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EXHIBIT 10.25
The Xxxx Disney Company
000 Xxxxx Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
July 14, 1995
Sun Sportswear, Inc.
0000 Xxxxx 000xx Xxxxxx
Xxxx, XX 00000
Re: THE HUNCHBACK OF NOTRE DAME
Dear Sirs/Mesdames:
We hereby agree with you as follows:
1. MEANING OF TERMS As used in this Agreement:
A. "LICENSED MATERIAL" means the graphic representations of the
following:
THE HUNCHBACK OF NOTRE DAME characters,
but only such characters and depictions of such
characters as may be designated by us;
and designated still scenes from the motion picture identified
in Subparagraph 1.B. hereafter.
B. "TRADEMARKS" means "XXXX DISNEY" and "DISNEY", the
representations of Licensed Material included in Subparagraph
1.A. above, and the logo of the following motion picture in
which Licensed Material included in Subparagraph 1.A above
appears:
THE HUNCHBACK OF NOTRE DAME
C. "ARTICLES" means the following items on or in connections with
which the Licensed Material and/or the Trademarks are
reproduced or used:
(1) Short sleeve t-shirts
(2) Long sleeve t-shirts
(3) Fleece sweatshirts
(4) Novelty knit tops
(5) Turtlenecks
(6) Knit shorts
(7) Knit bottoms
The Articles identified above as Articles Numbers 1 -
5 are to be manufactured in Girls' sizes 4 - 6 X and
7 - 16, Junior Girls' sizes 3 - 13 and Women's/Plus
sizes S, M, L, XL, XXL and XXXL. Articles Numbers 6
- 7 are to be manufactured in Junior Girls' sizes 3 -
13 and Women's/Plus sizes S, M, L, XL, XXL and XXXL.
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Articles Numbers 1 - 7 above may include spot
screens, four color process prints, allover prints,
garment dyes, rotary prints, and oversize graphics
but may not include embellishments or embroideries.
D. "MINIMUM PER ARTICLE ROYALTY" means for each Article identified
herein which is sold the sum indicated herein:
None.
E. PRINCIPAL TERM" means the period commencing July 3, 1995, and
ending December 31, 1997.
F. "TERRITORY" means the United States, United States PX's
wherever located, and United States territories and
possessions, excluding Puerto Rico, Guam, Commonwealth of
Northern Mariana Islands and Palau. However, if sales are
made to chain stores in the United States which have stores in
Puerto Rico, such chain stores may supply Articles to such
stores in Puerto Rico.
G. "ROYALTIES" means a royalty in the amounts set forth below in
Subparagraphs 1.G.(1)(a), (b), and (c) and Royalties shall be
further governed by the provisions contained in Subparagraphs
1.G.(2)-(5):
(1)(a) twelve percent (12%) of your Net Invoiced Xxxxxxxx to
authorized retailers for Articles shipped by you from
a location in the Territory for delivery to a
customer located in the Territory ("F.O.B. In
Sales"); or
(b) sixteen percent (16%) of your Net Invoiced Xxxxxxxx
to authorized retailers when your customer located in
the Territory bears the costs (e.g., shipping,
duties, and the like) of obtaining delivery in the
Territory of Articles manufactured outside the
Territory ("F.O.B. Out Sales"); or
(c) if a Minimum Per Article Royalty has been specified
in Subparagraph 1.D. above, and it would result in a
higher royalty to be paid for the Articles, you agree
to pay the higher royalty amount.
(2) The sums which we are paid as Royalties on any sales
to your Affiliates shall be no less than the sums
paid on sales to customers not affiliated with you,
and if such Affiliate is a reseller of the Articles,
the sale to such Affiliate shall not be counted as a
sale for Royalty calculation purposes; in such case,
the relevant sale for Royalty calculation purposes
shall be that of such Affiliate.
(3) All sales of Articles shipped to a customer outside
the Territory pursuant to a distribution permission
shall bear a
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Royalty at the rate for F.O.B. Out Sales. However,
sales of Articles to our Affiliates outside the
Territory shall bear a Royalty at the rate for F.O.B.
In Sales.
(4) Royalties payable shall be not less for each Article
sold than the Minimum Per Article Royalty, if such a
Royalty has been specified in Subparagraph 1.D. No
Royalties are payable on the mere manufacture of
Articles.
(5) The full Royalty percentage shall be payable on
close-out or other deep discount sales of Articles,
including sales to employees.
H. "NET INVOICED XXXXXXXX" means the following:
(1) actual invoiced xxxxxxxx (i.e., sales quantity
multiplied by your selling price) for Articles sold,
and all other receivable of any kind whatsoever,
received in payment for the Articles, whether
received by you or any Affiliate of yours, except as
provided in Subparagraphs 1.G.(2), and 1.H.(2), less
"Allowable Deductions" as hereinafter defined.
(2) The following are not part of Net Invoiced Xxxxxxxx:
invoiced charges for transportation of Articles
within the Territory which are separately identified
on the sales invoice, and taxes on the sale.
I. "ALLOWABLE DEDUCTIONS" means the following:
(1) volume discounts and other discounts separately
identified on your sales invoices as being applicable
to sales of Articles licensed hereunder or to
combined sales of such Articles and other products
not licensed by us, and post-invoice credits granted
and properly documented as applicable to sales of
Articles licensed hereunder or to combined sales of
such Articles and other products not licensed by us;
in the event that a post-invoice credit is issued
for combined sales of Articles and other products not
licensed by us, and you cannot document the portion
of the credit applicable to the Articles, you may
apply only a pro rata portion of the credit to the
Articles.
(2) The following are not Allowable Deductions, whether
granted on sales invoices or as post-invoice credits:
cash discounts granted as terms of payment; early
payment discounts; allowances or discounts relating
to advertising; xxxx down allowances; costs incurred
in manufacturing, importing, selling or advertising
Articles; freight costs incorporated in the selling
price; and uncollectible accounts.
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J. "ROYALTY PAYMENT PERIOD" means each calendar quarterly period
during the Principal Term and during any other term.
K. "ADVANCE" means the following sum(s) payable by the following
date(s) as an advance on Royalties to accrue in the following
period(s):
$87,500.00 payable upon your signing of this
Agreement for the period commencing July 3, 1995,
and ending December 31, 1997.
L. "GUARANTEE" means the following sum(s) which you guarantee to
pay as minimum Royalties on your cumulative sales in the
following period(s):
$350,000.00 for the period commencing July 3, 1995,
and ending December 31, 1997.
M. "SAMPLES" means six (6) samples of each stock keeping unit
("SKU") of each Article, from the first production run of each
supplier of each SKU of each Article.
