LICENSE AGREEMENT
between
XXX. XXXXXX DEVELOPMENT CORPORATION
a Delaware corporation
and
MARRIOTT CORPORATION
a Delaware corporation
DATED March 1, 1992
TABLE OF CONTENTS
1. DEFINITIONS . . . . . . . . . . . . . . . . . 1
2. GRANT OF LICENSE; EXCLUSIVITY . . . . . . . . . . . 4
3. TRANSFER OF LICENSED TRADE SECRETS AND ASSISTANCE . . 6
4. CONFIDENTIALITY . . . . . . . . . . . . . . 7
5. PUBLICITY . . . . . . . . . . . . . . ...........7
6. DEVELOPMENT OBLIGATIONS . . . . . . . . . . . . . 8
7. NO COMPETITIVE BUSINESS . . . . . . . . . . . . .10
8. SYSTEM STANDARDS . . . . . . . . . . . . . .. 11
9. UNDERTAKINGS BY LICENSEE . . . . . . . . . . . . 12
10. UNDERTAKINGS OF LICENSOR.......................................18
11. PRODUCT PURCHASES, PAYMENTS AND ROYALTIES......................21
12. ACCOUNTING, REPORTS AND FINANCIAL STATEMENTS...................22
13. TERM AND TERMINATION...........................................22
14. INDEMNIFICATION................................................25
15 . BINDING EFFECT, ASSIGNMENT.....................................25
16. ADVERTISING AND PROMOTIONAL DOCUMENTATION AND EXPENSES.........26
17. NOTICES........................................................27
18. GENERAL PROVISIONS.............................................28
EXHIBIT A LICENSED PRODUCTS . . . . . . . . . . . . . . .. 33
EXHIBIT B LIST OF LICENSED TRADENAMES, TRADEMARKS AND SERVICE
MARKS. . . . . . . . . . . . . . . . . . . 34
i
LICENSE AGREEMENT
THIS LICENSE AGREEMENT (the "Agreement") is made this 1st day of March,
1992, by and between XXX. XXXXXX DEVELOPMENT CORPORATION ("Licensor"), a
Delaware corporation and MARRIOTT CORPORATION ("Licensee"), a Delaware
corporation.
WITNESSETH:
WHEREAS, Licensor has invented and acquired and will continue to
develop and acquire certain proprietary knowledge, trade secrets, techniques,
recipes, formulations of ingredients and processes related to the composition,
production, marketing and sale of bakery products, cookies and other food
products commonly sold at Xxx. Xxxxxx bakery and cookie stores;
WHEREAS, Xxx. Xxxxxx Inc. ("MFI"), the parent company of Licensor,
previously licensed to Licensee certain proprietary knowledge, trade secrets,
techniques, and trademarks necessary for the production and sale of cookie and
bakery products under the name "Xxx. Xxxxxx" at locations operated by Licensee,
pursuant to an Amended and Restated License Agreement dated December 31, 1989
("Original License");
WHEREAS, Licensee manages and operates restaurants and related
facilities on tollroads and in airports;
WHEREAS, Licensor desires to license to Licensee the right, and
Licensee desires to obtain a license from Licensor, to utilize Licensor's
techniques and processes to produce and sell the Licensed Products (as defined
below) at certain locations as specified herein under certain of the tradenames
and trademarks used by Licensor and upon the terms and conditions hereafter set
forth;
WHEREAS, Licensor has also agreed to make available to Licensee certain
assistance, in accordance with the terms and provisions hereof;
WHEREAS, upon execution hereof, Licensee and MFI have agreed to rescind
the Original License with respect to the operation of Xxx. Xxxxxx Stores (as
defined below) at airports and/or on tollroads, and Licensee, MFI and Licensor
have agreed that this License shall supersede the Original License with respect
to such locations;
NOW THEREFORE, in consideration of the premises and the covenants and
agreements contained herein and other valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. DEFINITIONS
(a) "Bakery Store" means any retail outlet (or unit operating within
such retail outlet) which sells fresh baked breads, croissants, pastries or
other bakery products, and/or one or more of the Cookie Products under the
Licensed Names and Marks at which more than fifty-one percent (51 %) of such
outlet's or unit's gross sales of products per annum (determined in accordance
with United States generally accepted accounting principles) results from sales
of products other than Cookie Products.
(b) "Cookie Products" means those products listed as such on Exhibit A
hereto.
(c) "Cookie Store" means any retail outlet (or unit operating within a
retail outlet) of Licensor, or any licensee of Licensor, which is not a Bakery
Store.
(d) "Competitive Business" means any business operating or granting
franchises or licenses to others to operate outlets which sell fresh baked
breads, croissants, pastries, cookies, brownies, muffins or other bakery
products. Notwithstanding the foregoing, the term "Competitive Business" shall
not be deemed to preclude Licensee, or its officers, directors, employees,
shareholders or partners, or members of their immediate families, from (i)
owning securities in a company if such securities are listed on a stock exchange
or traded on the over-the-counter market and represent two percent (2%) or less
of that class of securities, (ii) operating outlets or selling products under
the name "Cinnabon" or "Dunkin' Donuts", (iii) selling fresh baked products
under various tradenames and trademarks, provided Licensee is not a franchisee
or licensee of such trademarks or tradenames, or (iv) selling fresh baked
products, other than cookies, brownies and muffins under other tradenames or
trademarks at tollroad locations.
(e) "Control", "Controlled" and "Controlling" means the power to
exercise a controlling influence over the management, policies or personnel of a
person, company, partnership, joint venture, corporation or other group of
organized persons.
(f) "Development Obligation" shall have the meaning set forth in
paragraph 6(a,) hereof.
(g) "Development Fee" shall have the meaning set forth in paragraph
6(g) hereof.
(h) "Development Period" means the period of time commencing upon the
execution hereof, and continuing through December 31, 1996.
(i) "Gross Sales" shall have the meaning set forth in paragraph 11 (d)
hereof.
(j) "Licensed Location" or "Licensed Locations" means the tollroad or
airport locations of the Original Stores and such future limited access tollroad
locations and airport locations developed by Licensee and approved in writing by
Licensor, as provided in this Agreement.
(k) "Licensed Names and Marks" means the tradenames, trademarks and
service marks listed and described in Exhibit B.
(l) "Licensed Products" means the items, articles or food products
described on Exhibit A attached hereto or any other bakery goods or cookies
which, pursuant to the terms of this Agreement, become "Licensed Products".
(m) "Licensed Territory" means the United States, Canada and Mexico.
(n) "Licensed Trade Secrets" means all transferable techniques,
processes, methods of production and commercialization, training methods, and
know-how pertaining to and necessary or useful in relation to the composition,
production and sale of Licensed Products. Licensed Trade Secrets shall be deemed
to include, as and when available, all additional techniques, processes, methods
of production and commercialization and other know-how and/or improvements
thereto, whether acquired or reduced to practice by Licensor before or after the
date hereof which relate to the Licensed Trade Secrets and which are necessary
or useful for the formulation, composition, production and sale of Licensed
Products. Licensed Trade Secrets shall not include, and Licensee shall have no
right, title, interest or license in, the recipes or formulations for the
Licensed Products.
(o) "Xxx. Xxxxxx In-Line Display Case" means a 21/2 to 6 linear foot
counter display case located within an existing food operation which sells
Licensed Products from such display case under the Licensed Names and Marks, the
plans and specifications of which have been approved by Licensor, and which has
either (i) a visible oven, or (ii) a dedicated employee "sampling" the Licensed
Products in front of such Case during all peak periods, as agreed to with
Licensor on a site-by-site basis. Further, Licensee agrees that any employee of
Licensee engaged in the sale of Licensed Products from each Xxx. Xxxxxx In-Line
Display Case shall be identified by a badge approved by Licensor bearing one of
the Licensed Names and Marks.
(p) "Xxx. Xxxxxx Mini Store" means a 40 to 100 square foot Cookie Store
which operates as an independent, stand-alone retail unit which may be moved or
is modular and which sells Licensed Products under the Licensed Names and Marks,
and the plans and specifications of which have been approved by Licensor.
(q) "Xxx. Xxxxxx Store" or "Xxx. Xxxxxx Stores" means the Xxx. Xxxxxx
In-Line Display Cases, Xxx. Xxxxxx Mini Stores, Xxx. Xxxxxx Traditional
Cookie Stores and all other sections or areas of Licensed Locations owned
and operated by Licensee which are operated by Licensee as Cookie Stores
and sell Licensed Products under the Licensed Names and Marks.
(r) "Xxx. Xxxxxx Traditional Cookie Store" means a built in 350 to 650
square foot Cookie Store which operates as an independent, stand-alone retail
unit which sells Licensed Products under the Licensed Names and Marks, and the
plans and specifications of which have been approved by Licensor.
(s) "Original License" shall have the meaning set forth in the recitals
hereof.
(t) "Operating Manual" means Licensee's operating manual for Cookie and
Bakery Stores as modified and revised from time to time.
(u) "Original Stores" means the nine (9) existing Xxx. Xxxxxx Stores
opened and operated by Licensee pursuant to the Original License
(v) "Phantom Payment" shall have the meaning set forth in paragraph
6(h) hereof.
(w) "Protected Information" means the Licensed Trade Secrets and
Licensor's recipes, formulations, systems, programs, procedures, manuals,
confidential reports and communications, marketing techniques and arrangements,
purchasing information, pricing policies, quoting procedures, financial
information, employee, customer, supplier and distributor data, all of the
materials or information relating to the business or activities of Licensor
which are not generally known to others engaged in similar businesses or
activities, and all modifications, improvements and enhancements which are
derived from or relate to Licensee's access to or knowledge of any of the above
enumerated materials or information (whether or not any of the above are reduced
to writing or whether or not patentable or protectable by copyright) which
Licensee receives, receives access to, conceives or develops or has received,
received access to, conceived or developed, in whole or in part, directly or
indirectly, in connection with Licensee's license hereunder. Information which
is independently developed by Licensee or which was already in the possession of
Licensee prior to the date of the Original License and which was not obtained in
connection with the transactions contemplated by the Original License or this
Agreement, or information which is or becomes publicly available without breach
of (i) this Agreement, (ii) any other agreement or instrument to which Licensee
is a party or a beneficiary, or (iii) any duty owed to Licensor by Licensee,
shall not be considered Protected Information hereunder.
(x) "Restricted Person" means Licensee, any subsidiary, parent, or
affiliate of Licensee, or any officer or director of the same.
(y) "Store Units" shall have the meaning set forth in paragraph 6(b)
hereof.
(z) "System Standards" shall have the meaning set forth in paragraph 8
hereof.
(aa) "Term" shall have the meaning set forth in paragraph 13 (a) hereof.
2. GRANT OF LICENSE; EXCLUSIVITY
(a) Licensor hereby grants to Licensee and Licensee hereby accepts from
Licensor, upon the terms and conditions hereinafter specified, a license to
employ the Licensed Trade Secrets and the Licensed Names and Marks during the
Term to produce and sell the Licensed Products from Xxx. Xxxxxx Stores at
Licensed Locations in the Licensed Territory.
(b) Subject to paragraph 2(c) below, the license granted pursuant to
this Agreement shall be exclusive to Licensee for the development and operation
of Cookie Stores and Bakery Stores at airports and Cookie Stores on limited
access tollroads in the Licensed Territory, and Licensor agrees not to operate
and not to enter into any franchise, trademark, license, or other arrangement
permitting any person or entity to operate a Cookie Store or Bakery Store at any
such airport or a Cookie Store on any such limited access tollroad in the
Licensed Territory. Notwithstanding the foregoing, Licensor shall not be
precluded from, and expressly retains the right to open, operate and license to
others the right to open and operate, Bakery Stores on any limited access
highways within the Licensed Territory. Further, except to the extent set forth
above, Licensor shall not be precluded from, and hereby expressly retains the
right to, offer for sale and sell, and license others to offer for sale and
sell, any products or services under the Licensed Names and Marks in the
Licensed Territory.
(c) Notwithstanding anything to the contrary in this Agreement,
Licensor shall also have the right to bid for and subsequently operate Cookie
Stores at airports that are granting or bidding a lease for a cookie store
operation only, as opposed to a master airport food concession agreement, if
Licensor has first offered such opportunity to Licensee by written notice
designating the proposed airport location which is granting or bidding a lease
for such cookie store operation and Licensee has not notified Licensor, within
fifteen (15) days, of Licensee's intent to enter a bid for such cookie store
operation. Furthermore, Licensor shall also have the right to continue the
operation of any Cookie Stores operated by Licensor as of the date hereof at any
airport location.
(d) Licensee may propose by written notice to Licensor that Licensee
open a Bakery Store in any Licensed Location hereunder, and Licensor shall
notify Licensee of Licensor's approval or disapproval of such proposal within
thirty (30) days of receiving such notice. Licensor may approve or disapprove
such proposal in its sole unfettered discretion. If Licensor approves such
proposal, such Bakery Store will become a Xxx. Xxxxxx Store hereunder and
Licensee and Licensor hereby agree to amend this Agreement to include as
Licensed Products those products commonly sold by Licensor at Bakery Stores.
(e) Licensee may propose by written notice to Licensor that Licensee
open a Cookie Store at an airport or tollroad plaza located outside of the
Licensed Territory, which notice shall include a description of the location of
the proposed Xxx. Xxxxxx Store, a projection of Gross Sales on a monthly and
annual basis from such location, and such other information as Licensor may
require, and Licensor shall notify Licensee of Licensor's approval or
disapproval of such proposal within thirty (30) days of receiving such notice.
Licensor may approve or disapprove such proposal in its sole unfettered
discretion. If Licensor approves such proposal, Licensor will not authorize any
other person or entity bidding against Licensee for the right to operate
multiple food and/or beverage concessions at such airport or tollroad location
to include in its proposal a concept which operates under the Licensed Names and
Marks. Upon acceptance of Licensee's bid, the Cookie Store (as approved by
Licensor and presented in Licensee's bid) will become a Xxx. Xxxxxx Store
hereunder, and the location at which such Cookie mariotla.008 5
Store is located shall become a Licensed Location hereunder; provided, however,
that (i) the country in which such Cookie Store is located shall not become part
of the Licensed Territory, and (ii) Licensee shall have no rights of exclusivity
with respect to such airport or country, except that Licensor shall not open a
Cookie Store, or license or authorize a third party to open a Cookie Store, at
any international airport wherein Licensee has a master food and/or beverage
concession agreement and is operating a Xxx. Xxxxxx Store under such agreement.
Licensor and Licensee hereby further agree that the first ten (10) Store Units
allocated to any Xxx. Xxxxxx Stores opened pursuant to this paragraph 2(e) shall
be counted toward Licensee's Development Obligation as set forth in paragraph 6
hereof, and that after the first ten (10) Store Units have been so counted,
Store Units attributable to any Xxx. Xxxxxx Stores opened thereafter shall not
count toward Licensee's Development Obligation.
3. TRANSFER OF LICENSED TRADE SECRETS AND ASSISTANCE
(a) Licensor agrees to transmit the Licensed Trade Secrets to Licensee
by any reasonable means upon request.
(b) Licensor will provide a training program on the operation of Xxx.
Xxxxxx Stores to one manager for each Xxx. Xxxxxx Store for the first ten (10)
Xxx. Xxxxxx Stores to be opened and operated by Licensee hereunder. Each manager
attending such training program shall be required to complete all phases of the
training program to Licensor's satisfaction, and to participate in all other
activities required to open a Xxx. Xxxxxx Store. The training program so
furnished shall be similar to the training program utilized to train Licensor's
own store managers, and shall be conducted at Licensor's facilities in Park
City, Utah, or upon Licensee's request, and at Licensee's expense, at one of the
Licensed Locations. Licensee shall be responsible for all out of pocket costs,
including all traveling and living expenses, which Licensor or Licensee, their
managers or employees incur in connection with the training program. After
Licensor has trained the first ten managers as provided above, Licensee hereby
agrees that Licensor may thereafter charge a training fee, which fee shall be
equivalent to the fees charged to other franchisees or licensees for such
training.
(c) Licensee may establish its own training program for Xxx. Xxxxxx
Store managers and Xxx. Xxxxxx Store employees; provided that such training
program is conducted strictly in accordance with the policies, procedures and
methods of Licensor; and provided further that Licensor shall have the right at
any time to attend and inspect such training program to ensure that it complies
with the procedures, methods and qualifications of Licensor. Upon notice from
Licensor that Licensee's training program does not meet the standards required
by Licensor, Licensee will immediately take such action as is required to bring
its training program into compliance with the training requirements of Licensor.
4. CONFIDENTIALITY
(a) Licensee understands that the Protected Information disclosed to
Licensee by Licensor under this Agreement is secret, proprietary and of great
value to Licensor, which value may be impaired if the secrecy of the Protected
Information is not maintained.
(b) Licensor has taken and will continue to take reasonable security
measures to preserve and protect the secrecy of the Protected Information and
Licensee agrees to take all measures reasonably necessary, including, without
limitation, the measures hereinafter specified, to protect the secrecy of such
information in order to prevent it from falling into the public domain or into
the possession of persons not bound to maintain the secrecy of such information.
(c) Licensee agrees not to disclose the Protected Information obtained
pursuant to this Agreement, either directly or indirectly, to any person or
entity, including any subsidiary or affiliate of Licensee (other than Licensee's
key officers and employees to whom disclosure is necessary for employment of the
Licensed Trade Secrets), during the term of this Agreement or at any time
following the expiration or termination of this Agreement.
(d) Licensee shall exercise all other necessary precautions to
safeguard the secrecy of the Protected Information disclosed pursuant hereto and
to prevent the unauthorized disclosure thereof to anyone other than Licensee's
key officers and employees to whom it is necessary to disclose the same for
production and sale of the Licensed Products.
(e) If Licensor sustains its burden of proof that Licensee has
disclosed, divulged, revealed, reported, published, transferred or used, for any
purpose whatsoever, except as authorized herein, any Protected Information, and
Licensee shall assert as a defense that such information (i) was already known
to Licensee prior to the execution of the Original License, (ii) was
independently developed by Licensee, (iii) was disclosed to or by third parties
without violation of this Agreement or similar agreements, (iv) was already in
the public domain prior to the execution of the Original License, or (v) entered
the public domain without violation of this Agreement or the Original License,
Licensee shall bear the burden of proof in establishing such defense.
5. PUBLICITY
Licensee and Licensor agree not to issue any press release or other public
announcement of this Agreement or the transactions contemplated herein without
the prior written approval by each party hereto of the issuance of such
announcement and the text thereof. In the event any such press release or other
public announcement shall be required by law, Licensee and Licensor agree to
issue such release or announcement only after consulting in good faith with one
another with respect to the form and substance of such release or announcement.
6. DEVELOPMENT OBLIGATIONS
(a) During the five (5) year period which commences January 1, 1992,
Licensee agrees to equip, open and operate, at Licensed Locations, a minimum of
one hundred sixty five and six-tenths (165.60) "Store Units" (as described in
(b) below), in accordance with the following schedule:
Calendar Number of
Year Store Units
1992 79.2
1993 28.8
1994 28.8
1995 14.4
1996 14.4
Licensor and Licensee hereby agree that the Original Stores shall count toward
fulfillment of the 1992 Development Obligation in an amount equal to 21.6 Store
Units.
(b) For purposes of this Agreement, the following types of Cookie Stores will
count as the number of Store Units indicated:
Store Configuration Store Units
Xxx. Xxxxxx Traditional Cookie Store 2.40
Xxx. Xxxxxx Mini Store 1.80
Xxx. Xxxxxx In-line Display Case 1.00
Licensee may develop new concepts for retail outlets, which concepts shall be
approved in writing by Licensor prior to any use or test of such concepts, and
will be assigned a number of Store Units based on the estimated annual Gross
Sales of such concept, with one Store Unit being assigned for each $125,000 of
annual Gross Sales from such concept. Licensee shall base such estimated annual
Gross Sales on actual sales from the operations of such concept over a 90 day
test period at the location where such concept will be implemented. If, at the
end of the first year of operations following the 90 day test period, the annual
Gross Sales from the test site(s) of such concepts are greater than or less than
the estimated Gross Sales by more than 10%, the number of Store Units allocated
to such retail concept shall be reallocated based on the actual Gross Sales for
such period.
(c) From and after December 31, 1996, Licensee shall open and operate a
Xxx. Xxxxxx Store at not less than ninety percent (90%) of all airport and
tollroad contracts within the Licensed Territory wherein Licensee thereafter
opens or acquires a multiple unit food and/or beverage operation unless (i)
Licensee is prevented from opening such Xxx. Xxxxxx Store because the landlord
of such facility precludes the offer and sale of any "branded" products thereat
and/or (ii) the remaining term of any lease or
mariolla.008 8 operating agreement with respect to such multiple food and/or
beverage operation is less than two (2) years.
(d) For purposes of this paragraph 6, Licensee shall not have opened
any Xxx. Xxxxxx Store, if such Xxx. Xxxxxx Store is not open for business for a
continuous period of one year or more, not including periods of time such Xxx.
Xxxxxx Store is closed due to (1) strikes, lockouts or other labor difficulties,
acts of God, the requirements of any law, rule or regulation, fire or other
casualty, condemnation, war, riot, insurrection or, any other reason (except
financial) beyond Licensee's reasonable control, or (2) the temporary closure of
such Xxx. Xxxxxx Store due to relocation, restoration, construction, expansion,
alterations, modification, or remodeling. With respect to Xxx. Xxxxxx Stores
opened in addition to the Xxx. Xxxxxx Stores required to be opened pursuant to
the Development Obligation, Licensee agrees to open and operate any such other
Xxx. Xxxxxx Stores so approved pursuant to this Agreement for a period of at
least one year from the opening date of such Xxx. Xxxxxx Store. Notwithstanding
anything to the contrary herein, Licensee may close a Xxx. Xxxxxx Store, at any
time, in its discretion, provided that such Xxx. Xxxxxx Store when closed, will
not count toward the aggregate number of Xxx. Xxxxxx Stores required to be
opened under Licensee's Development Obligation, unless such Store has been
opened and operating for at least one (1) year, as described above.
(e) Licensee further agrees that, during the term of this Agreement, it
will at all times faithfully, honestly and diligently perform its Development
Obligation hereunder, and continuously exert its best efforts to promote and
enhance the development of Licensed Products within the Licensed Territory.
(f) The obligation of Licensee to open Xxx. Xxxxxx Stores as set forth
in this paragraph shall be referred to herein as the "Development Obligation".
(g) If Licensee fails to meet its Development Obligation for 1992,
Licensee shall pay to Licensor a fee ("Development Fee") of $2,500 for each
Store Unit not opened pursuant to its Development Obligation. Payment of such
fee shall be made to Licensor no later than January 31, 1993, and such payment
shall be deemed to cure Licensee's failure to meet its Development Obligation
for 1992, however, it shall not relieve Licensee of its obligation under the
Development Obligation to have open and operating by the end of calendar year
1993, one hundred eight (108) Store Units.
(h) If Licensee is in default of its Development Obligation under
paragraph 6(c) at the end of calendar year 1993, or at any other time
thereafter, it may elect to pay a monthly fee ("Phantom Payment") for each
unopened Store Unit equal to $786.50, on or before the first day of each month,
commencing on the first day of the month following the date on which such Store
Unit was required to be opened pursuant to the Development Obligation and
continuing each month thereafter during the remainder of the Development Period,
until Licensee complies with the Development Obligation. Upon such payment,
Licensee will not be deemed to be in default of its Development Obligation for
the period such payment is made. The monthly fee for each unopened Store Unit
shall be increased by 5 % per annum. Each Store Unit opened shall first be
applied mariotla.008 9 toward curing any deficiencies in the number of Store
Units required to be opened pursuant to the Development Obligation, thereby
reducing the number of Xxx. Xxxxxx Stores for which the Phantom Payment
described in this paragraph may be paid. Notwithstanding the foregoing, if
Licensee is not in compliance with its Development Obligation (i) at the end of
each year or at the end of the Development Period, or (ii) has made Phantom
Payments during any two consecutive years of the Development Period, Licensor
shall be entitled to terminate Licensee's rights of exclusivity hereunder, as
provided in paragraph 13(d) hereof.
(i) If Licensee has opened the aggregate number of Store Units
required to be opened pursuant to paragraph 6(a) of its Development Obligation,
but has thereafter not opened the Xxx. Xxxxxx Stores required to be opened
pursuant to paragraph 6(c) of its Development Obligation, Licensee, at its
option, may pay Phantom Payments for each unopened Store Unit, on or before the
first day of each month, commencing on the first day of the month following the
date on which such Store Unit was required to be opened pursuant to the
Licensee's Development Obligation under paragraph 6(c) above, and continuing
each month thereafter until the earlier of the opening of the Xxx. Xxxxxx Store
at such location or one year, and Licensee will not be deemed to be in breach of
its Development Obligation hereunder, so long as such payments are made;
provided, however, that Licensee shall not be allowed to make Phantom Payments
hereunder with respect to any Xxx. Xxxxxx Stores for a period of time in excess
of one (1) year from the date such Xxx. Xxxxxx Stores were required to be opened
pursuant to paragraph 6(c) hereof, and thereafter Licensee shall no longer have
the option to pay Phantom Payments with respect to such Xxx. Xxxxxx Stores, and
Licensor shall be entitled to terminate Licensee's rights of exclusivity
hereunder, as provided in paragraph 13(d) hereof. For purposes of this
paragraph, a Xxx. Xxxxxx Store required to be opened pursuant to paragraph 6(c)
hereof, shall be considered to consist of 1.8 Store Units.
7. NO COMPETITIVE BUSINESS
In consideration for the License granted hereunder, and the disclosure
of the Protected Information, Licensee agrees that, during the term of this
Agreement and for two (2) years thereafter, in and with respect to tollroad
locations and airport locations in the Licensed Territory, neither Licensee, nor
any Restricted Person, shall:
(i) have any direct or indirect Controlling interest as a
disclosed or beneficial owner in a Competitive
Business, except other Xxx. Xxxxxx Stores operated
under license agreements with Licensor;
(ii) perform services as a director, officer, manager,
employee, consultant, representative, agent or
otherwise for a Competitive Business, except other Xxx.
Xxxxxx Stores operated under license agreements with
Licensor;
(iii)become a licensee or franchisee of a Competitive
Business; or
(iv) operate, or allow others to operate, a Competitive
Business at a tollroad or airport facility owned or
operated by, or under a master concession agreement
or other agreement with, Licensee.
8. SYSTEM STANDARDS
Licensee acknowledges and agrees that the operation of the Xxx. Xxxxxx Stores in
accordance with the specifications, standards, operating procedures and rules
Licensor prescribes from time to time for the operation of Xxx. Xxxxxx Stores
(the "System Standards") is the essence of this Agreement and essential to
preserve the goodwill of the Licensed Names and Marks. Therefore, Licensee will
maintain and operate each Xxx. Xxxxxx Store in accordance with each and every
System Standard, as periodically modified and supplemented by Licensor in its
discretion during the term of this Agreement. System Standards may regulate any
one or more of the following with respect to a Xxx. Xxxxxx Store:
(i) within the confines of the Xxx. Xxxxxx Store within a
Licensed Location, the design, layout, decor,
appearance and lighting; periodic and daily
maintenance, cleaning and sanitation; replacement of
obsolete or worn-out fixtures, furnishings, equipment
and signs; use of interior and exterior signs,
emblems, lettering and logos and the illumination
thereof;
(ii) types, models, brands, maintenance and replacement of
required equipment, fixtures, furnishings and signs;
(iii) approved, disapproved and required Licensed Products;
(iv) designated and approved suppliers (including Licensor
and/or its affiliates) of equipment, fixtures,
furnishings, signs, products, raw materials and
supplies;
(v) use and operation of a point of sale register which
accurately accounts for gross sales;
(vi) marketing, advertising and promotional activities and
materials authorized for use,
(vii) use of the Licensed Names and Marks;
(viii) qualifications, training, dress, appearance and
staffing of employees;
(ix) participation in reasonable market research and testing
of new products and service development programs
prescribed by Licensor;
(x) management by managers who have successfully
completed Licensor's training program; communication
to Licensor of the identities of such managers;
replacement of managers whom Licensor determines to
be unqualified to manage a Xxx. Xxxxxx Store; and
other matters relating to the management of the Xxx.
Xxxxxx Stores and their management personnel;
(xi) with respect to each Xxx. Xxxxxx Store, the
bookkeeping, reporting formats and content of reports
to Licensor of sales, revenues, and related financial
information;
(xii) compliance with applicable laws; obtaining required
licenses and permits; and notification of Licensor in
the event any action, suit or proceeding is commenced
against Licensee in relation to or concerning any
Xxx. Xxxxxx Store or the operation thereof;
(xiii) payment of vendors; terms and conditions of sale and
delivery of any payment for products, raw materials,
supplies and services sold by Licensor, its
affiliates or unaffiliated suppliers.
Licensee agrees that the System Standards may be periodically modified
by Licensor and that such modifications may obligate Licensee to invest
additional capital in each Xxx. Xxxxxx Store and/or incur higher operating
costs, provided that such modifications are made on a system-wide basis.
Licensor will not obligate Licensee to invest additional capital at a time when
such investment cannot in Licensor's reasonable judgment be amortized during the
remaining term of this Agreement. Licensee hereby agrees that System Standards
prescribed from time to time in the Operating Manual, or otherwise communicated
to Licensee in writing, shall constitute provisions of this Agreement as if
fully set forth herein. All references to this Agreement shall include all
System Standards as periodically modified.
9. UNDERTAKINGS BY LICENSEE
Licensee represents, acknowledges, agrees, covenants and warrants as follows:
(a) Unless Licensor consents in writing, Licensee shall use the Licensed
Trade Secrets and the Names and Marks:
(i) only for the purposes of and pursuant to this
Agreement,
(ii) only in a manner consistent with the scope of the
relevant registration of the Licensed Names and Marks
or applications therefor in the Licensed Territory,
(iii)only in the manner permitted and prescribed by
Licensor as set forth herein, mariotla.008 12
(iv) only with respect to Licensed Products, and
(v) only to sell Licensed Products at Xxx. Xxxxxx Stores.
(b) Licensee has no claim, option, or other right whatsoever, direct or
implied, to any like license for any geographic area or location, other than the
Xxx. Xxxxxx Stores within the Licensed Territory.
(c) Licensee recognizes the value of the good will associated with the
Licensed Products, Names and Marks and acknowledges that the Licensed Trade
Secrets, Products, Names and Marks and all rights therein and good will
pertaining thereto belong exclusively to Licensor.
(d) Licensee will not, during the term of this Agreement or thereafter,
attack the title or any rights of Licensor in and to the Licensed Trade Secrets,
Products, Names and Marks or attack the validity of this Agreement, any other
license agreement to which Licensor is a party and/or the Licensed Trade
Secrets, Products, Names and Marks.
(e) Licensee will assist Licensor, at Licensor's cost and expense, to
the extent necessary in the procurement of any protection or to protect any of
Licensor's rights to the Licensed Names and Marks, and Licensor, if it so
desires, may commence or prosecute any claims or suits in its own name or in the
name of Licensee or join Licensee as a party thereto. Licensee shall notify
Licensor in writing of any infringements or imitations by others of the Licensed
Names and Marks which may come to Licensee's attention, and Licensor shall have
the sole right to determine whether or not any action shall be taken on account
of any such infringements or imitations at Licensor's cost and expense. Licensee
shall not institute any suit or take any action on account of any such
infringements or imitations without first obtaining the written consent of
Licensor so to do.
(f) Licensee will do nothing to destroy, impair or in any way impede
the effect and validity of the Licensed Names and Marks.
(g) Licensee will so conduct and operate each Xxx. Xxxxxx Store so as
to preserve the business integrity and good reputation of Licensor; and Licensee
will refrain from all activity involving any significant risk of bringing any of
the Licensed Names and Marks into disrepute or in any way damaging any of the
Licensed Names and Marks.
(h) For the protection of the consumer public and for the further
protection of the good will and trade reputation of Licensor, Licensee will only
sell at Xxx. Xxxxxx Stores, Licensed Products, non-alcoholic beverages and other
condiments consistent with the good quality, reputation and business integrity
of Licensor and in accordance with the System Standards and Operating Manual
(unless Licensor consents in writing to the sale of other goods or products) and
that all Licensed Products manufactured, advertised, and sold by Licensee under
the Licensed Names and Marks shall be subject to and in compliance with the
quality control standards, procedures, specifications, formulations mariotla.008
13 and recipes of Licensor as set forth in the Operating Manual and System
Standards, as such may be varied by Licensor in order to accommodate the
functioning of the Xxx. Xxxxxx Stores at Licensed Locations.
(i) The Licensed Products and other products produced and sold by
Licensee at each Xxx. Xxxxxx Store shall be of high quality and standard,
comparable with that of Licensor's own stores, and of such style, appearance and
quality as to be adequate for the protection and enhancement of the Licensed
Names and Marks and the good will pertaining thereto; will be prepared and sold
in accordance with all applicable laws; and shall not reflect adversely upon the
good name of Licensor or the Licensed Names and Marks.
(j) Licensor may request representative samples of Licensed Products
from Licensee and if, at any time, Licensor deems the quality of such products
to be below the standards of quality historically and currently observed by
Licensor, Licensor may so notify Licensee, in writing, and Licensee will
promptly bring such sub-standard products up to the quality standards set by
Licensor. Licensor's right to oversee the quality of the Licensed Products
herein shall not in any way replace, supersede, or substitute for the quality
control required to be exercised by Licensee hereunder. The exercise of any
action of quality control by Licensor shall be for its sole and exclusive
benefit. Licensor shall not be responsible to Licensee or any other person or
entity for any liability arising out of the exercise or failure to exercise
quality control with respect to the operation of the Xxx.
Xxxxxx Stores.
(k) All employees of Licensee, while engaged in the operation of each
Xxx. Xxxxxx Store, shall at all times during said employment present a neat and
clean appearance and render competent and courteous service to all patrons.
(l) Licensor shall have the right to inspect each Xxx. Xxxxxx Store at
any reasonable time with the right to determine whether Licensee's operations in
connection with the use of the Licensed Names and Marks are consistent with the
standards set forth in this Agreement. All inspections shall be made in a manner
so as to minimize any disruption to the Xxx. Xxxxxx Store subject to such
inspection. If Licensor determines such operations do not comply with such
standards and so notifies Licensee of the same, Licensee shall immediately
thereafter take such steps, actions or activities necessary to bring its
operations into compliance with such standards.
(m) Licensor shall have the right to inspect any of the artwork, signs,
logos, packaging and advertising using the Licensed Names and Marks
(collectively the "Signs") to determine whether the Signs are consistent with
the Licensed Names and Marks and are being used in a manner which promotes the
good reputation and business integrity of Licensor. If Licensor determines that
such Signs or the use thereof are not consistent with the Licensed Names and
Marks or do not promote the good reputation or business integrity of Licensor,
and Licensor so notifies Licensee of the same, Licensee shall thereafter take
such steps or actions as may be necessary to correct the Signs. At Licensee's
request, Licensor will inspect the Signs and approve or disapprove the use of
such Signs, as the case may be, prior to their use. Once Licensee has received
approval of any Signs by Licensor, Licensor agrees not to revoke or withdraw
such approval. Such approval will be deemed only to extend to the Sign as
submitted to Licensor for approval by Licensee, and any material change,
alteration, or other revision to such Sign shall require further approval by
Licensor.
(n) Licensee will cause exterior signage to be placed on the outside of
each Licensed Location at each tollroad plaza wherein a Xxx. Xxxxxx Store is
located. Licensee shall also cause signage to be placed prior to each tollroad
plaza exit wherein a Xxx. Xxxxxx Store is located indicating that a Xxx. Xxxxxx
Store is located at the upcoming tollroad plaza. Such signage shall be
illuminated and shall conform in all respects to the requirements contained in
paragraph 9(m) above. Notwithstanding the foregoing, Licensee shall not have the
obligation to place signage at a tollroad plaza or prior to a tollroad exit if
Licensee is legally precluded from so doing by its lease agreement or operating
agreement with respect to such tollroad location.
(o) That any modification, improvement or enhancement by Licensee to
the Licensed Trade Secrets, Products, Names and Marks (whether or not approved
or developed with the advice or support of Licensor), shall be the exclusive
property of Licensor, and that any Licensed Products so modified, enhanced or
improved shall be sold only with the prior approval of Licensor.
(p) Each Xxx. Xxxxxx Store shall have a manager trained and certified by
Licensor (or Licensee in accordance with Licensor's standards as provided in
paragraph 3 (c) hereof) as a manager and shall also be certified by Licensor (or
in accordance with Licensor's standards as provided in paragraph 3 (c) hereof)
regarding training and quality control procedures.
(q) Licensee will not develop and operate a Xxx. Xxxxxx Store at any
Licensed Location without first receiving the written approval of Licensor,
which approval or disapproval will be given by Licensor within ten (10) business
days of Licensee's written request, and if Licensor does not so respond, the
Xxx. Xxxxxx Store at the proposed Licensed Location shall be deemed approved.
Licensee agrees to give at least ninety (90) days prior written notice of a
planned opening of any Xxx. Xxxxxx Store. The approval by Licensor with respect
to the Xxx. Xxxxxx Stores required to be opened pursuant to Licensee's
Development Obligation, shall be granted by Licensor unless Licensor reasonably
disapproves of the proposed location due to the design or location of such Xxx.
Xxxxxx Store within the facility where such Store is to be located, or due to
the proximity of such Xxx. Xxxxxx Store to that of another Cookie Store.
(r) Licensee will comply with all laws and regulations to which it is
subject in the opening and operation of each Xxx. Xxxxxx Store at its expense,
and that it will cooperate with Licensor in complying with all applicable state
franchising laws and regulations, and will not open a Xxx. Xxxxxx Store in any
state until Licensor has complied with applicable franchising laws or
regulations.
(s) Licensee shall be responsible for obtaining all carts, kiosks
and/or in-line display cases and/or otherwise constructing and developing each
Xxx. Xxxxxx Store, as the case may be, however, Licensor will furnish to
Licensee prototypical plans and specifications for a Xxx. Xxxxxx Store,
including requirements for exterior and interior materials and finishes,
dimensions, design, image, interior layout, decor, fixtures, equipment, signs,
furnishings and color scheme. Licensee shall prepare all required construction
plans and specifications to suit the shape and dimensions of the proposed
premises for each Xxx. Xxxxxx Store, and will ensure that such plans and
specifications comply with all applicable ordinances, building codes, permit
requirements and with lease requirements and restrictions. Licensee shall
further submit any cart design or construction plans and specifications to
Licensor for its approval prior to the commencement of the manufacture of a
cart, kiosk, in-line display case or other construction of a Xxx. Xxxxxx Store.
Licensee will manufacture (or have manufactured), construct and decorate each
Xxx. Xxxxxx Store only in accordance with the plans, specifications, designs and
equipment specifications submitted to and approved by Licensor. Once a cart,
kiosk, or in-line display case or other Xxx. Xxxxxx Store design or modification
is approved, such design shall be deemed approved for future use in all stores.
Licensee hereby agrees that the plans and specifications for any cart, kiosk,
in-line display case or other Xxx. Xxxxxx Store developed and approved pursuant
to this paragraph, may be used by Licensor, its affiliates and any licensee or
franchisee of Licensor and its affiliates, without any further consideration
other than the license granted to Licensee pursuant to this Agreement; provided
that the use of such carts, kiosks, In-line Display Cases or other concepts
developed and approved pursuant to this Agreement are used by Licensor, its
affiliates or licensees and franchisees in a manner which is consistent with the
good quality, reputation and business integrity of Licensor and in accordance
with Licensor's standards and operating procedures for similar types of
locations.
(t) Licensee will, at its sole expense, do or cause to be done the
following with respect to the development of each Xxx. Xxxxxx Store:
(i) Obtain all required building, utility, sign, health,
sanitation, business, environmental and other permits
and licenses required for construction and operation of
each Xxx. Xxxxxx Store;
(ii) Purchase and install all required carts, fixtures,
furnishings, equipment and signs required for operation
of each Xxx. Xxxxxx Store; and
(iii)Purchase all required inventory for the opening of
each Xxx. Xxxxxx Store.
(u) Licensee will only use ingredients, formulas and supplies that
conform to the standards and specifications designated by Licensor. Any
non-proprietary products or ingredients purchased by Licensee shall be purchased
and shall comply with all of Licensor's specifications with respect to such
products.
(v) Licensee represents that it has made its own investigation with
respect to the licenses granted hereunder and is not relying on any
representations or warranties of Licensor other than those made expressly
herein. Licensee hereby affirms that Licensor, its agents, employees and/or
attorneys have not made nor has Licensee relied upon any representation,
warranty or promise with respect to the subject matter of this Agreement not
expressly contained herein. Without limiting the foregoing, Licensee
acknowledges that no warranties or representations, express or implied, have
been made by Licensor, its agents, employees and/or attorneys, or will be relied
upon by Licensee, as to the economic consequences of this Agreement, or any
other fact or matter relating to the relationship of the parties except as set
forth in this Agreement.
(w) Licensee will only sell Licensed Products, drinks and condiments
from Xxx. Xxxxxx Stores under the Licensed Names and Marks.
(x) Licensee will operate each Xxx. Xxxxxx Store opened hereunder in
accordance with the Operating Manual furnished to Licensee pursuant to this
Agreement. Licensee shall keep one copy of the Operating Manual at each Xxx.
Xxxxxx Store, shall keep each such manual current and, in the event of a dispute
relating to the contents of the Operating Manual, the master copy that Licensor
maintains at its principal office shall be controlling, provided that all
updates have been given to Licensee. Licensee hereby agrees that it will only
copy the Operating Manual so as to provide each Xxx. Xxxxxx Store with one copy
thereof, and will not at any time otherwise copy any part of the Operating
Manual.
(y) Upon the execution hereof, and for at least one (1) year
thereafter, that Licensee, or one or more of its current directors or executive
officers, has and will continue to have more than two years of prior management
experience in the operation of food service establishments.
(z) Licensee reasonably anticipates that the sale of food and beverages
from the Xxx. Xxxxxx Stores operated pursuant to this Agreement will not exceed
twenty percent (20%) of the dollar volume of Licensee's projected gross sales
from all operations in the foreseeable future.
(aa) Licensee sells products, supplies and performs services which are
not supplied to Licensee by Licensor pursuant to this Agreement, and which are
not utilized with any equipment, products, supplies or services provided to
Licensee by Licensor pursuant to this Agreement.
(ab) Licensee will not at any time or in any manner whatever, claim or
take any advantage from or benefit of any state or federal franchise law which
may arise from, or affect the terms of, this Agreement, and Licensee hereby
expressly waives, to the extent permitted by law, all benefit of, or cause of
action under any such state or federal franchise law.
(ac) Upon notice from Licensor not to open a Xxx. Xxxxxx Store because
such opening would violate a state's applicable franchise laws, Licensee will
not open any Xxx. Xxxxxx Store until Licensor has complied with all applicable
franchise laws for the state in which such Xxx. Xxxxxx Store is to be located,
or until Licensor has determined that the opening of such Xxx. Xxxxxx Store is
exempt from that state's applicable franchise laws.
(ad) Licensee has full power and authority under its Articles of
Incorporation and Bylaws to enter into this Agreement and the transactions
contemplated hereby, and that the entering into of this Agreement does not
contravene, infringe upon or constitute a default under any agreement or
covenant to which Licensee is a party or violate or conflict with any law or
regulation by which it is bound.
(ae) No filing, registration, approval or consent heretofore not
obtained of any governmental agency or instrumentality or of any stock exchange
authority is required for the authorization, delivery or performance by Licensee
of this Agreement.
10. UNDERTAKINGS OF LICENSOR
Licensor represents, acknowledges, agrees, covenants, and warrants as follows:
(a) That the Licensed Trade Secrets constitute and shall always
constitute all processes, procedures and rights which are necessary or useful to
make, have made and to sell the Licensed Products;
(b) That Licensor has the full right and power under its Bylaws and
Certificate of Incorporation to grant Licensee the license as contemplated
herein, and perform the same and that execution of this Agreement by Licensor
does not infringe or constitute a default under any agreement or covenant
(subject to any lease or radius restrictions with respect to Xxx. Xxxxxx Stores)
to which Licensor is a party or violate or conflict with any law or regulation
by which it is bound;
(c) That Licensor will take (or cause to be taken) at its cost, all
steps necessary to:
(i) maintain the confidentiality of the Licensed Trade
Secrets in accordance with all relevant laws,
(ii) prepare, execute, and file all documents, notices,
applications, registrations and timely renewals hereof
or other documents required or necessary for the
protection of the Licensed Names and Marks; and
(iii) defend the Licensed Names and Marks.
(d) No filing, registration, approval or consent heretofore not
obtained from any governmental agency or instrumentality or of any stock
exchange authority is required for the authorization, execution, delivery or
performance by Licensor or this Agreement.
(e) Licensor will loan to Licensee during the term of this Agreement
one copy of the Operating Manual. The Operating Manual shall contain mandatory
and suggested specifications, standards and operating procedures that Licensor
prescribes from time to time for Xxx. Xxxxxx Stores, and information relating to
Licensee's other obligations under this Agreement. The Operating Manual may be
modified from time to time to reflect changes in the image, specifications,
standards, procedures, Licensed Products and System Standards for Xxx. Xxxxxx
Stores. Licensor shall timely furnish all updates to Licensee.
(f) Licensor will make available to Licensee Licensor's prototypical
plans for Xxx. Xxxxxx Stores (including carts).
(g) Licensor agrees to allow Licensee to contract directly with
Licensor's approved vendors, manufacturers and suppliers and that Licensee shall
have the option of negotiating distribution systems directly with said approved
vendors, manufacturers and suppliers.
(h) None of the Licensed Trade Secrets, Licensed Names and Marks, or
Protected Information violate or infringe upon any trademark, tradename, patent
or other property right held by any third party.
(i) Licensor will use commercially reasonable efforts to cause
sufficient ingredients and/or frozen dough products to be made available to
Licensee to enable each Xxx. Xxxxxx Store to operate as herein contemplated and
to meet the reasonably anticipated demand of patrons and customers of
Licensee-operated Xxx. Xxxxxx Stores. Licensor further agrees that it will use
commercially reasonable efforts to cause such frozen dough to be of the same
type and quality as the frozen dough used by Licensor to manufacture similar
products in its own Xxx. Xxxxxx Stores.
(j) Licensee may use frozen dough to produce Licensed Products,
provided that the specifications for such dough and the supplier thereof are
approved in writing by Licensor.
(k) Licensee shall have the right to present to Licensor other
manufacturers or distributors of frozen dough products for Licensor's
consideration for the manufacture of frozen dough used to produce Licensed
Products. If Licensor is supplying Licensee with its needs of frozen dough
products for Licensed Products, Licensor, in its sole discretion, may thereafter
decide whether to designate such manufacturers as approved manufacturers of
frozen dough products hereunder. If Licensor is unable to cause sufficient
ingredients and/or frozen dough products to be made available to Licensee to
enable each Xxx. Xxxxxx Store to operate as herein contemplated and to meet the
reasonably anticipated demand of patrons and customers of such Xxx. Xxxxxx
Stores, Licensor shall reasonably approve or mariotla.008 19 disapprove the
manufacturer presented to Licensor as provided above, subject to Licensor
entering into a supply agreement with such proposed manufacturer wherein such
manufacturer agrees to manufacture frozen dough products in accordance with the
quality standards, specifications, procedures and other standards of Licensor.
(1) That as of the date of this Agreement, it has not granted any
rights to the Licensed Trade Secrets or the Licensed Names and Marks to any
third party for the operation of Cookie Stores on limited access tollroads or in
airports located within the Licensed Territory;
(m) That, except as otherwise provided in this Agreement, during the
Term hereof, Licensor shall refrain from disclosing or making available the
Licensed Trade Secrets and/or the Names and Marks or any portion thereof, to any
third party for use at the Licensed Locations;
(n) Licensor will cooperate with Licensee in Licensee's obtaining any
necessary consents with respect to leases, operating agreements, management
agreements, or other agreements giving Licensee the right to possession of the
Licensed Locations from any toll road or airport authority, landlord or client,
or other person or entity controlling the Licensed Location.
(o) Licensor acknowledges that each Xxx. Xxxxxx Store may be one of
several food service and related businesses operated by Licensee at a tollroad
rest stop facility or airport constituting a Licensed Location. Each Xxx. Xxxxxx
Store may be under a lease, operating agreement, management agreement, or other
agreement giving Licensee the right to possession of the Licensed Location (the
"Lease") from a tollroad or airport authority, or other person or entity
controlling the Licensed Location (the "Landlord"), and consent of the Landlord
may be required prior for any refurbishing, renovation, menu changes, signage
changes, or changes to the Licensed Location or the Xxx. Xxxxxx Store. Licensor
will cooperate with Licensee in obtaining any necessary Landlord consents.
(p) Licensor acknowledges that presently and in the future Licensee may
operate and/or license others to operate restaurant operations or other food
service outlets under various tradenames including, without limitation, Xxx
Xxxxxx, Hot Shoppes, Gino's, Popeyes, Xxxxxxxx, Xxxxxx Xxxxxxx, Burger King,
Dunkin' Donuts, Xxx Xxxxxx Donuts, Nathans, TCBY Yogurt, Sbarro's, Allie's,
Wags, Bickfords, Nathan's and Big Boy, and that nothing in this Agreement shall
be deemed to restrict Licensee from operating or licensing any restaurant or
other operation under any tradename or at any location. Licensor also
acknowledges that Licensee has independently developed, and will continue to
independently develop, recipes for cookies, brownies and other food items which
are similar to those which also happen to be normally sold as a part of
Licensor's system. Licensor further acknowledges that Licensee shall continue to
develop and sell such independently developed recipes, provided that Licensee
shall at all times adhere to the provisions of paragraph 4 hereof.
11. PRODUCT PURCHASES, PAYMENTS AND ROYALTIES
As part of the consideration for the disclosure of the Licensed Trade Secrets
and the license of the Licensed Names and Marks hereunder and for the right and
license to use the same:
(a) Licensee agrees to purchase all ingredients and/or frozen dough
products that are proprietary to Licensor from Licensor, a supplier designated
by Licensor or distributors designated by Licensor.
(b) The purchase price for all Licensed Products purchased by Licensee
shall be equal to the price billed by Licensor (or its supplier or distributor)
to its own stores for such Products (not including shipping and handling) (the
"Product Price"). The Product Price may be adjusted on a monthly basis by
Licensor, its suppliers or distributors upon notice, effective upon the first
day of the succeeding month. Licensee shall pay the Product Price to Licensor,
or its distributor, in accordance with such selling parties then current selling
practices.
(c) Payment of the initial setup license fee of $1,360,000, pursuant to
the Original License, shall be credited toward payment of the site license fees
hereunder for the first 153.6 Store Units to be opened pursuant to the
Development Obligation hereunder. For each Store Unit opened by Licensee after
the initial 153.6 Store Units, Licensee shall pay to Licensor an additional
setup license fee of $8,333 per Store Unit, payable upon the opening of the Xxx.
Xxxxxx Store for which such Store Unit is allocated; provided that a Xxx. Xxxxxx
Store which is opened within the same airport terminal or in the same tollroad
plaza within two (2) months of the closure of a Xxx. Xxxxxx Store at such
airport or tollroad plaza shall not be deemed the opening of a new Xxx. Xxxxxx
Store hereunder. Licensee hereby acknowledges and agrees that each such fee is
fully earned when paid and that Licensee shall not be entitled to a refund of
all or any portion thereof under any circumstances.
(d) Commencing on the date hereof, and continuing throughout the Term
of this Agreement, Licensee shall pay to Licensor a royalty fee (the "Royalty
Payment"), Determined separately with respect to each Xxx. Xxxxxx Store, equal
to seven and fifty five one Hundredths percent (7.55%) of all Gross Sales
derived from each Xxx. Xxxxxx Store opened
and operated by Licensee hereunder. For purposes hereof, the term "Gross Sales"
shall include, at the actual selling price, all sales of Licensed Products from
each Xxx. Xxxxxx Store, all sales, at the actual selling price, of drinks and
other products sold from beverage units, display cases, or refrigeration or
other units which are otherwise contained within a Xxx. Xxxxxx Store, but shall
not include the cost of food and beverages provided to employees as an incident
of their employment, the sales price of beverages sold from beverage dispensing
units which are not contained within a Xxx. Xxxxxx Store and are also used to
supply beverages to other retail concepts within a Licensed Location, monies
refunded upon return of merchandise, nor any sales taxes or similar taxes
collected from customers and turned over to the governmental authority imposing
the tax.
(e) Licensee shall pay the Royalty Payment to Licensor within twenty
(20) days after the close of each of Licensee's four week accounting periods
during each of Licensee's fiscal years. Along with such Royalty Payments,
Licensee shall furnish to mariotla.008 21 Licensor an accurate statement of the
Gross Sales from each Xxx. Xxxxxx Store at each Licensed Location for the
preceding period for which such sales occurred.
(f) Licensee shall pay interest on all overdue amounts (whether for
Royalty Payments, Phantom Payments, license fees or otherwise) (the "Interest
Rate") at the lesser of (i) the annual rate from time to time publicly announced
by Citibank, N.A. as its "base rate" (or any successor rate) plus two percent
(2%) or (ii) the highest applicable legal rate, from the due date of such
amounts until paid; provided that, Licensee shall not be required to pay such
interest at the Interest Rate on overdue amounts in the event such overdue
amounts are paid in full within five (5) days of the due date.
12. ACCOUNTING, REPORTS AND FINANCIAL STATEMENTS
(a) Licensee shall keep true and accurate books of account with respect
to each Xxx. Xxxxxx Store, in accordance with United States generally accepted
accounting principles, consistently applied. Within twenty (20) days after the
end of each of Licensee's four week accounting periods, Licensee shall deliver
to Licensor a written statement, prepared, signed and certified to be true and
correct by Licensee's chief financial officer, or his designee, setting forth
the Gross Sales of each Xxx. Xxxxxx Store, including sufficient information and
detail to confirm the calculations. In addition, Licensee shall furnish to
Licensor, on such forms as Licensor may prescribe from time to time, annual
reports showing each Xxx. Xxxxxx Store's Gross Sales, and all Royalty Payments,
Phantom Payments and license fees paid (or, if not paid, that such fees are
owed) pursuant to this Agreement, and such other information as Licensor may
reasonably request. Each report and financial statement shall be signed and
verified by an authorized officer of Licensee in the manner Licensor prescribes.
Licensor shall have the right to disclose data derived from such reports.
(b) Licensor shall have the right at any time during business hours,
and without prior notice to Licensee, to inspect and audit, or cause to be
inspected and audited, the business records, bookkeeping and accounting records,
sales and other records of each Xxx. Xxxxxx Store and the books and records of
Licensee as they pertain to each Xxx. Xxxxxx Store. Licensee shall fully
cooperate with Licensor's representatives and independent accountants to conduct
any such inspection or audit.
13. TERM AND TERMINATION
(a) The initial term of this Agreement shall commence on the date
hereof and continue through December 31, 1996. The term of this Agreement shall
be extended and will automatically renew for one three (3) year term on December
31, 1996 and three (3) consecutive five (5) year terms thereafter upon ninety
(90) days written notice by Licensee of its intent to so renew this Agreement,
unless Licensee is not in compliance with its Development Obligation at the time
of renewal or this Agreement is otherwise terminated as provided below.
(b) If Licensee defaults in the payment of any Product Price, Royalty
Payment, Development Fee or other material obligation to Licensor when the same
becomes due and payable hereunder, and such default continues unremedied for
three (3) business days from the date such obligation is due, then this
Agreement and the license granted hereunder may be terminated upon notice by
Licensor effective upon receipt of such notice, without prejudice to any and all
other rights and remedies Licensor may have hereunder or by law provided, and
all rights of Licensee hereunder shall cease.
(c) If Licensee fails to perform in accordance with any other material
terms or conditions contained in this Agreement and such default continues for
thirty (30) days after Licensee receives written notice of default, then this
Agreement and the license granted hereunder may be terminated upon notice by
Licensor effective upon receipt of such notice, without prejudice to any and all
other rights and remedies Licensor may have hereunder or by law provided, and
all rights of Licensee hereunder shall cease.
(d) If Licensee (i) fails to have open and operating a minimum of 165.6
Store Units at any time after the Development Period for a period of six (6)
consecutive months, (ii) fails to meet its Development Obligation as set forth
in paragraph 6(a) hereof and make Phantom Payments as provided in paragraph 6(h)
hereof during any calendar year or as of the end of the Development Period, or
(iii) fails to meet its Development Obligation as set forth in paragraph 6(c)
hereof and make Phantom Payments as provided in paragraph 6(i) hereof, and such
failure continues for thirty (30) days after Licensee receives written notice of
default, then Licensor, at its sole option and in its sole discretion, may
terminate any exclusive rights or rights of first offer granted to Licensee
pursuant to paragraph 2 hereof, and upon such termination Licensor shall be free
to enter into licensing arrangements with any other party for the development
and operation of Cookie Stores in airports and at tollroad locations, and the
exercise of such termination of exclusivity shall be the exclusive remedy of
Licensor with respect to such failure, but shall not prejudice any and all other
rights and remedies Licensor may have hereunder or at law for any other breach
of this Agreement.
(e) If Licensee fails to perform in accordance with any material System
Standard which adversely affects the quality of any Licensed Product, or the
health and safety of employees or customers, and such default is not remedied
immediately upon notice (and in no event later than 24 hours after receipt of
such notice), then this Agreement may be terminated upon notice by Licensor
effective upon receipt of such notice, without prejudice to any and all other
rights and remedies Licensor may have hereunder, or by law provided, and all
rights of Licensee hereunder shall cease.
(f) If Licensee is determined to be insolvent, or files a petition in
bankruptcy or for reorganization, or takes advantage of any insolvency statute,
or makes an assignment for the benefit of creditors, or undertakes any similar
action, under any federal, state or foreign bankruptcy, insolvency or similar
law, then in any such event this Agreement shall immediately terminate as to
Licensee and the license herein granted shall not constitute an asset in
reorganization, bankruptcy, or insolvency which may be mariotla.008 23 assigned
or which may accrue to any court or creditor appointed referee, receiver, or
committee.
(g) If Licensor becomes insolvent or bankrupt or fails to perform in
accordance with any material term or condition of this Agreement, and such
default continues for thirty (30) days after Licensor receives written notice of
default, then this Agreement and the License granted hereunder may be terminated
upon notice by Licensee effective upon receipt of such notice, without prejudice
to any and all other rights and remedies Licensee may have hereunder or by law
provided.
(h) If Licensor fails to perform in accordance with any material term
or condition of this Agreement and such default precludes Licensee from meeting
its Development Obligation, Licensee shall be relieved of its obligations
thereunder until such default shall be cured so that Licensee can proceed to
fulfil its Development Obligation and the Development Period shall be extended
by the amount of time during which Licensee was so precluded from meeting the
Development Obligation.
(i) On any cancellation, termination or expiration of this Agreement as to
Licensee, Licensee agrees to immediately pay to Licensor all amounts due and
owing hereunder (including, but not limited to, all Royalty Payments, Phantom
Payments, if any, licensee fees and payments for Licensed Products) and to
return all Protected Information, confidential documents and other material
supplied by Licensor to Licensee, and Licensee agrees never to use, disclose to
others, nor assist others in using the Licensed Trade Secrets or other Protected
Information. Further, Licensee agrees to return the Operating Manual and all
copies thereof to Licensor. Licensee agrees to cooperate fully with Licensor in
the return of all such documents and materials, and to take all reasonable steps
requested by Licensor to prevent the disclosure or use of such documents or
materials by unauthorized persons following termination of this Agreement.
(j) Upon cancellation, termination or expiration of this Agreement,
Licensee will be deemed to have automatically and irrevocably assigned,
transferred, and conveyed to Licensor any rights, equities, good will, titles or
other rights in and to the Licensed
Trade Secrets, Products, Names and Marks which may have been obtained by
Licensee or which may have vested in Licensee in pursuance of any endeavors
covered hereby, and Licensee will execute any instruments requested by Licensor
to accomplish or confirm the foregoing. Any such assignment, transfer or
conveyance shall be without other consideration than the mutual covenants and
considerations of this Agreement. Licensee further agrees that it shall
forthwith discontinue the use of all Licensed Names and Marks and the use of any
and all Signs, paper goods and other objects bearing any Licensed Names and
Marks and shall make such modifications or alterations to each Xxx. Xxxxxx Store
as may be necessary to de-identify such Xxx. Xxxxxx Store so that each location
operated as a Xxx. Xxxxxx Store will not be confusingly similar to its former
appearance as a Xxx. Xxxxxx Store.
14. INDEMNIFICATION
(a) Licensor agrees to indemnify, defend and hold Licensee harmless
from any claims, liabilities, lawsuits, demands, actions, damages and expenses
(including reasonable attorneys fees) (collectively, "Damages") arising from or
out of any breach of the agreements, covenants, representations or warranties of
Licensor contained in this agreement or arising out of or attributable to the
negligence of Licensor.
(b) Licensee agrees to indemnify, defend and hold Licensor harmless
from and against any and all Damages arising from or out of (i) any breach of
the agreements, covenants, representations, or warranties of Licensee contained
in this Agreement, (ii) any damages or injury to any person, including, but not
limited to customers, employees of Licensee, employees of Licensor and members
of the public, suffered and incurred in or about any Licensed Location or its
premises wherein Licensee produces or sells the Licensed Products or otherwise
utilizes the Licensed Names and Marks, (iii) products, liabilities or defective
manufacturing of the Licensed Products, other than any such claims to the extent
attributable to the negligence of Licensor, or (iv) the activities hereunder of
Licensee, other than any such Damages to the extent attributable to the
negligence of Licensor.
15. BINDING EFFECT, ASSIGNMENT
(a) The terms, covenants and conditions of this Agreement shall inure
to the benefit of, and shall be binding upon, the parties hereto and their
respective successors and permitted assigns.
(b) Except as provided in paragraph 15 (d) below, neither Licensor nor
Licensee may assign, sublicense or otherwise transfer their rights under this
Agreement without the prior written consent of the other party, which consent
may be withheld in such party's sole discretion.
(c) Any assignment, sublicense or other transfer by Licensee of any of
its rights under this Agreement without the prior written consent of Licensor
(which consent shall be in Licensor's sole discretion) is prohibited and will be
deemed to be null and void.
(d) Licensee or Licensor may assign their respective rights and
obligations hereunder to any parent corporation which owns at least eighty
percent (80%) of such assigning party, an eighty percent (80%) owned subsidiary
corporation of such assigning party, an eighty percent (80%) owned subsidiary of
a parent of such assigning party if such parent owns at least eighty percent
(80%) of the subsidiary to which such agreement is to be assigned, or to such
other business organization which shall succeed to substantially all of the
assets and business of Licensee or Licensor, respectively, provided that, in the
case of any assignment by Licensee, the assignee is not owned or controlled by a
Competitive Business. Licensee shall further be permitted to perform its
obligations hereunder through a wholly owned subsidiary of Licensee or a wholly
owned subsidiary
thereof, or through a partnership which has Licensee (or a wholly owned direct
or indirect subsidiary) as the managing general partner thereof (provided that
none of the other partners of such partnership own, operate or are licensees or
partners of a Competitive Business.
(e) Nothing contained herein shall be construed to limit Licensor's
ability and right to assign any royalties or payments received hereunder as
security for indebtedness; provided that any such assignment shall not affect
Licensee's rights under this Agreement.
16. ADVERTISING AND PROMOTIONAL DOCUMENTATION AND EXPENSES
(a) Licensor shall have the right to approve or disapprove any and all
advertising and promotional materials used, or proposed to be used, by Licensee
in the advertising and promotion of any of the Licensed Products. Prior to the
use of any material, whether written for in-store promotions, print media or for
television or radio spots, Licensee will submit such material to Licensor for
its approval. In that regard, Licensor shall approve, prior to the development
of final television, radio or printed advertisements, the final "story boards"
with respect to television advertising, the final "script" with respect to radio
spots, and the final "layouts" with respect to printed advertisements. Licensor
shall also approve the actors or actresses used in connection with any such
advertising campaigns; provided, that Licensee shall have the right to make
minor variations in promotional, marketing and advertising materials used in
connection with the approved promotional campaigns. All advertisements and
advertising campaigns shall conform in all material respects to the approvals
given by Licensor. If Licensor has not disapproved of such advertising within
five (5) business days from its receipt of such advertising material, such
advertising material will be deemed approved.
(b) Licensor agrees to make available to Licensee all master
advertising documents developed and used by Licensor in the United States in
relation to the sale of the Licensed Products and/or the promotion of the
Licensed Names and Marks. Licensee agrees to pay the cost of reproducing such
advertising documents so provided.
(c) Licensee agrees that all advertising, promotion and marketing by
Licensee shall be completely clear and factual and not misleading and shall
conform to the highest standards of ethical marketing and promotion policies
which may be prescribed from time to time by Licensor. Licensee further agrees
to use the registration symbol of "(R)" in connection with its use of the
Licensed Names and Marks. Licensee agrees to refrain from any business or
marketing practice which may be injurious to the business of Licensor, and the
good will associated with the Licensed Names and Marks.
(d) If, during the term of this Agreement or any extension thereof,
Xxxxx X. Xxxxxx is not in the active full time employment of Licensor, and
Licensee thereafter compensates Xxxxx X. Xxxxxx for any services performed by
her in the promotion, marketing or advertising of any Licensed Products, any
Royalties or other amounts payable to Licensor may be reduced by Licensee by the
amount of compensation so paid to Xxxxx X. Xxxxxx, to the extent that such
compensation is fair and reasonable in light of mariotla.008 26 the value of the
services provided. Licensee may not reduce the Royalties for any contract year
by more than fifteen percent (1 5 %) of the aggregate Royalties for such
contract year multiplied by a fraction, the numerator of which is the number of
days remaining in such contract year following the earlier of the day on which
Xxxxx X. Xxxxxx executes an Agreement to provide services as contemplated by
this paragraph or the first day on which she provides such services and the
denominator of which is the number of days in such contract year.
(e) Licensee agrees that each Xxx. Xxxxxx Store shall participate in
promotional
activities designated by Licensor and relating to the sale of the Licensed
Products and the promotion of the Licensed Names and Marks which promotions
require Licensee to provide Licensed Products to customers at no charge in
exchange for a coupon, card or other voucher (e.g., cookie cards). Licensor
shall reimburse Licensee the direct costs of goods sold by Licensee in
connection with such promotional activities up to one-tenth of one percent (0. 1
%) of gross sales of each Xxx. Xxxxxx Store which participates in such
promotional activities and shall reimburse Licensee for the retail value for
goods sold above such amount; provided that Licensee complies with the
reasonable requests of Licensor to document Licensee's request for reimbursement
(e.g., furnishing to Licensor of the cookie cards received by Licensee at each
Xxx. Xxxxxx Store for which reimbursement is requested). Licensor may, in
Licensor's sole discretion, exempt from participation in the above-described
promotional activities one or more Xxx. Xxxxxx Stores. Other than as provided in
this paragraph, Licensee shall have no obligation to expend monies for
advertising or promotional activities with respect to the Xxx. Xxxxxx Stores.
17. NOTICES
All notices provided by this Agreement shall be in writing and shall be
given by overnight courier, facsimile transmission, or by personal delivery, by
one party to the other, addressed to such other party at the applicable address
set forth below, or to such other address as may be given for such purpose by
such other party by notice duly given hereunder. Notice shall be deemed properly
given on the date of delivery:
To Licensee: Marriott Corporation
00000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Law Department
FAX (000) 000-0000
To Licensor: Xxx. Xxxxxx Development Corporation
000 Xxxx Xxxxxx
P. 0. Xxx 0000
Xxxx Xxxx, Xxxx 00000-0000
Attention: Corporate Secretary
FAX (000) 000-0000
18. GENERAL PROVISIONS
(a) It is understood and agreed by the parties hereto that this
Agreement does not create a fiduciary relationship between them, that Licensor
and Licensee are and shall be independent contractors and that nothing in this
Agreement is intended to make either party a general or special agent, joint
venturer, partner or employee of the other for any purpose whatsoever. Licensee
shall conspicuously identify itself in all dealings with customers, suppliers,
public officials, Xxx. Xxxxxx Store personnel and others as the owner of the
Xxx. Xxxxxx Store under a license granted by Licensor and shall place such other
notices of independent ownership on such forms, business cards, stationery,
marketing and other materials as Licensor may require from time to time.
(b) Licensee shall not employ any of the Licensed Names and Marks in
signing any contract or applying for any license or permit or in a manner that
may result in Licensor's liability for any of Licensee's indebtedness or
obligations, nor may Licensee use the Licensed Names and Marks in any way not
expressly authorized by Licensor. Except as expressly authorized in writing,
neither Licensor nor Licensee shall make any express or implied agreements,
warranties, guarantees or representations or incur any debt in the name or on
behalf of the other, represent that their relationship is other than licensor
and licensee or be obligated by or have any liability under any agreements or
representations made by the other that are not expressly authorized in writing.
Licensor shall not be obligated for any damages to any person or property
directly or indirectly arising out of the operation of a Xxx. Xxxxxx Store or
Licensee's business authorized by or conducted pursuant to this Agreement.
(c) Except as expressly provided to the contrary herein, each
paragraph, term and provision of this Agreement, and any portion thereof, shall
be considered severable and if, for any reason, any such provision of this
Agreement is held to be invalid, contrary to or in conflict with any applicable
present or future law or regulation in a final, unappealable ruling issued by
any court, agency or tribunal with competent jurisdiction in a proceeding to
which Licensor is a party, that ruling shall not impair the operation of, or
have any other effect upon, such other portions of this Agreement as may remain
otherwise intelligible, which shall continue to be given full force and effect
and bind the parties hereto, although any portion held to be invalid shall be
deemed not to be a part of this Agreement from the date the time for appeal
expires, if Licensee is a party thereto, otherwise upon Licensee's receipt of a
notice of non-enforcement thereof from Licensor. If any covenant herein which
restricts competitive activity is deemed unenforceable by virtue of its scope in
terms of area, business activity prohibited and/or length of time, but would be
enforceable by reducing any part or all thereof, Licensee and Licensor agree
that the same shall be enforced to the fullest extent permissible under the laws
and public policies applied in the jurisdiction in which enforcement is sought.
(d) If any applicable and binding law or rule of any jurisdiction
requires a greater prior notice of the termination of this Agreement than is
required hereunder, or the taking of some other action not required hereunder,
or if, under any applicable and binding law or rule of any jurisdiction, any
provision of this Agreement or any System mariotla.008 28 Standard is invalid or
unenforceable, the prior notice and/or other action required by such law or rule
shall be substituted for the comparable provisions hereof, and Licensor shall
have the right, in its sole discretion, to modify such invalid or unenforceable
System Standard to the extent required to be valid and enforceable. Licensee and
Licensor each agree to be bound by any promise or covenant imposing the maximum
duty permitted by law which is subsumed within the terms of any provision
hereof, as though it were separately articulated in and made a part of this
Agreement, that may result from striking from any of the provisions hereof, or
any System Standard, any portion or portions which a court may hold to be
unenforceable in a final decision to which Licensor is a party, or from reducing
the scope of any promise or covenant to the extent required to comply with such
a court order or arbitration award. Such modifications to this Agreement shall
be effective only in such jurisdiction, unless Licensor elects to give them
greater applicability, and shall be enforced as originally made and entered into
in all other jurisdictions.
(e) Licensor and Licensee may by written instrument unilaterally waive
or reduce any obligation of or restriction upon the other under this Agreement,
effective upon delivery of written notice thereof to the other or such other
effective date stated in the notice of waiver. Any waiver granted by either
party shall be without prejudice to any other rights such party may have, will
be subject to continuing review by the waiving party and may be revoked, in such
party's sole discretion, at any time and for any reason, effective upon delivery
to such party of ten (10) days' prior written notice.
(f) Licensor and Licensee shall not be deemed to have waived or
impaired any right, power or option reserved by this Agreement (including,
without limitation, the right to demand exact compliance with every term,
condition and covenant herein or to declare any breach thereof to be a default
and to terminate this Agreement prior to the expiration of its term) by virtue
of any custom or practice of the parties at variance with the terms hereof; any
failure, refusal or neglect of Licensor or Licensee to exercise any right under
this Agreement or to insist upon exact compliance by the other with its
obligations hereunder, including, without limitation, any System Standard; any
waiver, forbearance, delay, failure or omission by Licensor to exercise any
right, power or option, whether of the same, similar or different nature, with
respect to other Cookie or Bakery Stores; or Licensor's acceptance of any
payments due from Licensee after any breach of this Agreement.
(g) Neither Licensor nor Licensee shall be liable for loss or damage or
deemed to be in breach of this Agreement if their failure to perform obligations
results from:
(i) compliance with any law, ruling, order, regulation,
requirement or instruction of any federal, state,
municipal or foreign government or any department or
agency thereof;
(ii) acts of God;
(iii) fires, strikes, embargoes, war or riot; or
(iv) any other similar event or cause.
Any delay resulting from any of said causes shall extend performance accordingly
or excuse performance, in whole or in part, as may be reasonable, except that
said causes shall not excuse payments of amounts owed at the time of such
occurrence (including payment of any Phantom Payments, Royalty Payments or
Product Price payments) or payments due for Royalty Payments or the Product
Price for Licensed Products on any sales thereafter.
(h) Notwithstanding anything to the contrary contained in this
Agreement, Licensor and Licensee shall each have the right in a proper case to
obtain temporary restraining orders and temporary or preliminary injunctive
relief from a court of competent jurisdiction. Licensee agrees that Licensor may
have such temporary or preliminary injunctive relief without bond.
(i) The rights of Licensor and Licensee hereunder are cumulative and no
exercise or enforcement by Licensor or Licensee of any right or remedy hereunder
shall preclude the exercise or enforcement by Licensor or Licensee of any other
right or remedy hereunder to which Licensor or Licensee is entitled by law to
enforce.
(j) If a claim for amounts owed by Licensee to Licensor or its
affiliates is asserted in any judicial proceeding or appeal thereof, or if
Licensor or Licensee is required to enforce this Agreement in a judicial
proceeding or appeal thereof, the party prevailing in such proceeding shall be
entitled to reimbursement of its costs and expenses, including reasonable
accounting and legal fees, whether incurred prior to, in preparation for, or in
contemplation of the filing of any written demand, claim, action, hearing or
proceeding to enforce the obligations of this Agreement. If Licensor incurs
expenses in connection with Licensee's failure to pay when due amounts owing to
Licensor, to submit when due any reports, information or supporting records or
otherwise to comply with this Agreement, including, but not limited to legal and
accounting fees, Licensee shall reimburse Licensor for any such costs and
expenses which it incurs.
(k) Except to the extent governed by the United States Trademark Act of
1946 (Xxxxxx Act, 15 U.S.C. xx.xx. 1051 et seq.) or other federal law, this
Agreement, and the relationship between Licensee and Licensor, shall be governed
by the laws of the State of Utah.
(l) Licensee and Licensor hereby irrevocably consent and agree that any
legal action, suit or proceeding arising out of or in any way in connection with
this Agreement, or which is an appeal therefrom, may be instituted or brought in
the Federal District Court for the District of Utah and Licensee and Licensor
hereby irrevocably consent and submit to, for themselves and in respect of their
property, generally and unconditionally, the jurisdiction of such Court, and to
all proceedings in such Court. Further, Licensee and Licensor irrevocably
consent to actual receipt of any summons and/or legal process at
their respective addresses as set forth in this Agreement as constituting in
every respect sufficient and effective service of process in any such legal
action or proceeding. Licensee and Licensor further agree that final judgment in
any such legal action, suit or proceeding shall be conclusive and may be
enforced in any other jurisdiction, whether within or outside the United States
of America, by suit under judgment, a certified or exemplified copy of which
will be conclusive evidence of the fact and the amount of the liability.
(m) Except with respect to the indemnification obligations contained
herein, the parties waive to the fullest extent permitted by law any right to or
claim for any punitive or exemplary damages against the other and agree that, in
the event of a dispute between them, the party making a claim shall be limited
to recovery of any actual damages it sustains.
(n) Each party irrevocably waives trial by jury in any action,
proceeding or counterclaim, whether at law or in equity, brought by either
party.
(o) Except for claims for which Licensee or Licensor are entitled to
indemnification herein, any and all claims arising out of or relating to this
Agreement or the relationship among the parties hereto shall be barred unless an
action or legal proceeding is commenced within one (1) year from the date
Licensee or Licensor knew or should have known the fact giving rise to such
claims.
(p) Except where this Agreement expressly obligates Licensor reasonably
to approve or not unreasonably to withhold its approval of any action or request
by Licensee, Licensor has the absolute right to refuse any request by Licensee
or to withhold its approval of any action by Licensee that requires Licensor's
approval.
(q) The headings of the several sections and paragraphs hereof are for
convenience only and do not define, limit or construe the contents of such
sections or paragraphs.
(r) All Exhibits hereto form part of this Agreement.
(s) This Agreement and the Exhibits hereto represent the entire
agreement between Licensor and Licensee with respect to the subject matter
hereof and supersede any prior agreements and negotiations between the parties.
(t) This Agreement may be executed simultaneously in two counterparts,
each of which shall be deemed an original, but both of which together shall
constitute one and the same agreement, binding upon both parties hereto,
notwithstanding that both parties are not signatories to the original or the
same counterpart.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
"LICENSEE"
MARRIOTT CORPORATION
By:/s/
Its: Vice President
"LICENSOR"
XXX. XXXXXX DEVELOPMENT CORPORATION
By:/s/
Its: Ex. Vice President
EXHIBIT A
LICENSED PRODUCTS
[See Attached]
EXHIBIT A
LICENSED PRODUCTS
COOKIES NON-BAKERY ITEMS
ROYAL PECAN COOKIE TINS
SEMI SWEET CHUNK PECAN COOKIE JARS
MILK CHOCOLATE MACADAMIA OTHER ITEMS WHICH BEAR THE LICENSED
SEMI SWEET CHOCOLATE MACADAMIA NAMES AND MARKS,
CINNAMON SUGAR APPROVED IN WRITING BY LICENSOR
CHEWY FUDGE
HAND-DIPPED CHEWY FUDGE
COCOMAC
RAISIN SPICE
MILK CHOCOLATE CHIP
CHOCO MAC
MILK CHOCOLATE CHIP W/WALNUTS
OATMEAL GRANOLA
SHORTBREAD JEWELS
OATMEAL RAISIN NUT
PEANUT BUTTER
HAND DIPPED PEANUT BUTTER
SHORTBREAD
SEMI SWEET CHOCOLATE CHIP
SEMI SWEET CHOCOLATE CHIP W/NUTS
TRIPLE CHOCOLATE
WHITE CHUNK MACADAMIA
BROWNIES
GERMAN CHOCOLATE
PECAN PIE
MACADAMIA FUDGE
WALNUTFUDGE
ROCKY ROAD
PEANUT BUTTER BAR
PECAN FUDGE
MUFFINS
PUMPKIN (SEASONAL)
BANANA WALNUT
BRAN RAISIN WALNUT
MANDARIN ORANGE
CORNBREAD
BLUEBERRY
RASPBERRY
CHOCOLATE CHIP
BANANA CHOCOLATE CHIP
COFFEE
EXHIBIT B
LIST OF LICENSED TRADENAMES, TRADEMARKS AND SERVICE MARKS
[SEE ATTACHED]
