Effect of Expiration or Termination. (a) Upon expiration or termination of this Agreement, Licensee shall cease manufacturing (including promptly notifying and using its best efforts to cause all authorized subcontractors to cease manufacturing) Licensed Products and to destroy any excess materials, including without limitation, hangtags and labels, bearing any Licensed Trademarks. If a Licensed Product is in the process of being made at the time of such notice, it may be completed and shipped as ordered by Licensee pursuant to this Agreement. So long as Licensee is not in default under any of the terms and conditions hereof at the time of expiration or termination of this Agreement, during the Sell-Off Period (as defined below), Licensee shall continue to comply with the terms and conditions of this Agreement, specifically including without limitation the payment of Royalties and the submission of royalty reports with regard to the sale of such products. Specifically, Licensee shall deliver to Callaway Golf a written report in the form furnished to Licensee by Callaway Golf, certified as complete and correct by an authorized representative of Licensee, setting forth the following: (i) within fifteen (15) days following expiration or termination, a report of all open purchase orders received prior to such expiration or termination, specifying the details of such purchase orders and the anticipated shipping dates for such orders; (ii) within sixty (60) days following expiration or termination, a report of all inventory expected to exceed amounts needed to fulfill open purchase orders; and (iii) within one hundred twenty (120) days following expiration or termination, a final report of the status of all inventory, manufacturing and shipping activities, as well as all open purchase orders, their outstanding balances, and the anticipated shipping schedule for all outstanding balances. (b) So long as Licensee is not in default under any of the terms and conditions hereof at the time of expiration or termination of this Agreement, Licensee shall use its commercially reasonable efforts to sell any remaining Licensed Product inventory. For purposes of this Agreement, the “Sell-Off Period” shall mean a period, which shall equal three (3) months in duration after the expiration or termination of this Agreement, during which Licensee is permitted to sell its inventory of Licensed Products as provided herein. Notwithstanding anything to the contrary contained herein, Licensee shall cease all sales and delivery of the Licensed Products after expiration of the Sell-Off Period, except to Callaway Golf as set forth below.
Appears in 2 contracts
Sources: License Agreement, License Agreement (Sport Haley Inc)
Effect of Expiration or Termination. (a) Upon A. Except to the extent provided in Section 13.B hereof, upon the expiration or termination of this Agreement for any reason, neither Licensee nor its receivers, representatives, agents, successors or assigns shall have any right to exploit or in any way use the Licensed ▇▇▇▇. Except to the extent provided in Section 13.B hereof, upon such expiration or termination of this Agreement, Licensee shall cease manufacturing (including promptly notifying and using its best efforts to cause forthwith discontinue all authorized subcontractors to cease manufacturing) Licensed Products and to destroy any excess materials, including without limitation, hangtags and labels, bearing any Licensed Trademarks. If a Licensed Product is in the process of being made at the time of such notice, it may be completed and shipped as ordered by Licensee pursuant to this Agreement. So long as Licensee is not in default under any use of the terms Licensed ▇▇▇▇ and conditions hereof at shall not thereafter use the time of expiration Licensed ▇▇▇▇ or termination of this Agreementany variation or simulation thereof, during the Sell-Off Period (as defined below), and Licensee shall continue to comply with the terms hereby irrevocably releases and conditions of this Agreement, specifically including without limitation the payment of Royalties and the submission of royalty reports with regard disclaims any right or interest in or to the sale of such productsLicensed ▇▇▇▇. Specifically, Licensee shall deliver to Callaway Golf a written report in the form furnished to Licensee by Callaway Golf, certified as complete and correct by an authorized representative of Licensee, setting forth the following:
Within thirty (i) within fifteen (1530) days following expiration or termination, a report of all open purchase orders received prior to such expiration or termination, specifying the details of such purchase orders and the anticipated shipping dates for such orders;
(ii) within sixty (60) days following expiration or termination, a report of all inventory expected to exceed amounts needed to fulfill open purchase orders; and
(iii) within one hundred twenty (120) days following expiration or termination, a final report of the status of all inventory, manufacturing and shipping activities, as well as all open purchase orders, their outstanding balances, and the anticipated shipping schedule for all outstanding balances.
(b) So long as Licensee is not in default under any of the terms and conditions hereof at the time of expiration or termination of this Agreement, Licensee shall use its commercially reasonable efforts provide Licensor with an accurate schedule of all work in process and finished inventory of Licensed Merchandise to sell any remaining which the Licensed Product inventory. For purposes of this Agreement, the “Sell-Off Period” shall mean a period▇▇▇▇ is affixed, which shall equal three is on hand as of the close of business on the date of such expiration or termination (3) months in duration after hereinafter the "Inventory").
B. If, upon the expiration or termination of this Agreement, during which Licensee shall have on hand any Inventory of the Licensed Merchandise and if Licensee is permitted not otherwise in default under this Agreement, Licensee may continue to sell its inventory use the Licensed ▇▇▇▇ solely in connection with the advertising, merchandising, promotion and sale of the Inventory of Licensed Products as provided hereinMerchandise for a period of up to nine (9) months following the expiration or termination of this Agreement. Notwithstanding anything to the contrary contained hereinDuring such nine (9) month period, Licensee shall cease all sales be obligated to continue to pay Licensor the Royalties, if any, provided for in Section 6.A. If Licensee elects to continue to use the Licensed ▇▇▇▇ as provided under this paragraph, it shall notify Licensor of its election at least ninety (90) days prior to the expiration or termination of this Agreement. Such notice shall include a complete and delivery accurate schedule of Inventory of Licensed Merchandise which is projected to be on hand as of the Licensed Products after close of business on the date of such expiration or termination and shall reflect Licensee's actual cost of each such item as set forth or reflected on the balance sheet contained in Licensee's latest quarterly report on Form 10-Q or annual report on Form 10- K.
C. Upon the expiration or termination of this Agreement or, if applicable, upon the expiration of the Sell-Off Periodperiod provided for in Section 13.B hereof, except Licensee shall, at its own expense, remove all uses of or references to Callaway Golf as set forth belowthe Licensed ▇▇▇▇ from all Inventory or destroy such Inventory, Packaging, advertising and promotional materials bearing the Licensed ▇▇▇▇ or prepared for use in connection with the Licensed Merchandise.
Appears in 2 contracts
Sources: License Agreement (Coleman Co Inc), License Agreement (Coleman Worldwide Corp)
Effect of Expiration or Termination. (a) Upon expiration Expiration or termination of this Agreement, Licensee shall cease manufacturing (including promptly notifying and using Agreement in its best efforts to cause all authorized subcontractors to cease manufacturing) Licensed Products and to destroy any excess materials, including without limitation, hangtags and labels, bearing any Licensed Trademarks. If a Licensed Product is in the process of being made at the time of such notice, it may be completed and shipped as ordered by Licensee entirety pursuant to this AgreementArticle 4 shall not (i) relieve a Party hereto of any obligation accruing to such Party prior to such termination, or (ii) result in the waiver of any right or remedy by a Party hereto accruing to such Party prior to such termination. So long as Licensee is not in default under any of the terms and conditions hereof at the time of expiration or Upon termination of this AgreementAgreement in its entirety, during the Sell-Off Period all licenses granted to Inspire by InSite under this Agreement will terminate, and all rights therein will revert to InSite. Inspire promptly shall cease, and cause its Affiliates and sublicensees (as defined below)subject to Section 4.4) promptly to cease, Licensee shall continue to comply with the terms any use of any InSite Trademarks and conditions of this Agreement, specifically including without limitation the payment of Royalties and the submission of royalty reports with regard to the sale of such products. Specifically, Licensee shall deliver to Callaway Golf a written report Domain Names in the form furnished to Licensee by Callaway Golf, certified as complete and correct by an authorized representative of Licensee, setting forth the following:
(i) within fifteen (15) days following expiration or termination, a report of all open purchase orders received prior to such expiration or termination, specifying the details of such purchase orders and the anticipated shipping dates for such orders;
(ii) within sixty (60) days following expiration or termination, a report of all inventory expected to exceed amounts needed to fulfill open purchase orders; and
(iii) within one hundred twenty (120) days following expiration or termination, a final report of the status of all inventory, manufacturing and shipping activities, as well as all open purchase orders, their outstanding balances, and the anticipated shipping schedule for all outstanding balancesTerritory.
(b) So long as Licensee is Termination of this Agreement with respect to a particular country pursuant to this Article 4 shall not (i) relieve a Party hereto of any obligation accruing to such Party prior to such termination, (ii) result in default the waiver of any right or remedy by a Party hereto accruing to such Party prior to such termination, or (iii) result in the termination or modification of any rights or obligations of a Party under any of the terms and conditions hereof at the time of expiration or Agreement not involved in such termination. Upon termination of this Agreement, Licensee shall use its commercially reasonable efforts Agreement with respect to sell any remaining Licensed Product inventory. For purposes of this Agreementa particular country, the “Sell-Off Period” licenses granted to Inspire by InSite under this Agreement solely with respect to such country will terminate, and all such rights will revert to InSite. Inspire promptly shall mean a periodcease, which shall equal three and cause its Affiliates and sublicensees (3subject to Section 4.4) months promptly to cease, any use of any InSite Trademarks in duration after the expiration or termination of this Agreement, during which Licensee is permitted to sell its inventory of Licensed Products as provided herein. such country.
(c) Notwithstanding anything to the contrary contained hereinin this Agreement, Licensee the licenses granted to Inspire by InSite under this Agreement shall cease all sales and delivery continue during any period in which Inspire continues to have the right to sell Inspire Licensed Products under Sections 10.6(c) or 10.7(c) of the Licensed Products after expiration License Agreement solely in connection with Inspire’s exercise of the Sell-Off Period, except to Callaway Golf its rights as set forth belowin the License Agreement during such period.
Appears in 2 contracts
Sources: Trademark License Agreement (Inspire Pharmaceuticals Inc), Trademark License Agreement (Insite Vision Inc)
Effect of Expiration or Termination. (a) 14.1 It is understood and agreed that except for the License to use the Trademark only as specifically provided for in this Agreement, Licensee shall have no right, title, or interest in or to the Trademark. Upon and after the expiration or earlier termination of this Agreement, all rights granted to Licensee shall cease manufacturing (including promptly notifying and using its best efforts to cause all authorized subcontractors to cease manufacturing) Licensed Products hereunder, together with any interest in and to destroy the Trademark which Licensee may acquire, shall forthwith and without further act or instrument be assigned to and revert to Licensor. In addition, Licensee will execute any excess materialsinstruments requested by Licensor which are necessary to accomplish or confirm the foregoing. Any such assignment, including transfer, or conveyance shall be without limitation, hangtags and labels, bearing any Licensed Trademarksconsideration other than the mutual agreements contained herein. If a Licensed Product is in the process of being made at the time of such notice, it may be completed and shipped as ordered by Licensee pursuant to this Agreement. So long as Licensee is not in default under any will refrain from further use of the terms and conditions hereof at Trademark or any further reference to the time Trademark, direct or indirect, or any other trademark, trade name, or logo that is confusingly similar to the Trademark. It is expressly understood that under no circumstances shall Licensee be entitled, directly or indirectly, to any form of compensation or indemnity from Licensor or its Affiliates, as a consequence of the expiration or earlier termination of this Agreement, during other than as a result of a material breach of this Agreement by Licensor, whether as a result of the Sell-Off Period (passage of time, or as defined below)the result of any other cause of termination referred to in this Agreement. Without limiting the generality of the foregoing, by its execution of the present Agreement, Licensee shall continue hereby waives any claim which it has or which it may have in the future against Licensor, Century 21 or any of their” Affiliates, arising from any alleged goodwill created by Licensee for the benefit of any or all of the said parties or from the alleged creation or increase of a market for Licensed Services, or products sold or installed in connection therewith.
14.2 Licensee acknowledges and admits that there would be no adequate remedy at law for its failure to comply cease using the Trademark in connection with the terms marketing, sale or furnishing of Licensed Services or the sale or installation of any products in connection therewith at the expiration or earlier termination of the License, and conditions Licensee agrees that in the event of this Agreementsuch failure, specifically including without limitation Licensor shall be entitled to equitable relief by the payment way of Royalties temporary, preliminary, and permanent injunction and such other and further relief as any court with jurisdiction may deem just and proper.
14.3 Licensee agrees that it shall remain liable for any and all obligations under the submission terminated or expired Agreement arising out of royalty reports with regard the operation of Licensee’s business prior to the sale of such products. Specifically, Licensee shall deliver to Callaway Golf a written report in the form furnished to Licensee by Callaway Golf, certified as complete and correct by an authorized representative of Licensee, setting forth the following:
(i) within fifteen (15) days following expiration or termination, a report of all open purchase orders received prior to such expiration or termination, specifying the details of such purchase orders and the anticipated shipping dates for such orders;
(ii) within sixty (60) days following expiration or termination, a report of all inventory expected to exceed amounts needed to fulfill open purchase orders; and
(iii) within one hundred twenty (120) days following expiration or termination, a final report of the status of all inventory, manufacturing and shipping activities, as well as all open purchase orders, their outstanding balances, and the anticipated shipping schedule for all outstanding balances.
(b) So long as Licensee is not in default under any of the terms and conditions hereof at the time of expiration or earlier termination of this Agreement, Licensee shall use its commercially reasonable efforts to sell any remaining Licensed Product inventory. For purposes of this Agreement, the “Sell-Off Period” shall mean a period, which shall equal three (3) months in duration after the expiration or termination of this Agreement, during which Licensee is permitted to sell its inventory of Licensed Products as provided herein. Notwithstanding anything to the contrary contained herein, Licensee shall cease all sales and delivery of the Licensed Products after expiration of the Sell-Off Period, except to Callaway Golf as set forth below.
