Contract No. ML-3858A
MAJOR LEAGUE BASEBALL PROPERTIES, INC.
LICENSE AGREEMENT
THIS LICENSE AGREEMENT is by and between Major League Baseball Properties,
Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ (hereinafter referred to as
"Licensor"), on its own behalf and as agent for the Major League Baseball Clubs
(the "Clubs"), the Office of the Commissioner of Baseball (the "BOC") and the
American and National Leagues of Professional Baseball Clubs (the "Leagues") and
Famous Fixins, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ (hereinafter
referred to as "Licensee"). This Agreement is not effective until signed by the
parties hereto.
THIS WILL CONFIRM OUR AGREEMENT AS FOLLOWS:
1. GRANT OF LICENSE: Licensor grants to Licensee for the term of this
Agreement, subject to the terms and conditions hereinafter contained,
(including, without limitation, the additional miscellaneous terms and
conditions contained in Schedule G hereto) the non-exclusive license to utilize
certain specified names, word marks, logos, uniform designs, mascots, images,
colors and color combinations, trade dress, character, symbols, designs,
likenesses and visual representations associated with and/or related to the
various Major League Baseball-affiliated entities and their products and
services, as described in Schedule A attached hereto (herein such names, word
marks, logos, uniform designs, m ascots, images, colors and color combinations,
trade dress, characters, symbols, designs, likenesses and visual representations
are collectively called "Logos"), to be used solely in connection with the
manufacture, distribution, promotion, advertisement and sale of the article or
articles specified in Schedule B attached hereto (herein such article or
articles are called "Licensed Product(s)"). This license does not constitute and
may not be used so as to imply the endorsement of the Licensed Product(s) or any
other product of Licensee by Licensor, Major League Baseball Enterprises, Inc.
("MLBE"), Major League Properties Canada Inc ("MLBPC"), Baseball Television,
Inc. d/b/a Major League Baseball International ("MLBI"), MLB Advanced Media,
L.P. and MLB Advanced Media, Inc. (collectively, "MLBAM"), the BOC, the Leagues
or the Clubs. While the Logos licensed herein may be used as trademarks subject
to the terms of this License Agreement, the Logos are not licensed herein for
use as certification marks or indications of a particular standard of quality.
Any exclusivity granted hereunder shall be subject to (i) presently outstanding
agreements granted by the Clubs; (ii) the rights of the Clubs, MLBE, MLBPC,
MLBI, MLBAM and Licensor, and each of their respective affiliates to distribute
(directly or indirectly) products throughout the world (through any means or
medium); and (iii) the grant by Licensor to Major League Baseball Players Alumni
Association (the "MLBPAA") of worldwide rights to utilize the word marks "Major
League" and "Major League Baseball" as part of the MLBPAA's name, logos,
designs, symbols and other visual representations (the "MLBPAA Marks"), which
include the right to grant to third parties the right to use the MLBPAA Marks.
Further, any exclusivity granted hereunder shall pertain only to the extent of
the items described and, if given, at the price relating thereto, if specified
in this Agreement. Licensor warrants and represents that as the agent for the
Clubs, pursuant to authority granted by the Clubs, it has the full authority to
license the Logos in connection with the manufacture, distribution, promotion,
advertisement and sale of the Licensed Product(s).
2. TERRITORY: Licensee shall be entitled to use the license granted
hereunder only in the territory described in Schedule C attached hereto (herein
such territory is called "Licensed Territory"). Licensee will not make use of or
authorize any use of this license or the Licensed Product(s) outside the
Licensed Territory or distribute or sell the Licensed Product(s) directly or
through others to retailers outside the Licensed Territory.
3. LICENSE PERIOD: The license granted hereunder shall be effective and
expire as of the dates specified in Schedule D attached hereto, and except as
otherwise provided for sell-off purposes as specified in Paragraph 17 hereof,
unless sooner terminated or renewed in accordance with the terms and conditions
hereof.
4. PAYMENT:
A. Advance and Guaranteed Compensation: Licensee agrees to pay Licensor the
sums specified in Schedule E attached hereto, as advance minimum compensation
(herein called "Advance Compensation") and as guaranteed minimum compensation
(herein called "Guaranteed Compensation" and together with Advance Compensation,
the "Total Guaranteed Compensation"). The Advance Compensation shall be paid as
set forth in Schedule E, and shall apply against Percentage Compensation as
defined below. The Guaranteed Compensation shall be paid as provided in Schedule
E except to the extent that paid Advance Compensation and annual cumulative
payments of Percentage Compensation shall theretofore have offset all or a
portion of the total of such Guaranteed Compensation. Notwithstanding the
foregoing, no part of Percentage Compensation which may be attributable to
premium sales (as defined hereunder) of the Licensed Product(s) shall serve to
offset any part of the Total Guaranteed Compensation specified in Schedule E. No
part of such Advance Compensation and no part of such Guaranteed Compensation
shall be repayable to Licensee in any event, except as is expressly provided for
herein. No part of any amounts paid or payable hereunder may be used to offset
or apply against any other amount owed by Licensee to Licensor or to any other
Major League Baseball-affiliated entity. In the event of a work stoppage
delaying or interrupting the playing of Major League Baseball games, the parties
agree that this Agreement shall continue in full force and, except as otherwise
provided in writing in this Agreement, Licensee shall not be entitled to any
other form of compensation nor shall Licensor or the Clubs, the Leagues, the
BOC, MLBE, MLBPC, MLBI or MLBAM, be otherwise liable to Licensee for any losses
incurred by Licensee on account of any such work stoppage.
B. Percentage Compensation: Licensee agrees to pay Licensor a sum equal to
the percentage specified in Schedule E (or Licensor's prevailing rate, if
greater) of all net sales (as defined below) by Licensee or, subject to Schedule
G, Licensee Affiliates, any of its affiliated, associated or subsidiary entities
of the Licensed Product(s) covered by this Agreement. (Such percentage of net
sales is herein called "Percentage Compensation.") Percentage Compensation shall
be payable concurrently with the periodic statements required in the following
paragraph, except to the extent offset by Guaranteed Compensation theretofore
remitted. The term "net sales" shall mean gross sales based on the wholesale
price to the retail trade less quantity discounts and actual returns, but no
deduction shall be made for uncollectible accounts, commissions, taxes,
discounts other than quantity discounts, such as cash discounts and discounts
attributable to the issuance of a letter of credit, or any other amount.
Notwithstanding the foregoing, with regard to Canadian sales, if authorized
hereunder, Licensee shall pay Percentage Compensation on the price of the
Licensed Product(s) excluding "GST" and any duty and shall submit all statements
and Percentage Compensation payments to such party designated by Licensor and as
required by this Agreement. Licensee shall account separately for all sales of
each Licensed Product (itemized by country and by Licensed Product), pursuant to
the requirements of Paragraph 5 below. No costs incurred in the manufacture,
sale, distribution, promotion or advertisement of the Licensed Product(s) shall
be deducted in any Percentage Compensation payable by Licensee. Said Percentage
Compensation shall also be paid by Licensee to Licensor on all Licensed
Product(s) (including, without limitation, any irregulars, seconds, etc.
distributed pursuant to the provisions of Paragraph 10 of this Agreement)
distributed by Licensee or any Licensee Affiliate, even if not billed or billed
at less than usual net sales price for such Licensed Product(s), and shall be
based upon the usual net sales price for such Licensed Product(s) sold to the
trade by Licensee for (i) such Licensed Product(s), or (ii) if such Licensed
Product(s) have not been so sold, products similar to the Licensed Product(s).
Licensor acknowledges that units of the Licensed Product(s) that are exported by
Licensee to other licensees of Licensor authorized to distribute such Licensed
Product(s) outside the Licensed Territory may, with Licensor's written approval,
be sold without any obligation on Licensee to pay Percentage Compensation to
Licensor on such units.
C. Invoices: Licensee agrees to pay Licensor all sums due and payable to
Licensor relating to this Agreement. Any late payments in connection with such
invoices shall require Licensee to pay Licensor, in addition to the invoiced
amounts due, interest at one percent (1%) per month or the highest prime lending
rate of Chase Manhattan Bank during the period such amounts are delinquent,
whichever is greater, on the amounts delinquent for the period of the
delinquency, without prejudice to any other rights of Licensor in connection
therewith.
D. Marketing Contribution: Licensee agrees that Licensor shall have the
right in its sole discretion and in a style and manner in which it chooses, to
produce and allow others to produce on its behalf catalogs, sales sheets or
brochures (hereinafter "catalogs") wherein representative merchandise from
licensees of Licensor shall be displayed. Licensee hereby grants to Licensor the
right to feature the Licensed Product(s) and to use Licensee's trademarks and
corporate identification (including, without limitation, the brand names of the
Licensed Product(s) and/or Licensor, its affiliates, and promotions for the
foregoing, without additional approvals or any compensation.
