EXHIBIT 10.31
LICENSE AGREEMENT
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THIS LICENSE AGREEMENT is made this First day of April, 1997, by and
between X. X. XXXX, INC., a Pennsylvania Corporation, with its principal place
of business at Suite 415, The Warwick, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx,
Xxxxxxxxxxxx 00000 (hereinafter referred to as "LICENSOR"), and XXXXXXX SHOE
COMPANY, INC., a Delaware Corporation, with its principal place of business at
000 Xxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000 (hereinafter referred to as "LICENSEE").
BACKGROUND
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LICENSOR is the owner of the trademarks, set forth in Exhibit A attached
hereto and made a part hereof (hereinafter collectively referred to as the
"Trademarks"). The parties desire that LICENSOR grant to LICENSEE a license to
use the Trademarks in the design, manufacture, advertising and sale of women's
shoes.
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NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto, intending to be legally bound, agree as
follows:
1. GRANT OF LICENSE AND DESIGNATION OF LICENSED PRODUCTS.
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LICENSOR agrees to and does hereby grant to LICENSEE for the period
and upon the terms and conditions hereinafter set forth, the exclusive
right and license to use the Trademarks within the geographic area
described in Paragraph 3 hereof" in the design, manufacture, advertising
and sale of women's and childrens' shoes (hereinafter referred to as the
"Products"). As used herein, the term "Licensed Products" means all
Products sold or shipped by LICENSEE which bear the Trademarks. In the
event any questions arise regarding the classification of Products which
LICENSEE may wish to produce as Licensed Products, the decision of LICENSOR
shall be final and binding. The rights granted to LICENSEE herein are
limited to use of the Trademarks on or in connection with the Licensed
Products and LICENSEE specifically agrees not to use the Trademarks or
consent to their use in any manner on any other product or items. LICENSOR
reserves all rights to the Trademarks except to the extent specifically
granted to LICENSEE herein.
2. TERM. The Agreement shall be for a term commencing on April 1,
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1997 and continuing for a period of eighteen months, terminating on
September 30, 1998, said initial term to be known as the First Year of this
Agreement. LICENSEE shall have two one-year options to renew this
Agreement, provided LICENSEE is not in default of any of the provisions
hereof at the time of exercise of this option, and provided it gives
LICENSOR written notice of its
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intention to so renew at least one hundred twenty (120) days prior to the
end of the then current term; and, in addition, for the First Renewal Year,
provided that it has achieved net sales or first cost or any combination
thereof in the amount of Five Hundred Thousand Dollars ($500,000) during
the First Year of this Agreement; and to renew for the Second Renewal Year,
provided that, during the First Renewal Year, it has achieved net sales or
first cost or any combination thereof in the amount of Seven Hundred Fifty
Thousand Dollars ($750,000). The First Renewal Year shall be the period
from October 1, 1998 to September 30, 1999. The Second Renewal Year shall
be the period from October 1, 1999 to September 30, 2000.
3. GEOGRAPHIC AREA. The rights granted to LICENSEE hereunder shall be
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exercised by LICENSEE solely within the United States of America, its
territories and possessions (hereinafter referred to as the "Geographic
Area"), and shall be exclusive therein with respect to the Licensed
Products.
4. ROYALTIES. LICENSEE agrees to pay royalties for the use of the
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Trademarks as follows:
A. Minimum Guaranteed Royalty LICENSEE agrees to: pay LICENSOR a
Minimum Guaranteed Royalty of $5,000 during the First Year of the License
Agreement. The minimum Guaranteed Royalty for the First Renewal Year shall
be $12,500 and the Minimum Guaranteed Royalty for the Second Renewal Year
shall be $18,750. Minimum Guaranteed Royalties are payable as follows:
1) The sum of $1,250 upon execution, receipt whereof is hereby
acknowledged.
2) The balance of $3,750 for the First Year's minimum
Guaranteed Royalty shall be paid in four equal quarterly installments of
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$937.50 each, on October 1, 1997, January 1, 1998, April 1, 1998 and July
1, 1998.
3) The sum of $12,500 for the First Renewal Year's Minimum
Guaranteed Royalty shall be paid in four equal installments of $3,125 each,
on October 1, 1998, January 1, 1999, April 1, 1999 and July 1, 1999.
