LICENSING AGREEMENT TERM SHEET
Licensee: INNOVO, INC. Date: July 7, 1997
Address: 00 Xxxxx Xxxx Xxxxxx Xx.: 000 - 000000 - 000
Xxxxxxxxxxx, XX 00000
The following terms are made part of and are subject to all definitions,
terms and conditions set forth in License No. 1453 :
MARKETING PROGRAM: NFL Game Day
TERM: April 1, 1997 - March 31, 1999
TERRITORY: The United States, its territories and possessions.
LICENSED PRODUCTS: UTILITY/LAUNDRY BAGS; LUNCH BAGS; SEAT CUSHION TOTE;
SHOE ORGANIZER/GARMENT BAG/TOTE BAGS
FISCAL YEAR LICENSED PRODUCT ROYALTY%
YEAR I 4/1/97 - 3/31/98 3146 UTILITY/LAUNDRY BAGS 10.00
7446 LUNCH BAGS 10.00
7447 SEAT CUSHION TOTE 10.00
30349 SHOE ORGANIZER/GARMENT BAG/ 10.00
TOTE BAGS
YEAR II 4/1/98 - 3/31/99 3146 UTILITY/LAUNDRY BAGS 11.00
7446 LUNCH BAGS 11.00
7447 SEAT CUSHION TOTE 11.00
30349 SHOE ORGANIZER/GARMENT BAG/ 11.00
TOTE BAGS
FISCAL YEAR MINIMUM GUARANTEE ADVANCE
YEAR I 4/1/97 - 3/31/98 $25,000 $25,000
YEAR II 4/1/98 - 3/31/99 $30,000 $25,000
AUTHORIZED BRANDS FOR
LICENSED PRODUCT(S): INNOVO
LICENSED MARK(S) FOR
LICENSED PRODUCT(S): Marketing Program logo, Club Marks and the
following League Marks:"National Football
League", "NFL", "National Football Conference",
"American Football Conference", "NFC", "AFC".
DISTRIBUTION CHANNELS FOR
LICENSED PRODUCT(S): All Retailers in the Territory
RENEWAL REQUEST DATE: August 31, 1998
PROMOTIONAL PRODUCTS:
FISCAL YEAR LICENSED PRODUCTS
YEAR I As reasonably requested by NFLP.
YEAR II As reasonably requested by NFLP.
COOPERATIVE FUND: N/A
ADVERTISEMENTS: N/A
SPONSORSHIPS:
Retail Licensing Agreement
Licensee: INNOVO, INC. Date: July 7, 1997
Address: 00 Xxxxx Xxxx Xxxxxx Xx.: 000 - 000000 - 000
Xxxxxxxxxxx, XX 00000 Lic. No.: 1453
National Football League Properties, Inc. ("NFLP") has the exclusive
right to license for commercial purposes the trademarks of the National
Football League ("NFL") and the thirty-one professional football teams
that comprise the NFL ("Member Clubs"). Licensee, whose name and address
are set forth above, desires to use certain of these trademarks in
accordance with the terms and conditions of this agreement ("License").
In consideration of the mutual premises, covenants and undertakings
contained in this License, the parties to this License agree as follows:
1. Definitions
As used in this License, the terms listed on the attached Term Sheet
and elsewhere in this License have the following meanings:
a. "Advance Royalty Payment": The amount to be credited to Royalty
payments due for the corresponding Fiscal Year payable to NFLP upon
the execution of this License for Fiscal Year I and on or before
April 15 for each successive Fiscal Year.
b. "Advertisements": Advertising space in designated NFLP publications
to be purchased by Licensee in accordance with this License.
c. "Affiliate": Any person or entity in which Licensee or any owner,
majority shareholder, officer or director of Licensee has any direct
or indirect beneficial or ownership interest or is a joint venture
partner.
d. "Authorized Brands": The only brand names Licensee may use in
association with the Licensed Products.
e. "Club Marks": The full team names, nicknames, helmet designs,
uniform designs, logos, slogans, geographic designations, and other
identifying symbols and indicia adopted for commercial purposes by
the Member Clubs.
f. "Cooperative Fund": The amount payable to NFLP during each Fiscal
Year for use by NFLP in connection with the designated Cooperative
Program.
g. "Distribution Channels": The channels of trade in the Territory in
which Licensee may distribute for sale or sell each Licensed Product
as defined in Exhibit I attached to this License and/or the attached
Term Sheet.
h. "Fiscal Year": The period beginning on April 1 of any year and
ending on March 31 of the following year except for Fiscal Year I,
which will begin on the date this License is fully-executed and will
end on March 31 of the following year.
i. "League Marks": "National Football League", "NFL", "National
Football Conference", "American Football Conference", "NFC", "AFC",
"Super Bowl", "Pro Bowl", the NFL Shield design, and other
identifying symbols, slogans and indicia adopted for commercial
purposes by the NFL.
j. "Licensed Marks": The trademarks for which Licensee is granted
certain limited, non-exclusive rights under this License.
k. "Licensed Products": All products for which Licensee may use the
Licensed Marks in association with the Authorized Brands. This
license will refer to each distinct type of product as a "Licensed
Product" since more than one product may be licensed (e.g. T-shirts
and jackets would each be a Licensed Product).
l. "Marketing Program": The program established by NFLP in connection
with which Licensee may use the Licensed Marks as authorized under
this License. Licensee shall abide by all rules, guidelines and
policies established by NFLP for such Marketing Program, which are
deemed part of this License.
m. "Minimum Royalty Guarantee": The minimum amount of Royalty payments
payable to NFLP on or before the 15th day following the end of each
Fiscal Year.
n. "Net Sales": Gross sales of all Licensed Products sold or
distributed for sale at the greater of Licensee's invoiced selling
price or Licensee's normal domestic wholesale warehouse price less
sales derived from returns received and credited and less reasonable
quantity discounts as actually calculated on the invoice provided
that the total returns in any Fiscal Year in which Licensee desires
to deduct quantity discounts from Net Sales may not exceed ten
percent (10%) of Net Sales for the corresponding Fiscal Year without
NFLP's prior written consent only. Licensee shall not credit any
return at a rate greater than the original invoiced selling price
for such Licensed Products. There shall be no other deductions
allowed including, without limitation, deductions for manufacturing
costs, selling costs, distribution costs, advertising and
promotional costs, freight, non-collected or uncollectible accounts,
commissions, taxes, cash discounts, close out sales, distress sales,
sales to employees, or any other costs. For purposes of this
Agreement, Net Sales and all other referenced sales occur when
Licensee invoices or ships any Licensed Product, whichever is
earlier. If Net Sales are made to an Affiliate, the dollar amount
of gross sales will be the greater of Licensee's regular price to
unaffiliated accounts or the Affiliate's gross sales price to an
unaffiliated account.
o. "NFL Marks": All League Marks and Club Marks, collectively.
p. "Premiums": Any products, including the Licensed Products, bearing
the NFL Marks or other indicia of the NFL or its Member Clubs that
Licensee sells or gives away for the purposes of promoting,
publicizing or increasing the sale of its own products or services
other than the Licensed Products, or that Licensee sells or gives
away to any other party whom Licensee knows or should reasonably
know intends to use such products for the purposes of promoting,
publicizing or increasing the sale of any other party's products or
services. Promotions include, without limitation, combination
sales, incentives for sales force, and trade or consumer promotions.
