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EXHIBIT 10.4
FORM OF CROSS LICENSE AGREEMENT
THIS CROSS-LICENSE AGREEMENT (this "Agreement"), is made and entered into
as of ___________ ___, 1999, by and among American Greetings Corporation, an
Ohio corporation ("AG Corp"), its wholly-owned subsidiary AGC, Inc., a Delaware
corporation ("AGC" and, together with AG Corp, "AG"), XxxxxxxxXxxxxxxxx.xxx,
Inc., a Delaware corporation ("xxxxxxx.xxx") and its wholly owned subsidiary,
XX.XXX, Inc., a Delaware corporation ("AGCI" and, together with xxxxxxx.xxx,
"XX.XXX") (together, the "Parties").
RECITALS
A. AG (with its Affiliates) and XX.XXX each is the owner of all right, title
and interest in and to certain trademarks, service marks, trade names,
copyrights, trade dress and other intellectual property described herein,
and is the authorized user or licensee of other trademarks, service
marks, trade names, copyrights, trade dress and other intellectual
property, all as described herein.
B. XX.XXX previously operated as a division of AG, and its assets and
operations have been transferred to it pursuant to a Formation Agreement
by and among the Parties and other affiliates dated ______ __, 1999 (the
"Formation Agreement").
C. Under the Formation Agreement, AG also transferred to XX.XXX the
ownership of certain intellectual property rights to use other
intellectual property.
D. AG, on the one hand, and XX.XXX, on the other hand, each desires to
license the other as provided herein.
NOW, THEREFORE, based on the above premises and the promises made herein,
the Parties agree as follows:
AGREEMENTS
1. DEFINITIONS. Except as otherwise specified, the following terms shall
have the respective meanings set forth below whenever used in this
Agreement. Capitalized terms not defined in this Agreement will have the
meaning set forth in the Formation Agreement (as defined below).
1.1. "AG" or "AG Group" means AG Corp, AGC and, with respect to the
scope of rights, grants and business activity restrictions in
this Agreement, all their present and future Affiliates, other
than XX.XXX and its Subsidiaries.
1.2. "AG Business" means the distribution through, or sale to third
parties for sale at physical retail locations by, Physical
Retailers of (a) Physical Greeting Products and (b) other
social expression products manufactured in physical media,
including, without limitation, items such as gift wrap,
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stationery, party goods, balloons, candles and reading glasses.
Distribution or sale of computer software, for example on
CD-ROMs such as those sold by XX.XXX, is not included in the
term "AG Business."
1.3. "AG Content" means Content and other Copyrights owned or
licensed and used by AG as of the Effective Time or
subsequently, including, without limitation, that which is
identified on Schedule 1.3.
1.4. "AG Intellectual Property" means Intellectual Property owned or
licensed for use by AG as of the Effective Time or
subsequently.
1.5. "AG Know-How" means Know-How owned or licensed for use by AG as
of the Effective Time or subsequently.
1.6. "AG Trademarks" means the Trademarks identified on Schedule
1.6. "Group 1 Trademarks", "Group 2 Trademarks", "Group 2A
Trademarks", "Group 2B Trademarks", and "Group 3 Trademarks"
mean the Trademarks so identified in each case on
Schedule 1.6.
1.7. "XX.XXX" means XxxxxxxxXxxxxxxxx.xxx, Inc. together with its
Subsidiaries and, with respect to the scope of rights, grants
and business activity restrictions, all its present and future
Affiliates, other than AG.
1.8. "XX.XXX Business" means the distribution or sale of Electronic
Greeting Products and Physical Greeting Products to consumers
directly through Electronic Media; provided, however, that
XX.XXX Business does not include distribution or sales within
the physical confines of retail stores owned or operated by AG.
1.9. "XX.XXX Intellectual Property" means Intellectual Property
owned or licensed (other than from AG) for use by XX.XXX as of
the Effective Time or subsequently.
1.10. "Affiliates" of any specified company means any other company
that, directly or indirectly, controls, is controlled by or is
under direct or indirect common control with such specified
company. For purposes of this Agreement, "control" means
ownership of a majority voting interest sufficient to direct
the affairs of a company.
1.11. "Ancillary Agreements" shall have the meaning set forth in
Section 7.01 of the Formation Agreement.
1.12. "Art" means art, including pictorial, graphic, visual, video,
photographic or sculptural works used, or usable, at any time,
past, present or future, in a greeting, social expression, or
other product, or on a Web site.
1.13. "Competitive Brand Trademark" means a Trademark identifying an
entity that derives a majority of its revenue from the AG
Business.
1.14. "Confidential Information" of a Party means (a) confidential
Know-How; and (b) any other confidential ideas, inventions,
software (including the object code and source code), program
structure, sequence and organization techniques, trade secrets
and other information of the Party
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(including all copies thereof), whether or not registerable,
patentable or copyrightable, relating to, forming a part of or
concerning the Party's business and/or its Intellectual
Property which, as to each such item in clauses (a) and (b) of
this definition is (i) at any time during the term hereof
acquired or developed by a Party, is in the Party's possession,
and disclosed by the Party to the other pursuant to this
Agreement; (ii) neither available to the public at the time of
its receipt by a Party from the other hereunder nor obtained
from a public source by the Party; and (iii) the subject of
reasonable efforts by the Party to maintain confidentiality.
For the avoidance of doubt, any information of each Party
(including all copies hereof) that is obtained by that Party,
directly or indirectly, from a third Person who is subject to a
confidentiality obligation to that Party with respect to such
information shall constitute, and be deemed to be, Confidential
Information hereunder. Confidential Information does not
include any information which (i) has become generally known to
the public through no wrongful act or breach of any obligation
of confidentiality on the receiving party's or any third
party's part; (ii) was in the lawful knowledge and possession
of, or was independently developed by, the receiving party
prior to the time it was disclosed to, or learned by, the
receiving party as evidenced by written records kept in the
ordinary course of business by the receiving party; (iii) was
rightfully received from a third party not in violation of any
contractual, legal or fiduciary obligation of such third party;
or (iv) was approved for release by written authorization by
the party having rights in such information.
1.15. "Content" means Art and Verse, and any other work of authorship
in which copyright may exist, and all intellectual property
rights therein.
1.16. "Copyright" means, collectively, a copyright arising under the
laws of the United States or other nation in Content, Software
or other work of authorship, and the attendant exclusive
rights, together with the Content, Software or work of
authorship in which the copyright subsists.
1.17. "Effective Time" means the date of this Agreement in the
preamble, or another date agreed to by the Parties, which shall
occur after the closing of the transactions contemplated by the
Formation Agreement.
