Exhibit 10.52
THIS AGREEMENT is made on 9 October 1998
BETWEEN
1. UNITED BREWERIES LIMITED, a company in India with number 08/740 whose
registered office is at ▇/▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ 560 001, India
(UB); and
2. UNITED BREWERIES INTERNATIONAL (UK) LIMITED, a company registered in
England with number 1688201 whose registered office is at ▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇ ("▇▇▇ (▇▇)").
WHEREAS:
A. UB is the beneficial owner throughout the Territory of all property
rights, registered and unregistered marks, names and other rights
relating to the Trade Marks.
B. UB desires to enter into an exclusive licence agreement with UBI (UK) for
the purpose of enabling UBI (UK) to use the Trade Marks in the Territory
and UB has agreed to grant to UBI (UK) such rights in accordance with the
terms of this Agreement.
IT IS AGREED as follows:
1. Definitions
1.1 In this Agreement the following words and phrases shall, unless the
context requires otherwise, have the following meanings:
Brewing Agreement the brewing agreement dated of
even date herewith between UBI (UK),
UBSN, and SN;
Business Day a day, other than a Saturday or Sunday,
on which clearing banks are normally
open for business in the City of London;
Kingfisher Products lager and other beer products brewed and
prepared for sale in bottled, canned and
draught form and any other form
implemented by SN under clause 4 of the
Brewing Agreement and marketed or to be
marketed under the Trade Marks or any of
them;
Original UBSN Licence the licence dated 14th August 1989 and
made between UB and UBSN;
person includes bodies corporate, individuals,
firms, partnerships and any other body
of persons whether incorporated or
unincorporated;
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Limited, a company
registered in England with number 138256
whose registered office is at ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ME 13 7AX,
England;
Term the term of this Agreement;
Territory the United Kingdom, Belgium, the
Netherlands, France, Germany, Italy,
Austria, Switzerland, Finland, Sweden,
Norway, Denmark, Eire, Luxembourg,
Iceland, Greece, Spain, Portugal and
Liechtenstein;
Trade Marks the UK registered trade ▇▇▇▇ specified
in Schedule 1 and all other registered
and unregistered marks, names and rights
in or relating to the "Kingfisher" name
and the Kingfisher logo (such logo being
represented in Schedule 1) owned and/or
used by UB and licenced to UBI (UK) for
use throughout the Territory;
UBSN UBSN Limited, a company registered in
England with number 2367133 whose
registered office is at Tingewick Road,
Buckingham MI 18 1GD;
UBSN Licence the licence granted in the distribution
agreement dated of even date herewith
between UBI (UK) and UBSN;
Year each period of 12 calendar months during
the term of this Agreement commencing on
lst January and ending on 31st December
except that the first Year shall be the
period from the date of this Agreement
to 31st December 1998 and the last Year
shall be the period from lst January to
the date of expiry of this Agreement.
1.2 The headings in this Agreement are for convenience only and shall not
affect its meaning.
1.3 References to a clause or Schedule are (unless otherwise stated) to a
clause of and Schedule to this Agreement.
1.4 Words importing the singular include the plural and vice versa and words
importing a gender include every gender.
2. Appointment
2.1 UB hereby appoints UBI (UK) as its exclusive licencee of the Trade Marks
in the Territory.
2.2 Save in accordance with clause 13.4, UB shall not, during the Term, grant
to any other person any rights relating to the Kingfisher Products in the
Territory.
2.3 With effect from the date of this Agreement, the Original UBSN Licence
shall terminate.
3. Licence of Trade Marks
3.1 UB hereby grants to UBI (UK) an exclusive licence to use the Trade Marks
and to do all things necessary to manufacture, package, market,
distribute and sell Kingfisher Products in the Territory and specifically
including the authorization to sub-licence certain rights of UBI (UK)'s
to UBSN pursuant to the UBSN Licence and to SN pursuant to the Brewing
Agreement and to licence pursuant to clause 13.4 any other persons deemed
necessary by UBI (UK) to the extent such additional sub-licencees do not
contravene rights previously granted to other existing licencees.
3.2 UB shall co-operate with UBI (UK) in ensuring that such licence is
registered with the UK Trade Marks Registry and in making any necessary
adjustments to existing registered user agreements.
3.3 UB shall make and pursue application for registration of those of the
Trade Marks which are not registered in the Territory. UB shall
co-operate with UBI (UK) to ensure the recordal of UBI (UK)'s licence to
use any Trade Marks which become registered in the Territory following
the date of this Agreement.