q. "Promotional Products": The quantity of each Licensed Product that
Licensee shall provide to NFLP at no cost during each Fiscal Year
for use in connection with NFLP's Promotional Programs, as defined
in Paragraph 5 of this License.
r. "Renewal Request Date": The date by which NFLP must receive
notification from Licensee of Licensee's desire to renew the
License.
s. "Royalty": The amount of Net Sales Licensee shall pay to NFLP for
all sales of the Licensed Products. NFLP reserves the right to
increase the rate of the Royalty during the Term, provided that it
gives Licensee at least six (6) months written notice before such
increase takes effect.
t. "Sponsorship": The designated events for which Licensee will
participate as a sponsor during each Fiscal Year of the Term subject
to the execution of an NFLP Sponsorship Agreement.
u. "Style": A distinct prototype of a Licensed Product that differs
from any other prototype of that same Licensed Product in any form
or manner with respect to design, material, pattern, size, shape,
Licensed Marks, or any other distinguishing characteristic involving
the specifications for the production of all or any portion of that
Licensed Product (e.g. T-shirts bearing the San Francisco 49ers logo
and T-shirts bearing the San Diego Chargers logo would each be a
Style of Licensed Product).
v. "Term": The time period for which this License shall be effective.
w. "Territory": The geographic area in which Licensee shall have the
right to sell the Licensed Products. Licensee is prohibited from
selling Licensed Products F.O.B. outside the Territory without the
prior written approval of NFLP.
x. "Unit": A single Licensed Product (e.g. one T-shirt and one jacket
would each be a Unit).
2. Grant of License
Subject to all of the terms and conditions of this License, NFLP
grants Licensee the non-exclusive right to use the Licensed Marks in
connection with the manufacture, distribution, sale, and advertising
of the Licensed Products under the Authorized Brand in the
Distribution Channels in the Territory in accordance with all
policies, rules and regulations of the Marketing Program and NFLP,
which are deemed part of this License. Unless otherwise indicated
on the Term Sheet, Licensee shall have no right to distribute the
Licensed Products directly to consumers as a Direct Retailer or
otherwise. Licensee shall have no right to sell or distribute any
Premiums unless Licensee receives a separate Premium License from
NFLP and pays NFLP the applicable Royalty under such Premium
License. Licensee shall not use the Licensed Products as Premiums
or permit the use of the Licensed Products as Premiums by any party
whom Licensee knows or should reasonably know intends to use the
Licensed Products as Premiums.
3. Terms of Payment
a. Licensee shall pay NFLP the Royalty on all sales of the Licensed
Products. Regardless of whether any sales occur during any Fiscal
Year, Licensee shall also pay NFLP the applicable Advance Royalty
Payment and Minimum Royalty Guarantee for each Fiscal Year during
the Term. Advance Royalty Payments and any payments made to satisfy
the Minimum Royalty Guarantee are not refundable. Licensee may
credit the Advance Royalty Payment and Royalty payments made to NFLP
during each Fiscal Year to the Minimum Royalty Guarantee for the
corresponding Fiscal Year only. Licensee may not credit such
amounts to the Advance Royalty Payment, Minimum Royalty Guarantee or
any other payment required under this License for any other Fiscal
Year. If the Term Sheet assigns a per-product Advance Royalty
Payment and Minimum Royalty Guarantee, then Licensee may only credit
the Advance Royalty Payment for such product and Royalty payments
from the sales of such product toward the corresponding Minimum
Royalty Guarantee for such product in the corresponding Fiscal Year.
If NFLP terminates this License, for the Fiscal Year in which
termination occurs ("Termination Fiscal Year") Licensee shall pay
NFLP the Royalty on all sales of the Licensed Products made during
the Termination Fiscal Year or a pro rated portion of the Minimum
Royalty Guarantee owed in excess of the Advance Royalty Payment
("Termination Guarantee"), whichever is greater. For purposes of
this paragraph the pro rated Minimum Royalty Guarantee will be
calculated as follows:
Termination Guarantee x No. of Days Completed in Termination
Fiscal Year
1 365
b. On or before the 15th day of each month, Licensee shall make all
Royalty payments to NFLP due on sales of the Licensed Products
during the preceding calendar month. Simultaneously with the Royalty
payment, Licensee shall furnish full and accurate statements of the
Net Sales of each Licensed Product sold and distributed during such
calendar month on forms provided by NFLP. The statements will
include the quantity and description of each Licensed Product
itemized by Member Club if applicable, the gross sales price,
itemized deductions from the gross sales price, any returns made
during the preceding month, and the resulting Net Sales on which
Licensee calculated the Royalty amount. Licensee shall furnish such
statements for each Licensed Product regardless of whether it sold
any such Licensed Product during the preceding month. NFLP's receipt
or acceptance of any statement or Royalty payment or the cashing of
a Royalty check will not preclude NFLP from questioning the
correctness of such statements or payments at any time. Upon
discovery of any verifiable inconsistency or mistake in such
statements or payments, Licensee shall immediately rectify such
inconsistency or mistake.
c. Licensee shall pay NFLP all other amounts listed on the Term Sheet
attached to this License, if applicable, in accordance with the
dates provided in such Term Sheet.
d. Licensee shall pay NFLP an additional charge of one and one-half
percent (1.5%) per month on any payment due under this License that
remains unpaid fifteen (15) days after such payment becomes due.
4. Quality Control
a. Prior to making any use of any Style of any Licensed Product,
Licensee shall submit to NFLP for its approval at Licensee's sole
cost and expense at the following applicable stages: (i) finished
artwork or final proofs; (ii) pre-production samples or strike-offs
for such proposed Style; and (iii) a sample Unit of the finished
version of such Style together with all packaging, cartons,
containers, hangtags and wrapping materials related to such Unit
("Related Materials"). For Styles that differ solely with respect
to the Licensed Marks, Licensee may submit a sample Unit of one
Style along with artwork of the Styles bearing the other Licensed
Marks for approval purposes unless NFLP requests a sample Unit of
each such Style. NFLP shall use its best efforts to promptly
evaluate all such submissions and provide Licensee, if applicable,
with quality standards and specifications for the finished Units of
each Style. Upon approval of the finished version of a sample Unit
of a Style, NFLP shall execute a Product Approval Form that will
contain any applicable quality standards and specifications.
