ACE HARDWARE CORPORATION
LICENSE AGREEMENT FOR
________________________
TABLE OF CONTENTS
PARAGRAPH PAGE
--------- ----
I. APPOINTMENT 2
II. FEES 2
III. TERM & RENEWAL 5
IV. PROPRIETARY MARKS 6
V. CONFIDENTIAL INFORMATION 8
VI. COMPANY'S OBLIGATIONS 10
VII. LICENSEE'S OBLIGATIONS 12
VIII. CONFIDENTIAL OPERATIONS MANUAL 18
IX. COVENANTS NOT TO COMPETE 18
X. DEFAULT AND TERMINATION 19
XI. EXPIRATION OR TERMINATION 22
XII. TRANSFERABILITY OF INTEREST 24
XIII. NO AGENCY 25
XIV. MISCELLANEOUS 25
EXHIBITS
A. ACE STORE LOCATIONS
ACE HARDWARE CORPORATION
LICENSE AGREEMENT
This License Agreement ("Agreement"), by and between ACE HARDWARE
CORPORATION, a Delaware corporation having its principal place of business
at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ U.S.A. ("Company") and
_________________________________, a corporation incorporated under the laws
of _____________, having its general offices at ___________________________
____________________________________________("Licensee").
WITNESSETH:
1. Company is in the business of selling home improvement products,
tools, hardware, paint and related merchandise and products, including private
labelled merchandise containing the name "ACE" or "ACE Hardware" (collectively
referred to as the "Merchandise") at wholesale; and
2. Company is also in the business of granting the rights to operate
businesses selling Merchandise from retail locations("ACE Stores") under the
trade names and service marks "ACE", "ACE Hardware", and "ACE Home Center" and
associated logos and commercial symbols, and such other trade names, trademarks
and service marks ("ACE Marks") as are now designated (and may hereinafter be
designated in writing by Company) as an integral part of the ACE Stores; and
3. Licensee desires to establish and operate ACE Stores outside the
United States of America in the country of________________(the "Territory") as
a licensee of Company and to sublicense others the right to establish and
operate ACE Stores in the Territory, using procedures and standards developed
and prescribed by Company; and
4. Company expressly disclaims the making of, and Licensee acknowledges
that it has not received nor relied upon, any warranty or guaranty, express or
implied, as to the revenues, profits or success of the business venture
contemplated by this Agreement.
NOW, THEREFORE, the parties, in consideration of the undertakings and
commitments of each party to the other set forth in this Agreement, agree as
follows:
PARAGRAPH I
APPOINTMENT
1.01. Subject to the terms and conditions herein and during the term of
this Agreement, Company grants to Licensee the exclusive right throughout the
Territory to use the ACE Marks and Licensee undertakes the obligation to
establish and operate ACE Stores solely in compliance with operational
procedures and standards prescribed by Company from time to time. Company
will not, so long as this Agreement is in force and effect and Licensee is
not in default under any of the terms hereof, license another to operate, or
itself operate, any other ACE Stores within the Territory.
1.02 Company further grants to Licensee, upon and subject to the terms
and conditions set forth in Section 7.03 below, the right to sublicense others
to establish and operate ACE Stores in the Territory solely in compliance with
operational procedures and standards prescribed by Company from time to time,
and to supervise the operations of such sublicensed ACE Stores.
1.03 In order to maintain the goodwill and prestige which the Ace Marks
enjoy with the public, the uniform high standards of quality of the
Merchandise, and to maintain the integrity of the Ace Marks as indicators of
product origin and uniform quality, Company further grants to Licensee, upon
and subject to the terms and conditions set forth herein, the right to purchase
Merchandise from Company for resale at the ACE Stores in the Territory.
1.04 In connection with the above rights, Company grants to Licensee the
exclusive right and license to use certain ACE Marks , as well as exclusive
access to Company's proprietary systems, operations manuals ("Operations
Manuals"), standard forms and formats, and operational knowledge as Company
shall, in its discretion, provide for use within the Territory.
PARAGRAPH II
FEES
2.01 In consideration of the license granted herein, Licensee shall pay
to Company a non-refundable license fee in the amount of ____________________
United States Dollars ($_________________ U.S.) ("License Fee").
2.02 In connection with the purchase of Merchandise for resale from ACE
Stores in the Territory, Licensee agrees to pay Company as follows:
(i) for Merchandise purchased from Company's warehouses,the Company's
United States dealer cost for such merchandise, plus a three percent
(3%) international handling charge;
(ii) for Merchandise purchased directly from Company's vendors in the
United States and billed through Company, the vendor invoice cost of
such merchandise, plus a five percent (5%) international handling
charge;
(iii) for Merchandise purchased through Company's bulletin program
(pooled merchandise), the cost of such merchandise, plus six percent
(6%), plus a three percent (3%) international handling charge; and
(iv) for Merchandise purchased directly from vendors outside
the United Sates and billed through Company, the cost of
such merchandise plus a handling charge to be determined by
Company on a per purchase basis.
It is mutually understood that the Company's handling charges may be
changed by Company upon sixty (60) days prior written notice to Licensee.
2.03 Licensee shall also pay to Company a net royalty fee ("Royalty Fee")
in an amount equal to__________________________percent (______%) of the annual
gross retail revenues generated from the sale of home improvement products,
tools, hardware, paint and related merchandise and products, from whatever
source, provided to customers of the ACE Stores operated by Licensee in the
Territory or other retail customers of Licensee towhom Licensee sells
merchandise purchased from or through Company in the Territory including,
without limitation, sales to customers over the internet ("Gross Retail
Revenues"). For the purposes of this Subparagraph, the term "Gross Retail
Revenues" shall exclude customer refunds, customer credits and all sales taxes
and value added taxes actually collected by Licensee from customers and paid
to any government authority in the Territory, which shall be the sole
responsibility of Licensee.
2.04 Licensee shall also pay to Company a sublicensee royalty fee
("Sublicensee Royalty Fee") in an amount equal to __________________ percent
(____%) of any royalty fee or similar fee collected by the Licensee from its
sublicensees in the Territory generated by its sublicensees from the sale of
home improvement products, tools, hardware, paint and related merchandise and
products, from whatever source, provided to customers of the ACE Stores
operated by the sublicensees or other retail customers of the sublicensees in
the Territory including, without limitation, sales to customers over the
internet. The minimum royalty fee to be charged by Licensee to its
sublicensees shall not be less than ______ percent (__%).