5. PERIODIC STATEMENTS: Within thirty (30) days after the first day of the
license period, and promptly on the 15th day of every calendar month thereafter,
Licensee shall furnish to Licensor complete and accurate statements, certified
to be accurate by Licensee, or if a corporation, by an officer of Licensee,
showing the sales volume of each Licensed Product (itemized by Club, for each
applicable Licensed Product), gross sales price, allowable itemized deductions
from gross sales price, and net sales price of the Licensed Product(s)
distributed and/or sold by Licensee during the preceding calendar month,
together with any returns made during the preceding calendar month. Such
statements shall be furnished to Licensor whether or not any of the Licensed
Product(s) have been sold, or any payment is shown to be due Licensor, during
the calendar months in which such statements are due. Licensee shall furnish to
Licensor sufficient background information so as to make such statements
intelligible to Licensor, and on request of Licensor (but not more than once per
calendar year during the license period), a complete list of Licensee's
customers to whom Licensed Product(s) have been sold and corresponding
information regarding distribution of such accounts. Licensor agrees that it
will not divulge said customer list to any other licensee of Licensor, to any
other competitor licensing organization, or to any competitor of Licensee, as
identified by Licensee, except as required by law. Receipt or acceptance by
Licensor of any of the statements furnished pursuant to this Agreement or of any
sums paid hereunder shall not preclude Licensor from questioning the correctness
thereof at any time, and in the event that any inconsistencies or mistakes are
discovered in such statements or payments, they shall immediately be rectified
and the appropriate payments made by Licensee. Late payment penalties, if any,
shall be made pursuant to Paragraph 4(C). Upon demand of Licensor, Licensee
shall at its own expense, but not more than once in any twelve (12) month
period, furnish to Licensor a detailed statement certified by an independent
certified public accounting firm approved by Licensor showing the sales volume
of each Licensed Product (itemized by Club, for each applicable Licensed
Product), gross sales price, itemized deductions from gross sales price and net
sales price of the Licensed Product(s) covered by this Agreement distributed
and/or sold by Licensee and Licensee Affiliates to the date of the Licensor's
demand. Licensee shall additionally provide, on Licensor's written request and
at Licensee's cost, the audited financial statements for Licensee and or any
Licensee Affiliate for the requested year(s). All amounts payable pursuant to
this Agreement shall be in U.S. dollars only.
6. BOOKS AND RECORDS:
A. Licensee shall keep, maintain and preserve in its principal place of
business for at least four (4) years following termination or expiration of this
Agreement or any renewal thereof, complete and accurate records and accounts
covering all transactions relating to this Agreement and pertaining to the
various items required to be shown on the statements to be submitted by
Licensee, including, without limitation, invoices, correspondence and banking,
financial and other records in Licensee's possession or under its control. To
the extent that such records are commingled with other business records of
Licensee, Licensor shall nonetheless be entitled to review all of Licensee's
records. Such records and accounts shall be available for inspection and audit
(and copying at Licensor's expense) at Licensee's principal place of business or
such other Licensee-controlled facility as Licensor shall request at any time or
times during or after the term or terms of this Agreement during reasonable
business hours and upon reasonable notice (not to exceed thirty (30) days) by
Licensor or its representatives. Licensor shall also have the right to inspect
Licensee's plants, warehouses or storage facilities at any reasonable time
without notice, to ensure compliance with this Paragraph and Paragraph 10 below.
Licensee agrees not to cause or permit any interference with Licensor or
representatives of Licensor in the performance of their duties of inspection and
audit.
B. The exercise by Licensor, in whole or in part or at any time or times,
of the right to audit records and accounts or of any other right herein granted,
the acceptance by Licensor of any statement or statements or the receipt and
deposit by Licensor of any payment tendered by or on behalf of Licensee shall be
without prejudice to any rights or remedies of Licensor and shall not stop or
prevent Licensor from thereafter disputing the accuracy of any such statement or
payment.
C. If pursuant to its rights hereunder to audit and inspect Licensor causes
an audit and inspection to be instituted which thereafter discloses a deficiency
of three percent (3%) or more between the amount found to be due to Licensor and
the amount actually paid or credited to Licensor, then Licensee shall be
responsible for payment of the entire deficiency, together with interest thereon
at the then current prime rate of Chase Manhattan Bank or its successor from the
date such amount became due until the date of payment, and the costs and
expenses of such audit and inspection. If the audit discloses a deficiency of
less than three percent (3%) between the amount found to be due to Licensor and
the amount actually paid or credited to Licensor, and if the amount actually
paid or credited to Licensor plus the deficiency exceeds the Guaranteed
Compensation for the period covered by the deficiency, then Licensee shall pay
Licensor the amount of the deficiency plus interest as calculated above. To the
extent that Licensee does not have all records and management personnel
available during Licensor's scheduled audit and such audit needs to be
rescheduled, the cost of the rescheduled audit will be the responsibility of
Licensee.
7. INDEMNIFICATIONS AND PROTECTIONS:
A. Licensor hereby agrees to indemnify, defend and hold Licensee and its
owners, shareholders, directors, officers, employees, agents, representatives,
successors and assigns harmless from any claims, suits, damages or costs
(including reasonable attorneys' fees and expenses) arising from (i) challenges
to Licensor's authority as agent for and pursuant to authority granted by the
Clubs to license the Logos in connection with the manufacture, distribution,
promotion, advertisement and sale of the Licensed Product(s) or (ii) assertions
to any claim of right or interest in or to the Logos as authorized and used on
the Licensed Product(s), provided in each case that Licensee shall give prompt
written notice, cooperation and assistance to Licensor relative to any such
claim or suit, and provided further in each case that Licensor shall have the
option to undertake and conduct the defense of any suit so brought (including,
without limitation, selecting in its sole discretion, counsel therefor) and to
engage in settlement thereof at its sole discretion.
B. Licensee shall assist Licensor, to the extent necessary, in the
procurement of any protection or to protect any of Licensees rights to the
Logos, and Licensor, if it so desires and in its sole discretion, may commence
or prosecute any claims or suits in its own name or in the name of Licensee or
join Licensee as a party thereto. Licensee shall notify Licensor in writing of
any infringements or imitations by others of the Logos of which it is aware.
Licensor shall have the sole right to determine whether or not any action shall
be taken on account of such infringements or imitations. Licensee shall not
institute any suit or take any action on account of any such infringements or
imitations without first obtaining the written consent of Licensor to do so.
Licensee agrees that it is not entitled to share in any proceeds received by
Licensor (by settlement or otherwise) in connection with any formal or informal
action brought by Licensor hereunder.
C. (i) In the event that a claim is made, or an action or suit is
instituted against Licensor, MLBE, the Clubs, the Leagues, BOC, MLBPC, MLBAM,
and/or MLBI (each, a "Licensor Indemnitee" and collectively, the "Licensor
Indemnitees"), arising out of or related to:
(a) any actual or alleged unauthorized use of or infringement of any
trademark, service ▇▇▇▇, copyright, patent, process, method or device
by Licensee in connection with the Licensed Product(s) covered by this
Agreement;
(b) any actual or alleged defects or deficiencies in said Licensed
Product(s) or the use thereof, or false advertising, fraud,
misrepresentation or other claims related to the Licensed Product(s)
not involving a claim of right to the Logos;
(c) any unauthorized use of the Logos or any other names, word marks,
logos, uniform designs, mascots, images, colors and color
combinations, trade dress, characters, symbols, designs, likenesses
and visual representations owned, controlled, first used and/or
applied for in or registered with the U.S. Patent and Trademark Office
(irrespective of the class or nature of the goods or services for
which an application has been made or registration issued) by the
Clubs, BOC, the Leagues, MLBE or Licensor (collectively, the "MLB
Marks");
(d) any breach by Licensee of this Agreement;
(e) any actual or alleged libel or slander against, or invasion of the
right of privacy, publicity or property of, or violation or
misappropriation of any other right of any third party;
(f) any agreements or alleged agreements made or entered into by Licensee
to effectuate the terms of this Agreement;
(g) Licensee's distribution methods, practices, or policies relating to
the Licensed Product(s); and/or
(h) Licensee's promotional, marketing, or advertising activities involving
or related to the Licensed Product(s) or to Licensor or any of its
affiliates
then Licensee shall indemnify, defend and hold each such Licensor Indemnitee and
its respective former or current owners, shareholders, partners, members,
directors, officers, employees, agents, representatives, successors and assigns
harmless from and all such actions, claims, suits, dmanges and costs (including
reasonable attorneys' fees and expenses) and afford Licensor the option to
participate in any such action or to allow Licensee to handle Licensor's defense
(subject to Licensor's approval as to counsel, court filings, discover,
correspondence, general strategies, and the settlement of the claim, action or
suit). Licensor agrees to give Licensee n otice of the commencement of any such
claim or action against any of the Licensor Indemnitees.