License shall not manufacture, sell, distribute or advertise any
Style of a Licensed Product unless NFLP has executed a Product
Approval Form for such Style.
b. All Product Approval Forms are effective for one Fiscal Year only
and Licensee must resubmit to NFLP each Style of each Licensed
Product previously approved by NFLP for quality control approval
each Fiscal Year. From time to time, NFLP may request additional
sample Units of any Style of any Licensed Product to confirm
continued compliance with NFLP's quality control guidelines and any
applicable quality standards and specifications. NFLP shall have
the right to withdraw its approval of any Style of any Licensed
Product if, in NFLP's sole judgment, such sample Units cease to
conform to such guidelines, standards or specifications or otherwise
deviate in quality from the previously approved sample Units. Upon
notice by NFLP to Licensee that the Product Approval Form for a
Style of a Licensed Product has been withdrawn, Licensee shall
immediately cease to manufacture, distribute, sell or advertise any
further Units of such Style until such time as a new Product
Approval Form has been executed and delivered by NFLP.
c. Licensee shall not make any modification to any Style for which NFLP
has issued a Product Approval Form or depart from any applicable
quality standards and specifications for any Style unless NFLP has
approved such modification for such Style and issues a new Product
Approval Form. Licensee acknowledges that the manufacture, use,
sale, distribution, or advertising of any Style that deviates from
the Style approved by NFLP will constitute a material breach of this
License. Upon such breach, NFLP may terminate this License
immediately.
d. No distribution or sale of irregulars or seconds is permitted except
when Licensee receives prior written approval from NFLP.
5. Advertising and Promotional Materials
a. Licensee will not use the Licensed Marks or any reproduction of
them, including without limitation, Photographs or Computer Art, as
defined in Paragraph 10a, in any advertising, promotion, publicity
or display materials (collectively "Promotional Materials") without
receiving NFLP's prior written approval executed on a Promotional
Approval Form supplied to Licensee by NFLP. Licensee may use such
approved Promotional Materials only in conjunction with the Styles
of Licensed Products that NFLP has approved. Licensee shall submit
to NFLP all Promotional Materials at the following applicable stages
appropriate to the medium used: (i) conceptual stage, pre-production
art or rough cuts; (ii) layout, storyboard and script; (iii)
finished materials; and (iv) at any other time as reasonably
requested by NFLP. Licensee shall ensure that it submits all
proposed Promotional Materials and any modifications to previously
approved Promotional Materials to NFLP in a timely fashion that will
ensure NFLP has adequate time to review such materials prior to the
date of their proposed use by Licensee. NFLP shall use best efforts
to evaluate all such Promotional Materials' submissions within ten
(10) business days of their receipt by NFLP. NFLP shall execute a
Promotional Approval Form for all Promotional Materials that it
approves. Licensee shall notify its retailers and/or Third Party
Distributors that NFLP must approve all Promotional Materials
involving or using in any form or manner the Licensed Marks.
Licensee shall use best efforts to ensure that its retailers and/or
Third Party Distributors do not publish, display or otherwise
distribute such Promotional Materials without NFLP's prior written
approval.
b. NFLP has the exclusive right, in its sole discretion, to approve or
disapprove any Promotional Materials' submissions. Licensee
acknowledges that NFLP may disapprove Promotional Materials that, in
NFLP's opinion, reflect unfavorably upon NFLP, the NFL or its Member
Clubs including, without limitation, materials involving gambling,
lotteries or other games inconsistent with the image of the NFL, the
Member Clubs, or the Licensed Products.
c. NFLP may withdraw its approval of any Promotional Materials if: (i)
the Promotional Materials have been altered without the prior
written approval of NFLP; (ii) the Style and/or the Licensed Product
promoted in the Promotional Materials ceases to be approved under
this License; or (iii) an event occurs that, in NFLP's opinion,
causes NFLP's relationship with Licensee or any Licensed Product to
adversely reflect upon the professional or business reputation of
the NFL, its Member Clubs or NFLP.
d. Licensee represents that NFLP has the right to conduct promotions
and special events in its sole discretion and to print catalogs,
sales sheets and brochures involving representative merchandise from
NFLP's licensees ("Promotional Programs"). Licensee shall supply
within ten (10) business days of any request by NFLP, at no charge
to NFLP, all or any portion of the quantity of Promotional Products
specified on the Term Sheet required by NFLP for use, in NFLP's sole
discretion, in such Promotional Programs.
e. Licensee shall pay NFLP the designated amounts for the
Advertisements, Sponsorship, and Cooperative Fund, if applicable, on
or before the corresponding dates listed on the Term Sheet attached
to this License. NFLP shall use such payments in a manner
determined by NFLP in its sole discretion.
f. During each Fiscal Year of the Term in which NFLP publishes the NFL
Merchandise Catalogue, Licensee shall purchase a full-page
advertisement in such catalogue at the rate established in NFLP's
then-existing rate card. Licensee shall make such payment within
fifteen (15) days from receiving an invoice from NFLP.
6. Distribution Requirements
Licensee shall distribute for sale and sell each Licensed Product
only in the authorized Distribution Channels. Prior to distribution
of any Licensed Product, Licensee shall submit to NFLP a list of its
retail accounts for the Licensed Products for the purpose of
determining which accounts fall within the Distribution Channels.
NFLP shall determine, in its sole discretion, whether such retail
accounts fall within the Distribution Channels and shall provide
Licensee with a list of the approved retail accounts. Licensee
shall manufacture, distribute, sell and maintain inventory of
sufficient quantities of each Style of each Licensed Product to meet
the reasonable market demand in the Distribution Channels. Licensee
shall not sell Licensed Products to any third party that Licensee
knows or should reasonably know intends to sell the Licensed
Products outside of the authorized Distribution Channels. If
Licensee sells or distributes for sale other merchandise that does
not bear the Licensed Marks but is of the same grade and quality as
the Licensed Products, Licensee shall not discriminate in the
granting of commissions and discounts to salespersons, dealers and
distributors for the sale of the Licensed Products. If the Licensed
Marks are Club Marks, Licensee acknowledges that it shall
manufacture, distribute and sell a commercially significant quantity
of Units bearing the trademarks of each Member Club individually in
each Style. Licensee shall have no right to distribute the Licensed
Products via computer on-line services unless expressly indicated on
the Term Sheet.
7. Authorized Brands
Licensee shall only use the Authorized Brands, if applicable, in
connection with the manufacture, distribution, sale, and advertising
of each Licensed Product. NFLP shall have the right, in its sole
discretion, to remove or change any of the Authorized Brands, if
applicable, during the Term. Licensee must receive the prior
written approval of NFLP to use any other trademarks on the Licensed
Products.
8. NFLP's Purchase of Licensed Products
In addition to the Promotional Products provided at no cost by
Licensee, NFLP, the NFL and its Member Clubs shall have the right to
purchase any of the Licensed Products in any quantity at the minimum
wholesale price, excluding Royalty payments, that Licensee charges
to its best customer, provided that NFLP will not require Licensee
to pay a Royalty on such sales.
9. Third Party Relationships
a. Licensee shall not assign, sublicense, transfer or otherwise
encumber any of its rights under this License to any Affiliate or
other third party without NFLP's prior written consent. If Licensee
assigns, sublicenses, transfers or encumbers any portion of this
License without such consent, NFLP shall have the right to terminate
this License immediately. Among other things, NFLP will consider
the License assigned and subject to the requirements of this
subparagraph if: (i) the beneficial ownership or control of fifty
percent (50%) or more of Licensee's capital stock is transferred or
otherwise conveyed; (ii) Licensee becomes part of any merger or
consolidation; or (iii) the sale or transfer of all or substantially
all of Licensee's assets occurs.
b. Licensee shall have no right to use any screen printer in connection
with the manufacture of any Licensed Products, including, without
limitation, "hot market" and Super Bowl products, without NFLP's
prior written consent. In the event of such consent, Licensee shall
have no right to sell the Licensed Products to such approved screen
printer without the separate written consent of NFLP. In the event
of such separate consent, Licensee shall calculate Royalty payments
for Licensed Products sold to screen printers based on Net Sales of
the Licensed Products calculated on the sales made by the screen
printer to parties in the Distribution Channels.
c. Licensee must receive NFLP's prior written consent to use any
domestic or foreign third party distributor of any Licensed Product.
