NFL PROPERTIES, INC. LICENSE AGREEMENT
National Football League Properties, Inc.
000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
Area Code (000) 000-0000 FAX (000) 000-0000
LICENSING AGREEMENT TERM SHEET
Licensee: Fotoball USA, Inc. Date: April 14, 1998
Address: 0000 Xxxxxx Xx. No.: 300-440190-514
Xxx Xxxxx, XX 00000
The following terms are made part of and are subject to all
definitions, terms and conditions set forth in License No. 2327:
MARKETING PROGRAM: NFL Collectibles
TERM: April 1, 1998 - March 31, 0000
XXXXXXXXX: Xxx Xxxxxx Xxxxxx and Military bases
LICENSED PRODUCTS: TEAM LOGO FOOTBALLS; PLAYERS PICTURED FOOTBALLS;
FULL SIZE LIMITED EDITION TEAM/PLAYER AND
COMMEMORATIVE FOOTBALLS (GENUINE ANTIQUE LEATHER AND
SYNTHETIC DISTRESSED LEATHER.
FISCAL YEAR LICENSED PRODUCT ROYALTY %
----------- ----------------- -----------
YEAR I 4/1/98 - 3/31/99 5639 TEAM LOGO FOOTBALLS 10%
9201 PLAYER PICTURED FOOTBALLS 10%
51593 LIMITED EDITION FOOTBALLS 10%
YEAR II 4/1/99 - 3/31/00 5639 TEAM LOGO FOOTBALLS 10%
9201 PLAYER PICTURED FOOTBALLS 10%
51593 LIMITED EDITION FOOTBALLS 10%
FISCAL YEAR MINIMUM GUARANTEE ADVANCE
----------- ----------------- -----------
YEAR I 4/1/98 - 3/31/99 $50,000 $30,000
YEAR II 4/1/99 - 3/31/00 $65,000 $35,000
AUTHORIZED BRANDS FOR
LICENSED PRODUCT(S): FOTOBALL USA
LICENSED XXXX(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): Department Stores, Direct Retailers, Distribution,
Discount Stores, Fan Shops, Grocery Stores,
Sporting Goods Store, Specialty Stores, Gift/Flower
Shops, Hobby Stores, Military Bases, Stadium Shop/
Stadium Concessionaires.
RENEWAL REQUEST DATE: October 1, 1999
COOPERATIVE FUND:
FISCAL YEAR PROGRAM PAYMENT PAYMENT DUE DATE(S)
------------ ------- -------- --------------------
YEAR I NFL Collectibles $2,500 To be determined by NFLP
YEAR II NFL Collectibles $2,500 To be determined by NFLP
PROMOTIONAL PRODUCTS:
FISCAL YEAR LICENCED PRODUCTS
----------- -----------------
YEAR I Ten (10) Units of each Product upon request
YEAR II Ten (10) Units of each Product upon request
ADVERTISEMENTS: N/A
SPONSORSHIP: N/A
ADDITIONAL TERMS:
Responsibility for obtaining rights to use player names and player
likenesses is solely that of Licensee.
National Football League Properties, Inc.
000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
Area Code (000) 000-0000 FAX (000) 000-0000
Retail Licensing Agreement
Licensee: FOTOBALL USA, INC. Date: April 14, 1998
Address: 0000 Xxxxxx Xxxx XX. 000-000000-000
Xxx Xxxxx, XX 00000 Lic. No(s): 2327
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 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 OR Term Sheets 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, 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 1,
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 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 Licensee's invoiced selling price
or Licensee's normal domestic wholesale warehouse price or, in the case
of Direct Retailer sales by Licensee only, the retail price less sales
derived from returns received and credited and less reasonable quantity
discounts as actually calculated on the invoices 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, quantity
discounts, freight, non-collected or uncollectable 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 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 (50%) 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 manufacturing 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. Licensee acknowledges that
it will remain primarily obligated to NFLP under this license
notwithstanding NFLP's approval of a screen printer and that
Licensee shall take all necessary efforts to ensure that any
approved screen printer complies with all applicable terms and
conditions of this License.
c. Licensee must receive NFLP's prior written consent to use a 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. Licensee acknowledges that
it will remain primarily obligated to NFLP under this License
notwitholding NFLP's approval of a Third Party Distributor and that
Licensee shall take all necessary efforts to ensure that any approved
Third Party Distributor complies with all applicable terms and
conditions of this License including, without limitation, providing
such Third Party Distributor with instructions relating to the
distribution of the Licensed Products and the authorized Distribution
Channels for the Licensed Products. If an approved Third Party
Distributor engages in conduct that would be a breach of this License
if Licensee engaged in such conduct, Licensee shall fully cooperate
with NFLP to ensure that such conduct ceases promptly.
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 Product. 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 shall have no right o use any sublicensee for any Licensed
Product without the prior written approval of NFLP. For purposes
of this License, a sublicensee shall mean any third party that
manufactures any Licensed Product, ships such to retailers and
invoices retailers directly ("Sublicensee"). Licensee acknowledges
that it will remain primarily obligated to NFLP under this License
notwitholding NFLP's approval of a Sublicensee and that Licensee
shall take all necessary efforts to ensure that any approval
Sublicensee and that any approved sublicensee complies with all
terms and conditions of this License. If an approved Sublicensee
engages in conduct that would be a breach of this License if
Licensee engaged in such conduct, Licensee shall fully cooperate
with NFLP to ensure that such conduct ceases promptly.
f. 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.
g. 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.
h. 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 owned and/or controlled by NFLP
("Photographs"), 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 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. Licensee hereby 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, the Computer Art, 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 and to execute
necessary documents.
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 holograms
labels 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;
(vi) Licensee's name, trade name and address; 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 License of its indemnification obligations under the
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's 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 License Products sales by retailer and/or
Third Party Distributors for its top twenty-five (25) retail accounts
or by retail account comprising seventy-five (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
or when Licensee's learns of the possibility of such a change,
whichever is sooner, including, but not limited to, any possible
adverse material change in Licensee's ability too make timely payments
or keep accurate records due to any inability to process date/time data
from, into or between the twentieth and twenty-first centuries.
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 NFLP 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, transferring, granting a security interest in the Licensed
Product or otherwise encumbering the License or prior to using a Third
Party Manufacturer or Third Party Distributor, Sublicensee, or screen
printer or any approved Third Party Manufacturer or Third Party
Distributor, Sublicensee, 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 applicable, listed on the Term Sheet or
Term Sheets 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 shall not take any orders for Licensed Products that
will be shipped after the expiration of the License or any Sell-Off
Period, if applicable, at any trade show or otherwise unless NFLP has
notified Licensee in writing that NFLP will renew the License.
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
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 the 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 a private
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. Nothing in this paragraph will relieve NFLP of its
obligation under Paragraph 12c of the License.
30. Public or Private Offering
Licensee shall not refer to this License or NFLP, the NFL or its
Member Clubs or affiliates in any public or private offering, or other
securities or financing document, without NFLP's prior written consent
and then only on such conditions as NFLP deems appropriate in it
discretion.
31. Multiple Term Sheets
In the event that this License has multiple Term Sheets attached to
it, the terms and conditions of this License will apply to each
Individual Term Sheet.
32. 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.
33. 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 1. 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: Fotoball USA, Inc.
-------------------=----------------
By: /s/Xxxx X. Xxxxxxx Date: 10/26/98
------------------------------------ ---------------
(Signature of officer, partner or
individual duly authorized to sign)
Title: Senior Vice President
----------------------
NATIONAL FOOTBALL LEAGUE PROPERTIES, INC.
By: /s/ Date: 11/16/98
------------------------------------ --------------
(Signature of officer, partner or
individual duly authorized to sign)
Title: Senior Vice President Business Affairs
---------------------------------------
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 slaps, 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 Xxxxxx.
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 Stare: 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, Xxxxxxxxx, XX Penney,
Boscov's, Sears, May Co., Federated Group, Xxxxxx Xxxxx Scoft, 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.
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. Distributors: Defined as Third Party Distributors in Xxxxxxxxx 0x
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. Galley: A retail store that carries as its primary retail item
artwork.
18. Gift/Flower Shop: A retail atom 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 stare 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. 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 supply. . 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, Herman's,
Koenig's, The Sports Authority, Sportmart, Gart Brothers, and Xxxxxxx.
00. Stadium Shop/Stadium Concessionaires: A retail 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.
