License Agreement
Exhibiit
10.2
This
License Agreement (this "Agreement") is made as of April 20, 2007, between
Xxxxxx Xxxxxxx Ventures LLC ("Licensor"), on the one hand, and InStride
Ventures, LLC ("Licensee" and together with Licensor, the "Parties"), on the
other hand.
Section
1. Definitions.
1.1 The
Property: The name, image, signature, and likeness of the celebrity Xxxxxx
Xxxxxxx (approved as herein provided).
1.2 The
Articles: Shoes and inserts marketed to diabetics to treat and/or help relieve
the complications caused by diabetes.
1.3 The
Territory: United States and Canada.
1.4 Advertising
Materials: Any artwork, labeling, packaging, design, copy, text, and other
promotional or advertising material of any sort, utilizing the Property.
1.5 Products:
Articles manufactured and sold utilizing the Property.
Section
2. Grant
and Services.
2.1 Licensee
hereby acknowledges that Licensor entered into a Trademark License Agreement
(the “Trademark License Agreement”) dated April 2, 2007 with Xxxxxx Xxxxxxx
Productions, Inc. and Xxxxxx Xxxxxxx (collectively “Xxxxxxx”) to use the
Property in connection with the manufacture, distribution, sale, advertising,
promotion and other exploitation of the Products throughout the Territory.
Licensee acknowledges and agrees that it shall have not have any greater rights
than those granted to Licensor under the Trademark License Agreement.
2.2 Licensor
hereby grants to Licensee the non-exclusive license during the Term, to use
the
Property in connection with the manufacture, distribution, sale, advertising,
promotion and other exploitation of the Products throughout the Territory.
2.3 The
term
hereof shall be the period commencing on the date hereof and continuing for
ten
(10) years thereafter. Provided Licensor has received Five Million Dollars
($5,000,000) in its share of Retained Revenues as provided in Section 3 below
during the initial ten (10) years, then Licensee shall have the right to extend
the term for ten (10) additional consecutive years. The "Term" herein shall
mean
the initial ten (10) year period as same may be extended.
Section
3. Consideration.
3.1 In
consideration of the license granted herein, and provided Licensor is not in
material breach hereof, Licensee shall pay to Licensor sums equal to five
percent (5%) of Licensee's Retained Revenues derived from the sale of the
Products hereunder.
3.2 For
the
purposes of this Agreement, "Retained Revenues" shall mean all monies actually
received by Licensee from the sales of the Products, less all of the
following:
| (A) |
Shipping
and handling charges actually paid by Licensee,
and all sales taxes, use taxes, value added taxes, and any other
non-income taxes imposed upon
sales;
|
| (B) |
refunds,
credits or other allowances and/or discounts on account of return
or
rejection of goods or otherwise granted in the ordinary course of
business, as actually incurred and as reserved for
(“Returns”);
|
| (C) |
uncollectible
accounts due to credit card charge backs, bad checks or other reasons
an
account is uncollectible, as actually incurred and as reserved for
(“Uncollectible Amounts”);
|
| (D) |
sales
made at or below Licensee’s cost of goods for purposes of liquidation or
closeout; and
|
| (E) |
all
payments made to retailers associated with employee sales
bonuses.
|
3.3
The
reserve for Returns and Uncollectible Amounts shall initially be ten percent
(10%), and shall be adjusted (and liquidated, if applicable) at the end of
each
calendar quarter to reflect actual returns and uncollectible
amounts.
3.4
Licensee shall, within forty-five (45) days following the end of each calendar
quarter, starting with the quarter in which sales of the Product commence,
submit to Licensor an accounting statement covering the sales of the Product
during the preceding quarter, and Licensee shall therewith transmit to Licensor
payment of the amount due under this paragraph. Licensee agrees to keep full
and
accurate books of account respecting the sales of the Product hereunder.
Licensee further gives Licensor the right, at its own expense, to examine said
books and records on prior written notice of at least fourteen (14) days,
insofar as they concern the sale of the Product hereunder and not more often
than twice in any calendar year, for the purpose of verifying the accounting
statements for no more than eight (8) accounting periods prior to such audit.
Licensor may make such examination for a particular statement only once, and
only within two (2) years after the date when Licensee sends Licensor the
accounting statement pursuant to this paragraph. All statements rendered by
Licensee to Licensor shall be binding upon Licensor and not subject to any
objection by Licensor for any reason unless specific objection in writing,
stating the basis thereof, is given to Licensee within two (2) years from the
date rendered. Failure to make specific objection within said time period shall
be deemed approval of such statement. Licensee will not have the right to bring
an action against Licensee in connection with any statement or payment hereunder
unless Licensor commences the suit within six (6) months from the date such
written objection, if any, is so given. If the examination
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by
Licensor discloses a discrepancy of five percent (5%) or between the amount
actually paid to Licensor and the amount that should have been paid to Licensor,
then Licensee shall reimburse Licensor for the actual out-of-pocket cost of
the
examination.
