Common use of Exploitation of License Clause in Contracts

Exploitation of License. (a) Licensee agrees to use best efforts and diligence to continuously sell, distribute, advertise and promote the Licensed Products throughout the entire Territory. If at any time during the Term Licensee fails to ship Licensed Products in commercially reasonable amounts for a consecutive period of more than ninety (90) days, the Licensee shall be deemed to be material default under this Agreement. (b) Licensee shall at all times maintain (or contract for) facilities and personnel adequate to fulfill its obligations under this Agreement. (c) During each Year, Licensee shall ship not less than eighty-five percent (85%) of Licensed Products for which Licensee has accepted and confirmed purchased orders. (d) Licensee shall have the exclusive right to establish prices and terms for the sale of Licensed Products. Licensee shall provide Licensor, in advance of each selling season, with line sheets and price lists, and Licensee shall promptly notify Licensor of any change in pricing. (e) Licensee shall provide Licensor, upon request, with the names and addresses of all facilities at which the Licensed Products are manufactured and stored, and Licensee shall make all necessary arrangements to allow Licensor or its representatives to have reasonable access to all such facilities upon reasonable advance notice during regular business hours for the purposes of conducting inspections to insure that Licensee is in compliance with this Agreement. (f) Licensee shall not manufacture, sell or distribute any other products which are competitive with the Licensed Products. Upon receipt of notice from Licensor that Licensor has determined that any products being manufactured, sold or distributed by Licensee are, in Licensor's reasonable opinion, competitive with the Licensed Products, Licensee shall immediately discontinue the manufacture, sale or distribution thereof. Without limiting the generality of the foregoing, Licensee agrees that it will not copy any Licensed Products or offer for sale any products which are similar in design to the Licensed Products. (g) Licensee shall include in all of its written orders for the sale of Licensed Products such language as Licensor may reasonably specify for the purpose of preventing diversion of the Licensed Products from the approved channels of distribution. (h) Licensee shall include in all of its written orders for the purchase of materials and/or finished goods from third parties such language as Licensor may reasonably specify for the purpose of prohibiting the sale or other disposition of any products bearing the Trademarks by such suppliers other than to Licensee. (i) Licensee shall cut all labels and hangtags on defective merchandise (seconds or irregulars) prior to shipment and shall disclose on any invoices with respect thereto that such merchandise consists of seconds or irregulars. (j) Licensee agrees, upon request of Licensor, to sell Licensed Products to Licensor Retail Stores, on standard trade terms, at the lower of (i) Licensee's wholesale line price less thirty-three and one-third percent (33-1/3%), or (ii) the lowest price which Licensee has offered such Licensed Products for sale to independent retailers. In addition, Licensee agrees to manufacture specific Licensed Products which may be requested from time to time by Licensor for sale to Licensor Retail Stores, whether or not Licensee is then manufacturing such specific Licensed Products. Licensor shall be under no obligation to purchase Licensed Products from Licensee for Licensor Retail Stores. (k) Licensee agrees to participate (by among other things, providing an adequate number of samples for display) in all major trade shows, utilizing booths selected by Licensor. Licensee shall reimburse Licensor for a portion of Licensor's costs incurred in connection with such trade shows, in an amount which will be equitably established by Licensor. (l) Licensee shall attend meetings called by Licensor from time to time to discuss any matters relating to this Agreement. All such meetings will be held at Licensor's offices and may be called by Licensor upon not less than thirty (30) days' prior written notice to Licensee, but not more frequently than one (1) time in each calendar quarter. (m) Licensee shall cooperate with Licensor and other Licensees of Licensor (domestic and international in connection with the exchange of ideas, design and other information relative to the manufacture, sale and distribution of Licensed Products (including, but not limited to, furnishing a reasonable quantity of samples to be distributed among such other Licensees), but nothing shall require Licensee to divulge any of its trade secrets or other confidential information. (n) Licensee shall actively advertise and promote the Licensed Products in the Territory during the entire Term. All advertising and promotion is subject to the approval of Licensor as provided herein. (o) Licensee shall submit to Licensor written sales projections. Such sales projections shall be submitted to Licensor within thirty (30) days of the Commencement Date, and quarter-annually thereafter during the Term.