4) The sum of $18,750 for the Second Renewal Year's Minimum
Guaranteed Royalty shall be paid in four equal installments of $4,687.50
each, on October 1, 1999, January 1, 2000, April 1, 2000 and July 1, 2000.
B. Operating Royalties - LICENSEE agrees to pay to LICENSOR
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operating royalties equal to two and one-half percent (2.5%) of the Net
Sales, or if LICENSEE so desires, it may sell licensed product on a first-
cost basis, up to 100% of licensed product, and pay operating royalties
equal to two and one-half percent of first cost of Licensed Products sold
by LICENSEE pursuant to this Agreement. As used herein, yearly period
shall mean for the Initial Term of this agreement the eighteen month period
from April 1, 1997 to September 30, 1998, and for the renewal option years
shall mean the 12 month period. Minimum Guaranteed Royalties remitted by
LICENSEE shall be credited and offset against operating royalties first
coming due hereunder. Should the operating royalties be less than the
Minimum Guaranteed Royalty hereunder, the latter shall be non-refundable
and nevertheless remain the property of LICENSOR. Operating royalties due
to LICENSOR shall be paid by LICENSEE concurrently with delivery of the
periodic reports required by Paragraph 5 hereof. In the event LICENSEE
shall fail to pay any sum required to be paid hereunder (Minimum Guaranteed
Royalties or operating royalties) within ten (10) days after the due date
thereof,
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the amount owing shall thereupon bear interest at the then-current
Prime rate plus two and one-half percent (2.5%) per annum until paid, and
LICENSOR shall have the right to invoke the provisions of Paragraph 15
hereof.
C. Definition of "Net Sales" - As used herein, the term "Net
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Sales" shall mean the invoice price charged by LICENSEE for Licensed
Products sold and shipped by LICENSEE less trade discounts afforded to and
actually taken by customers as payment for Licensed Products. If LICENSEE
sells the Licensed Products to a related marketing organization or any
individual or company in whole or in part controlled or owned by LICENSEE,
the invoice price used to determine Net Sales hereunder shall be the
invoice price at which the Licensed Products are resold by such related
entity to an unrelated customer in an arm's length transaction.
5. LICENSEE'S QUARTERLY REPORTS OF SHIPMENTS AND ROYALTY PAYMENTS. On
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or before the fifteenth day of each month following the end of each
quarterly period during the term hereof, LICENSEE shall deliver to LICENSOR
a written statement certified to be true and correct by the Chief Financial
Officer of LICENSEE, setting forth the gross and Net Sales (or first cost)
of Licensed Products (broken down by gross and Net Sales (or first cost)
for each separate category (item) of Licensed Products as set forth in
Paragraph 1 hereof) for the preceding quarter, together with a check
payable to LICENSOR in full payment of the royalties shown on said
statement to be due under Paragraph 4 hereof accompanied by a statement of
invoices by customer showing the date, invoice number, dollar amount of
sale and salesman's name. In addition, LICENSEE will simultaneously report
the open, undelivered orders as of the close of the preceding quarter.
Quarterly periods herein shall mean
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the quarters commencing April 1, July 1, October 1 and January 1,
respectively.
6. LICENSEE'S ANNUAL REPORTS. Within ninety (90) days of the end of
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each of LICENSEE's fiscal year's ending during the term of this Agreement
(LICENSEE hereby certifies that its fiscal year ends October 31), and
within ninety (90) days of the termination of this Agreement, LICENSEE
shall deliver to LICENSOR a report prepared by the certified public
accounting firm then servicing LICENSEE, showing gross shipments, Net Sales
(or first cost) (broken down as set forth above), royalties due, and
royalties paid for LICENSEE's preceding fiscal year or, in the case of
termination of this Agreement, such information for the period ending at
termination.
7. LICENSEES RECORDS. LICENSEE shall keep and maintain at its
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regular place of business complete books and records of all business
transacted by LICENSEE in connection with the Licensed Products, including,
but not limited to, books and records relating to Net Sales (or first cost)
of Licensed Products. LICENSEE's accounting records of sales, shipments and
returns of Licensed Products shall be maintained separately from LICENSEE's
accounting records relating to other items manufactured or sold by
LICENSEE. Such books and records shall be maintained in accordance with
generally accepted accounting procedures and principles consistently
applied. LICENSOR, or its duly authorized agents or representatives, shall
have the right to inspect said books and records at LICENSEE's premises
during LICENSEE's regular business hours, provided that LICENSOR shall give
to LICENSEE at least ten (10) days advance written notice thereof.
