Exhibit 10.14
EXCLUSIVE DOMESTIC LICENSE AGREEMENT
THIS AGREEMENT is made and entered into this 14th day of December, 1995 by
and between BHPC Marketing, Inc., a corporation duly organized and existing
under the laws of California, having its principal place of business at 000
Xxxx 000xx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000 (hereinafter referred to as
"LICENSOR"), and I. C. Xxxxxx & Co., L.P., a Delaware Limited Partnership,
having its principal place of business at 0000 Xxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxx, 00000 (hereinafter referred to as "LICENSEE").
WHEREAS, LICENSOR is the owner with the right to grant licenses of the
Trademarks illustrated in Exhibit "A" attached hereto (the "Trademarks"); and
WHEREAS, LICENSEE is desirous of obtaining the exclusive right to use
the aforesaid Trademarks in connection with the import or manufacture and
sale of certain licensed products defined herein.
NOW, THEREFORE, it is agreed by the parties as follows:
1. DEFINITIONS
The following terms shall have meanings as set forth below:
a. "Trademarks" shall mean the Trademarks set forth in Exhibit "A", and
any such variations as LICENSEE develops with LICENSOR's prior written
approval.
b. "Territory" shall mean that geographical area defined in item 1 of the
attached License Agreement Detail Schedule.
c. "Licensed Product" shall be defined as set forth in item 2 of the
attached License Agreement Detail Schedule.
d. "Net Shipments" shall mean the aggregate total of the gross dollar
amount invoiced its purchasers by LICENSEE for all the Licensed Product
sold under the Trademarks reduced by the amount of shipping costs,
taxes, insurance, any customary trade allowances and, subject to the
provisions of Paragraph 8f., returns actually credited. No deduction
shall be made for commissions nor for any costs incurred in the
manufacture, sale, distribution or exploitation of the Licensed Product.
2. RIGHTS GRANTED
LICENSOR hereby grants to LICENSEE, upon the terms and conditions set
forth herein, an exclusive, personal, non-transferable, non- assignable
license, without the right to grant sublicenses, to use the Trademarks
solely on or in conjunction with the design, manufacture, import,
distribution, advertising, promotion, shipment, and sale of the
Licensed Product in the Territory. This license is extended to and
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includes wholesale sales only and does not include retail sales.
3. OWNERSHIP OF ARTWORK AND DESIGNS
LICENSEE acknowledges and agrees that LICENSOR is the owner of all
artwork and designs involving the Licensed Product and/or Trademarks,
or any reproductions thereof, notwithstanding their invention or use by
LICENSEE and that such artwork and designs will remain the property of
LICENSOR who shall be entitled to use and license others to use same,
subject to the provisions of this Agreement. This Paragraph 3 does not
extend to artwork and designs developed for LICENSEE by third parties
and not owned by LICENSEE if they do not involve the Trademarks, and
generic artwork and designs which are not developed specifically for
the Licensed Products and which LICENSEE uses or intends to use, devoid
of the Trademarks, with LICENSEE's other product lines. Throughout the
term of this Agreement, LICENSOR will continue to provide LICENSEE
artwork, designs, and copy ready materials regarding the Trademarks as
LICENSOR provides to its licensees generally, and as reasonably
requested by LICENSEE.
4. GOOD WILL AND PROMOTIONAL VALUE
a. LICENSEE recognizes the value of the good will associated with the
Trademarks and acknowledges that the Trademarks, and all rights therein
and the good will pertaining thereto, belong exclusively to LICENSOR.
LICENSEE further recognizes and acknowledges that the Trademarks have
acquired secondary meaning in the mind of the public.
b. LICENSEE agrees that its use of the Trademarks shall inure to the
benefit of LICENSOR and that LICENSEE shall not, at any time, acquire
any rights in the Trademarks by virtue of any use it may make of the
Trademarks.
c. LICENSEE acknowledges that LICENSOR is entering into this Agreement not
only in consideration of the royalties paid hereunder but also for the
good will and promotional value to be secured by LICENSOR for the
Trademarks as a result of the manufacture, offering for sale, sale,
advertising, promotion, shipment and distribution of the Licensed
Product by LICENSEE.
5. QUALITY STANDARDS, PRODUCT APPROVALS, AND INSPECTION
a. The quality of the Licensed Product, as well as the quality of all
promotional, advertising and packaging material (see Paragraph 6) which
includes the Trademarks (the "Promotional and Packaging Material"),
shall
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be at least as high as the best quality of similar products and
promotional, advertising and packaging material presently shipped,
distributed, sold, used, manufactured or licensed by LICENSOR in the
Territory and shall be in full conformance with all applicable laws and
regulations. LICENSEE acknowledges that the maintenance of the high
quality of the Licensed Product, and the control by LICENSOR over the
nature, quality and manner of distribution of all Licensed Products, are
essential elements of this license. All elements of the Licensed
Product and use of the Trademarks shall be subject to the prior written
approval of LICENSOR. Except as specifically provided in Xxxxxxxxx 0x,
xxxxx, LICENSEE shall not offer for sale, advertise, promote,
distribute, or use for any purpose any Licensed Product that is
damaged, defective, or are "seconds".
b. In order to maintain the high quality standard prescribed by LICENSOR,
LICENSEE may not manufacture, use, offer for sale, advertise, promote,
ship and/or distribute any Licensed Product or any Promotional and
Packaging Material relating to the Licensed Product until it has
received all written approvals of same from LICENSOR in the manner
provided herein. Such approval shall not be unreasonably withheld.
Should LICENSOR fail to approve in writing any of the submissions
furnished it by LICENSEE within fourteen (14) days from the date of
submission thereof, such failure shall be considered to be a
disapproval thereof. LICENSOR shall exercise reasonable efforts to
expressly communicate approval or disapproval to LICENSEE and to
provide adequate explanations to LICENSEE for any disapproval.
c. Before commencing, or authorizing third parties to commence, the design
or development of any Licensed Product or of any Promotional and
Packaging Material which have not been previously approved in writing
by LICENSOR:
(i) Prior to the production of the Licensed Product, there shall be a
pre-production showing of the Licensed Product at a time and date to be
mutually agreed upon by the parties. During this showing, LICENSEE
shall submit for LICENSOR's prior written approval all final designs,
specifications, fabrications, and color information.
