LICENSE AGREEMENT
THIS AGREEMENT is made and entered into this 22nd day of September, 2003
and between THE ▇▇▇▇ ▇▇▇▇▇▇ FOUNDATION FOR THE VISUAL ARTS, INC., a
corporation organized under the laws of the State of New York, with its
principal place of business at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇-▇▇▇▇, (hereinafter referred to as "OWNER") and KNIGHTSBRIDGE FINE W1NES,
INC., a corporation organized under the laws of Nevada, with its principal place
of business at ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter
referred to as "LICENSEE"). The parties hereby agree as follows:
1. DEFINITIONS
1.1. LICENSED ARTICLES mean each of the articles of merchandise or products,
and their packaging or component parts, bearing the PROPERTY as set forth
in EXHIBIT 1.
1.2. PROPERTY means the names, symbols, designs, logos: artwork, copyrights,
trade dress and trademarks set forth in SCHEDULE A.
1.3. LICENSED TERRITORY means the country or countries set forth in EXHibIT 2.
1.4. MANUFACTURER means a person or entity appointed by LICENSEE and approved
by OWNER to manufacture LICENSED ARTICLES, and/or any other materials
bearing the PROPERTY.
1.5. NET SALES means gross invoice price billed to Distributors less freight
and delivery allowances, shipping/handling costs, customary discounts and
allowances, rebates, returns accepted for credit, return al1owances,
uncollectible accounts and separately listed applicable taxes including,
but not limited to sales, value added tax and excise taxes (collectively,
the "DEDUCTIONS"). Notwithstanding anything to the contrary herein, with
respect to the sale of the LICENSED ARTICLES, the "Reserve" Fine Wines
shall be sold at a wholesale price of no less than eighty dollars
($80.00) per case and the "Coastal" Fine Wines shall be sold at a
wholesale price of no less than fifty dollars ($50.00) per case, without
the prior written consent of the OWNER. Such wholesale prices as
described herein, sha1l be inclusive of any discounts at the point of
sale to the Distributor.
1.6. DISTRIBUTORS mean those entities selected and appointed by LICENSEE to
promote, sell and distribute LICENSED ARTICLES in the TERRITORY.
1.7. RETAIL means conventional channels of distribution through stores to
consumers within LICENSEE'S industry.
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1.8. ROYALTY PAYMENTS mean the total NET SALES of all LICENSED ARTICLES sold
duril1g the preceding calendar quarter, multiplied by the applicable
ROYALTY RATE.
1.9. ROYALTY RATE means the percentage of NET SALES to be paid by LICENSEE to
OWNER.
1.10. SECONDS mean merchantable LICENSED ARTICLES not suitable for sale at list
price because they contain minor production or material flaws not
affecting proper usage of the PROPERTY or the LICENSED ARTICLE.
1.11. PREMIUMS mean any product sold at cost or near cost, given away for free
or otherwise used for the purpose of increasing the sale, promoting, or
publicizing any other product, or any service, including but not limited
to incentives for sales forces, trade and consumer promotions and
incentives for fundraising.
1.11. BEANSTALK means The Beansta1k Group, LLC.
2. GRANT OF LICENSE.
2.1. NON-EXCLUSIVE LICENSE. OWNER hereby grants to LICENSEE a non-exclusive
license to use the PROPERTY in the TERRITORY solely upon or in connection with
LICENSED ARTICLES pursuant to the terms and conditions of to is Agreement.
2.2. TERM. The term of the license granted by this Agreement shall be for the
period set forth on EXHIBIT 3, unless sooner terminated in accordance with the
provisions hereof.
2.3 LIMITATIONS ON LICENSE. No license is granted hereunder for the use of
the PROPERTY for any purpose other than upon or in connection with the LICENSED
ARTICLES. No license is granted hereunder for the manufacture, sale or
distribution of LICENSED ARTICLES to be used as PREMIUMS, in combination sales,
as giveaways, or to be disposed of under similar methods of merchandising. The
parties acknowledge that OWNER does not own or control all rights to images
generally described as "co-owned" (by way of example, only, images of ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ Soup Cans or other images with
respect to which the copyrights, trademarks, rights of personality or other
related rights are owned by or controlled by third parties) that are contained
within an ▇▇▇▇ ▇▇▇▇▇▇ work, and that in the event LICENSEE wishes to license
such images, that LICENSEE is solely responsible for obtaining the necessary
rights and permissions to do so. OWNER does not represent or warrant that it can
or is conveying any of the above described ancillary rights.
3. ROYALTIES, MINIMUM GUARANTEES, REPORTS AND PAYMENTS, D.1STRIBUTION AND
MARKETING AND SALE TO OWNER
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3.1. ROYALTY RATES. LICENSEE agrees that it will pay to OWNER an amount equal
to the percentage set forth on EXHIBIT 4 of all NET SALES of LICENSED ARTICLES
made during the term of this Agreement and during any period of extension or
renewal (hereinafter the "ROYALTY PAYMENTS"). Payments shall be sent and made
payable to The Beanstalk Group, LLC, in accordance with Paragraph 3.7. infra.
3.2. ADVANCE PAYMENT. Upon execution of this Agreement by OWNER, LICENSEE
will pay OWNER the amount set forth on EXHIBIT 5 as a non-refundable advance
payment to be credited against ROYALTY PAYMENTS to become due during the initial
term hereof. Such advance payment shall be sent and made payable to The
Beanstalk Group, LLC, in accordance with Paragraph 3.7.
3.3. MINIMUM ROYALTIES. LICENSEE agrees to pay OWNER the minimum guaranteed
ROYALTY PAYMENTS ("MINIMUM ROYALTIES") set forth on EXHIBIT 6, according to the
payment schedule set forth therein. MINIMUM ROYALITES shall be applied only
against the period they relate to and shall not be applicable to any other
period.
THE MINIMUM ROYALTIES set forth in this Paragraph are obligations of
LICENSEE to OWNER and are fully earned by OWNER upon execution of this
Agreement. If such MINIMUM ROYALTIES are not achieved as set forth in each
calendar year and each country, the difference between such MINIMUM ROYALTIES
and the actual ROYALTY PAYMENTS for each calendar year and each country shall be
paid to OWNER within thirty (30) days from the end of each calendar year.
