Common use of Design and Production Clause in Contracts

Design and Production. 4.1 During the Term, Licensor will provide design services to Licensee as provided in this Section 4, and Licensee will only utilize designs provided or approved by Licensor on Licensed Products. Licensor will reasonably adhere to Licensee’s design and sourcing calendar by category and collection by season. A sample calendar is attached as Exhibit D. Design calendars may be updated from time to time upon mutual agreement of the parties, any such updates to be agreed to in adequate time for both parties to comply with such updated calendar. 4.2 Licensee agrees to consider Licensor’s suggestions regarding fabric and trim vendors. Licensee has the final approval regarding which fabric and trim vendor will be utilized, provided that Licensee meets the Licensor’s specifications in the product packages. 4.3 If Licensor provides the product design, Licensor is responsible for providing the design aesthetic, including color, concept, print and pattern, substantially in the form of the product packages in Exhibit E. Beginning on March 1, 2010, or as soon as the parties are reasonably able to meet software and technical requirements, both parties will be responsible for directly utilizing the Flex PLM system, provided Licensee will be responsible for any license fees related to the Flex PLM system incurred by Licensor. Licensor may, from time to time, request that Licensee provide designs. In such event, Licensee will provide such designs for Licensor’s approval, including color, concept, print and pattern. 4.5 Licensee will provide the Concept Sample and submit to Licensor. Licensor will evaluate the Concept Sample to ensure it meets the design specifications and for initial fit. On the initial fit, Licensor will give feedback as to technical specifications and design aesthetic to bring the Concept Sample in line with the original design aesthetic. If Licensor, in its reasonable discretion, advises Licensee that such Concept Sample materially differs from the design specifications or fit, Licensee will revise and resubmit a Concept Sample. 4.6 Licensee will be responsible for the final approval of color, production and fit, consistent with the design specifications. Licensor will be responsible for the final approval of print strike offs. 4.7 Licensee will provide a final confirmation sample to Licensor before Licensee’s final line turnover. 4.8 Licensor will provide conceptual design for the product packaging in the form of digital camera-ready artwork for the logos. Licensee will create a packaging style guide to be reviewed and mutually agreed upon at the major divisional strategy meetings. Before November 20, 2009, Licensor will review the logos to be utilized with the Trademarks. Such logos should be planned for use for a reasonable period of time. Following the launch of the first seasonal offerings, Licensor will review with Licensee any changes to its Trademark strategy in the Sales Territory, including any logo changes. In such event, both parties will discuss Licensor’s Trademark strategy and the sharing of any expenses related to logo changes. In any event, unless mutually agreed to by the parties, Licensee is not obligated to use any new versions of the Trademarks or logos. Licensee will source all product packaging. 4.9 For samples or designs submitted under this Section 4 from the date of execution through February 28, 2010, Licensor will have ten (10) business days to approve the sample or design, such approval not to be unreasonably withheld. For samples or designs submitted under this Section 4 from March 1, 2010, through July 31, 2010, Licensor will have seven (7) business days to approve the sample or design, such approval not to be unreasonably withheld. For samples or designs submitted under this Section 4 from and after August 1, 2010, Licensor will have five (5) business days to approve the sample or design, such approval not to be unreasonably withheld. If Licensor fails to respond to a request for approval within the agreed time-frame, the sample will be deemed approved. 4.10 Before the start of a design season, Licensee must provide a conceptual merchandise plan that includes a number of styles by category, target cost and SKU count within an item. Licensor will target developing styles at a minimum 2:1 ratio to the number of styles in the conceptual merchandise plan, unless otherwise agreed upon by the parties. 4.11 Licensor agrees to maintain 15-20 full time employees dedicated to design for the Licensed Merchandise. Licensee agrees to maintain a sourcing and product development team for the Licensed Products in Plano, Texas. In Asia, Licensee agrees that the Licensed Merchandise will receive the same type of staffing that Licensee normally affords to its similar private brands. 4.12 A semi-annual review with Senior Product Development and Merchandising Management will be held around the timing of the division strategy meetings as set forth on Exhibit D. 4.13 Licensee acknowledges that, subject to the Purchase Options and the licenses granted under this Agreement, this Agreement does not grant any rights to Licensee with respect to any design independently developed by Licensee or Licensee’s suppliers and used on any Licensed Products. Subject to the Purchase Options, Licensee and Licensor agree and intend that all created works of authorship including, but not limited to, such works comprising or included in Licensed Products, advertising, packaging, and merchandising materials, created by Licensee or other persons or entities and used with the Licensed ▇▇▇▇(s), are Works Made For Hire within the meaning of the United States Copyright Act of 1976 shall be the property of Licensor who shall be entitled, subject to the licenses granted to Licensee under this Agreement, to use and license others to use such works of authorship. To the extent such works of authorship are not Works Made For Hire as defined by the United States Copyright Act of 1976, Licensee shall assign to Licensor copyright in such works of authorship.