N. "PROMOTION COMMITMENT" means the following sum(s) which you
agree to spend in the following way(s):
You agree to promote the Articles with in-store
signage, promotional programs, and trade and consumer
advertising during the Principal Term of this
Agreement. You further agree to spend an amount
equal to no less that $20,000.00 on the in-store
signage and promotional programs and an amount equal
to no less than $25,000.00 on the trade and consumer
advertising. The in-store signage, promotional
programs, trade and consumer advertising shall be
devoted exclusively to the Articles.
O. "MARKETING DATE" means the following date(s) by which the
following Article(s) shall be available for purchase by the
public at retail outlets authorized pursuant to Subparagraph
2.A.:
(1) By release date of the film, currently estimated to
be June 1996, for all Articles; provided, however,
that you are responsible for assuring that no
Articles shall be displayed to the general public,
either by you or by anyone else, or available for
consumer purchase prior to two (2) weeks before the
release date, and you agree that you shall be liable
to us for any damages which occur due to earlier
display or availability of Articles. In the event
that any of the Articles are displayed or available
prior to two (2) weeks before the release date of the
film, we may, in our absolute discretion, require
that you recall such Articles, and you shall be
responsible for
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accomplishing such recall and shall bear all costs
and expenses relating thereto.
(2) When the actual release date of the film is
determined, you shall be advised in writing of the
shipping date for Articles, and you may not ship any
Articles to any customer before the shipping date.
In the event you ship any Articles before the
shipping date, and any retailers display or make the
Articles available for consumer purchase prior to two
(2) weeks before the film release date, you shall
immediately pay us liquidated damages in the amount
of $50,000.00 for each such retailer.
(3) The remedies set forth in this Paragraph 1.0 are in
addition to any other remedies available to us.
P. "AFFILIATE" means, with regard to you, any corporation or
other entity which directly or indirectly controls, is
controlled by, or is under common control with you; with
regard to us, "Affiliate: means any corporation or other
entity which directly or indirectly controls, is controlled
by, or is under common control with us. "Control" of an
entity shall mean possession, directly or indirectly, of power
to direct or cause the direction of management or policies of
such entity, whether through ownership of voting securities,
by contract or otherwise.
2. RIGHTS GRANTED
A. In consideration for your promise to pay and your payment of
all Royalties, Advances and Guarantees required hereunder, we
grant you the non-exclusive right, during the Principal Term
and any extension thereof, and only within the Territory, to
reproduce the Licensed Material only on or in connection with
the Articles, to use the Trademarks, but only such Trademarks
and uses thereof as may be approved when the Articles are
approved and only on or in connection with the Articles, and
to manufacture, distribute for sale and sell the Articles
(other than by direct marketing methods, including but not
limited to direct mail and door-to-door solicitation). You
will sell the Articles only to mass market retailers
(including such retailers as Target, Toys R Us, WalMart and
Kmart), value-oriented department stores (including such
retailers as X.X. Xxxxxx Co., Inc., Sears, Xxxxxxxxxx Xxxx and
Mervyn's) and value-oriented specialty stores (including such
retailers as Kids R Us and Baby Superstores) in the Territory
for resale to the public in the Territory. You will not sell
the Articles to supermarkets, drug chains, food chains, other
retailers or to wholesalers. If there is a question as to
whether a particular customer falls within any of the
categories specified above, our determination shall be
binding. If you wish to sell the Articles to wholesalers for
resale to authorized retailers, you must notify us and
negotiate the applicable royalty rate for such sales, which
you acknowledge shall be higher royalty rate than
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the rate set forth in Subparagraphs 1.G.(1)(a) and (b) for
sales to retailers.
B. Unless we consent in writing, you shall not sell or otherwise
provide Articles for use as premiums (including those in
purchase-with-purchase promotions), promotions, give-aways,
fund-raisers, or entries in sweepstakes, or to customers for
resale by direct mail or other direct marketing methods,
including, without limitation, home shopping television
programs, or to customers for inclusion in another product,
unless such product has been licensed by us. However, nothing
contained herein shall preclude you from soliciting orders by
mail from those retailers authorized pursuant to Subparagraph
2.A. above, nor from selling to such authorized retailers
which sell predominantly at retail, but which include the
Articles in their mail order catalogs or otherwise sell
Articles by direct marketing methods as well as at retail. If
you wish to sell the Articles to other customers for resale
through mail order catalogs, you must obtain our prior written
consent in each instance.
C. Unless we consent in writing, you shall not give away or
donate Articles, except minor quantities of samples, not for
onward distribution, to your accounts or other persons for the
purpose of promoting Article sales.
D. Nothing contained herein shall preclude you from selling
Articles to us or to any Affiliate of ours, or to your or our
employees, subject to the payment to us of Royalties on such
sales.
E. We further grant you the right to reproduce the Licensed
Material and to use the Trademarks, only within the Territory,
on containers, packaging and display material for the
Articles, and in advertising for the Articles.
F. Nothing contained in this Agreement shall be deemed to imply
any restriction on your freedom and that of your customers to
sell the Articles at such prices as you or they shall
determine.
G. You recognize and acknowledge the vital importance to us of
the characters and other proprietary material we own and
create, and the association of the Disney name with them. In
order to prevent the denigration of our products and the value
of their association with the Disney name, and in order to
ensure the dedication of your best efforts to preserve and
maintain that value, you agree that, during the Principal Term
and any extension hereof, you will not manufacture or
distribute any merchandise embodying or bearing any artwork or
other representation which we determine, in our reasonable
discretion, is confusingly similar to our Disney characters or
other proprietary material.
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3. ADVANCE
A. You agree to pay the Advance, which shall be on account of
Royalties to accrue during the Principal Term only, and only
with respect to sales in the Territory; provided, however,
that if any part of the Advance is specified hereinabove as
applying to any period less than the Principal Term, such part
shall be on account of Royalties to accrue during such lesser
period only. If said Royalties should be less than the
Advance, no part of the Advance shall be repayable.
B. Royalties accruing during any sell-off period or extension of
the Principal Term shall not be offset against the Advance
unless otherwise agreed in writing. Royalties accruing during
any extension of the Principal Term or any other term shall be
offset only against an advance paid with respect to such
extended term.
C. In no event shall Royalties accruing by reason of any sales to
us or an Affiliate of ours or by reason of sales outside the
Territory pursuant to a distribution permission be offset
against the Advance or any subsequent advance.