If this Agreement is terminated by OWNER because of any breach by
LICENSEE all of the MINIMUM ROYALTIES set forth in this section for tHe then
current term shall be deemed to be fully earned and sbal1 be paid to OWNER
within thirty (30) days from the effective date of any such termination.
3.4. INTENTIONALLY DELETED.
3.5. ROYALTY REPORT FORM. All royalty reports ("ROYALTY REPORTS") shall be
in the form of SCHEDULE B ("ROYALTY REPORT FORM"), or a substantially similar
alternative format approved by OWNER. LICENSEE agrees that OWNER shall have the
right, at its sole discretion, upon thirty (30) days advance written notice to
LICENSEE, to change the ROYALTY REPORT FORM. Such change of the ROYALTY REPORT
FORM may include an electronic form to be provided to OWNER.
3.6. REPORTS AND PAYMENTS. Within thirty (30) days from the end of each
calendar quarter, LICENSEE shall furnish ROYALTY REPORTS and make corresponding
ROYALTY PAYMENTS to BEANSTALK with copies to OWNER in U.S. Dollars pursuant to
this Paragraph at LICENSEE'S sole expense. ROYALTY REPORTS shall be furnished to
OWNER whether or not
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any LICENSED ARTICLES have been sold and whether or not royalties are due
and payable for the calendar quarter.
3.7. METHOD OF PAYMENT. All ROYALTY PAYMENTS, other payments and any
applicable interest shall be made payable to "The Beanstalk Group LLC', with
copies to OWNER, utilizing electronic bank transfer paid, on behalf of OWNER,
to:
The Beanstalk Group, LLC
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
c/o Citibank, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Account No.: ▇▇▇▇▇▇▇▇
ABA No.: ▇▇▇▇▇▇▇▇▇
Written confirmation of each electronic transfer and all ROYALTY REPORTS
and any other reports of payments as required by this Agreement shall be signed
by LICENSEE'S authorized officer and certified as accurate, and shall be sent to
OWNER and BEANSTALK by express delivery on or before the due date.
If any inconsistencies or mistakes are discovered in such ROYALTY REPORT
or payments) they shall immediately be rectified and the appropriate payment
made by LICENSEE or set off against LICENSEE'S next ROYALTY PAYMENT and/or other
payment to OWNER if an overpayment was made by LICENSEE.
3.8. INTEREST DUE ON ALL PAST DUE AMOUNTS. Ally past due amount by LICENSEE
whether due pursuant to this Paragraph or any other Paragraph of this Agreement
shall bear interest at the then current prime rate plus five percent (5%) per
annum as quoted by Citibank, New York, N.Y., United States of America, which is
applicable from the due date until the date of payment.
3.9. CONVERSION INTO DOLLARS AND MISCELLANEOUS PROVISIONS. [for contracts
covering countries outside U.S.]
LICENSEE agrees that a1l currency conversions in U.S. dollars for sales
made outside the U.S. in currency other than U.S. dollars shall be made by
utilizing the exchange rate in effect on the last business day of the period for
which such royalties are due as reported in The Wall Street Journal.
The cost of conversion of all local currencies into U.S. dollars shall be
the sole expense of LICENSEE. Any cost of conversion built into a bank's
exchange rate must be accounted for with a
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corresponding increase in the amount being converted so that all the costs of
conversion of all local currencies into U.S. dollars shall be the sole expense
of LICENSEE.
LICENSEE shall withhold as taxes on all payments to be made to OWNER only
such amounts as are absolutely required to be withheld by law in the country
from which payment is being made. LICENSEE shall submit to OWNER originals of
the remittance voucher and the official receipt evidencing the payment of the
corresponding taxes. LICENSEE shall fully cooperate with OWNER and provide such
information and records as OWNER may require in connection with any application
by OWNER to the tax authorities in the LICENSED TERRITORY and/or the United
States of America including but not limited to, the obtaining of a credit for
any withholding tax paid in the LICENSED TERRITORY or any country from which
ROYALTY PAYMENTS and any other payments are being made by LICENSEE to OWNER
pursuant to this Agreement.
3.10. BUSINESS PLAN. Upon thirty (30) days from OWNER'S written request,
LICENSEE shall provide OWNER a written business plan detailing information
including, but not limited to, LICENSEE'S product development plans,
advertising, merchandising and promotional activities and breakdown of sales by
accounts. In the event LICENSEE materially deviates from such business plan,
LICENSEE shall promptly provide OWNER with written notice thereof and shall,
within sixty (60) days after sending such notice, provide OWNER with a. revised
business plan.
3.11 DISTRIBUTION AND MARKETING OF LICENSED ARTICLES. LICENSEE recognizes that
the PROPERTY has a reputation for high quality products, that the distribution,
sale and marketing of LICENSED ARTICLES might affect the reputation of the
PROPERTY, and that the distribution, sale and marketing of the LICENSED ARTICLES
is subject to the approval and control of OWNER who might, at its sole
discretion and subject to applicable laws and regulations, restrict or limit the
distribution and sale of the LICENSED ARTICLES to certain channels or means of
distribution, sale or marketing. This license is granted only for sale in the
channels of distribution set forth on EXHIBIT 9.
3.12 SALE TO OWNER. LICENSEE agrees to sell to OWNER such quantities of the
LICENSED ARTICLES at the lowest published/invoiced wholesale price and on as
good terms as LICENSEE sells similar quantities of the LICENSED ARTICLES to the
general trade.
4. RECORDS, AUDIT AND AUDITOR'S CERTIFICATION
4.1. RECORDS. During the TERM of this Agreement and for at least three (3)
years thereafter, LICENSEE shall keep in its possession or under its control
accurate records covering all transactions relating to this Agreement. Records
shall include, but not be limited to, invoices, correspondence, financial
information, inventory records, manufacturing, quality control and approvals.
LICENSEE shall consistently use a separate symbol or number to identify all
LICENSED ARTICLES.
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4.2. AUDIT. OWNER shall have the right to conduct an audit and make copies of
all records listed in Paragraph 4.1., above, and to make a physical inventory
count of LICENSED ARTICLES in production and/or storage. If the audit reveals a
royalty underpayment of three percent (3%) or more or if three percent (3%) or
more of LICENSED ARTICLES were sold without final approval for the audit period,
LICENSEE agrees to reimburse OWNER for all of its full out-of-pocket costs and
expenses of the audit. OWNER shall invoice LICENSEE and LICENSEE shall pay such
invoice within thirty (30) days.