If the Licensed Products consist of headwear or apparel, Licensee
may only use those third party distributors that NFLP has approved
for all NFL apparel and headwear licensees. For purposes of this
License, a third party distributor shall mean any third party who
purchases Licensed Products from Licensee, ships such products to
retailers and invoices retailers directly ("Third Party
Distributor"). Licensee shall ensure that any of its sales
representatives for the Licensed Products shall not produce,
inventory, warehouse or distribute any of the Licensed Products.
NFLP shall have the right to approve or disapprove any Third Party
Distributor in its sole discretion.
d. Licensee must receive NFLP's prior written consent to use a domestic
or foreign third party manufacturer of any Licensed Product or any
portion of any Licensed Product, including patches, labels and
emblems made by any party that is not already a licensee of NFLP
("Third Party Manufacturer"). NFLP shall have the right to approve
or disapprove any Third Party Manufacturer in its sole discretion.
NFLP's approval of any Third Party Manufacturer, if granted, will be
contingent on the execution of an agreement between NFLP and the
approved Third Party Manufacturer. Notwithstanding such agreement,
Licensee shall at all times remain primarily obligated to NFLP under
this License and shall take all necessary efforts to ensure that
such Third Party Manufacturer uses the Licensed Marks only to
manufacture the designated Licensed Product and for no other purpose
including, without limitation, promoting or selling the Licensed
Products. If such Third Party Manufacturer has made an unauthorized
use of the Licensed Marks, Licensee shall fully cooperate with NFLP
to ensure that such unauthorized use ceases promptly. Licensee
shall be primarily obligated to ensure that each Licensed Product
produced by such Third Party Manufacturer complies with the
requirements of Paragraph 4 of this License.
e. Licensee represents and warrants that it shall manufacture and cause
all Third Party Manufacturers to manufacture the Licensed Products
in accordance with all applicable laws, rules and regulations of the
United States Department of Labor and state Departments of Labor,
including, without limitation, the federal Fair Labor Standards Act.
Licensee shall ensure that it will not distribute or cause the
distribution of Licensed Products that Licensee knows or should
reasonably know were manufactured in violation of any federal or
state labor law, rule or regulation. Upon a determination by the
United States Department of Labor or any state Department of Labor
that the Licensed Products have been manufactured in violation of
any federal or state labor law, rule or regulation, Licensee shall
take all necessary steps to correct such violation including,
without limitation, paying all applicable back wages found due to
workers who manufactured the Licensed Products or any portion of
them.
f. Licensee shall not make any payments to any Member Club or to any
shareholder, officer, director, employee, agent or representative of
any Member Club, or to any employee, agent or representative of the
NFL or its affiliates in such person's individual capacity, in
connection with the use of any Licensed Marks under this License or
otherwise as a direct result of sales of any Licensed Product.
Licensee shall disclose to NFLP all existing agreements or
agreements being negotiated by Licensee or its agent between
Licensee and any Member Club or any shareholder, officer, director,
employee, agent or representative of any Member Club, or any
employee, agent or representative of the NFL or any of its
affiliates in such person's individual capacity.
g. In the event that NFLP consents to any third party relationship
under this Paragraph 9 or otherwise under this License, Licensee
acknowledges that such approval will be contingent on the execution
of an appropriate form or agreement supplied by NFLP.
10. Computer Artwork and Photographs
a. Subject to the requirements of Paragraph 4, if Licensee wishes to
use computer artwork incorporating graphic depictions of the
Licensed Marks ("Computer Art") or photographs incorporating graphic
depictions of the Licensed Marks ("Photographs") owned and/or
controlled by NFLP, Licensee shall request such Computer Art or
Photographs in a Use Application provided to Licensee by NFLP. If
NFLP, in its sole discretion, approves such application, NFLP shall
provide Licensee with Computer Art or Photographs at a rate
established by NFLP in its sole discretion provided that, in the
case of Photographs, Licensee must first sign NFLP's standard Photo
Use Agreement. Licensee shall make any payment for the Computer Art
or Photographs within thirty (30) days of receiving an invoice from
NFLP. Licensee shall only use the Computer Art or Photographs in
accordance with the terms and conditions of this License including,
without limitation, Paragraph 11, and, in the case of Photographs,
the Photo Use Agreement. The terms of the executed Photo Use
Agreement will govern in the event of any conflict between the terms
of this License and the terms of the Photo Use Agreement.
b. Licensee shall not make copies of the Computer Art or Photographs
without the express written approval of NFLP and shall not use the
Computer Art or Photographs for any purpose other than the purpose
set forth in Licensee's Use Application. Licensee shall not provide
the Computer Art or Photographs to any other party including a
manufacturer, unless NFLP approves such party in accordance with
Paragraph 9 of this License. Licensee shall take all steps
necessary to prevent the unauthorized copying or use of the Computer
Art or Photographs by third parties.
c. Upon the expiration or termination of this License, Licensee shall
immediately deliver to NFLP all Computer Art and Photographs
provided by NFLP and all copies and duplications of such Computer
Art or Photographs and all related materials.
d. Licensee acknowledges that it has no right, title or interest in or
to any of the Photographs, including, without limitation, copyrights
in the Photographs. Licensee represents that it will not assert any
rights in or to the Photographs during the Term or thereafter.
11. Protection of Rights
a. Licensee acknowledges that, as between NFLP and Licensee, NFLP
exclusively owns the NFL Marks and all copyrights, trademarks and
other proprietary rights in and to them. Licensee further
acknowledges that NFLP shall own worldwide in perpetuity: (i) all
artwork produced under this License bearing the NFL Marks
("Artwork") and all copyrights and other proprietary rights in such
Artwork; (ii) all secondary marks and/or promotional concepts
("Secondary Marks") developed for use and used in connection with
any Licensed Product and all copyrights and other proprietary rights
in such Secondary Marks; (iii) all derivative works based on any of
the NFL Marks, Secondary Marks, Computer Art, or Artwork
("Derivative Works") and all copyrights and other proprietary rights
in such Derivative Works; and (iv) all Computer Art and all
copyrights and other proprietary rights in such Computer Art as well
as duplicates and copies of it. Licensee's use of the Licensed
Marks, Computer Art, Artwork, Secondary Marks and Derivative Works
is for NFLP's benefit and Licensee will not acquire any rights in
any of them by such use. Licensee acknowledges that NFLP will have
the right to terminate this License if Licensee asserts any rights
in or to any of the NFL Marks, Computer Art, Artwork, Secondary
Marks and Derivative Works other than those granted under this
License. Licensee shall not attack the trademarks, copyrights or
other proprietary rights of NFLP, the NFL, or its Member Clubs
during the Term or thereafter.