(ii) Prior to the production of each collection (also known in the trade
as a "line" or a "season"), LICENSEE shall submit to LICENSOR a completed
"Sample Approval Form" (Exhibit "B-1") for each proposed item of the
Licensed Product along with: at least one (1) final sample of each style
in the collection; two (2) sets
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of material which shows color and fabrication, to be attached to a
"Swatch Approval Form" (Exhibit "B-2"); and one (1) photograph or
rendering of each sample to be attached to the "Sample Approval Form"
(Exhibit "B-1"). Samples submitted for approval shall be of the same
quality as the Licensed Product that is produced and distributed. Once
a proposed item of the Licensed Product has been approved, LICENSEE
shall not deviate in any material respect from: (1) any information,
description or specification on the "Sample Approval Form" or "Swatch
Approval Form"; or (2) the quality of or material used on an approved
sample, without the prior written consent of LICENSOR. Each style,
color and fabrication must be approved for each season, regardless of
whether it was approved for a prior season, provided that previously
approved Licensed Products shall not be disapproved for a new
collection except for substantial reasons.
(iii) WIthin two (2) weeks following the commencement of each first
production run of the Licensed Product (or, if production of the various
styles of the Licensed Product commences at different times, within
two (2) weeks after commencement of each style's first production run),
LICENSEE shall deliver to LICENSOR, at least one (1), but no more than
two (2), finished production samples of each style. If the style,
appearance or quality of any production sample is materially different
from what was previously approved, LICENSEE shall make the necessary
changes so that it conforms to what was originally approved or shall
otherwise seek LICENSOR'S approval.
d. LICENSEE agrees that the Licensed Product and all Promotional and
Packaging Material shall contain only those proprietary legends,
markings and/or notices as reasonably required from time to time by
LICENSOR to give appropriate notice to the consuming public of
LICENSOR's right, title and interest thereto. The form of such legends,
markings and notices shall be as described in "Exhibit A" attached
hereto, unless the parties agree otherwise.
e. LICENSOR may, periodically and from time to time during the term of
this Agreement, at reasonable intervals, require that LICENSEE submit
to LICENSOR, at no cost to LICENSOR, or LICENSOR or its designees may
randomly select and retain during the inspection referred to in
Xxxxxxxxxxxx 0x, xxxxx, one (1) additional set of Production Samples of
the Licensed Product and/or the Promotional and Packaging Material
relating to the Licensed Product for subsequent review and written
approval of trademark usage and notice on same. LICENSOR will promptly
advise LICENSEE of any concerns regarding trademark
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usage and notice, and the parties will cooperate in good faith to
resolve the concerns.
f. To assure that the provisions of this Paragraph 5 are being observed,
LICENSEE agrees that it will allow LICENSOR or its designees,
periodically and from time to time at reasonable intervals during the
term of this Agreement, to enter LICENSEE's premises and/or the
premises where the Licensed Product is being manufactured or
inventoried during regular business hours and upon reasonable notice,
for the purposes of inspecting and confirming the Licensed Product and
the Promotional and Packaging Material relating to the Licensed Product
conform to the samples previously approved by LICENSOR. LICENSEE shall
provide to LICENSOR the addresses and telephone numbers of all
facilities, including third party manufacturers, at which the Licensed
Product is manufactured. LICENSEE's agreements with third party
manufacturers and warehousing facilities shall provide for the right of
LICENSOR to inspect such third party's facilities. Inspections, which
will be at LICENSOR's cost, may include any reasonable actions necessary
to assure LICENSOR that the Licensed Product is made and displayed in
accordance with this Agreement, including, but not limited to,
laboratory testing.
g. In the event that the quality standards and/or trademark and copyright
usage and notice requirements hereinabove referred to are not met,
then, upon receipt of written notice from LICENSOR the parties shall
cooperate in good faith to resolve LICENSOR's concerns and, absent
resolution, LICENSEE shall immediately discontinue any and all
activities with respect to the Licensed Product in connection with
which the said quality standards and/or trademark and copyright usage
and notice requirements have not been met. LICENSEE shall not be
required to discontinue any practice previously approved in writing by
LICENSOR.
6. ADVERTISING/USE OF THE TRADEMARK
a. LICENSEE will adopt and carry out its own marketing and advertising
program with respect to the Licensed Product. LICENSEE agrees that
LICENSEE's advertising, public relations and sales promotion activities
will be subject to prior consultation with, and written approval by,
LICENSOR as to the general form and content only with respect to the
use of the Trademarks and other notices.
b. Before publication of any advertisement or promotion, LICENSEE shall
submit every element of the advertisement or promotion to LICENSOR for
written approval hereunder using the "Advertising Approval Form"
(Exhibit "B-3").
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c. Subject to Licensed Product availability at the time of the
request, LICENSEE agrees that upon request of LICENSOR, and at
LICENSOR's cost for shipping, delivery and insurance, it shall loan a
reasonable number of Licensed Products to LICENSOR and its other
licensees for advertising and promotional purposes. LICENSEE shall
receive the same benefit from other licensees of LICENSOR. Said
products shall be returned to LICENSEE in the original condition.
d. LICENSOR may purchase the Licensed Product from LICENSEE at the
cost of manufacture, plus shipping, delivery, taxes and insurance costs
to LICENSEE, provided no such Licensed Products may be used by LICENSOR
for resale. No royalty shall be payable to LICENSOR.
e. Advertising directed to the public may not feature the name of
LICENSEE. If approved, advertising directed to the trade may feature
the following: BHPC Marketing, Inc. under Trademark License to (Name of
LICENSEE).
f. LICENSEE agrees that the Trademark will appear on each Licensed
Product and its packaging, if any. LICENSEE shall use only those tags,
labels and packaging materials which have been previously approved in
writing. All tags, labels and packaging materials bearing the Trademark
must be submitted on the "Advertising Approval Form" (Exhibit "B-3").
g. LICENSEE shall affix such legends, markings and notices on all
License Product as are required by LICENSOR under Subparagraph 5.d. and
the law.
h. LICENSEE must submit for approval to LICENSOR a printer's proof of
each advertising and promotional item before final printing.
7. DURATION OF THE AGREEMENT
a. This Agreement shall continue for three (3) consecutive Contract
Years in respective durations as set forth in item 3 of the attached
License Agreement Detail Schedule (hereinafter collectively the
"Initial Term") and shall then expire unless sooner terminated in
accordance with the terms and conditions set forth herein.
b. If LICENSEE is not in breach of this Agreement at the time renewal
notice is given to LICENSOR, LICENSEE shall have three (3) consecutive
options to renew this Agreement for three (3) consecutive contract
periods, i.e. Contract Years, of one (1) year each (hereinafter
collectively the "Renewal Term"). In order to exercise each individual
option, LICENSEE must provide LICENSOR with written notice of its
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intention to exercise each respective option and such written notice
must be received by LICENSOR no later than one hundred eighty (180)
days prior to the expiration of the Initial Term or immediately
preceding Contract Year of the Renewal Term. In the event that LICENSEE
fails to exercise any of the aforementioned options in a timely manner,
the license granted herein to LICENSEE will thereafter become
non-exclusive for the remaining term of this Agreement only for the
purposes of allowing LICENSOR to enter into such arrangements as it
deems appropriate with respect to the licensing of the Trademarks and
the Licensed Product, but no Licensed Products manufactured by another
party shall be sold prior to the expiration of this Agreement. Except
as specifically set forth herein to the contrary, LICENSEE's
performance in the Renewal Term shall be pursuant to the same terms and
conditions recited herein for the Initial Term.