4. GUARANTEE
A. You shall, with your statement for each Royalty Payment Period
ending on a date indicated in Subparagraph 1.L. hereof
defining "Guarantee," or upon termination if the Agreement is
terminated prior to the end of the Principal Term, pay us the
amount, if any, by which cumulative Royalties paid with
respect to sales in the Territory during any period or periods
covered by the Guarantee provision, or any Guarantee provision
contained in any agreement extending the term hereof, fall
short of the amount of the Guarantee for such period.
B. Advances applicable to Royalties due on sales in the period to
which the Guarantee relates apply towards meeting the
Guarantee.
C. In no event shall Royalties paid with respect of sales to us
or to any Affiliate of ours, or with respect to sales outside
the Territory pursuant to a distribution permission, apply
towards the meeting of the Guarantee of any subsequent
guarantee.
5. PRE-PRODUCTION APPROVALS
A. As early as possible, and in any case before commercial
production of any Article, you shall submit to us for our
review and written approval (to utilize such materials in
preparing a pre-production sample) all concepts, all
preliminary and proposed final artwork, and all three-
dimensional models which are to appear on or in the Article.
Thereafter, you shall submit to us for our written approval a
pre-production sample of each Article. We shall endeavor to
respond to such requests within a reasonable time, but such
approvals should be
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sought as early as possible in case of delays. In addition to
the foregoing, as early as possible, and in any case no later
than sixty (60) days following written conceptual approval,
you shall supply to us for our use for internal purposes, a
mock-up, prototype or pre-production sample of each style of
each Article on or in connection with which the Licensed
Material is used. You acknowledge that we may not approve
concepts or artwork submitted near the end of the Principal
Term.
B. Approval or disapproval shall lie solely in our discretion,
and any Article not so approved in writing shall be deemed
unlicensed and shall not be manufactured or sold. If any
unapproved Article is being sold, we may, together with other
remedies available to us, including but not limited to,
immediate termination of this Agreement, by written notice
require such Article to be immediately withdrawn from the
market. Any modification of an Article, including, but not
limited to, change of materials, color, design or size of the
representation of Licensed Material must be submitted in
advance for our written approval as if it were a new Article.
Approval of an Article which uses particular artwork does not
imply approval of such artwork for use with a different
Article. The fact that artwork has been taken from a Disney
publication or a previously approved Article does not mean
that its use will necessarily be approved in connection with
an Article licensed hereunder.
C. If you submit for approval artwork from an article or book
manufactured or published by another licensee of ours or of
any subsidiary of ours, you must advise us in writing of the
source of such artwork. If you fail to do so, any approval
which we may give for use by you of such artwork may be
withdrawn by giving you written notice thereof, and you may be
required by us not to sell Articles using such artwork.
D. Notwithstanding the above, as we rely primarily on you for the
consistent quality and safety of the Articles and their
compliance with applicable laws and standards, we will not
unreasonably object to any change in the design of an Article
or in the materials used in the manufacture of the Article or
in the process of manufacturing the Articles which you advise
us in writing is intended to make the Article safer or more
durable.
E. If we have supplied you with forms for use in applying for
approval of artwork, models, pre-production and production
samples of Articles, you shall use such forms when submitting
anything for our approval.
6. APPROVAL OF PRODUCTION SAMPLES
A. Before shipping an Article to any customer, you agree to
furnish to us, from the first production run of each supplier
of each of the Articles, for our approval of all aspects of
the Article in question, the number of Samples with packaging
which is hereinabove set forth, which shall conform to the
approved artwork, three-dimensional models and
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pre-production sample. Approval or disapproval of the artwork
as it appears on the Article, as well as of the quality of the
Article, shall lie in our sole discretion and may, among other
things, be based on unacceptable quality of the artwork or of
the Article as manufactured. Any Article not so approved
shall be deemed unlicensed, shall not be sold and, unless
otherwise agreed by us in writing, shall be destroyed. Such
destruction shall be attested to in a certificate signed by
one of your officers. Production samples of Articles for
which we have approved a pre-production sample shall be deemed
approved, unless within twenty (20) days of our receipt of
such production sample we notify you to the contrary.
B. You agree to make available at no charge a reasonable number
of additional samples of each Article as we may from time to
time reasonably request for the purpose of comparison with
earlier samples, or to test for compliance with applicable
laws, regulations and standards, and to permit us upon
reasonable request to inspect your manufacturing operations
and testing records (and those of your suppliers) for the
Articles.
C. It is specifically understood that we may disapprove an
Article or a production run of an Article because the quality
is unacceptable to us, and accordingly, we recommend that you
submit production samples to us for approval before committing
to a large original production run or to purchase a large
shipment from a new supplier.
D. No modification of an approved production sample shall be made
without our further prior written approval. Articles being
sold must conform in all respects to the approved production
sample. It is understood that if in our reasonable judgment
the quality of an Article originally approved has deteriorated
in later production runs, or if the Article has otherwise been
altered, we may, in addition to other remedies available to
us, by written notice require such Article to be immediately
withdrawn from the market.
E. The rights granted hereunder do not permit the sale of
"seconds" or "irregulars". All Articles not meeting the
standard of approved samples shall be destroyed or all
Licensed Material and Trademarks shall be removed or
obliterated therefrom.
F. Notwithstanding the above, as we rely primarily on you for the
consistent quality and safety of the Articles and their
compliance with applicable laws and standards, we will not
unreasonably object to any change in the design of an Article
or in the materials used in the manufacture of the Article or
in the process of manufacturing the Articles which you advise
us in writing is intended to make the Article safer or more
durable.
G. We shall have the right, by written notice to you, to require
modification of any Article approved by us under any previous
agreement between us
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pertaining to Licensed Material. Likewise, if the Principal
Term of this Agreement is extended by mutual agreement, we
shall have the right, by written notice to you, to require
modification of any Article approved by us under this
Agreement. It is understood that there is no obligation upon
either party to extend the Agreement.
H. If we notify you of a required modification under Subparagraph
6.G. with respect to a particular Article, such notification
shall advise you of the nature of the changes required, and
you shall not accept any order for any such Article until the
Article has been resubmitted to us with such changes and you
have received our written approval of the Article as modified.
However, you may continue to distribute your inventory of the
previously approved Articles until such inventory is exhausted
(unless such Articles are dangerously defective, as determined
by us).
I. Upon our request, you agree to give us written notice of the
first ship date for each Article.
7. APPROVAL OF PACKAGING, PROMOTIONAL MATERIAL AND
ADVERTISING
A. All containers, packaging, display material, promotional
material, catalogs, and all advertising, including, but not
limited to, television advertising and press releases, for
Articles must be submitted to us and receive our written
approval before use. To avoid unnecessary expense if changes
are required, our approval thereof should be procured when
such is still in rough or storyboard format. We shall
endeavor to respond to requests for approval within a
reasonable time. Approval or disapproval shall lie in our
sole discretion, and the use of unapproved containers,
packaging, display material, promotional material, catalogs or
advertising is prohibited. Whenever you shall prepare catalog
sheets or other printed matter containing illustrations of
Articles, you will furnish to us five (5) copies thereof when
they are published.