(ii) In the event that a claim is made, or an action or suit is instituted,
against Licensee (but not against Licensor Indemnitee) relating to the Licensed
Product(s), the Licensee shall promptly notify Licensor in writing of any
claims, actions or suits commenced against it in any forum relating to Licensed
Product(s) (irrespective of whether the Logos are implicated thereby) and shall
afford Licensor the option of (x) taking on the defense of such action on behalf
of Licensee or (y) consulting with Licensee in the defense of such action.
Unless such claim, action, or suit involves, as a litigated issue, the
unauthorized use of the MLB Marks (in which case such costs shall be treated as
if incurred in connection with Paragraph 7(C) above), Licensor shall bear the
costs of such participation.
8. INSURANCE: Licensee must obtain, and continuously maintain throughout
the license and sell-off periods, at its own expense, the following insurance
policies worldwide to protect against any claims or suits arising out of any of
the circumstances described in Paragraph 7(C) above:
A. An Insurance Services Office occurrence based Commercial General
Liability Insurance Policy, including contractual liability, products/completed
operations liability and advertising liability coverage with minimum limits of:
$1,000,000 (one million dollars) Each Occurrence;
$1,000,000 (one million dollars) General Aggregate; and
$1,000,000 (one million dollars) Products/Completed Operations
Aggregate.
B. Errors & Omissions Liability Insurance, with a minimum limit of
$1,000,000 (one million dollars) Each Claim.
C. Umbrella Liability Insurance, in excess of 8(A) and 8(B) above, with
minimum limits of:
$2,000,000 (two million dollars) Each Occurrence; and
$2,000,000 (two million dollars) General Aggregate.
All insurance policies must be issued by an admitted insurance carrier.
Licensor, the BOC, the Leagues, the Clubs, MLBPC, MLBE, MLBI, MLBAM, and their
subsidiary or affiliated companies and its and their directors, officers and
employees must be named as Additional Insureds under the Commercial General
Liability, Errors and Omissions Liability and Umbrella Liability Policies. All
of these policies must contain Cross Liability Endorsements. Further, coverage
for the Additional Insureds shall apply on a primary basis irrespective of any
other insurance, whether collectible or not. All policies shall be endorsed to
provide that in the event of cancellation, non-renewal or material modification
Licensor shall receive thirty (30) days written notice thereof. Licensee shall
furnish Licensor with certificates of insurance evidencing compliance with all
insurance provisions noted above prior to the commencement of the licensing and
annually prior to the expiration of each required insurance policy.
9. COPYRIGHT AND TRADEMARK NOTICES AND REGISTRATIONS:
A. Licensee further agrees that, unless otherwise directed in writing by
Licensor, in any instance wherein the Logos are used, the following general
notice shall be included (i.e., on the product, on a label, on the packaging
material or on a separate slip of paper attached to the product): "Major League
Baseball trademarks and copyrights are used with permission of Major League
Baseball Properties, Inc." Further, unless otherwise directed in writing by
Licensor, all products containing the Logos shall contain a hangtag and label
with Licensee's name stating "Genuine Merchandise" and containing the Major
League Baseball silhouetted batter logo and, where appropriate, the Logos of the
collection (e.g. Major League Baseball Cooperstown Collection or MLB Authentic
Collection). All Licensed Product(s) shall display or otherwise identify
Licensee's name either on a permanently affixed label or such other manner
approved in writing by Licensor. All Licensed Product(s) components which bear
any of the Logos (embroidered emblems, cloth or paper labels, hangtags, etc.)
shall be manufactured in-house by Licensee or shall be obtained only from one or
more suppliers officially authorized by Licensor to produce those components.
All Licensee advertisements displaying the Logos, all retailer advertisements
featuring Licensed Product(s) and of which Licensee has knowledge or any
Licensed Product(s), shall contain the words "Genuine Merchandise" (or such
other appropriate notice as directed by Licensor) and the silhouetted batter
logo in all advertisements. All uses of the Logos shall also include any
designations legally required or useful for enforcement of copyright, trademark
or service ▇▇▇▇ rights (e.g., "(C)," "(R)," "TM" or "(SM)"). Licensee shall
submit a copy of its specifications for all of the above notices (including
copies of its artwork, layouts or mold blueprints) to Licensor for its review.
Licensor shall have the right to revise the above notice requirements and to
require such other notices as shall be reasonably necessary to protect the
interests of Licensor, MLBE, BOC, MLBPC, MLBI, MLBAM, the Clubs and/or Leagues
in the MLB Marks.
B. Licensee agrees to advise Licensor of the initial date of the marketing
of each Licensed Product, and upon request, to complete all forms generated by
Licensor (and to supply all documentary information requested thereby,
including, without limitation, the Logos on each Licensed Product (and any
licensed use of any other of the MLB Marks prior thereto), the corresponding
quantity of sales, and identity and location of purchasers at wholesale) and to
deliver to Licensor the required number and type of specimen samples of the
Licensed Product, labels or the like upon which the Logos are used for use in
procuring copyright, trademark and/or service ▇▇▇▇ registrations in the name of
and at the expense of the person, firm, corporation or other legal entity owning
the Logos, in compliance with any laws relating to copyright, trademark and
service ▇▇▇▇ registrations. Except to the extent set forth in any schedules
attached to this Agreement, Licensor, MLBE, BOC, MLBPC, MLBI, MLBAM, the Clubs
and/or the Leagues shall be solely responsible for taking such action as it or
they deem appropriate to obtain such copyright, trademark or service ▇▇▇▇
registrations for its or their MLB Marks. If it shall be necessary for Licensee
to be the applicant to effect any such registrations, Licensee shall and hereby
does assign all of its rights in each such application and any resulting
registration to Licensor or any other appropriate owner thereof, and further
agrees to execute all papers necessary to effectuate and/or confirm such
assignments. Licensee shall perform all acts necessary and execute all documents
necessary to effectuate its registration as a use of the Logos on the Licensed
Product(s) herein (and MLB Marks, if previously applicable) where such
registration is needed and shall assist Licensor in protecting the Logos and MLB
Marks as requested and directed by Licensor.
C. Licensee also agrees that, in any case where it employs the services of
photographers or artists in connection with the production, promotion, marketing
or distribution of the Licensed Product(s), it will require each such
photographer or artist to agree that the photographic or artistic works he or
she produces for Licensee shall be "works made for hire" for the purposes of the
copyright laws, and that to the extent such photographic or artistic works may
not qualify as "works made for hire," the copyright in each such work is
assigned to Licensee.
10. APPROVALS:
A. Licensor shall have absolute approval, per Paragraph 30 hereof, of the
Licensed Product(s) and of all packaging at all stages of the development
thereof. In addition, Licensor shall have the right to approve all advertising
and promotional materials relating to the Licensed Product(s), including but not
limited to, all advertising and promotional materials that use any Logo or
Logos. Licensee agrees to furnish in a timely manner to Licensor, free of cost,
for its written approval as to quality and style, designs of each Licensed
Product and samples of each Licensed Product before its manufacture, sale,
promotion, advertisement or distribution, whichever first occurs, and samples of
all advertising, point-of-sale displays, catalogs, sales sheets and other items
that display or picture the Logos, and no such Licensed Product or other such
materials shall be manufactured, sold, promoted, advertised or distributed by
Licensee without such prior written approval. By way of example, but not
limitation, (i) no use of any Logos shall be made on stationery of Licensee
(specifically including, without limitation, letterhead, envelopes, business
cards, shopping bags, invoices, statements, packing slips, etc.) without
Licensor's prior approval and (ii) no press release or public statement
referring or relating to the Licensed Product, Licensor and/or its affiliates
shall be distributed or disseminated without Licensor's express written approval
in advance or any such use. In addition, no irregulars, seconds or other
Licensed Product(s) which do not conform in all material respects to the
approved samples may be distributed or sold without the express written advance
consent of Licensor. All such sales, if made, shall bear Percentage Compensation
as set forth in Paragraph 4(B). Subject, in each instance, to the prior written
approval of Licensor, Licensee or its agents may use textual and/or pictorial
matter pertaining to the Logos on such promotional display and advertising
material as may, in its judgment, promote the sale of the Licensed Product(s).
All promotional display and advertising material must contain and prominently
display the Major League Baseball silhouetted batter logo. Ten samples of each
Licensed Product shall be supplied free of cost to Licensor, and one to each
Club whose Logos are used on such Licensed Product(s). From time to time
subsequent to final approval, a reasonable number of production samples shall
periodically be sent to Licensor free of cost. Such samples shall also be sent
upon any change in design, style or quality, which shall necessitate subsequent
approvals by Licensor. Additional samples shall be supplied to Licensor upon
request at no more than cost.
