FORM 8-K
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): February 26, 1997
EXPERT SOFTWARE, INC.
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation)
33-89758 65-0359860
(Commission File Number) (I.R.S. Employer Identification No.)
800 Douglas Road, 750, Coral Gables, Florida 33134
(Address of principal executive offices)
Registrant's telephone number, including area code: (305) 567-9990
Not applicable
(Former name or former address, if changed since last report.)
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ITEM 5. OTHER EVENT
Expert Software, Inc. reported that it has signed a Licensing Agreement with
McDonald's Corporation for use of McDonald's characters and marks in family fun
software. Under this Agreement, Expert, in cooperation with McDonald's, will
develop and market family oriented consumer software featuring McDonald's
characters through a wide variety of distribution channels. The first software
titles are expected to be introduced Mid 1997.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
The following exhibit is filed herewith:
10.14 - Licensing and Royalty Agreement between the Company and McDonald's
Corporation dated as of January 2, 1997.
SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of 1934
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Dated: February 26, 1997
Expert Software, Inc.
By: /s/ Charles H. Murphy
Charles H. Murphy
Chief Financial Officer
<PAGE>
EXHIBIT 10.14
<PAGE>
LICENSE AND ROYALTY AGREEMENT
AGREEMENT made this January 2, 1997 by and between McDONALD'S CORPORATION,
a corporation organized under the laws of the State of Delaware and having its
principal office at One McDonald's Plaza, Oak Brook, ]Illinois 60521
(hereinafter called "Licensor"), and EXPERT SOFTWARE, INC., a corporation
organized under the laws of the State of Delaware and having its principal
office at 800 Douglas Road, Executive Tower, 7th Floor, Coral Gables, FL 33134
(hereinafter called "Licensee").
WITNESSETH:
WHEREAS, Licensor owns or has the right to use the trademarks, service
marks, copyrights and publicity in character(s), name(s), symbols, designs,
likenesses and visual representations listed in Exhibit A (which intellectual
property rights shall hereinafter be called collectively "Mark" or "Marks"); and
WHEREAS, Licensor is desirous of encouraging the development of high
quality products which are in keeping with its clean, wholesome, family-oriented
image and which are uniquely associated with it by the public through the use of
the Marks thereon and in connection therewith; and
WHEREAS, Licensee desires to utilize the Marks in connection with the
manufacture and sale of certain merchandise; and
WHEREAS, Licensor desires to grant a license to Licensee permitting
Licensee to cause certain merchandise to utilize the Marks therein and to sell
such merchandise provided in this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants herein contained, it is
agreed as follows:
IA. Preambles
The foregoing preambles are true and correct and incorporated herein by
reference,
1B. Definitions.
As used herein, the following terms shall be defined as set forth below-
(a) "Product(s)" shall mean: Interactive computer software, screensavers
and computer accessories.
(b) "Licensed Products" shall mean all Products of Licensee in any form or
format which have the Mark or Marks affixed or attached thereto in any manner
previously approved by Licensor or which are shipped in containers or packages
bearing the Mark(s).
(c) Contract Territory shall mean the United States, its territories,
commonwealths and possessions, Canada, Japan, Australia, United Kingdom. At
Licensee's request, Licensor may agree in its sole discretion to expand the
Contract Territory.
(d) "Contract Period" shall mean that period of time commencing on the
date hereof and concluding December 31, 2001 unless earlier terminated pursuant
to any other provisions of this Agreement.
(e) "Distributor(s)" shall be defined to include any jobbers,
wholesalers, distributors and retailers.
2. Grant of License.
(a) Licensor hereby grants to Licensee the non-exclusive right and license
to use the Marks in connection with the advertisement including on-line and on
or at Licensee's web site, promotion display, public performance, manufacture,
distribution and sale of licensed Products to Distributors and in retail
establishments and to end-users other than Licensor's restaurants within the
Contract Territory and during the Contract Period. Licensee agrees not to sell
merchandise bearing the Marks to Distributors whose sales or distribution is
substantially for publicity purposes, giveaways, premiums or close-outs.
(b) Notwithstanding the rights granted above, Licensor hereby reserves
the right to use or to license the Marks for any and all other purposes
including, but not limited to, distribution or sales of like or similar products
bearing the Marks to its employees.