B. If we have supplied you with forms for use in applying for
approval of artwork, models, pre-production and production
samples of Articles, you shall use such forms when submitting
anything for our approval.
C. We have designed character artwork to be used by all licensees
in connection with the packaging of all merchandise using the
Licensed Material, and on hang tags and garment labels or such
merchandise. We will supply you with reproduction artwork
thereof, and you agree to use such artwork on the packaging of
the Articles, and on hang tags and garment labels which you
will have printed and attached to each Article at your cost.
We recommend that you source the hang tags and garment labels
from our authorized manufacturer of pre-approved hang tags and
garment labels, the name of which will be provided to you upon
request However, you may use another manufacturer for the
required hang tags and garment labels if the hang tags and
garment labels manufactured are
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of equivalent quality and are approved by us in accordance
with our usual approval process.
8. ARTWORK
You shall pay us, within thirty (30) days of receiving an invoice
therefor, for artwork done at your request by us or third parties
under contract to us in the development and creation of Articles,
display, packaging or promotional material (including any artwork
which in our opinion is necessary to modify artwork initially prepared
by you and submitted to us for approval, subject to your prior written
approval) at our then prevailing commercial art rates. Estimates of
artwork charges are available upon request. While you are not
obligated to utilize the services of our Art Department, you are
encouraged to do so in order to minimize delays which may occur if
outside artists do renditions of Licensed Material which we cannot
approve and to maximize the attractiveness of the Articles.
9. PRINT, RADIO OR TV ADVERTISING
You will obtain all approvals necessary in connection with print,
radio or television advertising, if any, which we may authorize. You
represent and warrant that all advertising and promotional materials
shall comply with all applicable laws and regulations. Our approval
of copy or storyboards for such advertising will not imply a
representation or belief by us that such copy or storyboards are
sufficient to meet any applicable code, standard, or other obligation.
This Agreement does not grant you any rights to use the Licensed
Material in animation. You may not use any animation or live action
footage from the motion picture from which the Licensed Material comes
without our prior written approval in each instance. In the event we
approve the use of film clips of the motion picture from which the
Licensed Material comes, for use in a television commercial, you shall
be responsible for any re-use fees which may be applicable, including
SAG payments for talent. No reproduction of the film clip footage
shall be made except for inclusion, as approved by us, in such
commercial and there shall be no modifications of the film clip
footage. All film clip footage shall be returned to us immediately
after its inclusion in such commercial. We shall have the right to
prohibit you from advertising the Articles by means of television
and/or billboards. Such right shall be exercised within our absolute
discretion, including without limitation for reasons of overexposure
of the Licensed Material.
10. LICENSEE NAME AND ADDRESS ON ARTICLES
A. Your name, trade name (or a trademark of yours which you have
advised us in writing that you are using) and your address (at
least city and state) will appear on permanently affixed
labeling on each Article or, if the Article is sold to the
public in packaging or a container, printed on such packaging
or a container so that the public can identify the supplier of
the Article. On soft goods "permanently affixed" shall mean
sewn on. RN numbers do not constitute a sufficient label
under this paragraph.
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B. You shall advise us in writing of all trade names or
trademarks you wish to use on Articles being sold under this
license. You may sell the Articles only under mutually agreed
upon trade names or trademarks.
11. COMPLIANCE WITH APPROVED SAMPLES AND APPLICABLE
LAWS AND STANDARDS
Each Article and component thereof distributed hereunder shall be of
good quality and free of defects in design, materials and workmanship,
and shall comply with all applicable laws, regulations and voluntary
industry standards and such specifications, if any, as may have been
specified in this Agreement, and shall conform to the Sample thereof
approved by us. Both before and after you put Articles on the market,
you shall follow reasonable and proper procedures for testing that
Articles comply with such laws, regulations, and standards, and shall,
upon reasonable notice, permit our designees to inspect testing,
manufacturing and quality control records and procedures and to test
the Articles for compliance. You shall also give due consideration to
any recommendations of ours that Articles exceed the requirements of
applicable laws, regulations and standards. Articles not complying
with applicable laws, regulations and voluntary standards shall be
deemed unapproved, even if previously approved by us, and shall not be
shipped unless and until they have been brought into full compliance
therewith.
12. DISNEY OWNERSHIP OF ALL RIGHTS IN LICENSED MATERIAL
You acknowledge that the copyrights and all other proprietary rights
in and to Licensed Material are exclusively owned by and reserved to
us. You shall neither acquire nor assert copyright ownership or any
other proprietary rights in Licensed Material or in any derivation,
adaptation, variation or name thereof. Without limiting the
foregoing, you hereby assign to us all your worldwide right, title and
interest in the Licensed Material and in any material objects
consisting of or incorporating drawings, paintings, animation cels, or
sculptures of Licensed Material, or other derivations, adaptations,
compilations, collective works, variations or names of Licensed
Material, heretofore or hereafter created by or for you or any
Affiliate of yours. All such new materials shall be included in the
definition of "Licensed Material" under this Agreement. If any third
party makes or has made any contribution to the creation of any new
materials which are included in the definition of Licensed Material
under this Paragraph 12, you agree to obtain from such party a full
assignment of rights so that the foregoing assignment by you shall
vest full rights to such new materials in us. The foregoing
assignment to us of material objects shall not include that portion of
your displays, catalogs or promotional material not containing
Licensed Material, or the physical items constituting the Articles,
unless such items are in the shape of the Licensed Material.
13. COPYRIGHT NOTICE
As a condition to the grant of rights hereunder, each Article and any
other matter containing Licensed Material shall bear a properly
located permanently
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affixed copyright notice in our name (e.g., "(C)Disney"), or such
other notice as we may notify to you in writing. You will comply with
such instructions as to form, location and content of the notice as we
may give from time to time. You will not, without our prior written
consent, affix to any Article or any other matter containing Licensed
Material a copyright notice in any other name. If through
inadvertence or otherwise a copyright notice on any Article or other
such matter should appear in your name or the name of a third party,
you hereby agree to assign to us the copyright represented by any such
copyright notice in your name and, upon request, cause the execution
and delivery to us of whatever documents are necessary to convey to us
that copyright represented by any such copyright notice. If by
inadvertence a proper copyright notice is omitted from any Article or
other matter containing Licensed Material, you agree at your expense
to use all reasonable efforts to correct the omission on all such
Articles or other matter in process of manufacture or in distribution.