B. In the event that any item or matter submitted to Licensor under this
Agreement for approval or consent shall not have been approved or consented to,
disapproved or denied, or commented upon within twenty (20) Licensor business
days after receipt thereof by Licensor and Licensor shall have received notice
from Licensee that comment is overdue by telegram or other written
communication, and Licensor shall not have commented within 5 (five) additional
Licensor business days of receipt of such notice, any items or matters so
submitted shall be deemed approved and consented to. Licensee acknowledges and
agrees that all submissions required to be given by it to Licensor hereunder
shall be sent to Licensor's Quality Control Department with a copy of Licensee's
contact within Licensor's Licensing Department. Notwithstanding anything to the
contrary contained above, no action (whether written or oral) or inaction by the
Quality Control Department shall be construed as granting any rights (including,
without limitation, authorizing any new or different product) not expressly
stated in this Agreement or a fully executed amendment hereto. Licensee
acknowledges and agrees that any Licensed Product(s) not approved pursuant to
the terms hereof shall be unlicensed and unauthorized.
11. DISTRIBUTION:
A. Licensee shall sell the Licensed Product(s) to jobbers, wholesalers,
distributors or retailers for sale or resale and distribution to retail stores
and merchants for their resale and distribution or directly to the public.
Concurrently with its execution of this Agreement, Licensee will provide
Licensor with the names, addresses, telephone numbers and names of principal
contacts of each individual or entity, other than consumers or entities that
sell directly to consumers, to whom Licensee sells or otherwise provides the
Licensed Product(s) for subsequent sale or distribution (hereinafter referred to
as "Distributor"). This information shall be set out in Schedule G, Distributors
of this Agreement. Licensee shall specify the Licensed Product(s) Distributor
shall sell, directly or indirectly, to any Distributors not listed in Schedule
G, Distributors, or to any individual or entity affiliated in any manner with
any of such Distributors, Licensed Product(s) for subsequent sale or
distribution without prior written approval of Licensor. In the event Licensee
wishes to substitute a Distributor listed in Schedule G, Distributors or wishes
to add to the number of Distributors, Licensee shall first provide Licensor with
the information set out in Schedule G, Distributors regarding the proposed new
Distributors for Licensor's written approval of such Distributors. Licensee's
failure to do so may result in termination of this Agreement and/or confiscation
and seizure of Licensed Product(s).
B. Unless otherwise set forth in the Schedules to this Agreement, such
distribution of the Licensed Product(s) shall not be conducted through
freight-on-board sales (wherein Licensee transfers title to and possession of
the Licensed Product(s) to a third party outside the Licensed Territory for
subsequent distribution) or on-line or via the Internet. In the event Licensee
sells or distributes a Licensed Product at a special price directly or
indirectly to itself, including, without limitation, any Licensee Affiliate, or
to any other person, firm or corporation related in any manner to Licensee or
its officers, directors or major stockholders, Licensee shall pay Percentage
Compensation with respect to such sales or distribution based upon the greater
of the highest net sales price offered, or sold to, the trade during the license
period by Licensee for (i) such Licensed Product(s), or (ii) products similar,
in Licensor's judgment, to the Licensed Product(s).
12. GOODWILL: Licensee recognizes the great value of the publicity and
goodwill associated with the MLB Marks and, in such connection, acknowledges
that such good will belongs exclusively to Licensor, MLBE, MLBPC, MLBI, MLBAM,
the Clubs, BOC and/or the Leagues, as the case may be, and that the MLB Marks
have acquired a secondary meaning in the minds of the purchasing public.
13. SPECIFIC UNDERTAKINGS OF LICENSEE: During the license period, each
additional license period, if any and thereafter, Licensee represents, warrants
and agrees that:
A. It will not acquire any rights in the Logos as a result of its use
thereof (or the MLB Marks, if used previously by Licensee) and all use of the
Logos or MLB Marks shall inure to Licensor's benefit;
B. It will not, directly or indirectly, attack the title of Licensor, MLBE,
the Clubs, BOC, and/or the Leagues in and to the MLB Marks or any copyright,
trademark or service ▇▇▇▇ pertaining thereto, nor will it attack the validity of
the license granted hereunder, nor will it use the MLB Marks not licensed
hereunder or the Logos in any manner other than as licensed hereunder;
C. It will not at any time apply for any registration of any copyright,
trademark, service ▇▇▇▇ or other designation which would affect the ownership of
the MLB Marks, or file any document with any governmental authority or take any
action which would affect the ownership of the MLB Marks or aid or abet anyone
in doing so;
D. It will not harm, misuse or bring into disrepute the MLB Marks;
E. It will manufacture, sell, promote, advertise and distribute the
Licensed Product(s) in a legal and ethical manner and in accordance with the
terms and intent of this Agreement;
F. It will not create any expenses chargeable to Licensor without the prior
written approval of Licensor;
G. It will protect to the best of its ability the right to manufacture,
sell and distribute the Licensed Product(s) hereunder;
H. It will not use the Licensed Product(s) for combination sales, as
self-liquidating or free giveaways or for any similar method of merchandising
without the prior written consent of Licensor and will exercise due care that
its customers likewise will refrain from making such use of the Licensed
Product(s);
I. It will not, without the prior written consent of Licensor, enter into
any sublicense or agency agreement for the manufacture, sale, promotion,
advertisement or distribution of the Licensed Product(s);
J. It will not engage in tying practices, illegal restraints of trade, or
selling practices that exclude any members of the retail trade for any reason
other than poor credit history, known lack of integrity or disregard for the
rights of Licensor and/or any of its affiliates. Nothing in the preceding
sentence shall be deemed to require Licensee to violate any other term of this
Agreement;
K. It will not use, or knowingly permit the use of, the Licensed Product(s)
as a premium, except with the prior written consent of Licensor (in the form of
an executed premium license from Licensor) and the specific negotiation of a
higher Percentage Compensation payment therefor. For purposes of this
subparagraph and Paragraph 19 below, the term "premium" shall be defined as
including, but not necessarily limited to, free or self-liquidating items
offered to the public in conjunction with the sale or promotion of a product or
service, including traffic building or continuity visits by the
consumer/customer, or any similar scheme or device, the prime intent of which is
to use the Licensed Product(s) in such a way as to promote, publicize and/or
sell the products, services or business image of the third party company or
manufacturer. "Premium" use shall also specifically include distribution of the
Licensed Product(s) for retail sale through distribution channels (including,
without limitation, catalogs) offering earned discounts or "bonus" points based
upon the extent of usage of the offeror's product or service;
L. It will comply with such guidelines and/or requirements as Licensor may
announce from time to time, including, without limitation, the terms and
conditions contained in the Licensee Manual. It will comply with all laws,
regulations and standards relating or pertaining to the manufacture, sale,
advertising or use of the Licensed Product(s) and shall maintain the highest
quality and standards, and shall comply with the requirements of any regulatory
agencies (including, without limitation, the United States Consumer Safety
Commission) which shall have jurisdiction over the Licensed Product(s);
M. It guarantees that Licensor, Clubs, official Club and/or Licensor retail
stores, Club in-stadium concessionaires and the Clubs belonging to The National
Association of Professional Baseball Leagues d/b/a Minor League Baseball ("Minor
League Baseball Clubs") shall be permitted to purchase the Licensed Product(s)
from Licensee for their retail sale at Licensee's lowest possible wholesale
price and shall receive prompt shipments and/or deliveries of the Licensed
Product(s), without regard to the relatively small volume their orders may
represent. Licensor, Clubs and Minor League Baseball Clubs shall be permitted to
purchase the Licensed Product(s) from Licensee for their use, but not resale, at
Licensee's lowest possible price, which shall in no event be greater than its
lowest wholesale price. Licensee shall be obligated to pay Percentage
Compensation on all sales pursuant to this Paragraph 13(M), unless otherwise
specified herein;
N. It will furnish to Licensor, upon request of Licensor (which shall be
made only for reasonable cause and no more often than once per year), a list of
all its distributors, sales representatives and jobbers for the Licensed
Product(s), as well as a list of all its "trade names," said list to include the
company name, address, telephone number, territorial representation and key
contact name. Licensor agrees that it will not divulge any information provided
to it under this paragraph to any other competitor licensing organization;
O. Concurrently with its execution of this Agreement, it will provide
Licensor with the names, addresses, telephone numbers and names of principal
contacts of each party (hereinafter referred to as "Manufacturer"), both
domestic and foreign, that Licensee desires or intends to have produce one or
more of the Licensed Product(s) in the event Licensee desires not to be the
manufacturer of such Licensed Product(s). This information shall be set out in
Schedule F of this Agreement and Licensee shall specify the Licensed Product(s)
Manufacturer will produce. Licensee agrees that at no time during the license or
sell-off periods shall it sell, directly or indirectly, to any of the
Manufacturers listed in Schedule F, or to any individual or entity affiliated in
any manner with any of such Manufacturers, any Licensed Product(s) for
subsequent sale or distribution, without prior written approval of Licensor. In
the event Licensee wishes to substitute a Manufacturer for those listed in
Schedule F or wishes to add to the number of Manufacturers, Licensee shall first
provide Licensor with the information set out in Schedule F regarding the
proposed new Manufacturers for Licensor's written approval of such
Manufacturers. Licensee's failure to do so may result in termination of this
Agreement and/or confiscation and seizure of the Licensed Product(s). Licensee
shall ensure that:
(i) Manufacturer produces no merchandise bearing the MLB Marks other
than the Licensed Product(s) described in Schedule F of this
Agreement unless authorized by Licensor;
(ii) Manufacturer produces the Licensed Product(s) only as and when
directed by Licensee and in accordance with the terms herein and
in compliance with all laws, regulations and governmental rules
applicable to the Licensed Product(s) and/or their manufacture;
(iii) Manufacturer does not supply the Licensed Product(s) to any
person, firm, corporation or business entity other than Licensee
or to such entities as may be authorized by Licensee and Licensor
jointly; and
(iv) Manufacturer does not delegate in any manner whatsoever its
obligations with respect to the Licensed Product(s).