Audits may be performed by OWNER'S own emp1oyees and/or its designated
independent auditor, all of whom shall hold LICENSEE'S audit information in
confidence, pursuant to ▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇. Audit information shall only be
used for purposes of this Agreement, unless used to judicially enforce
obligations of LICENSEE.
5. APPROVALS.
5.1. APPROVAL PROCESS. LICENSEE, at its expense, shall submit to OWNER all
items including, but not limited to, products, packaging, labeling, point of
sale materials, trade show displays, sales materials and advertising bearing the
PROPERTY, and if such items are in a foreign language, certification that the
translations of such items are accurate, for OWNER'S advance written approval
prior to sale or distribution at all stages listed below.
Concept Rough Sketches or layout concepts;
Prototype Prototypes or finished artwork; and
Final Pre-production sample
The following roles shall apply to all stages of the approval process:
1. LICENSEE shall not make any use of, sell Or distribute such items
as listed in this Section 5.1, prior to OWNER granting final
written approval.
2. OWNER shall have twenty (20) days from OWNER'S actual receipt to
review and respond in writing to each of LICENSEE'S submissions.
If OWNER does not respond to any such submission within such
twenty (20) day period, such submissions shall be deemed
disapproved.
3. OWNER, in its sole discretion, reserves the right to reject an
item approved at a prior stage if in its physical form it does not
meet OWNER'S marketing standards or departs from the approved
sample.
4. In the event of any modification. or change in quality of the
items, whether during the approval process or after final approval
has been granted, such items shall be re-submitted for approvaL
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5. LICENSEE shall disclose all sources for any artwork not supplied
by OWNER.
6. All submissions become the property of OWNER.
7. Upon LICENSEE'S written request, OWNER shall return prototypes and
final artwork at LICENSEE'S expense provided LICENSEE supplies
photographs of same.
8. LICENSEE shall not have any rights against OWNER for damages or
other remedy by reason of OWNER'S failure or refusal to grant any
approval referred to in this Paragraph.
9. LICENSEE shall not advertise in any publication or communications
medium which could damage the goodwill of the PROPERTY or OWNER'S
artwork and designs in any way. Specifically, LICENSED ARTICLES
shall not be placed in any illegal, vulgar, obscene, immoral,
unsavory or offensive manner or in any sexually-oriented magazine,
or in any other potentially controversial publication or other
controversial media or setting whatsoever.
10. LICENSEE shall supply OWNER with twelve (12) production samples of
each LICENSED ARTICLE.
11. No facsimile transmissions will be accepted for approval.
12. LICENSEE agrees not to use the OWNER'S trademarks, artwork and/or
designs or any component thereof in any business sign, business
cards, stationery or forms nor as part of the name of the
LICENSEE'S business or any division thereof.
13. All press releases and/or public announcements by LICENSEE shall
be subject to prior written approval by OWNER, both as to the
content, timing and distribution of any such release. LICENSEE
shall not have any rights against OWNER for damages or other
remedy by reason of OWNER'S failure or refusal to grant approval
of any press release.
14. LICENSEE agrees to furnish to OWNER its DHL, Federal Express
and/or UPS number for OWNER to use to transmit samples to expedite
the approval process.
5.2. RIGHT TO SUSPEND APPROVAL PROCESS. In addition to its other remedies,
OWNER reserves the right to suspend the approval process after OWNER has given
LICENSEE notice of breach of this Agreement, until LICENSEE has cured the
breach.
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5.3. NO WAIVERS. Approvals granted by OWNER under this Paragraph shall extend
only to LICENSEE'S use of the PROPERTY or OWNER'S artwork and designs. The
provisions for indemnity under this Agreement and LICENSEE'S other obligations
shall not be waived by approval of LICENSED ARTICLES by OWNER.
6. QUALITY CONTROL
6.1 LICENSEE COMPLIANCE WITH APPLICABLE LAW. All LICENSED ARTICLES shall be
manufactured, sold, labeled, packaged, distributed and advertised in accordance
with all applicable laws and regulations.
6.2. SECONDS AND DISPOSAl. If, during the manufacture of the LICENSED
ARTICLES, any SECONDS arc produced, LICENSEE shall destroy such SECONDS unless
OWNER, in its sole discretion, provides LICENSEE with express written
instructions to otherwise dispose of such SECONDS. All products, packaging,
labeling, point of sale, sales materials and advertising bearing trademarks,
artwork and/or designs of OWNER produced by LICENSEE which are not suitable for
use or sale pursuant to this Agreement shall be promptly destroyed.
7. ARTWORK
7.1. RIGHT TO USE AND ASSIGNMENT TO OWNER. OWNER, in its sole discretion, will
provide LICENSEE, at LICENSEE'S expense available artwork and designs which
LICENSEE can only use on LICENSED ARTICLES.
LICENSEE irrevocably and in perpetuity assigns to OWNER all worldwide,
right, tit1e and interest in and to any artwork incorporating the PROPERTY.
OWNER has the sole and exclusive right to use, change, license or modify such
artwork, without any obligation, financial or otherwise, to LICENSEE. Artwork
which qualifies as a "work-made-for-hire" under applicable copyright laws in the
LICENSED TERRITORY ate agreed to be "work-made-for-hire" owned by OWNER.
If a artwork is made by a third party for LICENSEE, LICENSEE shall obtain
an assignment from such third party using SCHEDULE C (Artwork Assignment
Agreement). and shall use its best efforts to have such artwork made as a
"work-made-for-hire."
LICENSEE, at its expense, shall provide OWNER with reproducible materials
of all such artwork within thirty (30) days of OWNER'S written request.
This Paragraph does not give OWNER any right, title or interest in or to
the copyrights, trade dress or trademarks of LICENSEE.
8. LICENSED ARTICLE MARKINGS
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8.1. LABELING REQUIREMENTS. LICENSEE shall use and display the PROPERTY only
in such form and manner as are specifically approved by OWNER. LICENSEE shall
cause to appear on all LICENSED ARTICLES produced hereunder and on their tags,
packaging, advertising and promotional materials such legends, markings and
notices as OWNER may request, which until further notice shall be "(C)/(R)/TM
The ▇▇▇▇ ▇▇▇▇▇▇ Foundation for the Visual Arts, Inc." Before using or releasing
any such material, LICENSEE shall submit to OWNER, for its approval, finished
art work for tags, labels, packaging, and advertising and promotional materials
which shall not be used or released prior to LICENSEE'S receipt of OWNER'S
approval. Any article or other materials submitted and not approved by OWNER
within twenty (20) days after receipt by OWNER shall be deemed to have been
disapproved.