Exploitation of License. (a) Licensee agrees to use best efforts and diligence to continuously sell, distribute, advertise sell and promote distribute the Licensed Products throughout the entire TerritoryTerritory during the Term. If at any time during the Term Licensee fails to ship Licensed Products in commercially reasonable amounts for a consecutive period of more than ninety (90) days, the Licensee shall be deemed to be in material default under this Agreement. (b) Licensee shall at all times maintain (or contract for) facilities and personnel adequate to fulfill its obligations under this Agreement, including, but not limited to, an effective sales force. (c) During each Year"season" (as such term is generally used in the apparel industry), Licensee shall ship not less than eighty-five percent (85%) of Licensed Products for which Licensee has accepted and confirmed purchased orderspurchase orders which require delivery during such season. (d) Licensee shall have the exclusive right to establish prices and terms for the sale of Licensed Products. , Licensee shall provide Licensor, in advance of each selling season, with line sheets and price lists, and Licensee shall promptly notify Licensor of any change in pricing. (e) Licensee shall provide Licensor, upon request, with the names and addresses of all facilities at which the Licensed Products are manufactured and manufactured, stored, and displayed for sale (excluding retailers) and Licensee shall make all necessary arrangements to allow Licensor or its representatives to have reasonable access to all such facilities upon reasonable advance notice during regular business hours for the purposes of conducting inspections to insure that Licensee is in compliance with this Agreement. (f) Licensee shall not manufacture, sell or distribute any other products which are competitive with identical or substantially similar to the Licensed Products. Upon receipt of notice from Licensor that Licensor has determined that any products being manufactured, sold or distributed by Licensee are, in Licensor's reasonable opinion, competitive identical or substantially similar to with the Licensed Products, Licensee shall immediately discontinue the manufacture, sale or distribution thereof. Without limiting the generality of the foregoing, Licensee agrees that it will not copy or "knock off" any Licensed Products or offer for sale any products which are similar in design to the Licensed Products. (g) Licensee shall include in all of its written orders for the sale of Licensed Products such language as Licensor may reasonably specify for the purpose of preventing diversion of the Licensed Products from the approved channels of distribution. (h) Licensee shall include in all of its written orders for the purchase of materials and/or finished goods from third parties such language as Licensor may reasonably specify for the purpose of prohibiting the sale or other disposition of any products bearing the Trademarks by such suppliers other than to Licensee. (i) Licensee shall cut all labels and hangtags on defective merchandise (seconds or irregulars) prior to shipment and shall disclose on any invoices with respect thereto that such merchandise consists of seconds or irregulars. (j) Licensee agrees, upon request of Licensor, to sell Licensed Products to Licensor Retail Stores, on standard trade terms, at the lower of (i) Licensee's wholesale line price less thirty-three and one-third percent (33-1/3%), or (ii) the lowest price which Licensee has offered such Licensed Products for sale to independent retailers. In addition, Licensee agrees to manufacture specific Licensed Products which may be requested from time to time by Licensor for sale to Licensor Retail Stores, whether or not Licensee is then manufacturing such specific Licensed Products. Licensor shall be under no obligation to purchase Licensed Products from Licensee for Licensor Retail Stores. (k) Licensee agrees to participate (by among other things, providing an adequate number of samples for display) in all major trade shows, utilizing booths selected . If Licensee shares space with other licensees in a booth provided by Licensor. , Licensee shall reimburse Licensor for a portion of Licensor's costs incurred in connection with such trade shows, in an amount which will be equitably established by Licensor. (lk) Licensee shall attend meetings called by Licensor from time to time to discuss any matters relating to this Agreement. All such meetings will be held at Licensor's offices and may be called by Licensor upon not less than thirty (30) days' prior written notice to Licensee, but not more frequently than one (1) time in each calendar quarter. (l) Licensee shall attend meetings and presentations with key retailers of the Licensed Products, as requested by Licensor, but not more frequently than twice each Year for each key retailer. Such meetings shall be called upon reasonable advance written notice to Licensee, and shall be held at either the retailer's corporate headquarters or such other place as may be designated by Licensor. (m) Licensee shall cooperate with Licensor and other Licensees licensees of Licensor (domestic and international international) in connection with the exchange of ideas, design and other information relative to the manufacture, sale and distribution of Licensed Products (including, but not limited to, furnishing a reasonable quantity of samples to be distributed among such other Licenseeslicensees), but nothing shall require Licensee to divulge any of its trade secrets or other confidential information. (n) Nothing herein shall require Licensee shall actively to advertise and or promote the Licensed Products. However, any advertising or promotion of the Licensed Products in the Territory during the entire Term. All advertising and promotion which Licensee desires to undertake is subject to the approval of Licensor as provided herein. (o) Licensee shall submit to Licensor written sales projections. Such sales projections shall be submitted to Licensor within thirty (30) days of the Commencement Date, and quarter-annually thereafter during the Term.