Prior to the delivery of the Licensed Product(s) from Manufacturer to Licensee,
Licensee shall submit to Licensor, free of cost, for its written approval as to
quality and style, at least two samples of the Licensed Product(s) produced by
Manufacturer;
P. It will not manufacture or allow the manufacture, or accumulate
inventory, of the Licensed Product(s), at a rate greater than its average rate
during the license period as the end of the license period approaches;
Q. It will not sell the Licensed Product(s) to parties whom it knows or
reasonably should know will resell or distribute such Licensed Product(s)
outside the Licensed Territory;
R. It will not disclose any confidential, private, restricted or otherwise
nonpublic information concerning any Major League Baseball-affiliates entity
(including, without limitation, all information contained in the Schedules
attached hereto) which, it acknowledges, it may become privy to during the term
of this Agreement;
S. It has not and will not grant a security interest to or in the Licensed
Product(s) unless and until it notifies Licensor in writing of each such
security interest and otherwise complies with the following conditions:
(i) the grant of rights in the Licensed Product(s) represents a
non-assignable security interest and not a conveyance of ownership;
(ii) such secured party is a credible financial institution which maintains
at least an A- rating from a nationally recognized credit rating
agency (such as ▇▇▇▇▇'▇ or Standard & Poors) throughout the license
period;
(iii) such secured party shall not be entitled to complete
works-in-progress or raw materials used to create the Licensed
Product(s); and
(iv) Licensee shall contractually require that if such secured party wishes
to sell the affected Licensed Product(s) upon Licensee's default of
such security agreement, then the secured party shall first offer
Licensor the opportunity to purchase such inventory at the lesser of
Licensee's cost or the lowest "qualified bid" therefor. For purposes
of this Agreement a "qualified bid" shall be any bona fide, arm's
length bid offered other than by a party (1) who Licensor would
not approve as a purchaser hereunder, or (2) who is related to or
affiliated with Licensee (including, without limitation, a Licensee
Affiliate). In the event Licensor does not exercise such option to
purchase the inventory, Licensee shall obtain Licensor's written
approval of such sale upon at least fifteen (15) Licensor business
days' advance written notice to Licensor; it being understood that
Licensor may grant or deny approval in its sole discretion:
(a) if approval is denied, Licensor shall be entitled to order the
destruction or return of such Licensed Product(s) upon the
payment of such secured party by Licensor of the manufacturer's
cost of such goods
(b) if approval is granted, the sale shall be conditioned upon (1)
the payment to Licensor of all Percentage Compensation due to
Licensor on such sales, based on terms of this Agreement, within
fifteen (15) days from such sale (and any outstanding obligations
owed to Licensor, if requested by Licensor), (2) the secured
party's carrying of insurance of the type required of Licensee in
Paragraph 8 hereof prior to consummating such sale, (3)
Licensor's approval of said Licensed Product(s) pursuant to
Paragraph 10 hereof, (4) the manner of the sale (including,
without limitation, Licensed Territory, method of distribution
and license period) complies in all aspects of this Agreement;
and (5) and the secured party's agreement to indemnify Licensor
and each of its affiliates referenced in Paragraph 7(C) hereof
from all claims relating to such sale.
T. It has not had and does not have an investment or interest in casinos,
any other form of legalized gambling enterprise, or any activity that Licensor
or any other Major League Baseball related entity has made unauthorized or which
is contrary to official policy of Major League Baseball;
U. With respect to any Licensed Product(s) manufactured outside the United
States (which shall be allowed pursuant to the terms hereunder), (i) it will
take receipt of goods at U.S. ports of entry, (ii) it will not allow any entity
in the United States, including but not limited to distributors, wholesalers and
retailers, to accept shipment of the Licensed Product(s) from any non-U.S.
manufacturer of such Licensed Product(s), and (iii) it will distribute such
Licensed Product(s) to third parties, including but not limited to distributors,
wholesalers and retailers, from Licensee's principal place of business only or
from Licensee's owned and operated warehouses or facilities wherein Licensee has
a physical presence;
V. (i) The name identified in the first unnumbered paragraph of this
Agreement is the corporate name of Licensee, and is reflected as such in all
corporate, legal and governmental filings, (ii) Licensee is duly incorporated in
the United States and has full power and authority to execute and deliver this
Agreement and perform its obligations hereunder; (iii) Licensee has duly
executed and delivered this Agreement; (iv) this Agreement constitutes the
legal, valid and binding obligation of Licensee, enforceable against it in
accordance with the terms hereof; and (v) Licensee's execution, delivery, and
performance of this Agreement does not and will not conflict with, result in the
breach of, or constitute a default under any arrangements or agreement to which
it is a party or by which it is bound;
W. Except as disclosed pursuant to Paragraph 13(S) above, Licensee has
granted to no individual or entity a preference, security interest, or lien in
the Licensed Product(s); and
X. Licensee shall inform Licensor promptly and in writing of any default by
it under an agreement with a secured letter in which the Licensed Product(s) are
implicated and/or any agreement with any affiliate of Licensor.
14. APPROVAL OF MANUFACTURER, ETC.: Nothing contained herein may be
construed so as to imply endorsement of Manufacturer by Licensor, MLBE, BOC,
MLBPC, MLBI, MLBAM, the Leagues or the Clubs. Licensee shall seek Licensor's
written approval of Manufacturer prior to Licensee's engagement of Manufacturer.
Any approval of Manufacturer granted by Licensor must be in writing and relates
solely to the manufacturing of the Licensed Product(s) and shall not constitute
a grant of any right, title or interest in the Logos, nor to the MLB Marks.
Licensor hereby reserves the right to terminate in its discretion the engagement
of Manufacturer at any time and for any reason. Additionally, Licensor may
confiscate goods or samples imported by Licensee or shipped by Manufacturer that
bear any of the Logos and that have not been approved by Licensor as to quality.
15. ACKNOWLEDGEMENT OF RIGHTS:
A. Licensee hereby acknowledges the proprietary nature of all MLB Marks and
acknowledges that all rights, title and interest to MLB Marks belong to the
individual Clubs, MLBE, the Leagues, BOC and/or Licensor, as the case may be.
Licensee represents that it has not made any unauthorized use of MLB Marks,
including, without limitation, those contained in Licensor's Official Style
Guide, and acknowledges that a license from the Clubs, MLBE, the Leagues, BOC
and/or Licensor is required in order to use such MLB Marks, and agrees that it
will during or after the license period make no use of any such MLB Marks, other
than as provided in this Agreement, without the prior written consent of
Licensor, MLBE, BOC or the appropriate individual League or Club. Any use
Licensee has made of the MLB Marks or will make of the Logos has not conferred
or will not confer, as the case may be, any rights or benefits upon it
whatsoever, and any rights created by such use shall inure to the benefit of the
individual Clubs, MLBE, the Leagues, BOC and/or Licensor, as the case may be.
Licensee further acknowledges that for purposes of this Paragraph 15, "use"
includes, but is not limited to, trademark, fair, incidental, descriptive or
functional uses.
B. Licensee also acknowledges that it will not manufacture, distribute or
sell any products (other than the Licensed Product(s) or premium products
approved by Licensor), or produce or direct the production of any promotional
item (other than as approved by Licensor), utilizing the primary colors of Club
or Major League Baseball game or event MLB Marks or anything closely similar
thereto in combination with baseball indicia or the geographic designation of a
Club in a manner which is likely to create the impression or actually creates
the impression that such products are associated with such Club or Major League
Baseball game or event; provided, however, that the foregoing limitation
regarding the use of certain colors in combination with the geographic
designation of a Club shall not apply to the extent that another professional or
college sports team or program has the same geographic designation as such Club
and colors identical or closely similar to those of such Club and such use is
consistent with other styles of products currently being sold by Licensee
pursuant to a license with such professional or college sports team.