9. INTELLECTUAL PROPERTY PROTECTION
9.1. PROTECTION. LICENSEE acknowledges the ownership, validity, unique and
widespread celebrity, great value and goodwill of the PROPERTY and acknowledges
that all rights therein (including trademark and copyright) and good will
attached thereto belongs exclusively to OWNER, that the PROPERTY has secondary
meanings in the minds of the public and that all use of the PROPERTY will inure
to the benefit of OWNER. LICENSEE shall not, during the term of this Agreement
or thereafter, attack or put in issue the title or any rights of OWNER in and to
the PROPERTY, and OWNER'S artwork and designs.
LICENSEE covenants that, notwithstanding any other provision of this
Agreement, it will never take any action which it knows or has reason to know
would threaten to injure the image or reputation of OWNER or any of its
copyrights, trade dress, trademarks or products.
9.2. REGISTRATIONS. LICENSEE shall assist OWNER at OWNER'S expense, to the
extent necessary in OWNER'S opinion, in procuring, protecting and defending any
of OWNER'S rights in the PROPERTY, in the filing and prosecution of any
trademark application, copyright application or other applications for the
PROPERTY, the recording or canceling of this Agreement, and the publication of
any notices or the doing of any other act or acts with respect to the PROPERTY,
including the prevention of the use thereof by an unauthorized person, firm or
corporation, that in the judgment of OWNER may be necessary or desirable. For
these purposes, LICENSEE shall supply to OWNER free of cost to OWNER, such
samples, containers, labels and similar materials as may reasonably be required
in connection with any such actions. OWNER, at its so1e expense, shall file an
trademark applications, register the PROPERTY within the LICENSED TERRITORY with
respect to the LICENSED ARTICLES! and in OWNER'S opinion, in countries outside
the LICENSED TERRITORY where LICENSED ARTICLES may be sourced to the extent such
applications have not already been filed.
9.3. NOTICE OF INFRINGEMENT. LICENSEE shall notify OWNER promptly in writing
of any alleged infringements or imitations by others of the PROPERTY in the
LICENSED TERRITORY which come to LICENSEE'S attention. OWNER shall have the sole
right to
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determine what, if any, actions shall be taken on account of any such
infringements or imitations. If OWNER so desires it may prosecute any claims or
suits in its own name or join LICENSEE as a party thereto, all at OWNER'S
expense.
LICENSEE shall not institute any suit or take any action on account of
any such infringements or imitations. LICENSEE shall not have any rights against
OWNER for damages or other remedy by reason of OWNER'S decision not to prosecute
any alleged infringements or imitations by others of the PROPERTY or OWNER'S
artwork and designs. LICENSEE assumes the risk that there may be counterfeit
and/or infringing articles of manufacture in the LICENSED TERRITORY.
9.4. DAMAGES FOR UNAUTHORIZED USE. LICENSEE acknowledges that the PROPERTY or
OWNER'S artwork and designs possess special, unique, and extraordinary
characteristics which make difficult the assessment of monetary damages which
OWNER would sustain by LICENSEE'S unauthorized use. LICENSEE recognizes that
OWNER would suffer irreparable injury by such unauthorized use and agrees that
injunctive and other equitable relief is appropriate in the event of a breach of
this Agreement by LICENSEE. Such remedy shall not be exclusive of any other
remedies available to OWNER, nor shall it be deemed an election of remedies by
OWNER
10. WARRANTIES AND INDEMNIFICATION
10.1. WARRANTIES. LICENSEE hereby warrants and represents to OWNER that;
1. All LICENSED ARTICLES, packaging, labeling, advertising and sales
materials are free from defects, merchantable, fit for their
intended use, materially conform to samples which received final
approval, comply with all legally applicable treaties, laws,
regulations, standards and guidelines including, but not limited
to, health, product safety and labeling, and that LICENSEE has
obtained the necessary approvals and certification(s) throughout
the LICENSED TERRITORY.
2. All artwork of LICENSEE pursuant to Paragraph 7.1. are original;
not in the public domain; not previously published; not a
violation, infringement, unauthorized use or misappropriation of
any intellectual property of any third party; not libelous or
contrary to law; and to the best of LlCENSEE'S knowledge not the
subject of any litigation or claim; and
3. Pursuant to Paragraph 7.1., it has obtained a written assignment
to OWNER of all artwork made by a third party.
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10.2. INDEMNIFICATION BY LICENSEE. LICENSEE indemnifies and holds harmless
OWNER, its officers, directors, employees and agents ("Indemnified Parties")
from any act or omission of LICENSEE which liability arises out of any lawsuit,
claim or demand based upon:
1. Any alleged defect in the LICENSED ARTICLES or the use or
condition thereof;
2. Any alleged violation, infringement, unauthorized use or
misappropriation of any intellectual property of any third parties
arising under or in conjunction with the manufacture, sale and/or
use of any LICENSED ARTICLES or
3. Any breach or violation of any warranty, representation, term or
condition of this Agreement by LICENSEE.
This indemnification shall include all damages, interests, reasonable
attorney's fees, costs and expenses which may be levied against or incurred by
Indemnified Parties, including costs of collection of all amounts owed to
OWNER by LICENSEE and costs of all actions by OWNER against LICENSEE to enforce
LICENSEE'S compliance with this Agreement.
This obligation to indemnify and hold harmless Indemnified Parties shall
not apply to any Lawsuit, action, legal proceeding, claim or demand which is
solely due to the negligence or wrongful acts of the Indemnified Parties or any
alleged copyright or trademark infringement which is based on a claim that the
approved use by LICENSEE of the PROPERTY infringes the copyright or trademark
rights of such third parties.
LICENSEE and its officers, agents and employees shall cooperate fully
with OWNER in the defense of any such lawsuit, action, legal proceeding, claim
or demand.