1.18. "End Date" means the time at which AG's voting (not equity)
interest in XX.XXX falls below 20%, except that, (i) in the
event of a distribution by AG of substantially all its shares
of XX.XXX to its shareholders, the End Date shall not occur
earlier than ten years after the date XX.XXX's Initial Public
Offering and (ii) in the event of a sale of substantially all
of AG's interest in XX.XXX, the End Date shall not occur
earlier than the later of (x) two years after written notice to
XX.XXX by AG or (y) five years after the date of XX.XXX's
Initial Public Offering.
1.19. "Electronic Greeting Products" means (i) online and electronic
equivalents of Physical Greeting Products and (ii) electronic
and online versions of
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other social communication items such as templates for
stationery, banners, gift tags and award certificates.
1.20. "Electronic Media" means the now existing and future developed
electronic media including (without limitation) the Internet
and online services (whether delivered through telephonic
connection, television, satellite or broadband connection) and
CD-ROM. Online retailers, including (without limitation)
America Online and Yahoo! are "Electronic Media," but online
retail locations of Physical Retailers are not Electronic
Media.
1.21. "Finished XX.XXX Properties" means (i) finished Electronic
Greeting Products or social expression products, in form
suitable for use by consumers (as distinguished from digitized
electronic Art, Verse, Content and other component elements of
a finished Electronic Greeting Product) and (ii) finished,
production implementations of Software technology for the
implementation of the XX.XXX Business (e.g. working web site
HTML code and related scripts but not Software tools used in
the creation, presentation, distribution or delivery of the
Finished XX.XXX Properties described in clause (i)).
1.22. "Improvements" means any change, modification, alteration or
variation or any discovery, improvement, invention, innovation,
extension, derivative work or other enhancement, made or
acquired during the term hereof relating to an item of
Intellectual Property, as each exists on the Effective Time, or
as it may hereafter be modified, improved or enhanced through
the application of Improvements.
1.23. "Intellectual Property" means (a) inventions, whether or not
patentable, whether or not reduced to practice or whether or
not yet made the subject of a pending patent application or
applications; (b) ideas and conceptions of potentially
patentable subject matter, including, without limitation, any
patent disclosures, whether or not reduced to practice and
whether or not yet made the subject of a pending patent
application or applications; (c) national (meaning the United
States) and multinational statutory invention registrations,
patents, patent registrations, and patent applications
(including all reissues, divisions, continuations,
continuations-in-part, extensions and reexaminations) and all
rights therein provided by multinational treaties or
conventions and all improvements to the inventions disclosed in
each such registration, patent or application; (d) trademarks,
service marks, trade dress, logos, trade names and corporate
names, whether or not registered, including all common law
rights, and registrations and applications for registration
thereof, including, but not limited to, all marks registered in
the United States Patent and Trademark Office, the counterpart
agencies of the States and Territories of the United States of
America, and the Trademark offices of other nations throughout
the world, and all rights therein provided by multinational
treaties or conventions; (e) works of authorship of all types,
published and unpublished, and copyrights (registered or
otherwise) and registrations and
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applications for registration thereof, and all rights therein
provided by multinational treaties or conventions; (f) moral
rights (including, without limitation, rights of paternity and
integrity), and waivers of such rights by others; (g) computer
software, including, without limitation, source code, operating
systems and specifications, data, data bases, files,
documentation and other materials related thereto, data and
documentation; (h) trade secrets and confidential, technical or
business information (including ideas, formulas, compositions,
inventions, and conceptions of inventions whether patentable or
unpatentable and whether or not reduced to practice); (i)
whether or not confidential, technology (including Know-How),
manufacturing and production processes and techniques, research
and development information, drawings, specifications, designs,
plans, proposals, technical data, copyrightable works,
financial, marketing and business data, pricing and cost
information, business and marketing plans and customer and
supplier lists and information; (j) copies and tangible
embodiments of all the foregoing, in whatever form or medium;
(k) all rights to obtain and rights to apply for patents, and
to register trademarks and copyrights; and (l) all rights to
xxx and recover and retain damages and costs and attorneys'
fees for present and past infringement of any of the
Intellectual Property rights hereinabove set out.
1.24. "Know-How" means the technology, technical information,
methods, analyses, procedures, processes, teachings,
instructions, techniques, practices, methods, data, statistics,
drawings, designs, formulae, concepts, programs, raw material,
equipment and plant specifications, raw material blending and
purchasing, quality standards, inspection standards,
information as to test methods and procedures, and any other
knowledge, experience and information of a Party, whether or
not patentable (in each case regardless of the form in which
such technology, information or data may be embodied or
represented), and which a Party, on the date hereof or
hereafter during the term of this Agreement, owns or with
respect to which it has the right to grant a license hereunder
and all intellectual property rights therein.
1.25. "Patents" means patent applications and letters patent
including any renewal patents issued with respect to any of
such patent applications and letters patent, and any
certificates of invention and utility models, rights by license
or otherwise to or under letters patent, and all reissues,
divisions, continuations, continuations in part, renewals, and
extensions thereof.
1.26. "Permitted Premiums" means greetings or social expression
products (physical or electronic) distributed for a limited
period of time as a promotional premium for no consideration or
minimal consideration.
1.27. "Person" means an individual, a general or limited partnership,
a corporation, a trust, a joint venture, an unincorporated
organization, a limited liability entity, any other entity and
any Governmental Authority.
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1.28. "Physical Greeting Products" means (a) non-customized greeting
cards manufactured or created in physical media such as paper,
plastic, mylar and other similar materials and (b) similar
card-type goods in physical media (e.g. invitations and thank
you notes).
1.29. "Physical Retailer" means a company and its Affiliates, as a
group, that is or becomes a retail store customer of AG and
derives a majority of its revenue from the sale of physical
goods to consumers at retail store locations where the consumer
is physically present to make purchases.
1.30. "Reversion Event" means the occurrence of circumstances in
which (after notice and an opportunity to cure for thirty (30)
days in the case of clauses (ii) and (iii) below), (i) XX.XXX
has less than 10% of its revenues derive from the XX.XXX
Business; (ii) XX.XXX materially defaults in its royalty
obligations to AG under the Ancillary Agreements; (iii) XX.XXX
materially defaults on any covenant related to indebtedness for
borrowed money in excess of One Million Dollars ($1,000,000),
or (iv) XX.XXX's financial condition and its reasonably
available sources of debt or equity capital become such that
auditors, applying generally accepted auditing standards
consistently applied, would be required to qualify an audit
report with a "going concern" qualification.
1.31. "Formation Agreement" has the meaning ascribed to it in the
Recitals.
1.32. "Software" means computer programs and documentation.
1.33. "Subsidiary" of any specified company means an Affiliate of
that company that is, directly or indirectly, controlled by
that company.
1.34. "Trademark" means any word, design, logo or other item entitled
to protection as a trademark or services xxxx under the laws of
the United States or any other nation.