16. TERMINATION:
A. Immediate Termination: Licensor shall have the right to terminate this
Agreement immediately upon the occurrence of any one or more of the following
events (herein called "defaults"):
(i) If Licensee fails to deliver to Licensor or to maintain in full
force and effect the insurance referred to in Paragraph 8 hereof;
or
(ii) If any governmental agency or court of competent jurisdiction
finds that the Licensed Product(s) are defective in any way,
manner or form; or
(iii) If Licensee shall breach any one of the following undertakings
set forth in Paragraph 13 hereof: 13A through F, H through K, Q,
R or T; or
(iv) If Licensee shall undergo a change in the majority or controlling
ownership; or
(v) If Licensee's breach of this Agreement is incapable of complete
cure; or
(vi) If Licensee is in default of any provision of an agreement with a
lender possessing an approved security interest (per Paragraph
13(S)) in the Licensed Product(s); or
(vii) If Licensee shall breach any other existing agreement with
Licensor or any Major League Baseball-affiliated entity and fails
to cure such breach pursuant to the terms thereof.
B. Termination With Cure Period: Licensor shall have the right to terminate
this Agreement upon the occurrence of any one or more of the following defaults,
and Licensee's failure to cure such default(s) completely within ten (10)
business days from Licensee's receipt of notice from Licensor:
(i) If Licensee fails to make any payment due hereunder on the date
due, or fails to satisfy any outstanding payment obligation under
any other agreement with Licensor, at which time all such monies,
together with all other monies owed pursuant to Schedule E of
this Agreement shall become due and payable to Licensor; or
(ii) If Licensee fails to deliver any of the statements hereinabove
referred to or to give access to the premises and/or license
records pursuant to the provisions hereof to Licensor's
authorized representatives for the purposes permitted hereunder;
or
(iii) If Licensee is unable to pay its debts when due, or makes any
assignment for the benefit of creditors or an arrangement
pursuant to any bankruptcy law, or files or has filed against it
any petition under the bankruptcy or insolvency laws of any
jurisdiction, county or place, or shall have or suffer a receiver
or trustee to be appointed for its business or property, or be
adjudicated a bankrupt or an insolvent. In the event the license
granted hereunder is terminated pursuant to this Paragraph
16(B)(iii), neither Licensee nor its receivers, representatives,
trustees, agents, administrators, successors and/or assigns shall
have any right to sell, exploit or otherwise deal with or in the
Licensed Product(s) without the prior written consent of
Licensor; or
(iv) If Licensee does not in good faith commence the manufacture of
the Licensed Product(s) by the date specified in Schedule G,
Miscellaneous, if applicable, and to distribute and sell each
Licensed Product throughout the Licensed Territory by the date
specified in Schedule G, Miscellaneous, if applicable, but such
default and Licensor's resultant right of termination shall apply
only to the specific Licensed Product(s) and/or the specific
territory(ies) which or wherein Licensee fails to meet said
requirements; or
(v) If Licensee shall discontinue its business as it is now
conducted; or
(vi) If Licensee shall breach any of the undertakings set forth in
Paragraph 13 hereof, except as otherwise provided in Paragraph
16(A)(iii) above; or
(vii) If Licensee shall breach any of the terms of this Agreement; or
(viii) If, in the periodic statements furnished pursuant to Paragraph
5 hereof, the amounts owed to Licensor are significantly or
consistently understated.
C. Licensor's right to terminate this Agreement shall be without prejudice
to any other rights which it may have, whether under the provisions of this
Agreement, in law or in equity or otherwise. In the event any of these defaults
occurs and Licensor desires to exercise its right of termination under the terms
of this Paragraph 16, Licensor shall give notice of termination in writing to
Licensee. Any and all payments then or later due from Licensee hereunder
(including Advance Compensation) shall then become promptly due and payable in
full to Licensor and without set off of any kind; i.e., no portion of any prior
payments made to Licensor shall be repayable to Licensee. Until payment to
Licensor of any monies due it, Licensor shall have a lien on any units of the
Licensed Product(s) not then disposed of by Licensee and on any monies due
Licensee from any jobber, wholesaler, distributor, sublicensee or other third
par-ties with respect to sales of the Licensed Product(s). Upon termination or
expiration of the term hereof, all rights, licenses and privileges granted to
Licensee hereunder shall automatically revert to Licensor and Licensee shall
execute any and all documents evidencing such automatic reversion.
17. FINAL STATEMENT UPON TERMINATION OR EXPIRATION: Licensee shall deliver
to Licensor, as soon as practicable, following expiration or termination of this
Agreement, a statement indicating the number and description of the Licensed
Product(s) on hand. Following expiration or termination Licensee may manufacture
no more Licensed Product(s), but, subject to the terms of the following
sentence, may continue to distribute its remaining inventory for a period not to
exceed sixty (60) days, subject to the terms of Paragraph 13(P) hereof and
payment of applicable Percentage Compensation relative thereto; provided,
however, that such Percentage Compensation shall not be applicable against
Advance Compensation or Guaranteed Compensation. Notwithstanding the foregoing,
Licensee shall not manufacture, sell or distribute any Licensed Product(s) (i)
after termination of this Agreement by Licensor or (ii) after expiration and
where Licensee has defaulted and such default involved (a) the failure of
Licensee to cause the appropriate statutory notice of copyright, trademark,
service ▇▇▇▇ or user registration to appear wherever the Logos are used; (b) the
departure of Licensee from the quality and style approved by Licensor under the
terms of Paragraph 10 hereof, (c) the failure of Licensee to obtain the approval
of Licensor under the terms of Paragraph 1O hereof; or (d) the occurrence of an
event of default under the terms of Paragraph 16 hereof. Furthermore, Licensee
shall ensure that the distributors, jobbers and middlemen with whom it deals in
respect of the Licensed Product(s) shall not distribute the Licensed Product(s)
after the expiration of the sell-off period set forth in this Agreement.
Licensor shall have the option to conduct physical inventories before
termination and continuing until the end of the 60-day sell-off period in order
to ascertain or verify such inventories and/or statement. Immediately upon
expiration of the sell-off period, Licensee shall furnish Licensor a detailed
statement certified by an officer of Licensee showing the number and description
of Licensed Product(s) on hand in its inventory and shall dispose of such
inventory at Licensor's direction and at Licensee's expense. In the event
Licensee refuses to permit Licensor to conduct such physical inventory, Licensee
shall forfeit its right hereunder to dispose of such inventory. In addition to
such forfeiture, Licensor shall have recourse to all other remedies available to
it.
18. INJUNCTION: Licensee acknowledges that its failure to perform any of
the terms or conditions of this Agreement, or its failure upon the expiration or
termination of this Agreement to cease the manufacture of the Licensed
Product(s) and limit their distribution and sale as provided in Paragraph 17
hereof, shall result in immediate and irreparable damage to Licensor. Licensee
also acknowledges that there may be no adequate remedy at law for such failures
and that in the event thereof Licensor shall be entitled to equitable relief in
the nature of an injunction and to all other available relief, at law and/or in
equity.
19. RESERVATION OF RIGHTS: Licensor retains all rights not expressly and
exclusively conveyed herein, and Licensor may license firms, individuals,
partnerships or corporations to use the Logos and all other MLB Marks, artwork
and textual matter in connection with other products, including other products
identical to the Licensed Product(s) contemplated herein. Licensor reserves the
right to use, or license others to use and/or manufacture, the Logos on
identical items as premiums. Nothing in this Paragraph 19 shall constitute a
waiver by Licensee of its patent rights or a license to Licensee's patent
rights. In the event Licensee develops a patentable design concept (e.g., a
unique closure system, stabilizer, footbed, etc.) and uses it in connection with
the Licensed Product(s), such use shall not confer patent rights to such design
to Licensor, and Licensee may use such patented design concept on other
products.
20. PAYMENTS AND NOTICES: All notices and statements provided for herein
shall be in writing, and all notices hereunder are to be sent to Major League
Baseball Properties, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
General Counsel. All statements and payments shall be made to Major League
Baseball Properties and sent to an address designated by Licensor.
21. WAIVER, MODIFICATION, ETC.: No waiver, modification or cancellation of
any term or condition of this Agreement shall be effective unless executed in
writing by the party charged therewith. No written waiver shall excuse the
performance of any act other than those specifically referred to therein. No
waiver by either party hereto of any breach of this Agreement shall be deemed to
be a waiver of any preceding or succeeding breach of the same or any other
provision hereof. The exercise of any right granted to either party hereunder
shall not operate as a waiver. The normal expiration of the term of this
Agreement shall not relieve either party of its respective obligations accruing
prior thereto, nor impair or prejudice the respective rights of either party
against the other, which rights by their nature survive such expiration.