Exploitation of License. (ai) During the Term hereof, Licensee agrees to use best its commercially reasonable efforts and diligence to continuously sell, distribute, advertise and promote the Licensed Products throughout the entire Territory. If at any time Licensee agrees that its policy of sale and distribution of the Licensed Products will be of a high standard and to the best advantage of the Licensed Products. (ii) Furthermore, and without limiting the generality of the foregoing, Licensee agrees to sell commercially reasonable quantities of a full, representative line of each category of Licensed Products throughout the Territory during each 12 month period during the Term of this Agreement. In addition to all other rights and remedies available to Licensor under this Agreement and/or applicable law, in the event of a failure by Licensee fails to ship so fully exploit each such category of Licensed Products, any category of Licensed Products in commercially reasonable amounts for a consecutive period of more than ninety (90) dayswhich are not so exploited shall, the at Licensor’s option and upon written notice to Licensee by Licensor, automatically revert back to Licensor, such category shall no longer be deemed Licensed Products, and Licensor shall be deemed free to, on its own or through third parties, manufacture sell and distribute such categories of Licensed Products without any obligation to be material default under this AgreementLicensee. (b) Licensee shall at all times maintain (maintain, or contract for) , facilities and personnel adequate to fulfill its obligations under this Agreement. (c) During each YearAnnual Period, Licensee shall ship not less than eighty-five percent (85%) percent of Licensed Products for which Licensee has accepted and confirmed purchased purchase orders. (d) Licensee shall have the exclusive right to establish prices and terms for the sale of Licensed Products. Licensee shall provide Licensor, in advance of each selling season, with line sheets and price lists, and Licensee shall promptly notify Licensor of any change in pricing. Licensee agrees to sell to Licensor such quantities of Licensed Products, from time to time, as requested by Licensor for promotional purposes and for sale in stores and websites operated by Licensor or its Affiliates, licensees and/or subcontractors for prices equal to the lesser of thirty percent (30%) percent below Licensee’s normal wholesale selling prices at the time of any such sale, or the lowest price charged by Licensee to any of its customers. Such sales shall constitute Net Sales for purposes of computing Minimum Net Sales, shall not be considered Close-Out Sales for purposes of Section 6(i) below and shall not be subject to any Royalty and no Earned Advertising Payment shall be due thereon. (e) Licensee shall provide Licensor, upon request, with the names and addresses of all facilities at which the Licensed Products are manufactured and stored, and Licensee shall use its commercially reasonable efforts to make all necessary arrangements to allow Licensor or its representatives to have reasonable access to all such facilities upon reasonable advance notice during regular business hours for the purposes of conducting inspections to insure that Licensee is in compliance with this Agreement. (f) Except for Licensee’s existing licenses on or prior to the date of this Agreement (and any renewals or extensions thereof), Licensee shall may not manufactureenter into or obtain any license for any designer, sell product or distribute any other products which are brand that is directly competitive with the Licensed Products. Upon receipt Products in terms of notice from Licensor target consumer, channel of distribution, territory and pricing, without the prior written consent of Licensor, which consent shall not be unreasonably withheld, provided that Licensor has determined that for purposes of any products such competitive designer, product or brand, Licensee does not duplicate designs or marketing strategy being manufactured, sold or distributed used by Licensee are, in Licensor's reasonable opinion, competitive with it for the Licensed Products, Licensee . A list of all of Licensee’s existing licenses shall immediately discontinue be provided to Licensor prior to the manufacture, sale or distribution thereof. Without limiting the generality execution of the foregoing, Licensee agrees that it will not copy any Licensed Products or offer for sale any products Agreement and incorporated therein as Schedule F which are similar in design to approved as of the Licensed Productsexecution date of this Agreement. (g) Licensee shall include in all of its written orders to manufacturers, distributors and retailers for the sale of Licensed Products such language