You agree to advise us promptly and in writing of the steps being
taken to correct any such omission and to make the corrections on
existing Articles which can be located.
14. NON-ASSOCIATION OF OTHER FANCIFUL CHARACTERS WITH
LICENSED MATERIAL
To preserve our identification with our characters and to avoid
confusion of the public, you agree not to associate other characters
(other than such as constitute a trademark of yours) or licensed
properties with the Licensed Material or the Trademarks either on the
Articles or in their packaging, or, without our written permission, on
advertising, promotional or display materials.
15. ACTIVE MARKETING OF ARTICLES
You agree to manufacture (or have manufactured for you) and offer for
sale all the Articles and to exercise the rights granted herein. You
agree that by the Marketing Date applicable to a particular Article
or, in the absence of such a date being specified in Subparagraph
1.O., by six (6) months from the commencement of the Principal Term,
shipments to customers of such Article will have taken place in
sufficient time that such Article shall be available for purchase by
the public at the retail outlets authorized pursuant to Subparagraph
2.A. In any case in which such sales have not taken place or when the
Article is not then and thereafter available for purchase by the
public, we may either invoke our remedies under Paragraph 28, or
withdraw such Article from the list of Articles licensed in this
Agreement without obligation to you other than to give you written
notice thereof.
16. PROMOTION COMMITMENT
You agree to carry out the Promotion Commitment, if any, as defined in
Subparagraph 1.N.
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17. TRADEMARK RIGHTS AND OBLIGATIONS
A. All uses of the Trademarks by you hereunder shall inure to our
benefit You acknowledge that we are the exclusive owner of all
the Trademarks, and of any trademark incorporating all or any
part of a Trademark or any Licensed Material, and the
trademark rights created by such uses. Without limiting the
foregoing, you hereby assign to us all the Trademarks, and any
trademark incorporating all or any part of a Trademark or any
Licensed Material, and the trademark rights created by such
uses, together with the goodwill attaching to that part of the
business in connection with which such Trademarks or
trademarks are used. You agree to execute and deliver to us
such documents as we require to register you as a Registered
User or Permitted User of the Trademarks or such trademarks
and to follow our instructions for proper use thereof in order
that protection and/or registrations for the Trademarks and
such trademarks may be obtained or maintained.
B. You agree not to use any Licensed Material or Trademarks, or
any trademark incorporating all or any part of a Trademark or
of any Licensed Material, on any business sign, business
cards, stationery or forms (except as licensed herein), or to
use any Licensed Material or Trademark as the name of your
business or any division thereof, unless otherwise agreed by
us in writing.
C. Nothing contained herein shall prohibit you from using your
own trademarks on the Articles or your copyright notice on the
Articles when the Articles contain independent material which
is your property. Nothing contained herein is intended to
give us any rights to, and we shall not use, any trademark,
copyright or patent used by you in connection with the
Articles which is not derived or adapted from Licensed
Material, Trademarks, or other materials owned by us.
18. REGISTRATIONS
Except with our written consent, neither you nor any Affiliate of
yours will register or attempt in any country to register copyrights
in, or to register as a trademark, service xxxx, design patent or
industrial design, or business designation, any of the Licensed
Material, Trademarks or derivations or adaptations thereof, or any
word, symbol or design which is so similar thereto as to suggest
association with or sponsorship by us or any Affiliate of ours. In
the event of breach of the foregoing, you agree, at your expense and
at our request, immediately to terminate the unauthorized registration
activity and promptly to execute and deliver, or cause to be
delivered, to us such assignments and other documents as we may
require to transfer to us all rights to the registrations, patents or
applications involved.
19. UNLICENSED USE OF LICENSED MATERIALS
A. You agree that you will not use the Licensed Material, or the
Trademarks, or any other material the copyright to which is
owned by us
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in any way other than as herein authorized (or as is
authorized in any other written contract in effect between
us). In addition to any other remedy we may have, you agree
that the profits from any use thereof on products other than
the Articles (unless authorized by us in writing), and all
profits from the use of any other copyrighted material of ours
without written authorization, shall be payable to us.
B. You agree to give us prompt written notice of any unlicensed
use by third parties of Licensed Material or Trademarks, and
that you will not, without our written consent, bring or cause
to be brought any criminal prosecution, lawsuit or
administrative action for infringement, interference with or
violation of any rights to Licensed Material or Trademarks.
Because of the need for and the high costs of an effective
anti-piracy enforcement program, you agree to cooperate with
us, and, if necessary, to be named by us as a sole complainant
or co-complainant in any action against an infringer of the
Licensed Material or Trademarks and, notwithstanding any right
of yours to recover same, legal or otherwise, you agree to pay
to us, and hereby waive all claims to, all damages or other
monetary relief recovered in such action by reason of a
judgment or settlement whether or not such damages or other
monetary relief, or any part thereof, represent or are
intended to represent injury sustained by you as a licensee
hereunder; in any such action against an infringer, we agree
to reimburse you for reasonable expenses incurred at our
request, including reasonable attorney's fees if we have
requested you to retain separate counsel.
20. STATEMENTS AND PAYMENTS OF ROYALTIES
A. You agree to furnish to us by the 30th day after each Royalty
Payment Period full and accurate statements on statement forms
we designate for your use, showing all information requested
by such forms, including but not limited to, the quantities,
Net Invoiced Xxxxxxxx and applicable Royalty rate(s) of
Articles invoiced during the preceding Royalty Payment Period,
and the quantities and invoice value of Articles returned for
credit or refund in such period. At the same time you will
pay us all Royalties due on xxxxxxxx shown by such statement.
To the extent that any Royalties are not paid, you authorize
us to offset Royalties due against any sums which we or any
Affiliate of ours may owe to you or any Affiliate of yours.
No deduction or withholding from Royalties payable to us shall
be made by reason of any tax. Any applicable tax on the
manufacture, distribution and sale of the Articles shall be
borne by you.
B. The statement forms we designate for our use may be changed
from time to time, and you agree to use the most current form
we provide to you. You agree to fully comply with all
instructions supplied by us for completing such forms.
C. In addition to the other information requested by the
statement forms, your statement shall with respect to all
Articles report separately:
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(1) F.O.B. In Sales;
(2) F.O.B. Out Sales;
(3) sales of Articles outside the Territory pursuant to a
distribution permission (indicating the country
involved);
(4) your sales of Articles as a supplier to any of our or
our licensees or our Affiliates' licensees for the
Articles (which sales shall not generate Royalties
payable to us so long as such licensees are reselling
the Articles and paying us royalties on such
resales);
(5) sales of Articles to us or any Affiliate of ours;
(6) sales of Articles to your or our employees;
(7) sales of Articles under any brand or program
identified in Subparagraph 1.B. hereinabove.
