,
2002.
License Territory: United States and Canada.
Marketing/Shipping Date: No earlier than execution of this Schedule and no later
tan October 1, 1999.
Channels of Distribution: Licensee shall be permitted t sell the Licensed
Article(s) solely through its own photo kiosks.
Additional Insureds: N/A
-S25 -
<PAGE>
LegalNotice: Unless otherwise directed by Universal, License shall use the
following legal notice in connection with the Licensed Article(s) and the
Advertising and Promotion thereof:
Slap Shot is a trademark and copyright of Universal Studios. Licensed by
Universal Studios Licensing, Inc. All rights reserved.
AGREED AND ACCEPTED:
Universal Studios Licensing, Inc. Power Photo Enterprises
("Universal") ("Licensee")
By: /s/ C Cleveland By: /s/ Ron Thompson
-------------------------------- -----------------------------
Its: President Its: President & COO
-------------------------------- -----------------------------
Dated: 9/24/99 Dated: Sept. 23rd 1999
-------------------------------- -----------------------------
- S26 -
<PAGE>
SCHEDULE "N"
-----------
to the Master Merchandising License Agreement dated as of September 15, 1 999
between Universal and Power Photo Enterprises
F&L #105137
Universal Property: The live action theatrical motion picture "The Bride of
Chucky"
Licensee acknowledges that the rights granted hereunder are limited solely
to the Universal Property as defined above and do not include any rights
whatsoever to utilize any characters, images or other elements from any
sequels or prequels to the Universal Property. Licensee further
acknowledges that no image(s) of any character(s) appearing in the
Universal Property which incorporate(s) the likeness(es) of any actor(s)
portraying such character(s) shall be utilized without Universal's consent.
Licensed Article(s) Digitally-manipulated photos incorporating the Universal
Property, in four formats (16-up peel & stick, 4-up peel & stick, 1-up non-
stick portrait and 1-up non-stick postcard), to be sold in Licensee's own
kiosks.
Advance: One Thousand Dollars (US $1,000.00), payable simultaneously upon the
execution of this Schedule.
Guarantee: Four Thousand Dollars (US $4,000.00), payable a follows: (i) One
Thousand Dollars (US $1,000.00), payable simultaneously upon the execution
of this Schedule (i.e., the Advance); (ii) minimum sums equal to Two
Thousand Dollars (US $2,000.00), inclusive of the Advance and any Royalties
already paid, due and payable on or before January 31, 2000; and (iii)
minimum sums equal to Four Thousand Dollars (US $4,000.00), inclusive of
the Advance and any Royalties already paid, due and payable on or before
December 31, 2001.
Royalty: Five Percent (5%) of retail price.
License Term: From the date of execution of this Schedule until December 31,
2002.
License Territory: United States and Canada.
Marketing/Shipping Date: No earlier than the execution of this Schedule and no
later than October 1, 1999.
- S27 -
<PAGE>
Channels of Distribution: License shall be permitted to sell the Licensed
Article(s) solely through its own photo kiosks.
Additional Insureds: N/A
LegalNotice: Unless otherwise directed by Universal, Licensee shall use the
following legal notice in connection with the Licensed Article(s) and the
Advertising and Promotion thereof:
The Bride of Chucky and related characters are trademarks and copyrights of
Universal Studios. Licensed by Universal Studios Licensing, Inc. All rights
reserved.
AGREED AND ACCEPTED:
Universal Studios Licensing, Inc. Power Photo Enterprises
("Universal") ("Licensee")
By: /s/ C Cleveland By: /s/ Ron Thompson
-------------------------------- -----------------------------
Its: President Its: President & COO
-------------------------------- -----------------------------
Dated: 9/24/99 Dated: Sept. 23rd 1999
-------------------------------- -----------------------------
-S28 -
<PAGE>
SCHEDULE "0"
-----------
to the Master Merchandising License Agreement dated as of September 15, 1999
between Universal and Power Photo Enterprises
F&L #105138
Universal Property: The live action theatrical motion picture "Babe: Pig in the
City."