as Licensor may is reasonably specify for the purpose of preventing necessary to seek to prevent diversion of the Licensed Products from the approved channels Licensed Channels of distributionDistribution. (h) Licensee shall include in all of its written orders for the purchase of materials and/or finished goods from third parties such language as Licensor may reasonably specify is necessary for the purpose of prohibiting the sale or other disposition of any products bearing the Trademarks by such suppliers other than to Licensee. (i) All sales by Licensee shall cut all labels and hangtags on defective merchandise (seconds or irregulars) prior to shipment and shall disclose on of any invoices Licensed Products sold for a price with respect thereto to any style of Licensed Product, that such merchandise consists is less than eighty percent (80%) of seconds or irregulars. the established wholesale price (j) “Close-Out Price”), sales by Licensee agrees, upon request of to the Licensor, to sell cancellations and sales of physically defective Licensed Products shall be deemed a “Close-Out Sale”. Sales by Licensee to Licensor Retail Storesthe Licensor, on standard trade terms, cancellations and sales of physically defective Licensed Products shall not count as Close-Out Sales hereunder even if sold at the lower of (i) Licensee's wholesale line price less thirty-three and one-third than eighty percent (3380%) of the established price. Close-1/3%Out Sales may only be distributed or sold to the Off Price Channels of Distribution. Licensee may sell special make up orders (“SMUs”), or (ii) provided that Licensee provides Licensor with the lowest price names of customers for which Licensee has offered it will be manufacturing SMUs and that all such Licensed Products intended to be sold as SMU’s shall go through all approval processes as provided for sale in this Agreement. Licensor is hereby notified that SMUs will be sold to independent retailersBurlington, Marmaxx and Xxxx/DD’s. SMUs shall not be considered Close-Out Sales and shall not be sold at Close-Out Price and are subject to the Royalty Rate. In addition, Licensee agrees to manufacture specific shall not sell any Licensed Products without the prior written consent of Licensor, which consent may be requested from time to time by Licensor withheld in Licensor’s sole discretion.for a price less than fifty percent (50%) of the established price, unless market conditions dictate a larger discount,. Without limiting the foregoing, in recognition of Licensor’s interest in maintaining a stable and viable market for sale to Licensor Retail Storesproducts utilizing the Property or Trademarks, whether or not Licensee is then manufacturing such specific Licensed Products. Licensor shall be under no obligation to purchase Licensed Products from Licensee for Licensor Retail Stores. (k) Licensee agrees to participate (by among other things, providing an adequate number refrain from ‘dumping’ any articles of samples for display) in all major trade shows, utilizing booths selected by Licensor. Licensee shall reimburse Licensor for a portion of Licensor's costs incurred in connection with such trade shows, in an amount which will be equitably established by Licensor. (l) Licensee shall attend meetings called by Licensor from time to time to discuss any matters relating to this Agreement. All such meetings will be held at Licensor's offices and may be called by Licensor upon not less than thirty (30) days' prior written notice to Licensee, but not more frequently than one (1) time in each calendar quarter. (m) Licensee shall cooperate with Licensor and other Licensees of Licensor (domestic and international in connection with the exchange of ideas, design and other information relative to the manufacture, sale and distribution of Licensed Products (including, but not limited to, furnishing a reasonable quantity of samples to be distributed among such other Licensees), but nothing shall require Licensee to divulge any of its trade secrets or other confidential information. (n) Licensee shall actively advertise and promote the Licensed Products in the Territory market during the entire TermTerm and any sell-off period. All advertising “Dumping” shall mean the distribution of the Licensed Products at volume levels significantly above Licensee’s prior sales practices with respect the Licensed Products, and promotion is subject at price levels so far below prior sales practices with respect to the approval of Licensor Licensed Products as provided hereinto disparage the Licensed Products. (o) Licensee shall submit to Licensor written sales projections. Such sales projections shall be submitted to Licensor within thirty (30) days of the Commencement Date, and quarter-annually thereafter during the Term.