Appears in 2 contracts
Sources: License Agreement, License Agreement (Us Home Systems Inc)
Effect of Expiration or Termination. (a) Upon In the event this Agreement expires, or is terminated, all rights, licenses and privileges granted under this Agreement shall immediately cease and Licensee shall immediately cease all use of the Property, making and selling no additional Licensed Trademark Products and Licensed Technology Products using the Property, except for the disposition of finished Licensed Trademark Products and Licensed Technology Products on hand as of the date of expiration or termination. If, however, the reason for termination or non-renewal relates to the quality of this AgreementLicensed Trademark Products or to a health hazard or potential health hazard resulting from the sale of Licensed Trademark Products, Licensee shall cease manufacturing (including promptly notifying and using not sell, offer for sale or otherwise offer for human consumption the finished Licensed Trademark Products on hand as of the date of expiration or of receipt of notice of termination, but shall either destroy such finished Licensed Trademark Products or shall turn them over to Licensor or its best efforts Designee for destruction. Licensee shall not thereafter adopt or use any trademark or other material which is similar to cause all authorized subcontractors to cease manufacturing) Licensed Products and to destroy any excess materials, including without limitation, hangtags and labels, bearing any Licensed Trademarks. If a Licensed Product is in the process of being made at the time of such notice, it may be completed and shipped as ordered by Licensee pursuant to this Agreement. So long as Licensee is not in default under or otherwise infringes any of the terms Licensed Trademarks or other Property. Licensee acknowledges that its failure (except as otherwise specifically provided herein) to cease the manufacture, sale or distribution of Licensed Trademark Products and conditions hereof at Licensed Technology Products or to cease utilizing the time of expiration or termination of Property covered by this Agreement, during the Sell-Off Period (as defined below), Licensee shall continue to comply with the terms and conditions of this Agreement, specifically including without limitation the payment of Royalties and the submission of royalty reports with regard to the sale of such products. Specifically, Licensee shall deliver to Callaway Golf a written report in the form furnished to Licensee by Callaway Golf, certified as complete and correct by an authorized representative of Licensee, setting forth the following:
(i) within fifteen (15) days following expiration or termination, a report of all open purchase orders received prior to such expiration or termination, specifying the details of such purchase orders and the anticipated shipping dates for such orders;
(ii) within sixty (60) days following expiration or termination, a report of all inventory expected to exceed amounts needed to fulfill open purchase orders; and
(iii) within one hundred twenty (120) days following expiration or termination, a final report of the status of all inventory, manufacturing and shipping activities, as well as all open purchase orders, their outstanding balances, and the anticipated shipping schedule for all outstanding balances.
(b) So long as Licensee is not in default under any of the terms and conditions hereof at the time of expiration or termination of this Agreement, Licensee shall use its commercially reasonable efforts to sell any remaining Licensed Product inventory. For purposes of this Agreement, the “Sell-Off Period” shall mean a period, which shall equal three (3) months in duration after Agreement on the expiration or termination of this Agreement, during which Licensee is permitted Agreement will result in immediate and irreparable harm to sell its inventory of Licensed Products as provided herein. Notwithstanding anything Licensor and to the contrary contained hereinrights of any subsequent Licensee. Licensee acknowledges and admits that there is no adequate remedy at law for such failure to cease manufacture, sale or distribution, and Licensee agrees that in the event of such failure, Licensor shall cease all sales be entitled to equitable relief by way of temporary and delivery of the Licensed Products after expiration of the Sell-Off Period, except to Callaway Golf permanent injunctions and such other and further relief as set forth belowany arbitration panel or court with jurisdiction may deem just and proper.
Appears in 1 contract
Sources: Master License Agreement (Corn Products International Inc)
Effect of Expiration or Termination. (a) 14.1 It is understood and agreed that except for the License to use the Trademark only as specifically provided for in this Agreement, Licensee shall have no right, title, or interest in or to the Trademark. Upon and after the expiration or earlier termination of this Agreement, all rights granted to Licensee shall cease manufacturing (including promptly notifying and using its best efforts to cause all authorized subcontractors to cease manufacturing) Licensed Products hereunder, together with any interest in and to destroy the Trademark which Licensee may acquire, shall forthwith and without further act or instrument be assigned to and revert to Licensor. In addition, Licensee will execute any excess materialsinstruments requested by Licensor which are necessary to accomplish or confirm the foregoing. Any such assignment, including transfer, or conveyance shall be without limitation, hangtags and labels, bearing any Licensed Trademarksconsideration other than the mutual agreements contained herein. If a Licensed Product is in the process of being made at the time of such notice, it may be completed and shipped as ordered by Licensee pursuant to this Agreement. So long as Licensee is not in default under any will refrain from further use of the terms and conditions hereof at Trademark or any further reference to the time Trademark, direct or indirect, or any other trademark, trade name, or logo that is confusingly similar to the Trademark. It is expressly understood that under no circumstances shall Licensee be entitled, directly or indirectly, to any form of compensation or indemnity from Licensor or its Affiliates, as a consequence of the expiration or earlier termination of this Agreement, during other than as a result of a material breach of this Agreement by Licensor, whether as a result of the Sell-Off Period (passage of time, or as defined below)the result of any other cause of termination referred to in this Agreement. Without limiting the generality of the foregoing, by its execution of the present Agreement, Licensee shall continue hereby waives any claim which it has or which it may have in the future against Licensor, Century 21 or any of their Affiliates, arising from any alleged goodwill created by Licensee for the benefit of any or all of the said parties or from the alleged creation or increase of a market for Licensed Services, or products sold or installed in connection therewith.
14.2 Licensee acknowledges and admits that there would be no adequate remedy at law for its failure to comply cease using the Trademark in connection with the terms marketing, sale or furnishing of Licensed Services or the sale or installation of any products in connection therewith at the expiration or earlier termination of the License, and conditions Licensee agrees that in the event of this Agreementsuch failure, specifically including without limitation Licensor shall be entitled to equitable relief by the payment way of Royalties temporary, preliminary, and permanent injunction and such other and further relief as any court with jurisdiction may deem just and proper.
14.3 Licensee agrees that it shall remain liable for any and all obligations under the submission terminated or expired Agreement arising out of royalty reports with regard the operation of Licensee's business prior to the sale of such products. Specifically, Licensee shall deliver to Callaway Golf a written report in the form furnished to Licensee by Callaway Golf, certified as complete and correct by an authorized representative of Licensee, setting forth the following:
(i) within fifteen (15) days following expiration or termination, a report of all open purchase orders received prior to such expiration or termination, specifying the details of such purchase orders and the anticipated shipping dates for such orders;
(ii) within sixty (60) days following expiration or termination, a report of all inventory expected to exceed amounts needed to fulfill open purchase orders; and
(iii) within one hundred twenty (120) days following expiration or termination, a final report of the status of all inventory, manufacturing and shipping activities, as well as all open purchase orders, their outstanding balances, and the anticipated shipping schedule for all outstanding balances.
(b) So long as Licensee is not in default under any of the terms and conditions hereof at the time of expiration or earlier termination of this Agreement, Licensee shall use its commercially reasonable efforts to sell any remaining Licensed Product inventory. For purposes of this Agreement, the “Sell-Off Period” shall mean a period, which shall equal three (3) months in duration after the expiration or termination of this Agreement, during which Licensee is permitted to sell its inventory of Licensed Products as provided herein. Notwithstanding anything to the contrary contained herein, Licensee shall cease all sales and delivery of the Licensed Products after expiration of the Sell-Off Period, except to Callaway Golf as set forth below.
Appears in 1 contract
Effect of Expiration or Termination. (a12 A. Except to the extent provided in Section 12(B) Upon hereof, upon the expiration or termination of this Agreement for any reason, neither Licensee nor its receivers, representatives, agents, successors or permitted assigns shall have any right to exploit or in any way use the Licensed ▇▇▇▇. Except to the extent provided in Section 12(B) hereof, upon such expiration or termination of this Agreement, Licensee shall cease manufacturing (including promptly notifying and using its best efforts to cause forthwith discontinue all authorized subcontractors to cease manufacturing) Licensed Products and to destroy any excess materials, including without limitation, hangtags and labels, bearing any Licensed Trademarks. If a Licensed Product is in the process of being made at the time of such notice, it may be completed and shipped as ordered by Licensee pursuant to this Agreement. So long as Licensee is not in default under any use of the terms Licensed ▇▇▇▇ and conditions hereof at shall not thereafter use the time of expiration Licensed ▇▇▇▇ or termination of this Agreementany variation or simulation thereof, during the Sell-Off Period (as defined below)or any ▇▇▇▇ confusingly similar thereto, and Licensee shall continue to comply with the terms hereby irrevocably releases and conditions of this Agreement, specifically including without limitation the payment of Royalties and the submission of royalty reports with regard disclaims any right or interest in or to the sale of such productsLicensed ▇▇▇▇. Specifically, Licensee shall deliver to Callaway Golf a written report in the form furnished to Licensee by Callaway Golf, certified as complete and correct by an authorized representative of Licensee, setting forth the following:
Within (i) within fifteen (1530) days following expiration or termination, a report of all open purchase orders received prior to such expiration or termination, specifying the details of such purchase orders and the anticipated shipping dates for such orders;
(ii) within sixty (60) days following expiration or termination, a report of all inventory expected to exceed amounts needed to fulfill open purchase orders; and
(iii) within one hundred twenty (120) days following expiration or termination, a final report of the status of all inventory, manufacturing and shipping activities, as well as all open purchase orders, their outstanding balances, and the anticipated shipping schedule for all outstanding balances.
(b) So long as Licensee is not in default under any of the terms and conditions hereof at the time of expiration or termination of this Agreement, Licensee shall use provide Licensor with an Inventory Schedule pursuant to Section 6 (G).
12 B. If, upon the expiration of this Agreement or its commercially reasonable efforts termination prior to sell expiration, other than by Licensor pursuant to ▇▇▇▇▇▇▇ ▇▇ (▇), ▇▇ (▇), ▇▇ (▇), ▇▇ (▇) or 11 (E), Licensee shall have on hand any remaining Licensed Product inventory. For purposes of Inventory and if Licensee is not otherwise in default under this Agreement, Licensee may continue to use the “Licensed ▇▇▇▇ solely in connection with the advertising, merchandising, promotion and sale of the Inventory for a period of six (6) months following the expiration or termination of this Agreement (the "Sell-Off Period” ") under a nonexclusive license. During such Sell-Off Period, Licensee shall mean a periodbe obligated to continue to pay Licensor the Percentage Royalties provided for in Section 6(A) and, which anything herein to the contrary notwithstanding, all advertising, merchandising, promotion and sale of the Inventory during the Sell-Off Period shall equal three continue to be subject to, and performed in accordance with, the terms of this Agreement (3including, without limitation, Article 4 hereof). If Licensee elects to continue to use the Licensed ▇▇▇▇ as provided under this Section, it shall notify Licensor of its election thirty (30) months in duration after days prior to the expiration or termination of this Agreement. IN NO EVENT SHALL LICENSEE ACCEPT, during which Licensee is permitted to sell its inventory AFTER THE TERMINATION OR EXPIRATION OF THIS AGREEMENT, ANY ORDER FOR NEW PRODUCTION OF LICENSED MERCHANDISE TO BE MANUFACTURED AFTER THE CLOSE OF THE SELL-OFF PERIOD NOR ANY OTHER ORDER WHATSOEVER THAT SHALL REQUIRE DELIVERY AFTER THE CLOSE OF THE SELL-OFF PERIOD. Licensee's Sales of Licensed Products Merchandise during the Sell-Off Period must not exceed the reported Inventory.
12 C. Notwithstanding the foregoing, or Licensee's desire to use the Licensed ▇▇▇▇ as provided herein. Notwithstanding anything in Section 12(B) above, Licensor shall have the option, exercisable by written notice to Licensee within thirty (30) days after its receipt from Licensee of the complete Inventory Schedule as provided in Section 12(A), to purchase any or all of the Inventory not subject to outstanding bona fide purchase orders, for an amount (the "Inventory Price") equal to the contrary contained hereinstandard cost of manufacturing to Licensee of the Inventory being purchased or its fair market value, whichever is lower. (In the event that the parties cannot agree upon the fair market value of any Inventory, Licensor shall be entitled to purchase same at the fair market value claimed by Licensor, subject to the agreement of Licensor that such dispute as to fair market value shall subsequently be submitted to arbitration pursuant to Section 17(B) and the agreement of the parties that the costs of the prevailing party in such arbitration shall be borne by the other party). In the event that Licensor notifies Licensee of its desire to purchase the Inventory on hand, such notice shall apply only to that portion of the Inventory remaining on the date said notice is received by Licensee. Upon such day within thirty (30) days of its receipt of such notice as Licensor shall designate to Licensee in writing, Licensee shall cease deliver to Licensor or its designee all sales and delivery of the Licensed Products after Inventory referred to therein against payment by Licensor of the full Inventory Price in cash. Licensor shall pay Licensee only for such Inventory as is deemed by Licensor, in its reasonable discretion, to be in marketable condition.
12 D. Upon the expiration or termination of this Agreement or upon the expiration of the Sell-Off Period provided for in Section 12(B) hereof, Licensee shall, at its own expense, destroy all labels, packaging, advertising and promotional materials bearing the Licensed ▇▇▇▇ and confirm such destruction to Licensor in writing.
12 E. Notwithstanding any termination or expiration of this Agreement, Licensor shall have, and hereby reserves, all the rights and remedies which it has, or which are granted to it by operation of law, with respect to the collection of royalties or other funds payable by Licensee pursuant to this Agreement and the enforcement of all rights relating to the establishment, maintenance or protection of the Licensed ▇▇▇▇. In addition, upon termination or expiration of this Agreement, both Licensee and Licensor shall continue to have rights and remedies hereunder, or granted to each of them by operation of law, with respect to damages for breach of this Agreement on the part of the other.