8. ROYALTIES
a. "Royalty", as used in this Agreement, shall consist of the sum of
the following:
(i) LICENSEE agrees to pay LICENSOR, during the term of this
Agreement, a Royalty in an amount equal to five percent (5%) of the Net
Shipments by LICENSEE for Licensed Product sold under the Trademarks;
and
(ii) LICENSEE agrees to expend during the term of this Agreement,
an amount equal to one percent (1%) of the Net Shipments by LICENSEE
for Licensed Product sold under the Trademarks in advertising of the
Licensed Product and Trademarks. LICENSEE shall, on the day following
the last day of each respective Contract Year, submit to LICENSOR any
documentation as shall be reasonably requested by LICENSOR to evidence
the expenditure of the Advertising Royalty. In the event that LICENSEE
fails to spend the entire Advertising Royalty during the respective
Contract Year in which the Advertising Royalty was to be expended
hereunder, LICENSEE will, on the day following the last day of the
respective Contract Year, pay to LICENSOR the total sum of the
Advertising Royalty which was not expended hereunder. No Advertising
Royalty will be paid on the "Off Price" Merchandise.
b. LICENSEE shall pay to LICENSOR, concurrently with the execution of
this Agreement with respect to the First Contract Year, an Advance
Royalty Payment equal to the amount set forth in item 5 of the attached
License Agreement Detail Schedule, no part of which shall be
refundable. The Advance Royalty Payment
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shall not reduce or offset the payment of any Guaranteed Annual Minimum
Royalty hereunder. However, the Advance Royalty Payment may be applied
to reduce and offset the payment of any royalty due hereunder in excess
of the Guaranteed Annual Minimum Royalty due in the first two (2)
Contract Years.
c. Promotional Merchandise shall be defined as regular line Licensed
Product which is sold as an incentive at a discounted price. In the
event LICENSEE is desirous of increasing Promotional Merchandise
shipping beyond fifteen percent (15%) of total production of Licensed
Product in any Contract Year, LICENSEE must first receive LICENSOR's
prior written approval thereof on a case-by-case basis.
d. Off-priced Merchandise shall be defined as either close-out
Licensed Product or substandard Licensed Product. In the event LICENSEE
is desirous of increasing Off-priced Merchandise shipping beyond
fifteen percent (15%) of total production of Licensed Product in any
Contract Year, LICENSEE must receive LICENSOR's prior written approval
thereof on a case-by-case basis. In no event will LICENSEE offer for
sale, or distribute any substandard Licensed Product unless the
Licensed Product are clearly identified to the consuming public as
being "seconds".
e. LICENSEE shall keep complete, detailed and accurate records of all
Promotional and Off-priced Merchandise sales, which records shall be
available to LICENSOR for inspection at LICENSEE's premises during
regular business hours.
f. For the purposes of this Agreement, LICENSEE agrees that aggregate
returns of the Licensed Product credited during any Contract Year
hereunder shall not exceed five percent (5%) of the gross dollar amount
invoiced by LICENSEE for all the Licensed Product sold during the
respective Contract Year (the "Returns Limitation"). In the event that
aggregate returns of the Licensed Product exceed the Returns
Limitation, all returns of the Licensed Product in excess of the
Returns Limitation shall not be deducted from the gross dollar amount
of sales of the Licensed Product in determining Net Shipments hereunder.
9. PAYMENT
a. The payments provided for in Paragraph 8, above, shall be based
upon all Net Shipments in each calendar month (the "Royalty Period")
and shall be due and payable by LICENSEE to LICENSOR by the twentieth
(20th) day of the next following calendar month. All Guaranteed Monthly
Royalty Payments are due and payable in accordance with Subparagraph
10.e. below by LICENSEE to LICENSOR on the twentieth (20th)
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day of each respective calendar month for that Contract Year. At the
time of each such payment, LICENSEE shall provide LICENSOR with a
complete, accurate, written statement of its Net Shipments of Licensed
Product for the Royalty Period. The written statement of Net Shipments
of Licensed Product (a copy of which is attached hereto as Exhibit
"B-4") must be certified as accurate by LICENSEE and will include, but
will not be limited to, information as to: each respective invoice
number (in sequential order inclusive of all "voided" invoices),
invoice date, customer name or number, gross dollar amount invoiced,
terms of any customary trade allowances (as a percentage and in
aggregate dollars), actually credited returns (in aggregate dollars),
and other deductions taken against the gross dollar amount invoiced,
and any such other further information as LICENSOR may from time to
time reasonably request, solely for purposes of verifying the accuracy
of the Royalty payment. Such statements shall be furnished to LICENSOR
whether or not any Licensed Product has been shipped, distributed
and/or sold during the preceding Royalty Period and whether or not any
monies are then due LICENSOR.
b. LICENSEE's statements and all amounts payable to LICENSOR by
LICENSEE shall be submitted to:
BHPC Marketing, Inc.
000 Xxxx 000xx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attn: Royalty Receivables Department
c. The receipt and/or acceptance by LICENSOR of any of the statements
or reports furnished or payments paid hereunder to LICENSOR (or the
cashing of any checks paid hereunder) shall not preclude LICENSOR from
questioning the correctness thereof at any reasonable time thereafter
and, in the event that any inconsistencies or mistakes are discovered
in such statements, reports, or payments, they shall immediately be
rectified by LICENSEE and the appropriate payment shall immediately be
made by LICENSEE, unless LICENSEE disputes in good faith LICENSOR's
evaluation of the payments, in which case the parties will have twenty
(20) days to resolve the dispute.
d. All payments made hereunder shall be in United States currency or
checks drawn on a United States bank.
e. Time is of the essence with respect to all payments to be made
hereunder by LICENSEE. In the event LICENSEE shall fail to pay any sum
required to be paid by this Agreement after the due date thereof, the
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LICENSEE shall fail to pay any sum required to be paid by this
Agreement after the due date thereof, the amount owing shall thereupon
bear interest at the maximum annual percentage rate allowable by law
from the due date until paid.