1.35. "Verse" means verse, including text and literary works, such as
poems, sayings, jingles, words, narratives, or phrases which
are used or usable at any time in a greeting or social
expression product or a communication.
2. LICENSE GRANTS BY AG
2.1. AG TRADEMARKS.
2.1.1. Subject to the terms and conditions of this Agreement,
AG hereby grants to XX.XXX (until termination of this
Agreement and thereafter to the extent provided under
the terms and conditions of this Agreement) a
non-transferable, worldwide license to use the AG
Trademarks as follows:
2.1.1.1. GROUP 1. The license to use the Group 1 Trademarks is
exclusive to XX.XXX in the XX.XXX Business and non
exclusive for all other uses except that (i) no
license is granted for use in the AG Business and
(ii) AG retains a
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non-exclusive right within the XX.XXX Business (A) to
associate a Group 3 Trademark with a Group 1 Trademark
(for example, to identify a product sold through
Electronic Media as "Designware, an American Greetings
company") and (B) for business to business commerce
with prospective or existing non-consumer customers.
2.1.1.2. GROUP 2. The license to use the Group 2 Trademarks is
exclusive to XX.XXX except that no license is granted
for use in the AG Business.
2.1.1.3. GROUP 3. The license to use the Group 3 Trademarks is
non-exclusive, except that no license is granted for
use in the AG Business.
2.1.2. DUTY TO PROMOTE AG TRADEMARKS. XX.XXX will use best reasonable
efforts to use and promote the Trademarks "American Greetings"
and the AG "Rose" logo in its business and markets in North
America.
2.2. NON-TRADEMARK LICENSED AG INTELLECTUAL PROPERTY. Subject to the terms and
conditions of this Agreement, AG hereby grants to XX.XXX, (until
termination of this Agreement and thereafter to the extent provided under
the terms and conditions of this Agreement), a non-transferable,
irrevocable (except as provided herein) worldwide license to use the
non-Trademark AG Intellectual Property as follows:
2.2.1. GENERAL. Unless otherwise expressly provided, the rights and
licenses granted in this Section are exclusive for the XX.XXX
Business, and non exclusive otherwise, except that no license
is granted in the AG Business.
2.2.2. CONTENT. The license to AG's current and future Content shall
include the right to use, copy, modify, distribute and display.
The license to AG's current and future Patents shall include
the rights to use, make, have made, sell and import products
and services incorporating the covered inventions.
2.2.3. THIRD-PARTY LICENSED INTELLECTUAL PROPERTY. To the extent
permitted in each case, the license granted in this Section
includes sublicenses of Intellectual Property that is licensed
to AG by its Affiliates and by non-Affiliate third parties,
subject in the case of non-Affiliates, to any restrictions or
limitations in such licenses. Such third-party licensed
Intellectual Property includes that which is so identified on
Schedules [________].
2.2.4. INCLUDED PROPERTY. AG agrees that any and all Patents and
Software (other than Patents and Software transferred to XX.XXX
pursuant to the Formation Agreement) that it may own now or in
the future are included in the non-Trademark AG Intellectual
Property licensed in this Section 2.2.
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2.3. SUBLICENSING.
2.3.1. TRADEMARKS. XX.XXX may not sublicense any of the
Trademark rights granted hereunder, other than under
written sublicense agreements consistent with the
terms, conditions and requirements of this Agreement,
including, without limitation (in the case of licensed
trademarks), the standards in Section 2.5. For the
avoidance of doubt, the standards of Section 2.5 may
limit the identity of sublicensees of Trademarks.
2.3.2. OTHER. XX.XXX may not sublicense any of the
non-Trademark rights granted hereunder, other than
under written sublicense agreements consistent with
the terms, conditions and requirements of this
Agreement, including, without limitation (in the case
of licensed trademarks), the standards in Section 2.5.
2.4. LICENSES SUBJECT TO RESTRICTION AND OTHER USE. With respect to
any Intellectual Property licensed by AG and not assigned to
XX.XXX pursuant to the Formation Agreement that either (i) is
used by AG primarily for use not in the XX.XXX Business or (ii)
is subject to restrictions on sublicensing to XX.XXX or both,
AG will use reasonable efforts to provide the benefit thereof
to XX.XXX to the extent permitted, for XX.XXX's exclusive use
in the XX.XXX Business and non-exclusive use otherwise (other
than in the AG Business), or if not able to do so will
negotiate in good faith to determine appropriate treatment
(including one Party being reasonably required to obtain a
second license) on a case by case basis.
2.5. QUALITY. XX.XXX shall comply with the usage, product and
licensee quality requirements of Schedule 2.5 (the "Quality
Standards"), as they may be reasonably changed by AG with
reasonable advance notice to XX.XXX from time to time with
respect to XX.XXX's use of the licensed AG Trademarks. XX.XXX
shall not use the licensed AG Trademarks in a manner that
violates the Quality Standards, nor shall it affix or sell or
offer for sale under the AG Trademarks any product or service
that violates the Quality Standards. XX.XXX shall not permit
any Affiliate or third party with whom it has a sublicense or
other agreement or arrangement to take any such action
involving an AG Trademark that would violate the Quality
Standards. Notwithstanding anything to the contrary herein or
in the Quality Standards under no circumstances will XX.XXX be
required to obtain prior approval for usage of an AG Trademark,
but AG reserves the right to object, under the terms hereof, to
any usage that it determines violates the terms hereof or the
Quality Standards.
3. LICENSE GRANTS BY XX.XXX
3.1. NON-TRADEMARK LICENSED XX.XXX INTELLECTUAL PROPERTY. Subject to
the terms and conditions of this Agreement, XX.XXX hereby
grants to AG (until termination of this Agreement and
thereafter to the extent provided under the terms and
conditions of this Agreement), a non-transferable,
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irrevocable (except as provided herein) worldwide license to
use the non-Trademark XX.XXX Intellectual Property as follows:
3.1.1. GENERAL. Unless otherwise expressly provided, the
rights and licenses granted in this Section are
exclusive for the AG Business, and non-exclusive
otherwise except that no license is granted in the
XX.XXX Business.
3.1.2. CONTENT. The license to XX.XXX's current and future
Content shall include the right to use, copy, modify,
distribute and display. The license to XX.XXX's
current and future Patents shall include the right to
use, make, have made, sell and import products and
services incorporating the covered inventions.
3.1.3. LIMITATION WITH RESPECT TO FINISHED XX.XXX PROPERTIES.
XX.XXX may terminate the licenses granted hereunder to
AG for Finished XX.XXX Properties if AG is furnishing
such products to one or more Physical Retailers for
sale or distribution directly to consumers by the
Physical Retailers through the Physical Retailer's
online retail locations in a manner that XX.XXX
determines to be in competition with it. XX.XXX may
terminate such licenses as to Finished XX.XXX
Properties that XX.XXX does not offer at no charge on
its web site on 30 days prior written notice. As to
Finished XX.XXX Properties that XX.XXX offers at no
charge on its web site, XX.XXX may terminate such
license only on one year's prior written notice.
3.1.4. THIRD PARTY LICENSED INTELLECTUAL PROPERTY. To the
extent permitted in each case, the licenses granted in
this Section include sublicenses of Intellectual
Property that is licensed to XX.XXX by its Affiliates
(other than AG) and by non-Affiliate third parties,
subject in the case of non-Affiliates, to any
restrictions or limitations in such licenses. Such
third-party licensed Intellectual Property includes
that which is identified on Schedules [_________].
3.2. SUBLICENSING. AG may not sublicense any of the rights granted
hereunder, other than under written sublicense agreements
consistent with the terms, conditions and requirements of this
Agreement.
3.3. LICENSE RESERVED UNDER FORMATION AGREEMENT. The rights reserved
by AG pursuant to Section __ of the Formation Agreement shall
be deemed to be subject to all the rights and benefits of the
license granted to AG herein.
3.4. SCOPE OF CERTAIN LICENSES. For the avoidance of doubt, XX.XXX
acknowledges that the exclusion of Finished XX.XXX Properties
from the license grant set forth above pursuant to a
termination under Section 3.1.3 shall not be interpreted to
preclude AG from creating, reproducing, distributing,
displaying or otherwise using (or render the same as an
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infringement of XX.XXX's rights) derivative works of the licensed
Intellectual Property or its own Intellectual Property that are similar
or identical to the non-licensed Finished XX.XXX Properties.
4. CERTAIN AGREEMENTS REGARDING LICENSED PROPERTY
4.1. VALIDITY. AG and XX.XXX each recognize the validity of the
Intellectual Property licensed by the other hereunder and of
any registrations therefor, and each acknowledges the other as
the owner of all rights, title and interest in and to the
licensed Intellectual Property of the other listed on any
Schedule or Exhibit to this Agreement or Formation Agreement.
Neither AG nor XX.XXX will contest, nor assist any third party
in contesting, the other's ownership of such licensed
Intellectual Property or any registrations of the other for
such licensed Intellectual Property, and will not contest the
validity thereof. Except for the licensed AG Intellectual
Property, XX.XXX agrees not to use at any time any other
trademarks, names, designs, trade dress or other intellectual
property confusingly similar to the licensed AG Trademarks.
These obligations shall survive the expiration or earlier
termination of this Agreement for any reason. AG agrees that
XX.XXX may, with prior written approval of AG, (such approval
not to unreasonably withheld or delayed) file applications to
register a trademark that is confusingly similar to one or more
of the licensed AG Trademarks. If any application for
registration is filed in any country by XX.XXX in contravention
of this paragraph, AG shall have the right to take appropriate
action against XX.XXX, including seeking injunctive relief.
4.2. GENERAL RESERVATION OF RIGHTS. No other rights or licenses,
express or implied other than those granted by AG in Article 2
and by XX.XXX in Article 3, respectively, are granted to the
other in and to any Intellectual Property of the granting
Party. Each Party reserves to itself the right to use and to
license to others the right to use any of its Intellectual
Property not licensed hereunder, or to exercise any rights in
its licensed Intellectual Property not granted exclusively to
the other Party.
4.3. ADDITIONAL ITEMS AND CATEGORIES OF ITEMS OF INTELLECTUAL
PROPERTY. As to any item of Intellectual Property in a category
treated under the assignment or licensing provisions of the
Formation Agreement or this Agreement and not included on a
Schedule or Exhibit to one of those Agreements, and any
category of Intellectual Property not so treated, the Parties
agree that such item or category of Intellectual Property will
be treated in a manner that is consistent with the treatment of
like items under the Formation Agreement and this Agreement, as
the case may be.
4.4. IMPROVEMENTS: Ownership of Improvements and Grant Backs.
4.4.1. OWNERSHIP OF IMPROVEMENTS. Each Party will own (and to
the extent of any interest therein, the other party
hereby assigns to such party) Improvements to
Intellectual Property that are created, invented or
developed by it, whether the original Intellectual
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Property is owned by it or licensed to it by the other
Party hereunder. If an Improvement is created,
invented or developed jointly, or from contributions
by both Parties, then the Parties shall seek to agree
as to the ownership. If the Parties cannot agree, the
Intellectual Property in the Improvement shall be
owned jointly by the Parties (and to the extent of any
interest therein, each party hereby assigns a joint
ownership interest to the other party) in accordance
with the laws of inventorship (or authorship, as the
case may be) or other applicable law in proportion to
the Parties' relative contributions.
4.4.2. GRANT BACKS. Improvements owned by AG are included in
the Intellectual Property licensed to XX.XXX under
Section 2.2, and Improvements owned by XX.XXX (other
than Finished XX.XXX Properties, after a termination
under Section 3.1.3) are included in the Intellectual
Property licensed to AG under Section 3.1.
5. ROYALTIES
5.1. GENERAL ROYALTY PROVISIONS.
5.1.1. FIXED ROYALTY PROVISION. In consideration of all the
rights and licenses granted to XX.XXX hereunder,
XX.XXX will pay AG fixed royalty charges of Six
Hundred Sixty Six Thousand Six Hundred Sixty Seven
Dollars ($666,667) per month for thirty six months
commencing as of July 1, 1999. Effective July 1, 2002,
all licenses, other than the AG Trademark licenses,
shall be deemed fully paid.
5.1.2. ANNUAL ROYALTY PROVISION. In consideration of the
continuing trademark licenses granted in Article 2
above, XX.XXX will pay AG a fixed royalty of 3% of
XX.XXX's total consolidated net revenue for all
periods after the XX.XXX fiscal half year ending June
30, 2002, with minimum royalty payments at an annual
rate of $5 million, so long as XX.XXX uses any of the
licensed AG Trademarks (other than "xx.xxx").
5.2. ROYALTY PROVISIONS RELATED TO LICENSES.
5.2.1. FULLY-PAID LICENSES. Except as provided in Section
5.1, all licenses granted in this Agreement that are
not expressly made royalty-bearing will be fully-paid.
5.2.2. THIRD-PARTY LICENSES. In each case in which a Party is
required to license, sublicense or transfer rights
acquired by it from third parties, or provide access
to Intellectual Property acquired from third parties,
and the Party is obligated to pay a royalty, fee or
other charge to the third party in respect of such
right or Intellectual Property, then the licensee or
recipient Party will pay an equitable portion of such
charges as determined by mutual agreement between the
Parties. These payments will be structured
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in an appropriate manner as determined by mutual
agreement between the Parties, such as a direct
payment to the third party or a pass-through charge.
5.3. ROYALTY REPORTS AND PAYMENTS.
5.3.1. TIME OF REPORTING AND PAYMENT. Royalties will be
reported and paid quarterly, each report and payment
to be made 75 days after the end of each fiscal
quarter.
5.3.2. ROYALTY REPORTS. Each royalty payment is to be
accompanied by a written financial report stating
XX.XXX's net revenue during the relevant period and
all other relevant information, each in sufficient
detail to permit the calculation of the royalty
payments due. Each royalty report is to be certified
by the Chief Financial Officer of XX.XXX.
5.3.3. MAINTENANCE OF RECORDS. During the term of the
Agreement, and for a period of two (2) years
thereafter, XX.XXX will keep complete, clear and
accurate records with respect to all matters
pertaining to royalties.
5.4. AUDIT RIGHTS. AG, on reasonable notice, may request that it or
its authorized representative review XX.XXX's corporate books
and records relevant to this Agreement in order to verify the
royalty reports. If inconsistencies or mistakes are discovered,
they must be rectified and (i) in the case of underpayment, the
appropriate payments made by XX.XXX on demand by AG or (ii) in
the case of overpayment, AG will deduct such amount from the
next royalty payment. AG will bear all expenses of any audits
unless XX.XXX has understated the royalties for any quarter by
ten percent (10%) or more, in which case XX.XXX will reimburse
AG for its out-of-pocket expenses incurred in connection with
the audit as well as pay AG the unpaid royalties plus the
accrued interest.
5.5. LATE ROYALTY PAYMENTS. Any royalty payments, including accrued
royalties and interest, not paid when due must be paid
immediately upon demand. Simple interest, at a rate of one and
one-half percent (1-1/2%) per month will accrue on any late
payment during the period from the date it was due until paid.
AG's right to interest payments under this provision is in
addition to any other remedy, including, without limitation,
termination of this Agreement, that AG may have for failure of
XX.XXX to make timely royalty payments.
6. REPRESENTATIONS AND WARRANTIES
6.1. REPRESENTATIONS AND WARRANTIES. AG and XX.XXX each represents
and warrants to the other as follows:
6.1.1. CORPORATE POWER AND AUTHORITY. It has the power and
authority to enter into and perform this Agreement;
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6.1.2. OWNERSHIP OR VALID LICENSES. It either owns or has a
valid license to use and, except as disclosed from
time to time as to subsequently acquired Intellectual
Property, will own or will have a valid license to
use, the Intellectual Property it licensed hereunder
and has or will have sufficient right and authority to
grant to the other all licenses and rights it granted
hereunder;
6.1.3. NO CONFLICTS. To the best of its knowledge, except as
disclosed herein, the execution, delivery and
performance by it of this Agreement will not conflict
with, result in a breach or termination of, constitute
a default under, or require a consent that has not
been obtained under any lease, agreement, commitment
or other instrument to which it is a party; and
6.1.4. VALID AND BINDING. This Agreement constitutes its
valid and binding obligations of enforceable against
it in accordance with its terms, except to the extent
enforcement is limited by bankruptcy or other
insolvency laws.
6.1.5. NON-INFRINGEMENT. To its actual knowledge: (i) it has
not misappropriated or improperly copied from a third
party any now- existing Intellectual Property licensed
hereunder; (ii) it has not infringed or otherwise
violated any statutory or other rights of any third
party in or to any intellectual property therein
including, without limitation, copyrights, patents,
trade secrets or trademarks; and (iii) no third party
has asserted, or is asserting a claim of any of the
foregoing.
6.2. DISCLAIMERS OF WARRANTIES.
6.2.1. CLAIMS OF INFRINGEMENT. Except as disclosed herein or
otherwise in connection with the Closing under the
Formation Agreement, neither AG nor XX.XXX has
received notice of any claim that any item of
Intellectual Property licensed by it infringes or
violates the patent, copyright, trade secret or other
intellectual property rights of any third party.
6.2.2. VALIDITY OF THE PATENTS. Neither AG nor XX.XXX makes
any representation or warranty, and each Party hereby
disclaims all representations and warranties, to the
effect that the Patents licensed or in any way
transferred by it, is valid or enforceable.
6.2.3. WARRANTY DISCLAIMERS. EXCEPT AS OTHERWISE EXPRESSLY
PROVIDED IN SECTION 6.1, EACH OF AG AND XX.XXX
EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND
WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE
LICENSED INTELLECTUAL PROPERTY, INCLUDING WITHOUT
LIMITATION, ALL IMPLIED WARRANTIES OF
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MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7. FUTURE CONDUCT COVENANTS
7.1. AG NOT TO ENGAGE IN XX.XXX BUSINESS. Subject to the exceptions
below and to Article 9, AG will not, without the prior written
consent of XX.XXX, directly or indirectly (i) engage in the
XX.XXX Business or (ii) enter into agreements with, license or
sublicense Intellectual Property to, or own a material interest
in, an entity that engages in the XX.XXX Business.
Notwithstanding the foregoing,
7.1.1. The foregoing will not prevent AG from selling
Physical Greeting Products or Electronic Greeting
Products (including therein Content licensed from
third parties) to Physical Retailers under terms that
permit the Physical Retailers to sell or distribute
such products or services directly to consumers via
physical means or the Physical Retailers' online
retail locations.
7.1.2. After a termination notice with respect to Finished
XX.XXX Properties under Section 3.1.3, the foregoing
and Section 7.1.4 will not prevent AG from entering
into agreements with, licensing or sublicensing
Intellectual Property from, or owning a material
interest in, an entity that engages in the XX.XXX
Business to the extent AG reasonably determines it is
necessary or useful to enable AG to acquire the
capability to create and furnish to Physical Retailers
products and services comparable to Finished XX.XXX
Properties or otherwise required by the Physical
Retailer.
7.1.3. The foregoing will not require AG to terminate an
agreement with or dispose of an interest in an entity
that, without AG's participation or prior knowledge,
enters into the XX.XXX Business subsequent to the time
AG entered into such agreement or acquired such
interest.
7.1.4. AG may own a material interest in an entity that
engages in the XX.XXX Business if (i) to the extent
commercially feasible, prior to acquiring such
interest AG first notifies XX.XXX (which shall agree
to hold such notice confidential) of its intent to
acquire such interest and uses good faith efforts
under all the circumstances to negotiate a mutually
acceptable agreement with XX.XXX regarding the
ownership of such interest; and (ii) if no such
agreement is reached, or if AG decides it must acquire
such interest without notice or before negotiations
under clause (i) can be completed, AG obtains an
independent third party appraisal (by an appraiser
approved by XX.XXX, such approval not to be
unreasonably withheld) of the fair market value of
such interest and offers the same to XX.XXX for
purchase in cash; and (iii) if such offer is not
accepted, does not utilize or license to such entity
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any of the Intellectual Property already then existing
and licensed hereunder to XX.XXX.
7.2. XX.XXX NOT TO ENGAGE IN AG BUSINESS. Subject to the exceptions
below and to Article 9, XX.XXX will not, without the prior
written consent of AG, directly or indirectly (i) engage in the
AG Business or (ii) enter into agreements, license or
sublicenses Intellectual Property to, or own a material
interest in, an entity that engages in the AG Business.
Notwithstanding the foregoing,
7.2.1. The foregoing will not apply to agreements by which
such entity licenses Intellectual Property (other than
Competitive Brand Trademarks) to XX.XXX for
consideration other than sublicenses of Intellectual
Property of XX.XXX that XX.XXX has licensed from AG.
7.2.2. The foregoing will not require XX.XXX to terminate an
agreement or dispose of an interest in an entity that,
without XX.XXX's participation or prior knowledge,
enters into the AG Business subsequent to the time
XX.XXX entered into such agreement or acquired such
interest.
7.2.3. XX.XXX may own a material interest in an entity that
engages in the AG Business if (i) to the extent
commercially feasible, prior to acquiring such
interest XX.XXX first notifies AG (which shall agree
to hold such notice confidential) of its intent to
acquire such interest and uses good faith efforts
under all the circumstances to negotiate a mutually
acceptable agreement with AG regarding the ownership
of such interest; and (ii) if no such agreement is
reached, or if XX.XXX decides it must acquire such
interest without notice or before negotiations under
clause (i) can be completed, XX.XXX obtains an
independent third party appraisal (by an appraiser
approved by AG, such approval not to be unreasonably
withheld) of the fair market value of such interest
and offers the same to AG for purchase in cash; and
(iii) if such offer is not accepted, does not utilize
or license to such entity any of the Intellectual
Property already then existing and licensed hereunder
to AG.
7.3. COOPERATION BETWEEN AG AND XX.XXX. AG and XX.XXX agree to
establish working level committees (both in the United States
and internationally) to hold regular meetings and xxxxxx
cooperation in the development of Art and Verse and other
Content that will be subject to the licenses hereunder, to
communicate and coordinate opportunities for licensing such
Content from third parties, and to encourage other forms of
business cooperation. This cooperation will include disclosure
and transfer of knowledge and information as reasonably
requested by the recipient Party to enable that Party to
utilize and exploit the assets and Intellectual Property
transferred or licensed pursuant to the Formation
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Agreement or this Agreement and may include sharing of
documents, training, demonstrations and technical meetings,
with the objective of enabling the licensee to utilize and
benefit from the licensed Intellectual Property. Except for
extraordinary circumstances, including unreasonable requests
under this provision, neither Party will charge for the time of
its employees expended pursuant to this Section. Except as
specifically provided otherwise herein, expenses will be shared
in an equitable manner, with the licensee generally bearing the
expense of information and knowledge transfer that benefits it.
7.4. PERMITTED PREMIUMS. Notwithstanding anything to the contrary in
this Agreement, neither Party shall be restricted from
providing Permitted Premiums.
7.5. ACCESS AND KNOWLEDGE TRANSFER. AG and XX.XXX each agrees to
grant to the other liberal access to its own library of Art and
Verse and to deliver, subject to availability, physical and/or
electronic manifestations of particular items thereof (whether
licensed or transferred) promptly upon request, such delivery
to be in mutually agreed upon, then existing formats and at no
charge other than actual and reasonable out-of-pocket expenses,
if any, for reproduction. To the extent feasible, physical
and/or electronic manifestations of all other (i.e. other than
Art or Verse) licensed or transferred Intellectual Property in
existence at the Closing under the Formation Agreement will be
delivered as promptly as practicable. The Parties agree to
adopt reasonable practices and procedures for the physical
delivery of the manifestations of the Intellectual Property
licensed hereunder and coming into existence after the Closing.
7.6. CUSTOMER NAMES AND CONSUMER INFORMATION.
7.6.1. CURRENT DATA BASE. With respect to all consumers whose
data is in the current data base of the predecessor of
XX.XXX (i.e. the division of AG previously operating
the XX.XXX business), AG will transfer to XX.XXX all
of AG's rights in all consumer information AG
possesses or controls, including, but not limited to
the following: name; address; e-mail address; order,
payment and fulfillment information; customer profile
information; and customer account information.
7.6.2. SHARING INFORMATION. XX.XXX and AG agree to share
information from their respective current and future
consumer information databases (including, in the case
of XX.XXX, the information transferred as described
above and in the case of AG, the Carlton Cards
"Celebrations" database) subject to each accepting and
adhering to the other's privacy policies and subject
to any present or future governmental or industry
standard regulations or restrictions. The privacy
policies will be established at the time of the
Closing and AG and XX.XXX will, subject to
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applicable law, maintain those policies with
reasonable modifications.
7.6.3. RESTRICTIONS ON SHARING INFORMATION. The information
to be shared will be the maximum amount permitted by
the privacy policies and other restrictions referred
to above. Such restrictions may, in some cases, limit
further disclosure to aggregated, non-identifiable
form. If required to satisfy the requirements of such
privacy or other legal restrictions, and if requested
by one party, the other party will include in its
privacy policy disclosure to consumers a description
of the information sharing arrangement between AG and
XX.XXX and, if required, a "checkoff" or similar
facility for the consumer to permit such sharing. The
parties will take reasonable steps under the pertinent
circumstances to encourage consumers to permit the
above sharing. The privacy policies may require that a
party will use the customer information of the other
only for use in its own business, and that it will not
sell such information for use by third parties.
Similarly, the privacy policies may only permit a
party to disclose such information in aggregated,
non-identifiable form for its business purposes
without the consent of the other party. The privacy
policies are not expected to permit sharing of credit
card numbers.
7.6.4. PROMOTIONS. Either AG or XX.XXX may conduct promotions
sponsored by one or both parties, which may have the
feature of seeking consumer consent to information
sharing between AG and XX.XXX. Where a party sponsors
such a promotion, the sponsor would bear the costs of
the promotion and the other party's costs in carrying
out the promotion.
8. PROTECTION OF INTELLECTUAL PROPERTY
8.1. CONFIDENTIALITY.
8.1.1. OBLIGATION. Each of AG and XX.XXX will keep
confidential and will not cause or permit the
disclosure to any third party (other than those whose
duties require possession of such information, or who
are otherwise entitled hereunder to receive such
information, and who agree to be bound by the
confidentiality obligations set forth in this Section
8.1 or are otherwise subject to substantially similar
duties of nondisclosure), or the unauthorized use, of
any Confidential Information disclosed to it by the
other Party, it being understood, however that
Confidential Information assigned to XX.XXX pursuant
to the Formation Agreement shall be deemed
Confidential Information of XX.XXX and not of AG.
8.1.2. COMPELLED DISCLOSURE. If either Party is required by
law, legal process or court order to disclose any
Confidential Information of the other, the Party
shall: (i) notify the other Party in writing as soon
as possible, but in no event less than ten (10)
calendar days
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prior to any such disclosure; (ii) cooperate with the
other Party to preserve the confidentiality of such
confidential information consistent with applicable
law; and (iii) use its best efforts to limit any such
disclosure to the minimum disclosure necessary to
comply with such law or court order.
8.2. PROTECTION AND REGISTRATION OF TRADEMARKS, COPYRIGHTS.
8.2.1. FORM AND MANNER OF USAGE OF TRADEMARKS. XX.XXX will
use the AG Trademarks in such form and manner as
specified by AG in Section 2.5 (including Schedule 2.5
as incorporated or therein or modified in accordance
with the terms thereof). AG will own any approved
composite xxxx used by XX.XXX which includes the AG
Trademarks (excluding any element thereof owned by a
third party).
8.2.2. NOTICES. XX.XXX shall apply trademark notices in
connection with the AG Trademarks as reasonably
specified by AG, and as may be reasonably necessary to
ensure a uniform presentation throughout the AG
Business and the XX.XXX Business where appropriate and
consistent with the establishment of an XX.XXX brand
identity where appropriate. XX.XXX will comply with
reasonable requests by AG to modify its display of an
AG Trademark, consistent with the requirements hereof.
Each licensee Party shall apply Copyright notices as
the licensor Party may subsequently reasonably specify
as required by law to protect, preserve or enhance the
rights of the Copyright Owner.
8.2.3. PROMINENCE. AG and, subject to Section 5.06(a)(i) of
the Formation Agreement and Section 2.1.2 hereof,
XX.XXX, each has the right, but not the obligation, in
its respective sole discretion but subject to all the
terms and conditions hereof, to use the AG Trademarks
so as to give the AG Trademarks full and favorable
prominence and publicity. AG has no obligation
whatsoever to continue using any trademark in
connection with its business.
8.2.4. APPROVAL PRIOR TO FIRST USAGE. XX.XXX is not required
to obtain prior approval of any usage of Trademarks or
Copyrights. If XX.XXX requests approval, AG will
respond promptly with its approval or its objections.
AG may request, however, written notice of the first
date for the appearance of an AG trademark on a Web
site, product or service.
8.2.5. RIGHT TO INSPECT. In order to determine whether XX.XXX
is in compliance with this Article 8, at AG's request,
XX.XXX, at its own expense, will provide to AG copies,
photographs, electronic files, Web pages, or
representative samples of its Web site as well as
packaging, advertising copy, promotional materials or
other materials bearing any of the AG Intellectual
Property. Also at its
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own expense, XX.XXX will prepare a report of its use
of the AG Trademarks.
8.2.6. NO TRADEMARK DISPARAGEMENT. XX.XXX agrees not to use
the AG Trademarks in any manner which, directly or
indirectly, would dilute, demean, ridicule or
otherwise tarnish the image of, the AG Trademarks or
AG. In addition, XX.XXX agrees not to use the AG
Trademarks in any manner in connection with the
design, planning, implementation, promotion,
marketing, or advertising of any business, service or
product inconsistent with the image of AG and its
products and services.
8.3. PROSECUTION AND MAINTENANCE.
8.3.1. PROSECUTION. AG and XX.XXX each agrees, at its own
expense to prosecute and maintain the intellectual
property rights licensed to the other and, in any
event will not abandon rights therein, except with
prior notice to the licensee and an opportunity for
the licensee to take over prosecution and maintenance.
Neither party shall transfer to a non-affiliate
ownership of the intellectual property rights licensed
to the other without notice to the licensee and only
pursuant to an agreement expressly made subject to the
rights of the licensee.
8.3.2. REGISTRATION. AG has the exclusive right (but not the
obligation) to obtain registrations and any other form
of protection for the AG Trademarks and Copyrights.
Each party shall furnish the other with all reasonably
requested information (including specimens and samples
illustrative of the manner of use of the Trademarks)
and documentation (including the execution and
delivery of any and all true and correct affidavits,
declarations, oaths and other documentation) to assist
such party in obtaining and maintaining such trademark
protection and registrations.
8.3.3. ENFORCEMENT AG and XX.XXX will each cooperate in
pursuing infringers of intellectual property licensed
from the other. In the case of an infringement
recovery, an allocation will be made between AG and
XX.XXX based on the field of use of the infringer (as
between the AG Business, the XX.XXX Business and
otherwise), the contribution of each party to the
enforcement action, and other relevant considerations
including royalties paid by XX.XXX hereunder, and the
damage each party suffered as a result of the
infringement and the expense of the enforcement;
provided, however, that any such recoveries shall be
applied first to fully reimburse all expenses of the
enforcement. Each licensee Party will notify the other
of any actual or threatened infringement of any of the
Intellectual Property by third parties of which either
becomes aware. XX.XXX has no right to take any action
with respect to any third party in an attempt to
enforce any rights
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regarding the AG Trademarks without the prior written
approval of AG, which approval shall not be
unreasonably withheld in the case of infringement
involving the XX.XXX business.
8.4. DEFENSE OF INFRINGEMENT CLAIMS. Except for indemnified losses
under Article 10, each Party is responsible for the defense and
settlement of, and shall pay all expenses (including attorneys'
fees) related to, any and all claims by third parties that the
Intellectual Property licensed hereunder infringes or
misappropriates any intellectual property rights of such third
parties. Each Party agrees to cooperate fully with the other,
at the defending Party's reasonable request and expense, in
connection with the defense of any such claim.
9. TERM AND TERMINATION
9.1. TERM; END DATE AND REVERSION EVENTS; TERMINATION.
9.1.1. TERM. The term of this Agreement shall be from its
Effective Time until the End Date, unless earlier
terminated at AG's election upon the occurrence of a
Reversion Event or by mutual agreement of the Parties.
9.1.2. REVERSION EVENT. If there is a Reversion Event, then,
in addition to the termination effects set forth
below, if (i) the circumstances that caused the
Reversion Event are not cured by XX.XXX within 90 days
of notice from AG and (ii) AG so elects by written
notice to XX.XXX, then all licenses granted to XX.XXX
hereunder (other than the license to the Group 2B
Trademarks) will terminate at the end of twelve (12)
months after the notice of election from AG.
9.2. TERM OF LICENSES. Unless earlier terminated in accordance with
this Article 9, the term of each license of Intellectual
Property hereunder shall be as long as may be permitted by
applicable law. Unless earlier terminated in accordance
herewith, each trademark license shall be for a term of 999
years, except that in the event of a distribution by AG of
substantially all its shares of XX.XXX to its shareholders the
license to the Group 1 Trademarks may thereafter be terminated
by AG on two year's written notice to XX.XXX. In no case shall
the duration of any license exceed the longest period for which
rights in an item of Intellectual Property are granted and may
be renewed or extended pursuant to applicable law.