2.05 Licensee shall also pay to Company a unit opening fee ("Unit
Opening Fee") in an amount equal to_________________percent (___%) of the
license fee, unit fee or similar fee collected by Licensee from its
sublicensees. Licensee shall also pay to Company _________ percent ( __%) of
the license fee, area development fee or similar fee collected by Licensee
from any area or regional developer appointed by Licensee and approved by
Company in the Territory
2.06 All Royalty Fees, Sublicensee Royalty Fees and Unit Opening Fees
shall be due and payable to the Company, in United States Dollars, thirty (30)
days after the end of each calendar quarter for the calendar quarter just
ended. In the event that payment of the above fees in United States Dollars
is not possible by application of law, Licensee shall be entitled to make
payment in _____________ currency (____) at the currencyexchange rate
reported in the Wall Street Journal, on the date the payment is transmitted,
provided, however, that if the payment is transmitted after the date on which
payment is due, the currency exchange rate used shall be the rate as of the day
payment is transmitted or the date payment was due, whichever rate produces the
larger amount in United States Dollars.
2.07 Licensee shall reimburse Company for any and all out-of-pocket
expenses including, travel (at the business class rate), lodging and tax,
meals, and laundry costs incurred by Company's employees in the performance of
Company's obligations hereunder during the initial six (6) years after
execution of this Agreement. Commencing with the first day of the seventh year
after execution of this Agreement, expenses for travel, food and lodging will
be borne by the party requesting the service.
2.08 Licensee shall pay all amounts shown as currently due on Company's
billing statements for purchases of merchandise, supplies and services made by
Licensee with such promptness as shall enable Company to receive payment no
later than the tenth (10th) day following the date of the statement (it being
understood that all invoices for merchandise purchased on extended payment
terms become currently due when other items billed are not paid when due),
and pay a service charge per bi-weekly billing statement on any past due
balance in such amount as Company may from time to time impose on its dealers
generally. Company shall provide Licensee with credit terms of a minimum of
52 days from the date the warehouse invoice first appears on Licensee's billing
statement for purchases of merchandise from the Company's warehouse (142 days
for the warehouse portion of any opening stock order). All amounts becoming
payable by Licensee pursuant to Company's billing statements shall be payable
in United States currency.
2.09 Licensee shall pay to Company a fee of Five Thousand United States
Dollars ($5,000 U.S.) for each additional store account identification number
requested provided, however, that if the Ace Store for which such additional
store account number meets the Company's Premier Hardlines Dealer (PHD)
standards, then such fee shall be reduced to One Thousand Dollars
($1,000 U.S.).
2.10 All production and translation expenses will be paid by Licensee.
PARAGRAPH III
TERM & RENEWAL
3.01 This Agreement shall be effective and binding from the date of its
execution for an initial term equal to ten(10) years from the date of this
Agreement (the "Initial Term").
3.02 Licensee shall have the right to renew this license at the
expiration of the initial term of the license for two (2) additional terms of
five (5) years each ("Renewal Terms"), provided that all of the following
conditions have been fulfilled:
a. Licensee has, during the entire term of this Agreement, complied
with all the provisions hereof;
b. Licensee has given Company written notice of its intent to renew
the license not less than six (6) months nor more than twelve
(12) months prior to expiration of the then current term;
c. Licensee has satisfied all monetary obligations owed by it to
Company and has paid these obligations in a timely manner as
required herein throughout the term of this Agreement;
d. Licensee has satisfied the performance requirements for number
of square feet of retail space and dollar volume of merchandise
purchases established in Paragraph 7.05 of this Agreement; and
e. Upon renewal, and if requested by Company, Licensee has executed
a new Agreement, which agreement shall supersede in all respects
this Agreement, the terms of which shall be substantially the
same as the terms of this Agreement but which may include,
without limitation, a different Royalty Fee or other monetary
terms.
PARAGRAPH IV
PROPRIETARY MARKS
4.01 Company grants Licensee exclusive license to use the ACE Marks in
connection with the retail hardware services offered and performed by Licensee
at the location(s) within the Territory, and in connection with the Merchandise
purchased from Company for resale from the said location(s). Licensee and its
sublicensees shall display an exterior store identification sign that shall
comply with the identity standards and requirements set forth in the Operations
Manual or the ACE Identity Standards Manual.
4.02 Company does not guarantee, warrant or offerany patent or trademark
protection to Licensee on any of the products purchased by Licensee from
Company, and Company shall not be obligated or liable in any way to indemnify
Licensee for any actual or alleged violations of patent or patent rights, or
trademark, service ▇▇▇▇, trade name or other intellectual property rights
arising from or in connection with the sale or use of any products, programs
or services purchased from Company by Licensee or the exercise of any rights
granted hereunder.
4.03 Licensee agrees to use the ACE Marks only in the form, manner, and
logotype previously approved by Company in writing and to comply with all
guidelines and instructions from time to time issued by Company with respect
thereto. All use of the ACE Marks shall clearly and conspicuously disclose
that the ACE Marks are owned by, or used under license from Company.
4.04 All services provided in connection with which the ACE Marks are
used shall be of high quality as determined by Company, and otherwise in
accordance with such specifications as Company may, from time to time,
prescribe.
4.05 In no event shall the license herein granted be construed as
authorizing Licensee to use any marks, trade names, slogans or logos of
Company other than as specifically licensed hereunder. Licensee agrees that
it shall not place or cause to be placed the names "ACE" or "ACE Hardware"
on any merchandise without the Company's prior written consent.
4.06 Licensee agrees not to adapt or vary the ACE Marks or create or use
any trademark, service marks, trade names, symbols or logos that are
confusingly similar to those owned by Company, whether or not licensed
hereunder. Licensee also agrees to at no time use the ACE Marks in association
or conjunction with any trade name, trademark or service ▇▇▇▇ owned or
registered by a competitor of Company.
4.07 Company expressly disclaims any and all liability to Licensee or to
any third party with respect to any actual or alleged invalidity of the ▇▇▇▇
or in connection with Licensee's use of the ACE Marks, or the use of the
services furnished by Licensee in connection therewith.
4.08 Licensee acknowledges Company's ownership of the ACE Marks, and
agrees that it will not do or permit any act to be done which may impair such
ownership. Licensee agrees that all use of the ACE Marks by it shall inure to
the benefit of, and be on behalf of, Company. Licensee agrees that it will
never in any manner represent that it has an ownership interest in the ACE
Marks, or contest the ownership of the ACE Marks by Company, or attack the
validity of the license herein granted. Licensee agrees to execute, upon
request, such documents as Company may deem necessary or desirable to
acknowledge Company's ownership of the ACE Marks, or to register, retain,
enforce or defend the ACE Marks.
4.09 Licensee agrees to notify Company of any unauthorized use of the
ACE Marks by others, as promptly as such use may come to Licensee's attention.
Company shall have the sole and exclusive right, but not the obligation, to
register or renew the Ace Marks or to commence infringement, opposition or
other proceedings with respect thereto.