Licensor makes no warranties or representations to Licensee except those
specifically expressed herein.
22. NO PARTNERSHIP, ETC.: This Agreement does not constitute and shall not
be construed as constituting an agency, partnership or joint venture
relationship between Licensee and Licensor and/or the Clubs. Licensee shall have
no right to obligate or bind Licensor in any manner whatsoever, and nothing
herein contained shall give or is intended to give any rights of any kind to any
third persons.
23. NON-ASSIGNABILITY: Licensee acknowledges and recognizes: (a) that it
has been granted the license described in Paragraph I because of its particular
expertise, knowledge, judgment, skill and ability; (b) that it has substantial
and direct responsibilities to perform this Agreement in accordance with all of
the terms contained herein; (c) that Licensor is relying on Licensee's unique
knowledge, experience and capabilities to perform this Agreement in a specific
manner consistent with the high standards of integrity and quality associated
with Major League Baseball as a national sport and with Major League
Baseball-logoed merchandise; and (d) that the granting of the license under this
Agreement creates a relationship of confidence and trust between Licensee and
Licensor. This Agreement is personal to Licensee, and Licensee shall not
sublicense or franchise any of its rights hereunder, and neither this Agreement
nor any of the rights of Licensee hereunder shall be sold, transferred or
assigned by Licensee without Licensor's prior written approval and no rights
hereunder shall devolve by operation of law or otherwise upon any assignee,
receiver, liquidator, trustee or other party. Subject to the foregoing, this
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto, their successors and assigns.
24. PARAGRAPH HEADINGS: Paragraph headings contained in this Agreement are
for convenience only and shall not be considered for any purpose in governing,
limiting, modifying, construing or affecting the provisions of this Agreement
and shall not otherwise be given any legal effect.
25. CONSTRUCTION AND JURISDICTION: The validity, construction, and
enforceability of this Agreement shall be governed by the internal laws of the
State of New York, without giving effect to conflict of laws principles thereof.
The United States District Court for the Southern District of New York and the
Supreme Court of the State of New York, sitting in New York County, shall be the
sole venues for any dispute arising directly or indirectly from the relationship
created or the transactions contemplated by this Agreement. Each of the parties
consents to the jurisdiction and venue of any such court and waives any argument
that any such court does not have jurisdiction over such party or such dispute
or that venue in any such forum is not appropriate or convenient. In the event
that any of the parties commences any action against any other party in another
jurisdiction or venue in respect of any such dispute, such other party shall be
entitled, at its option, to have the action transferred to one of the
jurisdictions and venues described in Paragraph 25, or if such transfer cannot
be accomplished under applicable law, to have such action dismissed without
prejudice.
26. SEVERABILITY: The determination that any provision of this Agreement is
invalid or unenforceable shall not invalidate this Agreement, and the remainder
of this Agreement shall be valid and enforceable to the fullest extent permitted
by law.
27. TIME OF THE ESSENCE: Time is of the essence of all parts of this
Agreement.
28. ACCEPTANCE BY LICENSOR: This instrument, when signed by Licensee or a
duly authorized officer of Licensee if Licensee is a corporation, shall be
deemed an application for a license and not a binding agreement unless and until
signed by a duly authorized officer of Licensor. The receipt and/or deposit by
Licensor of any check or other consideration given by Licensee and/or the
delivery of any material by Licensor to Licensee shall not be deemed an
acceptance by Licensor of this application. The foregoing shall also apply to
any documents relating to renewals or modifications hereof.
29. INTEGRATION: This Agreement, when fully executed, shall represent the
entire understanding between the parties hereto with respect to the subject
matter hereof and supersedes all previous representations, understandings or
agreements, oral or written, between the parties with respect to the subject
matter hereof.
30. GRANT OR DENIAL OF APPROVALS: In any instance where any approval is
required under this Agreement (including without limitation, pursuant to
Paragraphs 7, 10 and 14), Licensee represents, acknowledges and agrees that such
approval shall be granted or withheld in Licensor's sole discretion.
31. SURVIVAL OF PROVISIONS: Paragraphs 2, 6, 7(C), ▇, ▇▇, ▇▇(▇), (▇), (▇),
(▇), (▇), (▇), (▇), (▇), (Q) and (R), 15, 17, 18, 19, 21, 22, 24, 25, 26, 30,
31, and 32 shall survive any termination or expiration of this Agreement.
32. MISCELLANEOUS: By signing below, Licensee acknowledges that this
Agreement is for the term specified in Schedule D only and that neither the
existence of this Agreement nor anything contained herein shall impose on
Licensor any obligation to renew or otherwise extend this Agreement after
expiration of the license period. Licensee acknowledges and agrees that Licensor
may, through its counsel or other employees, agents or representatives,
communicate directly with Licensee (including Licensee's business persons)
concerning any potential or existing breach of this Agreement or any other
matter relating to the Logos (other than in the context of actual litigation,
arbitration, or mediation wherein Licensor and Licensee are adverse to one
another) irrespective of whether Licensee's counsel is involved in such
communications. Licensee further acknowledges and agrees it has reviewed this
Agreement with its counsel and understands and agrees to every provision
contained herein. Licensee additionally acknowledges and agrees that no
agreement shall confer renewal or extension of rights unless executed by
Licensor.
SCHEDULE A
LOGOS
For purposes of this Agreement, unless otherwise specified, "Logos" shall
mean the below-listed names, word marks, logos, uniform designs, mascots,
images, colors and color combinations, trade dress, characters, symbols,
designs, likenesses and visual representations, each as specified in Licensor's
Official Style Guides or as otherwise specified by Licensor, as of the date that
Licensee begins production of (i) the Licensed Products referred to in Schedule
B or (ii) related advertising or promotional material. Except to the extent
specifically set forth below, Licensee shall have no rights respecting any
proprietary indicia (name, image, or design) of any Club mascot or ballpark.
(1) The following logos and word marks: American and National League logos
and word marks, "Major League" word ▇▇▇▇, "Major League Baseball" word
▇▇▇▇, Major League Baseball silhouetted batter logos, "MLB" logos and
word ▇▇▇▇, and "What A Game" word ▇▇▇▇.
(2) The primary, secondary and headwear logos, uniform lettering and
designs, images, color and color combinations, trade dress,
characters, symbols, designs, likenesses, visual representations, and
word marks, of the following Clubs: Anaheim Angels, Baltimore Orioles,
Boston Red Sox, Chicago White Sox, Cleveland Indians, Detroit Tigers,
Kansas City Royals, Minnesota Twins, New York Yankees, Oakland
Athletics, Seattle Mariners, Tampa Bay Devil Rays, Texas Rangers,
Toronto Blue Jays, Arizona Diamondbacks, Atlanta Braves, Chicago Cubs,
Cincinnati Reds, Colorado Rockies, Florida Marlins, Houston Astros,
Los Angeles Dodgers, Milwaukee Brewers, Montreal Expos, New York Mets,
Philadelphia Phillies, Pittsburgh Pirates, St. Louis Cardinals, San
Diego Padres and San Francisco Giants.
(3) The following word marks and images: Anaheim Angels: Clutch (image
only) and Scoop (image only), Atlanta Braves: ▇▇▇▇▇ the Brave (image
only) and Rally (image only), Baltimore Orioles: The Bird (image
only), Boston Red Sox: ▇▇▇▇▇ (image only), Cleveland Indians: Slider
(image only), Colorado Rockies: ▇▇▇▇▇▇ (image and word ▇▇▇▇), Detroit
Tigers: Paws (image only), Florida Marlins: ▇▇▇▇▇ the ▇▇▇▇▇▇ (image
and word ▇▇▇▇), Montreal Expos: Youppi! (image and word ▇▇▇▇), New
York Mets: Mr. Met (image and word ▇▇▇▇), Oakland Athletics: Stomper
(image only), Philadelphia Phillies: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (image and word
▇▇▇▇), Pittsburgh Pirates: Pirate Parrot (image and word ▇▇▇▇), San
Diego Padres: Swinging Friar (image and word ▇▇▇▇), Seattle Mariners:
Mariner Moose (image only), St. Louis Cardinals: Fredbird (image and
word ▇▇▇▇), and Tampa Bay Devil Rays: ▇▇▇▇▇▇▇ (image only).
SCHEDULE B
LICENSED PRODUCT(S)
***ALL LICENSED PRODUCTS SHALL CONFORM TO LICENSOR'S
THEN-CURRENT LABELING REQUIREMENTS. ***
1 . Adhesive bandages sold in a collectible tin each featuring any of the
Logos specified in Schedule A.
Except to the extent specifically set forth above, only Licensor's
then-current Logos shall be featured in the Licensed Products.
SCHEDULE C
LICENSED TERRITORY
The fifty United States of America, the District of Columbia, Puerto Rico
and U.S. territories and possessions, including U.S. military bases worldwide.
