LICENSE AGREEMENT
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[EXECUTION COPY]
THIS LICENSE AGREEMENT is made and entered into as of the 16th day of March 2004. (the "Effective Date") by and between Xxx. Xxxxxx Franchising, LLC a Delaware limited liability company with an address at 0000 X. Xxxxxxxxxx Xxxxxxx, Xxxxx 000 Xxxx Xxxx Xxxx, Xxxx 00000 ("Licensor"), and Xxx. Xxxxxx' Original Cookies, Inc. a Delaware corporation, with an address at 0000 X. Xxxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxx Xxxx Xxxx, Xxxx 00000 (Licensee").
WHEREAS, Licensor is licensed to use and sublicense 4 U.S. registered trademarks including "HOT XXX", (set forth on Schedule A) (collectively the "Xxxx") by virtue of a license between Licensor and The Xxx. Xxxxxx' Brand, Inc., an affiliate of Licensor and the owner of the Xxxx. The Xxxx is registered for use on or in connection with bakery goods, non-alcoholic beverages and retail bakery store services in International Classes 030, 032, and 042.
WHEREAS, Licensee is an affiliate of Licensor, is in the business of selling bakery goods, and is desirous of using the Xxxx in connection with its operation of certain cookie stores;
NOW, THERFORE, in consideration of the foregoing and of the mutual promises hereinafter set forth, the parties agree as follows:
1. GRANT OF LICENSE
Subject to the terms and conditions set forth herein, Licensor hereby grants to Licensee a perpetual, worldwide, nonexclusive, nontransferable license to operate certain cookie stores using the Xxxx and Licensee accepts this license.
2. ROYALTIES
Licensee shall pay Licensor a royalty for each relevant calendar quarter equal to the sum of 7% of gross revenues from the operation of those cookie stores using the Xxxx. Any such royalties payable by Licensee shall be paid to Licensor within thirty (30) calendar days following the end of the relevant quarter. Gross revenues means the aggregate amount of all sales from those cookie stores using the Xxxx, whether for cash or credit, but excluding all federal, state or municipal sales, use or service taxes collected from customers and paid to the appropriate taxing authority.
3. OWNERSHIP OF XXXX
Licensee acknowledges the ownership of the Xxxx in Licensor and agrees that it will do nothing inconsistent with such ownership and that all use of the Xxxx by Licensee shall inure to the benefit of and be on behalf of Licensor. Licensee agrees to assist Licensor in recording this Agreement with any appropriate government authorities. Licensee also agrees that nothing in this license shall give Licensee any right, title or interest in the Xxxx other than the right to use and sublicense the Xxxx in accordance with this license, and Licensee agrees that it will not contest the title of Licensor to the Xxxx.
4. QUALITY STANDARDS
Licensee agrees that the nature and quality of (a) all goods sold by Licensee under the Xxxx, (b) all services rendered by Licensee in connection with the Xxxx, (c) and all related advertising, promotional and other related uses of the Xxxx by Licensee shall conform to standards set by and be under the control of Licensor.
5. QUALITY MANAGEMENT
Licensee agrees to cooperate with Licensor in facilitating Licensor's control of such nature and quality, to permit reasonable inspection of Licensee's operation, and to supply Licensor with specimens of all uses of the Xxxx upon request. Licensee shall comply with all applicable laws and regulations and obtain all appropriate government approvals pertaining to the sale, distribution and advertising of goods and services covered by this license.
6. FORM OF USE
Licensee agrees to use the Xxxx only in the form and manner and with appropriate legends as prescribed from time to time by Licensor, and not to use any other trademark or service marks in combination with the Xxxx without prior written approval of Licensor.
7. INFRINGEMENT PROCEEDINGS
Licensee agrees to notify Licensor of any unauthorized use of the Xxxx by others promptly as it comes to Licensee's attention. Licensor shall have the sole right and discretion to bring infringement or unfair competition proceedings involving the Xxxx.
8. TERMINATION FOR CAUSE
Licensor shall have the right to terminate this Agreement upon thirty (30) days written notice to Licensee in the event of any affirmative act of insolvency by Licensee, or upon the appointment of any receiver or trustee to take possession of the properties of Licensee or upon the winding-up, sale, consolidation, merger or any sequestration by government authority of Licensee, or upon the discontinuance of the use of the Xxxx or upon breach of any of the provision hereof by Licensee.
9. EFFECT OF TERMINATION
Upon termination of this Agreement, Licensee aggress to immediately discontinue all use of the Xxxx and any term confusingly similar thereto, to cooperate with Licensor or its appointed agent to apply to the appropriate authorities to cancel any recording of this Agreement from all government records, and to return to Licensor or destroy all printed materials bearing the Xxxx. Licensee agrees that all rights in the Xxxx and the good will connected therewith shall remain the property of Licensor.
10. INTERPREATION OF AGREEMENT
It is agreed that this Agreement shall be interpreted according to the laws of the State of Utah, United State of America.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written.
XXX. XXXXXX FRANCHISING, LLC |
XXX. XXXXXX' ORIGINAL COOKIES, INC. |
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By: |
/s/ XXXXXX XXXXX |
By: |
/s/ XXXXXXX XXXX |
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| Name: | Xxxxxx Xxxxx | Name: | Xxxxxxx Xxxx | |||
| Title: | Sr. Vice President | Title: | Sr. Vice President | |||
SCHEDULE A
HOT XXX, INC.
| 1. | HOT XXX | United States | 1,827,896 | Mar-22-1994 | ||||
| 2. | HOT XXX (& Design) | United States | 994,053 | Sep-24-1974 | ||||
| 3. | HOT XXX (Stylized) | United States | 989,707 | Jul-30-1974 | ||||
| 4. | HOT XXX (& Design) | United States | 1,561,517 | Oct-17-1989 |
LICENSE AGREEMENT