10.3 INDEMNIFICATION BY OWNER OWNER indemnifies and holds harmless LICENSEE,
its officers, directors, employees and agents from any act or omission of OWNER,
its officers, directors, employees and agents, which liability arises out of any
lawsuit, claim or demand based upon:
1. Any alleged copyright or trademark infringement arising out of the
approved use of the PROPERTY as authorized in this Agreement; or
2. Any breach or violation of any warranty, representation, term or
condition of this Agreement by OWNER.
This indemnification shall include all damages, interests reasonable
attorney's fees, costs and expenses which may be levied against or incurred by
LICENSEE, its officers, directors, employees and agents.
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OWNER shall undertake and conduct the defense of any such claim. demand
or cause of action, and shall have the sole responsibility therefor.
Compliance by LICENSEE with the insurance provision of this Agreement
shall not relieve LICENSEE from liability under this indemnity provision.
10.4. COOPERATION. Each party shall cooperate fully with the other party in the
defense of any c1aims, demand or cause of action covered under this Paragraph
10. Each party claiming a right of indemnification shal1 give notice to the
other party within fifteen (15) days after learning of such claim demand or
cause of action.
11. INSURANCE. Upon execution of this Agreement, LICENSEE shall have and
maintain at its sole cost and expense throughout the term of this Agreement,
post-termination or expiration Sell-off Period, and for two (2) years
thereafter, standard liability insurance from a recognized insurance company
acceptable to OWNER. This insurance coverage shall provide a minimum
comprehensive general liability insurance for each occurrence, bodily injury,
property damage, personal injury, product liability, intellectual property
liability, contractual liability and advertising injury liability in the amount
set forth on EXHIBIT 8.
Such insurance coverage shall name OWNER and BEANSTALK as additional
insured parties against any and all claims, demands, causes of action or
damages, including reasonable attorneys' fees.
The stipulated limits of coverage above shall not be construed as a
limitation of any potential liability of LICENSEE to OWNER or third parties, and
failure to request evidence of this insurance shall in no way be construed as a
waiver of LICENSEE'S obligation to provide the insurance coverage specified.
Such insurance policy shall provide that it may not be canceled or
amended in a manner which restricts the existing coverage without at least
thirty (30) days prior written notice to OWNER.
Within thirty (30) days after this Agreement is fully executed, (and
thereafter at least thirty (30) days prior to the expiration of insurance
coverage), LICENSEE shall furnish to OWNER a Certificate of Insurance evidencing
the foregoing coverage and specifical1y listing OWNER and BEANSTALK as
additional Insured parties.
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1:2. CONFIDENTIALITY. Neither party shall disclose, reveal, divulge, use or by
whatever means make available, except as required to perform its obligations
pursuant to this Agreement, the terms and conditions of this Agreement and
information of the other party which was denominated or marked as "confidential"
at the time of disclosure or confirmed in writing as "confidential" within
thirty (30) days from an oral disclosure obtained from the other party during
the TERM of this Agreement and for a period of three (3) years after this
Agreement expires or is terminated for any reason without prior written
permission from the other party. Each party hereto may disclose confidential
information from the other party to its affiliates subject to all the terms and
conditions of this Paragraph.
The obligations of confidentiality shall not apply to information which:
(i) Is, or subsequently may become, available to the public through no
fault of the receiving party.
(ii) The receiving party can show was previously known to it at the
time of disclosure.
(iii) May subsequently be obtained from a third party who has obtained
the information through no fault of the receiving party.
(iv) Is independently developed as evidenced by the written records of
the receiving party.
(v) Is disclosed to a third party by the disclosing party without a
corresponding obligation of confidence.
(vi) Is required to be disclosed by the receiving party pursuant to a
requirement, order or directive of a government agency or by
operation of law subject to prior consultation with the disclosing
party's legal counsel.
13. NO RIGHT TO ASSIGN OR TO SUBLICENSE. This Agreement and all. rights and
duties herein are personal to LICENSEE and are not assignable, in whole or in
part, by LICENSEE without OWNER'S prior written consent. The rights and duties
hereunder may not be mortgaged or otherwise encumbered. Except as provided
herein, any grant or attempted grant by LICENSEE of any assignment of part or
all of this Agreement, a sublicense, a subcontract or any other act of LICENSEE
which in any way attempts to encumber or transfer; or, in fact, encumbers or
transfers any of LICENSEE'S rights and obligations hereunder, or the sale or
attempted sale of a controlling interest in the shares of LICENSEE constitutes a
breach of this Agreement. Any change in the control of LICENSEE, either directly
or indirectly, without notice to and the prior written consent of OWNER
constitutes a breach of this Agreement. Any assignment or other change approved
by OWNER sha1l make this Agreement fully binding upon and enforceable against
any successors or assigns.
14. TERMINATION. Without prejudice to any other rights) OWNER shall have the
right to terminate this Agreement upon written notice to LICENSEE at any time:
if:
(i) LICENSEE shall fail to make any payment (including any payment for
artwork or other allowable expenses) due hereunder Or to deliver any of the
statements herein referred to, and
13
if such default shall continue for a period of five (5) business days after
written notice of such default is sent by OWNER via certified or registered mail
to LICENSEE.
(ii) LICENSEE shall discontinue its business, LICENSEE shall make any
assignment for the benefit of creditors, or shall file any petition under
Chapters 10,11 or 12 of Title 11. United States Code, or file a voluntary
petition in bankruptcy, or be adjudicated a bankrupt or insolvent, or if any
receiver is appointed for its business or property, or if any trustee in
bankruptcy, or insolvency shall be appointed under the laws of the United States
government or of the several states. In the event this license is so terminated,
LICENSEE, its receivers, representatives, trustees, agents, administrators,
successors and/or assigns shall have no right to sell, exploit or in any way
deal with any of the LICENSED ARTICLES or any carton, container, packing or
wrapping material, advertising, promotional or display material pertaining
thereto, except with and under the special consent and instructions of OWNER, in
writing, which they shall be obligated to follow.
(iii) INTENTIONALLY DELETED.
(iv) If LICENSEE shall fail to perform any other material term or
condition of this Agreement and not cure such failure within twenty (20) days
after notice.
(v) If for any six (6) month period LICENSEE does not diligently and
commercially distribute and sell an categories of LICENSED ARTICLES included in
EXHIBIT 1 of this Agreement throughout each country in the LICENSED TERRITORY.
