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Exhibit 10.11
TRADEMARK LICENSE AGREEMENT
THIS AGREEMENT, made this 1st day of May 1996, by and between Ringling
Bros. and Xxxxxx & Xxxxxx Combined Shows, a Delaware corporation with its
principal place of business at 0000 Xxxxxxxx Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxx
00000 (hereinafter "RBBB") and the Delicious Frookie Company, Inc., a Delaware
corporation with a place of business in Des Plaines, Illinois (hereinafter
"DFC").
WHEREAS, DFC seeks to license the trademarks in Section 1.1 in the
territory identified in Section 1.2 in connection with the manufacture,
marketing and sale of all cookies, crackers, freeze pops and cones for ice cream
with the right of first refusal for salty snacks, salty snack mix, and popcorn;
and
WHEREAS, RBBB is willing to grant such a license to DFC subject to the
terms and conditions set forth below.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, the parties agree as follows:
1. Definitions
The following definitions shall apply for the purposes of this
agreement;
1.1 Trademarks - The term "Trademarks" shall mean only the
trademarks set forth in exhibit A attached hereto and hereby incorporated by
reference.
1.2 Territory - The term "Territory" shall mean only the United
States, its territories and possessions, all U.S. military bases, and Canada.
The parties agree that additional countries or portions thereof may be added to
the definition of Territory upon the mutual written agreement of the parties,
with mutual agreement not being unreasonably withheld by RBBB.
1.3 Licensed Products - The term "licensed Products" shall mean
any cookie, cracker, freeze pop type, ice cream cone and pop corn, and the right
of first approval for packaged salty snacks and salty snack mix and the
exclusive rights in promoting and advertising all "Licensed Products" in
association with RBBB.
1.4 Net Sales - The term "Net Sales" shall mean gross sales of
Licensed Products less cash, promotional and term discounts, merchandising
allowances, freight and
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returns, except that all discounts and merchandising allowances given to any one
of Licensee's buyers shall not exceed 10% of the total amount billed to that
buyer.
2. Grant of License
2.1 Subject to the terms and conditions set forth herein, RBBB
does hereby grant to DFC a royalty-bearing, exclusive license to utilize the
trademarks in Territory in connection with the manufacture, marketing and sale
of Licensed Products. DFC hereby accepts such license.
2.2 DFC agrees not to grant any license or sublicense of the
Trademarks and shall not otherwise assign or transfer any rights granted by RBBB
pursuant to this Agreement. It is understood by the parties that the manufacture
of the licensed product(s) may be performed by a party designated by DFC and
acceptable to RBBB and that therefore in any reference in this agreement to
manufacture by DFC may apply to a third party. Notwithstanding the foregoing,
DFC shall remain responsible for the manufacturing of the Licensed Product(s)
hereunder, and DFC shall not change its manufacturer(s) without the prior
written approval of RBBB.
2.3 The parties agree that nothing herein shall prohibit RBBB from
utilizing or permitting third parties to utilize Trademarks in Territory on any
product not related to the Licensed Products or outside of the Territory on any
product, and RBBB expressly reserves the right to do so. Furthermore, DFC
acknowledges and accepts that RBBB, through its national concession, currently
offers for sale popcorn at RBBB show sites.
3. Term
The term of this Agreement shall commence on the day and year first
above written and shall continue for a period of five (5) years ("Initial
Term"). Such Initial Term may be extended for additional three (3) year terms
thereafter, provided that the parties mutually agree to each such extension in
writing at least sixty (60) days prior to the expiration of the Initial Term or
any extension period.
4. Termination
4.1 DFC shall have the right to terminate this Agreement at
anytime upon ninety (90) days written notice to RBBB and in the event DFC elects
to so terminate, it shall continue to remit to RBBB the royalty payments due
RBBB as the same may become due during the ninety (90) day notice period, which
shall be deemed to commence on the date of RBBB receives receipt of notice, or
thereafter if such payments become due after the ninety (90) day notice period
has expired.
