Exhibit 10.3
FORM OF
TRADEMARK AND SERVICE XXXX LICENSING AGREEMENT
dated as of _________, 1999
between
LIMCO, INC.
and
LIMTOO, INC.
TABLE OF CONTENTS
----------------------
PAGE
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ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions....................................................1
ARTICLE 2
GRANT OF LICENSE
SECTION 2.01. Grant of License...............................................2
SECTION 2.02. License Fee....................................................3
SECTION 2.03. No Sublicense..................................................3
SECTION 2.04. Form of Use....................................................3
SECTION 2.05. Quality Control and Supervision................................3
SECTION 2.06. Inspection and Reports.........................................3
SECTION 2.07. Submission of Advertising......................................4
ARTICLE 3
OWNERSHIP OF PROPRIETARY RIGHTS
SECTION 3.01. Licensor Representations and Warranties........................5
SECTION 3.02. Ownership of Proprietary Rights................................5
SECTION 3.03. Maintenance of Licensed Properties.............................5
SECTION 3.04. Registration...................................................6
SECTION 3.05. Use of Licensed Properties by Licensor.........................6
ARTICLE 4
INFRINGEMENT OF PROPRIETARY RIGHTS
SECTION 4.01. Infringement of Proprietary Rights.............................6
SECTION 4.02. Third-Party Actions............................................7
SECTION 4.03. Action by Licensor.............................................7
ARTICLE 5
INDEMNITY, LIMITATION OF LIABILITY
SECTION 5.01. Indemnity.......................................................8
SECTION 5.02. Limitation of Liability.........................................8
PAGE
----
ARTICLE 6
CONFIDENTIALITY
SECTION 6.01. Confidentiality.................................................8
ARTICLE 7
DURATION AND TERMINATION
SECTION 7.01. Term............................................................9
SECTION 7.02. Termination for Default or Breach...............................9
SECTION 7.03. Other Termination...............................................9
SECTION 7.04. Effect of Termination; Survival................................10
SECTION 7.05. Preservation of Remedies.......................................10
ARTICLE 8
GENERAL
SECTION 8.01. Cooperation....................................................10
SECTION 8.02. Independent Contractor.........................................11
SECTION 8.03. Amendments; Waivers............................................11
SECTION 8.04. Expenses.......................................................11
SECTION 8.05. Notices........................................................11
SECTION 8.06. Governing Law; Severability....................................13
SECTION 8.07. Counterparts...................................................13
SECTION 8.08. Entire Agreement...............................................13
SECTION 8.09. Binding Effect; Benefit........................................13
SECTION 8.10. Assignment.....................................................13
SECTION 8.11. Headings.......................................................14
ii
FORM OF TRADEMARK AND SERVICE XXXX LICENSING
AGREEMENT
AGREEMENT dated _________, 1999 between Limco, Inc., a corporation
incorporated under the laws of Delaware, and having its principal office at
0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000 ("Licensor") and LimToo,
Inc., a corporation incorporated under the laws of Delaware, and having its
principal office at 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000
("Licensee").
W I T N E S S E T H:
WHEREAS, Licensor is the sole and exclusive proprietor of certain
trademarks, trade names and service marks (including designs and logos) and
related applications and registrations in a number of jurisdictions around the
world; and
WHEREAS, Licensee desires to obtain and Licensor is willing to grant,
certain rights to enable Licensee to use certain of Licensor's trademarks,
trade names and service marks on the terms and conditions hereinafter provided.
NOW, THEREFORE, in consideration of the mutual undertakings in this
Agreement, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions. (a) The following terms, as used herein,
have the following meanings:
"Affiliate" means, with respect to any Person, any Person directly or
indirectly controlling, controlled by, or under common control with, such other
Person. For the purposes of this definition, "control" means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of a Person, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Business" means (i) the business of Too, Inc. and its Subsidiaries as
of the date hereof, including the manufacture, packaging, advertising,
promotion and sale (whether in stores, catalogs or via the Internet) of
apparel, accessories,
lifestyle and personal care products for girls approximately 7 to 14 years of
age, and (ii) any other business of Too, Inc. and its Subsidiaries specifically
and uniquely targeted at girls between the ages of 7 and 14, infants and
toddlers.
"Licensed Properties" means certain proprietary marks of Licensor,
consisting of the proprietary trademarks, trade names, service marks, designs
and logos set forth on Schedule A hereto ("Proprietary Marks"), and such other
marks of Licensor that Licensor shall have specifically authorized Licensee in
writing to use pursuant to a written notice acknowledged by Licensee in the
form of Exhibit A hereto ("New Marks").
"Person" means an individual, corporation, limited liability company,
partnership, association, trust or other entity or organization, including a
governmental or political subdivision or an agency or instrumentality thereof.
"Subsidiary" means, with respect to any Person, any other entity of
which securities or other ownership interests having ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions are at the time directly or indirectly owned by such Person.
"Too, Inc." means Too, Inc., a corporation incorporated under the laws
of Delaware, and having its principal office at 0000 Xxxxx Xxxx, Xxxxxxxx,
Xxxx, 00000.
(b) Each of the following terms is defined in the Section set forth
opposite such term:
Term Section
---- -------
Damages 5.01
Licensee Preamble
Licensor Preamble
Representatives 6.01
ARTICLE 2
GRANT OF LICENSE
SECTION 2.01. Grant of License. Subject to the terms and conditions of
this Agreement, Licensor hereby grants to Licensee and its Subsidiaries an
exclusive, non-transferable right, permission and privilege to use the Licensed
Properties in connection with the conduct of the Business and the right to
grant to Affiliates the right to use the Licensed Properties in the form of the
agreement attached hereto as Exhibit B.
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SECTION 2.02. License Fee. Licensor's license of the Licensed
Properties to Licensee and its Subsidiaries shall be fully paid-up and royalty
free.
SECTION 2.03. No Sublicense. Except as permitted under Section 2.01
hereof, neither Licensee nor its Subsidiaries shall sublicense its rights to
use the Licensed Properties as granted hereunder without the written consent of
Licensor.
SECTION 2.04. Form of Use. Licensee shall use, and permit the use by
its Subsidiaries of, the Licensed Properties only in accordance with the
requirements of all applicable laws and regulations and in the manner and form
stipulated by Licensor and shall conform to and observe, and shall procure that
such Subsidiaries conform to and observe, such standards as Licensor shall from
time to time approve, including, without limitation, standards relative to the
size, design, position, appearance, marking, color of the Licensed Properties,
and the manner, disposition and use of the Licensed Properties and accompanying
designations, on any document or other media. Without limiting the foregoing,
Licensee's and its Subsidiaries' use of the Licensed Properties shall be
subject to all of the restrictions, conditions and terms set forth in this
Agreement.
SECTION 2.05. Quality Control and Supervision. Licensee acknowledges
Licensor's right to exercise control over the nature and quality of the
products offered and sold and services performed by Licensee and its
Subsidiaries under the Licensed Properties. All products offered and sold and
services performed by Licensee and its Subsidiaries under the Licensed
Properties shall at all times be in compliance with applicable laws, be of at
least the same quality as comparable products currently offered and sold and
services performed by Licensee and its Subsidiaries, with which Licensor is
familiar, and be effected in a manner so as not to bring discredit upon the
trademarks, trade names and service marks included in the Licensed Properties.
SECTION 2.06. Inspection and Reports. (a) Licensee shall permit
Licensor to inspect any facilities, stores or records, used or maintained by
Licensee or its Subsidiaries in connection with the offer or sale of any
products or the performance of any services under one or more of the Licensed
Properties. If at any time Licensor should find that the use by Licensee or its
Subsidiaries of one or more of the Licensed Properties is not approved and in
full compliance with the quality standards or other specifications as set forth
herein or established in connection herewith, Licensor shall promptly notify
Licensee in writing, describing in detail the non-compliance, and within 60
days thereafter Licensee shall take, and shall cause its Subsidiaries to take,
the necessary steps to correct any such deficiencies and to fully comply with
the Licensor's quality standards and other specifications. Notwithstanding the
foregoing, the failure by Licensor
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to notify Licensee shall not affect any claims Licensor may have against
Licensee or its Subsidiaries with respect to any such deficiencies.
(b) Licensee shall make available, and shall cause its Subsidiaries to
make available, its distribution facility for inspection by Licensor and/or
Licensor's representative and/or cause each Too, Inc. store to be inspected at
least once each year and shall cause approximately one-half of the Too, Inc.
stores to be inspected on a semi-annual basis. Licensee shall submit to
Licensor within 60 days after the end of Licensee's fiscal year a written
statement certified by Licensee to be true and correct showing the following:
(1) The addresses, store numbers or description of locations of
the Too, Inc. stores inspected during such fiscal year; and
(2) That each such store that was inspected complies in all
material respects with this Agreement, or if the foregoing is untrue,
Licensee shall state with particularity (i) the reason therefore and
(ii) recommendations of action to be taken to correct any
deficiencies disclosed. In the event that Licensee does not receive
written notice from Licensor concerning any such noncompliance within
30 days after the mailing of such written statement by Licensee to
Licensor, Licensee shall promptly proceed, at its own cost and
expense, to implement any such recommendations. In the event that
Licensee receives a written notice from Licensor concerning any such
noncompliance within such 30 days, Licensee shall promptly proceed,
at its own cost and expense, to comply with the provisions of such
written notice. Nothing herein shall be construed to prevent Licensee
from proceeding, at its own cost and expense, to implement any of its
recommendations with 30 days from the mailing of such written
statement by Licensee to Licensor.
(c) Licensee shall make available copies of all inspection reports to
Licensor and Licensor's trademark counsel at Licensee's headquarters.
SECTION 2.07. Submission of Advertising. Licensee shall from time to
time make available to Licensor's trademark counsel at its address as set forth
in Section 8.05 representative samples of advertising, including each different
linear promotional material, key sign, video or other literature, packages,
labels and
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labeling prepared by or for Licensee or its Subsidiaries which uses the
Licensed Properties for its review and approval.
ARTICLE 3
OWNERSHIP OF PROPRIETARY RIGHTS
SECTION 3.01. Licensor Representations and Warranties. Licensor
represents and warrants to Licensee as of the date hereof that:
(a) The Licensed Properties are valid, subsisting, outstanding and
uncanceled.
(b) Licensor has the exclusive right, title and interest to the
Licensed Properties.
(c) Licensor is not aware of any claims or objections by third
parties that would affect the validity of the Licensed Properties.
SECTION 3.02. Ownership of Proprietary Rights. Neither this Agreement
nor its performance confer on Licensee or its Subsidiaries any right with
respect to the Licensed Properties other than those rights granted pursuant to
this Agreement with respect to the Licensed Properties. Any use of Licensed
Properties by Licensee inures to the benefit of Licensor. Licensee acknowledges
Licensor's exclusive right, title and interest in and to the Licensed
Properties and shall not, and shall cause its Subsidiaries not to, (a)
challenge the validity or ownership of the Licensed Properties or any other
trademarks, trade names or service marks of Licensor or claim adversely or
assist in any claim adversely to Licensor concerning any right, title or
interest in or to the Licensed Properties or any other trademarks, trade names
or service marks of Licensor, (b) do or permit any act which may directly or
indirectly impair or prejudice Licensor's rights, title or interest in or to
the Licensed Properties or its other trademarks, trade names and service marks,
or which is detrimental to the reputation and goodwill of Licensor, including,
without limitation, any act which might assist or give rise to any application
to remove or cancel any of the Licensed Properties or other trademarks, trade
names or service marks of Licensor or (c) register or use or attempt to
register or use, or aid any third party in registering or using or attempting
to register or use, any trademark, trade name or service xxxx which may be
similar to any of the Licensed Properties.
SECTION 3.03. Maintenance of Licensed Properties. During the term of
this Agreement, Licensor will have the sole right at its discretion and expense
to maintain the registration of any of its Licensed Properties. Notwithstanding
this
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provision, prior to abandoning any Licensed Properties in any jurisdiction,
Licensor will give Licensee at least 90 days written notice. If Licensee wishes
to maintain such Licensed Properties, Licensee will so advise Licensor within
60 days of such notice, and Licensee will then be responsible for all costs
associated with the Licensed Properties, or at either party's request, such
Licensed Property will be assigned to Licensee in such jurisdiction if legally
feasible.
SECTION 3.04. Registration. Licensor shall assist any of Licensee or
any Subsidiary thereof to apply for (at Licensee's cost) all registrations of
the Licensed Properties (with Licensor as the registered proprietor thereof) in
any location (if and as directed by Licensee and only to the extent that the
Licensed Properties may be registered under the law of such location) where no
such registration has been filed and where Too, Inc. or any of its Subsidiaries
carries on the Business. Licensor shall assist any of Licensee or any
Subsidiary thereof to apply for (at Licensee's cost) all renewals, file all
documents and do all other acts necessary to maintain Licensed Property
registrations in any location where required. Licensor shall cooperate
reasonably (on request by Licensee if Licensee considers it necessary) with
Licensee in filing any application for registered use of any Licensed
Properties in any location where Too, Inc. or any of its Subsidiaries carries
on the Business.
SECTION 3.05. Use of Licensed Properties by Licensor. Licensor agrees
during the term of this Agreement not to make any use of the Licensed
Properties or any confusingly similar xxxx. However, nothing in this Agreement
shall preclude Licensor or any Affiliate of Licensor, in its sole discretion,
from using, at any time and for any reason, any variation, combination or
derivation of the trademark "The Limited", including, but not limited to, words
in English or any other languages and whether written in Roman script or any
other script, in connection with a business other than the Business. Licensee
and its Subsidiaries shall use their reasonable best efforts (including,
without limitation, providing "no objections" letters in connection therewith
in form and substance satisfactory to Licensor) to assist Licensor or its
Affiliates, as the case may be, to exercise such rights.
ARTICLE 4
INFRINGEMENT OF PROPRIETARY RIGHTS
SECTION 4.01. Infringement of Proprietary Rights. Licensee shall
immediately notify Licensor of any unauthorized or improper use of any Licensed
Properties in any location where Too, Inc. or any of its Subsidiaries conducts
the Business and all particulars relating to such infringement, upon Licensee
having knowledge of same.
6
SECTION 4.02. Third-Party Actions. Licensee shall immediately inform
Licensor of any allegations, claims or demands (actual or threatened) against
Licensee or its Subsidiaries for infringement of any intellectual property
rights of third parties by reason of the use of the Licensed Properties and
provide all particulars requested by Licensor. At Licensor's request, Licensee
shall defend (at Licensor's cost) such action in accordance with Licensor's
directions. Licensor may at its option assist Licensee in its defense to such
action to the extent reasonable to do so (in Licensor's judgment). In no event
shall Licensee or its Subsidiaries have the right, without the prior consent of
Licensor, to acknowledge the validity of any claim of ownership by a third
party of any intellectual property rights in the Licensed Property, to obtain
or seek a license from such third party or to take any other action which might
impair the ability of Licensor to contest the claim of such third party if
Licensor so elects. Licensee agrees, at the request of Licensor, to make and
have made reasonable modifications in Licensee's and its Subsidiaries' use of
any elements of the Licensed Property in question or to discontinue their use
if Licensor, in its sole discretion, reasonably exercised, determines that such
action is necessary to resolve or settle a claim or suit or to eliminate or
reduce the threat of a claim or suit. The parties shall negotiate in good faith
as to the bearing of expenses of such modification, taking into account the
relative equities of the parties surrounding the dispute. Licensor shall have
the right to participate fully at its own expense in the defense of any claim
or suit instituted against Licensee or its Subsidiaries of any element of the
Licensed Property.
SECTION 4.03. Action by Licensor. Licensor may, but is not required
to, take any action, legal or otherwise, to halt or otherwise in connection
with any infringement of Licensor's rights to the Licensed Properties. Licensor
may require Licensee and its Subsidiaries to lend its or their names to such
proceedings and provide reasonable assistance. Licensee may, with the prior
written consent of Licensor, initiate proceedings or otherwise take action with
respect to any unauthorized use of the Licensed Properties (at Licensee's
cost), provided that Licensee keeps Licensor fully and promptly informed of the
conduct and progress of such action or proceedings; and provided, further, that
Licensee shall not conduct any settlement negotiations or take any step to
terminate such proceedings without Licensor's prior written consent. Licensor
agrees to cooperate in any such suit subject to being reimbursed for its
out-of-pocket expenses and being held harmless by Licensee from any claim,
loss, suit or damage arising out of said action. All damages recovered shall be
retained by Licensor if it has initiated such lawsuit or otherwise by Licensee.
Unless otherwise agreed, all costs of any action taken under this Section 4.03
by Licensee shall be borne by Licensee.
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ARTICLE 5
INDEMNITY, LIMITATION OF LIABILITY
SECTION 5.01. Indemnity. Licensee shall pay and indemnify Licensor and
each of Licensor's Affiliates from and against all losses, claims, damages,
liabilities, demands, proceedings and costs (including legal costs) ("Damages")
related to or arising out of the use of the Licensed Properties by Licensee or
its Subsidiaries and the exercise of Licensee's rights and obligations under
this Agreement. Licensor shall pay and indemnify Licensee and each Subsidiary
from and against all Damages which are solely attributable to use of the
Licensed Properties by Licensor or its other licensees.
SECTION 5.02. Limitation of Liability. In no event shall Licensor be
liable for any remote, punitive, exemplary, indirect or consequential damages
or loss of profit. Licensor shall not be responsible for any compromise or
settlement, nor for any costs or expenses incurred in compromising, settling or
defending any claim against Licensee or any of its Subsidiaries for
infringement or otherwise, made or incurred.
ARTICLE 6
CONFIDENTIALITY
SECTION 6.01. Confidentiality. Each party shall hold and shall cause
its directors, officers, employees, agents, consultants and advisors
("Representatives") to hold in strict confidence all information (other than
any such information relating solely to the business or affairs of such party)
concerning the other party unless (i) such party is compelled to disclose such
information by judicial or administrative process or, in the opinion of its
counsel, by other requirements of law or (ii) such information can be shown to
have been (A) in the public domain through no fault of such party or (B)
lawfully acquired after the Distribution Date (as defined in the Distribution
Agreement dated as of the date hereof between The Limited, Inc. and Too, Inc.)
on a non-confidential basis from other sources. Notwithstanding the foregoing,
such party may disclose such information to its Representatives so long as such
Persons are informed by such party of the confidential nature of such
information and are directed by such party to treat such information
confidentially. If such party or any of its Representatives becomes legally
compelled to disclose any documents or information subject to this Section
6.01, such party will promptly notify the other party so that the other party
may seek a protective order or other remedy or waive such party's compliance
with this Section 6.01. If no such protective order or other remedy is obtained
or waiver granted, such party will furnish only that portion of the information
which it is advised by counsel is legally required and
8
will exercise its reasonable efforts to obtain reliable assurance that
confidential treatment will be accorded such information. Such party agrees to
be responsible for any breach of this Section 6.01 by it and its
Representatives.
ARTICLE 7
DURATION AND TERMINATION
SECTION 7.01. Term. This Agreement shall commence on the date hereof
and continue for the initial 5-year period and such additional successive
periods of 1 year as Licensee may request by written notice delivered at least
120 days prior to the expiration of the preceding 1-year period, unless
terminated in accordance with the terms of this Article 7.
SECTION 7.02. Termination for Default or Breach. If, during the term
of this Agreement, either party shall default in the performance of or breach
any of its material obligations hereunder, and if any such default or breach
shall not be corrected within 60 business days after the same shall have been
called to the attention of the defaulting or breaching party by the other party
by notice, then the notifying party, at its option, may thereupon terminate
this Agreement by notice effective on the date given and/or avail itself of
such rights or remedies as it may have under the laws of the United States.
Notwithstanding the foregoing, if any breach or default by Licensee or any of
its Subsidiaries relates to a health hazard or potential health hazard
resulting from the sale of products or performance of services under the
Licensed Properties, all further distribution and sales of products or
performance of services under the Licensed Properties shall cease immediately
upon receipt of faxed or written notice of such breach or default.
SECTION 7.03. Other Termination. This Agreement may be terminated:
(a) automatically by Licensor on notice to Licensee if corporate
action for the voluntary liquidation of Licensee shall be instituted, or a
court order of dissolution shall be made against Licensee, or a receiver of any
of the assets of Licensee shall be appointed and such appointment shall not be
vacated within 60 business days, or Licensee shall become insolvent or bankrupt
or shall enter into an assignment for the benefit of creditors, or shall make a
composition with its creditors; or
(b) automatically in whole or in part by Licensor in the event of the
Change in Control (as defined in the Services Agreement between The Limited,
Inc. and Too, Inc. dated as of the date hereof); or
(c) at any time upon the mutual written agreement of the parties.
9
SECTION 7.04. Effect of Termination; Survival. (a) Upon termination of
this Agreement and due notice thereof pursuant to Section 7.02 or 7.03 hereof,
the parties agree that Licensor may by notice to Licensee require Licensee and
its Subsidiaries to cease using the Licensed Properties or any derivation
thereof in any form, including words in English or any other languages and
whether written in Roman script or any other script. Immediately after notice
of such request is served, Licensee shall take such actions as are necessary
and appropriate. From the date of the such notice of such request, Licensee
shall ensure that Licensee and its Subsidiaries do not use the Licensed
Properties or any combination or any derivation thereof or any translation of
any of such words into any other language. Any costs associated with the change
of name and logo of Licensee shall be for the account of Licensee.
(b) Should Licensee or any of its Subsidiaries fail to cease using the
Licensed Properties, Licensee agrees and hereby specifically consents to
Licensor obtaining a decree of a court having jurisdiction over Licensee and/or
such Subsidiary ordering Licensee and/or such Subsidiary to stop the use of the
Licensed Properties in any form. Said consent is based on a recognition by
Licensee that a monetary payment would be inadequate remedy for Licensor.
Nevertheless, it is understood between the parties that, in addition to the
injunctive relief mentioned above, Licensor shall be entitled to any other
relief which may be deemed proper and customary, whether at law or equity, as
of the time such relief is sought.
(c) Notwithstanding the other provisions of this Article 7, the
provisions of Sections 5.01, 5.02, 6.01, 7.05, 8.04 and 8.06 and this Section
7.04 shall survive any termination of this Agreement.
SECTION 7.05. Preservation of Remedies. Termination of this Agreement
is without prejudice to the rights of either party with regard to a breach by
the other party of this Agreement, or any obligation surviving termination or
expiration of this Agreement. Full legal remedies remain available for any such
breach or continuing obligation, including the right to recover damages or
secure other appropriate relief.
ARTICLE 8
GENERAL
SECTION 8.01. Cooperation. The parties agree to use their best efforts
to take, or cause to be taken, all actions and to do, or cause to be done, all
things necessary or desirable under applicable laws and regulations to
consummate or
10
implement expeditiously the transactions contemplated by this Agreement,
including filings with appropriate governmental authorities and the receipt of
any necessary governmental approvals in respect of the transactions
contemplated hereby.
SECTION 8.02. Independent Contractor. Licensee is not an agent of
Licensor and has no authority to bind Licensor. The employees, agents and
representatives of Licensee are the employees, agents and representatives
solely of Licensee and neither Licensee nor any such persons shall be or act as
employee, agent or representative of Licensor.
SECTION 8.03. Amendments; Waivers. (a) Any provision of this Agreement
may be amended or waived if, but only if such amendment or waiver is in writing
and is signed, in the case of an amendment, by each party to this Agreement, or
in the case of a waiver, by the party against whom the waiver is to be
effective.
(b) No failure or delay by any party in exercising any right, power
or privilege hereunder shall operate as a waiver thereof nor shall any single
or partial exercise thereof preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. The rights and remedies
herein provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
SECTION 8.04. Expenses. Except as specifically provided otherwise
herein, all costs and expenses incurred by a party in connection with this
Agreement shall be paid by the party incurring such costs or expenses.
SECTION 8.05. Notices. All notices, requests and other communications
to any party hereunder shall be in writing (including facsimile transmission)
and shall be given,
if to Licensor, to:
Limco, Inc.
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
Fax: 000-000-0000
with copies to:
The Limited, Inc.
Three Limited Parkway
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P.O. Box 16000
Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
Fax: 000-000-0000
and
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Fax: 000-000-0000
if to Licensor's Trademark Counsel, to:
Xxxxxxx & Xxxxx
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
Fax: 000-000-0000
if to Licensee, to:
LimToo, Inc.
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
Fax: 000-000-0000
with copies to:
Too, Inc.
0000 Xxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxxxx
Fax: 000-000-0000
and
Xxxxxxx & Umans
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
00
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
Fax: 000-000-0000
All such notices, requests and other communications shall be deemed
received on the date of receipt by the recipient thereof if received prior to 5
p.m. in the place of receipt and such day is a business day in the place of
receipt. Otherwise, any such notice, request or communication shall be deemed
not to have been received until the next succeeding business day in the place
of receipt.
SECTION 8.06. Governing Law; Severability. This Agreement shall be
governed by, and construed in all respects in accordance with, the laws of the
State of Delaware, without regard to conflict of laws principles thereof. If it
shall be determined by court order not subject to appeal or discretionary
review that any provision or wording of this Agreement shall be invalid or
unenforceable under Delaware law, such invalidity or unenforceability shall not
invalidate the entire Agreement, in which case this Agreement shall be
construed so as to limit any term or provision so as to make it enforceable or
valid within the requirements of Delaware law, and, in the event such term or
provision cannot be so limited, this Agreement shall be construed to omit such
invalid or unenforceable provisions.
SECTION 8.07. Counterparts. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
SECTION 8.08. Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior agreements and understandings, both oral and written,
between the parties with respect to such subject matter. No representation,
inducement, promise, understanding, condition or warranty not set forth herein
has been made or relied upon by either party hereto.
SECTION 8.09. Binding Effect; Benefit. This Agreement shall inure to
the benefit of the parties hereto, their successors, legal representatives or
permitted assigns. Nothing in this Agreement, expressed or implied, is intended
to confer on any person other than the parties hereto, and their successors,
legal representatives and permitted assigns, any rights, remedies, obligations
or liabilities under or by reason of this Agreement.
SECTION 8.10. Assignment. This Agreement may be assigned, in whole or
in part, by Licensor but shall not be assignable or otherwise transferable, in
whole or in part, by Licensee without the prior written consent of Licensor.
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SECTION 8.11. Headings. Section headings contained in this Agreement
are for reference only and are not intended to describe, interpret, define or
limit the scope or intent of this Agreement or any provision hereof.
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IN WITNESS WHEREOF the duly authorized representatives of the parties
have executed this Agreement on the date first above written.
LIMCO, INC.
By:
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Name:
Title:
LIMTOO, INC.
By:
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Name:
Title:
15