SCHEDULE D
LICENSE PERIOD
January 1, 2001 - December 31, 2002
SCHEDULE E
COMPENSATION
TOTAL GUARANTEED COMPENSATION: $30,000.00
PAYABLE AS:
(i) NON-RETURNABLE ADVANCE COMPENSATION due upon signing:
N/A
(ii) REMAINDER OF GUARANTEED COMPENSATION due as follows:
April 30, 2001 . . . . . . . .$7,500.00
September 30, 2001 . . . . . .$7,500.00
Total 2001 Guarantee . . . . $15,000.00
April 30, 2002 . . . . . . . .$7,500.00
September 30, 2002 . . . . . .$7,500.00
Total 2002 Guarantee . . . . $15,000.00
PERCENTAGE COMPENSATION
Seven percent (7%) of net sales (as defined in Paragraph 4(B)). Percentage
Compensation shall be applied against Guaranteed Compensation payable in the
same calendar year only, without carryover. Percentage Compensation attributable
to premium sales of the Licensed Product(s) shall not be applied against Total
Guaranteed Compensation.
SCHEDULE F
MANUFACTURERS
Licensee shall list below each Manufacturer (as defined in Paragraph 13(O))
utilized in connection with the Licensed Product(s). Licensee acknowledges that
it may not allow any Manufacturer to act as a distributor of the Licensed
Product(s).
1) Licensed Product(s): ___________________________________________
Name of Manufacturer: NutraMax Products
Address: ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone:___________________________________
Principal Contact:______________________________________________
Approved by Major League Baseball Properties, Inc.:________________________
Initials/Title
SCHEDULE G
PRODUCT CREDIT
Licensee shall provide to Licensor merchandise credit in the amount of $500
(wholesale value) during (each year) of the license period. Licensee shall ship
at Licensee's expense and at Licensor's direction such merchandise as Licensor
shall request from time to time under this merchandise credit.
ADVERTISING, MARKETING & PROMOTION
Licensee acknowledges that it is required to promote the Licensed Products
under this Agreement. Accordingly, to satisfy part of that obligation, by March
1 of each year of the license period, Licensee shall pay Licensor the amount of
$1,500.00 for Licensor's use in connection with Licensor-driven programs and/or
initiatives designed to promote merchandise licensed by Licensor.
MISCELLANEOUS
1. Notwithstanding anything to the contrary contained in Paragraph 11 of
this Agreement, and subject to Paragraph 10 regarding such materials and copy,
Licensee shall be permitted to distribute the Licensed Product(s) via the
Internet; provided, however, that Licensee shall not distribute, sell, or
otherwise distribute or allow for the sale or distribution of, directly or
through others, the Licensed Product(s) outside the Licensed Territory, and
shall include prominent language on the Internet site(s) through which the
Licensed Product(s) are offered that Licensee may not fulfill orders for
delivery of the Licensed Product(s) outside of the Licensed Territory.
2. Licensee represents and warrants that in addition to the periodic
statements Licensee must provide to Licensor pursuant to Paragraph 5 of this
Agreement, Licensee shall provide to Licensor an itemized accounting of all
sales of Licensed Products in Puerto Rico during the license period on a monthly
basis.
3. Notwithstanding anything to the contrary contained in Paragraph 11,
Licensee acknowledges and agrees that Licensee may not sell or offer to sell or
distribute the Licensed Products via mass direct print mail solicitations to
consumers absent the prior written consent of Licensor.
4. Subject to the terms and conditions contained in this Schedule G,
Miscellaneous and the other terms and conditions of this Agreement, Licensor
acknowledges and agrees that Licensee may utilize the Manufacturer listed in
Schedule F, Manufacturer No. 1 ("NutraMax") to distribute approved Licensed
Products authorized hereunder, subject to the following:
(i) Licensee agrees to oversee and supervise the production of the
Licensed Products at NutraMax's facility in which the Licensed
Products are manufactured and represents that it shall conduct
periodic and random on-site inspections of the materials and
workmanship relating to the Licensed Products on a regular basis, and
in no event less than twice every year during the license period, to
ensure that such Licensed Products are manufactured, packaged and
distributed in compliance with the quality control procedures of
Licensor and with all applicable laws.
(ii) Licensee shall inspect the Licensed Products prior to distribution by
NutraMax to ensure quality control compliance and proper inventory
accounting.
(iii) Pursuant to Paragraph 13(I) above, Licensee shall not sublicense any
rights granted hereunder or delegate or assign any responsibilities,
duties, obligations, or other undertakings contained in this
Agreement, including, without limitation, obligations contained in
Paragraphs 4, 5, 8, 10, 13, 16, and 17, and Licensee shall be at all
times accountable therefor.
(iv) Licensee acknowledges and agrees that, notwithstanding anything
contained in this Agreement to the contrary, any failure by it or
NutraMax to comply with applicable laws, rules or regulations or the
terms of this Agreement shall result in the immediate termination of
Licensee's right to utilize NutraMax for either of the functions set
forth above.
(v) Licensee shall ensure that Licensor has the continuing right,
exercisable throughout the remainder of the license period and for two
(2) years thereafter, to conduct, upon reasonable notice and during
business hours, an audit and inspection of NutraMax's production
facilities utilized in connection with the Licensed Products and all
books and records relating thereto, and Licensee shall cause NutraMax
to cooperate with Licensor in such investigation.
LICENSEE AFFILIATES
In connection with Paragraph 4(B) above, Licensee acknowledges and agrees
that it shall not distribute the Licensed Product(s) to or through its Licensee
Affiliates unless such distribution is (i) set forth below and pre-approved in
writing by Licensor and (ii) in compliance with the terms of Paragraph 4(B)
above.
Licensee shall list below each Licensee Affiliate (as defined in Paragraph
4(B)) to whom Licensee proposes to distribute the Licensed Product(s). Licensee
agrees that at no time during the license or sell-off periods shall it sell,
directly or indirectly, to any of the Licensee Affiliates listed below, or to
any individual or entity affiliated in any manner with any of such Licensee
Affiliates, any Licensed Product(s) for subsequent sale or distribution, without
prior written approval of Licensor.
1) Licensed Product(s): ______________________________________
Name of Licensee Affiliate: ______________________ ________
Address: ____________________________________________ _____
Telephone: ___________________________________
Principal Contact:________________________________________
Approved by Major League Baseball Properties, Inc.:_________________
Initials/Title
2) Licensed Product(s): ______________________________________
Name of Licensee Affiliate: ______________________ ________
Address: ____________________________________________ _____
Telephone: ___________________________________
Principal Contact:________________________________________
Approved by Major League Baseball Properties, Inc.:_________________
Initials/Title
3) Licensed Product(s): ______________________________________
Name of Licensee Affiliate: ______________________ ________
Address: ____________________________________________ _____
Telephone: ___________________________________
Principal Contact:________________________________________
Approved by Major League Baseball Properties, Inc.:_________________
Initials/Title
DISTRIBUTORS
Licensee shall list below each Distributor (as defined in Paragraph 11)
utilized in connection with the Licensed Product(s). Licensee acknowledges that
it may not allow any Distributor to act as a manufacturer of the Licensed
Product(s).
1) Licensed Product(s): ______________________________________
Name of Distributor: ____________________________________
Address: ________________________________________________
Telephone: ___________________________________
Principal Contact:________________________________________
Approved by Major League Baseball Properties, Inc.:_________________
Initials/Title
2) Licensed Product(s): ______________________________________
Name of Distributor: ____________________________________
Address: ________________________________________________
Telephone: ___________________________________
Principal Contact:________________________________________
Approved by Major League Baseball Properties, Inc.:_________________
Initials/Title
3) Licensed Product(s): ______________________________________
Name of Distributor: ____________________________________
Address: ________________________________________________
Telephone: ___________________________________
Principal Contact:________________________________________
Approved by Major League Baseball Properties, Inc.:_________________
Initials/Title
BRAND NAMES
Concurrently with its execution of this Agreement, Licensee will list
below the brand names that Licensee desires or intends to use on the Licensed
Product(s).
1) Licensed Product(s) Nos.:
Brand Name(s):
2) Licensed Product(s) Nos.:
Brand Name(s):
3) Licensed Product(s) Nos.:
Brand Name(s):
In the event Licensee wishes to substitute a brand name for those listed
above or wishes to add to the number of brand names, Licensee shall first obtain
Licensor's written approval of such brand names.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement:
MAJOR LEAGUE BASEBALL PROPERTIES, INC.,
on its own behalf and as agent for the Major League Baseball Clubs, the Office
of the Commissioner of Baseball and the American and National Leagues of
Professional Baseball Clubs
BY:____________________________
TITLE:_________________________
FAMOUS FIXINS, INC.
BY: /s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
TITLE: President
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