4. Royalty
4.1 UBI (UK) shall pay to UB a royalty for all Kingfisher Products supplied
in the Territory at the rate of 30p per hectolitre brewed.
4.2 UBI (UK) shall supply to UB half yearly a statement of the number of
hectolitres of Kingfisher Products supplied in the Territory in the 6
months immediately preceding each such statement together with payment of
the royalty calculated thereon pursuant to clause 4.1. UBI (UK) shall
maintain such records as are necessary for that purpose.
5. Term
5.1 This Agreement shall commence on the date hereof and shall continue for a
period of 10 years (the "Initial Term").
5.2 At any time within the period of two years prior to expiry of the Initial
Term, either UB or UBI (UK) may serve notice on the other (an "Extension
Notice") requesting an
extension of the Term beyond the Initial Term subject to such revisions
to this Agreement as may be specified in such notice and mutually agreed
upon between the parties.
6. No Termination
UB may not, without prejudice to any other rights it may have, terminate
this Agreement prior to the expiry of the Term.
7. No assignment
Except as otherwise provided in this Agreement, neither party shall
without the prior written consent of the other assign, mortgage, charge
or otherwise deal with any of its rights or obligations under this
Agreement.
8. Force majeure
Neither party to this Agreement shall have any liability whatsoever to
the other or be deemed to be in default of this Agreement as a result of
any delay or failure in performing its obligations under this Agreement
to the extent that any such delay or failure arises from causes beyond
the control of that party including, but not limited to, acts of god,
acts or regulations of any governmental or supranational authority, war
or national emergency, fire, civil disobedience, strikes, lock-outs and
industrial disputes.
9. Restrictive Trade Practices Act 1976
Where this Agreement is or forms part of an agreement which is subject to
registration under the Restrictive Trade Practices Act 1976 ("RTPA"), no
restriction accepted or information provision made under that Agreement
shall be given effect to or enforced until the day after particulars of
the agreement have been furnished to the Director General of Fair Trading
under section 24 of the RTPA. If either party shall wish to furnish such
particulars, the other party will render such co-operation and undertake
such action as may reasonably be required of it for such purposes so that
particulars may be furnished as soon as practicable following the
signature of this Agreement and each party consents to the disclosure of
all information so furnished. In this clause 9, the
words and terms "agreement" and "subject to registration" shall have the
meanings respectively given to them by the RTPA and the reference to
"restrictions accepted" or "information provisions made" under the
Agreement shall be to restrictions accepted or information provisions
made by virtue of which the Agreement is subject to restriction.
10. Confidentiality
UB and UBI (UK) shall both during and after the Term keep strictly
confidential all information relating to the other party which is by its
nature or is marked as being "confidential" or which relates to the sale
of Kingfisher Products provide that the obligations imposed by this
clause 10 shall not apply to information which, at the time it is
received, is in the public domain or subsequently comes into the public
domain through no fault of the recipient.
11. Notices and service of proceedings
11.1 Any notice, request, demand, approval, consent or other communication (a
"Notice") to be given in connection with this Agreement shall be in
writing signed by or on behalf of the party giving it and shall be
irrevocable without the written consent of the party on whom it is
served. Any Notice shall be sent or delivered to the party to be served
at the address of that party set out in this Agreement . Any alterations
in such address shall, to have effect, be notified to the other party in
accordance with clause 11.2.
11.2 Service of a Notice must be effected by leaving it at the relevant
address or sending it by pre-paid first class post (by air mail if from
one country to the other).
11.3 Notices shall be deemed served as follows:
11.3.1 in the case of leaving the Notice at the relevant address, at the time of
leaving it there;
11.3.2 in the case of service by post on the third Business Day (or in the case
of a Notice sent by air mail the seventh Business Day), following the day
on which it was posted and in proving such service it shall be sufficient
to prove that the envelope containing the Notice was correctly addressed,
postage paid and posted.
11.4 UB hereby irrevocably appoints ▇. ▇▇▇▇▇ & Co. (Mr. Havelock) of ▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, as its agent for service of proceedings in relation
to any matter arising out of this Agreement.
12. Law of Agreement
12.1 This Agreement shall be governed by and construed in accordance with the
laws of England.
12.2 The parties irrevocably submit for the exclusive benefit of UBI (UK) to
the non-exclusive jurisdiction of the courts of England and Wales in
respect of any claim, dispute or difference arising out of or in
connection with this Agreement.
13. Goodwill and rights associated with the Trade Marks owned by UB
13.1 UBI (UK) recognizes the great value of the goodwill associated with the
Trade Marks and acknowledges that the Trade Marks and all rights therein
and the goodwill pertaining thereto belong exclusively to UB. UBI (UK)
agrees not to commit any act or omission adverse or injurious to said
rights.