(c) In confirmation of the foregoing, Licensor shall use it best efforts
to deliver to Licensee the Marks identified on Exhibit "A" hereto or as same
shall be modified by the parties from time to time during the Contract Period in
camera ready master or other format reasonably requested by Licensee (including
electronic format if available) within a time period mutually agreed by the
parties.
3. Supplier.
Licensee will inform any and all fulfillment houses who produce Licensed
Products that Licensed Products may only be sold by Licensee. Towards this end,
Licensee and/or affiliates shall have every such fulfillment houses sign, prior
to production of Licensed Products, an agreement identical to that found in
Exhibit B. The signed fulfillment house's agreement shall be maintained by
Licensee and be made available to Licensor upon request.
Any supplier will conform to all local laws and customs regarding hiring
practices and working conditions. Under no circumstances will suppliers involve
the production of McDonald's products in an environment where underage labor is
employed.
Suppliers will not utilize factories or production facilities that force
work to be performed by unpaid laborers or those who must otherwise work against
their will.
Suppliers will monitor their factories and suppliers work environments to
ensure compliance to these policies and obtain verification of compliance.
Any supplier found not to be in compliance with the above requirements
will no longer be a suppliers to the McDonald's system.
4. Royalties.
(Redacted)
5. Protection of Marks,
(a) All uses of the Marks in connection with Licensed Products shall inure to
Licensor's benefit. Licensee acknowledges Licensor's benefit. Licensee
acknowledges Licensor's exclusive right, title and interest in and to the Marks
and will not, either directly or indirectly, at any time do any act or thing
contesting the validity of or in any way injuring or discrediting any part of
such right, tide or interest. At Licensor's expense and request, Licensee shall
assist Licensor, to the extent necessary, in the procurement of any protection
or to protect any of Licensor's rights in the Marks. Toward that end, upon
Licensor's request, Licensee shall provide Licensor with two (2) production
samples of any Licensed Product and whatever other documentation or information
may be reasonably requested by Licensor for the purpose of registration of its
Mark or Marks in the categories into which the Licensed Products fall.
(i) Licensee shall promptly notify Licensor in writing of any
infringements or imitations by others of the Marks of which it becomes aware.
Licensor shall have the sole right to determine whether any action shall be
taken on account of such infringements or imitations. Licensee shall not
institute any suit or take any action on account of any such infringements or
imitations without first obtaining the written consent of Licensor to do so.
(ii) Licensee acknowledges that Licensor prohibits its suppliers and
vendors from using its Marks on any labels, packages or in advertisement without
specific written permission from Licensor. Licensee agrees to notify its
suppliers of Licensed Products of this prohibition. Licensee further agrees to
inform its Distributors or retailers of this policy and to use reasonable
commercial efforts to enforce these policies; provided, however, that the
Licensee's Distributors or retailers may use the Marks in connection with
advertisements in the ordinary course of business, subject to Licensor's prior
written approval.
(iii) All material and concepts developed by Licensee and/or its manufacturers
pursuant to this Agreement, and all copyright, patent and trademark rights
therein (except for pre-existing rights including, without limitation, use of
all trademarks and service marks of Licensee, except as provided below) shall be
the exclusive property of Licensor and shall automatically be transferred to
Licensor hereby without further acts or documentation except as provided below.
The parties acknowledge that the Licensed Products may contain
intellectual property owned by third party developers/licensors (hereafter
`Third Party Licensors") as well as related Licensee marks all of which are set
forth in exhibit A (Intellectual Property). The parties agree that the Licensee
shall retain (a) all rights, title and interest in and to the Licensee's
intellectual property now existing Licensee's Marks and (b) said
Third Party Licensors shall retain all rights, title and interest in and
to their intellectual property. in confirmation hereof, the Licensor agrees to
refrain from using, licensing or sublicensing such intellectual properties
without the express prior written approval of Licensee except as set forth
herein.
(b) All graphical representations of the Marks and all images relating to
the Marks in the Licensed Products including the total look and feel of the
Marks and related images in the Licensed Products, which Licensee, its agents,
employees or consultants develop for Licensor pursuant to this Agreement, shall
be works made for hire and to the extent such aspects are deemed not to be works
made for hire, Licensee hereby assigns all worldwide rights, title and interest
in and to such representations, including any renewals, to McDonald's
(c) All Licensed Products will be manufactured, sold, sublicensed,
labeled, packaged, distributed and advertised by Licensee in accordance with all
applicable laws, standards and regulations. Licensee shall cause to appear on
all Licensed Products and on all materials used in connection with the Marks,
such legends, markings and notices as may reasonably be necessary as instructed
in writing by Licensor in order to give appropriate notice of Licensor's
trademark, tradename or other rights pertaining thereto, in the form provided by
Licensor.