8. AUDIT BY LICENSOR. LIC XXXXX, upon giving to LICENSEE at least
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ten (10) days advance written notice of its intention to do so,
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shall have the right to audit all books and-records which LICENSEE is
required to maintain pursuant to Paragraph 7-hereof, and in the event any
such audit shall disclose the LICENSEE has understated Net Sales (or first
cost) or underpaid royalties for any reporting period, LICENSEE shall
forthwith and upon written demand pay to LICENSOR the amount by which the
royalties due exceed royalties paid, together with interest thereon, at the
then current Prime rate plus two and one-half percent (2.5%) per annum
calculated from the due date of such royalties. In the event that LICENSEE
has understated Net Sales (or first cost) or underpaid royalties in excess
of five percent (5%) of said Net Sales (or first cost) for any payment
period, LICENSEE shall forth with and upon written demand, also pay to
LICENSOR all costs, fees and expenses incurred by LICENSOR in conducting
such audit, and LICENSOR shall have the right to terminate this Agreement,
immediately. Should such audit disclose that the royalties paid exceed the
royalties due, LICENSEE shall be entitled to a credit equal to such excess
royalties against the royalties next accruing under this Agreement.
9. BEST EFFORTS OF LICENSEE. LICENSEE shall use its best efforts and
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skill to design, manufacture, advertise, sell and ship the Licensed
Products and shall continuously and diligently during the term hereof
produce an inventory of Licensed Products and produce and maintain
facilities and trained personnel sufficient and adequate to accomplish the
foregoing. Upon cessation of any of the above for a continuous period of
ninety (90) days, LICENSOR shall have the right to terminate this
Agreement, immediately.
10. APPROVALS. LICENSEE shall not sell any Licensed Products using
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any advertising or promotional material or packaging material
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bearing the Trademarks, or using LICENSOR's name without the Trademarks,
without prior approval of LICENSOR.
LICENSEE shall furnish to LICENSOR, without cost, the following:
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A. Photographs and/or design sketches of the proposed styling of
each item of Licensed Products;
B. At least one (1) sample, randomly selected of 1 finished
production models of each such item at least five days before, Licensed
Products will be marketed for LICENSOR, approval as to styling,
material and manufacturing quality;
C. Samples of all packaging materials, labels, tags, hang tags
and other indicia to be used on or in connection with the item;
D. All advertising and promotional items, programs and materials
relating to the Licensed Products at least fourteen (14), days prior to
media deadlines.
The foregoing provisions in this Paragraph 10 shall also apply to any
changes in any Licensed Products, advertising or promotional material or
packaging material bearing the Trademarks.
LICENSOR shall have the right to disapprove the use by LICENSEE of any
of the above which, in LICENSOR's opinion, do not meet LICENSOR's
standards, but failure of LICENSOR to notify LICENSEE of such disapproval
within fourteen (14) days after receipt of the items required to be
submitted hereunder shall constitute LICENSOR's approval. In addition
thereto, prior to submission of samples pursuant to Subparagraph B hereof,
LICENSEE shall conduct its normal tests and verification procedures on each
sample to assure that the quality of Licensed Products is at least equal to
the quality of similar non-licensed items manufactured by LICENSEE and sold
at retail at
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comparable prices, including but not limited to, tests and procedures
relating to color fastness, maximum shrinkage, burst strength, curing and
the like.
If, at any time, LICENSOR is of the opinion that LICENSEE is not
properly using the Trademarks on the Licensed Products on labels, tags,
hang tags, packaging, or in advertising, or that the standard of quality of
any item of the Licensed Products does not conform to the standards set by
LICENSOR or is not of a quality at least equal to similar, non-licensed
products manufactured by LICENSEE, LICENSOR may give LICENSEE written
notice to this effect, identifying in such notice the situation to which it
objects. LICENSEE shall have thirty (30) days after receipt of such notice
to correct, to LICENSOR's satisfaction, the situation or situations to
which LICENSOR has objected, and failing which, LICENSOR may terminate this
Agreement forthwith, and LICENSEE shall immediately discontinue use of the
Trademarks and shall not thereafter adopt any conflicting or confusing
similar xxxx or symbol for use on the class of goods to which this license
relates.