D. Sales of items licensed under contracts with us other than
this Agreement shall not be reported on the same statement as
sales of Articles under this Agreement.
E. Your statements and payments shall be delivered to The Xxxx
Disney Company, X.X. Xxx 000000, Xxxxxxx, Xxxxxxx 00000.
However, Advances should be mailed directly to the Contract
Administrator at 000 Xxxxx Xxxxx Xxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxx 00000-0000. A copy of each statement must be sent
to us at 000 Xxxxx Xxxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx
00000-0000, to the attention of the Contract Administrator,
Consumer Products Division. If you wish to send statements
and payments by overnight courier, please use the following
address: The Xxxx Disney Company, Wachovia South Metro
Center, 0000 Xxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000, Attention
Xxxxx Xxxxxx, Reference Lock Box 101947.
21. ARTICLES RETURNED FOR CREDIT OR REFUND
Royalties reported on sales of Articles which have been returned to
you for credit or refund and on which a refund has been made or credit
memo issued may be credited against Royalties due. The credit shall
be taken in the Royalty Payment Period in which the refund is given or
credit memo issued. Unused credits may be carried forward, but in no
event shall you be entitled to a refund of Royalties.
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22. INTEREST
Royalties or any other payments due to us hereunder which are received
after the due date shall bear interest at the rate of 10% per annum
from the due date (or the maximum permissible by law if less than 10%)
23. AUDITS AND MAINTAINING RECORDS
You agree to keep accurate records of all transactions relating to
this Agreement and any prior agreement with us, including, without
limitation, shipments to you of Articles and components thereof,
inventory records, records of sales and shipments by you, and records
of returns, and to preserve such records for the lesser of seven (7)
years or two (2) years after the expiration or termination of this
Agreement. We or our representatives, shall have the right from time
to time, during your normal business hours, but only for the purpose
of confirming your performance hereunder, to examine and make extracts
from all such records, including the general ledger, invoices and any
other records which we reasonably deem appropriate to verify the
accuracy of your statements or your performance hereunder, including
records of your Affiliates if they are involved in activities which
are the subject of this Agreement. In particular, your invoices shall
identify the Articles separately from goods which are not licensed
hereunder. If in an audit of your records it is determined that there
is a short fall of five percent (5%) or more in Royalties reported for
any Royalty Payment Period, you shall upon request from us reimburse
us for the full out-of-pocket costs of the audit, including the costs
of employee auditors calculated at $60 per hour per person for travel
time during normal working hours and actual working time.
24. MANUFACTURE OF ARTICLES BY THIRD PARTY MANUFACTURERS
A. If you at any time desire to have Articles or components
thereof containing Licensed Material manufactured by a third
party, you must, as a condition to the continuation of this
Agreement, notify us of the name and address of such
manufacturer and the Articles or components involved and
obtain our prior written permission to do so. If we are
prepared to grant permission, we will do so if:
(1) In the case of manufacture outside the Territory:
(a) you and each of your manufacturers and any
submanufacturers sign a
Consent/Manufacturer's Agreement in a form
which we will furnish to you; and
(b) we receive all such agreements properly
signed; and
(2) In the case of manufacture in the Territory:
(a) upon our request, you cause each such
manufacturer to sign an agreement in a form
which we will furnish to you; and
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(b) we receive all such agreements properly
signed.
(A SAMPLE OF SAID AGREEMENT FORM IS AVAILABLE ON REQUEST.)
B. We will not normally require agreements from suppliers of
yours who are manufacturing in the Territory, but your
purchase of Articles from a third party manufacturer without
such agreements as are required hereunder being signed and
delivered to us shall be a violation of this Agreement. It is
not our policy to reveal the names of your suppliers to third
parties or to any division of ours involved with buying
products, except as may be necessary to enforce our contract
rights or protect our trademarks and copyrights.
C. If any such manufacturer utilizes Licensed Material or
Trademarks for any unauthorized purpose, you shall cooperate
fully in bringing such utilization to an immediate halt. If,
by reason of your not having supplied the above mentioned
agreements to us or not having given us the name of any
supplier, we make any representation or take any action and
are thereby subjected to any penalty or expense, you will
fully compensate us for any cost or loss we sustain.
25. INDEMNITY
A. You shall indemnify us during and after the term hereof
against all claims, liabilities (including settlements entered
into in good faith with your consent, not to be unreasonably
withheld) and expenses (including reasonable attorneys' fees)
arising out of your activities hereunder, or out of any defect
(whether obvious or hidden and whether or not present in any
sample approved by us) in an Article, or arising from personal
injury or any infringement of any rights of any other person
by the manufacture, sale, possession or use of Articles, or
their failure to comply with applicable laws, regulations and
standards. The parties indemnified hereunder shall include
The Xxxx Disney Company and its subsidiaries, and their
officers, directors, employees and agents. The indemnity
shall not apply to any claim or liability relating to any
infringement of the copyright of a third party caused by your
utilization of the Licensed Material and the Trademarks in
accordance with the provisions hereof.
B. We shall indemnify you during and after the term hereof
against all claims, liabilities (including settlements entered
into in good faith with our consent, not to be unreasonably
withheld) and expenses (including reasonable attorneys' fees)
arising out of any claim that your use of any representation
of the Licensed Material or the Trademarks approved in
accordance with the provisions of this Agreement infringes the
copyright of any third party or infringes any right granted by
us to such third party. You shall not, however, be entitled
to recover for lost profits.
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C. Additionally, if by reason of any claims referred to in
Subparagraph 25.B., you are precluded from selling any stock
of Articles or utilizing any materials in your possession or
which come into your possession by reason of any required
recall, we shall be obligated to purchase such Articles and
materials from you at their out-of-pocket cost to you,
excluding overheads, but we shall have no other responsibility
or liability with respect to such Articles or materials.
D. No warranty or indemnity is given with respect to any
liability or expense arising from any claim that use of the
Licensed Material or the Trademarks on or in connection with
the Articles hereunder or any packaging, advertising or
promotional material infringes on any trademark right of any
third party or otherwise constitutes unfair competition by
reason of any prior rights acquired by such third party other
than rights acquired from us. It is expressly agreed that it
is your responsibility to carry out such investigations as you
may deem appropriate to establish that Articles, packaging,
promotional and advertising material which are manufactured or
created hereunder, including any use made of the Licensed
Material and the Trademarks therewith, do not infringe such
right of any third party, and we shall not be liable to you if
such infringement occurs.