(vi) If OWNER or LICENSEE is ordered to withdraw, discontinue, remove or
recall any LICENSED ARTICLE from the RETAIL market by a government or
governmental agency, regulatory body, court or the like.
(vii) If during any twelve (12) month period OWNER gives more than two
(2) termination notices to LICENSEE pursuant to this Paragraph regardless of
cure by LICENSEE.
(viii) If LICENSEE does not begin the bona fide manufacture, distribution
and sale of the LICENSED ARTICLES on a national basis on or before the date
specified in EXHIBIT 9.
Termination of the license under the provisions of this Paragraph shall
be without prejudice to any rights which OWNER may otherWise have against
LICENSEE. Upon the termination of the license granted herein, notwithstanding
anything to the contrary herein, all royalties on sales theretofore made shall
become immediately due and payable and no MINIMUM ROYALTIES shall be repayable
and balances owing on MINIMUM ROYALTIES shall be immediately due and payable,
Notwithstanding any termination or expiration of this Agreement, OWNER shall
have and hereby reserves all rights and remedies which it has or which are
granted to it by operation of law, to enjoin the unlawful or unauthorized use of
the PROPERTY.
14
14.1. SELL-OFF PERIOD. After expiration or termination of the license under
this Agreement, LICENSEE shall have no further right to manufacture, advertise,
distribute, sell, or otherwise deal in any LICENSED ARTICLES which utilize the
PROPERTY, except as hereinafter provided.
(i) LICENSEE shall prepare a fully written inventory list and submit same
to OWNER within ten (10) days of the expiration or termination of the license
under this Agreement. Such list will include orders on hand, work in process, as
well as finished LICENSED ARTICLES.
(ii) OWNER shall have twenty (20) days thereafter to decide whether to
purchase any or all inventory at the lower of cost or fair market value. If
OWNER exercises such right of purchase, LICENSEE shall deliver the inventory
referred to in OWNER'S notice within ten (10) days after OWNER'S said notice
with the exception of inventory necessary to fulfi11 orders on hand. OWNER shall
pay LICENSEE for such delivered inventory as is in marketable condition within
twenty (20) days after its receipt thereof.
(iii) Upon said expiration or termination, and if OWNER does not elect to
purchase the inventory, unless the expiration or termination shall occur as a
result of a violation of Paragraphs 3, 5 or 11 hereof, LICENSEE, on a
non-exclusive basis, may dispose of LICENSED ARTICLES which are on hand or in
process at the time of such expiration or termination, for a period of ninety
(90) days therefrom, provided all payments with respect to that ninety (90) day
period are made in accordance with Paragraph 3 hereof.
15. DISTRIBUTION REQUIREMENTS. LICENSEE agrees to use its best reasonable
efforts to sell, distribute and supply the LICENSED ARTICLES within the LICENSED
TERRITORY hereof. LICENSEE must begin the bona fide manufacture, distribution
and sale of the LICENSED ARTICLES on a national basis on or before the date
specified on EXHIBIT 9. LICENSEE further undertakes to make and maintain
adequate reasonable arrangements for the broadest possible distribution of
LICENSED ARTICLES throughout such LICENSED TERRITORY through all regular and
permitted channels of distribution for RETAIL sales to consumers and other
organizations (as set forth on EXHIBIT 9). LICENSEE agrees to maintain adequate
inventories of the LICENSED ARTICLES as an essential part of its distribution
program. In the event OWNER advises LICENSEE that a special promotional effort
is to take place in one individual store or chain, LICENSEE agrees to make
arrangements for the supply of LICENSED ARTICLES to said store of chain in such
quantities as may be required for such effort.
16. NOTICES. An notices and statements to be given and all payments to be
made hereunder, shall be given or made at the respective address of the parties
as set forth below unless notification of a change of address is given in
writing. Any notice shall be sent by registered or certified mail, and shall be
deemed to have been given at the time it is mailed.
If to OWNER: ▇▇▇▇ ▇▇▇▇▇▇ Foundation
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
15
New York, New York 10012-2420
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
If to BEANSTALK: The Beanstalk Group, LLC
▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
with a copy to: Chief Legal Officer
at the same address
If to LICENSEE: To the name and address set
forth on EXHIBIT 10.
16.1. NOTICE OF MANDATED RECALL OF LICENSED ARTICLES. My notice received by
LICENSEE, or any MANUFACTURER, ordering the withdrawal, discontinuance, removal
or recall of any LICENSED ARTICLES from the RETAIL market by a government or
governmental agency, a regulatory body, court or the like shall be immediately
notified to OWNER in writing.
17. FORCE MAJEURE. Neither party shall be liable for failure to perform any
of their obl1gations hereunder when such failure is caused by or results from
(i) strike, blacklisting, boycott or sanctions however incurred; (ii) acts of
God, public enemies, authority of law, embargo, quarantine, riot, insurrection
or war; (iii) inability to obtain raw materials; or (iv) any other cause beyond
their respective control.
In the event either party is unable to perform its obligations as a
consequence of any of the contingencies set forth in this Paragraph for a period
of six (6) months or more, either party hereto may terminate this Agreement,
which termination shall relieve each party of any liability to the other based
upon such termination; however, LICENSEE shall not be released from any of its
obligations to make ROYALTY PAYMENTS or any other payments to OWNER pursuant to
the terms and conditions of this Agreement.
18. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and
understanding between the parties hereto and terminates and supersedes any prior
agreement or understanding, either oral or written, relating to the subject
matter hereof between OWNER and LICENSEE. None of the provisions of this
Agreement can be waived or modified except in writing signed by both parties,
and there are no representations, promises, agreements, warranties, covenants or
undertakings other than those contained herein. Neither the tender of this
Agreement by OWNER to LICENSEE nor the encashment by OWNER or BEANSTALK of
LICENSEE'S ADVANCE PAYMENT shall be binding, provided in the latter case that
repayment is made in a commercially prompt and reasonable manner. Only upon
delivery to LICENSEE of a fully-executed agreement shall this Agreement be
binding. This Agreement and any rights herein granted are personal to
16
LICENSEE and shall not be assigned, sublicensed or encumbered without OWNER'S
written consent.
19. NO JOINT VENTURE. Nothing herein contained shall be construed to place
the parties in the relationship of partners or joint venturers or agents, and
LICENSEE shall have no power to obligate or bind OWNER in any manner
whatsoever.