(d) The parties acknowledge and agree that in the marketing, distribution,
licensing and sale of the Licensed Products, both the Licensor's Marks and the
Licensee's Marks "Expert Software" or "Expert" or other Licensee trademarks
will be used. The parties further agree that Licensee shall mark each copy of
the Licensed Products with the applicable acknowledgment, Mark or copyright
notice of Licensor in accordance with Ns Agreement; however, Licensee may also
mark the Licensed Products with its own trademark or copyright notice with
reference to Licensee's Marks.
(e) In confirmation of the foregoing, the Licensor warrants and represents
to the Licensee that the Marks and their exploitation as authorized by this
Agreement do not and will not infringe any copyright, patent, trademark, trade
secret, right of publicity, right of privacy or any other proprietary,
statutory or common law right of any third party.
(f) Licensee shall not promote Licensed Products along with or in
connection with any products targeted to similar market audiences.
6. Indemnity.
(a) Licensee shall defend, indemnify and hold harmless Licensor, its
subsidiaries, affiliates, distributors, franchisees, successors, assigns,
directors, officers, agents and their employees, from and against any and all
claims, demands, causes of action, damages, costs or expenses, including
reasonable attorney's fees, arising out of (1) any death, injury or alleged
injury to any person, or damage or alleged damage to any property resulting, in
whole or in part, from any actual or alleged defect in any Licensed Product sold
under this Agreement or covered by this Agreement, whether latent or patent,
including but not limited to actual or alleged improper construction or design
of such merchandise or the failure or alleged failure of such merchandise to
comply with any express or implied warranties; (2) any actual or alleged
violation by such merchandise, or its manufacture, possession, use or sale, of
any law, statute or ordinance or any governmental administrative order, rule or
regulation; (3) claims that any trademarks (other than the Marks) used in
connection with Licensed Products, the sale of Licensed Products bearing that
trademark, or the use of that trademark by Licensee, infringes upon any other
person's claimed trademark rights; or (4) a product recall. Toward this end,
Licensee herein represents that it has an insurance policy in place with $1
million per occurrence, $5 million in the aggregate, and Licensor is listed as
an additional insured on the policy on or before thirty (30) days after full
execution of this Agreement. Licensee agrees to provide Licensor with a
Certificate of Insurance showing Licensor listed as an additional insured, and
Licensee further agrees that it will not cancel such policy without providing
sixty (60) days advance written notice to Licensor.
(b) Licensor shall defend, indemnify and hold harmless Licensee, its
successors, assigns, officers, agents and employees, from and against any and
all claims, demands, causes of action, damages, costs or expenses, including
reasonable attorneys' fees, arising out of a claim that (1) the application of
the Marks to Licensed Products, the sale or sublicense of Licensed Products
bearing the Marks, or the use of the Marks by Licensee, all in accordance with
the terms of this Agreement, or (2) the rights granted to Licensee under this
Agreement, violate or conflict with the-rights of any other person or persons.
(c) In the event of any claim requiring indemnification in accordance with
this paragraph 6, the indemnitee shall give the indemnitor prompt written notice
of any such claim, suit, action or proceeding. After giving notice to the
indemnitee that it will defend, the indemnitor shall take such action as it
deems advisable to defend and/or settle such claim, suit, action or proceeding
on behalf of the indemnitee; provided, however, if there is any reasonable
possibility that Licensor will agree to stop or be prevented from using any
portion of the Marks on any Licensed Products where Licensee is the indemnitee,
Licensee will be immediately notified and continually apprised of the situation,
the intent being that Licensee will have the maximum time practical under the
circumstances and to the extent permitted by law, to dispose of any such
Licensed Products. The indemnitee shall cooperate fully with the indemnitor in
all respects in connection with any such defense that is made, and shall always
have the right to be informed of decisions regarding settlement of any claims or
lawsuits. Provided that the indemnitor assumes the defense of any claim, suit,
action or proceeding covered by this paragraph, the indemnitee shall delegate
complete and sole authority to the indemnitor to defend or settle same.
Indemnification pursuant to this paragraph 6 shall apply solely to the amount of
a judgment (if any), any sums paid in settlement, and the costs and expenses,
including reasonable attorneys' fees, incurred in connection with the
indemnitee's defense; such indemnification shall not apply to any other damages
suffered by the indemnitee.