9.3. CONSEQUENCES OF TERMINATION; SURVIVAL.
9.3.1. SURVIVAL. Upon the end of the Term, the rights and
obligations of the Parties under Sections 5.01, 10.1,
10,2, and 10.3 will survive termination.
9.3.2. TERMINATION OF EXCLUSIVITY. Without limitation, upon
the end of the Term, unless survival is expressly
provided, all covenants will terminate and agreements
respecting the exclusivity of the XX.XXX and the AG
Business will terminate.
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9.3.3. SURVIVAL OF LICENSES. Except as otherwise expressly
provided, all Intellectual Property licenses granted
hereunder will survive the end of the Term and will
continue for their respective terms except that (i) if
AG elects, then with 12 months prior written notice to
XX.XXX, the licenses from AG to XX.XXX of the Group 1
and Group 2A trademarks may be terminated by AG, and
(ii) from and after the end of the Term all licenses
will be entirely non-exclusive for all fields.
9.3.4. TERMINATION OF LICENSE GRANTS. Upon the end of the
Term, all license grants of Intellectual Property
acquired or developed after the date of termination
will terminate, and any surviving license grants
herein will only apply to items coming into existence
and acquired prior to the end of the Term.
10. INDEMNIFICATION AND REMEDIES
10.1. INDEMNIFICATION. Each of the Parties agrees to indemnify the
other in accordance with the cross-indemnification provisions
of Sections 6.02 and 6.03 of the Formation Agreement.
10.2. REMEDIES AND LIMITATIONS. The remedies of the Parties and
limitations of liabilities will be governed by Section 6.01 of
the Formation Agreement.
10.3. DISPUTE RESOLUTION. Disputes arising hereunder between the
Parties shall be resolved pursuant to the provisions of Section
8.09 of the Formation Agreement.
11. MISCELLANEOUS PROVISIONS
11.1. ENTIRE AGREEMENT AND AMENDMENT. This Agreement, together with
the Schedules hereto and the portions of the Formation
Agreement referred to herein, embodies the entire understanding
of the Parties with respect to the subject matter hereof, and
there are no other agreements or understandings, written or
oral, in effect between the Parties, relating to the subject
matter hereof. This Agreement may be amended or modified only
in writing by an instrument signed by the Parties.
11.2. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the substantive laws of the State
of Ohio without regard to the conflicts of law principles
thereof; provided, however, that any question respecting the
validity, existence and effect of any Intellectual Property
will be determined under the laws of the jurisdiction under
which rights in such Intellectual Property arose.
11.3. WAIVERS. Any waiver by any Party of any violation of, breach
of, or default under any provision of this Agreement by any
other Party hereto shall not be construed as, or constitute, a
continuing waiver of such provision, waiver of any other
violation of, breach of, or default under any other provision
of this Agreement. No single or partial exercise of a right
shall preclude any other or further exercise of that or any
other right.
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11.4. COUNTERPARTS. This Agreement may be executed simultaneously in
two or more counterparts, each of which shall be deemed an
original but all of which together shall constitute one and the
same instrument.
11.5. ASSIGNMENT. Except for assignments to Affiliates, no Party may
assign this Agreement, or its rights and obligations hereunder,
in whole or in part, without the other Parties' prior written
consent.
11.6. SEVERABILITY. If any provision of this Agreement shall be
invalid or unenforceable, such invalidity or unenforceability
shall not render the entire Agreement invalid. Rather, the
Agreement shall be construed as if not containing the
particular invalid or unenforceable provision, and the rights
and obligations of each party shall be construed and enforced
accordingly.
11.7. CAPTIONS. The captions of the Articles and Sections of this
Agreement are inserted for convenience of reference only and
shall not be used in any way in interpreting this Agreement.
11.8. FORCE MAJEURE. No Party will be liable for any failure of, or
delay in the performance of, its obligations under this
Agreement for the period that such failure or delay is due to
acts of God, public enemy, act of any military, civil or
regulatory authority, civil war, strikes, labor disputes, or
any other cause, whether similar or dissimilar to any of the
foregoing, beyond such Party's reasonable control. Each Party
agrees to notify the other Parties promptly of the occurrence
of any such cause and to carry out this Agreement as promptly
as practicable after such cause is terminated.
11.9. NOTICES. All notices, requests, consents, demands and other
communications to be given or delivered shall be in writing and
(a) personally delivered, (b) sent by an overnight courier
service, or (c) transmitted by facsimile with a confirmation of
delivery, and shall be deemed to have been duly given when
received. Any Party may change this information by written
notice. Further, notice may be given to such other person or at
such other place as either of the parties may from time to time
notify to the other party as provided herein.
If to AMERICAN GREETINGS CORPORATION or AGC, Inc.:
Xxx Xxxxxxxxxxx, Xx. V.P. -- General Counsel & Secretary
Xxx Xxxxxxxx Xxxx
Xxxxxxxxx XX 00000-0000
216.252.7300 x1667
fax: 252.6777
xxxxxxxxx@xxxxxxxxxxx.xxx
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If to XxxxxxxxXxxxxxxxx.xxx, Inc. or AGCI, Inc.:
Xxxx Xxxxxxxx, Chief Executive Officer
Xxx Xxxxxxxx Xxxx
Xxxxxxxxx XX 00000-0000
216.252.7300 x1332
xxxxxxxxx@xx.xxx
with a copy to:
Xxxxxxx Xxxx, Esq.
Xxxxxx & Xxxxxxxx LLC
000 Xxxxx Xxxxxxxx Xxx.
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
000-000-0000
xxxxx@xxxxxx.xxx
11.10. FURTHER ASSURANCES. Each Party agrees that it will take such
actions and will execute, deliver or file such documents as may
be reasonably requested by the other Party to carry out the
purposes hereof or to evidence or secure the transfers,
licenses and other provisions hereof, including without
limitation to carry out the intent of Section 4.3.
[Remainder of this page intentionally left blank]
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IN WITNESS WHEREOF, each of AG, AGC, Inc., XX.XXX and AGCI has duly
executed and delivered this Agreement as of the date first written above.
AMERICAN GREETINGS CORPORATION
By:_______________________________
Name:
Title:
AGC, Inc.
By:_______________________________
Name:
Title:
XxxxxxxxXxxxxxxxx.xxx, Inc.
By:_______________________________
Name:
Title:
xx.xxx, inc.
By:_______________________________
Name:
Title:
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SCHEDULES
1.3 AG Content
1.6 AG Trademarks
2.5 Trademark Usage and Quality Guidelines and Standards