E. You and we agree to give each other prompt written notice of
any claim or suit which may arise under the indemnity
provisions set forth above. Without limiting the foregoing,
you agree to give us written notice of any product liability
claim made or suit with respect to any Article within seven
(7) days of your receipt of the claim.
26. INSURANCE
You shall maintain in full force and effect at all times while this
Agreement is in effect and for three years thereafter commercial
general liability insurance, including broad form coverage for
contractual liability, products liability and personal injury
liability (including bodily injury and death), waiving subrogation,
with minimum limits of no less than two million dollars (US
$2,000,000.00) per occurrence, and naming as additional insureds those
indemnified in Paragraph 25 hereof. You shall deliver to us a
certificate or certificates of insurance evidencing satisfactory
coverage and indicating that we shall receive written notice of
cancellation, non-renewal or of any material change in coverage at
least thirty (30) days prior to the effective date thereof. Your
insurance shall be carried by an insurer with a BEST rating of B + VII
or better. Compliance herewith in no way limits your indemnity
obligations, except to the extent that your insurance company actually
pays us amounts which you would otherwise pay us.
27. WITHDRAWAL OF LICENSED MATERIAL
You agree that we may, without obligation to you other than to give
you written notice thereof, withdraw from the scope of this Agreement
any Licensed Material which by the Marketing Date or, in the absence
of such a date being
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specified in Subparagraph 1.O., by six (6) months from the
commencement of the Principal Term, is not being used on or in
connection with the Articles. We may also withdraw any Licensed
Material or Articles the use or sale of which under this Agreement
would infringe or reasonably be claimed to infringe the rights of a
third party, other than rights granted by us, in which case our
obligations to you shall be limited to the purchase at cost of
Articles and other materials utilizing such withdrawn Licensed
Material which cannot be sold or used. In the case of any withdrawal
under the preceding sentence, the Advances and Guarantees shall be
adjusted to correspond to the time remaining in the Principal Term, or
the number of Articles remaining under the Agreement, at the date of
withdrawal.
28. TERMINATION
Without prejudice to any other right or remedy available to us:
A. If you fail to manufacture, sell and distribute the Articles,
or to furnish statements and pay Royalties as herein provided,
or if you otherwise breach the terms of this Agreement, and if
any such failure is not corrected within thirty (30) days
after we send you written notice thereof (or, in the case of
non-payment of Royalties within fifteen (15) days), we shall
have the right at any time to terminate this Agreement by
giving you written notice thereof.
B. We shall have the right at any time to terminate this
Agreement by giving you written notice thereof:
(1) if you deliver to any customer without our written
authorization merchandise containing representations
of Licensed Material or other material the copyright
or other proprietary rights to which are owned by us
other than Articles listed herein and approved in
accordance with the provisions hereof;
(2) if you deliver Articles outside the Territory or
knowingly sell Articles to a third party for delivery
outside the Territory, unless pursuant to a written
distribution permission or separate written license
agreement with us or any Affiliate of ours;
(3) if a breach occurs which is of the same nature, and
which violates the same provision of this Agreement,
as a breach of which we have previously given you
written notice;
(4) if you breach any material term of any other license
agreement between us, and we terminate such agreement
for cause;
(5) if you shall make any assignment for the benefit of
creditors, or file a petition in bankruptcy, or are
adjudged bankrupt, or become insolvent, or are placed
in the hands of a receiver, or
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if the equivalent of any such proceedings or acts
occurs, though known by some other name or term;
and/or
(6) if you are not permitted or are unable to operate
your business in the usual manner, or are not
permitted or are unable to provide us with assurance
satisfactory to us that you will so operate your
business, as debtor in possession or its equivalent,
or are not permitted, or are unable to otherwise meet
your obligations under this Agreement or to provide
us with assurance satisfactory to us that you will
meet such obligations.
29. RIGHTS AND OBLIGATIONS UPON EXPIRATION OR TERMINATION
A. Upon the expiration or termination of this Agreement, all
rights herein granted to you shall revert to us, and we shall
be entitled to retain all Royalties and other things of value
paid or delivered to us. You agree that the Articles shall be
manufactured during the Principal Term in quantities
consistent with anticipated demand therefor so as not to
result in an excessive inventory build-up immediately prior to
the end of the Principal Term. You agree that from the
expiration or termination of this Agreement you shall neither
manufacture nor have manufactured for you any Articles, that
you will deliver to us any and all artwork (including
animation cels and drawings) which may have been used or
created by you in connection with this Agreement, that you
will at our option either sell to us at cost or destroy or
efface any molds, plates and other items used to reproduce
Licensed Martial or Trademarks, and that except as hereinafter
provided, you will cease selling Articles. Any unauthorized
distribution of Articles after the expiration or termination
of this Agreement shall constitute copyright infringement.
B. If you have any unsold Articles in inventory on the expiration
or termination date, you shall provide us with a full
statement of the kinds and numbers of such unsold Articles and
shall thereupon, but only if such statement has been provided
to us and if you have fully complied with the terms of this
Agreement including the payment of all Royalties due and the
Guarantee, have the right for a limited period of three (3)
calendar months from such expiration or earlier termination
date to sell off and deliver such Articles. You shall furnish
us statements covering such sales and pay us Royalties in
respect of such sales. Such Royalties shall not be applied
against the Advance or towards meeting the Guarantee.
C. In recognition of our interest in maintaining a stable and
viable market for the Articles during and after the Principal
Term and any sell-off period, you agree to refrain from
"dumping" the Articles in the market during any sell-off
period granted to you. "Dumping" shall mean the distribution
of product at volume levels significantly above your prior
sales practices with respect to the Articles, and at price
levels so far below your prior sales practices with respect to
the Articles as to
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disparage the Articles; provided, however, that nothing
contained herein shall be deemed to restrict your ability to
set product prices at your discretion.
D. Except as otherwise agreed by us in writing, any inventory of
Articles in your possession or control after the expiration or
termination hereof and of any sell-off period granted
hereunder shall be destroyed, or all Licensed Material and
Trademarks removed or obliterated therefrom.
E. If we supply you with forms regarding compliance with this
Paragraph 29, you agree to complete, execute and return such
forms to us expeditiously.
30. WAIVERS
A waiver by either of us at any time of a breach of any provision of
this Agreement shall not apply to any breach of any other provision of
this Agreement, or imply that a breach of the same provision at any
other time has been or will be waived, or that this Agreement has been
in any way amended, nor shall any failure by either party to object to
conduct of the other be deemed to waive such party's right to claim
that a repetition of such conduct is a breach hereof.