7. Quality of Merchandise.
(a) All Licensed Products shall be of high safety and structural standards
and of such style, appearance, quality and consistency as shall be adequate and
suitable for goods of that kind. If applicable, Licensee agrees to submit
required quantities of Licensed Products to an independent testing laboratory to
insure compliance with required safety laws, rules and regulations. Any items
for children which are not suited for children of all ages must be appropriately
labeled, as provided by applicable federal and state laws. No sales of Licensed
Products which are below first quality may be made by Licensee without the
approval of Licensor which approval shall not be unreasonably withheld. To this
end:
(i) Before market release of the Licensed Products, the Licensee shall
deliver to Licensor written certification by Licensee that Licensee has
conducted adequate and extensive licensed product testing, fixed any major
errors affecting the functionality which have been detected by Licensee
and are subject to ongoing error detection and correction. Failure to
comply with this provision shall cause for Licensors immediate termination
of this Agreement.
(ii) Approval of Artwork or Prototypes. Before manufacturing, Licensee
shall submit to Licensor, for its written approval, artwork and prototypes
for each Licensed Product or any other usage of the Marks together with
prototypes depicting the usage of the Marks on labeling or packaging in
which Licensed Products are to be marketed. Licensed Products shall not be
sold or distributed or sublicensed without Licensor's written consent if
they depart from the approved artwork or prototypes in any respect which
consent shall not be unreasonably withheld. If Licensor has not either
granted its consent to, commented on, or expressed its disapproval of an
item of artwork or a prototype within 10 days of submission by Licensee,
then Licensor shall be deemed to have consented to the use of such artwork
or prototype.
(iii)Review of Samples, Labeling, Packaging and Advertising. Licensee
shall submit to Licensor for its written approval, prior to manufacture,
packaging, labeling and advertising for all Licensed Products. Such
packaging, labeling, and advertising samples shall not depart from the
approved artwork and prototypes in any respect without Licensor's written
consent.
(iv) Approval Form. All materials sent in for approval must be
accompanied by a completed approval form, a sample of which is attached
to this Agreement.
(b) All Licensed Products shall be of the same quality and workmanship as
the approved sample or prototype and in the manufacture thereof Licensee shall
cause the manufacturers designated by Licensee to use manufacturing processes,
techniques and quality control procedures designed to ensure that the Licensed
Products will consistently comply with Licensor's high quality standards. Under
no circumstances shall Licensee be permitted to sell, distribute, sublicense,
give away or otherwise deal in Licensed Products that bear a distortion of the
Marks, or that do not comply with Licensor's quality standards and
specifications or governmental laws, regulations, ordinances or enactments or
which have not been approved by Licensor.
(c) The provisions for indemnity under Paragraph 6 hereof shall not be
waived by approval of Licensed Products by Licensor pursuant to Paragraph 7.
(d) Licensee shall notify Licensor of any material consumer complaints
regarding Licensed Products and will assist Licensor in the resolution of such
complaint.
8. Promotional Material.
(a) Licensee shall not use the Marks or any reproduction thereof in any
advertising, promotional or display material without Licensor's prior written
approval. Under no circumstances will promotional materials or programs be used
by Licensee that reflect unfavorably on the Marks. All advertising, display or
promotional copy utilizing or in any way connected with the marks shall carry a
notice that the Marks are the property of Licensor and such advertising, display
or promotional copy shall be submitted to Licensor for review and approval well
in advance of production. Licensor shall have ten (10) business days to review,
comment upon or express its disapproval thereof and for changes to be made.
(b) Any approval granted by Licensor under this paragraph will extend only
to Licensee's use of the Marks.
9. Records.
(a) Licensee and its manufacturers shall keep accurate books of account
and records covering all transactions relating to this license. Licensor and its
duly authorized representatives shall have the right at reasonable times during
regular business hours to examine such books of account and records and all
other documents and materials in Licensee's or its manufacturer's possession or
under its control with respect to the subject matter and terms of this
Agreement, and shall have free and full access:. for the purposes of monitoring
compliance and for the purposes of making extracts therefrom throughout the
Contract Period, as the same may be renewed and extended. All records on hand on
expiration or termination of this Agreement shall be kept available for at least
two (2) years after expiration or termination of the Agreement. Licensor agrees
to keep confidential and not to publicly disclose any information obtained
through any such review and to obtain an agreement to keep confidential and not
to publicly disclose any such information from any of its duly authorized
representatives who are granted access to such books and records.