10. GUARANTEES
a. Guaranteed Annual Royalty Payments - LICENSEE shall pay, for each
Contract Year during the term of this Agreement, beginning with the
First Contract Year, the respective Guaranteed Annual Royalty Payments
set forth in item 7 of the attached License Agreement Detail Schedule.
b. Guaranteed Target Net Shipments - If, in any Contract Year,
LICENSEE does not achieve the Guaranteed Target Net Shipment Volume
figure set forth in item 7 of the attached License Agreement Detail
Schedule LICENSOR may, at its option, immediately thereafter terminate
this Agreement in writing by giving LICENSEE written notice not later
than thirty (30) days after the end of the Contract Year.
c. Guaranteed Net Shipments - If, in any Contract Year, LICENSEE does
not achieve the Guaranteed Net Shipments figure set forth
in item 7 of the attached License Agreement Detail Schedule LICENSOR
may, at its option, immediately thereafter terminate this Agreement in
writing by giving LICENSEE written notice not later than thirty (30)
days after the end of the Contract Year.
d. Termination under Subparagraphs 10.b. and 10.c., above, shall be
without further recourse by LICENSOR under this Agreement, except for
past Royalties due.
e. Guaranteed Monthly Royalty Payments - In order to ensure that the
above guarantees are met, LICENSEE shall pay to LICENSOR each month
pursuant to Paragraphs 8 and 9, above, the respective Guaranteed
Monthly Royalty Payments set forth in item 7 of the attached License
Agreement Detail Schedule for each Contract Year during the Term of
this Agreement. In the event that any actual Monthly Royalty Payment
calculated in accordance with Paragraph 8, above, is less than the
applicable Guaranteed Monthly Royalty Payment, LICENSEE shall pay to
LICENSOR the Guaranteed Monthly Royalty Payment in accordance with
Paragraph 9. In the event that any actual Monthly Royalty Payment
calculated in accordance with Paragraph 9 exceeds the Guaranteed
Monthly Royalty Payment, the actual Royalty payment shall be paid to
LICENSOR in accordance with Paragraph 9.
f. In the event of the termination of this entire Agreement, LICENSEE
is obligated to pay the balance of the
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Guaranteed Annual Royalty Payments due for the remainder of the Contract
Years in the then current term, and payment in full shall be due and
payable within thirty (30) days of said termination as LICENSOR's only
recourse in the event of termination.
11. EXPLOITATION BY LICENSEE
a. LICENSEE agrees to commence, and diligently continue thereafter, the
distribution, shipment and sale of each category of the Licensed Product in
commercially reasonable quantities in the Territory on or before the
respective distribution date set forth next to each category of the
Licensed Product described in item 2 of the attached License Agreement
Detail Schedule.
b. LICENSEE agrees that the Licensed Product will be sold, shipped and
distributed outright, at a competitive price determined by LICENSEE, and
not on an approval, tie-in, consignment, or "sale or return" basis.
LICENSEE further agrees that the Licensed Product will only be knowingly
sold to retailers, jobbers, wholesalers and distributors for sale, shipment
and distribution to retail stores and merchants commonly considered and
referred to in the industry as moderate or better department stores and
specialty stores for sale, shipment and distribution direct to the public.
Notwithstanding the foregoing to the contrary, LICENSOR agrees that the
Licensed Product may also be sold to those retail stores commonly
considered and referred to in the industry as "Warehouse Clubs" (such as
Price Club, Sam's Warehouse, Pace, Costco, X.X.'s) so long as the total Net
Shipment volume of Licensed Product sold to such "Warehouse Clubs" does not
exceed twenty five percent (25%) of LICENSEE's annual Net Shipment volume.
Any sale of Licensed Product exceeding twenty five percent (25%) of
LICENSEE's Net Shipment volume will be deemed a material breach of this
Agreement and LICENSOR will have the right thereafter to terminate this
Agreement. The manner and scope of the distribution of the Licensed
Product, availability, variety, fabrication, colors and sizes are critical
to the promotion, enhancement and protection of the Trademarks and their
associated goodwill. LICENSEE acknowledges that it has no right to and
shall not sell or distribute the Licensed Product to any diverter or to
anyone whose sales or distribution are or will be made for publicity,
promotional or tie-in purposes, combination sales, premiums, giveaways,
direct mail, electronic shopping, vending machines or similar methods of
merchandising, or whose business methods are or reported to be
questionable.
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c. LICENSEE further agrees to sell to LICENSOR, if requested to do so by
LICENSOR, any product manufactured or sold by LICENSEE, from LICENSEE's
regular production at LICENSEE's customary net selling price.
12. BOOKS, RECORDS, AND RIGHTS TO AUDIT
a. LICENSEE agrees that it shall keep complete and accurate written books of
accounts and records, maintained in accordance with generally accepted
accounting principles consistently applied, at its principal place of
business, covering all Licensed Product manufactured, distributed, and sold
under the Trademarks. LICENSEE shall provide LICENSOR with the following:
(i) an audited, set of financial statements (i.e., balance sheet, income
statement, and sources and uses of funds) to be delivered to LICENSOR
within one hundred twenty (120) days after the end of each fiscal year of
LICENSEE; and
(ii) an interim set of financial statements to be delivered to LICENSOR
within sixty (60) days following the end of the first six (6) months of
each fiscal year of LICENSEE. All such financial information must be
prepared by an independent certified public accountant, approved in writing
by LICENSOR. LICENSOR hereby approves Xxxxxxx & Xxxxxxx as the accountant.
b. LICENSOR and its duly authorized representatives shall have the right, at
LICENSOR'S expense, at all reasonable business hours of the day, with
reasonable notice to audit LICENSEE's books of account and records and all
other documents and material in the possession or under the control of
LICENSEE with respect to the subject matter and the terms of this Agreement
and to make copies and extracts thereof. Within ten (10) days following
any written request by LICENSOR, LICENSEE will deliver copies and extracts
of any books of account, records, documents, materials, and information
as are requested by LICENSOR inclusive of, but not limited to: financial
statements, general ledger detail and supporting journals, documents, sales
and credit memo registers, financial projections and wholesale price
listings. All books of account and records of LICENSEE covering all
transactions relating to this Agreement shall be retained by LICENSEE for
at least three (3) years after the expiration or termination of this
Agreement for inspection by LICENSOR. In the event that any such audit
reveals an underpayment by LICENSEE, LICENSEE shall immediately remit
payment to LICENSOR in the amount of such underpayment plus
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interest calculated at the maximum annual percentage rate allowable by law,
compounded daily, calculated from the date such payment was actually due
until the date when such payment is, in fact, actually made. In the event
that any material underpayment is revealed by any such audit, LICENSEE
shall pay all reasonable costs and expenses of the examination and audit,
including any reasonable travel expenses incurred by LICENSOR in making
such examination, and costs and expenses of any accountants or other
persons retained by LICENSOR to examine, audit, or analyze LICENSEE's
records. A "material underpayment" is hereby defined as an underpayment of
five percent (5%) or more.