Licensee acknowledges that the rights granted hereunder are limited solely
to the Universal Property as defined above and do not include any rights
whatsoever to utilize any characters, images or other elements from any
sequels or prequels to the Universal Property. Licensee further
acknowledges that no image(s) of any character(s) appearing in the
Universal Property which incorporate(s) the likeness(es) of any actor(s)
portraying such character(s) shall be utilized without Universal's consent.
Licensed Article(s): Digitally-manipulated photos incorporating the Universal
Property, in four formats (16-up peel & stick, 4-up peel & stick, 1-up
non-stick portrait and 1-up non-stick postcard), to be sold in Licensee's
own kiosks.
Advance: One Thousand Five Hundred Dollars (US $1,500.00), payable
simultaneously upon the execution of this Schedule.
Guarantee: Six Thousand Dollars (US $6,000.00), payable as follows: (1) One
Thousand Five Hundred Dollars (US $1,500.00), payable simultaneously upon
the execution of this Schedule (i.e., the Advance); (ii) minimum sums equal
to Three Thousand Dollars (US $3,000.00), inclusive of the Advance and any
Royalties already paid, due and payable on or before January 31, 2000; and
(iii) minimum sums equal to Six Thousand Dollars (US $6,000.00), inclusive
of the Advance and any Royalties already paid, due and payable on or before
December 31, 2001.
Royalty: Five Percent (5%) of retail price.
License Term: From the date of execution of this Schedule until December 31,
2002.
License Territory: United States and Canada.
Marketing/Shipping Date: No earlier than the execution of this Schedule and no
later than October 1, 1999.
- S29 -
<PAGE>
Channels of Distribution: Licensee shall be permitted t sell the Licensed
Article(s) solely through its own photo kiosks.
Additional Insureds: N/A
LegalNotice: Unless otherwise directed by Universal, Licensee shall use the
following legal notice in connection with the Licensed Article(s) and the
Advertising and Promotion thereof:
Babe: Pig in the City and related characters are trademarks and copyrights
of Universal Studios. Licensed by Universal Studios Licensing, Inc. All
rights reserved.
AGREED AND ACCEPTED:
Universal Studios Licensing, Inc. Power Photo Enterprises
("Universal") ("Licensee")
By: /s/ C Cleveland By: /s/ Ron Thompson
-------------------------------- -----------------------------
Its: President Its: President & COO
-------------------------------- -----------------------------
Dated: 9/24/99 Dated: Sept. 23rd 1999
-------------------------------- -----------------------------
- S30 -
<PAGE>
SCHEDULE "P"
to the Master Merchandising License Agreement dated as of September 15, 1999
between Universal and Power Photo Enterprises
F&L #105139
Universal Property: The 1999 live action theatrical motion picture "The Mummy."
Licensee acknowledges that no image(s) of any character(s) appearing in the
Universal Property which incorporate(s) the likeness(es) of any actor(s)
portraying such character(s) shall be utilized without Universal's consent.
Licensed Article(s): Digitally-manipulated photos incorporating the Universal
Property, in four formats (16-up peel & stick, 4-up peel & stick, 1-up
non-stick portrait and 1-up non-stick postcard), to be sold in Licensee's
own kiosks.
Advance: Four Thousand Dollars (US $4,000.00), payable simultaneously upon the
execution of this Schedule.
Guarantee: Sixteen Thousand Dollars (US $16,000.00), payable as follows: (i)
Four Thousand Dollars (US $4,000.00), payable simultaneously upon the
execution of this Schedule (i.e., the Advance); (ii) minimum sums equal to
Eight Thousand Dollars (US $8,000.00), inclusive of the Advance and any
Royalties already paid, due and payable on or before January 31 2000; and
(iii) minimum sums equal to Sixteen Thousand Dollars (US $16,000,00),
inclusive of the Advance and any Royalties already paid, due and payable on
or before December 31, 2001.
Royalty: Five Percent (5%) of retail price.
License Term: From the date of execution of this Schedule until December 31,
2002.
License Territory: United States and Canada.