Exploitation of License. (ai) During the Term hereof, Licensee agrees to use its best efforts and diligence to continuously sell, distribute, advertise and promote the Licensed Products throughout the entire Territory. If at Licensee agrees that its policy of sale and distribution of the Licensed Products will be of a high standard and to the best advantage of the Licensed Products. (ii) Should Licensee fail to launch and/or to sell commercially reasonable quantities of any time category of Licensed Products throughout the Territory during the Term first twenty four (24) months following execution hereof, all rights granted to Licensee fails hereunder with respect to ship such category of Licensed Products Product shall revert back to Licensor in commercially reasonable amounts for a consecutive period of more than ninety (90) days, the Licensee shall be deemed to be material default under this Agreementall respects. (b) Licensee shall at all times maintain (maintain, or contract for) , facilities and personnel adequate to fulfill its obligations under this Agreement. (c) During each YearAnnual Period, Licensee shall timely fill all orders and ship not less than eighty-five percent (85%) of all Licensed Products for which Licensee has accepted and confirmed purchased purchase orders, other than canceled orders or orders from those customers that do not receive appropriate credit approval. (d) Licensee shall have the exclusive right to establish prices and terms for the sale of Licensed Products. Licensee shall provide Licensor, in advance of each selling season, with line sheets and price lists, and Licensee shall promptly notify Licensor of any change in pricing. (e) Licensee shall provide Licensor, upon request, with the names and addresses of all facilities at which the Licensed Products are manufactured and stored, and Licensee shall use its best efforts to make all necessary arrangements to allow Licensor or its representatives to have reasonable access to all such facilities upon reasonable advance notice during regular business hours for the purposes of conducting inspections to insure that Licensee is in compliance with this Agreement. (f) Licensee shall not manufacture, sell or distribute any other products which are competitive with the Licensed Products. Upon receipt of notice from Licensor that Licensor has determined that any products being manufactured, sold or distributed by Licensee are, in Licensor's reasonable opinion, competitive with the Licensed Products, Licensee shall immediately discontinue the manufacture, sale or distribution thereof. Without limiting the generality of the foregoing, Licensee agrees that it will not copy any Licensed Products or offer for sale any products which are similar in design to the Licensed Productsintentionally deleted. (g) Licensee shall include in all of its written orders to manufacturers, distributors and retailers for the sale of Licensed Products such language as Licensor may reasonably specify for the purpose of preventing is necessary to seek to prevent diversion of the Licensed Products from the approved channels Licensed Channels of distributionDistribution. Licensor acknowledges that the following language is reasonable: "Manufacturers and Distributors authorized to manufacture, distribute or otherwise act pursuant to the License Agreement with Licensor: 1. Shall not manufacture or distribute the authorized Licensed Products to the order of anyone but the Licensee, will invoice only the Licensee, will not ship to anyone other than the Licensee and will not ship after the expiration date of the License Agreement. 2. Shall not distribute or sell the authorized Licensed Products to anyone other than authorized distributors or retailers as designated by Licensee from time to time. 3. Shall not subcontract production or distribution of the authorized Licensed Products or components which contain any of the specified marks and property without Licensee's written consent. 4. Shall not (without Licensee's written consent) manufacture merchandise utilizing any of the specified marks and property and/or tradenames owned or otherwise authorized for use by Licensee other than the authorized Licensed Products." (h) Licensee shall include in all of its written orders for the purchase of materials and/or finished goods from third parties such language as Licensor may reasonably specify is necessary for the purpose of prohibiting the sale or other disposition of any products bearing the Trademarks by such suppliers other than to Licensee. (i) Licensee must obtain Licensor's prior written consent to sell any Licensed Products for a price ("close-out price") less than seventy-five percent (75%) of the established sales price (but excluding make-up orders, sales by Licensee to the Licensor and cancellations); provided, however, that in the event Licensee obtains Licensor's prior written consent to sell Licensed Products at a close out price, such sales in any event shall cut not in the aggregate