13. INSURANCE
LICENSEE shall, throughout the term of this Agreement, obtain and maintain
at its own cost and expense from a qualified insurance company acceptable
to LICENSOR, a policy or policies of insurance, insuring against those
risks customarily insured against under broad form comprehensive general
liability policies arising out of any defects or failure to perform,
alleged or otherwise, of the Licensed Product or any use thereof, including
"product liability", "completed operations", "advertisers' liability
insurance", etc and any liability of LICENSEE arising out of Paragraph 20,
below. All such policies of insurance shall have endorsements or coverage
with combined single limits of not less than $1,000,000 with deductibles
reasonably acceptable to LICENSOR and shall name LICENSOR, and those
designated by LICENSOR, with LICENSEE's approval, as additional insureds
thereunder. Such policies of insurance shall contain:
a. severability of interest;
b. cross liability; and
c. endorsement stating: "Such insurance as is afforded by this policy
for the benefit of BHPC Marketing, Inc. shall be primary as respects
any liability of claims arising out of (LICENSEE's) operation, and
any insurance carried by BHPC Marketing, Inc. shall be excess and
non-contributory."
The policies shall provide for ten (10) days notice to LICENSOR from the
insurer by Registered or Certified Mail, return receipt requested, in the
event of any modification, cancellation or termination. LICENSEE agrees to
furnish LICENSOR a certificate of insurance or copy of the policies
evidencing same within thirty (30) days after execution of this Agreement
and from time to time as requested by LICENSOR within ten
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(10) days of LICENSOR's request; in no event, shall LICENSEE manufacture,
offer for sale, sell, advertise, promote, ship and/or distribute the
Licensed Product prior to receipt by LICENSOR of such evidence of
insurance. If LICENSEE fails to procure, maintain and/or pay for at the
times and for the durations specified in this Agreement, the insurance
required hereunder, or fails to carry insurance required by any
governmental requirement, LICENSOR may (but without obligation to do so),
and without notice to LICENSEE, perform such obligations on behalf of
LICENSEE, and the cost thereof, together with interest thereon at the
maximum rate allowed by law, shall immediately become due and payable to
LICENSOR.
14. USE, DISPLAY, AND SALE INVOLVING THE TRADEMARKS AND COPYRIGHT
a. In order to protect the Trademarks and LICENSOR's reputation, LICENSEE will
manufacture, distribute and sell the Licensed Product in compliance with
all applicable laws. During the term of this Agreement, in no event shall
LICENSEE, or any affiliated entity, manufacture or import, distribute or
sell any products using any trademark or other designation containing the
words "XXXXXXX HILLS", or "POLO", or depicting any equestrian figure,
without the written consent of LICENSOR.
b. It is specifically understood and agreed that LICENSEE may engage in the
manufacture and distribution of products similar to or competitive with the
Licensed Product for its own account or pursuant to license agreements with
others, provided, however, neither LICENSEE nor any employee, shareholder,
officer, director, parent, subsidiary or affiliate of LICENSEE shall
manufacture or import, distribute or sell merchandise, the brand name of
which has a closely resembling similarity to the Trademarks. LICENSEE
further agrees not to use a closely resembling similarity of any graphic,
style or design supplied by LICENSOR to LICENSEE except for such items as
are generic or standard styles and designs and those items which LICENSEE
has already been using on the date of this Agreement for its other product
lines.
c. LICENSEE shall exercise reasonable efforts, within the limits allowed by
the laws and governmental regulations in effect in the Territory, to ensure
that its merchandising and sale of the Licensed Product shall conform to
policies and methods suitable for goods of high quality sold under a
prestigious label of worldwide repute.
15. OWNERSHIP OF THE TRADEMARKS
a. LICENSEE agrees that nothing in this Agreement shall give LICENSEE any
right, title, or interest in the
14
Trademarks other that the license to use the Trademarks on the Licensed
Product; that such marks are the sole property of LICENSOR; that all such
uses by LICENSEE of such marks shall inure only to the benefit of LICENSOR;
and it being understood that all right, title and interest relating thereto
are expressly reserved by the LICENSOR except for the rights being licensed
hereunder.
b. LICENSEE recognizes that LICENSOR may already have entered into license
agreements with respect to the Trademarks for products which fall into the
same general product category as the Licensed Product, but which are not
sold to the same retail store departments as the Licensed Product, and
which may be similar to, but not the same as, the Licensed Product in terms
of function, or otherwise. LICENSOR will advise LICENSEE of the specifics
of each such agreement. LICENSEE hereby expressly concedes that the
existence of said licenses does not and shall not constitute a breach of
this Agreement by the LICENSOR. Nothing herein shall permit LICENSOR to
license a retail outlet directly to make Licensed Products or products
substantially similar thereto, it being understood that any such products
to be sold by the retail outlet must be purchased from LICENSEE.
c. LICENSEE agrees and acknowledges that if it has obtained or obtains in the
future, in any country, any right, title, or interest in any marks which
are confusingly similar to the Trademark, (including the filing of any
application for trademarks or service xxxx registration or the obtaining of
any issued registration), that LICENSEE has acted or will act as an agent
and for the benefit of LICENSOR. LICENSEE further agrees to execute any
and all instruments deemed by LICENSOR, its attorneys or representatives,
to be necessary to transfer such right, title, or interest to LICENSOR to
protect LICENSOR's right, title and interest in such marks.
d. LICENSEE agrees not to raise or cause to be raised to third parties, either
during the term of this Agreement or after its expiration or termination,
on any grounds whatsoever, any questions concerning the validity of the
Trademarks or LICENSOR's rights therein.
16. COMPLIANCE WITH LIMITATIONS ON USE OF TRADEMARKS
LICENSEE agrees that the Licensed Product, and all labels, hang tags,
packaging and other trade dress, used in connection with such Licensed
Products, shall not violate any restrictions on use or display of the marks
as provided in that Settlement Agreement and Consent Judgement with Polo
Fashions, Inc., a copy of which
15
BHPC.12
is attached hereto as Exhibit "D". Nothing contained in this
Agreement makes Polo Fashions, Inc., or any related company,
a third party beneficiary of this Agreement. In the event
LICENSEE is subject to loss or liability under said Settlement
Agreement and/or Consent Judgment for any actions not in
breach of this Agreement or actions of LICENSEE approved by
LICENSOR pursuant to this Agreement, LICENSOR shall indemnify
and hold harmless the LICENSEE and its directors, officers,
and related companies, including in the event LICENSEE's
rights under this Agreement are materially and adversely
impaired through no breach by LICENSEE.
17. THIRD PARTY INFRINGEMENT
LICENSOR warrants that it owns the Trademarks and has all
necessary rights and authority to enter into this Agreement,
that it will exercise best efforts to keep the Trademarks
valid and subsisting and unimpaired by its actions, and that
it has no knowledge of any infringement of the Trademarks in
connection with products similar to the Licensed Products.
LICENSEE agrees to notify LICENSOR in writing of any
infringements or imitations by third parties of the
Trademarks, the Licensed Product and/or the Promotional and
Packaging Material which may come to LICENSEE's attention. In
the event that a third party should infringe any of the
Trademark rights or any other rights under this Agreement in
the Territory, LICENSOR shall have the sole right to determine
whether any action shall be taken on the account of such
infringement, and LICENSEE shall not take any action on
account of any infringement without first obtaining written
consent of LICENSOR, such consent not to be unreasonably
withheld.
18. ASSIGNABILITY AND MANUFACTURING
a. The license granted hereunder is, and shall remain, personal
to LICENSEE and shall not be granted, assigned, or otherwise
conveyed by any act of LICENSEE or by operation of law. For
the purposes of this Paragraph 18, any sale or transfer of any
ownership interest in LICENSEE shall constitute a prohibited
assignment of the license granted hereunder. LICENSEE shall
have no right to grant any sublicenses without LICENSOR'S prior
express written approval. Any attempt on the part of LICENSEE
to arrange to sublicense or assign to third parties its right
under this Agreement, shall constitute a material breach of
this Agreement. Nothing herein precludes LICENSEE from
pledging this Agreement as collateral or security for
financing to its primary lenders or hiring third parties to
manufacture, assemble or sell the Licensed
16
BHPC.12
Products.
b. LICENSOR shall have the right to assign its rights and
obligations under this Agreement without the approval of
LICENSEE.
19. NO AGENCY, JOINT VENTURE, PARTNERSHIP
The parties hereby agree that no agency, joint venture, or
partnership is created by this Agreement, and that neither
party shall incur any obligation in the name of the other
without the other's prior written consent.
20. INDEMNIFICATION
a. Except for claims of trademark infringement, unfair
competition or similar claims, LICENSEE will indemnify, defend
and hold LICENSOR harmless from any and all third party
liabilities, claims, obligations, suits, judgments and
expenses whatsoever, including court costs and reasonable
attorney's fees, which LICENSOR may incur or which may be
asserted against LICENSOR and which arise or occur with
respect to the operation of LICENSEE's business as it relates
to the design, import, manufacture, distribution, promotion,
advertisement, and sale of the Licensed Product under the
Trademarks or with respect to this Agreement and LICENSEE's
performance hereunder; and further provided that with respect
to any matter for which LICENSEE has an obligation to
indemnify LICENSOR, LICENSEE shall have the right to undertake
and conduct the defense of any cause of action so brought and
handle any such claim or demand, provided that LICENSEE shall
consult with LICENSOR in good faith regarding the handling of
the claim and obtain LICENSOR's consent for any settlement or
compromise that adversely affects LICENSOR's business.
b. LICENSOR will indemnify, defend and hold LICENSEE harmless
from any and all third party liabilities, claims, obligations,
suits, judgments and expenses whatsoever, including court
costs and reasonable attorney's fees, which LICENSEE may incur
or which may be asserted against LICENSEE and which arise or
occur with respect to the operation of LICENSOR's business or
the conduct of LICENSOR's other licensees of the Trademarks,
or any claim of infringement, unfair competition, and the like
with respect to LICENSEE's use of the Trademarks in compliance
with the terms of this Agreement; and further provided that
with respect to any matter for which LICENSOR has an
obligation to indemnify LICENSEE, LICENSOR shall have the
right to undertake and conduct the defense of any cause of
action so brought and
17
BHPC.12
handle any such claim or demand, provided that LICENSOR shall
consult with LICENSEE in good faith regarding the handling of
the claim and obtain LICENSEE's consent for any settlement or
compromise that adversely affects LICENSEE's business. Such
indemnity shall extend to liabilities and claims incurred after
the expiration or termination of this Agreement but which are
based on acts or events whose proximate cause arose during
this Agreement.
21. TERMINATION
a. In addition to the termination rights provided elsewhere in
this Agreement, each party will have the right to terminate
this Agreement in the event that:
(i) the other party violates or fails to perform any agreement,
obligation, term, or condition of this Agreement and that violation
or failure to perform is not cured within thirty (30) days
following written notice thereof; or (ii)the other party becomes
insolvent, files a voluntary petition in bankruptcy, a petition is
filed against that party to have that party adjudicated as bankrupt
and same is not dismissed in sixty (60) days, that party enters
into any composition with its creditors, but not including
reorganization under the Bankruptcy Code. Provided, however, such
termination by LICENSEE shall not relieve LICENSEE of the
obligation to pay any Royalty earned by LICENSOR up to the
effective date of termination, nor prejudice any cause of action or
claim of the terminating party accrued, or to accrue, on account of
the breach or default of the other party.
b. Notwithstanding the provisions of sub-paragraph 21a.(i) to the
contrary, in the event that LICENSEE violates this Agreement
or fails to perform any material agreement, obligation, term,
or condition of this Agreement for the third (3rd) time, for
any reason except force majeure, LICENSEE shall forfeit the
right to cure such violation or failure to perform, and this
Agreement will terminate upon the giving of the written notice
thereof.
22. EFFECT OF EXPIRATIONS OR TERMINATION
a. Except for the limited purposes indicated below, upon
expiration or termination of this Agreement, all rights and
licenses granted to LICENSEE hereunder shall immediately
expire, shall forthwith revert to LICENSOR, and LICENSEE shall
immediately cease and desist from using the Trademarks and any
technical information supplied by LICENSOR to LICENSEE
hereunder. To this end, LICENSEE will be
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BHPC.12
deemed to have automatically assigned to LICENSOR, pursuant to
the express provisions of this Agreement, upon such expiration
or termination, the Trademarks, equities, good will, titles,
and other rights in or to the Licensed Product and all
adaptations, compilations, modifications, translations and
versions thereof, and all other trademarks used in connection
therewith (not including any of LICENSEE's trademarks and
logos) which have been or may be obtained by LICENSEE or which
may vest in LICENSEE and which have not already been assigned
to LICENSOR but not including any generic or standard styles,
labels, tags, designs, graphics and the like. LICENSOR may
thereafter, it its sole discretion enter into such
arrangements as it deems desirable, with any other party, for
the manufacture, promotion and sale of the Licensed Product in
the Territory.
b. Any Licensed Products, finished or in progress, shall be
disposed of as follows:
(A) Upon expiration of this Agreement or termination for breach
by LICENSOR, any finished Licensed Product in LICENSEE's
possession or in progress unsold or sold but not delivered on
the date of the expiration of this Agreement may, subject to
payment of the Royalty payable to LICENSOR, be sold by
LICENSEE, pursuant to a plan to be approved by LICENSOR, or to
the customers to whom LICENSEE is committed or have bought
said product, for a period of one hundred twenty (120) days
after expiration hereof. Any Royalty paid by LICENSEE to
LICENSOR during the aforementioned one hundred twenty (120) day
period is separate and apart from the Royalty generated during
the term of the Agreement and such Royalty is not to be
applied to the Guaranteed Annual Royalty Payments as outlined
in Subparagraph 10b. and column (C) of item 7 of the attached
License Agreement Detail Schedule. All inventory remaining
after such one hundred twenty (120) day period shall be
destroyed or stripped of all imprints, lettering, mentions or
other reproductions of or references to the Trademarks and
related logos; and all molds, patterns, transfers, and other
property bearing the Trademarks of relating thereto shall be
destroyed; all under the supervision of LICENSOR, at
LICENSOR's cost if any travel involved. Except for goods
already committed or sold to LICENSEE's customers, LICENSOR
shall have the first right to purchase said Licensed Product
at the direct cost price (comprised of material and direct
labor expenses as set forth in LICENSEE's books and records,
plus five percent (5%) for overhead) upon expiration or
termination of this Agreement.
19
BHPC.12
(B) Any finished Licensed Product in LICENSEE's possession
unsold on the date of termination of this Agreement (other
than for breach by LICENSOR), and all molds, patterns,
transfers and other property bearing the Trademarks or
relating thereto shall be destroyed or defaced to remove the
Trademarks by LICENSEE within (30) days following the
termination of this Agreement; further, LICENSEE agrees, on or
before the last day of the one hundred day (120) period, to
provide LICENSOR with a certificate signed by LICENSEE's Chief
Executive Officer certifying under penalty of perjury that
such unsold inventory, molds, patterns, transfers, and other
property have been destroyed or defaced so as not to include
the Trademarks and logo of LICENSOR. Sold product may be
delivered to the customers. LICENSEE shall, within sixty (60)
days after expiration or termination of this Agreement as the
case may be, furnish LICENSOR with a full and detailed written
statement of the Licensed Product in its inventory or the
Licensed Product in progress as stated in Subparagraph 22.c.
below. LICENSOR shall have the option of conducting a
physical inventory at the time of expiration or termination
and/or at a later date (within thirty (30) days of termination
or expiration) in order to ascertain or verify such statement.
In the event that the LICENSEE refuses to permit LICENSOR to
conduct such physical inventory, LICENSEE shall forfeit its
rights hereunder to dispose of such unsold inventory. In
addition to such forfeiture, LICENSOR shall have recourse to
all other remedies available to it.
c. Upon the termination of this Agreement, LICENSEE shall, within
ten (10) days following termination, give written notice to
LICENSOR of the:
(i)Licensed Product, by style, in its possession or under its
control;
(ii)location of the inventory of the Licensed Product;
(iii)amount of the work in process;
(iv)Licensed Product in transit; and
(v)name, address, and telephone number of each contractor,
shipper and/or sales representative
d. Except for the inventory phase-out rights as stated above,
LICENSEE shall accept no order, or undertake any new
production, that would be delivered after the date of
expiration of this Agreement. Three (3) months prior to the
expiration of this Agreement, and monthly thereafter until
expiration, LICENSEE shall provide to LICENSOR an inventory,
by style, of all the Licensed Product in its possession or
under its
20
BHPC.12
control, and all work in process. Three (3) months prior to the expiration
of this Agreement, and monthly until expiration, LICENSEE shall provide
LICENSOR with copies of all orders, invoices, bills of lading, credit
memoranda, and statements provided to LICENSEE's factor (if any).
e. LICENSEE shall deliver to LICENSOR, upon termination of this Agreement or
thirty (30) days prior to the expiration of this Agreement the names,
addresses, and telephone numbers of each supplier of any item having the
Trademarks. LICENSEE shall be responsible to LICENSOR for any damages
caused by the unauthorized use by LICENSEE or by others only if caused by
the reckless conduct of LICENSEE of such reproduction materials which are
not turned over to LICENSOR.
23. MODIFICATION; WAIVER
No modification of any of the terms or provisions of this Agreement shall
be valid unless contained in a writing signed by the parties. No waiver by
either party of a breach or a default hereunder shall be deemed a waiver by
such party of a subsequent breach or default of a like or similar nature.
Except as otherwise stated in this Agreement, resort by LICENSOR or
LICENSEE to any remedies referred to in this Agreement or arising by reason
of a breach of this Agreement by LICENSEE or LICENSOR shall not be
construed as a waiver by LICENSOR of its right to resort to any and all
other legal and equitable remedies available to LICENSOR or LICENSEE.
24. FORCE MAJEURE
Neither LICENSOR nor LICENSEE shall be liable to each other or be deemed in
breach or default of any obligations contained in this Agreement, for any
delay or failure to perform due to causes beyond its reasonable control,
including but not limited to delay due to the elements, acts of the United
States Government, acts of a foreign government, acts of God, fires,
floods, epidemics, embargoes, riots, strikes, any of the foregoing events
being referred to as a "Force Majeure" condition. In such event, dates for
performance shall be extended for the period of delay resulting from the
Force Majeure condition. The party affected by a Force Majeure condition
shall, as soon as practicable, notify the other party of the nature and
extent of such condition.
25. NOTICE
All notices, approvals, consents, requests, demands, or other
communications to be given to either party in
21
BHPC.12
writing may be effected by personal delivery or by depositing the same in
the United States mail, certified and return receipt requested, postage
prepaid. Such communication shall be addressed to LICENSEE and LICENSOR at
their respective addresses as set forth in the preamble above.
26. CONSTRUCTION; VENUE
This Agreement shall be construed in accordance with the laws of the State
of California, U.S.A., and the parties agree that it is executed and
delivered in that state, and any claims arising hereunder shall, at
LICENSOR's election, be prosecuted in the appropriate Court of the State of
California in Los Angeles County or any Federal District Court therein.
27. ENTIRE AGREEMENT
This Agreement, contains the entire understanding of the parties and there
are no representations, warranties, promises, or undertakings other than
those contained herein. This Agreement supersedes and cancels all previous
agreements between the parties hereto.
28. CONFIDENTIAL INFORMATION
LICENSOR and LICENSEE agree (and shall instruct their partners, officers,
directors, designers, and other persons to whom disclosure is made) to keep
strictly confidential all designs, manufacturing instructions, and other
information relating to the Licensed Product or the customers and business
operations of the other party that are not otherwise available to the
public, whether furnished by one to the other or in any way acquired by
either party; and the same shall be used by either party solely under this
Agreement and for the purpose of marketing of the Licensed Product. This
provision, as well as all indemnifications provided in this Agreement,
survive termination or expiration.
29. EQUITABLE RELIEF
LICENSEE acknowledges and agrees that:
(i) LICENSEE's failure to meet the quality standards herein;
(ii) LICENSEE's failure: (a) to use the Trademarks, or (b) to manufacture,
offer for sale, sell, advertise, promote, ship or distribute the Licensed
Product, both in accordance with the provisions of this Agreement;
or
(iii) any unauthorized use or disclosure of confidential information of
LICENSOR or LICENSEE, cannot
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BHPC.12
be compensated adequately with a remedy at law and will cause irreparable
damage to LICENSOR or LICENSEE. Accordingly, the parties agree that
LICENSOR or LICENSEE may seek from any court having jurisdiction, such
equitable relief by way of temporary restraining orders, permanent
injunctions or otherwise as is available to compel the discontinuance of
such conduct. LICENSEE agrees that any court of general jurisdiction in
Los Angeles County or any Federal District Court therein shall have
jurisdiction of such claim.
30. ATTORNEYS' FEES
In the event any legal action becomes necessary to enforce or interpret the
terms of this Agreement, the prevailing party shall be entitled, in
addition to its court costs, to such reasonable attorneys' fees as shall be
fixed by a court of competent jurisdiction.
31. BINDING EFFECT
This Agreement shall be binding on the parties, and their successors and
assigns.
32. SURVIVAL OF THE RIGHTS
Notwithstanding anything to the contrary contained herein, such obligations
which remain executory after expiration of the term or termination of this
Agreement shall remain in full force and effect until discharged by
performance and such rights as pertain thereto shall remain in force until
their expiration.
33. SEVERABILITY
In the event that any term or provision of this Agreement shall for any
reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity or unenforceability shall not affect any other term or provision
and this Agreement shall be interpreted and construed as if such term or
provision, to the extent the same shall have been held to be invalid,
illegal or unenforceable, had never been contained herein.
34. CAPTIONS
The captions used in connection with the paragraphs and subparagraphs of
this Agreement are inserted only for purpose of reference. Such captions
shall not be deemed to govern, limit, modify or in any other manner affect
the scope, meaning or intent of the provisions of this Agreement or any
part thereof nor shall such captions otherwise be given any legal effect.
23
BHPC.12
35. INCORPORATION OF EXHIBITS
LICENSOR and LICENSEE acknowledge and agree that the provisions of Exhibits
"A" through "D" attached hereto (the "Exhibits") are integral to this
Agreement and that the provisions of the Exhibits are all hereby
incorporated herein and made a part hereof as if set out in full in this
Agreement.
36. RIGHT OF FIRST REFUSAL
LICENSOR will offer to LICENSEE the Right of First Refusal to license the
product category of men's warm up suits in all fabrications, excluding
silk, men's basic pique and jersey polo shirts, men's beachwear, i.e.
swimwear, crew neck fleece tops in solid colors, embroidery, screen prints
and color block, matching basic t-shirts and tank tops, and basic fleece
pants. LICENSOR will submit in writing to LICENSEE the terms and
conditions of any good faith offer to license any of said product
categories in the United States. LICENSEE will have fifteen (15) days from
receipt of said notice to notify LICENSOR in writing that it is willing to
accept a License Agreement under the same terms and conditions as the
offer. IF LICENSOR is not notified within said time period, LICENSOR will
deem that LICENSEE has refused the offer and will pursue the license with
the offering party on the same terms and conditions presented to LICENSEE.
If the terms and conditions change, LICENSOR shall offer the right of first
refusal to LICENSEE once again. These rights of first refusal shall
continue through the term of this Agreement whenever the rights for said
product categories are offered to a third party for licensing.
37. APPROVALS
All approvals or consents required to be given by one party to the other
under this Agreement shall not be unreasonably withheld or delayed
notwithstanding anything in the Agreement to the contrary.
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BHPC.12
IN WITNESS WHEREOF, the parties hereto agree that this Agreement shall take
effect as of the date and year first above written above.
LICENSOR: LICENSEE:
BHPC MARKETING, INC., I.C. XXXXXX & CO., L.P.
a California Corporation a Delaware Limited Partnership
BY: /s/ Xxx Xxxxxxxx BY: /s/ Xxxxxx X. Xxxx
-------------------------------- ------------------------------------
Xxx Xxxxxxxx Xxxxx Xxxx
Licensing Director President, C.E.O.
Date: 12/18/95 Date: 12/20/95
---------- ----------
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LICENSE AGREEMENT DETAIL SCHEDULE
1. DEFINITION OF TERRITORY: United States, all its territories and
possessions
2. DEFINITION OF LICENSED PRODUCT: DISTRIBUTION DATE:
------------------------------- ------------------
Men's denim sportswear January 1, 1996
Men's outerwear
Men's woven shirts, excluding dress shirts
Men's knit and woven casual pants and shorts
Men's sweaters
Men's basic and fashion fleece tops and bottoms
Men's overalls and shortalls
Men's knit tops, including t-shirts and polo shirts
Men's swimwear
Men's warm ups
All silk products are excluded from this Definition of
Licensed Product
3. INITIAL TERM: FROM TO
------------- ---- --
First Contract Year: January 1, 1996 December 31, 1996
Second Contract Year: January 1, 1997 December 31, 1997
Third Contract Year: January 1, 1998 December 31, 1998
4. RENEWAL TERM:
-------------
Fourth Contract Year (if any): January 1, 1999 December 31, 1999**
Fifth Contract Year (if any): January 1, 2000 December 31, 2000
Sixth Contract Year (if any): January 1, 2001 December 31, 2001
5. ADVANCE ROYALTY PAYMENT:
First Contract Year: None ($00)
6. ROYALTY RATE:
5% of Net Shipments, plus 1% Advertising Royalty, to be spent by Licensee in
Advertising the Licensed Product in the Territory