20. APPLICABLE LAW AND JURISDICTION. The terms and provisions of this
Agreement shall be interpreted in accordance with and governed by the laws of
the State of New York, United States of America. Venue and jurisdiction for any
dispute arising under or involving the terms of this Agreement and jurisdiction
over the parties to this Agreement shall be vested in the federal and state
courts located in New York, New York, USA. LICENSEE consents to personal
jurisdiction in said courts and shall not seek to transfer or to change the
venue of any action brought in compliance with this Paragraph. LICENSEE agrees
and acknowledges that service of process by certified mail (return receipt
requested), personal delivery, or overnight mail constitutes valid service under
the laws of the State of New York and the laws of the United States of America,
including, but not limited to, all due process requirements.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be executed by its duly authorized officer as of the date first above
written.
KNIGHTSBRIDGE FINE WINES, INC. THE ▇▇▇▇ ▇▇▇▇▇▇ FOUNDATION
FOR THE VISUAL ARTS, INC.
BY: /s/ BY: /s/ illegible
------------------------ ------------------------
▇▇▇▇ ▇▇▇▇▇▇▇
TITLE: Chairman TITLE: President CFO
------------------------ ------------------------
DATE: 9/23/03 DATE: 9/25/03 9/24/03
------------------------ ------------------------
BY: /s/
------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
TITLE: Brand Manager
------------------------
DATE: 9-22-03
------------------------
17
TABLE OF EXHIBITS
EXHIBIT 1 (PARAGRAPH 1.2: LICENSED ARTICLES)
Fine wine to include artwork and quotations to be approved on a case-by-case
basis.
EXHIBIT 2 (PARAGRAPH 1.4: LICENSED TERRITORY)
North America
EXHIBIT 3 (PARAGRAPH 2.2: TERM)
August 1, 2003 through December 31, 2006
Year 1 - (8/1/03 - 12/31/04)
Year II - (1/1/05 - 12/31/05)
Year III - (1/1/06 - 12/31106)
EXHIBIT 4 (pARAGRAPH 3.1: ROYALTY RATE)
Four percent (4%) of Net Sales
EXHIBIT 5 (PARAGRAPH 3.2: ADVANCE PAYMENT)
Forty Thousand ($40,000.00) Dollars
EXHIBIT 6 (PARAGRAPH 3.3: MINIMUM ROYALTY)
$400,000.00 payable as follows:
DATE DUE AMOUNT DUE DESCRIPTION
-------- ---------- -----------
December 1, 2003 $40,000.00 Advance (Year 1)
December 15, 2004 $45,000.00 Remainder of Year 1 guarantee
December 15, 2005 $135,000.00 Year II guarantee
December 15, 2006 $180,000.00 Year III guarantee
EXHIBIT 7 INTENTIONALLY DELETED
DELETED EXHIBIT 8 (PARAGRAPH 11: INSURANCE
$2,OOO,OOO combined, sIngle Limit.
18
EXHIBIT 9 (PARAGRAPH 15: DISTRIBUTION REQUIREMENTS)
Channels of Distribution: Restaurants, hotels, fine wine shops, liquor stores,
club stores, grocery stores where fine wines are sold (specifically excluding
convenient stores)
Distribution Start Date: July 1. 2004
EXHIBIT 10 (PARAGRAPH 16: NOTICES)
Knightsbridge Fine Wines, Inc.
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
With a copy to: ▇▇▇▇ ▇▇▇▇▇▇▇
19
SCHEDULE A
PROPERTY
"General Warhol Artwork"
20
SCHEDULE B
ROYALTY REPORT FORM (by country)
-----------------------------------------------------------------------------------------------------
SKU # Description Price/Unit Units Sold Total Sales Less Returns Less Net Sales
Allowances
-----------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------
Total Net Sales
-------------
x Royalty Rate
-------------
Rolalties Due
-------------
Less Advances ( )
------------
Total Royalties Due $
-----------
Signature of Authorized
Officer Certifying foregoing
to be accurate
-----------------------------
Name:
----------------------
Title:
----------------------
Date:
----------------------
21
SCHEDULE C
ARTWORK ASSIGNMENT AGREEMENT
IN CONSIDERATION OF One: Dol1ar ($1.00) and other good and valuable
consideration paid or to be paid to _________________ (the"Contractor") by
______________ ("Company"), the parties hereto agree as follows:
(a) Contractor represents and warrants that Contractor will create all
_____________ to be submitted by Contractor hereafter to Company,
including, without limitation, aLL ________ and ____________ done and to
be done in connection with a property of __________ known as______ (ALL
such materials created by Contractor and all drafts, outlines, and other
preparatory materials shall collectively be called the "Work" herein).
Contractor warrants and represents that the Work shall be original with
Contractor and shall not infringe the rights of any third parties; and
that ______________ has the exclusive right forever and throughout the
universe to exploit the Work and the results and proceeds of Contractor's
services rendered in connection therewith.
(b) The Work is and shall be considered a work made for hire for
_____________ , and The ▇▇▇▇ ▇▇▇▇▇▇ Foundation for the Visual Arts, Inc.
owns and shall own all right, title and interest in and to the Work and
the results and proceeds of Contractor's services rendered in connection
therewith, including, without limitation, all copyrights and renewals and
extensions of copyright therein.
(c) To the extent that any such ownership in such Work does not vest in The
▇▇▇▇ ▇▇▇▇▇▇ Foundation for the Visual Arts, Inc. by reason of
Contractor's status as an employee for hire: Contractor hereby assigns
and transfers in whole to The ▇▇▇▇ ▇▇▇▇▇▇ Foundation for the Visual Arts,
Inc., all right, title, and interest in and to such Work and the results
and proceeds thereof to the extent that Contractor has, had, or will have
any interest therein, including without limitation, all copyrights and
renewals and extensions of copyright therein.
(d) The Work may be registered for copyright in the name of The ▇▇▇▇ ▇▇▇▇▇▇
Foundation for the Visual Arts, Inc., and The ▇▇▇▇ ▇▇▇▇▇▇ Foundation for
the Visual Arts, Inc. shall own and possess all physical material in
which or on which the Work is embodied or reproduced, by or on behalf of
Contractor. The ▇▇▇▇ ▇▇▇▇▇▇ Foundation for the Visual Arts, Inc. shall
have the exclusive right forever throughout the universe to change,
adapt, modify, use, combine with other material, and otherwise exploit
the Work in all media and by all means, whether now known or hereafter
invented or developed. Contractor hereby waives any and an claims that
Contractor may have now or may hereafter have in
22
any jurisdiction to so-called "moral rights" or "droit moral" with
respect to the Work, and to the results and proceeds thereof.