11. NONE.
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12. PROHIBITIONS OF ASSIGNMENTS OR TRANSFERS. LICENSEE shall not
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voluntarily or by operation of law assign or transfer this Agreement or any
of LICENSEE's rights or duties hereunder or any interest of LICENSEE
without the written consent of LICENSOR, except to a wholly-owned
subsidiary or an affiliated corporation, nor shall LICENSEE enter into any
sublicense of the use of the Trademarks by any third party. Should LICENSOR
permit such an assignment or should such assignment be to a wholly-owned
subsidiary or an affiliated corporation, LICENSEE shall continue,
nevertheless, to remain liable for the
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performance of this Agreement. Should LICENSEE sell its stock or a majority
thereof, or its assets or a substantial part thereof, to a third party,
this license shall terminate unless LICENSOR gives its written consent to
the said sale. It is understood that despite the fact that LICENSOR and
LICENSEE are corporations, this License Agreement is a highly personal
document, closely associated with the individuals employed by the
corporations who run the said programs. Should LICENSOR fail to give its
written consent to a sale as described above this License Agreement shall
terminate immediately pursuant to-the termination provisions contained,
herein, and LICENSOR shall, upon such termination, be free, thereupon, to
license the rights granted herein to any other person, firm or corporation,
without any further obligations to LICENSEE or its buyer or buyers.
13. PRESERVATION OF TRADEMARKS AND CHANGES IN OR IMPROVEMENTS TO
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LICENSED PRODUCTS. LICENSEE shall cause to appear on all Licensed Products
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and on all materials on or in connection with which the Trademarks are
used, such legends, markings and notices as may be required by the laws
governing the Geographic Area in order to give appropriate notice of any
trademark rights therein or pertaining thereto.
LICENSEE shall not use or permit the use of the Trademarks on or in
connection with any product or service, other than the Licensed Products
which are manufactured or sold by or for LICENSEE. No Licensed Products
shall be sold without a Trademark affixed to it, or on the package or
label.
Any permutation of the Trademarks and any secondary rights adopted and
used by LICENSEE on the Licensed Products, except trademarks already
registered by LICENSEE, shall be and become the property of LICENSOR and
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shall be included as a Trademark subject to this Agreement. Any change or
improvement in the Licensed Product, initiated by LICENSEE or anyone on its
behalf, shall likewise become the property of LICENSOR and shall be
included under the Trademark subject to this Agreement.
14. INFRINGEMENT AND OTHER TRADEMARK LITIGATION. LICENSOR hereby
-------------------------------------------
indemnifies LICENSEE (including its officers and directors) and shall
defend it against any claims or suits and hold it harmless against any
damages awarded by judgment of a court of competent jurisdiction arising
out of or in connection with any claims of Trademark infringement asserted
against LICENSEE by third parties relating to LICENSEE's use of the
Trademarks as authorized by this Agreement, provided that LICENSEE shall
give reasonably prompt notice, cooperation and assistance, other than
financial assistance, to LICENSOR relative to any claim or suit, and
further provided that LICENSOR shall have the option to undertake the
conduct and defense of any suit so brought.
LICENSEE shall give written notice to LICENSOR as soon as practicable
of any infringement of the Trademarks which comes to the attention of
LICENSEE. LICENSOR, at its sole cost and expense and in its own name and at
its sole discretion, may prosecute any action or proceeding which LICENSOR
deems necessary or desirable to protect the Trademarks, including, but not
limited to, actions or proceedings involving infringement of the,
Trademarks. LICENSEE may, and upon written request by LICENSOR shall, join
LICENSOR in any such action or proceeding.
LICENSEE shall not commence any action or proceeding alleging
infringement of the Trademarks without prior written consent of LICENSOR.
Any and all damages recovered in -any action or proceeding commenced by
LICENSOR shall belong solely and exclusively to LICENSOR.
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15. DEFAULT BY LICENSEE.