12 F. Licensor may, during the Sell-Off Period, except manufacture, advertise, promote, sell and distribute Merchandise directly or through others, and grant licenses to Callaway Golf as set forth belowthird parties with respect to the Merchandise and the Licensed ▇▇▇▇.
12 G. One hundred and twenty (120) days prior to the expiration of the Initial Term or of any Renewal Term, if Licensee chooses not to renew this Agreement or does not qualify under Section 3(A) to do so, Licensor shall have the right to manufacture, advertise, promote, sell and distribute Licensed Merchandise in the Territory directly or through others and to grant licenses in connection therewith to third parties, provided such Licensed Merchandise shall not be shipped prior to the expiration of the Term of this Agreement.
12 H. Upon the expiration or termination of this Agreement in accordance herewith, Licensee shall not be entitled to termination payments, compensation, reimbursements, or damages on account of any loss of prospective profits on anticipated sales or on account of expenditures, including for advertising, promotion or for manufacturing facilities, investments, leases, or other commitments relating to the business or goodwill of Licensee.
Appears in 1 contract
Sources: License Agreement (Danskin Inc)
Effect of Expiration or Termination. (a) Upon a. EXCEPT FOR THE LIMITED PURPOSES INDICATED BELOW, upon expiration or termination of this Agreement, Licensee all rights and licenses granted to LICENSEE hereunder shall immediately expire, shall forthwith revert to LICENSOR, and LICENSEE shall immediately cease manufacturing (including promptly notifying and desist from using its best efforts the Trademarks and any technical information supplied by LICENSOR to cause all authorized subcontractors LICENSEE hereunder. To this end, LICENSEE will be deemed to cease manufacturing) Licensed Products and have automatically assigned to destroy any excess materialsLICENSOR, including without limitationPURSUANT TO THE EXPRESS PROVISIONS OF THIS AGREEMENT, hangtags and labels, bearing any Licensed Trademarks. If a Licensed Product is in the process of being made at the time of such notice, it may be completed and shipped as ordered by Licensee pursuant to this Agreement. So long as Licensee is not in default under any of the terms and conditions hereof at the time of expiration or termination of this Agreement, during the Sell-Off Period (as defined below), Licensee shall continue to comply with the terms and conditions of this Agreement, specifically including without limitation the payment of Royalties and the submission of royalty reports with regard to the sale of such products. Specifically, Licensee shall deliver to Callaway Golf a written report in the form furnished to Licensee by Callaway Golf, certified as complete and correct by an authorized representative of Licensee, setting forth the following:
(i) within fifteen (15) days following expiration or termination, a report of all open purchase orders received prior to upon such expiration or termination, specifying the details of such purchase orders and the anticipated shipping dates for such orders;
(ii) within sixty (60) days following expiration or terminationTrademarks, a report of all inventory expected to exceed amounts needed to fulfill open purchase orders; and
(iii) within one hundred twenty (120) days following expiration or terminationequities, a final report of the status of all inventorygood will, manufacturing and shipping activities, as well as all open purchase orders, their outstanding balancestitles, and other rights in or to the anticipated shipping schedule for all outstanding balances.
(b) So long as Licensee is not in default under any of the terms and conditions hereof at the time of expiration or termination of this Agreement, Licensee shall use its commercially reasonable efforts to sell any remaining Licensed Product inventoryand all adaptations, compilations, modifications, translations and versions thereof, and all other trademarks used in connection therewith (NOT INCLUDING ANY OF LICENSEE'S TRADEMARKS AND LOGOS) which have been or may be obtained by LICENSEE or which may vest in LICENSEE and which have not already been assigned to LICENSOR BUT NOT INCLUDING ANY GENERIC OR STANDARD STYLES, LABELS, TAGS, DESIGNS, GRAPHICS, AND THE LIKE. For purposes of this AgreementLICENSOR may thereafter, in its sole discretion enter into such arrangements as it deems desirable, with any other party, for the “Sell-Off Period” shall mean a periodmanufacture, which shall equal three (3) months in duration after the expiration or termination of this Agreement, during which Licensee is permitted to sell its inventory of Licensed Products as provided herein. Notwithstanding anything to the contrary contained herein, Licensee shall cease all sales promotion and delivery sale of the Licensed Products after expiration Product in the Territory.
b. Any Licensed Product, finished or in progress, shall be disposed of as follows: * * Text omitted pursuant to a request for confidential treatment and filed separately with the Sell-Off Period, except Securities and Exchange Commission. * * Text omitted pursuant to Callaway Golf as set forth below.a request for confidential treatment and filed separately with the Securities and Exchange Commission. BHPC.12 * * Text omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission. BHPC.12 *
Appears in 1 contract
Effect of Expiration or Termination. (a) Upon the expiration or termination of this Agreement for any reason whatsoever, all rights of Licensee under this Agreement shall terminate and automatically revert to Licensor, except as otherwise provided herein. Upon expiration or termination, Licensee shall immediately discontinue all use of the Property and shall no longer have any right to use the Property or any variation or simulation thereof in any manner or for any purpose whatsoever, except as provided in Section 12(d). Licensee shall transfer to Licensor by such documentation as Licensor may require all registrations, filings, trademarks, copyrights and other rights with regard to the Property which Licensee may have possessed at any time. Subject to the provisions of Section 12(e) concerning the sale of Termination Inventory (as defined below), Licensee shall deliver to Licensor, at Licensee’s expense, all sketches, samples, designs or other matters belonging to Licensor and relating to Licensed Products, and all Licensed Products, packaging materials and advertising and promotional materials bearing reference to the Property in any form.
(b) Upon termination or expiration of this Agreement for any reason, including termination under Section 11(b), no trustee in bankruptcy, assignee for the benefit of creditors, custodian, receiver, sheriff or court officer or other successors to Licensee or its assets or business shall have any right to continue this Agreement or to use or exploit the Property in any manner whatsoever.
(c) Notwithstanding the provisions of Section 11(b), in the event that under the United States Bankruptcy Code or any amendment or successor thereto (collectively the “Bankruptcy Code”), the trustee in bankruptcy of Licensee, as bankruptcy debtor, is permitted to and does assume this Agreement and thereafter proposes to assign this Agreement by an assignment which fulfills the applicable requirements of the Bankruptcy Code, the trustee or Licensee shall notify Licensor of the proposed assignment in advance, in writing, setting forth the name and address of the proposed assignee, the proposed consideration for the assignment and all other material terms and conditions of the proposed assignment. Such notice shall be considered an offer to Licensor to have this Agreement assigned to Licensor or its designee for the consideration (or its reasonable equivalent in money) and under the other material terms in the notice. Licensor may exercise the option and accept the offer by giving the trustee or Licensee, as appropriate, written notice of exercise and acceptance within twenty (20) days after Licensor receives the notice from the trustee or Licensee. If Licensor fails to give notice and exercise the option within such twenty (20) day period, the trustee or Licensee may complete the proposed assignment, but only to the party and for the consideration and under the terms described in the notice.
(d) Within twenty (20) days after the expiration or termination of this Agreement, Licensee shall cease manufacturing (including promptly notifying prepare and using its best efforts deliver to cause all authorized subcontractors to cease manufacturing) Licensor a written statement of Licensed Products and inventory on hand bearing reference to destroy the Property or Licensor’s name in any excess materialsform (the “Termination Inventory”), including without limitationa complete and accurate schedule as of the date of expiration or termination of all completed Licensed Products on hand that bear reference to the Property or Licensor’s name in any form; all work in process that bears reference to the Property or Licensor’s name in any form relating to Licensed Products on hand, hangtags including uncut piece goods and labels, bearing any Licensed Trademarks. If a Licensed Product is products and materials in the process of being made at manufacture; all Packaging, advertising and promotional materials and other documents or items that bear reference to the time Property or Licensor’s name in any form in Licensee’s possession or control or in the process of manufacture for Licensee and the cost of each item included in such noticeTermination Inventory. Provided that this Agreement has not been terminated by Licensor as a result of (i) Licensee’s failure to make payments as agreed, it may be completed and shipped as ordered or (ii) failure of the Licensed Products to comply with governmental requirements, or (iii) a violation of any other provision of this Agreement by Licensee, or (iv) any action or omission by Licensee pursuant which could result in jeopardy to this Agreement. So long as Licensor’s rights in the Property by the continued sale of Licensed Products, Licensee is not in default under any shall be free to sell the Termination Inventory to Licensor or to third parties for a period of the terms and conditions hereof at the time of one hundred eighty (180) days after expiration or termination of this Agreement, during . Any items in the Sell-Off Period (as defined below), Licensee shall continue to comply with the terms and conditions of this Agreement, specifically including without limitation the payment of Royalties and the submission of royalty reports with regard Termination Inventory bearing reference to the sale Property or Licensor’s name in any form that have not been sold and remain after the selling period provided for in this Section shall have all uses of such products. Specificallythe Property removed by Licensee, Licensee including but not limited to, all tags and labels bearing any reference to the Property, from the Licensed Products and shall thereafter deliver to Callaway Golf a written report in Licensor, dispose of or destroy the form furnished to Licensee by Callaway Golf, certified as complete and correct by an authorized representative of Licensee, setting forth the following:
(i) within fifteen (15) days following expiration or termination, a report of all open purchase orders received prior to such expiration or termination, specifying the details of such purchase orders and the anticipated shipping dates for such orders;
(ii) within sixty (60) days following expiration or termination, a report of all inventory expected to exceed amounts needed to fulfill open purchase orders; and
(iii) within one hundred twenty (120) days following expiration or termination, a final report remainder of the status of all inventory, manufacturing and shipping activities, as well as all open purchase orders, their outstanding balances, and the anticipated shipping schedule for all outstanding balancespackaging materials in accordance with Licensor’s instructions.
(be) So long as Licensee is not in default under any of the terms and conditions hereof at the time of expiration or termination of this Agreement, Licensee shall use its commercially reasonable efforts to sell any remaining Licensed Product inventory. For purposes of this Agreement, the “Sell-Off Period” shall mean a period, which shall equal three (3) months in duration after Immediately upon the expiration or termination of this AgreementAgreement for any reason, during which Licensee is permitted Licensor shall have the free and unrestricted right to sell its inventory grant other parties one or more licenses to use the Property in connection with the manufacture, sale, distribution or advertising and promotion of Licensed Products in the Territory or to enter into such other transactions as provided herein. Notwithstanding anything to it desires for the contrary contained herein, Licensee shall cease all sales and delivery use of the Property with Licensed Products after expiration or in any other manner, without any obligation of the Sellany kind to Licensee. The right of Licensee to sell items of Termination Inventory under Section 12 (d) is non-Off Periodexclusive only and shall not in any manner limit Licensor’s right to enter into other licenses or transactions.
(f) Notwithstanding any termination of this Agreement, except Licensor hereby reserves all rights and remedies which are granted or available to Callaway Golf as set forth belowit under this Agreement or applicable law, and termination shall not be deemed to be an exclusive remedy or to limit Licensor in any manner from enforcing any other rights or remedies.
Appears in 1 contract
Effect of Expiration or Termination. If the License expires or is terminated due to an Event of Default described in subsections 10.1, 10.4, 10.6, 10.7 or 10.9, Licensee will be given an opportunity for a period of six (a6) Upon expiration or months after any termination of this Agreement, Licensee shall cease manufacturing Agreement (the "Sell Off Period") to dispose of any then existing inventories (including promptly notifying work in progress and using its best efforts to cause all authorized subcontractors to cease manufacturingbinding purchase orders) of Licensed Products and to destroy any excess materials, including without limitation, hangtags and labels, bearing any Licensed the Trademarks. If a Licensed Product is in Such sales shall be made subject to the process of being made at the time of such notice, it may be completed and shipped as ordered by Licensee pursuant to this Agreement. So long as Licensee is not in default under any of the terms and conditions hereof at the time of expiration or termination provisions of this Agreement, during the Sell-Off Period (as defined below), Licensee shall continue ; and to comply with the terms an accounting for and conditions of this Agreement, specifically including without limitation the payment of Royalties and the submission Royalty thereon pursuant to Section 5 herein. During the Sell Off Period, the License shall be nonexclusive. With the exception of royalty reports with regard to the sale of such products. Specificallythis Sell Off Period, Licensee no rights whatsoever shall deliver to Callaway Golf a written report in the form furnished extend to Licensee by Callaway Golf, certified as complete and correct by an authorized representative of Licensee, setting forth the following:
(i) within fifteen (15) days following expiration or termination, a report of all open purchase orders received prior to such expiration or termination, specifying the details of such purchase orders and the anticipated shipping dates for such orders;
(ii) within sixty (60) days following expiration or termination, a report of all inventory expected to exceed amounts needed to fulfill open purchase orders; and
(iii) within one hundred twenty (120) days following expiration or termination, a final report of the status of all inventory, manufacturing and shipping activities, as well as all open purchase orders, their outstanding balances, and the anticipated shipping schedule for all outstanding balances.
(b) So long as Licensee is not in default under any of the terms and conditions hereof at the time of expiration or termination of this Agreement, Licensee shall use its commercially reasonable efforts to sell any remaining Licensed Product inventory. For purposes of this Agreement, the “Sell-Off Period” shall mean a period, which shall equal three (3) months in duration after beyond the expiration or termination of this Agreement, during which and Licensee is permitted shall not be entitled to sell its inventory any compensatory payment based on the expiration or other termination of Licensed Products this Agreement. All Royalties, and any other payments outlined in this Agreement, shall be immediately due and payable.