(e) Any further compensation paid or to be paid to Contractor for services
rendered in connection with the Work shall be described in a separate
writing or writings. This Agreement shall constitute the entire
understanding between the parties. This Agreement may not be altered,
modified or changed in any way without the express written consent of
both parties and shall be construed in accordance with the laws of the
State of New York applicable to agreements executed and wholly performed
therein.
(f) When requested by Company, or __________ , Contractor shall perform all
such acts and things and sign all documents and certificates which the
Company may reasonably request in order to carry out the intent and
purpose of this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement.
COMPANY: CONTRACTOR:
BY: BY:
------------------------------ ------------------------------
ITS: ITS:
------------------------------ ------------------------------
DATE: DATE:
------------------------------ ------------------------------
[to be notarized]
23
▇▇▇▇ ▇▇▇▇▇▇
LICENSING APPROVAL FORM
SEND APPROVAL FORM AND SUBMISSIONS TO:
--------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Licensee Management
The Beanstalk Group
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇; Fax: ▇▇▇-▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
================================================================================
TO BE COMPLETED BY LICENSEE
Submission Date:
--------------------------------------------------------------------------------
Licensee: Contact Name:
--------------------------------------------------------------------------------
Phone: Fax: E-mail:
--------------------------------------------------------------------------------
Item/SKU#: Market of Distribution:
--------------------------------------------------------------------------------
Description
--------------------------------------------------------------------------------
I. STAGE OF DEVELOPMENT:
[ ]Concept/Layout/Sketch [ ]Prototype/Mock-up [ ] Pre-Production Sample/Final
Layout
II.SUBMISSION TYPE:
--------------------------------------------------------------------------------
Product Packaging Merchandising/ Collateral Advertising
------- --------- -------------- ---------- -----------
Promotions(P.O.P., (Sales Materials)
----------
P.O.S)
--------------------------------------------------------------------------------
[ ]New SKU [ ] [ ]Free-standing [ ]Catalog/Brochure [ ]Consumer Ad
Box/Clamshell/ display
Card
[ ]Change to [ ] Hang Tag/ [ ]Clip-strip/ [ ]Sell sheet [ ]Trade Ad
Existing SKU Tag Cross-Merch. (B2B)
[ ]Other [ ]Promo [ ]Promotional [ ]Sales [ ]Press
Pkg/Sticker Display presentation Release Draft
------------
[ ]Shipping [ ]in-Line [ ] [ ]
Carton Signage Other Other
-------- --------
[ ] [ ]
Other Other
-------- --------
--------------------------------------------------------------------------------
III. COMMENTS: (Attach additional pages If necessary.)
--------------------------
--------------------------------------------------------------------------------
IV: Does sample/submission need to be returned? Yes []
No[] If yes, by what date?
--------------------------
Shipping Carrier and
Number: --------------------------
================================================================================
TO BE COMPLETED BY LICENSOR
Date Received
-----------------
[] Approved as submitted [] Approved with corrections []Re-submit with
corrections
(Please re-do) [] Not Approved
COMMENTS: (Attach additional pages if necessary.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Licensor Date
Signature
------------------------------ -----------------------
24
SCHEDULE E
MANUFACTURERS AGREEEMENT
This Manufacturer's Agreement is made by and between_______________
"LICENSEE" and ______________ ) "Manufacturer" located at_______________________
WHEREAS, LICENSEE has entered into a License Agreement with The ▇▇▇▇
▇▇▇▇▇▇ Foundation for the Visual Arts, Inc. ("OWNER") dated for tIle
manufacture, distribution and sale of certain LICENSED ARTICLES bearing certain
trademarks of OWNER that are identified on the attached EXHiBIT 1 ("PROPERTY");
WHEREAS, LICENSEE desires Manufacturer to manufacture or supply materials
for the manufacture of certain LICENSED ARTICLES bearing the PROPERTY ("LICENSED
ARTICLES"), which are subject to such License Agreement;
WHEREAS, pursuant to said License Agreement, all suppliers and
manufacturers utilized by LICENSEE in the manufacture of LICENSED ARTICLES must
agree to certain conditions;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Manufacturer agrees as follows:
1. Manufacturer acknowledges that the PROPERTY are the sole property of
OWNER and that Manufacturer's right to manufacture the LICENSED ARTICLES
with the PROPERTY thereon is in all respects subject to the terms and
conditions of the License Agreement. All manufacturing rights to the
LICENSED ARTICLES are subject to the restrictions on the use of the
PROPERTY and the termination provisions of the License Agreement. The
manufacture of the LICENSED ARTICLES shall give Manufacturer no right to
use the PROPERTY or to sell LICENSED ARTICLES bearing the PROPERTY beyond
the term of the License Agreement. If 0WNER terminates the License
Agreement, Manufacturer shall have no claim against OWNER for any reason
whatsoever.
2. Manufacturer shall not sell the LICENSED ARTICLES to any person or entity
except
25
LICENSEE.
3. Manufacturer will conform to all local Jaws and customs regarding hiring
practices, wage and working conditions. Under no circumstances will
Manufacturer involve the production of OWNER LICENSED ARTICLES in an
environment where underage labor is employed. Manufacturer will not
utilize factories or production facilities that force work to be
performed by unpaid laborers or those who must otherwise work against
their wil1. LICENSEE will monitor Manufacturer's factories and work
environment to ensure compliance to these policies and obtain
verification of compliance. If Manufacturer is found not to be in
compliance with the above requirements, they will no longer be permitted
to be a manufacturer of OWNER'S LICENSED ARTICLES.
4. OWNER shall be deemed an intended third party beneficiary or this
Agreement and shall have the right, in its sole discretion, to enforce
its provisions against Manufacturer.
MANUFACTURER LICENSEE
By: By:
--------------------------- ---------------------------
Signature Signature
--------------------------- ---------------------------
Printed Name Printed Name
--------------------------- ---------------------------
Title Title
--------------------------- ---------------------------
Date Date
26