Marketing/Shipping Date: No earlier than the execution of this Schedule and no
later than October 1, 1999.
Channels of Distribution: Licensee shall be permitted t sell the Licensed
Article(s) solely through its own photo kiosks.
Additional Insureds: N/A
- S31 -
<PAGE>
LegalNotice: Unless otherwise directed by Universal, License shall use the
following legal notice in connection with the Licensed Article(s) and the
Advertising and Promotion thereof:
The Mummy is a trademark and copyright of Universal Studios. Licensed by
Universal Studios Licensing, Inc. All rights reserved.
AGREED AND ACCEPTED:
Universal Studios Licensing, Inc. Power Photo Enterprises
("Universal") ("Licensee")
By: /s/ C Cleveland By: /s/ Ron Thompson
-------------------------------- -----------------------------
Its: President Its: President & COO
-------------------------------- -----------------------------
Dated: 9/24/99 Dated: Sept. 23rd 1999
-------------------------------- -----------------------------
- S32 -
<PAGE>
SCHEDULE "Q"
-----------
to the Master Merchandising License Agreement dated as of September 15, 1999
between Universal and Power Photo Enterprises
F&L #105140
Universal Property: The live action theatrical motion picture entitled "The
Flintstones in Viva Rock Vegas."
Licensee acknowledges that no image(s) of any character(s) appearing in the
Universal Property which incorporate(s) the likeness(es) of any actor(s)
portraying such character(s) shall be utilized without Universal's consent.
Licensee further acknowledges that no rights are granted with respect to
the theatrical motion picture "The Flintstones," nor any sequels or
prequels thereto, other than as described above. Licensee further
acknowledges that the rights granted hereunder are limited solely to the
Universal Property as defined above and that no animated depictions of the
characters (either based on the Universal Property or on any other
version(s) of the classic animated "Flintstones" property from which they
are derived may be utilized.
Licensed Article(s) Digitally-manipulated photos incorporating the Universal
Property, in four formats (16-up peel & stick, 4-up peel & stick, 1-up
non-stick portrait and 1-up non-stick postcard), to be sold in Licensee's
own kiosks.
Advance: Two Thousand Five Hundred Dollars (US $2,500.00), payable
simultaneously upon the execution of this Schedule.
Guarantee: Ten Thousand Dollars (US $10,000.00), payable a follows: (i) Two
Thousand Five Hundred Dollars (US $2,500.00), payable simultaneously upon
the execution of this Schedule (i.e., the Advance); (ii) minimum sums equal
to Five Thousand Dollars (US $5,000.00), inclusive of the Advance and any
Royalties already paid, due and payable on or before January 31, 2000; and
(iii) minimum sums equal to Ten Thousand Dollars (US $10,000.00), inclusive
of the Advance and any Royalties already paid, due and pay able on or
before December 31, 2001.
Royalty: Five Percent (5%) of retail price.
License Term: From the date of execution of this Schedule until December 31,
2002.
- S33 -
<PAGE>
License Territory: United States and Canada.
Marketing/Shipping Date: No earlier than the execution of this Schedule and no
later than October 1, 1999.
Channels of Distribution: Licensee shall be permitted t sell the Licensed
Article(s) solely through its own photo kiosks.
Additional Insureds: Amblin Entertainment, Inc. Warner Bros.
LegalNotice: Unless otherwise directed by Universal, License shall use the
following legal notice in connection with the Licensed Article(s) and the
Advertising and Promotion thereof.
(An appropriate legal notice for use on and/or in conjunction with the
Licensed Article(s), their packaging, and the Advertising and Promotion
thereof will be provided at the relevant stage of the product approval
process.)
AGREED AND ACCEPTED:
Universal Studios Licensing, Inc. Power Photo Enterprises
("Universal") ("Licensee")
By: /s/ C Cleveland By: /s/ Ron Thompson
-------------------------------- -----------------------------
Its: President Its: President & COO
-------------------------------- -----------------------------
Dated: 9/24/99 Dated: Sept. 23rd 1999
-------------------------------- -----------------------------
- S34 -