during any Annual Period hereunder comprise more than twenty percent (20%) of all labels Net Sales during any such Annual Period, and hangtags my only be sold to those retailers listed on defective merchandise (seconds or irregulars) prior Schedule B-2 annexed hereto. For the purpose of this provision, make-up orders means special direct shipments to shipment national retailers and shall disclose on any invoices with respect thereto that such merchandise consists of seconds or irregularscancellations means specially produced goods for which orders were canceled. (j) Licensee agrees, upon request of Licensor, to sell Licensed Products to Licensor Retail Stores, on standard trade terms, at the lower of (i) Licensee's wholesale line price less thirty-three and one-third percent (33-1/3%), or (ii) the lowest price which Licensee has offered such Licensed Products for sale to independent retailers. In addition, Licensee agrees to manufacture specific Licensed Products which may be requested from time to time by Licensor for sale to Licensor Retail Stores, whether or not Licensee is then manufacturing such specific Licensed Products. Licensor shall be under no obligation to purchase Licensed Products from Licensee for Licensor Retail Stores. (k) Licensee agrees to participate (by by, among other things, providing an adequate number of samples for display) in all display for the MAGIC Show at least once per year, and at least one other major trade show and other reasonably appropriate trade shows, to be mutually agreed upon by the parties hereto, utilizing booths selected approved by Licensor. Licensee shall reimburse Licensor be responsible for a portion of Licensorall costs associated with such trade shows. Licensee's costs incurred payment and expenses in connection with such trade shows, in an amount which will shows may not be equitably established by Licensorapplied to reduce any other payment due to Licensor hereunder. (lk) Licensee shall attend meetings called by Licensor from time to time to discuss any matters relating to this Agreement. All such meetings will be held at Licensor's offices and may be called by Licensor upon not less than at least thirty (30) days' days prior written notice to Licensee, but not more frequently than one (1) time in each calendar quarter. (ml) Licensee shall cooperate with Licensor and other Licensees licensees of Licensor (domestic and international international) in connection with the exchange of ideas, design and other information relative to the manufacture, sale and distribution of Licensed Products (including, but not limited to, furnishing a reasonable quantity of samples items in current production and related incidental materials to be distributed among such other Licenseeslicensees), but nothing shall require Licensee to divulge any of its trade secrets or other confidential information. (nm) Licensee shall actively advertise and promote the Licensed Products in the Territory during the entire Term. All advertising and promotion is subject to the prior approval of Licensor as provided hereinin Section 7(a). (oi) Licensee shall submit at all times employ at least one full-time employee who shall devote his or her full business time to the sale and marketing of the Licensed Products. Such employee shall be reasonably qualified and experienced to carry out his or her duties. (ii) Licensee shall at all times maintain adequate space at its showroom for the attractive display of the Licensed Products, which shall be separate and distinct from the space allocated to any other products marketed by Licensee. On or before December 31, 2004, Licensor may secure a showroom ("Licensor Showroom") for the advertising, promotion, display and sale of the Licensed Products as well as other products and merchandise to be sold by other licensees of Licensor. At such time, Licensee agrees to occupy, during the remainder of the Term of this Agreement, at least six thousand (6,000) square feet of such showroom, designated by Licensor in Licensor's sole discretion, for the advertising, promotion, display and sale of the Licensed Products and shall remit to the Licensor payments, based on its pro rata usage of the Licensor Showroom of the rent, which shall include, without limitation, any and all charges that Licensor is required to pay in connection with such showroom (the "Rent"). By way of example only, if the Licensor Showroom is 20,000 square feet, and the Rent is $20,000 per month, then Licensee shall remit to Licensor written sales projections$6,000 per month. Such sales projections payments to Licensor shall be submitted due at least five (5) business days prior to the date that Licensor within thirty (30) days is required to pay the Rent for the Licensor Showroom. In the event of a breach of this Subsection or in the Commencement Dateevent of expiration or termination of this Agreement for any reason, and quarter-annually thereafter during Licensee shall no longer have the Termright to occupy the Licensor Showroom.