13.2 UBI (UK) agrees that every use of the Trade Marks by UBI (UK) shall inure
to the benefit of UB, and that, save as otherwise set out in this
Agreement, UBI (UK) shall not at any time acquire any rights in the Trade
Marks by virtue of any use UBI (UK) may make of the Trade Marks.
13.3 UBI (UK) agrees to cooperate fully and in good faith with UB for the
purpose of securing, preserving, and protecting UB's rights in and to
the Trade Marks.
13.4 UBI (UK) acknowledges that UB shall have the right, but shall not be
under any obligation, to use the Trade Marks in the Territory, however,
such use is limited to brand building advertisement or marketing and
shall not contravene the rights and obligations provided in clause 2 or,
except as such use shall be consistent with the provisions of the Brewing
Agreement.
13.5 UBI (UK) acknowledges that its failure to cease the use of the Trade
Marks on the expiration of this Agreement will result in immediate and
irremediable damage to UB and to the rights of any subsequent licencee.
UBI (UK) acknowledges and admits that there is no adequate remedy at law
for such failure, and agrees that in the event of such failure, UB shall
be entitled to equitable relief by way of temporary and permanent
injunctions and such other and further relief including monetary damages
as any court with jurisdiction may deem just and proper.
13.6 UBI (UK) shall report to UB in writing any infringement or imitation of
the Trade Marks of which UBI (UK) become aware. UB shall have the sole
right to determine whether to institute litigation upon such
infringements as well as the selection of counsel. UB may commence or
prosecute any claims or suits for infringement of the Trade Marks in its
own name or the name of UBI (UK) or join UBI (UK) as a party or parties
thereto. UB shall be entitled to keep the entire amount of any recovery
therefrom. If UB brings an action against any infringer of the Trade
Marks, UBI (UK) shall cooperate with UB and lend whatever assistance UBI
(UK) can or is necessary in the prosecution of such litigation. If UB
decides not to institute such litigation, it may authorize, within its
sole discretion, in writing UBI (UK) to institute such litigation, in
which event UBI (UK) shall be solely responsible for the costs of such
litigation and shall be entitled to keep any recovery therefrom.
13.7 UBI (UK) shall not contest or deny the validity or enforceability of any
of the Trade Marks or oppose or seek to cancel any registration thereof
by UB, or aid or abet others in doing so, either during the Term or at
any time thereafter.
13.8 UBI (UK) acknowledges that any use of the Trade Marks in violation of the
provisions of this clause 13 will cause irreparable damage to UB and its
licencees constitutes an incurable default of this Agreement, and is
grounds for relief provided in clause 13.5.
14. Obligations and rights of parties upon expiration
14.1 On the expiration of this Agreement UBI (UK) shall forthwith discontinue
the use of the Trade Marks and shall not thereafter use, in any manner,
or for any purpose, directly or indirectly, any of the same, or any Trade
Marks or symbols deceptively similar thereto. UBI (UK) shall immediately
return to UB any written embodiment relating to the use of the Trade
Marks.
14.2 The expiration of this Agreement shall be without prejudice to any other
rights or claims of UB against UBI (UK), or any other remedy available to
it, or relieve UBI (UK) of any obligations which by their nature survive
the expiration of this Agreement.
14.3 Upon or following the expiry of this Agreement UBI (UK) shall cease to
licence to either UBSN, SN or any other persons any rights to the
Kingfisher Products under the Trade Marks.
14.4 Upon or following the expiry of this Agreement, UBI (UK) shall, upon the
request of UB, do all things and execute all documents necessary to
cancel the entries, if any, to record UBI (UK) as a registered user of
the Trade Marks in the Territory.
This Agreement has been duly executed by the parties on the date set out above.
SIGNED by )For UNITED BREWERIES LIMITED
For and on behalf of ) /s/ T.S. ▇▇▇▇▇▇▇▇ ▇▇▇
UNITED BREWERIES LIMITED ) T.S. ▇▇▇▇▇▇▇▇ ▇▇▇
in the presence of ) ▇▇▇▇▇▇▇▇▇ DIRECTOR
SIGNED by K. G. ▇▇▇▇▇ )
for and on behalf of )
UNITED BREWERIES ) /s/ K. G. ▇▇▇▇▇
INTERNATIONAL (UK) LIMITED )
in the presence of )
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
SCHEDULE 1
Trade ▇▇▇▇
Class: Schedule 4, Class 32
Registration No: 1,182,204
Date of Registration: 23 September 1982
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