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EXHIBIT 10.5
TRADEMARK LICENSE AGREEMENT
THIS LICENSE AGREEMENT, effective as of the _______ day of _____, 1997, is
entered into by and between: Getty Realty Corp. (hereinafter called "REALTY"),
a corporation organized and existing under the laws of the State of Delaware,
located at 000 Xxxxxxx Xxxxxxxx, Xxxxxxx, Xxx Xxxx 00000 and Getty Petroleum
Marketing Inc. (hereinafter called "MARKETING"), a corporation organized and
existing under the laws of the State of Maryland, located at 000 Xxxxxxx
Xxxxxxxx, Xxxxxxx, Xxx Xxxx 00000.
WHEREAS, REALTY is the owner of certain trademarks, service marks and
trade names that have been utilized in, among other businesses, the motor fuel
marketing business; WHEREAS, REALTY has subleased various motor fuel outlet
properties to MARKETING under certain net lease agreements (hereinafter
collectively called, the "Master Lease");
WHEREAS, REALTY seeks to license certain trademarks, service marks and
trade names to MARKETING for use in its marketing business;
WHEREAS, MARKETING wishes to license those trademarks, service marks and
trade names from REALTY for use in its marketing business on those terms;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
promises hereinafter set forth, the parties agree as follows:
1. DEFINITIONS
A. "Licensed Marks" shall mean the trademarks, service marks or trade
names listed on Schedule A attached hereto.
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B. "Licensed Territory" shall mean the following states of the United
States: Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut,
New York, New Jersey, Pennsylvania, Delaware, Maryland and Virginia, plus any
additional states added to the Licensed Territory pursuant to the Grant of
Option(s) to MARKETING described in Paragraph 15, below.
C. "Marketing Business" shall mean: (i) the purchase, storage,
distribution, marketing, and sale of gasoline, diesel fuel and other related
products at wholesale and through terminals and a retail service station
network; (ii) the operation of convenience stores; and (iii) the purchase,
storage, transportation and sale of home heating oil to residential and
commercial customers in mid-Xxxxxx Valley, New York. By way of example,
"Marketing Business" does not include the home heating oil business previously
carried on by the Aero Oil Company or the real estate business previously
carried on by Getty Petroleum Corp., both of which are currently being carried
on by REALTY.
2. GRANT OF LICENSE A. Subject to the terms and conditions set out
herein, REALTY grants to MARKETING an exclusive, payment-free, license to use
the Licensed Marks in the Licensed Territory in connection with its Marketing
Business. MARKETING may incorporate its business under the name "Getty
Petroleum Marketing Inc." MARKETING accepts the license subject to the terms and
conditions of this License Agreement.
B. Subject to the consent of REALTY, which consent shall not be
unreasonably withheld, MARKETING may sublicense the Licensed Marks to retailers
or wholesalers of petroleum and other related products and operators of
convenience stores, including but not limited to service station retailers,
jobbers and distributors, but only subject
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to the terms and conditions of this License Agreement all of which shall be
equally binding on the sublicensees. In determining the reasonableness of a
refusal to consent to a sublicense, the parties shall be guided by the
following considerations: (i) the parties shall not knowingly take any action
which would materially tarnish the image or cause a material adverse impact on
the value of the Licensed Marks; and (ii) the parties shall not permit the
indiscriminate proliferation of sublicensees which would cause the Licensed
Marks to lose significance as a source of origin. In connection with any
sublicense granted hereunder, the sublicensee shall be required to agree in
writing to be bound by and comply with all the terms and conditions of this
License Agreement. REALTY hereby consents to the sublicenses of the Licensed
Marks set out in Schedule B hereto and authorizes MARKETING to make amendments
and revisions in those sublicenses that are not of a material nature.
3. OWNERSHIP OF MARKS
MARKETING acknowledges REALTY's ownership of the Licensed Marks.
MARKETING agrees that it will do nothing inconsistent with such ownership and
that all use of the Licensed Marks by MARKETING shall inure to the benefit of,
and be on behalf of, REALTY. MARKETING agrees that nothing in this License
Agreement shall give MARKETING any right, title or interest in the Licensed
Marks other than the right to use the Licensed Marks in accordance with this
License Agreement. MARKETING agrees that it will not attack the title of
REALTY to the Licensed Marks or attack the validity of this License Agreement.
4. QUALITY STANDARDS
MARKETING agrees that the nature and quality of all services rendered by
MARKETING in connection with the Licensed Marks; all goods sold by MARKETING
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under the Licensed Marks; and all related advertising, promotional and other
related uses of the Licensed Marks by MARKETING shall conform to reasonable
standards set by and be under the control of REALTY. MARKETING agrees that the
quality of all such services, goods, and advertising and promotional materials
associated with the Licensed Marks shall be of the same high-level quality as
previously associated with the Licensed Marks. MARKETING further agrees that
the quality of all such services, goods, and advertising, promotional and other
related uses of the Licensed Marks shall conform with the standards,
specifications, and instructions as established by REALTY or such subsequent
standards, specifications, or instructions reasonably comparable thereto
promulgated by MARKETING subject to the approval of REALTY, such approval not
to be unreasonably withheld. Without limiting the foregoing, MARKETING agrees
to comply with the standards, specifications, and instructions set out in
Schedule C hereto, as may be modified from time to time in accordance with this
paragraph. If MARKETING intends to use the Licensed Marks on a new product
within the ambit of a particular registration it shall request approval for
such new product from REALTY at least thirty (30) days prior to initiating such
new product use, and such approval shall not be unreasonably withheld by
REALTY. REALTY shall provide MARKETING with notice of approval or
non-approval, as the case may be, within thirty (30) days of the receipt of the
notice with respect to MARKETING's intended new product.
5. QUALITY MAINTENANCE
MARKETING agrees to cooperate with REALTY in facilitating REALTY's control
of the nature and quality of goods, services and related uses associated with
the
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Licensed Marks, to permit reasonable inspection of MARKETING's operations,
and to supply REALTY with specimens of all uses of the Licensed Marks upon
request. MARKETING shall comply with all applicable laws and regulations and
will obtain all appropriate government approvals pertaining to the sale,
distribution and advertising of goods and services covered by this License
Agreement. REALTY shall have the right to enter and inspect service stations
of MARKETING that use the Licensed Marks. REALTY shall have the right to
receive from MARKETING, upon request and without charge, a reasonable number of
samples of products sold by MARKETING as well as labels, promotional materials,
advertising materials, sales materials and related materials using any of the
Licensed Marks.
6. FORM OF USE
MARKETING agrees to use the Licensed Marks only in the form, manner and
trade dress and with appropriate legends as prescribed from time to time by
REALTY, and not to use any other trademark, trade name, trade dress, or service
xxxx in combination with any of the Licensed Marks without prior written
approval of REALTY. REALTY hereby approves of the use of the Licensed Marks
used in combination with other trademarks, trade names, trade dress, or service
marks set out in Schedule D hereto. MARKETING shall submit to REALTY for prior
approval, all new or revised labels which are a material departure from those
presently used at least sixty (60) days prior to initiating use of a revised
or new label. REALTY's approval shall not be unreasonably withheld. REALTY
shall provide MARKETING with notice of approval or non-approval, as the case
may be, within
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thirty (30) days of the receipt of the notice with respect to MARKETING's
intended new or revised label.
7. TRADEMARK NOTICES
MARKETING will utilize on its products bearing the Licensed Marks,
packaging and advertising, whatever lawful notice is reasonably requested in
writing by REALTY in order to protect the Licensed Marks and properly designate
REALTY's legal ownership thereof. Without limiting the foregoing, MARKETING
agrees to utilize, where commercially practicable, a notice sufficient to
indicate that the utilized Licensed Xxxx is a registered trademark of Getty
Realty Corp. If REALTY does not request a particular trademark notice,
MARKETING shall utilize such notice as in the opinion of its counsel is
appropriate in order to protect the Licensed Marks and properly designate
REALTY's legal ownership thereof and the fact of registration thereof.
However, MARKETING shall advise REALTY of such intended notice, and make any
changes thereto reasonably requested by REALTY.
8. APPROVALS/PROTECTION OF THE LICENSED MARKS
In discharging their respective rights and obligations with respect to
Paragraphs 4, 5, 6, or 7 above, the parties shall be guided by the following
consideration: The parties shall not knowingly take any action which would
materially tarnish the image or cause a material adverse impact on the value of
the Licensed Marks including, without limitation, the indiscriminate
proliferation of uses of the Licensed Marks which would cause any of the
Licensed Marks to lose significance as a source of origin. If there is any
dispute as to either party's obligations with respect to Paragraphs 4, 5, 6, or
7 above, or the application thereof, the parties shall promptly consult to
resolve the matter. If the parties
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cannot resolve the matter, the dispute shall be submitted to arbitration in
accordance with paragraph 16 below and the arbitrator in that case shall be
guided by the same considerations described above in this Paragraph 8.
9. CONFLICTING TRADEMARKS
MARKETING will not at any time adopt or use, without REALTY's prior
written consent, any word, xxxx, or designation which is similar or likely to
be confused with any of the Licensed Marks.
10. FUTURE DOCUMENTS, RECORDING
AND TRADEMARK MAINTENANCE
A. The parties agree to cooperate in the execution and delivery, from
time to time, throughout the term of this License Agreement, of any documents
that may be reasonably required or desirable to effectuate and carry out the
purpose and intent of this License Agreement. Such documents shall include
instruments required to file, renew, protect, perfect and/or maintain the
Licensed Marks and REALTY's ownership therein, or to provide for the granting
of any license hereunder. Without limiting the generality of the foregoing,
REALTY shall enter MARKETING or its local designee or cause MARKETING or its
local designee to be entered as a registered user of the Licensed Marks
wherever necessary or desirable, and MARKETING and/or its local designee shall,
upon written request, execute such registered user agreements.
B. Except as provided in Paragraph 11 B below with respect to infringement
of the Licensed Marks by third parties, REALTY shall take such action as is
reasonably required or desirable to obtain and maintain appropriate protection
of the Licensed Marks applicable to MARKETING's business. Except as provided
in Paragraph 11 B below with respect to infringement of the Licensed Marks by
third parties, REALTY shall bear the
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full cost of all trademark filings, renewals, registered user entries and
actions to protect, perfect or maintain the Licensed Marks applicable to the
Marketing Business, including the attorney's and local agent's fees, taxes,
government filing and other fees.
11. INFRINGEMENT AND OTHER ACTIONS
A. The parties shall promptly notify each other of any claim that is
asserted, and of any action or proceeding that is threatened or commenced, in
which a third party (i) challenges MARKETING's right to use any of the Licensed
Marks, or (ii) alleges that any Licensed Xxxx infringes the trademark or trade
name rights of such third party, or (iii) in which the revocation, cancellation
or declaration of invalidity of any of the Licensed Marks is sought. REALTY
and MARKETING shall consult with respect to each such claim, action, or
proceeding, the assertion of counterclaims thereto and the settlement thereof
and shall jointly defend, in the name of REALTY and/or in the name of
MARKETING, each such action or proceeding that is commenced. If an action or
proceeding brought by a third party concerns the registrations and/or products
of both REALTY and MARKETING, both REALTY and MARKETING shall be responsible
for their pro rata share of legal expenses incurred in defending such action or
proceeding, said pro rata share to be determined by the proportion of products
and/or registrations at issue in the third party action or proceeding. If
there is a disagreement as to the appropriate pro rata share of legal expenses
to be borne by each party, the matter shall be submitted to arbitration in
accordance with paragraph 16 below. If the claim or action concerns only
products and/or registrations of MARKETING, MARKETING shall bear all legal
expenses incurred in defending such actions and proceedings and bear all
damages and costs, if any, recovered by the third party.
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B. REALTY and MARKETING will each undertake commercially reasonable efforts
to learn of any unauthorized uses of the Licensed Marks. Promptly upon
receiving notice or knowledge thereof, the parties shall notify each other of
any infringement or other violation by a third party of any of the Licensed
Marks. REALTY and MARKETING shall consult with respect to any such infringement,
and any action or proceeding, including opposition and cancellation actions,
that may be brought against such infringement. REALTY shall exercise its
discretion with respect to taking appropriate action including the bringing of
actions at REALTY's expense in the name of REALTY and/or MARKETING, but shall
not be obligated to take any action or institute any proceedings. If such
action or proceeding is commenced by REALTY, it shall promptly notify MARKETING
and MARKETING shall cooperate, including the defense of counterclaims, and
REALTY shall bear the expenses of MARKETING except for fees charged by any
attorneys retained solely by MARKETING in connection with such cooperation.
MARKETING shall be given an opportunity to participate with counsel of its
choice bearing its own legal and other costs.
In the event that REALTY determines not to commence such action or
proceeding at its expense, it shall promptly notify MARKETING. MARKETING may
then, at its expense, initiate such action or proceedings in its capacity as a
licensee of such Licensed Marks, provided however, that MARKETING must obtain
the prior written approval of REALTY regarding commencement of such action, such
consent not to be unreasonably withheld. The foregoing notwithstanding, in the
event of any unauthorized use of the Licensed Marks by one of MARKETING'S
sublicensees, MARKETING shall undertake efforts to cause the unauthorized use to
stop. In the event those efforts are
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unsuccessful, MARKETING shall, at its expense, initiate such action or
proceedings in its capacity as a licensee of such Licensed Marks with respect to
such unauthorized use. REALTY shall cooperate with MARKETING in any such
proceeding or action, including the defense of any counterclaims, and MARKETING
shall bear the expenses of REALTY, except for fees charged by any attorneys
retained solely by REALTY in connection with such cooperation. REALTY may, if
not a party, join in, with counsel of its own choice, bearing its own legal and
other costs. The party bringing any action or proceeding under this
sub-paragraph (B) shall keep the other party informed of the proceedings and
give the other party an opportunity to participate in any settlements, but the
final decision whether to settle the action or proceeding shall be made by the
party bringing the action or proceeding, subject to the approval of REALTY (if
not a party), such approval not to be unreasonably withheld. If within ten (10)
business days or such shorter time period as shall be reasonably practicable
under the circumstances REALTY does not approve a proposed settlement
recommended by MARKETING in good faith, REALTY shall be deemed to have taken
over responsibility for the action or proceeding, including subsequent legal
fees, awards against REALTY or MARKETING and expenses relating thereto. No
settlement by either party shall bind the other to make any payment or suffer
any loss of existing or future rights without such other party's consent, which
shall not be unreasonably withheld. Any recovery in such action or proceeding
shall be applied first to reimburse the party or parties for its or their legal
expenses in maintaining such action or proceeding. The excess shall belong to
the party maintaining the action or proceeding at the time such recovery is
awarded. If the action is brought jointly and the recovery is not sufficient to
reimburse REALTY and MARKETING
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for their legal expenses in such action, the unreimbursed portion of such legal
expenses shall be borne equally by each party.
12. TERM
This License Agreement shall continue in force and effect until
February 1, 2052 unless sooner terminated as provided for herein. Except as
provided in Paragraph 15 hereof, the license shall remain exclusive and
payment-free for so long as the Master Lease entered into between the parties
hereto of even date is in effect. In the event that the Master Lease
terminates prior to February 1, 2052, then this license shall, commencing on
the date that the Master Lease terminates, become: a) non-exclusive in all
areas, including the Licensed Territory; and b) a payment-bearing license
pursuant to which MARKETING shall pay to REALTY a rental fee for the use and
maintenance of Getty signage and related items based on the gross revenues
generated and/or gallonage sold under the Licensed Marks at a rate that is
reasonable and customary in the trade to be agreed in writing between the
parties. In the event that the parties are unable to agree to the rental fee,
the dispute shall be submitted to arbitration in accordance with Paragraph 16
below.
13. TERMINATION AND BREACH
This License Agreement shall be terminated: a) in the event of any
affirmative act of insolvency by MARKETING; or b) upon the appointment of any
receiver or trustee to take possession of the properties of MARKETING. REALTY
shall have the right to terminate this License Agreement either a) upon a
material default by MARKETING under the Master Lease which is not cured within
the cure periods specified therein; or b) upon a material default by MARKETING
with respect to its obligations under the Reorganization and Distribution
Agreement between the parties of even date which is not
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Rcured within the cure periods specified therein. In the event of any other
breach or threatened breach of this License Agreement, notice shall be given
and the parties shall promptly consult in good faith to cure such breach, with
the party at fault being given an adequate period of time to remedy the matter.
If such breach is not cured within sixty (60) days of the notice, the matter
may be submitted to arbitration in accordance with paragraph 16 below, which
may include a determination whether a material breach has occurred and/or been
cured. In the event the arbitrator determines that a material breach has
occurred, the arbitrator shall not be authorized to terminate this License
Agreement (except in the case of a material breach by MARKETING which creates a
substantial likelihood of loss of rights in the Licensed Marks) but shall be
authorized to issue any other order or award any other relief deemed
appropriate, including, without limitation, injunctive relief.
In the event of a material breach by MARKETING which creates a substantial
likelihood of loss of rights in the Licensed Marks, the arbitrator shall be
authorized to issue any order awarding any relief deemed appropriate,
including, without limitation, injunctive relief, and further providing that in
the event MARKETING fails to comply with the relief ordered within a specified
period of time, the license shall be terminated.
14. EFFECT OF TERMINATION
Upon termination of this License Agreement, MARKETING agrees: a) to
immediately discontinue all use of the Licensed Marks and any term confusingly
similar thereto, and to delete the same from its corporate or business name; b)
to cooperate with REALTY or its appointed agent to apply to the appropriate
authorities to cancel any recording of this License Agreement from all
government records; c) to destroy all printed materials and signs bearing any
of the Licensed Marks; d) that all rights in the Licensed
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Marks and the good will connected therewith shall remain the property of
REALTY; and (e) to cause all sub-licenses to terminate and all sublicensees to
immediately discontinue all use of the Licensed Marks and any term confusingly
similar thereto, and to delete the same from their respective business names,
if applicable.
15. GRANT OF OPTION(S)
In addition to the rights and obligations described above, and
subject to the terms and conditions set out herein, REALTY hereby grants to
MARKETING an option(s) that may be exercised at any time and from time-to-time
during the term hereof to expand the above-defined Licensed Territory to
include any other state of the United States in which MARKETING conducts its
Marketing Business. In the event that MARKETING exercises its option(s) to
expand the Licensed Territory to any additional states, all of the terms and
conditions of this License Agreement shall apply to such additional states,
except as follows: a) the licenses for the additional states shall be for
durations to be mutually agreed upon between the parties hereto but in no event
shorter than the term of the license granted within the Licensed Territories;
b) the license will be non-exclusive within those additional states; and c)
MARKETING will pay to REALTY a rental fee for the use and maintenance of Getty
signage and related items sales within those states based on the gross revenues
generated and/or gallonage sold under the Licensed Marks. These additional
terms will be agreed to in writing between the parties. In the event the
parties are unable to agree to these terms, then any dispute shall be submitted
to arbitration in accordance with Paragraph 16 below.
16. ARBITRATION
Any controversy or claim arising out of, or relating to this License
Agreement or its interpretation, performance or nonperformance or any breach
thereof, which the parties
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are unable to resolve between themselves, shall first be submitted to a single
arbitrator who shall be knowledgeable in marketing and trademark matters. The
arbitrator shall be mutually appointed by the parties, and shall not be bound
by rules of the American Arbitration Association, but shall adopt such
procedures as shall appear appropriate to expedite decision making, in order
that disputes may be resolved within commercially reasonable time periods. If
the parties cannot agree on the selection of the arbitrator, the arbitrator
shall be selected by The American Arbitration Association. Each party shall
bear its own costs in any such proceeding. The decision of the arbitrator
shall be final and binding upon the parties and may be enforced in any court of
competent jurisdiction.
17. GENERAL PROVISIONS
A. Assignability: This license may be assigned by either party to the
successor in interest or assignee of substantially all of its business or
assets, or the surviving party of any merger or consolidation to which it is a
party provided that the assignee of any assignment assumes all the assignor's
obligations hereunder. Apart from any assignment permissible under the
preceding sentences of this paragraph 17.1, MARKETING may not otherwise assign
the license granted herein or the obligations undertaken herein without the
prior written consent of REALTY, which consent shall not be unreasonably
withheld.
B. Notices: Any notice, approval, consent or other communication required
or permitted hereunder shall be in writing and shall be given by personal
delivery or telecopy, with acknowledgement of receipt, or by prepaid registered
mail, return receipt requested, addressed to the party at its address first
above written, to the attention of its General Counsel, or to any other address
that either party may subsequently designate, by notice in accordance with this
paragraph. Notices and other communications hereunder shall be
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deemed effective one (1) day after dispatch if personally delivered or
telecopied, and three (3) days after dispatch, if posted, subject to proof of
delivery.
C. Waiver: The waiver by any party of a breach or default of any
provision of this License Agreement by the other party shall not constitute a
waiver by such party of any succeeding breach of the same or other provision;
nor shall any delay or omission on the part of either party to exercise or
avail itself of any right, power or privilege that it has or may have
hereunder, operate as a waiver of any such right, power or privilege by such
party.
D. Governing Law: This License Agreement shall be governed by, subject
to and construed under the laws of the State of New York.
E. Unenforceability: In the event that any term, clause or provision of
this License Agreement shall be construed to be or adjudged invalid, void or
unenforceable, such term, clause or provision shall be construed as severed
from this License Agreement, and the remaining terms, clauses and provisions
shall remain in effect.
F. Association: The parties, by this License Agreement, do not intend to
create a partnership, principal/agent, master/servant, franchisor/franchisee,
or joint venture relationship, and nothing in this License Agreement shall be
construed as creating such a relationship between the parties. The parties
agree that this License Agreement does not create any franchise relationship
between them that is subject to the provisions of the Petroleum Marketing
Practices Act or any similar state or local government law.
G. Counterparts: This License Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and all such
counterparts together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this License Agreement
to be executed as of the day and year first above written.
GETTY REALTY CORP.
By:_______________________
Title:____________________
Date:_____________________
GETTY PETROLEUM MARKETING INC.
By:_______________________
Title:____________________
Date:_____________________
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SCHEDULE A
TRADEMARK LICENSE AGREEMENT
Trademarks, Service Marks and Trade Names
Getty Petroleum Marketing Inc.
Getty Supply Corp.
Getty Terminals Corp.
Also see attached list of Trademarks and Service Marks
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TRADE-MARKS AND SERVICE MARKS AND REGISTRATION NUMBERS
GETTY (Plain Lettering)
Registration No. 958,055
GETTY & DESIGN (Helvetic Script)
Registration No. 947,471
G & DESIGN (Helvetic Script)
Registration No. 957,175
GETTY PREMIUM
Registration No. 1,030,492
GETTY...THE VALUE LEADER IN FINE GASOLINES...AND MORE!
Registration No. 1,628,635
GETTY MART & DESIGN
Registration No. 1,480,165
GETTYMART...THE VALUE LEADER IN FINE PRODUCTS...AND MORE!
Registration No. 1,714,174
GETTY EXPRESS CHARGE
Registration No. 1,742,185
EXPRESS CHARGE
Registration No. 1,811,433
GETTY...THE VALUE LEADER IN FINE PRODUCTS...AND MORE
Registration No. 1,678,820
GETTY FLEET SMART
Registration No. 1,956,050
G (STYLIZED)
Registration No. 2,029,061
GETTY
Application Serial No. 74/330,713
GETTY AND DESIGN
Application Serial No. 74/330,714
GETTY ENERGY AND POWER
Application Pending.
"DV2"
Registration No. 1,680,938
POWER TEST & DESIGN
Registration No. 932,015
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POWER TEST
Registration No. 933,404
Registration No. 917,523
POWER TEST IN RECTANGLE
Registration No. 1,297,298
POWER TEST SHOWN DIAGONALLY
Registration No. 1,298,066
KWIK FARMS & DESIGN
Registration No. 1,288,389
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SCHEDULE B
LICENSED MARKS
WHICH MAY BE SUBLICENSED
See attached list.
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TRADE-MARKS AND SERVICE MARKS AND REGISTRATION NUMBERS
GETTY (Plain Lettering)
Registration No. 958,055
GETTY & DESIGN (Helvetic Script)
Registration No. 947,471
G & DESIGN (Helvetic Script)
Registration No. 957,175
GETTY PREMIUM
Registration No. 1,030,492
GETTY...THE VALUE LEADER IN FINE GASOLINES...AND MORE!
Registration No. 1,628,635
GETTY MART & DESIGN
Registration No. 1,480,165
GETTYMART...THE VALUE LEADER IN FINE PRODUCTS...AND MORE!
Registration No. 1,714,174
GETTY EXPRESS CHARGE
Registration No. 1,742,185
EXPRESS CHARGE
Registration No. 1,811,433
GETTY...THE VALUE LEADER IN FINE PRODUCTS...AND MORE
Registration No. 1,678,820
GETTY FLEET SMART
Registration No. 1,956,050
G (STYLIZED)
Registration No. 2,029,061
GETTY
Application Serial No. 74/330,713
GETTY AND DESIGN
Application Serial No. 74/330,714
GETTY ENERGY AND POWER
Application Pending.
"DV2"
Registration No. 1,680,938
POWER TEST & DESIGN
Registration No. 932,015
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POWER TEST
Registration No. 933,404
Registration No. 917,523
POWER TEST IN RECTANGLE
Registration No. 1,297,298
POWER TEST SHOWN DIAGONALLY
Registration No. 1,298,066
KWIK FARMS & DESIGN
Registration No. 1,288,389
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SCHEDULE C
STANDARDS AND SPECIFICATIONS
COMMINGLING
(a) Purchaser shall not mix any other product with Seller's Getty branded
product or mix one grade of Getty branded product with another grade of
Getty branded product or adulterate it in any way, except that, with
Seller's written consent, Purchaser may blend Getty Unleaded Regular and
Getty Premium so as to achieve a mid-grade of gasoline. Purchaser shall
not use the Getty trademarks, trade names, brand names, labels,
insignias, symbols or imprints in connection with the storage, handling,
dispensing or sale of any adulterated, mixed or substituted products.
(b) Purchaser will not allow or permit any of the operators of the stations
identified in Exhibit B, or any other approved station to sell Getty
branded products which are mislabeled, misbranded or contaminated, or
Getty product which has been commingled with a non-Getty supplied product
or substance, which is to be sold as a Getty branded product; nor will
Purchaser allow or permit the commingling of leaded with unleaded
gasoline; nor will Purchaser allow or permit the sale of unleaded
gasoline as leaded gasoline; nor will it allow the commingling of
different grades of Getty gasoline.
TRADEMARK PROTECTION
(a) Purchaser shall not sell gasoline or other petroleum products received
from any source other than the Getty brand of gasoline purchased directly
from Seller under the trademarks, service marks, trade names, brand
names, labels, insignias, symbols or imprints of Seller or used by Seller
in its business.
(b) Purchaser will not allow or permit any Getty branded gasoline stations
identified in Exhibit B or elsewhere to receive from any source other
than the Getty brand of product purchased directly from Seller any
product where that product is sold under the Getty trademarks, service
marks, trade names, brand names, labels, insignias, symbols or imprints
of Seller or used by Seller in its business.
EXCLUSIVITY - Purchaser shall sell only the Getty brand of product to
the stations identified in Exhibit B, and shall not sell a non-Getty brand of
gasoline. Nor will it allow or permit any operator of any Getty branded station
to purchase other than Seller's branded Getty product.
COMPLIANCE WITH LAW - Purchaser shall comply with all present and future
laws, orders and regulations of all governmental authorities with respect
to the storage and sale of products from any of the stations identified
in Exhibit B and in connection with the use of any equipment located thereon.
UNLEADED GASOLINES - Purchaser acknowledges that it shall be its
responsibility that unleaded gasoline is not contaminated and meats the
specifications of all governmental authorities. It shall not mix or allow
unleaded Getty gasoline to be mixed with any gasolines containing lead.
(a) Purchaser agrees that it will defend, indemnify and hold Seller harmless
from and against all present and future claims, demands, suits,
proceedings, and litigation arising out of any alleged liability for
Purchaser's storage of unleaded Getty gasolines in or through any
container, tank, pump, pipe or other element of its gasoline storage or
distribution system or the introduction of leaded gasoline into any motor
vehicle tank or compartment which is labeled "UNLEADED GASOLINE ONLY.";
Purchaser further agrees that it will, on Seller's demand, promptly pay
all losses, costs, damages, obligations, judgments, fines, penalties,
expenses and fees suffered or incurred by Seller by reason of any such
claims, demands, suits, actions, proceedings, or litigation, except those
which are caused by the sole negligence of Seller or its employees.
(b) Seller represents that unleaded Getty gasolines purchased by Purchaser
from Seller shall conform to Seller's specifications for same at the time
of delivery. Purchaser shall notify Seller immediately of any claim for
variance in quality, and Seller shall have an opportunity to inspect and
investigate at any time thereafter. Failure of Purchaser to so notify
Seller or to cooperate in any investigation shall operate as a waiver of
any and all claims by the Purchaser hereunder.
(c) In the event that Purchaser sells unleaded Getty gasolines to any other
person, firm or company for resale under Seller's corporate, trade or
brand name, Purchaser shall obtain from every such buyer for Seller's
benefit in writing the warranty and agreements stated in this Paragraph
13 and shall hold Seller harmless and indemnify Seller from any penalty,
cost, judgment, loss, fine or expense, including, but not limited to,
attorney's fees and court costs, which Seller may incur as the result of
the breach of the obligations of the Purchaser or any person, firm or
company buying Seller's gasolines for resale from Purchaser.
24
RETAIL OUTLETS SUPPLIED BY PURCHASER - In the event Purchaser sells the
Getty branded gasolines to any other person, firm or company for resale under
Seller's corporate, trademark or trade names, Purchaser shall obtain from each
buyer its written contractual obligations requiring such other person, firm or
company to comply with the terms and obligations imposed upon Purchaser
pursuant to Paragraphs 9, 10, 11, 12, 13 and 15 of this Agreement. Purchaser
shall obtain from each and every buyer the written contractual right for Seller
and its employees and agents to enter such buyer's place or places of business
to make such inspections, to obtain such samples or to conduct such tests
necessary to determine compliance. This shall include examination of such
buyer's books and records of the purchase and sale and inventory of products.
MONITORING COMPLIANCE
(a) At Seller's option, Seller may require, after reasonable notice, that
Purchaser shall take, keep and maintain continuous meter readings of
all gasoline dispensing pumps located at each of the stations identified
in Exhibit B, and shall periodically examine the records of the station
operators of purchases and sales of products to determine that they are
not purchasing a non-Getty brand of gasoline. Purchaser shall take such
other necessary steps as may be reasonably requested by Seller, including
the placing of "seals" on the totalizer mechanisms of the dispensing
pumps to insure that they are tamper-proof. The meter readings for each
station shall be taken on a monthly basis for each station to determine
whether or not that station has sold more gasoline than was purchased by
Purchaser from Seller. The records of the meter readings shall be kept
by Purchaser for at least three (3) years from the date of taking, and
shall be made available to Seller, for inspection by its agents and
representatives, at any time. Upon Purchaser receiving information that
a station listed in Exhibit B has been selling more gasoline than was
purchased from Seller and delivered by Seller, Purchaser shall
immediately notify Seller in writing and shall supply Seller with any
documentary evidence. Purchaser shall thereupon terminate any
contractual arrangement with the operator of the station and either
operate the station itself or obtain a new operator.
(b) Seller, by its agents or designated representatives, shall have the
right to enter any business premises of Purchaser at any time during
normal business hours during the term of this Agreement and then for a
period of four (4) years after the expiration of this Agreement, to
inspect records, including but not limited to, documents evidencing the
purchase, transportation, delivery, inventory or sale of gasoline, or
such records compiled in accordance with Paragraph 15(a) above.
(c) Purchaser will allow Seller, its employees or agents, to enter
Purchaser's place of business at any time to make such inspections and
to obtain such samples or conduct such tests as may, in Seller's
judgment, be reasonably required to confirm that Purchaser is complying
with all its obligations under this Agreement, and Purchaser will
cooperate with Seller in any investigation of any alleged violations of
such obligations. In the event Purchaser sells Getty products to any
other person, firm, or company for resale under Seller's corporate, trade
or brand name, Purchaser shall obtain for every such buyer the written
contractual right for Seller, and for Purchaser and for their employees
or agents, to enter such buyer's place or places of business at any
reasonable time to make such inspections, to obtain such samples or
conduct such tests as necessary to determine that said unleaded Getty
gasolines comply with all relevant State and Federal regulations relating
to unleaded gasoline.
(d) Purchaser agrees and warrants that Purchaser will sample and test the
lead content of all gasoline in the storage tanks on any station listed
in Exhibit B containing unleaded Getty gasolines on a frequent and
regular basis, to assure that said products are in compliance with
relevant Federal Environmental Protection Agency Regulations pertaining
to unleaded gasoline. In the event that Purchaser sells unleaded Getty
gasolines to any other person, firm or company for resale under Seller's
corporate, trade or brand name, Purchaser shall likewise sample and test
on a regular and frequent basis and the lead content of such buyer's
unleaded Getty gasoline storage facilities. Purchaser shall keep accurate
records of all such samples and tests, and such records shall be
reasonably made available to Seller upon demand. Purchaser shall
immediately notify Seller if its tests indicate the presence of lead in
excess of amounts allowed by law in any unleaded Getty gasoline storage
facility, shall not sell or distribute said gasolines as unleaded, and
shall cause any such buyer to cease selling said gasolines as unleaded.
In the event Purchaser discovers any contamination, Purchaser shall make
every reasonable effort to inspect and correct any deficiency in its
gasoline storage and handling facilities, and shall cause any such buyer
to so inspect, and correct any such deficiency. In the event that
Purchaser does not have the facilities to test for lead content, it shall
so advise Seller and Seller may enter Purchaser's premises at any time to
conduct such test.
25
MINIMUM STANDARDS - Purchaser recognizes that it is in the interest of
the parties to this Agreement for Purchaser to affirmatively conduct its
business to reflect favorably on the parties and to further promote public
acceptance of Seller's brand names, trademarks, products and services. In
recognition of such objectives, Purchaser agrees to conduct its operations and
cause its retail outlets and/or those served by Purchaser to be operated during
the term of the Agreement in accordance with the minimum standards set forth in
Exhibit C attached hereto and made part hereof.
In the event Purchaser or those supplied by him do not meet Seller's minimum
standards as set forth on Exhibit C, or if a retail facility served by
Purchaser is abandoned or unoccupied for a period of 30 days, Purchaser will
cause upon written demand by Seller, Getty identification to be removed from
such location(s) or automotive equipment (including painting over identifying
Getty colors) promptly, but no later than within five (5) days following the
date of the demand. Removal will be at Purchaser's expense. If Getty
identification is not removed within such time, Seller may, in addition to any
other right it has, cause the removal and charge Purchaser's account, who shall
reimburse Seller.
PAINTING - Purchaser shall at its expense paint all station and marketing
equipment for the dispensing of products, covered by this Agreement, in colors
and designs approved by Seller. Should the exterior appearance of any of
Purchaser's service stations require painting and the same is determined by
Seller to be detrimental to the Getty image, if Purchaser has not painted
after 20 days notice, Seller, at its option, shall have the right to paint
such service station and charge Purchaser for the cost of such painting,
who shall reimburse Seller. Upon termination of this Agreement, Purchaser shall
forthwith obliterate and discontinue the use of Getty's color schemes.
26
EXHIBIT C
MINIMUM STANDARDS
Purchaser agrees to conduct its operation and the operations of retail outlets
owned, operated and/or served by Purchaser in accordance with the following
minimum standards.
1. PURCHASER'S OPERATIONS
(a) Purchaser will maintain its place of business inside and out,
including storage tanks, warehouse buildings, loading racks,
improvements and facilities thereon, in a good, clean, neat, safe,
painted, operative and first class condition and in accordance with
all applicable laws, rules and regulations.
(b) Purchaser will maintain all automotive equipment used in its
business in good, clean, safe, painted, operative and first class
condition and in compliance with all applicable laws, rules, and
regulations. Said equipment will be identified in accordance with
Seller's identification specifications as may be issued from time
to time.
(c) In the conduct of its operations, Purchaser will take reasonable
action to promote Seller's trade names and trademarks and the
branded products they represent and not operate its business in a
manner detrimental to the trademarks or trade names of Seller.
Purchaser shall provide in any agreement with retail outlets which
it serves that such retail outlet will not sell products other than
those of Getty under Getty's brand names or trademarks and if
such retail outlet does so, Purchaser shall provide in such
agreement the right to remove Getty's trademarks and identification
from such retail outlet.
(d) In the conduct of its operations, Purchaser will provide prompt,
efficient, courteous and diligent service to its retail outlets
and other customers.
2. RETAIL OUTLETS OPERATED AND/OR SERVED BY PURCHASER
(a) Premises including buildings, rest rooms, driveways, sidewalks,
grass or planting areas, and storage areas will be maintained
inside and out in good, clean, neat, safe and healthful condition
with all necessary painting and repairs being made thereto.
(b) Retail outlets will be equipped to provide services comparable
with competitive outlets of similar type, age and style. All
equipment will be kept neat, clean and in good repair. Pumps and
dispensers which dispense Seller's products shall be properly
identified with Seller's product decals and other decals which may
be required by applicable laws, rules and regulations. Seller's
trademarks, signs, logos and other identification will be kept
clean, in good repair and painted when required according to
Seller's specifications.
(c) Purchaser's operators or retailers, including employees at
retail outlets served by Purchaser, will at all times present a
good personal appearance, observe clean, neat and safe working
habits, render prompt, courteous and honest treatment to customers
and take reasonable action to promote Seller's trade names and
trademarks and the branded products they represent.
3. ADVERTISING
Purchaser shall obtain Seller's approval on signs and advertising
including color schemes.
27
SCHEDULE D
LICENSED MARKS USED IN COMBINATION WITH OTHERS
WEX (Xxxxxx Express)
Uni-Marts
MBNA MasterCard
GasCard
Signs in conjunction with American Express, MasterCard, et al.