b. Any Artwork, Secondary Marks, Derivative Works, computer artwork or
other materials created by Licensee or its agents in connection with
this Agreement shall be performed as a "work made for hire" for
NFLP. Licensee irrevocably assigns and transfers to NFLP all right,
title and interest, including all copyrights and extensions and
renewals thereof, in and to the Artwork, the Secondary Marks, the
Derivative Works, any computer artwork created by Licensee or its
agents and all related proprietary rights (collectively the
"Proprietary Materials"). At the request of NFLP, Licensee shall
execute all documents confirming NFLP's rights in and to the NFL
Marks and Proprietary Materials including an assignment of copyright
in form and substance satisfactory to NFLP. Licensee shall cause
each third party who makes or contributes to the creation of the
Proprietary Materials to agree that all rights, including the
copyrights, in his or her work shall be owned by NFLP whether as a
"work made for hire" or by assignment, as appropriate.
c. Licensee shall only display or use the Licensed Marks in the form
and manner that NFLP has specifically approved in writing. At
NFLP's direction, Licensee shall cause to be irremovably and legibly
printed or affixed in a clearly visible location approved by NFLP on
every Unit of each Licensed Product, and all Related Materials,
Proprietary Materials, and Promotional Materials the following:
(i) Trademark Notices as directed and specified by NFLP;
(ii) Copyright Notices as directed and specified by NFLP;
(iii) The Marketing Program symbol as directed by NFLP;
(iv) Hangtags, inserts, the Officially Licensed Product hologram
label or hangtag, which must be used on all Licensed Products, and
other identifying material required by NFLP;
(v) A permanent label displaying Licensee's name and the Authorized
Brand as directed by NFLP;
(vi) Licensee's name and trade name as directed by NFLP; and
(vii) All other notices required by NFLP to protect the
interests of NFLP, the NFL, and its Member Clubs.
d. Licensee will not use any Trademark or Copyright Notices on the
Licensed Products, Related Materials, Proprietary Materials, and
Promotional Materials that conflict with, negate or cause confusion
with any notices required under this Paragraph 11. Licensee
represents that, except for the Authorized Brands, if applicable, or
as otherwise authorized in writing by NFLP, it will not associate
other licensed properties, names, symbols, or designs with the
Licensed Marks on any of the Licensed Products, Related Materials,
Promotional Materials, and Proprietary Materials. Licensee will not
use the Licensed Marks or NFL Marks on any business sign, business
card, invoice, sales sheet, brochure, catalog, or other form, or as
part of the name of Licensee's business except as authorized by NFLP
in writing prior to such usage.
e. NFLP shall have the right to secure trademark and/or copyright
registrations for the NFL Marks. Upon request by NFLP, in addition
to any other quantity of Licensed Products that Licensee must submit
to NFLP under this License, Licensee shall deliver to NFLP, free of
cost, twelve (12) Units of each Licensed Product with their Related
Materials for such registration purposes provided that Licensee
shall not owe any Royalty for such Units. Licensee shall provide
NFLP with the date of first use of each Licensed Product in
interstate and intrastate commerce. NFLP shall have the right to
secure trademark and/or copyright registrations in NFLP's name for
any Proprietary Materials created by Licensee or its agents for use
in connection with any Licensed Product. By execution of this
License, Licensee appoints NFLP as Licensee's attorney-in-fact
coupled with an irrevocable interest to execute, acknowledge,
deliver and record all registrations and all documents referred to
in this Paragraph 11.
f. Licensee shall assist NFLP, at NFLP's expense, in the procurement,
protection, and maintenance of NFLP's rights in and to the NFL Marks
and the Proprietary Materials. NFLP may, in its sole discretion,
commence or prosecute and control the disposition of any claims or
suits relative to the imitation, infringement and/or unauthorized
use of the NFL Marks or the Proprietary Materials either in its own
name, or in the name of Licensee, or join Licensee as a party in the
prosecution of such claims or suits. Licensee shall cooperate fully
with and provide full assistance to NFLP in connection with any such
claims or suits. Licensee shall promptly notify NFLP in writing of
any infringement, imitations, or unauthorized use of the NFL Marks
or Proprietary Materials by others. NFLP shall, in its sole
discretion, determine whether to take action and the type of action,
if any, to take against such infringement. Licensee shall not
institute any suit or take any action on account of such
infringements, imitations or unauthorized uses unless it receives
NFLP's prior written consent. NFLP will receive the full amount of
any settlement made or damages awarded in connection with any action
taken against such infringement.
12. Indemnification and Insurance
a. During the Term and thereafter, Licensee shall be solely responsible
for, defend, indemnify and hold harmless NFLP, the NFL, its Member
Clubs, and each of their respective affiliates, shareholders,
officers, directors, agents and employees for, from and against any
claims, demands, causes of action, damages, costs and expenses,
including reasonable attorneys' fees, judgments, and settlements
arising out of or in connection with: (i) Licensee's breach of any
of its representations, warranties, covenants or obligations
contained in this License; (ii) Licensee's use of the Licensed Marks
except as provided in subparagraph (c) below; (iii) Licensee's
noncompliance with any applicable federal, state, or local laws or
regulations; or (iv) the manufacture, distribution, sale,
advertising or use of any Licensed Product. Licensee acknowledges
that NFLP's approval of any Licensed Product pursuant to Paragraph
4 of this License or Promotional Materials or promotional concepts
pursuant to Paragraph 5 of this License shall not relieve Licensee
of its indemnification obligations under this Paragraph.
b. Licensee shall obtain and maintain at its own expense from a
licensed and admitted insurance carrier with a rating not less than
A from Best, a product liability insurance policy that will provide
coverage of three million dollars ($3,000,000) for personal injuries
arising out of each occurrence and one million dollars ($1,000,000)
for property damage arising out of each occurrence and an
advertising liability insurance policy that will provide coverage of
three million dollars ($3,000,000) for each occurrence. Licensee
shall ensure that such policies: (i) will list the NFL, its Member
Clubs, NFLP, and each of their respective affiliates, shareholders,
officers, directors, agents, and employees as additional insureds;
and (ii) will each provide that they can not be canceled without at
least thirty (30) days written notice to NFLP. Simultaneously with
the execution of this License, Licensee shall submit to NFLP the
fully paid policies or certificates of insurance. Compliance with
this subparagraph (b) will not relieve Licensee of its other
obligations under this Paragraph 12. The insurance coverage
required under this License is not cumulative and will not extend to
any other License or Agreement between Licensee and NFLP unless
otherwise authorized by NFLP in writing.
c. During the Term and thereafter, NFLP shall indemnify and hold
harmless Licensee, its officers, directors, agents and employees
for, from and against any claims, demands, causes of action,
damages, and reasonable attorneys' fees for trademark infringement
arising out of the use of the Licensed Marks as strictly authorized
under this License, provided that NFLP is given immediate notice of
and shall have the option to undertake and conduct the defense of
any such claim, demand or cause of action and further provided that
Licensee shall cooperate in the defense of such claim as reasonably
required by NFLP.
13. Financial Information
a. Upon NFLP's request, Licensee shall provide NFLP with a statement
from an independent certified public accountant attesting to
Licensee's solvency. For the purposes of this License, "solvency"
shall mean that Licensee is able to pay its obligations as they
become due in the regular course of business.
b. On or before the 15th day of each month, Licensee shall provide NFLP
with Licensee's Fiscal Year projections for sales and income for the
Licensed Products. Upon request by NFLP, Licensee shall provide
NFLP with a list ranking its Licensed Products sales by retailer
and/or Third Party Distributors for its top twenty-five (25) retail
accounts or by retail accounts comprising seventy-five percent (75%)
of its Net Sales, whichever is greater, and itemizing for each such
retailer and/or Third Party Distributors a description and the
number of Units of each Licensed Product sold.
c. Licensee shall notify NFLP in writing of any adverse material change
in Licensee's financial condition that will likely affect its
performance under this License at the time such material change
occurs.
14. Audits and Inspections
a. During the Term and for at least three (3) full Fiscal Years after
the expiration or termination of the License, Licensee shall keep,
maintain and preserve complete and accurate books of account and
records covering all transactions relating to this License,
including, without limitation, invoices, correspondence, inventory
accounting, banking and financial records ("Records"). Licensee
shall designate a symbol or number that will be used exclusively on
Records relating to the Licensed Products and with no other articles
that Licensee manufactures, distributes or sells. Licensee shall
ensure that all invoices for the sale of Licensed Products to its
retailers and/or Third Party Distributors will include the quantity
and description of each Licensed Product itemized by Marketing
Program, Style and Member Club, if applicable.
b. During the Term and for at least three (3) full Fiscal Years after
the expiration or termination of the License, NFLP and its duly
authorized representatives will have the right during reasonable
business hours to inspect and audit all Records and conduct a
physical examination of Licensee's premises including its warehouses
and manufacturing facilities and those of Third Party Distributors
and Third Party Manufacturers. NFLP shall provide Licensee with no
less than five (5) business days' written notice prior to such
inspection, audit or examination; provided however, if compelling
circumstances exist, as determined by NFLP in the exercise of its
reasonable business judgment, NFLP may conduct an immediate
inspection, audit or examination with no prior notice to Licensee.
Licensee represents that it will fully cooperate with the
inspection, audit or examination and will not cause or permit any
interference with NFLP or its representatives during any inspection,
audit or examination. During an inspection, audit or examination,
NFLP shall have the right to make copies or extracts of Licensee's
Records.
c. Licensee shall pay NFLP for the cost of any audit that discloses a
payment deficiency of more than two percent (2%) between the amount
due to NFLP pursuant to the audit and the amount Licensee actually
paid or reported to NFLP. Licensee shall pay NFLP any deficiency
amount together with interest on the deficiency amount pursuant to
the provisions in Paragraph 3d of this License. Licensee shall pay
NFLP the amount of any additional costs beyond the cost of the audit
incurred by NFLP due to a change in an audit date scheduled by NFLP
made at Licensee's request. Licensee shall pay such amounts within
ten (10) days of invoicing by NFLP.
15. Termination
Without prejudice to any other rights it may have in law, equity or
otherwise, NFLP shall have the right to immediately terminate this
License upon written notice to Licensee at any time if:
a. Licensee fails to generate Net Sales during any Fiscal Year
satisfying the corresponding Minimum Royalty Guarantee or fails to
generate Net Sales on any Licensed Product with a separate Minimum
Royalty Guarantee satisfying the corresponding per-product Minimum
Royalty Guarantee;
b. Licensee fails to deliver to NFLP or to maintain in full force and
effect the insurance coverage referred to in Paragraph 12b of this
License;
c. Licensee fails to make available its premises, Records or other
business information to NFLP or its representatives or fails to
provide full and complete information as required in Paragraphs 13
and 14 of this License;
d. Licensee manufactures, sells, distributes, advertises or uses any
Style of any Licensed Product, or any Promotional Materials, or
Proprietary Materials without the prior written approval of NFLP as
required in this License, or after such written approval has been
withdrawn by NFLP or has expired;
e. Licensee distributes or sells any Licensed Product outside the
Territory or sells any Licensed Product to a third party that
Licensee knows or should reasonably know intends to sell such
Licensed Product outside the Territory;
f. Licensee distributes any Licensed Product outside the corresponding
Distribution Channels, or sells any Licensed Product to any third
party that Licensee knows or should reasonably know intends to sell
such Licensed Product outside the corresponding Distribution
Channels;
g. Licensee fails to obtain NFLP's written approval prior to assigning,
sublicensing, transferring, or otherwise encumbering the License or
prior to using a Third Party Manufacturer, Third Party Distributor,
or screen printer or any approved Third Party Manufacturer, Third
Party Distributor, or screen printer engages in conduct that would
entitle NFLP to terminate the License if Licensee had engaged in
such conduct;
h. Any sales representative of Licensee produces, inventories,
warehouses or distributes any of the Licensed Products;
i. Licensee fails to satisfy the distribution requirements in Paragraph
6 of this License or otherwise fails to make timely and complete
delivery of orders it has taken for any Licensed Product to seventy
percent (70%) or more of its retail accounts and/or Third Party
Distributors that collectively account for eighty percent (80%) of
its Net Sales on one or more occasion during any Fiscal Year;
j. Licensee makes a material misrepresentation or omission in its
license application form;
k. Licensee fails to make any payment or deliver any statement required
under this License and fails to correct such default within ten (10)
days of written notice of such default;
l. Licensee breaches any other agreement in effect between Licensee and
NFLP;
m. Licensee makes or agrees to make a payment to any Member Club or any
shareholder, officer, director, employee, agent, or representative
of a Member Club, or to any agent, representative or employee of the
NFL or its affiliates in such person's individual capacity, in
connection with the use of any Licensed Marks under this License or
otherwise as a direct result of the sales of any Licensed Product,
or Licensee fails to disclose to NFLP any existing agreement or
agreement being negotiated by Licensee or Licensee's agent between
Licensee and a Member Club or any shareholder, officer, director,
employee, agent, or representative of a Member Club, or any agent,
representative or employee of the NFL or its affiliates in such
person's individual capacity;
n. Licensee disparages NFLP, the NFL, any of its Member Clubs, or any
of their respective shareholders, officers, directors and employees
as determined by NFLP in its sole discretion, or otherwise engages
in conduct that NFLP deems detrimental to the NFL or any of its
Member Clubs or any shareholder, officer, director, employee, agent,
or representative of a Member Club;
o. Licensee fails to comply with any applicable federal, state or local
law or regulation in connection with this License;
p. Licensee fails, in any way, to comply with the requirements of
Paragraph 19; or
q. Licensee fails to comply with any other material term or condition
of this License.
16. Goodwill and Reputation
Licensee recognizes the great value of the goodwill associated with
the NFL Marks and acknowledges that such goodwill belongs to the
Member Clubs and the NFL, and that such NFL Marks have secondary
meaning in the minds of the public. The nature of the business of
NFLP, the NFL, and its Member Clubs, requires public respect for and
trust in the reputation and integrity of the NFL and its Member
Clubs. NFLP may, at its sole option, terminate this License or
withdraw some or all Product Approval Forms or Promotional Approval
Forms by written notice to Licensee if any unanticipated factor,
development or event causes NFLP's continued association with any
one or more Licensed Product or Licensee to adversely reflect upon
NFLP, the NFL or its Member Clubs as determined by NFLP in its sole
discretion. In the event of such termination, Licensee shall pay to
NFLP the Royalty on all sales of the Licensed Products made during
the Termination Fiscal Year or the Termination Guarantee as defined
in Paragraph 3a, whichever is greater, and all other amounts due to
NFLP. Upon receipt of such payment, NFLP will reimburse Licensee
for its salvage expenses or, in the case of unsalvageable Licensed
Products, Licensee's manufacturing costs if NFLP does not permit
Licensee to distribute the remaining inventory of Licensed Products.
17. Renewal Request
NFLP must receive a written request from Licensee by no later than
the Renewal Request Date if Licensee desires to renew the License.
If Licensee has complied with all terms and conditions of this
License during the Term and NFLP desires, in its sole discretion, to
negotiate a renewal License, NFLP shall negotiate with Licensee for
the terms and conditions of a renewal License for a period of no
more than sixty (60) days following NFLP's receipt of Licensee's
renewal request notice. This License automatically expires at the
end of the Term if NFLP does not receive Licensee's written request
by the Renewal Request Date, Licensee has failed to comply with all
terms and conditions of this License, NFLP elects not to negotiate
a renewal License, or the parties are unable to reach an agreement
within said sixty-day negotiation period. Licensee acknowledges
that NFLP has no express or implied obligation to renew the License.
NFLP will have no liability to Licensee for any expenses incurred by
Licensee in anticipation of any renewal or extension of this
License.
18. Effect of Expiration or Termination of the License
a. Sixty (60) days before the expiration of this License, Licensee will
furnish to NFLP a statement showing the number of Units and
description of such Units for each Style of each Licensed Product,
Promotional Materials, and Proprietary Materials on hand or in
process in Licensee's inventory. If this License is terminated by
NFLP, Licensee shall furnish such statement within ten (10) days
after notice of termination is given by NFLP.
b. After expiration or termination of this License for whatever reason,
all rights granted under this Licensee will revert to NFLP and
Licensee shall refrain from further use of, simulation of or
reference to any and all of the NFL Marks except as provided in this
paragraph. Except for termination of this License by NFLP, Licensee
will have ninety (90) days to dispose of the Licensed Products
("Sell-Off Period") that are on hand or in process at the time of
such expiration, provided all statements and payments then due to
NFLP are first made, Licensee is otherwise in compliance with all
terms and conditions of the License, and such Sell-Off occurs at
Licensee's regular selling price and within the Distribution
Channels. During the Sell-Off Period, Licensee shall submit all
payments and statements required under this License in accordance
with the terms and conditions of the License.
c. If Licensee has remaining inventory of the Licensed Products upon
the termination of this License or after the Sell-Off Period, if
applicable, NFLP may, at its option: (i) purchase such inventory at
Licensee's cost; (ii) require Licensee to deliver such inventory to
NFLP for destruction at Licensee's expense; or (iii) require
Licensee to destroy such inventory at Licensee's expense and furnish
NFLP with an affidavit signed by an officer of Licensee attesting to
such destruction. NFLP will have the right at any time before
expiration or termination of this License and during the Sell-Off
Period to conduct a physical inventory to, among other things,
verify the quantity and Style of the Licensed Products in Licensee's
inventory. If Licensee refuses to permit such physical examination
of the inventory or fails to provide NFLP with the statement
required in subparagraph a above, Licensee will forfeit its right to
any Sell-Off Period.
d. Upon the termination of this License or immediately after the Sell-
Off Period, Licensee shall deliver to NFLP all Proprietary Materials
and all related materials, including software, created or used by
Licensee in connection with this License and shall, at NFLP's
option, destroy or sell to NFLP at Licensee's cost, any molds,
plates and other items used to reproduce the Licensed Marks.
19. On-Field Product Exposure
Licensee acknowledges that in furtherance of the NFL's policy of
control of game operations, NFLP shall approve any and all visible
items worn or used on-field, including the sidelines, during all
pre-season, regular season and post-season NFL games. Except as
otherwise authorized in writing by NFLP or as otherwise provided in
this License, Licensee shall not during the Term or thereafter
agree, contractually or otherwise, with any Member Club, NFL player,
coach, or other Member Club employee, for any individual to wear,
use or promote any commercially identified product on-field,
including the sidelines, during any NFL game.
20. Players and Coaches
Licensee acknowledges that this License does not grant Licensee any
rights with respect to the name, likeness, signature, or other
attributes of any player, coach, or other employee of the NFL.
Licensee shall be responsible for securing whatever rights may be
required for the use of such names, likeness, signatures, or other
attributes. Licensee represents that it will not exercise the
rights granted in this License in any manner that will imply that
Licensee has obtained any such rights without separate written
authorization from the appropriate player, coach, or employee.
21. XXX Xxxxx
Licensee understands and acknowledges that this License does not
grant Licensee any rights with respect to film or videotape footage
of NFL game action and that Licensee must obtain such footage
directly from XXX Xxxxx, Inc. ("XXX Xxxxx") on terms and conditions
to be mutually agreed upon by Licensee and XXX Xxxxx. If Licensee
desires to use such footage in connection with this License, NFLP
must approve the proposed usage and subject matter of such footage
in writing prior to its usage.
22. Information Transmission
If NFLP obtains the capacity to receive computer transmissions of
any or all information required from Licensee under this License
during the Term, Licensee shall begin to provide such information by
such computer transmission as soon as practicably possible.
23. Notices
The parties to this License shall send all notices and statements
required under this License to the respective addresses of the
parties set forth above unless notification of a change of address
is given in writing. Licensee shall direct all notices to NFLP to
the Senior Vice President of Consumer Products with a copy to the
General Counsel of NFLP. All notices required under this License
must be in writing, must be sent by registered or certified mail,
facsimile, or an overnight delivery service generally accepted in
the industry that provides evidence of delivery, and shall be deemed
to have been given at the time they are sent.
24. Relationship of Parties
The parties to this License are not partners, joint venturers, or
agents and nothing in this License shall be construed to place them
in any such relationship. Neither party will have the power to
obligate or bind the other in any manner whatsoever. NFLP, the NFL,
and its Member Clubs in no way endorse, certify or guarantee the
quality of the Licensed Products.
25. Governing Law and Disputes
This License and any dispute arising under it shall be governed by
and construed in accordance with the laws of the State of New York
without regard to conflict of law principles. All disputes
pertaining to this License shall be decided by a state or federal
court located in the City of New York and Licensee consents to
personal jurisdiction in such courts.
26. Waiver
Neither party to this License can waive or modify any provision of
this License unless such waiver or modification is in a writing
signed by both parties. Licensee acknowledges that NFLP's prior
forbearance of any requirement of this License will not prevent NFLP
from subsequently requiring full and complete compliance with such
requirement or from exercising its rights under this License.
27. Confidentiality
The parties to this License acknowledge that the terms of this
License are confidential and each warrant that neither shall
disclose such terms to any third party other than the disclosing
party's accountants, agents or attorneys or as required by law,
without the other party's prior written consent.
28. Severability
If any paragraph or clause of this License is illegal or invalid or
void for any reason, the remaining paragraphs and clauses of the
License will remain in full force and effect.
29. Release
In consideration of the rights granted under this License, Licensee
releases NFLP, the NFL, its Member Clubs and each of their
respective affiliates, shareholders, officers, directors, agents and
employees from any claims, demands, losses, expenses or damages,
whether known or unknown, arising out of or in connection with or in
any manner related to the manufacture, distribution or sale of
products bearing the Licensed Marks.
30. Entire Agreement
This License constitutes the entire agreement and understanding
between the parties to this License with respect to the subject
matter of this License and cancels, terminates, and supersedes any
prior or contemporaneous agreement or understanding, whether oral or
written, on this subject between Licensee and the NFL, its
affiliates or Member Clubs, or NFLP. The headings in this License
are for reference purposes only and have no legal effect.
31. Execution
Licensee will make an offer to enter into this License by having a
duly authorized officer or representative sign below and return the
License with a check payable to NFLP for the Advance Royalty Payment
required for Fiscal Year I. An acceptance of the offer will occur
and a binding agreement will exist only after an authorized officer
or duly authorized representative of NFLP signs this License and
delivers a fully-executed copy to Licensee. Licensee acknowledges
that this License will be deemed to have been executed in New York
City.
Licensee: INNOVO, INC.
BY: /s/Xxxxxxxx Xxxxxxxx DATE: October 9, 1997
Xxxxxxxx Xxxxxxxx
(Signature of officer, partner or individual duly authorized to sign)
TITLE: President
NATIONAL FOOTBALL LEAGUE PROPERTIES, INC.
BY: /s/Xxx Xxxxxxx DATE: October 5, 1997
Xxx Xxxxxxx
(Signature of officer, partner or individual duly authorized to sign)
TITLE: Jr. Vice President
EXHIBIT I
DISTRIBUTION CHANNELS
The following definitions shall apply to this License:
1. Airport/Hotel Shop: A separate retail store located in an airport
or hotel.
2. Amusement/Convenience Venues: Restaurants, convenience stores, gas
stations, car and truck stops, amusement venues, recreation centers
and any other business venue in which the sale of the Licensed
Products would constitute a subsidiary business excluding Stadium
Shops/Stadium Concessionaires as defined below.
3. Automotive Store: A retail store that carries as its primary retail
items automotive supplies.
4. Book Store: A retail store that carries as its primary items books
and periodicals. Examples include, without limitation, Xxxxxx
Books, and Xxxxxx and Xxxxx.
5. Card/Party Shop: A retail store that carries as its primary retail
items cards or party products. Examples include, without
limitation, Hallmark Stores.
6. Computer/Electronic Store: A retail store that carries as its
primary retail items computers, software, and computer accessories
or electronic equipment and appliances. Examples include, without
limitation, CompUSA and Computer City.
7. Computer On-Line: Licensee, and no other organization, making the
Licensed Product available for sale to consumers on the Internet or
through a computer on-line service provided that the Licensed
Products are physically shipped to consumers by traditional methods
and not distributed electronically on-line or via the Internet.
8. Craft Store: A retail store that carries as its primary retail
items arts and crafts supplies.
9. Department Store: A retail store that operates several departments
carrying higher-priced brands of apparel and non-apparel. Examples
include, without limitation, Macy's, Dillards, Nordstrom, and
Xxxxxxx, XX Xxxxxx, Boscov's, Sears, May Co., Federated Group,
Xxxxxx Xxxxx Xxxxx, Xxxxxx Xxxxxx, Bon Ton, Belks, Xxxxxxxxxxx &
Xxxxxxxx, Xxxxxxxx and Bloomingdales.
10. Direct Retailer: An organization that markets products directly to
consumers without using retail space through the mediums of
television or catalog but excluding the Internet or other computer
on-line services.
11. Discount Store: A retail store that operates several departments
carrying lower-priced brands of apparel and non-apparel with limited
service. Examples include, without limitation, Wal-Mart, Kmart,
Bradlees, Roses, Hills, Caldor, Venture, Target, Shopko, and Xxxx.
12. Distributor: Defined as Third Party Distributor in Paragraph 9c of
the License.
13. Drug Store: A retail store that carries as its primary retail
items pharmaceuticals, health and beauty aids, and convenience
items. Examples include, without limitation, OSCO, Walgreen, and
Xxxxxx.
14. Fan Shop: A retail store that carries as its primary retail item
licensed products of the NFL, National Basketball Association,
National Hockey League, Major League Baseball, and the National
Collegiate Athletic Association. Examples include, without
limitation, Pro Image, Team Spirit and Stadium Stuff.
15. Footwear Specialty Store: A retail store that carries as its
primary retail item athletic footwear and also carries, in limited
quantities, licensed apparel and headwear. Examples include,
without limitation, Foot Locker, FootAction, and Athletes Foot.
16. Fund Raising: An organization, including Licensee, that markets
products through various channels such as schools for the purpose of
raising money for educational or charitable causes. NFLP must
approve each educational or charitable cause.
17. Gallery: A retail store that carries as its primary retail item
artwork.
18. Gift/Flower Shop: A retail store that carries as its primary retail
items gifts, novelties or flowers.
19. Grocery Store: A retail store that carries as its primary retail
items food and household products. Examples include, without
limitation, A & P, Shop Rite, Vons, Jewel, and Food Town.
20. Hardware Store: A retail store that carries as its primary retail
items hardware products. Examples include, without limitation, True
Value, Ace and Home Depot.
21. Hobby Store: A retail store that carries as its primary retail item
collectible products.
22. Home Specialty Store: A retail store that carries as its primary
retail items furniture and home products. Examples include, without
limitation, Home Place, Linens 'N Things, and Bed Bath and Beyond.
23. Jewelry Store: A retail store that carries as its primary retail
item jewelry. Examples include, without limitation, Xxxxx Jewelers.
24. Membership Club/Warehouse Store: A retail store that markets
products to members only. Examples include, without limitation,
BJ's Wholesale Club.
25. Military Base: The domestic military bases of the United States.
26. Office Supply: A retail store that carries as its primary retail
items office supplies. Examples include, without limitation, Office
Max and Staples.
27. Sporting Goods Store: A retail store that carries as its primary
retail items licensed apparel, athletic footwear and sporting goods
equipment. Examples include, without limitation, Champ's, Xxxxxx's,
Xxxxxx's, The Sports Authority, Sportmart, Gart Brothers, and
Modells.
28. Stadium Shop/Stadium Concessionaire: A store or vendor that carries
as its primary retail item Licensed Products of the NFL and is
located at the training facilities or stadium of a Member Club.
29. Toy/Children's Store: A retail store that carries as its primary
retail items toys and/or children's apparel. Examples include,
without limitation, Toys 'R Us, Kids 'R Us, and Babies 'R Us.