4.10 Licensee agrees at no time to register or attempt to register, adopt
or use, authorize, permit or condone the use by any other person or firm, of
any name, word or ▇▇▇▇ which is similar to or likely to be confused with, any
trade name, trademark or service ▇▇▇▇ belonging to or registered by Company,
whether or not licensed hereunder, (it being understood and agreed that all
variations or adaptations of any trademarks or service marks owned or
registered by Company shall be the exclusive property of Company and that
Company shall have the exclusive right to register the same and to license the
use thereof).
4.11 In order to preserve the validity and integrity of the ACE Marks and
copyrighted materials licensed herein and to assure that Licensee is properly
employing the same in the operation of its ACE Stores, Company or its agents
shall have the right of entry and inspection of Licensee's premises upon 10
days prior notice to Licensee and, additionally, shall have the right to
observe the manner in which Licensee is conducting its operations and
activities, to confer with Licensee's customers and employees and to inspect
merchandise, products, reports, forms and documents and related data for test
of content and evaluation purposes to make certain that the operations and
activities are satisfactory and meet the Company's Premier Hardlines Dealer
(P.H.D.) standards and other performance standards. Licensee shall also
provide, upon Company's request, samples of advertising or other documents
to confirm compliance with Company's standards and the terms of this Agreement.
4.12 Licensee shall not use the Marks in any advertising or any other
form of promotion without appropriate registration symbols, or other
designation of ownership and rights required by law in the country in which the
ACE Stores is operated.
PARAGRAPH V
CONFIDENTIAL INFORMATION
5.01 Licensee acknowledges that its entire knowledge of the operation of
an ACE Stores, including the knowledge or know-how regarding the
specifications, standards and operating procedures of the Company services, is
derived from information disclosed to Licensee by Company and that certain of
such information is proprietary, confidential and a trade secret of Company.
Licensee shall maintain the absolute confidentiality of all such proprietary
information during and after the term of this Agreement and shall not use any
such information in any other business or in any manner not specifically
authorized or approved in writing by Company.
5.02 Licensee agrees to keep in strict confidence all Operations Manuals,
warehouse checklists, CD Rom, computer software, videotapes, bulletins, vendor
catalogs, price lists, order forms and other documents and information
furnished by Company with respect to the merchandise, programs and services
which are available from Company, and at no time to divulge or display any of
the foregoing, other than in connection with Licensee's transactions with
Company or its sublicensees or for the purpose of promoting Licensee's
business. Licensee agrees to comply with all policy statements and guidelines
communicated from time to time by Company with respect to any confidential
information belonging to Company and at no time to authorize, permit or condone
the use of any of the foregoing by any other person or firm.
5.03 Licensee shall divulge such confidential information only to the
extent and only to such of its employees as must have access to it in order to
operate the ACE Stores. Any and all information, knowledge and know-how
including, but not limited to, specifications and standards concerning the
operation of the ACE Stores and other data which Company provides in
connection with the operation of the ACE Stores shall be deemed confidential
for purposes of this Agreement, except information which Licensee can
demonstrate lawfully came to its attention prior to disclosure thereof by
Company; or which, at the time of disclosure by Company to Licensee, had
lawfully become a part of the public domain, through publication or
communication by others; which, after disclosure to Licensee by Company,
lawfully becomes a part of the public domain through publication or
communication by others, or which Licensee is required to be furnished to any
government or public authority pursuant to any law or judicial order applicable
to Licensee.
5.04 Licensee acknowledges and agrees that Company owns or is the
licensee of various works of authorship used in connection with the operation
of the ACE Stores including, but not limited to, all categories of works
eligible for protection under the United States copyright law, all of which
shall be deemed to be Copyrighted Works under this Agreement. Such Copyrighted
Works include, but are not limited to, the Manual, advertisements, promotional
materials, posters and signs, and may include all or part of the Marks, trade
dress and other portions of the System. Company intends that all works of
authorship related to the operation of ACE Stores which are created by Company
in the future shall be owned by Company.
5.05 If Licensee develops any new program, project, work of art or other
material in the course of operating the ACE Stores which incorporates the ACE
marks or the ACE name and Company approves the use and sale of this service in
the ACE Stores, this new program, project, work of art or other material shall
automatically become the property of Company as though Company had developed
the program, project, work of art or other material itself ("Work for Hire").
PARAGRAPH VI
COMPANY'S OBLIGATIONS
Company agrees to provide to Licensee the following:
6.01 Numerous proprietary Operations Manuals covering the functional
areas within the ACE system.
6.02 The use of Company's pre-developed formats for promotional
materials, annual surveys and other operations functions.
6.03 The use of Company's extensive promotional and educational
videotapes and new videotaped titles as produced and developed.
6.04 The use of Company's consultants in connection with the operation
of distribution centers and retail stores.
6.05 Training provided in various locations in the United States over the
term of the Agreement:
a. Up to _____ (__) weeks of distribution training;
b. ____ (__) weeks of merchandising training;
c. ___ (__) weeks of wholesale training;
d. A minimum of ____ (__) weeks of retail training at
Company's offices and/or distribution centers;
e. Between ____ (__) and ___ (__) weeks of retail
training at retail locations to be designated by
Company.
Company estimates that it will provide components of the above
training to a maximum of _______ (__) persons. Any training beyond that set
out above shall be evaluated and discussed by Company and Licensee upon request
of the Licensee. Such additional training shall be provided on a fee basis.
6.06 On-site training in the Territory:
a. ____ (_) weeks of in-store training will be provided
by a Company employee at each of the first ____ (_) sites
to be opened by Licensee in the Territory.
b. At least ____ (_) weeks at the office selected for
Licensee's new operation in the Territory, providing
training by a Company employee in areas such as
merchandising, quality control and reporting.
c. A Company employee will oversee the entire project
in the Territory for up to twelve (12) weeks.
6.07 Assistance in developing a business plan detailing how to develop
ACE Stores in the Territory including analysis of human resources needs,
marketing strategies, cash flow requirements, and other operational needs.
6.08 Assistance in developing a marketing plan to attract and qualify
potential sublicensees.
6.09 Periodic on-going consultation and follow-up to ensure that
Company's systems are being properly implemented.
6.10 On-going research and development into new suppliers, product lines,
merchandising techniques and operational techniques, from a worldwide
perspective.
6.11 Access to Company's existing and on-going advertising and
promotional support, including the consultation services of the Company's
advertising coordinator for at least one (1) week to assist in developing an
advertising and marketing program.
6.12 Exclusive access to Company's on-going private label product lines
in the Territory.
6.13 Exclusive access to Company's proprietary systems, standard forms
and formats, and operational knowledge for use within the Territory.
6.14 An annual review of operations and a written report outlining
operational deficiencies or defaults identified by such review together with a
timetable for correcting such defaults which cure period in no event shall
exceed six (6) months from receipt of Company's notice of such default.