(b) At any time during the term of this Agreement, and for a period of two
(2) years thereafter, Licensor may, at its own expense, employ an independent
certified public accountant or its employees to verify the accuracy of the
statements provided for in subparagraph (a) above. If Licensee's reported
accrued royalty is more than 5% less than the accrued royalty as determined by
the Licensor's independent certified public accountant, then Licensor shall
deliver such determination in writing and with relevant back-up materials, to
Licensee. If Licensee does not deliver a written objection to Licensor's
determination within fifteen (15) days from submission by Licensor, then
Licensee will be deemed to have accepted Licensor's determination of accrued
royalty. If Licensee delivers to Licensor a written objection to Licensor's
determination within fifteen (15) days from receipt of such determination,
then the parties shall use commercially reasonable efforts to finalize the
amount of accrued royalty with ten (10) days of Licensor's receipt of
Licensee's written objection. In the event that Licensor and Licensee are
unable to agree on the amount of accrued royalty within that time period, at
Licensee's expense the matter will be referred for determination as promptly
as practicable to a "Big 6" accounting firm with no prior affiliation with
Licensor or Licensee. The determination of such accountants shall, absent
fraud or manifest error, be conclusive and binding on Licensor and Licensee.
10. Samples and Inventory.
Licensee agrees to provide Licensor a minimum of twelve (12) samples of
each final Licensed Product. Upon expiration or termination of the Contract
Period as specified herein, Licensee shall have the right to continue to sell
previously manufactured Licensed Products according to all the terms of this
Agreement for a period of three hundred sixty (360) days. Licensee agrees to
sell to Licensor available or ordered merchandise in reasonable quantities at
Licensee's lowest selling price.
II. Termination and Rights after Termination.
(a) If Licensee shall fail to make any payment due hereunder or fail to
provide Licensor with quarterly reports as provided in paragraph 4(c) hereunder,
and if such default shall continue uncured for a period of thirty (30) days
after written notice of such default has been received by Licensee, Licensor
shall have the right to terminate this Agreement without further notice. Once
this Agreement is terminated under this section, Licensee shall have no right to
continue sales or any associated advertising or merchandising of manufactured
Products. All sales of Licensed Products must cease.
(b) If either party shall fail to perform any of the terms, conditions,
agreements or covenants in this Agreement (other than the failure of Licensee to
make any payment as described in subparagraph (a) above) and such default shall
continue uncured for a period of thirty (30) days after written notice thereof
has been received by the party so failing, the other party may, at its sole
election, terminate this Agreement forthwith by written notice. Notwithstanding
the foregoing, such right of termination shall be suspended if the default is
one which is not susceptible of cure within such thirty (30) day period and if
the defaulting party has commenced good faith effort to cure such default within
such thirty (30) day period and has continued such efforts without interruption.
(c) Licensor may immediately, upon written notice to Licensee, terminate
this Agreement if Licensee:becomes subject to a receiver or trustee; or becomes
insolvent; or becomes subject to an order for relief under an involuntary or
voluntary petition under the United States Bankruptcy Act, as amended, for
whatever reason; or makes an assignment for the benefit of its creditors; and
Licensee or any person or entity which succeeds Licensee or acts in Licensee's
behalf having been duly authorized fails to provide Licensor with both adequate
protection against any losses or damages and adequate assurance, as determined
by Licensor, of Licensee's ability to fully perform its obligations under this
Agreement within thirty (30) days of any of the above-mentioned acts or events;
or
(ii) changes ownership, either by the sale or transfer of the company
or by the sale or transfer of more than of the ownership interest of the
company.
(d) Licensor may immediately, upon written notice to Licensee, terminate
this Agreement if in Licensor's -sole determination, the sale or distribution of
Licensed Products in any way threatens or endangers Licensor's reputation and
goodwill or its clean, wholesome, family-oriented image subject to seventy-two
hours written notice and opportunity to cure.
(e) This Agreement shall terminate on December 31, 1997 if Licensee has
not shipped Licensed Products to one or more of its Distributors by that date.
(f) Notwithstanding any termination in accordance with the foregoing, the
respective parties shall have and hereby reserve all the respective rights and
remedies which they have, or which are granted to them by operation of law, with
respect to the collection of royalties payable by Licensee pursuant to this
Agreement, with respect to damages for breach of this Agreement by either party,
with respect to the right to seek to enjoin the unlawful or unauthorized use of
the Marks or any Licensor trademark or Licensee trademarks and service marks,
and with respect to enforcement of indemnity provisions contained herein.
12. Notices.
All notices, reports and statements to be given and all payments to be made
hereunder shall be sent by certified mail, return receipt requested, or by
express mail or other overnight courier, with return receipt requested, and if
to Licensor to:
Jim Stadler
National Retail Licensing Manager
McDonald's Corporation
Kroc Drive
Oak Brook, Illinois 60521
with copies to the attention of: David Green
Senior Vice President
McDo nald's Corporation
Kroc Drive
Oak Brook, Illinois 60521
General Counsel
McDonald's Corporation
Kroc Drive
Oak Brook, Illinois 60521
and if to Licensee, to: Ken Currier
Chief Executive Officer
Expert Software, Inc.
800 Douglas Road, Executive Tower
Suite 750
Coral Gables, FL 33134
with copies to the attention of: David L. Chiras
General Counsel
Expert Software, Inc.
800 Douglas Road, Executive Tower
Suite 750
Coral Gables, FL 33134
13. No Joint Venture.
Nothing herein contained shall be construed to place the parties in the
relationship of partners or joint ventures and neither party shall have the
power to obligate or bind the other in any manner whatsoever, and vice versa.
14. Warranties.
(a) Licensor covenants and warrants that it has the power and right to grant to
Licensee the rights and licenses granted by it hereunder.
(b) Licensor represents and warrants that Licensor does not have, has not made
and will not make or authorize, any obligations, commitments or grants to any
other person or persons which will or may impair or prevent the performance by
Licensor of its obligations and undertakings contained in this Agreement
(c) Licensee covenants and warrants that it has the power and right to grant to
Licensor the rights granted by it hereunder.
(d) Licensee represents and warrants that at the time of the execution of this
Agreement, Licensee does not have, has not made and will not make or authorize,
any obligations, commitments or grants to any other person or persons which will
or may impair or prevent the performance by Licensee of its obligations and
undertakings contained in this Agreement.
15. Cancellation.
The parties understand that Licensor, its subsidiaries, affiliates, and
franchisees, use the Marks which are the subject of this license to advance and
promote Licensor's restaurants, and that Licensor has a paramount obligation to
preserve its ability to so use such Marks. Should any other use of any Mark or
Marks become threatened as a result of any rules, regulations or policy of
governmental administrative agencies, then Licensor may terminate this
Agreement.
16. Assignment.
Licensee may not assign this Agreement, or any or all of its rights and
obligations hereunder, without first obtaining the written consent of Licensor.
17. Scope and Modification.
This Agreement sets forth the agreement between the parties and supersedes
all prior agreements and understandings between the parties, their officers,
directors, or employees relating to the subject matter hereof. None of the terms
of this Agreement may be waived or modified except as expressly agreed to, in
writing, by both parties.
18. Waiver.
No waiver by any party, whether express or implied, of any provision of
this Agreement or of any breach or default shall constitute a continuing waiver
thereof.
19. Confidentiality
Licensee agrees to keep any information it learns about Licensor's
business and marketing plans confidential. Licensee further agrees to
communicate the confidential nature of such information to its employees and to
its fulfillment houses.
Licensor agrees to keep any infon-nation it learns about Licensee's
business and marketing plans confidential.
20. Exclusivity.
Licensee agrees not to enter into any agreement or develop a relationship
similar to the foregoing with a McDonald's competitor during the term of this
Agreement. McDonald's competitor is defined as follows:
(a) Service: Restaurants, including, but not limited to:
(i) quick service restaurants in which food is prepared on the premises,
sold at a counter or window, and intended for immediate on-premises
consumption or for home delivery, or carryout;
(ii) non-white tablecloth, sit-down service restaurants, and sit-down
and/or carry-out service restaurants within the premises of another
business which are operated by an entity other than the owner of that
other business;
(iii)contract food operations, food concessionaires, specialty food shops
which may not serve meals (i.e. ice cream shops, yogurt shops, doughnut
shops and cookie shops), and independently owned "mom and pop"
restaurants;
(iv) fountain and carry-out food service operations, including without
limitation such operations located in or associated with convenience
stores, mini-marts and gas stations.