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A. LICENSEE shall default under this Agreement if:
1. LICENSEE fails to make payment of any amount due
hereunder and such payment has not been received by LICENSOR within ten
(10) days after written notice to LICENSEE, or
2. LICENSEE fails to perform pursuant to this Agreement and
such failure does not involve the payment of money and LICENSEE shall not
commence curing the same within ten (10) days after written notice to
LICENSEE, or if such default is not thereafter completely cured within
thirty (30) days thereof, or
3. A Receiver is appointed or one or more creditors takes
possession of all or substantially all of the assets of the LICENSEE, or if
LICENSEE shall make a general assignment for the benefit of creditors, or
if LICENSEE resolves to go into voluntary liquidation or if proceedings in
voluntary or involuntary bankruptcy are commenced by or against LICENSEE.
B. In the event of a default by LICENSEE, LICENSOR may at its
option, immediately or at any time thereafter cancel and terminate this
Agreement. In such event, LICENSEE shall not be relieved of any of its
obligations which have accrued or will accrue hereunder and LICENSOR shall
retain all of its right to damages therefor in law or in equity, including
but not limited to loss of profits during the unexpired portion of this
Agreement. In addition, all monies due or to become due as Minimum
Guaranteed Royalties hereunder shall become immediately due and payable.
16. DISPOSAL OF INVENTORY UPON TERMINATION OR EXPIRATION. Upon
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expiration or sooner termination of this Agreement (unless sooner
termination takes place because of LICENSEE's default hereunder),
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LICENSEE shall have the right to dispose (in a manner consistent with its
prior methods of selling the Licensed Products during the term hereof) of
all Licensed Products on hand, on order, or in the process of manufacture
on the effective date of such expiration or termination for the period of
ninety (90) days following the date of expiration or termination hereof.
Within thirty (30) days following the effective date of expiration or
termination hereof, LICENSEE shall provide LICENSOR with a written
statement indicating the number and description of Licensed Products on
hand, on order, or in process of manufacture as of the effective date of
expiration or termination, and LICENSOR shall have the right to conduct a
physical inventory to verify such statement. In the event LICENSEE refuses
to permit LICENSOR to conduct such physical inventory or fails to deliver
such written statement, the LICENSEE shall forfeit its rights hereunder to
dispose of Licensed Products following the date of expiration or
termination. With respect to. all Licensed Products sold pursuant to this
Paragraph 16, LICENSEE shall pay LICENSOR an operating royalty as provided
in Paragraph 4B above, but not a Minimum Guaranteed Royalty. Such operating
royalties shall be payable within sixty (60) days following the end of the
aforesaid ninety (90) day period. Should termination or cancellation occur
because of LICENSEE's default hereunder, LICENSEE shall have only thirty
(30) days from the date of termination to dispose of its inventory.
17. ADDITIONAL RIGHTS UPON TERMINATION.
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A. During the final twelve (12) months of the term hereof,
LICENSOR shall have the right to negotiate and conclude such agreements as
it desires, pursuant to which it shall grant a license to any party or
parties of any or all of the rights herein granted to LICENSEE, except that
no merchandise herein identified as Licensed
13
Products shall be advertised or sold by LICENSOR or any third party other
than LICENSEE prior to the expiration or termination of this Agreement.
B. Upon the expiration of the license granted hereunder or the
earlier termination thereof (unless earlier termination occurs because of
LICENSEE I s default hereunder) the license shall revert to LICENSOR and
LICENSEE thereafter shall not use or refer to the Trademarks and LICENSOR
shall be free to license others to use the Trademarks in connection with
the Licensed Products in the Geographic Area.
18. GOODWILL. LICENSEE acknowledges that the Trademarks have
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acquired a valuable secondary meaning and goodwill with the public.
Accordingly, LICENSEE undertakes and agrees not -to use the Trademarks in
any manner whatsoever which, directly or indirectly, would derogate or
detract from its repute and to use its best efforts to insure and uphold
LICENSOR's excellent image and its trademarks in the marketplace. Except as
may be otherwise specified in this Agreement, LICENSEE shall not use the
Trademarks herein licensed or any name confusingly similar thereto as part
of its company name or as part of the name of any company or corporate name
of any corporation which it controls or with which it is affiliated.