6.15 The parties agree that all information provided by Company to
Licensee or developed by Company in conjunction with the Licensee pursuant to
this Paragraph VI shall be subject to the confidentiality obligations set forth
in Paragraph V above.
PARAGRAPH VII
LICENSEE'S OBLIGATIONS
7.01 Licensee shall comply with all requirements set forth in this
Agreement, the Operations Manual, the plans and reports set forth in sections
6.07, 6.08 and 6.14, and other written policies provided to Licensee by
Company and as developed by the parties. Mandatory specifications, standards,
operating procedures and rules prescribed from time to time by Company in the
Manual or otherwise communicated to Licensee in writing, shall constitute
provisions of this Agreement as if fully set forth herein.
7.02 Licensee shall comply with any and all laws, regulations and
governmental orders of the United States of America, the several states, or
the country or Territory in which Licensee's ACE Stores is located, which may
be applicable to the sale and distribution of the products purchased by
Licensee from Company or to the conduct of Licensee's business operations, as
the case may be. Licensee agrees to order only such merchandise as may
lawfully be resold without alterations in labeling or otherwise in the country
or Territory in which Licensee's business is located and agrees to indemnify
Company and hold it harmless from and against any and all claims, suits,
proceedings, demands, actions, judgments, orders, fines or penalties arising
in connection with the actual or alleged failure of such merchandise to comply
with any laws, regulations or governmental requirements applicable to the sale
or resale thereof. Licensee shall provide Company with copies of all licenses,
permits and certificates required by applicable law for the operation of a
business.
7.03 Licensee shall have the right to sublicense the ACE Marks: "ACE",
"ACE Hardware", and "ACE Home Center" within the Territory, provided that
Licensee satisfies the following obligations:
a. Licensee personally operates ACE Stores in the Territory which
shall total at least ___________________square feet in the
aggregate.
b. Licensee satisfies the minimum annual purchase requirements set
forth in Section 7.05 below.
Licensee shall advise Company of the address, telephone number and size of
each ACE Store opened by Licensee and its sublicensees during the term of this
Agreement, a list of which shall be attached hereto as Exhibit A. Exhibit A
shall be modified as each new ACE Store is opened in the Territory.
7.04 Licensee shall, at its expense, provide the following services to
sublicensed ACE Stores within the Territory:
a. Licensee shall develop individual license agreements for use
with individual sublicensees in the Territory. Licensee shall submit a draft
of such license agreement to Company for Company's prior approval. Licensee
shall enter into individual license agreements with individual sublicensees
for the operation of individual ACE Stores within the Territory.
b. Licensee shall train all individual sublicensees with a training
program supplied by or approved by Company. At a minimum, Licensee shall
provide individual sublicensees and their managers or employees with a minimum
six (6) week retail training program prior to commencement of operations.
c. Licensee shall make periodic visits to all individual
sublicensed businesses located within the Territory, for the purposes of
consultation, assistance and guidance of individual sublicensees in all aspects
of the operation and management of the individual ACE Stores. Licensee's
representatives who visit at the individual sublicensed businesses will
prepare, for the benefit of individual sublicensees, Licensee and Company,
written reports with respect to such visits outlining any suggested changes or
improvements in the operations and detailing any defaults in such operations
which become evident as a result of any such visit. A copy of each such
written report shall be provided to both the individual sublicensees and
Company. Licensee's agreements with its sublicensees shall also provide that
the Company may make periodic visits to sublicensed ACE Stores to ensure that
they are operating in accordance with the Company's standards.
d. Licensee shall advise individual sublicensees within the
Territory of problems arising out of the operation of the individual ACE
Stores as disclosed by reports submitted to Licensee, or to Licensee's
representative, by individual sublicensees or pursuant to inspections of the
individual ACE Stores conducted by Licensee or Licensee's representative.
e. Licensee shall take all necessary steps to enforce the terms of
each individual sublicensee's Individual License Agreement and the provisions
of the Manual.
f. Licensee shall coordinate, administer, supervise and otherwise
monitor advertising and promotional activities of individual sublicensees
within the Territory.
All expenses incurred by Licensee in performing its obligations under this
Agreement shall be the sole responsibility of Licensee. Licensee agrees to
expend such sums for office administration, travel, promotions, and advertising
as may be reasonably required to develop and supervise the Territory.
7.05 Licensee agrees to purchase from Company the following minimum
annual dollar volume purchases in United States currency during the Initial
Term:
Year One $ Year Six $
Year Two $ Year Seven $
Year Three $ Year Eight $
Year Four $ Year Nine $
Year Five $ Year Ten $
Licensee further agrees to develop ACE Stores (both Licensee owned and
sublicensed) during the Initial Term of this Agreement consisting of a minimum
of ________________ square feet of retail space as follows:
Year One Year Six
Year Two Year Seven
Year Three Year Eight
Year Four Year Nine
Year Five Year Ten
The Years referred to in this Section 7.05 refer to twelve (12) month
periods commencing upon execution of this Agreement. The minimum annual
performance requirements for the Renewal Term(s), if any, shall be mutually
agreed upon by the Company and Licensee prior to the Initial Term, provided,
however, that the minimum performance requirements for the Renewal Term(s)
shall in no event be less than those required for Year Ten as set forth above.
All of the ACE Stores opened by Licensee or its sublicensees in the Territory
shall comply with the Company's Premier Hardlines Dealer (P.H.D.) standards.
7.06 Licensee shall purchase products from Company as follows:
a. Licensee shall refrain from making any representation that a
product purchased from Company can be used for a purpose or in a manner not
intended by its manufacturer, and Licensee assumes full responsibility for,
and hereby indemnifies Company and holds it harmless from and against any and
all claims asserted against Company (a) which are based upon or arise out of
any such representation or (b) which are based upon or arise out of any act
performed by Licensee or its sublicensees to assist Licensee's customer in
using a product purchased from Company, or to alter, install, repair or
service any product purchased by Licensee from Company.
b. Licensee shall indemnify Company and hold it harmless from and
against any and all claims for (a) charges asserted against Company by another
party for services provided by such party to Licensee or its sublicensees or
for merchandise shipped by another party at Licensee's or its sublicensee's
request and (b) damages demanded from Company in connection with any occurrence
concerning which it is alleged that Licensee functioned as an agent of the
Company.
c. Licensee shall indemnify Company and hold it harmless for the
amount of all attorneys' fees and expenses reasonably incurred by it in:
(i) enforcing compliance by Licensee with the provisions of
this Agreement or enforcing collection of any past due balances owing by
Licensee on Company's billing statements,
(ii) defending any claims asserted against Company which are
based upon or arise out of any occurrence of the types described in
Paragraphs IV, V, VII and XIII hereof or in attempting to avoid or mitigate
any losses to Company in connection therewith, and
(iii)in protecting any security interest of Company granted in
any property of Licensee in the event that Licensee becomes a debtor in
bankruptcy or insolvency proceedings.