11.1 Upon termination of this Agreement for any reason, or upon expiration of the Sell Off Period as provided herein. Notwithstanding anything to the contrary contained hereincase may be, Licensee shall within thirty (30) days:
11.1.1 cease and desist and thereafter refrain from advertising, shipping, manufacturing and selling Licensed Products bearing the Trademarks; and
11.1.2 deliver to Licensor, all sales unused labels, tags, pamphlets, folders, brochures, and delivery other printed promotional and advertising materials displaying the Trademarks which are in Licensee's possession, or under its control.
11.2 Upon termination of this Agreement for any reason or upon expiration of the Sell Off Period as the case may be, Licensee shall destroy any molds bearing the Trademarks that are in its possession, and shall use its best efforts to cause any third person that manufactures the Licensed Products after for Licensee to destroy all such molds in its possession.
11.3 Licensee hereby appoints Licensor as Licensee's attorney-in-fact or agent to execute and record with any governmental authority all documents necessary or desirable, to evidence the termination of any of Licensee's rights hereunder as "registered user," or otherwise.
11.4 Upon termination or expiration of this Agreement, with the Sell-exception of the Sell Off Period, except Licensee shall have no further right to Callaway Golf exercise the License hereunder or otherwise acquired in relation to this Agreement. Licensee agrees that its failure to stop in all respects the use of the Trademarks upon the termination or expiration of this Agreement will result in immediate irreparable damage to Licensor for which there is no adequate remedy at law, and in the event of such failure by Licensee, Licensor shall be entitled to injunctive relief. Licensor shall be entitled to recover from Licensee, in addition to any other remedies in the event of default, reasonable attorney's fees, costs and expenses, including collection agency fees incurred by Licensor in the enforcement of the provisions hereof. Licensor's exercise of any of the foregoing remedies shall not operate as set forth belowa waiver of any other rights or remedies which Licensor may have.
Appears in 1 contract
Sources: Trademark License Agreement (Signature Eyewear Inc)
Effect of Expiration or Termination. Survival.
(a) Upon Expiration or termination of this Agreement shall not relieve the Parties of any obligation accruing prior to such expiration or termination, including all accrued payment obligations arising under Article 5 hereof. In addition to any other provisions of this Agreement which by their terms continue after the expiration of this Agreement, the provisions of Articles 4, 6, 7, 8, 9 and 10 shall survive the expiration or termination of this Agreement and shall continue in effect after the date of expiration or termination for the longer of (i) five (5) years or (ii) the respective periods specified therein. Any expiration or early termination of this Agreement shall be without prejudice to the rights of any Party against the other accrued or accruing under this Agreement prior to termination. Except as expressly set forth herein, the rights to terminate as set forth herein shall be in addition to all other rights and remedies available under this Agreement, Licensee at law, or in equity, or otherwise.
(b) Payments of amounts owing to Avalon under this Agreement as of its expiration or termination shall cease manufacturing be due and payable either (including promptly notifying i) to the extent such amounts can be calculated and using its best efforts to cause all authorized subcontractors to cease manufacturing) Licensed Products and to destroy any excess materials, including without limitation, hangtags and labels, bearing any Licensed Trademarks. If a Licensed Product is in the process of being made at the time of such notice, it may be completed and shipped as ordered by Licensee pursuant to this Agreement. So long as Licensee is not in default under any of the terms and conditions hereof fixed sum determined at the time of expiration or termination of this Agreement, during the Sell-Off Period thirty (as defined below), Licensee shall continue to comply with the terms and conditions of this Agreement, specifically including without limitation the payment of Royalties and the submission of royalty reports with regard to the sale of such products. Specifically, Licensee shall deliver to Callaway Golf a written report in the form furnished to Licensee by Callaway Golf, certified as complete and correct by an authorized representative of Licensee, setting forth the following:
(i) within fifteen (1530) days following expiration or termination, a report after the date of all open purchase orders received prior to such expiration or termination, specifying the details of such purchase orders and the anticipated shipping dates for such orders;
or (ii) within sixty (60) days following expiration or termination, to the extent such amounts cannot be calculated and a report of all inventory expected to exceed amounts needed to fulfill open purchase orders; and
(iii) within one hundred twenty (120) days following expiration or termination, a final report of the status of all inventory, manufacturing and shipping activities, as well as all open purchase orders, their outstanding balances, and the anticipated shipping schedule for all outstanding balances.
(b) So long as Licensee is not in default under any of the terms and conditions hereof fixed sum determined at the time of expiration or termination of this Agreement, Licensee thirty (30) days after the date at which such amounts can be calculated and a fixed sum is mutually determined.
(c) Subject to the payment of all amounts required hereunder, Athenex and its Affiliates shall use its commercially reasonable efforts have the right to sell or otherwise dispose of the stock of any remaining Licensed Product inventory. For purposes Service subject to this Agreement on hand or in process of this Agreement, the “Sell-Off Period” shall mean a period, which shall equal three (3) months in duration after manufacture as of the expiration or termination of this Agreement. Within thirty (30) days after the effective date of termination or expiration of this Agreement, during which Licensee is permitted Athenex shall notify Avalon of the amount of each Licensed Service Athenex and its Affiliates then have on hand or in the process of manufacture and shall have the right to sell in the Territory (except with respect to any country in the Territory in which any Licensed Service has been withdrawn or there is no Regulatory Approval), its inventory remaining stock of Licensed Products Service until all of it is sold; provided, however, the terms and conditions of this Agreement shall apply to such Licensed Service so sold. Avalon hereby grants a non-exclusive license to Athenex as provided hereinnecessary to sell such Licensed Service in the Territory, subject to payment of all related amounts due under this Agreement. Notwithstanding anything Any remaining quantities of Licensed Service not sold, at Athenex’s election, may be (i) destroyed by Athenex at Athenex’s cost, (ii) sold to Avalon at Athenex’s procurement cost for such Licensed Service, or (iii) sold to customers in the contrary contained herein, Licensee shall cease all sales and delivery of Territory.
(d) Upon the Licensed Products after termination or expiration of this Agreement, the Sell-Off Periodfollowing shall also be applicable: (i) at Avalon’s request, except Athenex shall promptly transfer and return to Callaway Golf as set forth belowAvalon copies of all Data, reports, records and materials in Athenex’s possession or control that relate to all Goods or Licensed Services and return to Avalon all relevant records and materials in Athenex’s possession or control containing Proprietary Information of Avalon (provided that Athenex may keep one copy of such Proprietary Information of Avalon for archival purposes only); (ii) Athenex shall transfer to Avalon ownership of any INDs, Regulatory Approvals, Drug Approval Applications and any other regulatory filings or submissions made or filed for any Licensed Service by Athenex or its designees; (iii) Avalon shall promptly return to Athenex all relevant records and materials in Avalon’s possession or control containing Proprietary Information of Athenex (provided that, Avalon may keep one copy of such Proprietary Information of Athenex for archival purposes only); and (iv) all sublicenses between Athenex and Third Parties shall survive the termination or expiration of this Agreement and shall be assigned by Athenex to Avalon.
Appears in 1 contract
Effect of Expiration or Termination. 19.1 Within thirty (a30) Upon days of the date of expiration or termination the effective date of this Agreementtermination, Licensee shall cease manufacturing (including promptly notifying and using its best efforts provide Sega with an itemized statement, certified to cause all authorized subcontractors to cease manufacturing) Licensed Products and to destroy any excess materialsbe accurate by an officer of Licensee, including without limitation, hangtags and labels, bearing any Licensed Trademarks. If a Licensed Product is in specifying the process number of being made at the time of such notice, it may be completed and shipped as ordered by Licensee pursuant to this Agreement. So long as Licensee is not in default under any unsold units of the terms and conditions hereof Licensed Products, on a title-by-title basis, which remain in its inventory and/or under its control at the time of expiration or termination the effective date of termination. Sega shall be entitled to conduct a physical inspection of Licensee's inventory and work in process during normal business hours in order to ascertain or verify such inventory and/or statement.
19.2 If this AgreementAgreement is terminated by Sega as a result of any breach or default by Licensee, during the Sell-Off Period (as defined below)license and related rights herein granted to Licensee shall immediately revert to Sega, and Licensee shall cease and desist from any further use of the Licensed Patents and the Licensed Technology, and, Licensee shall have no further right to continue the development, manufacture, marketing, sale, and/or distribution by or for Licensee of any units of the Licensed Products, nor to continue to comply with use the terms and conditions Licensed Trademarks, unless the written consent of Sega shall first have been obtained.
19.3 In the event of the expiration of this Agreement, specifically including without limitation the payment Agreement or its termination other than as a result of Royalties and the submission of royalty reports with regard to the sale of such products. Specificallyany breach or default by Licensee, Licensee shall deliver be entitled for a period of not more than one hundred and eighty (180) days following such expiration or termination to Callaway Golf sell any unsold units of the Licensed Products which remain in its inventory and/or under its control as of the expiration or the effective date of termination. Licensee expressly agrees that it shall not dispose of any remaining units of the Licensed Products unless and until it has given Sega a written report in complete and correctly itemized statement of all such unsold Licensed Products.
(a) Within ten (10) working days after the form furnished to end of such one hundred and eighty (180) day period, Licensee by Callaway Golfshall provide Sega with a second itemized statement, certified as complete and correct to be accurate by an authorized representative officer of Licensee, setting forth the following:
(i) within fifteen (15) days following expiration or termination, a report of all open purchase orders received prior to such expiration or termination, specifying the details quantity of such purchase orders and the anticipated shipping dates for such orders;
(ii) within sixty (60) days following expiration or termination, a report of all inventory expected to exceed amounts needed to fulfill open purchase orders; and
(iii) within one hundred twenty (120) days following expiration or termination, a final report unsold units of the status of all Licensed Products, on a title-by-title basis, which remain in Licensee's inventory, manufacturing and shipping activities, as well as all open purchase orders, their outstanding balances, and the anticipated shipping schedule for all outstanding balances.
(b) So long Sega shall have an option, exercisable for a period of ten (10) working days after receipt of Licensee's statement pursuant to Subsection 19.3(a), immediately above, to notify Licensee that it desires to purchase from Licensee any or all of such remaining inventory of unsold Licensed Products.
(c) Any and all units of the Licensed Products which Sega does not elect to purchase pursuant to the immediately preceding paragraph, shall be destroyed by Licensee within five (5) working days of the expiration of Sega's option period specified in Subsection 19.3(b), above. Within five (5) working days after such destruction, Licensee shall provide Sega with an itemized statement, certified to be accurate by an officer of Licensee, indicating the number of units of the Licensed Products which have been destroyed (on a title-by-title basis), the location and date of such destruction, and the disposition of the remains of such destroyed materials.
19.4 Licensee acknowledges and agrees that its failure to comply with the provisions of this Section 19 upon the expiration or earlier termination of this Agreement would result in immediate, irreparable and irremediable damage to Sega. Licensee acknowledges that there is no adequate remedy at law for any failure to cease to use the Licensed Patents, Licensed Trademarks, or the Licensed Technology, or to cease the marketing, sale, distribution, and/or any other exploitation of the Licensed Products, and Licensee agrees that in the event of such failure, Sega shall be entitled, in addition to any other remedies available to it at law or in equity, to the issuance without bond of ex parte injunctive relief enjoining any breach or threatened breach of Licensee's obligations hereunder, and such other and further relief as any court of competent jurisdiction may deem just and proper.
19.5 Licensee is acknowledges and agrees that Sega shall be under no obligation to renew or extend this Agreement notwithstanding any actions taken by either of the parties prior to the expiration of this Agreement. Upon the expiration of this Agreement neither party shall be liable to the other for any damages (whether direct, consequential, or incidental, and including, without limitation, any expenditures, loss of profits, or prospective profits) sustained or arising out of or alleged to have been sustained or to have arisen out of such expiration. However, the expiration of this Agreement shall not in default under excuse either party from its previous breach of any of the terms and conditions hereof at provisions of this Agreement or from any obligations surviving the time of expiration or termination of this Agreement, Licensee shall use its commercially reasonable efforts to sell any remaining Licensed Product inventory. For purposes of this Agreement, the “Sell-Off Period” shall mean a period, which shall equal three (3) months in duration after the expiration or termination of this Agreement, during which Licensee is permitted to sell its inventory of Licensed Products as provided herein. Notwithstanding anything to the contrary contained herein, Licensee shall cease all sales and delivery of the Licensed Products after expiration of the Sell-Off Period, except to Callaway Golf as set forth below.full legal
Appears in 1 contract
Sources: Licensing Agreement (THQ Inc)
Effect of Expiration or Termination. (a) 14.1 It is understood and agreed that except for the License to use the Trademark only as specifically provided for in this Agreement, Licensee shall have no right, title, or interest in or to the Trademark. Upon and after the expiration or earlier termination of this Agreement, all rights granted to Licensee shall cease manufacturing (including promptly notifying and using its best efforts to cause all authorized subcontractors to cease manufacturing) Licensed Products hereunder, together with any interest in and to destroy the Trademark which Licensee may acquire, shall forthwith and without further act or instrument be assigned to and revert to Licensor. In addition, Licensee will execute any excess materialsinstruments requested by Licensor which are reasonably necessary to accomplish or confirm the foregoing. Any such assignment, including transfer, or conveyance shall be without limitation, hangtags and labels, bearing any Licensed Trademarksconsideration other than the mutual agreements contained herein. If a Licensed Product is in the process of being made at the time of such notice, it may be completed and shipped as ordered by Licensee pursuant to this Agreement. So long as Licensee is not in default under any will refrain from further use of the terms and conditions hereof at Trademark or any further reference to the time Trademark, direct or indirect, or any other trademark, trade name, or logo that is confusingly similar to the Trademark. It is expressly understood that under no circumstances shall Licensee be entitled, directly or indirectly, to any form of compensation or indemnity from Licensor or its Affiliates, as a consequence of the expiration or earlier termination of this Agreement, during whether as a result of the Sell-Off Period (passage of time, or as defined below)the result of any other cause of termination referred to in this Agreement. Without limiting the generality of the foregoing, by its execution of the present Agreement, Licensee hereby waives any claim which it has or which it may have in the future against Licensor, Century 21 or any of their Affiliates, arising from any alleged goodwill created by Licensee for the benefit of any or all of the said parties or from the alleged creation or increase of a market for Licensed Services, or products sold or installed in connection therewith.
14.2 Licensee acknowledges and admits that there would be no adequate remedy at law for its failure to cease using the Trademark in connection with the marketing, sale or furnishing of Licensed Services or the sale or installation of any products in connection therewith at the expiration or earlier termination of the License, and Licensee agrees that in the event of such failure, Licensor shall be entitled to equitable relief by the way of temporary, preliminary, and permanent injunction and such other and further relief as any court with Jurisdiction may deem just and proper.
14.3 Licensee agrees that it shall continue to comply with assume any and all obligations under the terms and conditions terminated or expired Agreement arising out of this Agreement, specifically including without limitation the payment of Royalties and the submission of royalty reports with regard operation thereunder prior to the sale of such products. Specifically, Licensee shall deliver to Callaway Golf a written report in the form furnished to Licensee by Callaway Golf, certified as complete and correct by an authorized representative of Licensee, setting forth the following:
(i) within fifteen (15) days following expiration or termination, a report of all open purchase orders received prior to earlier termination thereof which continues after such expiration or termination, specifying the details of such purchase orders and the anticipated shipping dates for such orders;
(ii) within sixty (60) days following expiration or termination, a report of all inventory expected to exceed amounts needed to fulfill open purchase orders; and
(iii) within one hundred twenty (120) days following expiration or termination, a final report of the status of all inventory, manufacturing and shipping activities, as well as all open purchase orders, their outstanding balances, and the anticipated shipping schedule for all outstanding balancestermination date.
(b) So long as Licensee is not in default under any of the terms and conditions hereof at the time of expiration or termination of this Agreement, Licensee shall use its commercially reasonable efforts to sell any remaining Licensed Product inventory. For purposes of this Agreement, the “Sell-Off Period” shall mean a period, which shall equal three (3) months in duration after the expiration or termination of this Agreement, during which Licensee is permitted to sell its inventory of Licensed Products as provided herein. Notwithstanding anything to the contrary contained herein, Licensee shall cease all sales and delivery of the Licensed Products after expiration of the Sell-Off Period, except to Callaway Golf as set forth below.
Appears in 1 contract
Effect of Expiration or Termination. 13.01. The termination of this Agreement, for any reason, shall be without prejudice to any other right or remedy Licensor may have -- including without limitation, all rights and remedies which it has, or which are granted to it by operation of law, to enjoin the unlawful or unauthorized use of Company's Tradename and the Licensed Marks, to collect monies payable by Licensee hereunder and to be compensated for damages for breach of this Agreement -- and such rights and remedies are hereby expressly reserved. Licensee acknowledges that Licensor has no adequate remedy hereunder or at law for Licensee's use of the Licensed Marks and Company's Tradename in violation of this Agreement and Licensor shall be entitled to injunctive relief or other equitable remedies therefor. Without limiting the generality of the foregoing, any amounts expended by Licensor or Licensee in connection with this Agreement are expended with the knowledge that this Agreement may be terminated in accordance with its terms.
(a) Upon If either party serves upon the other pursuant to an express provision of this Agreement a notice (the "TERMINATION NOTICE") that it desires to terminate this Agreement or that it desires that the Term shall not be extended, Licensor's obligation to submit designs pursuant to paragraph 4.02 shall immediately terminate and, within twenty (20) days after the date of the Termination Notice, Licensee shall deliver to Licensor the following: (i) a complete list of Licensee's then-current accounts for Licensed Articles and, for each account, Net Sales for the last-completed Contract Year, indicating regular price and off-price sales; (ii) a list of each style, indicating total Net Sales dollars and units for the last-completed Contract Year, as well as Licensee's published list price and suggested retail price, if any; (iii) a list of the "top 20" selling styles for the last-completed Contract Year, and two (2) samples of each. All information shall be stated separately with respect to each of the Licensed Marks and each Product Category.
(b) Contemporaneously with the delivery of the information requested in paragraph 13.02(a), Licensee shall also deliver a complete and accurate schedule of Licensee's inventory of Licensed Articles and, to the extent available, related work in process and materials then on hand, in the possession of Contractors and in transit including non-cancelable orders identifiable to Licensed Articles and/or bearing the Licensed Marks (hereinafter referred to as "INVENTORY"). The Inventory schedule shall be prepared as of the close of business on the date of such Termination Notice. Except as Licensor may otherwise agree, all cancelable orders for the production of Licensed Articles and/or related materials used to produce Licensed Articles shall promptly be canceled.
(i) If the date of termination stated in the Termination Notice is not the expiration date contemplated in paragraph 3.01 above, Licensee's rights to manufacture Licensed Articles hereunder shall terminate as of the date of the Termination Notice and, except as Licensor may otherwise expressly agree in writing, all cancelable orders for the production of Licensed Articles and/or related materials used to produce Licensed Articles shall promptly be canceled and no new production shall be started.
(ii) If the date of termination stated in the Termination Notice is the expiration date contemplated in paragraph 3.01 above, Licensee's rights to manufacture Licensed Articles hereunder shall terminate as of the expiration date. To facilitate the orderly disposition of Licensee's Inventory of Licensed Articles, during the final three (3) months of the Term, Licensee's Inventory of Licensed Articles shall not exceed its Inventory on-hand during the immediately-preceding three (3) months and Licensee shall manufacture and take delivery of only such additional quantity of Licensed Articles as are reasonably necessary to enable Licensee to fill orders from its customers on-hand at the commencement of said three-month period or reasonably expected, based upon Licensee's prior experience.
(d) Neither Licensor nor Licensee shall make any announcement concerning the expiration or termination of this AgreementAgreement except as the parties shall mutually agree and except as otherwise required by law.
13.03. Notwithstanding the expiration or other termination of the Term, Licensee shall cease manufacturing (including promptly notifying and using its best efforts not be released from any obligation that accrued prior to cause all authorized subcontractors to cease manufacturing) Licensed Products and to destroy any excess materials, including without limitation, hangtags and labels, bearing any Licensed Trademarks. If a Licensed Product is in the process of being made at the time of such notice, it may be completed and shipped as ordered by Licensee pursuant to this Agreement. So long as Licensee is not in default under any of the terms and conditions hereof at the time date of expiration or termination and Licensee shall remain bound by the provisions of this AgreementAgreement which by their terms impose upon Licensee obligations extending beyond the date of expiration or other termination.
(a) Except as otherwise specifically provided in this section 13, during on the Sell-Off Period expiration or termination of the Term, all of the rights of Licensee under this Agreement to use the Licensed Marks and Company's Tradename as provided herein shall immediately terminate and shall revert automatically to Licensor; all Sales Royalties on sales theretofore made shall become immediately due and payable; and Licensee shall discontinue forthwith all use of Company's Tradename and the Licensed Marks, shall no longer have the right to use Company's Tradename and the Licensed Marks or any variation or simulation thereof and shall, promptly upon Licensor's written request, free of charge, execute any and all documents Licensor may deem necessary or desirable to the effect that Licensee no longer has the right to manufacture, advertise, promote and sell Licensed Articles hereunder or to use the Licensed Marks (and if Licensee fails to do so promptly, Licensor shall have the right to sign such documents as defined belowit deems reasonably necessary on Licensee's behalf). In addition, Licensee shall thereupon destroy, or, if requested by Licensor, shall deliver to Licensor all samples in its possession and all Packaging Materials, advertisements, advertising materials of all kinds and other material in its possession with Company's Tradename and the Licensed Marks thereon. In addition, an updated Inventory schedule, including the direct cost of each item as shown on Licensee's books, shall be prepared as of the close of business on the date of such expiration or termination.
(b) If Licensee does not have the right to continue to comply with sell its Inventory pursuant to paragraph 13.05 below or if Licensee advises Licensor that it does not intend to attempt to sell off its Inventory, Licensor thereupon shall have the terms and conditions option, exercisable by notice in writing delivered to Licensee within thirty (30) days after its receipt of this Agreementthe complete updated Inventory schedule in written form, specifically including without limitation to purchase any or all of the payment of Royalties and the submission of royalty reports with regard Inventory for an amount equal to the sale cost of the Inventory being purchased or its fair market value, whichever is lower. In the event such products. Specificallypurchase option is exercised by Licensor, Licensee shall deliver to Callaway Golf a written report in Licensor or its designee all of the form furnished Inventory referred to Licensee by Callaway Golf, certified as complete and correct by an authorized representative of Licensee, setting forth the following:
(i) therein within fifteen (15) days following after Licensor's said notice of exercise of its option. Licensor shall pay Licensee for such Inventory as is in marketable, first quality condition within thirty (30) days after its receipt thereof. Licensee's rights with respect to disposal of the Inventory shall not be altered in the event Licensor does not exercise its purchase option hereunder.
(a) If the Term expires or is terminated by Licensor other than for any breach arising from material misuse of Company's Tradename and the Licensed Marks or any failure to make any payment when due hereunder (whether or not subsequently paid) or pursuant to paragraph 3.04(a) and 3.04(b) above, Licensee (but no other person, including for this purpose any person having a security interest in the Inventory) shall be entitled, for an additional period of four (4) months only on a non-exclusive basis to sell and dispose of its remaining Inventory of Licensed Articles on hand at the expiration or terminationother termination of the Term from, a report but only from, the final seasonal collection sold hereunder. All sales pursuant to this paragraph shall be made subject to all of all open purchase orders received prior the provisions of this Agreement and to such expiration or termination, specifying the details of such purchase orders an accounting for and the anticipated shipping dates for such orders;
payment of Sales Royalty thereon. Such accounting and payment shall be due in accordance with sections 9 and 10 above, except that accounting and payment shall be made monthly within thirty (ii) within sixty (6030) days following expiration or terminationafter the last business day of each calendar month in the sell-off period, and a report of all inventory expected to exceed amounts needed to fulfill open purchase orders; and
final accounting and payment shall be due within thirty (iii) within one hundred twenty (12030) days following expiration or termination, a final report after the close of the status of all inventory, manufacturing and shipping activities, as well as all open purchase orders, their outstanding balances, and the anticipated shipping schedule for all outstanding balancessaid four (4) month period.
(b) So long as If, during the sell-off period, Licensee is not in default under wishes to sell any of its Inventory other than in Normal Retail Channels, or if Licensee wishes to sell all or substantially all of the terms Inventory to a single purchaser or group of related purchasers, Licensor shall, in such event, have a right of first refusal with respect to any such sale at a price equal to the price to be paid to Licensee by the proposed purchaser, which right shall be exercisable only by notice in writing delivered to Licensee within ten (10) business days after Licensor receives written notice from Licensee setting forth the cost of the Inventory covered by the proposed sale and conditions hereof all of the pertinent details thereof, including, without limitation, the name of the proposed purchaser and the proposed purchase price. If Licensor does not exercise its rights to purchase hereunder, Licensee may proceed with the proposed sale with the purchaser and at the time price offered to Licensor. All sales other than in Normal Retail Channels shall be deemed sales of expiration Discontinued Goods for all purposes hereunder. However, if the proposed sale is to a single purchaser or termination group of this Agreementrelated purchasers, in lieu of any other royalty otherwise payable hereunder, Licensee shall use pay to Licensor, within fifteen (15) business days after its commercially reasonable efforts receipt thereof, an amount equal to sell fifty percent (50%) of the amount by which the purchase price for the Inventory exceeds Licensee's cost for such Inventory as reflected on the Inventory schedule submitted by Licensee pursuant to paragraph 13.04.
(a) No receiver, liquidator, assignee, trustee or custodian appointed to administer the affairs of Licensee, sheriff or any remaining Licensed Product inventory. For purposes other officer of the court or official charged with taking custody of Licensee's assets or business shall have the right to continue the performance of this Agreementagreement on behalf of Licensee or to exploit or use Company's Tradename and/or the Licensed Marks in any way.
(b) Notwithstanding the provisions of paragraph 13.06(a) above, if the Bankruptcy Code or any amendment, supplement or successor thereto (the "CODE") permits a trustee in bankruptcy of Licensee (or Licensee, as Debtor-in-Possession) to assume this Agreement and either does so and, thereafter, desires to assign this Agreement to a third person in compliance with the requirements of the Code, the “Sell-Off Period” trustee or Licensee as the case may be, shall mean a notify Licensor of same in writing. Said notice shall set forth the name and address of the proposed assignee, the proposed consideration for the assignment and all other relevant details thereof. The giving of such notice shall be deemed to constitute the grant to Licensor of an option to have this Agreement assigned to it or to its designee for such consideration, or its equivalent in money, and upon such terms as are specified in the notice. Said option may be exercised only by written notice given to the trustee or Licensee, as the case may be, by Licensor within fifteen (15) days after Licensor's receipt of the aforesaid notice from such party, or within such shorter period as may be deemed appropriate by the court in the bankruptcy proceeding. If Licensor fails to exercise its said option within the aforestated exercise period, which shall equal three (3) months the trustee or Licensee, as the case may be, may complete the assignment referred to in duration after the expiration or termination of this Agreementits notice, during which Licensee but only if such assignment is permitted to sell its inventory of Licensed Products as provided herein. Notwithstanding anything to the contrary entity named in said notice and for consideration and upon the terms specified therein. Nothing contained herein, Licensee herein shall cease all sales and delivery of the Licensed Products after expiration of the Sell-Off Period, except be deemed to Callaway Golf preclude or impair any rights which Licensor may have as set forth belowa creditor in any such bankruptcy proceeding.
Appears in 1 contract
Effect of Expiration or Termination. (a) Upon expiration or 13.01. The termination of this Agreement, Licensee for any reason, shall cease manufacturing (including promptly notifying and using its best efforts be without prejudice to cause all authorized subcontractors to cease manufacturing) Licensed Products and to destroy any excess materialsother right or remedy Licensor may have including, including without limitation, hangtags all rights and labelsremedies which it has, bearing any or which are granted to it by operation of law, to enjoin (both on a preliminary and permanent basis) the unlawful or unauthorized use of the Licensed Trademarks. If a Licensed Product is in the process of being made at the time of such noticeMarks, it may be completed and shipped as ordered to collect royalties payable by Licensee pursuant hereunder and to this Agreement. So long as Licensee is not in default under any of the terms and conditions hereof at the time of expiration or termination be compensated for damages for breach of this Agreement, during and such rights and remedies are hereby expressly reserved. Notwithstanding the Sell-Off Period (as defined below)foregoing, any amounts expended by Licensor or Licensee are expended with the knowledge that this Agreement may be terminated in accordance with its terms. Accordingly, Licensee shall continue waives any claim against, liability of or compensation from Licensor with respect to comply with the terms its investment in, and conditions of this Agreement, specifically including without limitation the payment of Royalties and the submission of royalty reports with regard to the sale of such products. Specifically, Licensee shall deliver to Callaway Golf a written report other amounts expended in the form furnished to Licensee by Callaway Golf, certified as complete and correct by an authorized representative of Licensee, setting forth the following:
(i) within fifteen (15) days following expiration or termination, a report of all open purchase orders received prior to such expiration or termination, specifying the details of such purchase orders and the anticipated shipping dates for such orders;
(ii) within sixty (60) days following expiration or termination, a report of all inventory expected to exceed amounts needed to fulfill open purchase orders; and
(iii) within one hundred twenty (120) days following expiration or termination, a final report respect of the status of all inventory, manufacturing and shipping activities, as well as all open purchase orders, their outstanding balances, and the anticipated shipping schedule for all outstanding balances.
(b) So long as Licensee is not in default under any anticipation of the terms and conditions hereof at the time continuation of, this Agreement or as a result of expiration or termination of this Agreement, Licensee shall use its commercially reasonable efforts to sell any remaining Licensed Product inventory. For purposes of this Agreement, the “Sell-Off Period” shall mean a period, which shall equal three (3) months in duration after the expiration or termination of this Agreement in accordance with its terms.
(a) If either party serves upon the other pursuant to an express provision of this Agreement, during a notice that it desires to terminate this Agreement or that it desires that the Term shall not be extended, Licensee’s obligation to submit Creative, Formulae (to the extent that Licensee may have rights to such Formulae), prototypes and product concepts pursuant to Section 4.02 shall continue until such termination or expiration as to any designs in process and Licensee shall promptly deliver same to Licensor.
(b) Except as otherwise specifically provided in this Section 13 and Section 20, on the expiration or termination of the Term, all of the rights of Licensee under this Agreement shall immediately terminate and shall revert automatically to Licensor; all Sales Royalties on sales theretofore made shall become due and payable in accordance with the terms provided herein; and Licensee shall discontinue forthwith all use of the Licensed Marks, shall no longer have the right to use the Licensed Marks or any variation or simulation thereof for any purpose and shall, promptly upon Licensor's request, free of charge, execute any and all documents Licensor may deem necessary or desirable to the effect that Licensee no longer has the right to manufacture, advertise, promote and sell Licensed Products hereunder or to use the Licensed Marks (and if Licensee fails to do so promptly, Licensor shall have the right to sign such documents on Licensee's behalf). In addition, Licensee shall thereupon destroy or, if requested by Licensor, shall deliver to Licensor all samples in its possession and all point-of-sale material (such as vials, bags, displays and counters), advertisements, advertising materials of all kinds and other material in its possession with the Licensed Marks thereon, to be paid by Licensor at Licensee’s actual cost.
13.03. Notwithstanding the expiration or other termination of the Term, neither Licensor nor Licensee shall be released from any obligation that accrued prior to the date of expiration or termination and each of Licensor and Licensee shall remain bound by the provisions of this Agreement which by their terms impose upon Licensor or Licensee obligations extending beyond the date of expiration or other termination.
13.04. Licensee shall, within [-----------] 81 from the last day of the month in which Licensee is permitted receives a notice of termination or expiration of the Term from Licensor, and monthly thereafter until [-----------] 82 after the termination or expiration of the Term, deliver to sell its Licensor a complete and accurate schedule of Licensee's inventory of Licensed Products as provided herein. Notwithstanding anything to Products, work-in-process, and/or related components in the contrary contained hereinpossession of, or in transit to, Licensee and its Affiliates (the “Wind-down Inventory”), and shall cease all sales and delivery also use commercially reasonable efforts to obtain a schedule of Wind-down Inventory from its Distributors or Contractors, prepared as of the Licensed Products after expiration last business day of the Sellmonth in which Licensee receives such notice and as of the last business day of each of the next [------------] 83 thereafter (the “Wind-Off Period, except to Callaway Golf as set forth belowdown Inventory Schedule”).
Appears in 1 contract
Sources: Manufacturing and License Agreement (Inter Parfums Inc)
Effect of Expiration or Termination. (a) Upon a. EXCEPT FOR THE LIMITED PURPOSES INDICATED BELOW, upon expiration or termination of this Agreement, Licensee all rights and licenses granted to LICENSEE hereunder shall immediately expire, shall forthwith revert to LICENSOR, and LICENSEE shall immediately cease manufacturing (including promptly notifying and desist from using its best efforts the Trademarks and any technical information supplied by LICENSOR to cause all authorized subcontractors LICENSEE hereunder. To this end, LICENSEE will be deemed to cease manufacturing) Licensed Products and have automatically assigned to destroy any excess materialsLICENSOR, including without limitationPURSUANT TO THE EXPRESS PROVISIONS OF THIS AGREEMENT, hangtags and labels, bearing any Licensed Trademarks. If a Licensed Product is in the process of being made at the time of such notice, it may be completed and shipped as ordered by Licensee pursuant to this Agreement. So long as Licensee is not in default under any of the terms and conditions hereof at the time of expiration or termination of this Agreement, during the Sell-Off Period (as defined below), Licensee shall continue to comply with the terms and conditions of this Agreement, specifically including without limitation the payment of Royalties and the submission of royalty reports with regard to the sale of such products. Specifically, Licensee shall deliver to Callaway Golf a written report in the form furnished to Licensee by Callaway Golf, certified as complete and correct by an authorized representative of Licensee, setting forth the following:
(i) within fifteen (15) days following expiration or termination, a report of all open purchase orders received prior to upon such expiration or termination, specifying the details Trademarks, equities, good will, titles, and other rights in or to the Licensed Product and all adaptations, compilations, modifications, translations and versions thereof, and all other trademarks used in connection therewith (NOT INCLUDING ANY OF LICENSEE'S TRADEMARKS AND LOGOS) which have been or may be obtained by LICENSEE or which may vest in LICENSEE and which have not already been assigned to LICENSOR BUT NOT INCLUDING ANY GENERIC OR STANDARD STYLES, LABELS, TAGS, DESIGNS, GRAPHICS, AND THE LIKE. LICENSOR may thereafter, in its sole discretion enter into such arrangements as it deems desirable, with any other party, for the manufacture, promotion and sale of such purchase orders and the anticipated shipping dates for such orders;Licensed Product in the Territory.
b. Any Licensed Product, finished or in progress, shall be disposed of as follows:
(iiA) within sixty (60) days following UPON EXPIRATION OF THIS AGREEMENT OR TERMINATION FOR BREACH BY LICENSOR; any finished Licensed Product in LICENSEE's possession OR IN PROGRESS unsold OR SOLD BUT NOT DELIVERED on the date of the expiration or terminationof this Agreement may, subject to payment of the Royalty payable to LICENSOR, be sold by LICENSEE, pursuant to a report plan to be approved by LICENSOR, OR TO THE CUSTOMERS TO WHOM LICENSEE IS COMMITTED OR HAVE BOUGHT SAID PRODUCT; for a period of all inventory expected to exceed amounts needed to fulfill open purchase orders; and
(iii) within one hundred twenty (120) days following after expiration or termination, a final report hereof. Any Royalty paid by LICENSEE to LICENSOR during the aforementioned one hundred twenty (120) day period is separate and apart from the Royalty generated during the term of the status Agreement and such Royalty is not to be applied to the Guaranteed Annual Royalty Payments as outlined in Subparagraph 10b. and column (C) of item 7 of the attached License Agreement Detail Schedule. All inventory remaining after such one hundred twenty (120) day period shall be destroyed or stripped of all inventoryimprints, manufacturing lettering, mentions or other reproductions of or references to the Trademarks and shipping activitiesrelated logos; and all molds, as well as all open purchase orderspatterns, their outstanding balancestransfers, and other property bearing the anticipated shipping schedule for Trademarks of relating thereto shall be destroyed; all outstanding balances.
(b) So long as Licensee is not in default under any the supervision of LICENSOR, AT LICENSOR'S COST IF ANY TRAVEL INVOLVED. EXCEPT FOR GOODS ALREADY COMMITTED OR SOLD TO LICENSEE'S CUSTOMERS, LICENSOR shall have the terms and conditions hereof first right to purchase said Licensed Product at the time direct cost price (comprised of material and direct labor expenses as set forth in LICENSEE's books and records, plus five percent (5%) for overhead) upon expiration or termination of this Agreement, Licensee shall use its commercially reasonable efforts to sell any remaining .
(B) Any finished Licensed Product inventory. For purposes in LICENSEE's possession unsold on the date of termination of this AgreementAgreement (OTHER THAN FOR BREACH BY LICENSOR), and all molds, patterns, transfers and other property bearing the “Sell-Off Period” Trademarks or relating thereto shall mean a period, which shall equal three be destroyed OR DEFACED TO REMOVE THE TRADEMARKS by LICENSEE within thirty (330) months in duration after days following the expiration or termination of this Agreement; further, during which Licensee is permitted LICENSEE agrees, on or before the LAST DAY OF THE ONE HUNDRED DAY (120) PERIOD, to sell its inventory provide LICENSOR with a certificate signed by LICENSEE's Chief Executive Officer certifying under penalty of Licensed Products as provided hereinperjury that such UNSOLD inventory, molds, patterns, transfers, and other property have been destroyed OR DEFACED SO AS TO INCLUDE THE TRADEMARKS AND LOGO OF LICENSOR. Notwithstanding anything to the contrary contained hereinSOLD PRODUCT MAY BE DELIVERED TO THE CUSTOMERS. LICENSEE shall, Licensee shall cease all sales and delivery of the Licensed Products after expiration of the Sell-Off Period, except to Callaway Golf as set forth below.within SIXTY (60) BHPC.12
Appears in 1 contract
Effect of Expiration or Termination. (a) Upon the expiration or termination of this Agreement for any reason whatsoever, all rights of Licensee under this Agreement shall terminate and automatically revert to Licensor, except as otherwise provided herein. Upon expiration or termination, Licensee shall immediately discontinue all use of the Property and shall no longer have any right to use the Property or any variation or simulation thereof in any manner or for any purpose whatsoever, except as provided in Section 12(d). Licensee shall transfer to Licensor by such documentation as Licensor may require all registrations, filings, trademarks, copyrights and other rights with regard to the Property which Licensee may have possessed at any time. Subject to the provisions of Section 12(e) concerning the sale of Termination Inventory (as defined below), Licensee shall deliver to Licensor, at Licensee's expense, all sketches, samples, designs or other matters belonging to Licensor and relating to Licensed Products, and all Licensed Products, packaging materials and advertising and promotional materials bearing reference to the Property in any form.
(b) Upon termination or expiration of this Agreement for any reason, including termination under Section 11(b), no trustee in bankruptcy, assignee for the benefit of creditors, custodian, receiver, sheriff or court officer or other successors to Licensee or its assets or business shall have any right to continue this Agreement or to use or exploit the Property in any manner whatsoever.
(c) Notwithstanding the provisions of Section 11(b), in the event that under the United States Bankruptcy Code or any amendment or successor thereto (collectively the "Bankruptcy Code"), the trustee in bankruptcy of Licensee, as bankruptcy debtor, is permitted to and does assume this Agreement and thereafter proposes to assign this Agreement by an assignment which fulfills the applicable requirements of the Bankruptcy Code, the trustee or Licensee shall notify Licensor of the proposed assignment in advance, in writing, setting forth the name and address of the proposed assignee, the proposed consideration for the assignment and all other material terms and conditions of the proposed assignment. Such notice shall be considered an offer to Licensor to have this Agreement assigned to Licensor or its designee for the consideration (or its reasonable equivalent in money) and under the other material terms in the notice. Licensor may exercise the option and accept the offer by giving the trustee or Licensee, as appropriate, written notice of exercise and acceptance within twenty (20) days after Licensor receives the notice from the trustee or Licensee. If Licensor fails to give notice and exercise the option within such twenty (20) day period, the trustee or Licensee may complete the proposed assignment, but only to the party and for the consideration and under the terms described in the notice.
(d) Within twenty (20) days after the expiration or termination of this Agreement, Licensee shall cease manufacturing (including promptly notifying prepare and using its best efforts deliver to cause all authorized subcontractors to cease manufacturing) Licensor a written statement of Licensed Products and inventory on hand bearing reference to destroy the Property or Licensor's name in any excess materialsform (the "Termination Inventory"), including without limitationa complete and accurate schedule as of the date of expiration or termination of all completed Licensed Products on hand that bear reference to the Property or Licensor's name in any form; all work in process that bears reference to the Property or Licensor's name in any form relating to Licensed Products on hand, hangtags including uncut piece goods and labels, bearing any Licensed Trademarks. If a Licensed Product is products and materials in the process of being made at manufacture; all Packaging, advertising and promotional materials and other documents or items that bear reference to the time Property or Licensor's name in any form in Licensee's possession or control or in the process of manufacture for Licensee and the cost of each item included in such noticeTermination Inventory. Provided that this Agreement has not been terminated by Licensor as a result of (i) Licensee's failure to make payments as agreed, it may be completed and shipped as ordered or (ii) failure of the Licensed Products to comply with governmental requirements, or (iii) violation of any provision of this Agreement by Licensee pursuant regarding approval as to this Agreement. So long as quality or a violation which could result in jeopardy to Licensor's rights in the Property by the continued sale of Licensed Products, Licensee is not in default under any shall be free to sell the Termination Inventory to Licensor or to third parties for a period of the terms and conditions hereof at the time of one hundred eighty (180) days after expiration or termination of this Agreement, during . Any items in the Sell-Off Period (as defined below), Licensee shall continue to comply with the terms and conditions of this Agreement, specifically including without limitation the payment of Royalties and the submission of royalty reports with regard Termination Inventory bearing reference to the sale Property or Licensor's name in any form that have not been sold and remain after the one hundred eighty (180) day selling period provided for in this Section shall have all uses of such products. Specificallythe Property removed by Licensee, Licensee including but not limited to, all tags and labels bearing any reference to the Property, from the Licensed Products and shall thereafter deliver to Callaway Golf a written report in Licensor, dispose of or destroy the form furnished to Licensee by Callaway Golf, certified as complete and correct by an authorized representative of Licensee, setting forth the following:
(i) within fifteen (15) days following expiration or termination, a report of all open purchase orders received prior to such expiration or termination, specifying the details of such purchase orders and the anticipated shipping dates for such orders;
(ii) within sixty (60) days following expiration or termination, a report of all inventory expected to exceed amounts needed to fulfill open purchase orders; and
(iii) within one hundred twenty (120) days following expiration or termination, a final report remainder of the status of all inventory, manufacturing and shipping activities, as well as all open purchase orders, their outstanding balances, and the anticipated shipping schedule for all outstanding balancespackaging materials in accordance with Licensor's instructions.
(be) So long as Licensee is not in default under any of the terms and conditions hereof at the time of expiration or termination of this Agreement, Licensee shall use its commercially reasonable efforts to sell any remaining Licensed Product inventory. For purposes of this Agreement, the “Sell-Off Period” shall mean a period, which shall equal three (3) months in duration after Immediately upon the expiration or termination of this AgreementAgreement for any reason, during which Licensee is permitted Licensor shall have the free and unrestricted right to sell its inventory grant other parties one or more licenses to use the Property in connection with the manufacture, sale, distribution or advertising and promotion of Licensed Products in the Territory or to enter into such other transactions as provided herein. Notwithstanding anything to it desires for the contrary contained herein, Licensee shall cease all sales and delivery use of the Property with Licensed Products after expiration or in any other manner, without any obligation of the Sellany kind to Licensee. The right of Licensee to sell items of Termination Inventory under Section 12 (d) is non-Off Periodexclusive only and shall not in any manner limit Licensor's right to enter into other licenses or transactions.
(f) Notwithstanding any termination of this Agreement, except Licensor hereby reserves all rights and remedies which are granted or available to Callaway Golf as set forth belowit under this Agreement or applicable law, and termination shall not be deemed to be an exclusive remedy or to limit Licensor in any manner from enforcing any other rights or remedies.
Appears in 1 contract
Effect of Expiration or Termination. (aA) Upon expiration or termination of this Agreement, Licensee shall cease manufacturing (including promptly notifying and using its best efforts to cause all authorized subcontractors to cease manufacturing) Licensed Products and to destroy any excess materials, including without limitation, hangtags and labels, bearing any Licensed Trademarks. If a Licensed Product is in the process of being made at the time of such notice, it may be completed and shipped as ordered by Licensee pursuant to this Agreement. So long as Licensee is not in default under any of the terms and conditions hereof at the time of expiration or termination of this Agreement, during the Sell-Off Period (as defined below), Licensee shall continue to comply with the terms and conditions of this Agreement, specifically including without limitation the payment of Royalties and the submission of royalty reports with regard to the sale of such products. Specifically, Licensee shall deliver to Callaway Golf a written report in the form furnished to Licensee by Callaway Golf, certified as complete and correct by an authorized representative of Licensee, setting forth the following:
(i) within fifteen (15) days following expiration or termination, a report of all open purchase orders received prior to such expiration or termination, specifying the details of such purchase orders and the anticipated shipping dates for such orders;
(ii) within sixty (60) days following expiration or termination, a report of all inventory expected to exceed amounts needed to fulfill open purchase orders; and
(iii) within one hundred twenty (120) days following expiration or termination, a final report of the status of all inventory, manufacturing and shipping activities, as well as all open purchase orders, their outstanding balances, and the anticipated shipping schedule for all outstanding balances.
(b) So long as Licensee is not in default under any of the terms and conditions hereof at the time of expiration or termination of this Agreement, Licensee shall use its commercially reasonable efforts to sell any remaining Licensed Product inventory. For purposes of this Agreement, the “Sell-Off Period” shall mean a period, which shall equal three (3) months in duration after the expiration or termination of this Agreement (whether by reason of the expiration of the term of this Agreement, during by earlier termination of this Agreement pursuant to Article 3 hereof or otherwise), except to the extent specifically otherwise provided in this Article 12, all rights of Licensee hereunder will terminate and revert automatically to Licensor, and neither Licensee nor any of its receivers, representatives, trustees, agents, successors or assigns (by operation of law or otherwise) will have any right to manufacture, exploit, advertise, merchandise, promote, sell, distribute or deal in or with Licensed Merchandise, and Licensee and all of its assignees, successors or assigns (by operation of law or otherwise) will forthwith discontinue all use of the Licensed Mark(s) and any derivation, component, variation or simulation the▇▇▇▇, or any mark confusingly similar therewith, and all references thereto or ▇▇▇▇to, and all Merchandise Concepts, Design Concepts, Packaging, Merchandise, Intellectual Property, sketches, designs, colorways, Samples and labels provided or employed hereunder, including any modifications or improvements thereof, and any patents, trademarks, copyrights, trade names and other proprietary rights in connection therewith, all of which will revert to Licensor without any action by any Person and without any payment of consideration of any kind to Licensee, and Licensee is permitted hereby irrevocably releases and disclaims any right or interest in or to sell any and all of the foregoing.
(B) Licensee will, within twenty (20) days after the date any party notifies the other of its desire to terminate or not extend the Agreement (the "Termination Notice") deliver to Licensor, separately for each Licensed Mark the following: (i) a complete list of Licensee's then current ▇▇▇ounts for Licensed Merchandise and, for each account, Net Sales by Category for the last-completed Contract Year, indicating regular price and off-price sales; (ii) a list of each style, indicating total Net Sales dollars and units for the last-completed Contract Year, as well as Licensee's published list price and suggested retail price, if any; (iii) a list of the "top 20" selling styles for the last completed Contract Year, and two (2) samples of each. All information shall be stated separately with respect to each Licensed Mark and Category. Contemporaneously with the delivery of such inf▇▇▇▇tion Licensee will also deliver a complete and accurate schedule of Licensee's inventory of Licensed Products as provided herein. Notwithstanding anything Merchandise and, to the contrary extent available, related work in process and materials then on hand, in the possession of contractors and in transit including non-cancelable orders identifiable to Merchandise bearing the Licensed Mark(s) (hereinafter referred to as "Inventory"). The Inventory sc▇▇▇▇le shall be prepared as of the close of business on the date of such Termination Notice. Except as Licensor may otherwise agree, all cancelable orders for Licensed Merchandise and/or related materials shall promptly be canceled.
(C) The provisions of this Section12.1 shall take precedence over any conflicting provision of this Agreement. In addition, Licensee will execute any instruments requested by Licensor which Licensor, in its sole discretion, deems necessary, proper or appropriate to accomplish or confirm the foregoing. Any such assignment, transfer or conveyance shall be without consideration other than the mutual agreements contained herein.
12.2 If, Licensee shall cease all sales and delivery upon the expiration or termination of this Agreement (whether by reason of the Licensed Products after expiration of the Sell-Off Periodstated term of this Agreement, except by earlier termination of this Agreement pursuant to Callaway Golf as set forth below.Article 3 hereof, or otherwise), Licensee (or any subcontractor, supplier or distributor of Licensee) has on hand any finished inventory of Licensed Merchandise (or components thereof), Licensor will have the option (herein called the "Inventory Purchase Option") to purchase all or any part of Licensee's (or any such subcontractor's, supplier's or distributor's) inventory (and any components thereof) of Approved Licensed Merchandise which is
Appears in 1 contract
Sources: License Agreement (Movado Group Inc)
Effect of Expiration or Termination. (a) 14.1. Upon expiration or termination of this Agreement, all rights granted to Licensee herein shall forthwith revert to GMH, with the following consequences:
14.1.1. No portion of any prior payments shall be repayable to Licensee, and any and all payments due or to become due, including any royalties and Minimum Royalty shall be immediately due and payable. If, at such time, the total amount of royalties paid by Licensee during the Term is less than the Minimum Royalty, Licensee shall immediately pay such difference to GMH.
14.1.2. Except as provided in subparagraph 14.1.3, after the expiration or termination of this Agreement, Licensee shall cease manufacturing (including promptly notifying and using its best efforts to cause all authorized subcontractors to cease manufacturing) not manufacture, advertise, distribute or sell the Licensed Products and containing or including the Licensed Rights, or use any name, logo or design which is substantially or confusingly similar to destroy the Licensed Rights on any excess materials, including without limitation, hangtags and labels, bearing product in any place whatsoever. Licensee shall promptly deliver to GMH a statement indicating the number of Licensed Trademarks. If a Licensed Product is Products then currently on hand or in the process of being made at manufactured. GMH shall have the time right to conduct a physical inventory in order to ascertain or verify such inventory and/or statement.
14.1.3. Upon expiration of such notice, it may be completed and shipped as ordered by Licensee pursuant to this Agreement. So , so long as Licensee is not in default under any hereunder, Licensee shall have the right to sell physical stock of the terms and conditions hereof Licensed Product available at the time expiration of expiration this Agreement within three (3) months (“Sell-Off Period”) or to fulfill any pending transactions entered into before termination of this Agreement provided always that delivery can be achieved within three (3) months after the end of this Agreement, . Any sales shall be subject to Royalty payments.
14.1.4. Any royalties earned during the Sell-Off Period (as defined below)may not be applied to any Minimum Royalty, Licensee shall continue to comply with the terms and conditions of this Agreement, specifically including without limitation the payment of Royalties and the submission of royalty reports with regard to the sale of such products. Specifically, Licensee shall deliver to Callaway Golf a written report in the form furnished to Licensee by Callaway Golf, certified as complete and correct by an authorized representative of Licensee, setting forth the following:
(i) within fifteen (15) days following expiration or termination, a report of all open purchase orders received prior to such expiration or termination, specifying the details of such purchase orders and the anticipated shipping dates for such orders;
(ii) within sixty (60) days following expiration or termination, a report of all inventory expected to exceed amounts needed to fulfill open purchase orders; and
(iii) within one hundred twenty (120) days following expiration or termination, a final report of the status of all inventory, manufacturing and shipping activities, as well as all open purchase orders, their outstanding balances, and the anticipated shipping schedule for all outstanding balances.
(b) So long as Licensee is not in default under any of the terms and conditions hereof amount being due at the time of expiration termination or termination of this Agreement, Licensee shall use its commercially reasonable efforts to sell any remaining Licensed Product inventoryexpiration. For purposes of this Agreement, After the “Sell-Off Period” Period has expired, all remaining inventory shall mean a periodbe destroyed by Licensee or repackaged without the Licensed Rights. In the event that Licensee destroys the Licensed Products containing the Licensed Rights or materials relating thereto, which GMH may require Licensee to deliver to GMH an affidavit by an officer of Licensee, attesting to such destruction.
14.1.5. All warranties, indemnification and any other applicable obligations of Licensee shall equal three (3) months in duration after survive the expiration or termination of this Agreement, during which Licensee is permitted to sell its inventory of Licensed Products as provided herein. Notwithstanding anything to the contrary contained herein, Licensee shall cease all sales and delivery of the Licensed Products after expiration of the Sell-Off Period, except to Callaway Golf as set forth belowLicense.
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Sources: Merchandise License Agreement (Generation Hemp, Inc.)
Effect of Expiration or Termination. (a) Upon A. Except to the extent provided in Section 13.B hereof, upon the expiration or termination of this Agreement for any reason, neither Licensee nor its receivers, representatives, agents, successors or assigns shall have any right to exploit or in any way use the Licensed ▇▇▇▇. Except to the extent provided in Section 13.B hereof, upon such expiration or termination of this Agreement, Licensee shall cease manufacturing (including promptly notifying forthwith discontinue all use of the Licensed ▇▇▇▇ and using its best efforts to cause all authorized subcontractors to cease manufacturing) shall not thereafter use the Licensed Products and to destroy ▇▇▇▇ or any excess materialsvariation or simulation thereof, including without limitation, hangtags and labels, bearing or any Licensed Trademarks. If a Licensed Product ▇▇▇▇ which in Licensor's sole judgment is in the process of being made at the time of such notice, it or may be completed confusingly similar thereto, and shipped as ordered by Licensee pursuant hereby irrevocably releases and disclaims any right or interest in or to this Agreementthe Licensed ▇▇▇▇. So long as Licensee is not in default under any Within thirty (30) days of the terms and conditions hereof at the time of expiration or termination of this Agreement, during the Sell-Off Period (as defined below), Licensee shall continue to comply with the terms and conditions of this Agreement, specifically including without limitation the payment of Royalties and the submission of royalty reports with regard to the sale of such products. Specifically, Licensee shall deliver to Callaway Golf a written report in the form furnished to Licensee by Callaway Golf, certified as complete and correct by an authorized representative of Licensee, setting forth the following:
(i) within fifteen (15) days following expiration or termination, a report of all open purchase orders received prior to such expiration or termination, specifying the details of such purchase orders and the anticipated shipping dates for such orders;
(ii) within sixty (60) days following expiration or termination, a report of all inventory expected to exceed amounts needed to fulfill open purchase orders; and
(iii) within one hundred twenty (120) days following expiration or termination, a final report of the status of all inventory, manufacturing and shipping activities, as well as all open purchase orders, their outstanding balances, and the anticipated shipping schedule for all outstanding balances.
(b) So long as Licensee is not in default under any of the terms and conditions hereof at the time of expiration or termination of this Agreement, Licensee shall use its commercially reasonable efforts to sell any remaining provide Licensor with an accurate schedule of all work in process and finished inventory (hereinafter the "Inventory") of Licensed Product inventory. For purposes Merchandise which is on hand as of the close of business on the date of such expiration or termination.
B. If, upon the expiration or termination of this AgreementAgreement (other than pursuant to Section 12 B or by Licensor pursuant to Section 12 C hereof), Licensee shall have on hand any Inventory of the “Sell-Off Period” shall mean Licensed Merchandise, Licensee may continue to use the Licensed ▇▇▇▇ solely in connection with the Exploitation of the Inventory of Licensed Merchandise for a period, which shall equal three period of up to six (36) months in duration after following the expiration or termination of this Agreement, during which Licensee is permitted to sell its inventory of Licensed Products as provided herein. Notwithstanding anything to the contrary contained hereinDuring such six (6) month period, Licensee shall cease all sales be obligated to continue to pay Licensor the Earned Royalty provided for in Section 6.A (but there shall be no Minimum Royalty). If Licensee elects to continue to use the Licensed ▇▇▇▇ as provided under this paragraph, it shall notify Licensor of its election at least thirty (30) days prior to the expiration or termination of this Agreement. Such notice shall include a complete and delivery accurate schedule of Inventory of Licensed Merchandise which is projected to be on hand as of the close of business on the date of such expiration or termination and shall reflect Licensee's actual cost of each such item to be calculated in accordance with generally accepted accounting principles ("Licensee's Standard Cost").
C. Notwithstanding the foregoing, or Licensee's desire to use the Licensed Products ▇▇▇▇ as provided in Section 13.B above, Licensor shall have the overriding option, exercisable by written notice to Licensee within thirty (30) days after its receipt from Licensee of the complete Inventory schedule as provided in Section 13.A or 13.B, to purchase any or all of the Inventory, subject to outstanding non-cancelable purchase orders, for an amount equal to Licensee's Standard Cost of the Inventory and freight, taxes, duties and insurance, which sum may be offset against amounts then owing to Licensor hereunder. In the event that Licensor notifies Licensee of its desire to purchase the Inventory on hand, such notice shall apply only to the Inventory remaining in Licensee's possession or control on the date said notice is received by Licensee. Licensee shall deliver the Inventory as directed by Licensor, and Licensor shall purchase only such Inventory received in marketable condition (and shall return all Inventory not accepted).
D. Upon the expiration or termination of this Agreement or, if applicable, upon the expiration of the Sell-Off Periodperiod provided for in Section 13.B hereof, except Licensee shall, at its own expense, either destroy or remove the Licensed ▇▇▇▇ from all Inventory, Packaging, advertising and promotional materials bearing the Licensed ▇▇▇▇ or prepared for use in connection with the Licensed Merchandise.
E. In order to Callaway Golf as set forth belowenable Licensor to maintain continuity of sale of Merchandise within the Territory, during and after the expiration of any period provided in Section 13.B, Licensor may manufacture, advertise, promote, sell and distribute Merchandise directly or through others, and grant licenses to third parties with respect to the Merchandise and the Licensed ▇▇▇▇.
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Effect of Expiration or Termination. (a) Upon expiration Subject to Section 12.5(b), upon any termination of this Agreement by GAMETE pursuant to Section 12.3 or by VIACELL pursuant to Section 12.4, VIACELL shall (i) transfer and assign to GAMETE all of VIACELL's right, title and interest in and to any VIACELL Development Technology and all data, reports, records, materials and other intellectual property owned or controlled by VIACELL that relates exclusively to the development, manufacture, use or sale of Covered Products in the Field or of GAMETE Products in the GAMETE Field; (ii) grant GAMETE an exclusive license, solely for the purpose of GAMETE's developing, making, having made, using, marketing and selling Covered Products in the Field and GAMETE Products in the GAMETE Field, under VIACELL's interest in any Joint Development Technology and VIACELL Development Technology that does not exclusively relate to the Covered Products; (iii) grant GAMETE an exclusive license, solely for the purpose of GAMETE's sale of Covered Products in the Field, under VIACELL's interest in any trademarks that have been used by VIACELL in connection with the sale of Covered Products during the twelve months preceding termination of this Agreement; and (iv) transfer and assign to GAMETE ownership of all INDs, Licensee NDAs and other regulatory filings made or filed with respect to any Covered Product or GAMETE Product (or, if such transfer and assignment is not permitted under the laws of any applicable jurisdiction, VIACELL shall cease manufacturing (including promptly notifying and using its best efforts take such other permitted actions with respect to cause all authorized subcontractors to cease manufacturing) Licensed Products and to destroy any excess materials, including without limitation, hangtags and labels, bearing any Licensed Trademarkssuch filings as may be reasonably requested by GAMETE). If a Licensed Product this Agreement is in the process of being made at the time of such notice, it may be completed and shipped as ordered terminated by Licensee GAMETE pursuant to this Agreement. So long as Licensee is not in default under any Section 12.3, then the assignments and licenses of rights pursuant to clauses (i) - (iv) of the preceding sentence shall be upon commercially reasonable, arms length financial terms and conditions hereof at that the time of expiration or Parties shall negotiate in good faith and agree upon as soon as practicable after such termination of this Agreement. In the event the Parties, during despite the Sell-Off Period mutual use of good faith efforts, are unable to agree upon such terms and conditions, the Parties shall appoint an independent valuation expert who shall determine such terms and conditions, which determination shall be binding upon the Parties. If the Parties are unable to agree upon the appointment of such an expert, then each Party shall nominate an expert (as defined belowthe cost of whom shall be borne by such Party), Licensee and both experts appointed by the Parties shall continue jointly appoint the expert who shall make such determination. Any expert appointed pursuant to comply with the terms and conditions of this Agreement, specifically including without limitation the payment of Royalties and the submission of royalty reports with regard to the sale of such products. Specifically, Licensee Section 12.5(a) shall deliver to Callaway Golf a written report in the form furnished to Licensee by Callaway Golf, certified as complete and correct by an authorized representative of Licensee, setting forth the following:
(i) within have at least fifteen (15) days following years' experience in the business of pharmaceutical development and commercialization. Except as provided above, the costs and expenses of any expert acting under this Section 12.5(a) shall be borne equally by the Parties. If this Agreement is terminated by VIACELL pursuant to Section 12.4, then, in consideration of the assignments and licenses of rights pursuant to clauses (i) - (iv) of the first sentence of this Section, GAMETE shall pay to VIACELL a royalty equal to [**] of Net Sales of Covered Product, which payment obligation shall continue until the earlier of (a) the time that the aggregate payments made by GAMETE under this Section equal the aggregate documented expenditures made by VIACELL in performance of this Agreement until the date of termination of this Agreement or (b) the expiration or terminationof the Royalty Term. If GAMETE is obligated to make royalty payments pursuant to the previous sentence of this Section, a report the provisions of all open purchase orders received prior Section 8.2(a), 8.2(b), 8.2(c), 8.2(e) and Article 9 shall apply with respect to such expiration or terminationobligation, specifying with each such Section appropriately adjusted to reflect the details obligation of such purchase orders and GAMETE to VIACELL under the anticipated shipping dates for such orders;
(ii) within sixty (60) days following expiration or termination, a report terms of all inventory expected to exceed amounts needed to fulfill open purchase orders; and
(iii) within one hundred twenty (120) days following expiration or termination, a final report of the status of all inventory, manufacturing and shipping activities, as well as all open purchase orders, their outstanding balancesthis Section, and the anticipated shipping schedule for parties will negotiate in good faith all outstanding balancesother necessary terms regarding the sale of Covered Products by GAMETE.
(b) So long as Licensee is not in default under Notwithstanding the foregoing,
(i) In the event of any of the terms and conditions hereof at the time of expiration or termination of this Agreement, Licensee shall use its commercially reasonable efforts Agreement by GAMETE pursuant to sell any remaining Licensed Product inventory. For purposes Section 12.3 or by VIACELL pursuant to Section 12.4 with respect to fewer than all of this Agreementthe Covered Products and/or fewer than all of the countries in the Territory, the “Sell-Off Period” rights, licenses and other benefits to be transferred, granted and otherwise assigned to GAMETE under Section 12.5(a) shall mean a period, which shall equal three (3) months in duration after the expiration or termination of this Agreement, during which Licensee is permitted be expressly limited to sell its inventory of Licensed Products as provided herein. Notwithstanding anything those pertaining to the contrary contained hereinCovered Products and/or the countries in the Territory to which such termination applies; and
(ii) at any time prior to any transfer, Licensee granting and assignment of rights, licenses and benefits to GAMETE pursuant to Section 12.5(a), GAMETE may elect, upon notice to VIACELL, to waive the application of Section 12.5(a) with respect to such rights, licenses and benefits. Following any such waiver neither Party shall cease all sales have any obligation or liability to the other with respect to such rights, licenses and delivery of the Licensed Products after expiration of the Sell-Off Period, except to Callaway Golf as set forth belowbenefits.
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Effect of Expiration or Termination. (a) a. Upon expiration or termination of this Agreement, Licensee all rights and licenses granted to LICENSEE hereunder shall immediately expire, shall forthwith revert to LICENSOR, and LICENSEE shall immediately cease manufacturing (including promptly notifying and desist from using its best efforts the Trademarks and any technical information supplied by LICENSOR to cause all authorized subcontractors LICENSEE hereunder. To this end, LICENSEE will be deemed to cease manufacturing) Licensed Products have automatically assigned to LICENSOR, upon such expiration or termination, the Trademarks, equities, good will, titles, and other rights in or to destroy any excess materials, including without limitation, hangtags and labels, bearing any Licensed Trademarks. If a the Licensed Product is and all adaptions, compilations, modifications, translations and versions thereof, and all other trademarks used in connection therewith which have been or may be obtained by LICENSEE or which may vest in LICENSEE and which have not already been assigned to LICENSOR. LICENSOR may thereafter, in its sole discretion enter into such arrangements as it deems desirable, with any other party, for the manufacture, promotion and sale of the Licensed Product in the process Territory. LICENSEE shall, within thirty (30) days after expiration or termination of being made at this Agreement as the time of such noticecase may be, it may be completed furnish LICENSOR with a full and shipped as ordered by Licensee pursuant to this Agreement. So long as Licensee is not in default under any detailed written statement of the terms and conditions hereof Licensed Product in its inventory or the Licensed Product in progress. LICENSOR shall have the option of conducting a physical inventory at the time of expiration or termination of this Agreementand/or at a later date in order to ascertain or verify such statement. In the event that the LICENSEE refuses to permit LICENSOR to conduct such physical inventory, during the Sell-Off Period (as defined below), Licensee LICENSEE shall continue forfeit its rights hereunder to comply with the terms and conditions of this Agreement, specifically including without limitation the payment of Royalties and the submission of royalty reports with regard to the sale dispose of such productsinventory. Specifically, Licensee shall deliver to Callaway Golf a written report in the form furnished to Licensee by Callaway Golf, certified as complete and correct by an authorized representative of Licensee, setting forth the following:
(i) within fifteen (15) days following expiration or termination, a report of all open purchase orders received prior In addition to such expiration or terminationforfeiture, specifying the details of such purchase orders and the anticipated shipping dates for such orders;
(ii) within sixty (60) days following expiration or termination, a report of LICENSOR shall have recourse to all inventory expected other remedies available to exceed amounts needed to fulfill open purchase orders; and
(iii) within one hundred twenty (120) days following expiration or termination, a final report of the status of all inventory, manufacturing and shipping activities, as well as all open purchase orders, their outstanding balances, and the anticipated shipping schedule for all outstanding balancesit.
(b) So long as Licensee is not in default under any of b. Upon the terms and conditions hereof at the time of expiration or termination of this Agreement, Licensee shall use its commercially reasonable efforts * * Text omitted pursuant to sell any remaining Licensed Product inventorya request for confidential treatment and filed separately with the Securities and Exchange Commission. For purposes of this Agreement, * * Text omitted pursuant to a request for confidential treatment and filed separately with the “Sell-Off Period” shall mean a period, which shall equal three (3) months in duration after the expiration or termination of this Agreement, during which Licensee is permitted to sell its inventory of Licensed Products as provided hereinSecurities and Exchange Commission. Notwithstanding anything to the contrary contained herein, Licensee shall cease all sales and delivery of the Licensed Products after expiration of the Sell-Off Period, except to Callaway Golf as set forth below.BHPC.12I *
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