Exhibit 1-A(8)(a)(5)
SUB-LICENSE AGREEMENT
Agreement effective as of this 18th day of July, 1991 by and between
Fidelity Distributors Corporation (hereinafter called "Fidelity"), a corporation
organized and existing under the laws of the Commonwealth of Massachusetts, with
a principal place of business at 00 Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx,
and The American Franklin Life Insurance Company (hereinafter called "Company"),
a company organized and existing under the laws of the State of Illinois, with a
principal place of business at #0 Xxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxx 00000.
WHEREAS, FMR Corp., a Massachusetts corporation, the parent company of
Fidelity, is the owner of the trademark and the tradename "FIDELITY INVESTMENTS"
and is the owner of a trademark in a pyramid design (hereinafter, collectively
the "Fidelity Trademarks"), a copy of each of which is attached hereto as
Exhibit "A;" and
WHEREAS, FMR Corp. has granted a license to Fidelity (the "Master
License Agreement") to sub-license the Fidelity Trademarks to third parties
for their use in connection with Promotional Materals as hereinafter defined;
and
WHEREAS, Company is desirous of using the Fidelity Trademarks in
connection with distribution of "sales literature and other promotional
material" with information, including the Fidelity Trademarks, printed in said
material (such material hereinafter called the Promotional Material). For the
purpose of this Agreement, "sales literature and other promotional material"
shall have the same meaning as in the certain Participation Agreement dated as
of the ____ day of July, 1991, among Fidelity, Company and Variable Insurance
Products Fund (hereinafter "Participation Agreement"); and
WHEREAS, Fidelity is desirous of having the Fidelity Trademarks used in
connection with the Promotional Material.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and adequacy whereof is hereby
acknowledged, and of the mutual promises hereinafter set forth, the parties
hereby agree as follows:
1. Fidelity hereby grants to Company a non-exclusive, non-transferrable
license to use the Fidelity Trademarks in connection with the promotional
distribution of the Promotional Material and Company accepts said license,
subject to the terms and conditions set forth herein.
2. Company acknowledges that FMR Corp. is the owner of all right, title
and interest in the Fidelity Trademarks and agrees that it will do nothing
inconsistent with the ownership of the Fidelity Trademarks by FMR Corp., and
that it will not, now or hereinafter, contest any registration or application
for registration of the Fidelity Trademarks by FMR Corp., nor will it, now or
hereafter, aid anyone in contesting any registration or application for
registration of the Fidelity Trademarks by FMR Corp.
3. Company agrees to use the Fidelity Trademarks only in the form and
manner approved by Fidelity and not to use any other trademark, service xxxx or
registered trademark in combination with any of the Fidelity Trademarks without
approval by Fidelity.
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4. Company agrees that it will place all necessary and proper
notices and legends in order to protect the interests of FMR Corp. and
Fidelity therein pertaining to the Fidelity Trademarks on the Promotional
Material including, but not limited to, symbols indicating trademarks,
service marks and registered trademarks. Company will place such symbols and
legends on the Promotional Material as requested by Fidelity or FMR Corp.
upon receipt of notice of same from Fidelity or FMR Corp.
5. Company agrees that the nature and quality of all of the Promotional
Material distributed by Company bearing the Fidelity Trademarks shall conform to
standards set by, and be under the control of, Fidelity.
6. Company agrees to cooperate with Fidelity in facilitating Fidelity's
control of the use of the Fidelity Trademarks and of the quality of the
Promotional Material to permit reasonable inspection of samples of same by
Fidelity and to supply Fidelity with reasonable quantities of samples of the
Promotional Material upon request.
7. Company shall comply with all applicable laws and regulations and
obtain any and all licenses or other necessary permits pertaining to the
distribution of said Promotional Material.
8. Company agrees to notify Fidelity of any unauthorized use of the
Fidelity Trademarks by others promptly as it comes to the attention of Company.
Fidelity or FMR Corp. shall have the sole right and discretion to commence
actions or other proceedings for infringement, unfair competition or the like
involving the Fidelity Trademarks and Company shall cooperate in any such
proceedings if so requested by Fidelity or FMR Corp.
9. This agreement shall continue in force until terminated by Fidelity.
This agreement shall automatically terminate upon termination of the Master
License Agreement. In addition, Fidelity shall have the right to terminate this
agreement at any time upon notice to Company, with or without cause. Upon any
such termination, Company agrees to cease immediately all use of the Fidelity
Trademarks and shall destroy, at Company's expense, any and all materials in its
possession bearing the Fidelity Trademarks, and agrees that all rights in the
Fidelity Trademarks and in the goodwill connected therewith shall remain the
property of FMR Corp. Unless so terminated by Fidelity, or extended by written
agreement of the parties, this agreement shall expire on the termination of that
certain Participation Agreement.
10. Company shall indemnify Fidelity and FMR Corp. and hold each of
them harmless from and against any loss, damage, liability, cost or expense of
any nature whatsoever, including without limitation, reasonable attorneys' fees
and all court costs, arising out of use of the Fidelity Trademarks by Company
except such use that has been permitted under the terms of this Agreement.
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11. In consideration for the promotion and advertising of Fidelity as a
result of the distribution by Company of the Promotional Material, Company shall
not pay any monies as a royalty to Fidelity for this license.
12. This agreement is not intended in any manner to modify the terms
and conditions of the Participation Agreement. In the event of any conflict
between the terms and conditions herein and thereof, the terms and conditions of
the Participation Agreement shall control.
13. This agreement shall be interpreted according to the laws of the
Commonwealth of Massachusetts.
IN WITNESS WHEREOF, the parties hereunto set their hands and seals, and
hereby execute this agreement, as of the date first above written.
FIDELITY DISTRIBUTORS CORPORATION
By: _________________________________
Title: V.P.
Date: 10/3/91
THE AMERICAN FRANKLIN LIFE INSURANCE COMPANY
By: _________________________________
Title: Senior Vice President, General
Counsel & Secretary
Date:
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INT. CL.: 36
PRIOR U.S. CLS.: 101 AND 102
REG. NO. 1,481,040
UNITED STATES PATENT AND TRADEMARK OFFICE REGISTERED MAR. 15, 1988
-------------------------------------------- ------------------------
SERVICE XXXX
PRINCIPAL REGISTER
Fidelity
Investments
FMR CORP. (MASSACHUSETTS CORPORATION) FIRST USE 2-22-1984; IN COMMERCE
CORPORATION) 2-22-1984.
00 XXXXXXXXXX XXXXXX
XXXXXX, XX 00000, ASSIGNEE OF NO CLAIM IS MADE TO THE EXCLUSIVE
FIDELITY DISTRIBUTORS CORPORATION RIGHT TO USE "INVESTMENTS", APART
MASSACHUSETTS CORPORATION) FROM THE XXXX AS SHOWN.
XXXXXX, XX 00000
02109
SER. NO. 641,707, FILED 1-28-1987
FOR: MUTUAL FUND AND STOCK
BROKERAGE SERVICES,
IN CLASS 36
(U.S. CLS. 101 AND 102). XXXX XXXXXX, EXAMINING ATTORNEY