d. Licensee shall furnish Company with annual financial statements
of their year end and financial statements, books and records and related
information including purchase and sales figures, concerning Licensee's
business on a quarterly basis or as shall reasonably be requested from time to
time by Company in order to confirm Licensees compliance with the terms of this
Agreement. Licensee shall require its sublicensees and area or regional
developers to provide to Licensee and Company similar financial information on
a quarterly basis including, without limitation, retail sales data and data
regarding their cost of goods sold.
e. Licensee shall provide Company with a standby irrevocable letter
of credit, issued or confirmed by a United States bank approved by Company or
with such other instruments or collateral as Company shall deem to be
appropriate in order to secure the prompt payment of the indebtedness to it
incurred by Licensee from time to time. Company agrees to, as long as Licensee
is not in breach of this Agreement, extend credit to Licensee, in such amount
as Company and its credit insurance company shall, in their sole discretion,
deem reasonable for sales of Merchandise and services to Licensee. Company
reserves the right to change the amount of credit extended to Licensee from
time to time.
f. All orders for merchandise, supplies and services placed by
Licensee shall be subject to acceptance or nonacceptance by Company at its
corporate headquarters, now located in Oak Brook, Illinois, United States of
America. Company shall cause all items ordered by Licensee to be shipped to
Licensee's designated receiving terminal in the United States for shipment by
Licensee only to Licensee's location listed hereinabove. Title to all such
merchandise and supplies shipped to Licensee shall pass to Licensee upon
delivery to such receiving terminal. Licensee shall be responsible for and
agrees to pay to Company all costs and charges related to the delivery of such
items to said terminal, except in the case of prepaid shipments from Company's
vendors.
g. Licensee shall be solely responsible for and shall pay when due
all import or export permit fees, customs duties and taxes of any nature
mposed upon the sales made by Company to Licensee by the United States
Government or the government of the country in which Licensee's place of
business is located. Licensee shall fully indemnify Company for the amount of
any such fees, duties and taxes, together with any interest or penalties
thereon, which Company may be required to pay as a result of Licensee's failure
to do so.
h. At its sole discretion and notwithstanding any other provisions
of this Agreement to the contrary, Company may limit or restrict the quantities
or types of merchandise sold to Licensee hereunder in order to maintain an
adequate inventory of merchandise to supply other dealers and licensees.
i. Nothing herein shall be deemed in any way to limit the right of
Licensee to determine the prices or terms at which products purchased through
Company shall be resold by Licensee. It is expressly understood that Licensee
may resell such products at any prices determined by Licensee, whether greater
or lesser than any prices listed or suggested by Company.
j. Company shall supply Licensee with such quantities of sales
aids as Company, in its sole discretion, deems necessary or desirable. All
such sales aids shall be in the English language. All copyrights which may be
issued or applied for with respect to such sales aids or any translations
thereof shall be issued or applied for in the name of Company, and shall be
the sole property of Company.
k. Licensee agrees to return no merchandise to Company without the
written consent of Company first being obtained.
l. Licensee agrees to use the Ace International Redistribution
Center on the west coast of the United States in connection with the export by
Licensee of all merchandise purchased from Company by Licensee for itself and
for resale to its sublicensees .
m. Company warrants that it has good and marketable title to the
Merchandise. NO OTHER EXPRESS OR IMPLIED WARRANTY IS MADE BY COMPANY WITH
RESPECT TO THE MERCHANDISE, SUCH BEING SUBJECT TO WARRANTIES MADE BY THEIR
RESPECTIVE MANUFACTURERS. COMPANY'S TOTAL LIABILITY TO LICENSEE RESULTING FROM
THE SALE OF MERCHANDISE SHALL NOT EXCEED THE PRICE PAID BY LICENSEE FOR SUCH
MERCHANDISE. Notwithstanding the above, Company agrees that, to the extent
available, it will make its standard defective goods policy available to
Licensee. Licensee agrees not to return any merchandise to Company except in
compliance with such policy.
7.07 If requested at any time by Company, and if reasonably available to
Licensee in the Territory, Licensee shall maintain at Licensee's sole expense,
with a reputable insurance carrier or carriers, a policy or policies of
liability insurance with commercially reasonable coverage limits as agreed
upon by Company and Licensee with respect to any claims for damages to
property, personal injuries or wrongful death which are based upon or arise
out of any occurrence concerning which it is alleged that Licensee functioned
as an agent of Company, or that Licensee, Company, or either of them is
otherwise liable therefor, except for claims based on or arising out of the
sole negligence of Company. Company shall be named as an additional insured
party in each such policy and Company shall be furnished with a certificate of
insurance evidencing such coverages as are required herein.
7.08 Licensee and its sublicensees shall participate in the following
advertising and marketing programs:
a. Each calendar month Licensee shall spend an amount equal
to_____ percent (__%) of Licensee's gross retail revenues on local
advertising of Licensee's ACE Stores. Company shall provide guidelines for
conducting such advertising. Licensee shall provide to Company an accounting
as to its expenditures for local advertising and promotion on a quarterly
basis.
b. Licensee shall require each of its sublicensees to spend an
amount equal to two percent (2%) of such sublicensee's gross retail revenues
on advertising in the Territory. One percent (1%) of such amount shall be
spent directly by the sublicensee on local advertising of its ACE Store(s).
The other one percent (1%) shall be paid by the sublicensee to Licensee and
shall be spent by Licensee on institutional advertising of the ACE Stores in
the Territory.
c. Licensee shall submit all advertising and promotional materials
promoting the ACE Stores to Company for review and approval prior to use.
Company shall notify Licensee in writing of its disapproval of any such
advertising or promotional materials within thirty (30) business days of
receipt of such materials, or fifteen (15) business days if received via
telefax, from Licensee. If Company does not notify Licensee of its disapproval
of any such advertising or promotional materials within said thirty (30)
business day period, such advertising or promotional materials shall be deemed
approved. All advertising conducted by the ACE Stores shall be conducted in a
dignified manner and shall display the ACE Marks in the manner prescribed by
Company.
7.09 Licensee shall not engage in the wholesale distribution of ACE
branded products throughout the Territory to non-ACE Stores, home centers and
other channels of distribution.
7.10 Licensee shall operate additional Ace Stores only if (i) Licensee
is in compliance with all requirements and obligations of this Agreement and
all other agreements between Company and Licensee, and (ii) Licensee is in
compliance with all of its performance obligations of Paragraph 7.05. of this
Agreement.
7.11 Licensee shall notify Company in writing within fifteen (15) days
after it becomes aware of the commencement of any action, suit or proceeding
and of the issuance of any order, writ, injunction, award or decree of any
court, agency or other governmental instrumentality which may adversely affect
the operation or financial condition of the ACE Stores.