LICENSEE will not attack LICENSOR's right or title in and to the Trademarks
and hereby acknowledges LICENSOR'S ownership of the Trademarks.
19. INDEMNIFICATION. LICENSEE hereby agrees to pay on behalf of
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LICENSOR, its officers and directors, and to defend it and them (and to pay
all counsel fees necessary to do so) against any and all claims or suits
and hold it and them harmless against any and all claims, suits,
liabilities, causes of action, damages or expenses arising out of any
14
unauthorized use by LICENSEE of the Trademarks, and from any and all claims
or suits, liabilities, causes of action, damages or expenses which ate the
sole fault of LICENSEE and which arise out of the manufacture, use,
advertising or sale by LICENSEE of the Licensed Products, other than claims
of trademark infringement, as referred to in Paragraph hereof, including.,
but not limited to, actions or subrogations brought by employees, agents,
trustees, insurance companies or others, acting with or on behalf of
LICENSEE. LICENSEE agrees to carry (1) worldwide product liability
insurance with respect to the Licensed Products with a limit of liability
of Million Dollars ($_,000,000) and (2) bodily injury and property damage
liability insurance (including contractual liability) with respect to the
Licensed Products with a limit of liability of Million Dollars
($_,000,000). In addition, (3) LICENSEE agrees to provide business
interruption insurance for the benefit of LICENSOR, with limits equal at
least to the anticipated annual royalties payable to LICENSOR by LICENSEE
during the first effective year of this Agreement, such projection to be
made by LICENSEE. Thereafter, for each year of this Agreement, the
projection of such royalties shall be made annually by LICENSEE, approved
by LICENSOR, and shall govern the business interruption insurance coverage.
Business interruption insurance coverage will be provided on a "valued"
basis (i.e. no coinsurance and no need for calculation after loss) and will
be "all risk". LICENSOR shall be named in each such insurance policy as
additional insured as its interest may appear. Such insurance may be
obtained in conjunction with a policy or policies of insurance which cover
products other than the Licensed Products, and shall provide at least
thirty (30) days prior written notice to LICENSOR of the cancellation, non-
renewal or substantial modification thereof. LICENSEE
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shall deliver, to LICENSOR a certificate evidencing the existence of such
insurance policies promptly after the execution of this Agreement, the
insurance companies to be acceptable to LICENSOR.
20. ATTORNEY'S FEES, SITUS OF ACTION, APPLICABLE LAW. In the event
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LICENSOR or LICENSEE shall commence any action or proceeding against the
other by reason of any breach or claimed breach of the performance of any
of the terms or conditions of this Agreement, or seek a declaration of
rights hereunder, the prevailing party in such action or proceeding against
the other by reason of any breach or claimed breach of the performance of
any of the terms or conditions of this Agreement, or in seeking a
declaration of rights hereunder, the prevailing party in such action or
proceeding shall be entitled to reasonable attorney's fees to be fixed by
the trial court. Any legal action-or proceeding of any sort against
LICENSOR by or on behalf of LICENSEE shall be brought in a court of
competent jurisdiction in Philadelphia County, Pennsylvania. In any legal
action or proceeding brought in which any rights or obligations arising
from this Agreement is an issue, the law applicable thereto shall be the
law of the Commonwealth of Pennsylvania.
21. NON-AGENCY OF PARTIES. This Agreement does not constitute
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LICENSEE as the agent or legal representative of LICENSOR or LICENSOR as
the agent or legal representative of LICENSEE for any purpose whatsoever
LICENSEE is not granted 'any rights or authority to assume or to create any
obligation or responsibility, express or implied, on behalf of or in the
name of LICENSOR or to bind LICENSOR in any manner or thing whatsoever; nor
is LICENSOR granted any right or authority to assume or create any
obligation or responsibility, express or implied, on behalf of or in the
name of LICENSEE or to bind LICENSEE in any manner or thing
16
whatsoever. No joint venture or partnership between LICENSOR and LICENSEE
is intended or shall be inferred.
22. SPECIFIC UNDERTAKINGS OF LICENSEE. During the term of this
---------------------------------
Agreement, LICENSEE agrees that:
A. It will manufacture, sell and distribute the Licensed
Products in an ethical manner and in accordance with the terms and intent
of this Agreement.