(b) Products: The following ready-to-eat and/or frozen food products:
Hamburger; hand-held sandwiches (including breakfast sandwiches); french
fries; beverages, including fountain soft drinks; meals; chicken; and
pizza.
(c) Notwithstanding the above, in the event Licensee wishes to enter into a
relationship with a Competitor of McDonald's, Licensee shall send a written
request for approval, stating the Competitor's name, the product contemplated
and the territory in which the product shall be distributed. McDonald's agrees
to respond to the request within five (5) business days.
Licensee's current relationships with McDonald's competitors are:
Name of Company Product Territory
________None____ __ _________________
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21. Governing Laws. This Agreement shall be governed by the laws of
Illinois without regard to that state's conflict of laws provision
22. Entire Agreement. This Agreement supersedes any prior or
contemporaneous communications or agreements between the parties.
23. Effect on Waiver. This Agreement may not be modified nor any of its
provisions waived absent a writing signed both parties.
24. Force Majeure. It shall not be a breach of any obligation hereunder should a
party fail to perform due to an Act of God, war, government regulation. civil
disorder or other emergency making it unadvisable, illegal or impossible to
perform. However, the affected party shall provide notice to the other of its
inability to perform and such inability shall be excused for the length of the
Force Majeure event.
25. Survival of Terms. The terms and conditions of the following sections
shall survive the expiration or termination of this Agreement.
Section 1, Section 4. Section 6, Section 9, Section I 1, Section 14,
Section 19.
The terms and provisions of this Agreement shall be interpreted in
accordance with and governed by the laws of the State of Illinois.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day first above stated, the corporate party by its proper officers duly
authorized thereto.
McDONALD'S CORPORATION
Dated: January 2, 1997 By: /s/ David Green
Title: Senior Vice President
EXPERT SOFTWARE. INC.
Dated: January 2, 1997 By: /s/ Kenneth P. Currier
Title: Chief Executive Office
EXHIBIT A
McDonald's Marks
McDonald's*
McDonaldland
McDonaldland Characters
McWorld
Happy Meal Workshop
Playplace
McDonald's Racing Team*
McDonaldland Racing Team*
Happy Meal*
And as modified by the Parties in writing from time to time
* Includes word and design
FULFILLMENT HOUSE AGREEMENT
This Fulfillment House Agreement is made pursuant to the License Agreement
between McDonald's Corporation and the pertinent sections of which are attached
and made a part hereof.
(Name of Licensee) "Licensee" and (Name of Fulfillment House) "Fulfillment House
" located at desire to cause the manufacture of the following Products bearing
the Marks of McDonald's Corporation. As a condition to the manufacture of any
Licensed Products bearing a Mark listed on Exhibit A, of the License Agreement,
Licensee and Fulfillment House acknowledges that the Marks are the sole property
of McDonald's Corporation and that Fulfillment House's right to manufacture the
License Products with the Marks thereon is in all respects subject to the terms
and conditions of the License Agreement. Manufacturer recognizes that all
manufacturing rights to the Licensed Product are subject to (a) the restrictions
on the use of the Marks and (b) the termination provision of the License
Agreement. Fulfillment House further acknowledges that its manufacture of the
Licensed Product shall give fulfillment House no right to use the Marks or to
sell articles bearing the marks beyond the term of the License Agreement.
Fulfillment House shall not sell the Licensed Product to any person or entity
except Licensee. If McDonald's terminates the License Agreement, Fulfillment
House agrees to make no claim against McDonald's for any reason whatsoever.
Fulfillment House will comply with all local laws and customs regarding
hiring practices, wages and working conditions. Under no circumstances will
Fulfillment House involve the production of McDonald's products in an
environment where underage labor is employed.
Fulfillment House will not utilize factories or production facilities that
force work to be performed by unpaid laborers or those who must otherwise work
against their will.
Fulfillment House will monitor their factories and manufacturers work
environment to ensure compliance to these policies and obtain verification of
compliance.
If Manufacturer is found not to be in compliance with the above
requirements they will no longer be a manufacturer under the terms of this
agreement.
FULFILLMENT HOUSE LICENSEE
By: By:
Date: Date:
I&r/expert
McDONALD'S LICENSING APPROVAL FORM
Please fill out the top section of form. This form must be submitted
with each step of product development listed below.
Date:
Licensee: Submitted by:
Telephone Number: Fax Number:
Product Description & Model #:
