Common use of Responsibility of Licensee Clause in Contracts

Responsibility of Licensee. 3.1 Licensee shall, at Licensee's expense, submit to Westinghouse, for Westinghouse's written approval of the use of the Marks, the following: (a) two (2) specimens showing use of the Marks on each of the Products intended to be sold in commerce (the "Specimens"); (b) a certification signed by an authorized employee of Licensee setting forth the results of all independent consumer product safety and performance test reports, if any, procured by Licensee for each Product (“Test Reports”); (c) the template of all artwork which Licensee intends to use in connection with the Marks; and (d) all packaging, advertising and promotional literature which Licensee initially intends to use or is currently using in the marketing or merchandising of the Products. After Westinghouse has given its written approval of the use of the Marks, then the approved product, quality, packaging, advertising and promotional literature shall be the standard for the relevant design of Product thereafter produced (the "Approved Quality"). Westinghouse’s approval of the use of the Marks is not, and should not be construed as participation in, evaluation of, and/or approval of the design, manufacture, distribution, and/or performance or safety of the Product itself. Thereafter, consecutively at twelve (12) month intervals, Licensee shall, at Licensee's expense, submit to Westinghouse: (i) two (2) randomly selected production run samples (“Sample”) of each design of the Products and (ii) a certification signed by an authorized employee of Licensee setting forth the results of all Test Reports , if any, for testing performed during the prior twelve (12) month period for each design of Product. 3.1.1 Licensee shall obtain Westinghouse’s prior written approval on any new packaging of the Product on which the Marks will be used. From time to time, Licensee may revise packaging for the Products solely to include or change statements or other information which may be required by (a) Underwriters’ Laboratories, Inc. (or for sales outside the United States, an equivalent recognized consumer product safety agency) and/or (b) laws or regulations of any jurisdiction where the Products are sold. Licensee shall provide Westinghouse with prior notice of any such revisions. 3.1.2 Products or any component thereof not meeting the Approved Quality, including but not limited to “seconds” and “irregulars,” are not to be sold or distributed under any circumstances without Westinghouse’s prior written consent; provided; however, such requirement shall not restrict Licensee’s right to re-sell Products which have been returned to Licensee following sale or distribution, and, to the extent necessary, refurbished as permitted by law. 3.2 Westinghouse and/or its designated agents shall have the right (but not the obligation) to inspect manufacturing facilities, warehouses, customer service and other facilities related to the Products at reasonable times on notice of fourteen (14) days or more to Licensee. Licensee agrees to cooperate with Westinghouse in carrying out such inspections, including, without limitation, providing access to the facilities of Licensee’s contractors and suppliers. 3.3 Licensee shall design, manufacture, advertise, promote (through dealers co-op funding or otherwise), sell, ship, install and service the Products and shall continuously and diligently procure and maintain facilities and trained personnel sufficient and adequate to accomplish the foregoing. 3.4 Licensee shall design, manufacture, source, advertise and promote the Products so that each fulfills the following criteria: (i) they are not designed, manufactured or marketed as lowest price point products; (ii) they are priced to customers as above the lowest price points for such products and are so called mid or upper price point level products; (iii) they have manufacturing, design, quality, and additional features that are similar to the products marketed by others that are commonly perceived in the solar systems business as mid or upper price point level products and, for example, are approximately equivalent in quality to and expected to be approximately as expensive in the consumer market as other U.S. branded products in the solar systems business that might compete with the Products. Licensee shall not create a retail exclusive arrangement respecting Products without the prior written consent of Westinghouse. 3.5 Licensee agrees to inform Westinghouse of the details of the use of the Marks, including graphics, position, size, color, script and the like, and Westinghouse reserves the right to inspect and to approve the use of the Marks. 3.6 Licensee shall refrain from and shall not authorize others to use or misuse the Marks so as to bring discredit to Westinghouse provided however that in no event shall the foregoing be construed to permit sublicensing of the Marks by Licensee. 3.7 All use of the Marks by Licensee inures to the benefit of Westinghouse. At the termination or expiration of this Agreement, Licensee shall be deemed to have assigned, transferred and conveyed to Westinghouse any rights, equities, good will, titles or other rights in and to the Marks which may have been obtained by Licensee or which may have vested in Licensee and Licensee shall execute any instrument requested by Westinghouse to accomplish or confirm the foregoing. Any such assignment, transfer or conveyance shall be without other consideration than the mutual covenants and considerations of this Agreement. 3.8 Licensee shall comply with any laws, rules and/or regulations with regard to the design, manufacture, advertising and promotion of the Products and the use of the Marks including, but not limited to, any county, state and/or federal law. All Products must be UL-approved or for sales outside the United States, approved by an equivalent recognized consumer product safety entity (such as CCC- China Compulsory Certification for sales of Product in the Peoples Republic of China) if such an entity exists in the country or territory where the Products will be sold or installed. 3.9 Licensee shall not apply for the registration of, or cause the filing of an application for the registration of, a trade name, trademark or service m▇▇▇ which is identical to or confusingly similar to the Marks or for a domain name that includes the Marks. 3.10 Licensee shall promptly notify Westinghouse in writing of any unauthorized use, infringement, or potential infringement of the Marks, including but not limited to, unauthorized use, infringement or potential infringement pertaining to the Domain Names or confusingly similar domain names, that come to its attention. Licensee will cooperate with Westinghouse, at Westinghouse’s request, in taking steps to terminate such infringement. Licensee shall not take any legal action to protect against any infringement of the Marks without Westinghouse’s permission. Westinghouse may, in its sole discretion, commence, prosecute or settle any claims or suits to protect its rights in and to the Marks, including the Domain Names, but shall not be required to bring or prosecute actions or suits. Licensee agrees to cooperate fully with Westinghouse in the prosecution or defense of legal actions related to infringement of the Marks. Any and all damages recovered in any action or proceeding commenced by Westinghouse shall belong solely and exclusively to Westinghouse. 3.11 Licensee acknowledges and agrees that any unauthorized use or misuse of the Marks by or for Licensee will result in irreparable harm to Westinghouse and that Westinghouse, in addition to any other rights or remedies specified in this Agreement, shall be entitled to any remedy, legal or equitable, including without limitation preliminary injunctive relief, to correct any harm which results from such violation. 3.12 Licensee shall maximize its use of the Marks consistent with reasonable marketing plans and shall meet with Westinghouse at least once per year to review and discuss such plans. On an annual basis, Licensee shall dedicate not less than one percent (1%) of its aggregate Product sales (based on NIPs for all such sales), to advertising the Products. Copies of paid invoices or other definitive documentation showing proof of these expenditures shall be furnished to Westinghouse on a quarterly basis. Any failure to spend this amount on advertising during each contractual year shall result in the unspent portion being submitted to Westinghouse within thirty (30) days after the end of such contractual year. This advertising may include retailer cooperative advertising expense, website development, maintenance and operations wherein the Marks are utilized, customer interactive communications, media (including digital media) expense, public relations expenses product promotion expenses, display expenses, creative and advertising production expenses, outdoor advertising, bus and subway advertising, radio, print, television advertising expenses, sponsorship, product donations, gifts with purchase expenses and trade show space and booth expenses. All advertising shall be submitted to Westinghouse for its approval prior to use in accordance with Subsection 3.1 of this Agreement. 3.13 During the Term, Licensee shall not (i) enter into an agreement with a third party for products or (ii) design, manufacture, source the manufacture, advertise, sell or ship products, that would compete with those Products, except that this Subsection 3.13 shall not apply to the retailer-owned house brands. 3.14 No less than ninety (90) days prior to Licensee’s intended use of any Marks in any country within the Sales and Manufacturing Territories, Licensee shall provide Westinghouse with written notice so that Westinghouse may obtain any necessary registrations of the Marks. If for any of the Products (i) the Marks cannot be registered in the country or jurisdiction included in the Sales and Manufacturing Territories; (ii) a registration is found or held, by a court or tribunal of competent jurisdiction in any country or jurisdiction included in the Sales and Manufacturing Territories to be invalid (and the finding or holding is affirmed in any and all appellate proceedings); and/or (iii) Licensee is enjoined or is otherwise prohibited from using one or more of the Marks in any country or jurisdiction included in the Sales and Manufacturing Territories, then the definition of Sales and Manufacturing Territories shall be amended to exclude such country or jurisdiction. Notwithstanding the foregoing, it is understood that Westinghouse has secured the requisite registrations for the following countries and no further notification or registration process is required therein for use of the Marks by Licensee: (i) United States of America; (ii) Canada; (iii) Australia and its territories; (iv) New Zealand and its territorial islands; (v) United Kingdom. The minimum annual royalty payments described in Subsection 4.2 below shall thereafter be adjusted equitably to account for the excluded country or jurisdiction. 3.15 Licensee shall establish a customer service operation to handle consumer inquiries, complaints and claims. At a minimum, such operation shall include: (i) a toll-free telephone number for each Sales Territory that is staffed to receive and respond to calls during normal business hours in such Sales Territories; (ii) a internet website that permits consumers to email inquiries, complaints and claims and is adequately staffed to respond to such emails within two business days of receipt; and (iii) a management level representative who is available to respond to escalated consumer inquiries, complaints and claims within one business day of such escalation. Licensee shall monitor the consumer service operations to assure that consumer inquiries, complaints and claims are resolved promptly in a courteous and professional manner. 3.16 Licensee shall maintain a written log of all customer complaints (the “Log”). The Log shall be in a form acceptable to Westinghouse and at minimum list the date and time of each such complaint, identify the customer making the complaint (to the extent allowed by law), and describe the nature of the complaint and when and what actions were taken by Licensee. The Log shall be certified as accurate and correct by a senior officer of Licensee and provided to Westinghouse on a quarterly basis along with the royalty report specified in Subsection 4.7. Licensee shall also provide a copy of the Log to Westinghouse for inspection upon request with seven (7) business days. All entries in the Log shall be maintained by Licensee for a period of at least two (2) years. 3.17 If Licensee’s customer service requirements as reflected in Subsection 3.15 are not in keeping with the high standards of quality, performance and service associated with Westinghouse, Westinghouse shall notify Licensee in writing. Such writing shall constitute notice that Licensee is in breach of the Agreement and that the Agreement may be terminated if Licensee does not cure such breach within thirty (30) days.