4.2 In the event DFC breaches any of the provisions of Sections 6,
7, 8, 9, 10, 11, 13, 16, 17 and 18, the parties agree that RBBB may, in its sole
discretion, provide DFC with
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ninety (90) days opportunity to cure. If the breach is not cured within the
ninety (90) day period after notice from RBBB, this Agreement shall
automatically terminate subject to DFC's rights to sell off the Licensed Product
as provided therein. If the breach is cured within the ninety (90) day period,
this Agreement shall continue in full force and effect; provided, however, in
the event DFC breaches the same provision twice within any one (1) year period,
RBBB may terminate this Agreement following the second breach without any
opportunity to cure.
4.3 In the event that RBBB breaches any of the provisions of
Sections 8.1, 8.3 and 14, the parties agree that DFC may, in its sole
discretion, provide RBBB with ninety (90) days written notice of termination and
opportunity to cure. If the breach is not cured within the ninety (90) day
period, this Agreement shall automatically terminate subject to DFC's right to
sell off the Licensed Products as provided herein. If the breach is cured within
the ninety (90) day period, this Agreement shall continue in full force and
effect; provided, however, in the event RBBB breaches the same provision twice
within any one (1) year period, DFC may terminate this Agreement following the
second breach without any opportunity to cure.
4.4 In the event for any given calendar year DFC does not pay to
RBBB royalties of at least $50,000, then DFC shall be in breach of this
Agreement, and shall have an opportunity to cure as provided in Section 4.2.
4.5 In the event that either party becomes insolvent, files or has
filed against it involuntarily a petition under the United States Bankruptcy
Code or under or pursuant to any state bankruptcy act or under any similar
Federal or state law; makes a general assignment for the benefit of creditors;
admits in writing its inability to pay its debts generally as they become due;
or suspends or terminates its operations or liquidates or dissolves, then
without limitation, this Agreement shall automatically terminate.
5. Effects of Termination
5.1 Immediately upon the expiration or termination of this
Agreement, DFC shall cease all use of Trademarks; provided, however, the parties
agree that DFC shall have up to one hundred eighty (180) days to sell existing
inventories and use existing packaging and/or findings of Licensed Products on
DFC's normal terms and conditions. The parties further agree that RBBB may, in
its sole discretion, purchase all or a portion of Licensed Products, or any
component thereof, at DFC's actual cost.
5.2 Within a reasonable period of time following expiration or
termination, but in no event more than two (2) months following expiration or
termination, DFC agrees to provide to RBBB a final royalty report and royalty
payment.
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6. Quality Assurance
6.1 DFC agrees to provide for the opportunity and allow, at
mutually convenient times, RBBB quality assurance personnel, or their designated
representatives, to inspect and approve all facilities that supply ingredients
or packaging for Licensed Products or at which Licensed Products are going to be
Manufactured or stored prior to the initial manufacture and on a semi-annual
basis thereafter; provided, however, in the event Licensed Products at anytime
fail to comply with the provisions set forth in Sections 7.2 and 7.3 RBBB shall
have the right to have a representative present at its own expense for all
production runs of all Licensed Products at the facility(s) that produce the
substandard product(s) until all defects are resolved to RBBB's satisfaction.
RBBB agrees to provide DFC with reasonable prior notice of such inspections.
6.2 DFC agrees to correct any reasonable defects that affects the
quality of Licensed Products noted by RBBB's quality assurance personnel and
provide RBBB with a written response detailing the actions taken to correct such
defects within thirty (30) days after such observations were made by RBBB's
representative.
7. Quality Control
7.1 DFC acknowledges the valuable goodwill, associated with
Trademarks and desires to maintain the validity of Trademarks and the goodwill
associated therewith and DFC agrees, therefore, to maintain high standards in
the manufacturing, packaging and storing of Licensed Products.
7.2 DFC agrees that Licensed Products shall be manufactured,
packaged, stored, distributed and marketed in accordance with all applicable
Federal, state and/or local laws and regulations. DFC further agrees that all
facilities utilized to manufacture and package Licensed Products shall be
maintained in accordance with all applicable Federal, state and/or local laws
and regulations.
7.3 DFC agrees that Licensed Products shall be manufactured and
packaged in strict accordance with the formulas, product specifications, quality
specifications and samples approved by RBBB prior to the initial manufacture. In
the event Licensed Products are not manufactured and packaged in accordance with
such formulas, specifications and samples, RBBB shall have the right to
terminate this agreement pursuant to the manufacture of the revised Licensed
Products, RBBB shall approve of object revisions within three (3) business days
following RBBB's receipt of materials or approval shall be presumed. DFC agrees
not to manufacture revised Licensed Products without RBBB's prior consent.