7.12 Licensee may, with Company's prior written consent, develop
additional ACE Stores within the Territory upon the same terms and conditions
set forth in this Agreement including satisfaction of the performance schedule
set forth in Paragraph 7.05 of this Agreement and, provided that Licensee has
made application to Company and has timely fulfilled its obligations arising
hereunder and under any other agreement between the parties and is in
compliance with the terms of this Agreement for each ACE Stores Licensee owns
and operates.
PARAGRAPH VIII
CONFIDENTIAL OPERATIONS MANUAL
8.01 Company shall provide to Licensee one (1) or more manuals containing
specifications, standards, operating procedures and rules prescribed from time
to time by Company relative to the operation of the ACE Stores. Licensee
shall, at its expense, have the Manual translated into the primary language
used in the Territory. The Manual, as used herein, shall refer to the entire
series of manuals detailing the operation of the ACE Stores. Company shall
have the right to add to and otherwise modify the Manual from time to time to
reflect changes in the specifications, standards, operating procedures and
rules prescribed by Company for the ACE Stores, provided that no such addition
or modification shall alter Licensee's fundamental status and rights under this
Agreement.
8.02 The Manual shall at all times remain the sole property of Company
and shall promptly be returned upon the expiration or other termination of
this Agreement. Licensee agrees and covenants that it shall not disclose,
duplicate or otherwise use in an unauthorized manner any portion of the Manual.
8.03 The Manual contains proprietary information of Company and shall be
kept confidential by Licensee both during the term of this Agreement and for a
period of five (5) years subsequent to the expiration or termination of this
Agreement. Licensee shall at all times ensure that its copy of the Manual be
available at the ACE Stores premises in a current and up-to-date manner.
PARAGRAPH IX
COVENANTS NOT TO COMPETE
9.01 Licensee covenants that during the term of this Agreement and any
renewal thereof, except as otherwise approved in writing by Company, Licensee
shall not, whether alone, as a partner, officer, director, employee, consultant
or holder of any beneficial interest in any such business or activity or any
person or entity engaged in any such activity, either directly or indirectly,
for itself or through, on behalf of or in conjunction with any person, persons,
partnership, corporation or other legal entity:
a. Divert or attempt to divert any business or customer of the
business licensed hereunder to any competitor, by direct or indirect inducement
or otherwise, or do or perform, directly or indirectly, any other act injurious
or prejudicial to the goodwill associated with Company's ACE Marks and the ACE
Stores.
b. Employ or seek to employ any person who is at that time employed
by Company or by any other licensee of Company or otherwise, directly or
indirectly, induce or seek to induce such person to leave his or her employment
with Company or its licensee, without first obtaining the Company's or its
licensee's written consent.
c. Own, maintain, engage in, or have any interest in any retail
hardware business utilizing a similar format as the ACE Stores licensed
hereunder.
9.02 Licensee shall not for a period of two (2) years following the
expiration or termination of this Agreement (or the maximum period allowable
by law, if less than two [2] years), either directly or indirectly, on behalf
of itself or through any other entity, engage in offering or selling home
improvement products, tools, hardware and merchandise and related products
pursuant to a franchise, license, or similar agreement with any U.S. competitor
of the Company.
PARAGRAPH X
DEFAULT AND TERMINATION
10.01 Either party may terminate this Agreement upon written notice to
the other for any of the following events:
a. the discovery of a material misrepresentation or omission made
by a party which, if known to the other party at the time of execution of this
Agreement, would cause such party to elect not to enter into this Agreement;
b. the liquidation, bankruptcy or insolvency of one of the parties;
c. the appointment of a trustee, receiver or liquidator for all or
substantially all of the assets or the business of one of the parties;
d. the attachment, sequestration, execution or seizure of all or
substantially all of the assets of the parties, provided that such attachment,
sequestration, execution or seizure is not discharged within thirty (30) days
from the institution thereof; or
e. subject to section 10.02 below, a breach by one of the parties
of any terms or conditions of this Agreement, such breach not being rectified
(assuming it is capable of being rectified within a reasonable period of time,
not to exceed sixty (60) days, following the receipt of written notice from
the non-breaching party.
10.02 This Agreement shall, at the option of Company, terminate
automatically upon delivery of notice of termination to Licensee, if Licensee:
a. Is convicted of or pleads no contest to a felony or other crime
or offense that is likely to adversely affect the reputation of Company,
Licensee or the ACE Stores.
b. Makes any unauthorized use, disclosure or duplication of any
portion of the Operations Manual or duplicates or discloses or makes any
unauthorized use of any trade secret or confidential information provided to
Licensee by Company.
c. Abandons, fails or refuses to actively operate any of the ACE
Stores for ten (10) business days in any twelve (12) month period provided
(excluding the closing of the ACE Stores for holidays recognized in the
Territory, or for reasons beyond the control of Licensee, such as natural
disasters), or if any of the ACE Stores are not being operated for a purpose
approved by Company or fails to relocate the premises of the ACE Stores to
approved premises within an approved period of time following expiration or
termination of the lease for the premises of the ACE Store.
d. Surrenders or transfers control of the operation of the ACE
Stores, makes or attempts to make an unauthorized direct or indirect
assignment of the license or an ownership interest in Licensee or fails or
refuses to assign the license or the interest in Licensee of a deceased or
incapacitated controlling owner thereof as herein required.
e. Submits to Company on two (2) or more separate occasions at any
time during the term of this Agreement any reports or other data, information
or supporting records which understate by more than two percent (2%) the
Royalty Fees, amounts due for merchandise purchased by Company or any fees
owed to Company for any period and Licensee is unable to demonstrate that such
understatements resulted from inadvertent error.
f. Materially misuses or makes any unauthorized use of any of the
Marks or commits any other act which can reasonably be expected to materially
impair the goodwill associated with any of the Marks. A "material misuse"
shall mean any use of the Marks not previously approved in this Agreement or
otherwise in writing by Company, or any use other than for the promotion of
the ACE Stores.
g. Materially misuses or makes any unauthorized use of the ACE
International Computer System. A "material misuse" shall mean any use of
the ACE International Computer System not previously approved in this
Agreement or otherwise in writing by Company, or any use other than for the
promotion of the ACE Stores.
h. Fails on two (2) or more separate occasions within any period
of twelve (12) consecutive months to submit when due reports or other
information or supporting records, to pay when due the Royalty Fees, amounts
due for purchases from Company or other payments due to Company, or otherwise
fails to comply with this Agreement, whether or not such failures to comply
are corrected after notice thereof is delivered to Licensee.
i. Fails to make expenditures for advertising as prescribed in
Paragraph 7.08. of this Agreement.
j. Fails to comply with the performance requirements in accordance
with the Schedule agreed upon by the parties as prescribed in Paragraph 7.05
of this Agreement.
k. Fails or refuses to make payments of any amounts due Company
for Royalty Fees, purchases from Company or any other amounts due to Company,
and does not correct such failure or refusal within fifteen (15) days after
written notice of such failure is delivered to Licensee; or
l. Fails or refuses to comply with any other provision of this
Agreement, or any mandatory specification, standard or operating procedure
prescribed in the Manual as developed by the parties or as otherwise agreed to
by the parties in writing, and does not correct such failure within six (6)
months or provide proof acceptable to Company that Licensee has made all
efforts as agreed upon by the parties to correct such failure and will
continue to make efforts to cure until a cure is effected as agreed upon by
the parties, if such failure cannot be corrected within ninety (90) days after
written notice of such failure to comply is delivered to Licensee.