31. PURCHASE OF ARTICLES BY US
If we wish to purchase Articles, you agree to sell such Articles to us
or any Affliliate of ours at as low a price as you charge for similar
quantities sold to your regular customers and to pay us Royalties on
any such sales.
32. NON-ASSIGNABILITY
A. You shall not voluntarily or by operation of law assign,
sub-license, transfer, encumber or otherwise dispose of all or
any part of your interest in this Agreement without our prior
written consent, to be granted or withheld in our absolute
discretion. Any attempted assignment, sub-license, transfer,
encumbrance or other disposal without such consent shall be
void and shall constitute a material default and breach of
this Agreement. "Transfer" within the meaning of this
Paragraph 32 shall include any merger or consolidation
involving your company or your parent (if any); any sale or
transfer of all or substantially all of your (or your parent)
company's assets; any transfer of your rights hereunder to a
division, business segment or other entity of yours other than
the one specifically referenced on page 1 hereof (or any sale
or attempted sale of Articles under a trademark or trade name
of such division, business segment or other entity); and any
transaction or series of related transactions resulting in the
transfer of thirty-three and one-third percent (33-1/3%) or
more of the voting stock of your (or your parent) company (or,
if your company is a partnership, thirty-three and one-third
percent (33-1/3%) or more of the profit and loss participation
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in your company, or the occurrence of any of the foregoing
with respect to any general partner of your company).
B. Our consent to any assignment of this Agreement or other
transfer as defined in Subparagraph 32.A. shall be subject to
such terms and conditions as we deem appropriate, including
payment of a transfer fee in the amount of ten percent (10%)
of Royalties earned for the Articles in the four (4) complete
calendar quarterly periods preceding the date you seek our
consent, but in no event less than $100,000.00. The foregoing
transfer fee shall not apply if this Agreement is assigned to
one of our Affiliates as part of a corporate reorganization
involving some or all of the entities existing in your
corporate structure when this Agreement is signed; provided,
however, that you must give us written notice of such
assignment and a description of the reorganization. If you
have more than one merchandise license agreement with us for
the Territory, and an event occurs which would trigger the
transfer fee provisions of this Paragraph 32, you need only
pay to us one transfer fee, equal to the greater of
$100,000.00 or ten percent (10%) of Royalties earned for all
Articles in the preceding four (4) complete calendar quarterly
periods under all of the merchandise license agreements for
the Territory. The provisions of this Subparagraph 32.B.
shall supersede any conflicting provisions on this subject in
any merchandise license agreement previously entered into
between you and us, including but not limited to, the
determination of the applicable four (4) complete calendar
quarterly periods to be used in the calculation of Royalties
earned.
C. Notwithstanding Subparagraphs 32.A. and B., you may, upon
written notice to us, unless we have objected within thirty
(30) days of receipt of such notice, sublicense your rights
hereunder to your Affiliates. You hereby irrevocably and
unconditionally guarantee that they will observe and perform
all of your obligations hereunder, including, without
limitation, the provisions governing approvals, and compliance
with approved samples, applicable laws and standards, and all
other provisions hereof, and that they will otherwise adhere
strictly to all of the terms hereof and act in accordance with
your obligations hereunder. Any involvement of an Affiliate
in the activities which are the subject of this Agreement
shall be deemed carried on pursuant to such a sublicense and
thus covered by such guarantee, but, unless notified to us and
not timely objected to, such involvement may be treated by us
as a breach of this Agreement.
33. RELATIONSHIP
This Agreement does not provide for a joint venture, partnership,
agency or employment relationship between us.
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34. CONSTRUCTION
The language of all parts of this Agreement shall in all cases be
construed as a whole, according to its fair meaning and not strictly
for or against any of the parties. Headings of paragraphs herein are
for convenience of reference only and are without substantive
significance.
35. MODIFICATIONS OR EXTENSIONS OF THIS AGREEMENT
Except as otherwise provided herein, this Agreement can only be
extended or modified by a writing signed by both parties.
36. NOTICES
All notices which either party is required or may desire to serve upon
the other party shall be in writing, addressed to the party to be
served at the address set forth on page 1 of this Agreement, and may
be served personally or by depositing the same addressed as herein
provided (unless and until otherwise notified), postage prepaid, in
the United States mail. Such notice shall be deemed served upon
personal delivery or upon the date of mailing; provided, however, that
we shall be deemed to have been served with a notice of a request for
approval of materials under this Agreement only upon our actual
receipt of the request and of any required accompanying materials.
Any notice sent to us hereunder shall be sent to the attention of
"Vice President, Licensing", unless we advise you in writing
otherwise.
37. MUSIC
Music is not licensed hereunder. Any charges, fees or royalties
payable for music rights or any other rights not covered by this
Agreement shall be additional to the Royalties and covered by separate
agreement.
38. PREVIOUS AGREEMENTS
This Agreement, and any confidentiality agreement you may have signed
pertaining to any of the Licensed Material, contains the entire
agreement between us concerning the subject matter hereof and
supersedes any pre-existing agreement and any oral or written
communications between us. However, if pursuant to any such
pre-existing agreement there was any agreement(s) in effect permitting
you to sell or distribute Articles outside the Territory or to cause
to be manufactured any Articles outside the Territory, such
agreement(s) shall be deemed to remain in effect to the extent that
they relate to Licensed Material and Articles licensed hereunder.
39. CHOICE OF LAW AND FORUM
This Agreement shall be deemed to be entered into in California and
shall be governed and interpreted according to the laws of the State
of California. Any legal actions pertaining to this Agreement shall
be commenced within the State of California and within either Los
Angeles or Orange Counties. The prevailing
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party shall be entitled to recover reasonable attorney's fees and
costs incurred therein.
40. EQUITABLE RELIEF
You acknowledge that we will have no adequate remedy at law if you
continue to manufacture, sell advertise, promote or distribute the
Articles upon the expiration or termination of this Agreement. You
acknowledge and agree that, in addition to any and all other remedies
available to us, we shall have the right to have any such activity by
you restrained equitable relief, including, but not limited to, a
temporary restraining order, a preliminary injunction, a permanent
injunction, or such other alternative relief as may be appropriate,
without the necessity of our posting any bond.
Please sign below under the word "Agreed". When signed by both parties this
shall constitute an agreement between us.
THE XXXX DISNEY COMPANY
By: /s/ Xxxx Xxxxxxx
-------------------
Title: VP/DMM FILM ENTERTAINMENT LICENSING
-----------------------------------
Date: 9/11/95
--------
AGREED:
SUN SPORTSWEAR, INC.
By: /s/ Xxxxx X. Xxxxxxx
---------------------
Title: President, C.E.O.
-----------------
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