B. It will protect, to the best of its ability, its right to
manufacture, sell and distribute the Licensed Products.
C. It will not directly or indirectly knowingly distribute
Licensed Products outside of the Geographic Area, nor shall it sell
Licensed Products to any customers whom LICENSEE knows or has reason to
believe will resell Licensed Products outside of the Geographic Area.
D. It acknowledges that the Trademarks are the property of the
LICENSOR and that all use of the Trademarks and' goodwill created thereby
by LICENSEE shall inure to the benefit of LICENSOR. LICENSEE shall render
reasonable assistance, other than financial assistance, to LICENSOR which
may be required by LICENSOR to enforce and preserve the Trademarks.
E. No brokers and finders were involved in connection with this
Agreement.
F. LICENSOR reserves all rights to use the Trademarks except to
the extent of the rights granted to the Trademarks by LICENSOR to LICENSEE
hereunder.
G. If LICENSEE obtains any copyrights with respect to labels
and/or packaging materials used in connection with the Licensed Products,
such copyrights shall be obtained in the name of LICENSOR and
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shall revert to LICENSOR at the expiration or earlier termination of this
Agreement.
23. ADDRESSES FOR NOTICE. All notices between the LICENSOR and
--------------------
LICENSEE shall be in writing by certified mail, return receipt requested,
addressed to LICENSEE or LICENSOR, at the respective addresses set forth
below, and shall be effective upon receipt:
LICENSOR: X. X. XXXX, XXX.
Xxxxx 000, Xxx Xxxxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxx X. Xxxx
LICENSEE: XXXXXXX SHOE COMPANY, INC.
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxx, CEO
If any of the parties hereto shall, during the currency of this
Agreement, change address, then upon giving written notice to the other
party of the new address, the new address shall be the address for notice.
24. WAIVER OF LICENSOR. In the event LICENSOR shall at any time
------------------
waive any of its rights under this Agreement or the performance by LICENSEE
of any of its obligations hereunder, such waiver shall not be construed as
a continuing waiver of the same rights or obligations or a waiver of any
other rights or obligations.
25. INTEGRATED AGREEMENT. This Agreement constitutes the entire
--------------------
agreement between the parties as to the Licensed Products, there are no
other understandings between the parties, oral or otherwise, nor any
representations made by either party to the other prior to this Agreement,
and no modifications or revisions hereof shall be of any
18
force or effect unless the same are in writing and executed by the parties
hereto.
26. SEPARABILITY OF PROVISIONS AND TITLES. Any provisions of this
-------------------------------------
Agreement which shall be or be determined to be invalid shall be
ineffective, but such invalidity shall not affect the remaining provisions
hereof. The titles to the paragraphs hereof are for convenience only and
have no substantive effect.
27. BINDING UPON SUCCESSORS. This Agreement shall be binding upon
-----------------------
and shall inure to the benefit of the parties hereto and their respective
successors. This Paragraph 27 shall not be construed to alter or modify the
prohibitions upon assignments or transfers by LICENSEE expressed elsewhere
in this Agreement.
28. FAILURE TO SHIP CERTAIN ITEMS. All of the various categories
-----------------------------
(items) set forth in paragraph 1 hereof as Licensed Products must be
designed, manufactured and advertised and sold by LICENSEE no later than
one year after the execution of this Agreement. Failure of LICENSEE to ship
any category (item) as aforesaid within one year after the execution
hereof, shall cause the said unshipped item or items, as the case may be,
to be deleted from the he category of a Licensed Product hereunder, and
LICENSOR shall be free then-to license said item to any third party, free
and clear of any restrictions in this Agreement.
X. X. XXXX, INC.
(Corporate Seal) BY: _________________________
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XXXXXXX SHOE COMPANY, INC.
(Corporate Seal) By: _________________________
20
EXHIBIT A
X. X. XXXX
K
United States Registration
No. 1,068,167
Issued June 21, 1977
[LOGO APPEARS HERE]
United States Registration
No. 101930945
Issued April 20, 0000
Xxxxxx Xxxxxx Registration
No. 1,617,734
0 Issued October 16, 0000
Xxxxxx Xxxxxx Trademark Registration No. 1,620,047 Issued October 30,
1990.
21