10.03 If Licensee is a corporation, unless Licensee first obtain's
Company's prior written approval, this Agreement shall automatically terminate
upon the consummation of any sale or transfer of all of the shares of capital
stock (both voting and non-voting) of such corporation held by the holder or
holders of fifty percent (50%) or more of its outstanding voting stock.
PARAGRAPH XI
RIGHTS AND DUTIES OF THE PARTIES UPON EXPIRATION OR TERMINATION
11.01 Upon termination or expiration, this Agreement and all rights
granted hereunder to Licensee shall forthwith terminate, and:
a. Licensee shall immediately cease to operate the ACE Stores
under this Agreement and shall not thereafter, directly or indirectly,
represent to the public or hold itself out as a present or former licensee of
Company.
b. Licensee shall immediately and permanently cease to use, by
advertising or in any other manner whatsoever, any confidential methods,
procedures and techniques associated with the Marks and any distinctive forms,
slogans, signs, symbols, logos or devices associated with the Marks. In
particular, Licensee shall cease to use, without limitation, all signs,
advertising materials, stationery, forms and any other article which displays
the ACE Marks.
c. Licensee shall take such action as may be necessary to cancel
or assign to Company or Company's designee, at Company's option, any assumed
name or equivalent registration filed with governmental authorities which
contains the name "ACE" or any of the ACE Marks and Licensee shall furnish
Company with evidence satisfactory to Company of compliance with this
obligation within thirty (30) days after termination or expiration of this
Agreement.
d. In the event Licensee continues to operate or subsequently
begins to operate any other business, Licensee shall not use any reproduction,
counterfeit, copy or colorable imitation of the ACE Marks either in connection
with such other business or the promotion thereof, which is likely to cause
confusion, mistake or deception, or which is likely to dilute Company's
exclusive rights in and to the ACE Marks. This Paragraph XI. is not intended
as an approval of Licensee's right to operate other businesses and in no way
is it intended to contradict Paragraph IX. of this Agreement. Licensee shall
not utilize any designation of origin or description or representation which
falsely suggests or represents an association or connection with Company so as
to constitute unfair competition. Licensee shall make such modifications or
alterations to the premises of the ACE Stores immediately upon termination or
expiration of this Agreement as may be necessary to prevent any association
between Company and any business thereon subsequently operated by Licensee or
others, and shall make such specific additional changes thereto as Company may
reasonably request for that purpose. In the event Licensee fails or refuses
to comply with the requirements of this Paragraph XI., Company shall have the
right to enter upon the premises where Licensee's ACE Stores were located,
without incurring any liability to Licensee, for the purpose of making or
causing to be made such changes as may be required at the expense of Licensee,
which expense Licensee shall pay upon demand.
e. Licensee shall promptly pay all sums owing to Company as agreed
upon by the parties. In the event of termination for any default of Licensee,
such sums shall include but not be limited to, all damages, costs, expenses,
including reasonable attorneys' fees, license fees and lost future royalties
incurred by Company as a result of the default.
f. The losing party shall pay to the prevailing party all damages,
costs and expenses, including reasonable attorneys' fees, incurred subsequent
to the termination or expiration of the license herein granted in obtaining
injunctive or other relief for the enforcement of any provisions of this
Paragraph XI. or Paragraph IX.
g. Licensee shall immediately turn over to Company all Manuals,
customer lists, records, files, instructions, brochures, agreements,
disclosure statements and any and all other materials provided by Company to
Licensee relating to the operation of the ACE Stores (all of which are
acknowledged to be Company's property).
h. Company shall acquire all right, title and interest in and to
any sign or sign faces bearing the Marks. Licensee acknowledges Company's right
to have access to the premises of the ACE Stores should Company elect to take
possession of any said sign or sign faces bearing the ACE Marks. Removal
shall be at Licensee's expense.
i. Licensee shall comply with the covenants contained in Paragraph
IX. of this Agreement.
j. Licensee shall, at Company's request in Company's sole
discretion, assign to Company or Company's nominee, without charge, all of
Licensee's rights under its agreements with any area or regional developer or
any sublicensee, provided that the foregoing shall not apply in the event of
termination by Licensee for a material breach by Company.
11.02 All obligations of Company and Licensee which expressly or by their
nature survive the expiration or termination of this Agreement shall continue
in full force and effect subsequent to and notwithstanding its expiration or
termination and until they are satisfied or by their nature expire.
PARAGRAPH XII
TRANSFERABILITY OF INTEREST
12.01 This Agreement and all rights hereunder may be assigned and
transferred by Company and, if so, shall be binding upon and inure to the
benefit of Company's successors and assigns.
12.02 Licensee agrees to notify Company in writing:
a. prior to or concurrently with the effective date thereof, as to
any change in the legal form of ownership of Licensee (such as, for example, a
change from individual or partnership form to corporate form, or vice versa),
it being understood that no such change will operate to release from liability
to Company any party previously responsible for Licensee's obligations
hereunder without the written consent of Company,
b. as promptly as feasible, as to the death of any partner having
an interest in any partnership by which Licensee is owned or the death of any
stockholder owning 50% or more of the voting stock of Licensee if Licensee is
incorporated, or
c. not less than thirty (30) days prior to the closing of the
transaction, as to the name and address of each proposed buyer or transferee
in any proposed sale, assignment or transfer of fifty (50%) or more of the
ownership interest(s) of Licensee or of the business operated at the location
of Licensee's business indicated hereinabove or of all of the capital stock
(both voting and non-voting) owned by the holder(s) in a corporation owning the
business operated at such location if fifty percent (50%) or more of the
outstanding voting stock of such corporation is owned by such holder(s).
12.03 Licensee shall not transfer or assign this Agreement or any part
hereof without Company's written consent. Licensee shall promptly advise
Company in writing of any relocation of its place of business or the closing
of any existing place of business.