Section
4. Compliance. The
Products shall be manufactured in compliance with the following:
| 4.1 |
All
requirements of the Fair Labor Standards Act, as amended (the
AFLSA),
and all regulations and orders of the U.S. Department of Labor
issued in
accordance thereof;
|
| 4.2 |
State
and local laws pertaining to child labor, minimum wage and overtime
compensation; and
|
| 4.3 |
With
respect to Products (including components thereof) manufactured outside
the United States, the wage and hour laws of the country of manufacture
and without the use of child, prison or slave labor.
|
|
Section 5.
|
Representations
and Warranties.
|
5.1 Licensor
expressly represents and warrants that it has the right to grant the rights
herein granted to Licensee without violating the legal or equitable rights
of
any third party.
5.2 Licensee
represents and warrants that it is fully authorized to enter into and perform
this Agreement.
5.3 Licensor
and Licensee agree to defend, indemnify and hold each other harmless against
any
and all loss, damage and expense, including attorneys fees and costs arising
out
of any claims that may be instituted against them by reason of any breach or
alleged breach of their respective warranties, representations or agreements
hereunder.
5.4 The
provisions of this paragraph shall survive the expiration or termination of
this
Agreement.
Section
6. Termination.
6.1 If
Licensee shall at any time breach any of its material obligations hereunder
and
Licensee shall fail to commence to remedy such default within thirty (30) days
after written notice thereof by Licensor, then Licensor may, at its option,
terminate this Agreement and the license granted herein by notice to that
effect.
6.2 Nothing
in this Agreement will be construed to require Licensee to transfer to Licensor
any trademarks and/or copyrights in the Products, Advertising Materials and/or
any artwork and/or material used in connection with the Products, and/or any
materials which were not supplied by Licensor hereunder, and all such materials
shall remain the sole property of Licensee. Excluding the Property, any and
all
trademarks, trade names, slogans, designs, copyrights and methods used in or
in
connection with the manufacture, sale or advertisement of
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the
Products, shall notwithstanding the termination or expiration of this Agreement,
be and remain the sole property of Licensee.
6.3
Notwithstanding any other provision of this Agreement, the License granted
herein shall terminate if Licensee does not actively use the Property in
connection with the manufacture, distribution, sale, advertising, promotion,
or
other exploitation of the Products in any period of eight (8) consecutive months
or for twenty four (24) total months (not necessarily consecutive) in the
initial ten year Term.
Section
7. Miscellaneous.
7.1 This
Agreement may be executed in several counterparts, each of which will be deemed
an original but all of which will constitute one and the same.
7.2 This
Agreement supersedes
any and all other agreements, either oral or written, between such parties
with
respect to the subject matter hereof.
7.3 Wherever
possible, each provision hereof shall be interpreted in such manner as to be
effective and valid under applicable law, but in case any one or more of the
provisions contained herein shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect, such provision shall be ineffective
to
the extent, but only to the extent, of such invalidity, illegality or
unenforceability without invalidating the remainder of such invalid, illegal
or
unenforceable provision or provisions or any other provisions hereof, unless
such a construction would be unreasonable.
7.4 Licensor
agrees that during the Term of this Agreement, it shall not use, nor shall
it
permit any other person/entity to use, the Property to manufacture, promote,
distribute, market, advertise and/or sell shoes and/or inserts marketed to
diabetics to help treat/relieve complications caused by diabetes.
7.5 This
Agreement may be amended only by a written agreement executed by both
Parties.
7.6 This
Agreement may be assigned by Licensee and will be binding upon and shall inure
to the benefit of the parties, and their respective successors and assigns.
Licensee may enter into agreement(s) with third parties to license the rights
and obligations granted to it under this Agreement.
7.7 This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York applicable to contracts made and to be wholly performed
therein. The Parties hereby consent to the exclusive venue and personal
jurisdiction in the Supreme Court of the State of New York or any United States
District Court within the State of New York and courts with appellate
jurisdiction therefrom.
7.8 Nothing
contained herein shall constitute this arrangement to be employment, a joint
venture or a partnership.
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7.9 The
failure of either Party to exercise in any respect any right provided for herein
shall not be deemed a waiver of any right hereunder. The headings of sections
and other subdivisions of this Agreement are for convenient reference only,
and
shall not be used in any way to govern, limit, modify or construe this Agreement
or otherwise be given any legal effect.
7.10 All
notices hereunder shall be in writing at the addresses below and shall be given
by certified mail, return receipt requested, or by facsimile transfer with
a
confirmation copy sent by regular first class mail.
Licensor: c/o
Jewelcor Companies, 000 Xxxxx Xxxxxx-Xxxxx Xxxx., 0xx
Xxxxx,
Xxxxxx-Xxxxx, XX 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
Licensee: 000
Xxxxx
Xxxxxx-Xxxxx Xxxx., 0xx Xxxxx, Xxxxxx-Xxxxx, XX 00000, attention: Xxxxx
Xxxxxxxxx and Xxxxxx Xxxxxxxx.
IN
WITNESS WHEREOF, the Parties have duly executed this License Agreement as of
the
date set forth above.
XXXXXX
XXXXXXX VENTURES, LLC.
By:
____________________________
Name:__________________________
Title:___________________________
INSTRIDE
VENTURES, LLC
By:_____________________________
Name:___________________________
Title:____________________________
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