7.4 At least six (6) representative copies or samples of all
proposed material using the Property, including the proposed Licensed Products,
advertising, and all other material of any character whatsoever (the
"Material"), together with a description of the intended use of
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the Material, shall be submitted to Licensor without cost for Licensor's written
approval prior to Licensee's use of the same, and annually thereafter if
requested by Licensor. The copies and description shall be retained by Licensor.
Any such proposed Material submitted to Licensor shall be approved or
disapproved in writing by Licensor within fifteen (15) business days of its
submission to Licensor. After approval of the Material has been obtained from
Licensor, Licensee shall not depart therefrom in any material respect without
Licensor's prior written consent, and Licensor shall not withdraw its approval
of the approved Material without good cause.
7.5 DFC shall allow RBBB to inspect a copy of all quality control
manuals and records which relate to the manufacture, package and store Licensed
Products in strict accordance with such manuals.
8. Royalty
8.1 The parties agree that during all terms of this Agreement DFC
shall pay to RBBB a royalty on Net Sales in the following amounts:
Four (4%) on the first three and one-half million ($3,500,000)
dollars of Net Sales: and three (3%) thereafter.
8.2 For each calendar year of the Initial Term of the Agreement
and for each calendar year of each Extension Term (each year herein referred to
as the "Agreement Year"), DFC shall guarantee RBBB the payment of the minimum
annual royalty of fifty thousand ($50,000) dollars ("Minimum Royalty") as
follows:
If the total amount of Royalties for each Agreement Year,
determined in accordance with Section 8.1 does not equal or
exceed the amount of the Minimum Royalty for such Agreement
Year, Licensee shall, within 30 days after the end of such
Agreement Year, remit to RBBB an amount equal to the
difference between the amount of the Minimum Royalty for such
Agreement Year and the amount of Royalties paid to RBBB for
such Agreement Year, determined in accordance with Section
8.1. The first year shall be deemed 16 months from signing
contract.
8.3 The parties agree that all royalty payments shall be made by
DFC within twenty (20) days following the end of each month during the term of
this Agreement.
9. Advertising/Promotional Materials
9.1 DFC shall submit to RBBB and RBBB shall approve prior to use,
samples of all materials including, without limitation, all packaging, labeling.
Advertising and promotional materials that utilize or incorporate Trademarks in
any way. RBBB shall approve or
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communicate any objection of such samples in writing within ten (10) business
days following RBBB's receipt of such materials. DFC agrees to make all
reasonable changes requested by RBBB.
9.2 DFC will promote Ringling Brothers-Barnum & Xxxxxx Combined
Shows wherever and whenever it can interconnect its advertising and promotional
material for its Licensed Products including the exclusive right for promotions
with RBBB in relation to the Licensed Products, and similarly RBBB will use its
best efforts to interconnect its promotion and advertising with DFC's Licensed
Products. Both parties, wherever and whenever feasible and reasonable, will
endeavor to promote the other's Products and services.
10. Trademarks
10.1 DFC agrees that nothing herein shall give DFC any rights,
title or interest in or to Trademarks, except the right to utilize Trademarks in
accordance with the terms of this Agreement, and that Trademarks are the sole
property of RBBB and any goodwill generated from any and all uses of Trademarks
shall inure to the benefit of RBBB.
10.2 DFC agrees to assign to RBBB, on the expiration or termination
of this Agreement and without any additional consideration, any rights and
equities related to trademarks and any goodwill incidental to such rights that
may be vested in DFC as a result of the activities of DFC pursuant to this
Agreement.
10.3 DFC acknowledged the valuable goodwill associated with the
Trademarks and it desires to maintain the validity of the trademarks and the
goodwill associated with the Trademarks for the benefit of RBBB. DFC agrees,
therefore, to utilize Trademarks in strict accordance with proper Trademarks
usage and the directions of RBBB. DFC shall not, directly or indirectly, attack
or assist a third party in attacking the validity of Trademarks
10.4 DFC agrees not to act, directly or indirectly, in any matter
which might lead a third party to believe that Trademarks are owned by DFC.
10.5 On the packaging, labels, advertising and other materials
which utilize Trademarks, DFC agrees that;
(a) The registered trademark symbol "(R)" shall be utilized in
conjunction with the appropriately registered trademarks and the
statement "__________ is (are) a registered trademark(s) of Ringling
Bros. and Xxxxxx & Xxxxxx Combined Shows, Inc.", with the blank to
be filled in with a name or names of the appropriate trademark(s)
shall be clearly displayed or;
(b) The trademark "TM" shall be used in conjunction with
unregistered trademarks and trademarks used outside the scope of
their current
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registrations and the statement _______ is (are) a trademark(s) of
Ringling Bros. and Xxxxxx & Xxxxxx Combined Shows, Inc." shall be
clearly displayed.
10.6 DFC agrees not to seek any trademark registration anywhere in
connection with its use of Trademarks.
10.7 DFC agrees not to adopt or use any xxxx or symbol that is
similar to Trademarks of any of RBBB trademarks or trade names.
10.8 DFC agrees not to utilize trademarks in any unauthorized
manner.
10.9 DFC agrees upon the request of and at the expense of RBBB, to
reasonably aid and assist the registration and maintenance of Trademarks and in
any litigation of resolution of claims with respect to Trademarks.
10.10 DFC shall have no right to expand the scope of protection
afforded the Trademarks. DFC shall use the Trademarks as set forth in Exhibit A
and shall not use the Trademarks, including any modified version thereof in any
way.
10.11 DFC agrees to notify RBBB of any non-RBBB trademarks or trade
names which are similar in sight, sound, appearance remaining to Trademarks. DFC
expressly agrees that it shall take no action with regard to such trademarks or
trade names other than notification of RBBB. RBBB shall have the sole right to
decide whether or not to take action against such trademarks or trade names.
11. The Delicious Frookie Company, Inc.
Trademark Protection
11.1 RBBB agrees that nothing herein shall give RBBB any right,
title or interest in or to any of DFC's trademarks except the right to utilize
such trademarks in accordance with DFC's instructions of packages of Licensed
Products, and that such trademarks are the sole property of DFC and any goodwill
generated from any and all uses of such trademarks shall inure to the benefit of
RBBB.
11.2 RBBB agrees to assign to DFC, on the expiration or termination
of this Agreement and without any additional consideration, any rights and
equities related to DFC's trademarks and any goodwill incidental to such rights
that may be vested in RBBB as a result of the activities of RBBB pursuant to
this Agreement.
11.3 RBBB acknowledges the valuable goodwill associated with the
DFC trademarks and it desires to maintain the validity of such trademarks and
the goodwill associated with such trademarks for the benefit of DFC. RBBB
agrees, therefore, to utilize such trademarks
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in strict accordance with proper trademark usage and the directions of DFC- RBBB
shall not, directly or indirectly, attack or assist a third party in attacking
the validity of DFC's trademarks.
11.4 RBBB agrees not to act, directly or indirectly, in any matter
which might lead a third party to believe that DFC's trademarks are owned by
RBBB.
11.5 RBBB agrees not to seek any trademark registration anywhere in
connection With its use of DFC's trademarks.
11.6 RBBB agrees not to adopt or use any xxxx or symbol that is
similar to DFC's trademarks.
11.7 RBBB agrees not to utilize DFC's trademarks in any
unauthorized manner.
11.8 RBBB agrees upon the request of and at the expense of DFC, to
reasonably aid and assist DFC in the registration and maintenance of DFC's
trademarks and in any litigation or resolution of claims with respect to such
trademarks.
12. Representations and Warranties of DFC
12.1 The making of this Agreement does not violate any rights or
obligations existing between DFC and any third party; and
12.2 Licensed Products shall not be adulterated or misbranded
within the meaning of any local, state or Federal law, regulation, ordinance,
rule or procedures and shall not be a product which may not be sold in
interstate commerce pursuant to the Food, Drug, and Cosmetic Act, as amended;
and
12.3 Licensed Products shall be in compliance with all local,
state, and Federal laws, regulations, ordinances, rules and procedures; and
12.4 Licensed Products shall be in strict compliance with all
formulas, specifications and samples.
13. Representations and Warranties of RBBB
13.1 The making of this Agreement does not violate any rights or
obligations existing between RBBB and any third party; and
13.2 RBBB has the right to grant the license of Licensed Trademarks
in accordance with the terms and conditions of this Agreement.
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13.3 The Licensed Trademarks are all valid and subsisting in the
Territory and RBBB is the owner of the Licensed Trademarks.
14. Indemnification
14.1 DFC hereby indemnifies and holds harmless RBBB, and will
defend or cause RBBB to be defended, from and against any and all claims,
demands, causes of action, losses, damages, costs and expenses (including
reasonable attorneys' fees) arising out of or in any way connected with a breach
by DFC of any of the representations or warranties set forth in Section 12 above
or rising from or in any way connected with the intentional acts or omissions or
negligence of DFC or arising from or in any way connected with DFC's failure to
perform or failure to perform properly any of its contractual obligations.
14.2 DFC hereby indemnifies and holds harmless RBBB, and will
defend or cause RBBB to be defended, from and against any and all claims,
demands, causes of action, losses, damages, costs and expenses (including
reasonable attorneys' fees) arising out of or in any way connected with any
alleged defect in, or accident or injury alleged in connection with, Licensed
Products.
14.3 RBBB hereby indemnifies and holds harmless DFC and will defend
or cause DFC to be defended, from and against, any and all claims, demands,
causes of action, losses damages, costs and expenses (including reasonable
attorneys' fees) arising out of or in any way connected with RBBB breach of any
of its representatives or warranties set forth in Section 13 above or arising
out of or in any way or negligence or arising out of or in any way connected
with RBBB intentional acts or omissions or negligence or arising out of or in
any way connected with RBBB failure to perform or failure to perform properly
any of its contractual obligations.
15. Insurance
Licensee will obtain and maintain a Comprehensive Liability
Insurance Policy, including Products Liability and Contractual Liability,
providing protection for Licensor, and its officers, agents and employees,
against any claims or liabilities arising out of or in any way related to the
manufacture, distribution, sale, or other disposition of the Products, with a
combined single limit in the amount of One Million Dollars ($1,000,000.00) with
a company satisfactory to Licensor, to be kept in force for twelve (12) months
after final disposal of inventory. As proof of such insurances, a fully paid
certificate of insurance, naming Licensor as an insured party and indicating
thereon that the insurance may not be changed, cancelled or allowed to lapse
through non-renewal or failure to pay the premium therefor except upon not less
than thirty (30) days' written notice to Licensor, will be submitted to Licensor
by Licensee within sixty (60) days after the date of this Agreement.
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16. Product Recovery
RBBB and DFC may mutually determine whether or not to implement
product recall recovery or retrieval relating to Licensed Products. DFC agrees
to carry out, in accordance with the procedures mutually agreed upon by the
parties, all product recalls, recoveries and retrievals for Licensed Products
and shall bear all costs and expenses associated therewith, unless such product
recall, recovery or retrieval is due solely to a defect traced to RBBB in which
case RBBB shall bear all costs and expenses.
17. Records
17.1 DFC agrees to retain and maintain all records relating to
Licensed products, including but not limited to, production records, quality
control records, records relating to the type and cost of advertising Licensed
Products, records relating to the sales (gross and net) and other transfers of
Licensed Products, and all other related records for a period of at least three
(3) years following the date for which those records apply.
17.2 DFC agrees that a CPA selected by RBBB shall be given access
to and shall have the right to inspect and make copies of all such records, on a
confidential basis at any time during DFC's normal business hours; provided,
however, RBBB agrees to provide DFC with reasonable prior notice of such
inspection. RBBB and its CPA shall agree in writing to maintain all confidential
material in confidence.
17.3 Receipt or acceptance by Licensor of any of the reports
furnished pursuant to this Agreement or of any sums paid hereunder shall not
preclude Licensor from questioning the correctness thereof at any time, and in
the event that any inconsistencies or mistakes are discovered in such statements
or payments, they shall immediately be rectified and the appropriate payments
made by Licensee. Upon demand of Licensor, Licensee shall, at its own expense,
but not more than once in any twelve (12) month period, furnish to Licensor a
detailed statement by an independent certified public accountant showing the
number, description, gross sales price, itemized deductions from gross sales
price and net sales price of the Products distributed and/or sold by Licensee.
If such audit discloses that Licensee has under-reported its net shipments to
Licensor by more than two percent (2%), Licensee shall bear the full cost of
such audit. Otherwise, Licensor shall bear the cost of such audit.
18. Sales to Licensor
Licensee agrees to sell the Products to Licensor and to Licensor's
subsidiaries, related or affiliated companies at as low a price as Licensee
sells the same to any third party; provided, however, that such price shall not
exceed fifty percent (50%) of the retail price to be charged by Licensor or its
subsidiaries, related or affiliated companies. For example, if the lowest
wholesale price Licensee charges for one of its products bearing the Property is
$8.00 and the retail price for the same to be charged by Licensor's related
company is $14.00, Licensee agrees to sell such
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Product to Licensor for $7.00. If, however, Licensee's lowest wholesale price
for the Product is $6.00, Licensee agrees to sell such Product to Licensor for
$6.00.
19. Force Majeure
Either party's failure to perform the terms and conditions of this
Agreement, in whole or in part, shall not be deemed a breach or default
hereunder or give rise to any liability of either party to the other if such
failure is attributable to any act of God, riot, public enemy, fire, explosion,
flood, drought, war sabotage, accident, action by governmental authority or any
other conditions beyond the reasonable control of the party.
20. Relationship of the Party
This Agreement is not intended and shall not, be construed to substitute
either party the joint venture of franchising partner, agent, or legal
representative of the other, and neither party shall have any authority,
expressed implied, or apparent to assume or create any obligations on behalf of
or in the name of the other party.
21. Severability
The provisions of this Agreement shall be severable and the invalidity of
any provision, or portion thereof, shall not affect the enforceability of the
remaining provisions of this Agreement.
22. Waiver
Failure of any party hereto to enforce any of the provisions of this
Agreement, or any rights with respect thereto, or failure to exercise any
election provided for herein, shall in no way constitute a waiver of such
provisions, rights, or elections, or in any way affect the validity of this
Agreement. Failure of any party hereto to enforce any of said provisions,
rights, or elections shall not prejudice such party from later enforcing or
exercising some or any other provisions, rights or elections which it may have
under this Agreement.
23. Notice
Any notice required or permitted under this Agreement shall be deemed to
have been received within two (2) business days after written notice shall be
deposited, first class, postage prepaid, in the United States mail addressed to
the respective parties as set forth below or to such address as each party may
hereafter designate by written notice to the other party:
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To RBBB: Ringling Bros. and Xxxxxx & Xxxxxx Combined Shows
0000 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxx Xxxxx, Director of Sponsorships, Strategic
Alliances & Licensing
To DFC: The Delicious Frookie Company, Inc.
0000 Xxxxx Xxxx
Xxx Xxxxxxx, XX 00000
Attn: President
With a copy sent to:
Xx. Xxxxxx Xxxxxx
Stoll, Miskin, Previto & Xxxxxxx
000 0xx Xxxxxx
Xxxxxx Xxxxx Xxxxxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
24. Complete Agreement; Modification
This instrument sets forth the entire agreement between the parties
relative to the subject matter herein. Modification or amendment of any of the
provisions of this Agreement shall not be valid unless in writing and signed by
the parties hereto.
25. Governing Law
This Agreement shall be governed and construed in accordance with laws of
the Commonwealth of Virginia.
26. Confidentiality
Simultaneous with the execution of this Agreement, the parties shall enter
into the Non-disclosure Agreement attached hereto and incorporated herein. The
parties agree that neither the term of this Agreement nor any of the activity
leading up to the execution of this Agreement shall be disclosed by either party
to any third party without the prior written consent of the other party.
27. Assignment
This Agreement shall insure to the benefit of and, shall bind each of the
parties hereto and their respective successors and assigns.
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IN WITNESS WHEREOF, authorized representatives of the parties hereto have
executed this Agreement effective the day and year first above written.
THE DELICIOUS FROOKIE RINGLING BROS. XXXXXX & XXXXXX
COMPANY, INC. COMBINED SHOWS, INC.
By: /s/ Xxxxxxx Xxxxx By: /s/ Xxxx Xxxxx
Print Name: Xxxxxxx Xxxxx Print Name: Xxxx Xxxxx
Title:________________________________ Print Name: Director of Licensing
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EXHIBIT A
TRADEMARKS
RINGLING BROS. AND XXXXXX & XXXXXX
RINGLING BROS.
XXXXXX & XXXXXX
THE GREATEST SHOW ON EARTH
CHICAGO KIDZ
AMERICA'S LIVING NATIONAL TREASURE
RINGLING BROS. AND XXXXXX & XXXXXX CLOWN COLLEGE
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CONFIDENTIALITY/NON-DISCLOSURE AGREEMENT
This Agreement is made this 1 day of May, 1996, by and between The
Delicious Frookie Company, Inc., a Delaware Corporation (DFC) and Xxx RBBB
Enterprise (RBBB).
WHEREAS, DFC and RBBB each has certain confidential information
which it may disclose to the other in the course of doing business together; and
WHEREAS, it is the intention of the parties to protect each others'
confidential information;
IT IS HEREBY AGREED AS FOLLOWS:
1. This Agreement controls information disclosed directly or
indirectly by each other to any agent, employee, officer, successor or assign of
the other during the period of time commencing on the date first written above
and ending five years later on May 1, 2001.
2. Each shall protect the disclosed confidential information of
the other by using the same degree of care, but no less than a reasonable degree
of care, to prevent the unauthorized disclosure of the confidential information
as each uses to protect its own confidential information.
3. In the event that either party is required by judicial or
administrative process to disclose confidential information, each shall promptly
notify the other so as to provide the other a reasonable time to oppose such a
process.
4. Each party's duties under this Agreement shall apply to
confidential information that is (a) disclosed by the other in writing and
marked to indicate that it is confidential at the time of disclosure or (b)
disclosed by the other in any other manner and is indicated to be confidential
at the time of disclosure and thereafter is also summarized and marked to
indicate it is confidential in a written memorandum delivered to that party
within thirty days of the disclosure, or that is (c) disclosed in the form of
tangible products or materials transmitted to that party with an accompanying
written memorandum as indicated above.
5. It is understood and agreed that when any employee or
representative of RBBB visits a production or supply facility of or for DFC or
in connection with the Licensed Product, such as in the course of quality
control pursuant to the terms of the license agreement, any information or
disclosure seen or observed by such employee or representative at such facility
shall be deemed confidential under this agreement. Each such employee or
representative of or for RBBB, prior to entering DFC's premises or facilities
where Licensed Products are make or packaged or materials produced for such
Licensed Products, shall be advised of this confidential disclosure Agreement
and agree to be bound by its terms.
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6. This agreement poses no obligation on either Party with regard
to information to either party's possession prior to execution of this Agreement
in (a) writing or (b) information which is or becomes available to the public
through no fault of the other, (c) information received in good faith by either
party from third parties and is not subject to an obligation of confidentiality
of such third parties, or (d) unframed independently developed by either party
without reference to the information received hereunder.
7. Each party agrees to return all extant confidential
information (including tangible products or materials) received from the other
upon the other's request, except that each may retain in the offices of its
legal counsel one copy of written confidential information for record purposes
only.
8. Each party warrants it has the right to make the disclosure
referenced in this Agreement.
9. Neither party acquires any license under intellectual property
rights of the other party pursuant to this Agreement.
10. Neither party has an obligation under this Agreement to do
business or continue to do business with the other.
11. Neither party has an obligation to purchase, service or offer
for sale the products of the other incorporating the disclosed confidential
information.
12. The parties do not intend that any agency or partnership
relationship be created between them by this Agreement.
13. All additions or modifications to this Agreement must be made
in writing and executed by both parties.
14. The relationship under this Agreement is confidential and is
to be treated as confidential information according to the terms of this
Agreement.
THE DELICIOUS FROOKIE RINGLING BROS. AND XXXXXX
COMPANY, INC. & XXXXXX COMBINED SHOWS
By: /s/ Xxxxxxx Xxxxx By: /s/ Xxxx Xxxxx
Title:________________________________ Title: Director of Licensing
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