PARAGRAPH XIII
NO AGENCY
13.01 Licensee shall not have authority to represent Company in
Licensee's country, the Territory or elsewhere as an agent, nor to bind
Company to any contract, representation, understanding, act or deed
concerning Company or any products sold by it. Neither the making of
this Agreement nor the performance of any part of the provisions hereof shall
be construed to constitute Licensee as an agent or representative of Company
for any purpose nor shall this Agreement be deemed to establish a joint venture
or partnership between the parties. All sales of merchandise by Licensee shall
be for its own account, it being understood that Licensee is an independent
business reselling products which are purchased from Company.
13.02 Company shall not, by virtue of any approvals, advice or services,
provide to Licensee, assume responsibility or liability to Licensee or any
third parties to which Company would not otherwise be subject.
PARAGRAPH XIV
MISCELLANEOUS
14.01 The prevailing party shall be entitled to recover reasonable
attorneys' fees, experts' fees, court costs and all other expenses of
litigation in any action instituted against the other party in order to secure
or protect its rights under this Agreement or to enforce terms hereof.
14.02 This Agreement, any Exhibit attached hereto and the documents
referred to herein, shall be construed together and constitute the entire,
full and complete agreement between Company and Licensee concerning the subject
matter hereof, and supersede all prior agreements. This Paragraph XIV shall
not be orally modified. No other representation has induced Licensee to
execute this Agreement and there are no representations, inducements,
promises or agreements, oral or otherwise, between the parties not embodied
herein, which are of any force or effect with reference to this Agreement or
otherwise. No amendment, change or variance from this Agreement shall be
binding on either party unless executed in writing by both parties.
14.03 The Recitals set forth in this Agreement are specifically
incorporated into the terms of this Agreement and constitute a part of this
Agreement.
14.04 The signing of this Agreement by Licensee constitutes an application
only and this Agreement shall not be effective unless and until it has been
duly accepted and countersigned by Company at its principal office in
Illinois, United States of America not later than thirty (30) days after the
date of signing by Licensee. All orders for merchandise, supplies and services
placed by Licensee pursuant to this Agreement shall be transmitted to Company
at said office and Licensee shall be deemed to have consented and agreed that:
a. all provisions of this Agreement shall be interpreted and
construed in accordance with the substantive laws of the State of Illinois,
United States of America; and
b. all controversies, disputes or claims arising between Company
and Licensee arising out of or related to the relationship of the parties
hereto, this Agreement or any provision hereof, or any related agreement,
shall be submitted for arbitration to be administered by the office of the
American Arbitration Association ("AAA") in Chicago, Illinois, U.S.A. on
demand of either party. Such arbitration proceedings shall be conducted in
Chicago as herein provided before a panel of three (3) neutral arbitrators
and, except as otherwise provided in this Agreement, shall be conducted in
accordance with the then current commercial arbitration rules of the AAA for
international arbitrations. The arbitrators shall have the right to award or
include in their award any relief which they deem proper in the circumstances,
including without limitation, money damages (with interest on unpaid amounts
from date due), specific performance, injunctive relief, legal fees and costs,
but shall not have the authority to award exemplary, punitive or special
damages. The award and decision of the arbitrators shall be conclusive and
binding upon all parties hereto and judgment upon the award may be entered in
any court of competent jurisdiction, including courts in the United States of
America and the Territory. The parties further agree to be bound by the
provisions of any applicable limitation on the period of time in which claims
must be brought under applicable law or this Agreement, whichever is less.
The parties further agree that in connection with any such arbitration
proceeding, each shall submit or file any claim which would constitute a
compulsory counterclaim (as defined by Rule 13 of the United States Federal
Rules of Civil Procedure) within the same proceeding as the claim to which it
relates. Any such claim which is not submitted or filed as described above
shall be barred.
c. any suit brought by Company against Licensee to enforce any
provision of this Agreement or seeking any relief in connection with or
arising out of the relationship between Company and Licensee may be instituted
in an appropriate court in the State of Illinois, United States of America.
14.05 Except as otherwise specifically provided, all notices required or
permitted to be given hereunder by one party to the other party shall be
effective if personally delivered, airmailed or sent by telex or facsimile to
the addresses set forth hereinabove or to such other address as either party
designates to the other in writing for the receipt of notices hereunder, with
receipt deemed within fourteen (14) days after airmailing or within two (2)
days after sending by telex or facsimile.
14.06 The English version of this Agreement shall govern in the event of
any variations between the English version and any translation hereof and
shall be used exclusively in any arbitration, legal proceeding or suit
hereunder.
14.07 The failure of either party to enforce its rights under any
provision hereof shall not be deemed a waiver of such rights for purposes of
future enforcement. No modification of this Agreement or any waiver of rights
hereunder shall be of any force and effect unless in writing and signed by the
party against whom enforcement of such waiver or modification is sought.
14.08 The terms and conditions set forth in any purchase order or other
document shall be effective only to the extent that the same shall not be
inconsistent with the terms and conditions hereof.
14.09 Any provision or provisions hereof which contravene the law of any
state or country in which this Agreement is effective shall, in such state or
country, to the extent of such contravention of law, be deemed separable and
shall not impair the validity of any other term, condition orprovision hereof.
14.10 a. Company represents and warrants that:
(i) it is a corporation duly incorporated and existing under
the laws of the State of Delaware, the United States of America;
(ii) it has all necessary licenses to carry out its business in
the United Sates of America; and
(iii)this Agreement constitutes legally valid and binding
obligations of Company, enforceable against Company in accordance with its
terms, and the person or persons signing this agreement on behalf of Company
are duly authorized to do so.
b. Licensee represents and warrants that:
(i) it is a corporation duly incorporated and existing under
the laws of ___________;
(ii) it has all necessary licenses to carry out its business in
the Territory; and
(iii)this Agreement constitutes legally valid and binding
obligations of Licensee, enforceable against Licensee in accordance with its
terms, and the person or persons signing this agreement on behalf of Licensee
are duly authorized to do so.
IN WITNESS WHEREOF, this Agreement has been executed by the parties on
this _________ day of __________________, 20__.
COMPANY: LICENSEE:
ACE HARDWARE CORPORATION _____________________________________
By: By:
Title: Title:
EXHIBIT A TO THE LICENSE AGREEMENT
ACE STORE LOCATIONS
Address: Address:
Telephone No.: Telephone No.:
Commencement Date Commencement Date
Of Operations: Of Operations:
Number of Square Number of Square
Feet: Feet:
Address: Address:
Telephone No.: Telephone No.:
Commencement Date Commencement Date
Of Operations: Of Operations:
Number of Square Number of Square
Feet: Feet:
Address: Address:
Telephone No.: Telephone No.:
Commencement Date Commencement Date
Of Operations: Of Operations:
Number of Square Number of Square
Feet: Feet:
Address: Address:
Telephone No.: Telephone No.:
Commencement Date Commencement Date
Of Operations: Of Operations:
Number of Square Number of Square
Feet: Feet: