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Exhibit 10.2
TRADEMARK LICENSE
This Trademark License ("License") is made and entered into this __, day of
August, 1997 by and between , LOLA, INC., a California corporation, hereinafter
referred to as "Licensor", and BISCAYNE APPAREL INTERNATIONAL, Inc., a Delaware
corporation, hereinafter referred to as "Licensee", with reference to the
following:
RECITALS
A. Licensee is in the business of manufacturing, selling and
distributing certain outerwear (the "Licensed Products"), as more particularly
set forth on Schedule "A";
B. Licensee desires to obtain from Licensor an exclusive license to
manufacture, market, sell, distribute and advertise the Licensed Products in the
territories set forth on Schedule "A", (the "Licensed Territory") and to use the
Trademarks, as hereinafter defined, on or in association with the Licensed
Products;
C. Licensor is the owner of the Trademarks and other related original
works of art as stylized, collectively referred to herein as the "Trademarks",
as more fully set forth on Schedule "A", attached hereto and incorporated by
this reference. Licensor has obtained a trademark registration for the xxxx
"XOXO", Registration Number 2,009,243 for goods in International Class 25 for
men's, women's and children's clothing and "XOXO IN AMERICA AND ABROAD",
Registration Number 2,043,508, for goods in International Class 25 for women's
and children's clothing.
D. Licensee represents that it has the ability to manufacture, market,
sell, distribute and advertise the Licensed Products in the territories set
forth on Schedule "A" hereto (the "Licensed Territory") and to use the
Trademarks on or in association with the Licensed Products;
Now, Therefore, in consideration of their respective promises and
agreements made herein, Licensor and Licensee agree as follows:
1. LICENSE
1.1 GRANT OF LICENSE.Subject to the terms and conditions of
this License, Licensor hereby grants to Licensee the exclusive right to use the
Trademarks in the Licensed Territory (as defined below), solely to manufacture,
market, sell, distribute and advertise the Licensed Products set forth on
Schedule "A", during the Term of this Agreement. The License created hereby only
allows the Licensee to
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market, sell, distribute and advertise the Licensed Products for sale at
wholesale and does not permit Licensee to engage in the retail sale and/or
retail marketing of the Licensed Products. The License granted herein does not
extend to any other product or service. Licensor shall not grant to anyone the
license to manufacture Licensed Products for sale at retail.
1.1.1 Licensor additionally grants the Licensee the
exclusive license, subject to the terms and conditions of this Agreement, to use
the Trademarks on or in association with the Licensed Products in the Licensed
Territory on packaging, promotional and advertising material associated
therewith.
1.2 DETERMINATION OF LICENSED PRODUCTS. Licensee agrees that
Licensor shall be entitled to reasonably determine whether a particular style or
design of a Licensed Product may be offered for sale by Licensee in accordance
with Paragraph 8 herein. Licensee agrees that it will not manufacture, market,
sell, distribute and advertise, either directly or indirectly, any style, design
or product which Licensor in its reasonable discretion disapproves.
1.3 APPROVAL REGARDING OTHER PRODUCTS ETC. Licensee
acknowledges that Licensor may grant additional licenses in the future for
territories, products and categories not presently licensed and not within the
scope of this License. Permission of Licensor for Licensee to manufacture a
particular style, design or product, or to distribute the Licensed Products
within an area, which is not, in the opinion of the Licensor, within the scope
of the License, shall not constitute a continuing approval or a waiver of the
right of Licensor to later disapprove any style, design, product, or
distribution area.
1.4 USE/OWNERSHIP OF TRADEMARKS. Other than as expressly set
forth in this License, Licensee has absolutely no right, title or interest in or
to the Trademarks or the use thereof. Licensee acknowledges that it is only
acquiring the right to use the Trademarks in connection with (i) the manufacture
of the Licensed Products, and (ii) the marketing, advertising, distribution and
sale of the Licensed Products in the Licensed Territory, for the Term set forth
in this Agreement and subject to the terms hereof. Upon termination of the
License, Licensee shall cease all use of the Trademarks except as provided in
Paragraph 18. Licensee shall not apply anywhere in the world, to register any
copyright, trademark or trade name that in any way mentions or uses the
Trademarks or any trademark or trade name that is confusingly similar to the
Trademarks or trade names licensed hereunder, without the express prior written
consent of the Licensor.
1.5 OWNERSHIP OF TRADEMARKS. Licensor is the sole owner of the
Trademarks in the Licensed Territory and all applications and/or registrations
for the Trademarks in the Licensed Territory; and Licensor is and will be, to
the best of its knowledge, the exclusive owner of all designs, images, art work,
logos, drawings,
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illustrations, trade names, and the like, which it may provide to Licensee from
time to time pursuant to this Agreement. Licensee acknowledges that it is often
difficult, particularly in foreign countries, to obtain clear, registered title
to trademarks and other intellectual property rights. Accordingly, subject to
the provisions of Paragraph 13, Licensee agrees that the rights granted herein
exist only to the extent that Licensor has such rights, and no warranty, express
or implied, is made with respect thereto or with respect to the rights of any
third parties that may conflict with the rights granted herein. Licensee agrees
that the Trademarks and all rights, registrations and entitlement thereto,
together with all applications, registrations and filings are and shall remain
the sole and exclusive property of Licensor.
1.6 USE OF NAMES. Except as authorized pursuant to this
License, and only to that extent, Licensee shall not use the Trademarks and/or
name "XOXO", "XOXO In America and Abroad" or "LOLA" or any confusingly similar
or substantially similar word or names in its business name or otherwise in any
other manner, without the prior written consent of Licensor.
1.7 BEST EFFORTS. Licensee shall use its best efforts to
manufacture, market, sell, distribute and advertise the Licensed Products in
order to meet the demand for the Licensed Products in the Licensed Territory and
to uphold, protect and defend the image and reputation of the Licensed Products
and the integrity of the Trademarks. Licensee further agrees to use its best
efforts to manufacture and ship not less than eighty-five percent (85%) of all
approved, confirmed orders for Licensed Products within a reasonable time of the
delivery date specified in such orders.
2. LICENSED TERRITORY.
2.1 The Licensed products shall only be sold, marketed,
distributed or delivered exclusively by Licensee, either directly or indirectly,
in the Licensed Territory.
2.2 Licensee shall not, directly or indirectly, sell, market,
distribute or deliver, the Licensed Products outside of the Licensed Territory
without prior written consent of Licensor, which consent may be withheld in the
sole and absolute discretion of the Licensor. Licensee shall not knowingly,
directly or indirectly, sell, distribute or otherwise deliver or cause to be
sold, distributed or delivered, the Licensed Products to any individual or
entity who intends to, or is likely to, or to whom Licensee reasonably believes
might, sell the Licensed Products outside the Licensed Territory.
2.3 Nothing contained herein shall in any way restrict or
prohibit Licensor from licensing, marketing, manufacturing, selling or
distributing the Licensed Products outside the Licensed Territory and Licensee
shall have no rights therein.
3. TERM.
3.1 INITIAL TERM. The initial term of this License is three
(3) Years
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commencing August 1, 1997 and terminating on June 30, 2001 ("Initial Term"),
unless sooner terminated as provided herein. Each period during the Initial Term
shall be as follows:
First Year August 1, 1997 through June 30, 1999
Second Year July 1, 1999 through June 30, 2000
Third Year July 1, 2000 through June 30, 2001
3.2 RENEWAL. Licensee has the option to extend the term of
this License for an additional period of five (5) Years ("Option Period"). Each
Year of the Option Period shall be for a period of twelve months commencing upon
the expiration of the immediately preceding Year. Said option must be exercised
by providing written notice to Licensor at least six (6) months and no more than
nine (9) months, prior to the end of the Initial Term. Said option may only be
exercised if Licensee is in full compliance with its obligations under this
Agreement as of the time of exercise of the option and as of the date of
commencement of the Option Period. In the event of any extension or renewal of
this Agreement as provided herein, all terms and conditions of this Agreement
shall remain in full force and effect, except as otherwise set forth in this
Agreement. Should Licensor, at any time, exercise its right under this Agreement
to terminate the rights of Licensee hereunder, thereafter Licensee shall not
have any option to extend the term of this Agreement.
4. ROYALTY PAYMENTS. In consideration for the license granted pursuant
to this Agreement, the Licensee shall pay to Licensor, each month, an amount
equal to seven (7%) percent of the Net Sales of the Licensed Products,
("Royalty").
4.1 ADVANCE PAYMENT OF ROYALTY. Concurrently with the
execution of this Agreement, the Licensee shall pay to Licensor a NON-REFUNDABLE
advance in the amount of seventy-five thousand U.S. Dollars (US $75,000.00),
which payment shall be credited against the Guaranteed Minimum Royalty Payment
due for the first Year ONLY of the Initial Term, pursuant to Paragraph 4.4
below.
4.2 NET SALES. As used herein, "Net Sales" shall mean
Licensee's gross sales (as determined by the gross invoice amount billed to
customers) of the Licensed Products, whether or not actually paid for, less
actual returns, freight, bona fide trade discounts and bona fide charge backs.
No deduction shall be made for cash or other discounts, or reserves for charge
backs or sales discounts. No costs incurred in the manufacturing, selling,
advertising and/or distribution of the Licensed Products or in the payment by
Licensee of any taxes of any nature whatsoever shall be deducted from the gross
sales amounts or from any royalty payable to Licensor, except in the event of a
withholding tax on royalties due to Licensor, nor shall any deduction be allowed
for any
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uncollectible accounts or allowances.
4.3 GUARANTEED MINIMUM NET SALES. During the Initial Term of
this Agreement Licensee guarantees that its Net Sales shall be in the amount set
forth on Schedule "A" during each Year.
4.4 GUARANTEED MINIMUM ROYALTY PAYMENT. Regardless of whether
or not Licensee achieves the required Guaranteed Minimum Net Sales determined
pursuant to Paragraph 4.3 hereof, Licensee shall pay to Licensor a Guaranteed
Minimum Royalty Payment for each Year during the term hereof, in accordance with
the terms of Schedule "A" attached hereto (the "Guaranteed Minimum Royalty").
[For purposes of this Agreement, the "Royalty Payment", whether Guaranteed or
Minimum, shall include the "Royalty" (7%) as defined above, and the amount due
Licensor for "Advertising" (2%) as set forth in paragraph 5 below, for a total
Royalty Payment of 9%.] If at the end of any Year during the term hereof,
Licensee has not paid to Licensor Royalty Payments equaling or exceeding the
Guaranteed Minimum Royalty Payment for that Year, Licensee shall pay to Licensor
the balance due within thirty (30) days of the end of the applicable period.
4.5 MANNER OF PAYMENT; MONTHLY STATEMENTS. The Royalties due
Licensor shall be calculated and paid within 20 calendar days of the end of each
calendar month during the term hereof, for Net Sales invoiced and delivered
during the immediately preceding calendar month, (the "Royalty Period) .
Concurrently with the payment of each Royalty Payment, Licensee shall deliver to
Licensor a written monthly statement of accounting showing any pre-payment of
royalties made by Licensee to Licensor and all of the Licensed Products sold and
delivered during the applicable period covered by the Royalty Payment. Said
statement shall be in the form and shall contain the information as Licensor may
from time to time direct. Such royalty statement shall be certified as accurate
by a duly authorized officer of Licensee, reciting on a territory by territory
basis, the stock number, item, units sold, description, quantity shipped, gross
invoice, amount billed customers less discounts, allowances, returns and
reportable sales for each Licensed Product. Such statements shall be furnished
to Licensor whether or not any Licensed Products were sold during the Royalty
Period. Time is of the essence with respect to all payments herein and if
payment is not timely made, an interest charge of prime (as determined by Bank
of America when said payment was due) plus one (1%) percent, per annum, or the
maximum legal rate, whichever is less, shall be added to the unpaid balance
until said balance, plus accrued interest is paid in full.
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4.5.1 Licensee's obligation to pay Licensor the Royalty
Payment shall accrue upon the sale of the Licensed Products regardless of the
time of collection by Licensee. For purposes of this Agreement, a Licensed
Product shall be considered "sold" upon the date when such Licensed Product is
billed, invoiced, shipped or paid for, whichever event occurs first.
4.5.2 If Licensee sells any Licensed Products to any
party affiliated with Licensee, or in any way directly or indirectly related to
or under the common control with Licensee, at a price less that the regular
price charged to other parties, the Royalty Payment payable to Licensor shall be
computed on the basis of the regular price charged to the other parties.
4.6 Upon termination of this Agreement by Licensor, other than
pursuant to Section 17.1.1 hereof, all Royalty Payments, due Licensor, including
any unpaid portions of the Guaranteed Minimum Royalty Payment, shall be
accelerated and shall immediately become due and payable discounted to present
value at the rate of ten percent per annum. Upon termination of this Agreement
by Licensor pursuant to Section 17.1.1 hereof, no Guaranteed Minimum Royalty
Payment shall become due for any period subsequent to the end of the Year in
which the Licensee failed to achieve the Minimum Net Sales. Licensee's
obligations to pay any Royalty Payment or Guaranteed Minimum Royalty Payment
which accrued prior to expiration or termination of this Agreement shall survive
such expiration or termination.
4.7 CURRENCY. All payments made pursuant to this License and
all calculations of amounts under this License shall be in U.S. dollars, with
all checks drawn on a U.S. bank, except as otherwise specifically provided in
writing between the parties.
4.8 BOOKS, RECORDS AND REPORTS. Licensee shall keep true and
accurate books of accounts and records in accordance with generally accepted
accounting principles of all transactions with respect to the Licensed Products.
4.9 ANNUAL REPORTS OF SALES. For each Year during the term
hereof, Licensee shall submit to Licensor a statement as well a year end
statement for the period ending December 31. The year end statement shall be
submitted by March 20th of each year for the previous calendar year and the
statement for the full Year period shall be due 90 days after the end of such
period. Each statement shall include a detailed and cumulative account of all
transactions of the Licensed Products, including, without limitation, all sales,
all returns, all bona fide trade discounts, all royalties paid and payable, all
Licensed Products returned as substandard, and all orders canceled for
non-delivery and such other information as Licensor may from time to time
reasonably request. This report shall be certified to be correct by the Chief
Executive Officer or the Chief Financial Officer of Licensee.
4.10 MULTIPLE LICENSE. In the event Licensee is or becomes a
party to
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more than one (1) license with Licensor, separate reports and records
shall be maintained and generated as required by Paragraphs 4.5, 4.8 and 4.9 for
each License. Failure to comply with the provisions hereof may constitute an
event of default under the terms of this License, which could cause Licensor to
terminate same or take such other actions as Licensor deems appropriate in its
sole and absolute discretion subject to Paragraph 17 of this Agreement.
5. ADVERTISING. As payment for advertising, Licensee shall pay to
Licensor an amount equal to two (2%) percent of Licensee's Net Sales or
Guaranteed Minimum Net Sales, whichever is greater. The payment for advertising
is in addition to any retail co-op advertising that Licensee may do on its own.
Licensee shall spend at least $35,000 for advertising and/or public relations to
"launch" the Licensed Products during 1998. All advertising used by Licensee
must be approved in writing by Licensor by either Licensor's Chief Executive
Officer or Director of Advertising or any other designee of Licensor, prior to
any use of same in any manner by Licensee. Such advertising shall at all times
be subject to the approval by Licensor, in its sole and absolute discretion,
prior to its publication, exhibition or other use. All advertising shall be
placed through the Advertising Department of Licensor, (if one exists), or as
otherwise designated by Licensor through an advertising agency of Licensor's
choice. Payment for advertising is in addition to all other payments required
hereunder and shall be paid monthly concurrently with the Royalty Payments set
forth above.
6. AUDIT. Licensee shall keep complete and accurate books and records
at its principal place of business covering all transactions relating to this
Agreement. Licensor and/or its duly authorized representatives shall have the
right, at reasonable business hours and upon reasonable notice, at the place
where such records are normally maintained, to inspect, audit, examine and make
copies of such books and records and all other documents and material in
Licensee's possession or control regarding any transactions relating to this
Agreement.
6.1 All books and records of Licensee relating to this
Agreement shall be retained for at least three (3) years following termination
of this Agreement.
6.2 The receipt or acceptance by Licensor of any of the
statements furnished or any payments made by Licensee pursuant to this
Agreement, shall not preclude Licensor from reviewing the books and records or
from questioning the accuracy thereof. Licensor shall have the right from time
to time, and at any reasonable time, to audit Licensee's books to determine the
correctness of payments/amounts due Licensor hereunder during a period of three
(3) years from the end of each Year of the Agreement. The cost of said audit
shall be borne by Licensor. However, if any audit reveals an underpayment by
Licensee of five percent (5%) or more, Licensee shall pay forthwith (and in no
event later than five (5) days after completion of said audit), the cost of the
audit, and all payments found to be due, with interest thereon, at the rate of
prime (as determined by Bank of America when said payment was due) plus one (1%)
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percent, per annum, or the maximum legal rate, whichever is less, computed from
the date said unpaid payments/amounts would have been due had they been properly
accounted for until the date they are actually paid.
6.3 In the event that an audit or investigation of Licensee's
books and records is made, certain confidential and proprietary information of
Licensee may necessarily be made available to the person(s) conducting such
audit or investigation. It is agreed that such confidential and proprietary
information shall be retained in confidence by Licensor, and shall not be used
by Licensor or disclosed to any third party without the prior written consent of
Licensee, unless otherwise required by law. Notwithstanding the foregoing, such
information may be used in any proceeding based on Licensee's failure to pay its
actual Royalty Payments or other obligations to Licensor.
7. ANNUAL AND QUARTERLY FINANCIAL STATEMENTS. Not later than one
hundred twenty (120) days after Licensee's fiscal year-end,(or calendar year-end
as the case may be), Licensee shall furnish Licensor with an audited annual
financial statement which shall include an income statement and a balance sheet
of the Licensee prepared in accordance with generally accepted accounting
principles consistently applied. In addition, within sixty (60) days of the end
of each calendar quarter during the term of this License, Licensee shall furnish
Licensor with quarterly financial statements prepared in accordance with
generally accepted accounting principles. In the event an audited statement is
not prepared by Licensee, Licensee shall nevertheless furnish Licensor with its
unaudited financial statements, certified to be correct by the Chief Executive
Officer or Chief Financial Officer of Licensee.
8. PRODUCT STANDARDS. Licensee shall not sell, distribute or otherwise
market the Licensed Products unless they are of the highest standards and
quality and unless each product has received the prior written approval of
Licensor prior to distribution thereof, subject to the terms and conditions of
this Paragraph 8.
8.1 APPROVAL OF DESIGN CONCEPT. As soon as Licensee has
developed a design for a Licensed Product that it desires to produce, sell and
market, Licensee shall submit three (3) design samples or drawings thereof if
samples are not available, at no cost to Licensor, of said product, along with
color and fabric samples, if applicable, to Licensor for approval, along with
one (1) complete set of all promotional and advertising material associated
therewith.
8.1.1 Within five (5) working days following the receipt
of any design sample, Licensor shall either approve or disapprove the product or
indicate changes to be made. Failure by Licensor to so note approval,
disapproval or changes within said five (5) working days shall be deemed
approval. In the event changes are required, Licensee shall be required to
resubmit the revised design sample or drawings thereof if samples were not
originally submitted, for approval with the recommended
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changes. Subsequent re-submissions shall occur until Licensor either approves or
rejects the design in question. All approvals shall be within Licensor's
reasonable discretion. However, in the event that a dispute arises as to the
determination of same, Licensor shall have the final decision with respect
thereto. Licensee shall not produce a Licensed Product for manufacturing,
marketing, sale, distribution, advertising or otherwise, which has not received
the approval of the Licensor as set forth herein. Once the design samples have
been approved by the Licensor, Licensee shall not materially depart therefrom
without Licensor's prior written consent.
8.2 APPROVAL OF PRODUCTION SAMPLES TO SALES FORCE. As soon as
Licensee has produced its samples for sale of any proposed Licensed Product
which has received design approval as set forth above, Licensee shall submit one
(1) production sample to Licensor for approval, ("Production Sample"). All
submissions of Production Samples for approval by Licensor shall be at the sole
expense of the Licensee. Licensee shall use such sample approval forms and
supply Licensor with such information in connection therewith as Licensor shall
from time to time reasonably direct. Within five (5) working days following
receipt, Licensor shall either approve, disapprove or indicate changes to be
made in the Production Sample. Failure by Licensor to so note approval,
disapproval or changes within said five (5) working days shall be deemed
approval. In the event changes are required, the approval form shall be
resubmitted for approval with the recommended changes. Subsequent re-submissions
shall occur until Licensor either approves or rejects the sample in question.
All approvals shall be at Licensor's reasonable discretion. An approved
Production Sample of each Licensed Product shall be provided to Licensor for its
historical sample line at Licensee's cost. The approved Production Samples shall
be the standard by which future production quality shall be judged. The Licensed
Products produced for sale and/or delivery to any customer of Licensee or anyone
else, shall be of at least the same or better quality than that which was
approved by Licensor as a Production Sample hereunder.
8.2.1 Licensee, at its expense, may also submit to
Licensor a pre-production sample ("Pre-Production Sample") of any proposed
Licensed Product which has received design approval. Within five (5) working
days following receipt, Licensor shall either approve, disapprove, or indicate
changes to be made in the Pre-Production Sample. Failure by Licensor to so note
approval, disapproval or changes within said five (5) working days shall be
deemed approval. All approvals shall be at Licensor's reasonable discretion. An
approved Pre-Production Sample shall be the standard by which future Production
Samples and production quality shall be judged.
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8.3 APPROVAL PRIOR TO DELIVERY. No Licensed Product shall be
delivered by Licensee to a customer unless it has received the design and sample
approvals required by paragraphs 8.1 and 8.2 above.
8.4 PRODUCT DISTRIBUTION.Licensee acknowledges the importance
of the marketing techniques and retailing standards of Licensor with respect to
all products marketed under the Trademarks and agrees to maintain these
standards to protect the value of the Trademarks and the image of the Licensed
Products. Licensee shall therefore maintain the same or higher standards for the
selection of retail, wholesale and other outlets as those maintained by Licensor
during the term of this License. Licensee shall submit to Licensor no later than
February 15th of each year during the term of this License, and concurrently
with the execution of this Agreement, a Distribution Plan ("Plan") for approval.
This Plan shall state the names of accounts proposed to be sold Licensed
Products by Licensee during the year. Licensor shall have ten (10) working days
from the date of receipt of the Plan to approve or disapprove any proposed
purchasers of Licensed Products identified by Licensee. Licensor shall be
reasonable in the event it disapproves any proposed purchaser and advise
Licensee of its reasons for such disapproval. Failure of Licensor to respond to
such Plan within ten (10) working days shall be deemed a waiver of any objection
thereto. In the event the parties fail to agree on a Plan for any year, then
Licensee shall have the option to terminate this License by providing Licensor
with written notice of termination and the effective date thereof, which shall
be at least ninety (90) days from the date Licensor receives the notice of
termination. In the event Licensee fails to so notify Licensor of its desire to
terminate this Agreement, then Licensee shall be required to conform to the Plan
as determined by Licensor. Unless prior written approval is obtained from
Licensor, Licensee is specifically prohibited from the sale and disposition of
the Licensed Products through parking lot sales, swap meets, flea markets and
similar sale or disposal techniques.
Licensor hereby approves the Plan submitted concurrently
herewith for the first Year.
8.5 APPROVALS. Any approvals required herein may only be
granted by Xxxxx Xxxxx, President or such other person or persons whom he
designates in writing.
9. QUALITY CONTROL. Licensor has the right to make on site inspections
at any reasonable time and on reasonable notice at manufacturing and
distribution facilities of Licensee to ensure the ongoing quality of the
Licensed Products. If, at any time, Licensor determines in its sole and absolute
discretion, that a Licensed Product is of lesser quality than the Production
Sample or the Pre-Production Sample approved pursuant to Paragraph 8.2 or 8.2.1
hereof, Licensor shall give Licensee written notice thereof. Licensee shall take
immediate steps to restore the quality of and cure the defects upon receipt of
said notice and cease production and distribution of that
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Licensed Product until its quality is improved to the satisfaction of Licensor.
10. LABELING. All Licensed Products and all promotional and advertising
material shall contain all appropriate notices, whether copyright, trademark or
otherwise as required by Licensor and as may be required by law. The labels and
hang tags may be acquired only from approved sources, designated in writing by
Licensor, provided that the prices and other terms and conditions of sale for
sameare competitive with the prices, terms and conditions which Licensee could
acquire elsewhere, and the quality is substantially similar. On all labels and
hang tags, and Licensed Products the circle (R) or (TM) as appropriate shall
appear denoting United States Trademark registration or pending registration,
and where applicable, and subject to the direction of Licensor, all items
subject to copyright protection shall bear a proper and complete circle (C)
copyright notice as specified by law. Licensor shall have the right from time to
time to designate the exact symbols or language to be used by Licensee to denote
ownership by Licensor of any intellectual property, be it Trademarks, copyrights
or other property. Licensee understands the importance of maintaining the
security and integrity of all trademarked labeling used on the Licensed Products
and agrees to obtain said labels only from the sources designated by Licensor..
Licensee further agrees to maintain a strict, accurate, and current inventory of
all labels throughout the manufacturing process of the Licensed products so as
to preclude any diversion of the labels to other than authorized licensees. No
additional labels, hang tags or identification shall appear on the Licensed
Products unless prior written approval of Licensor is obtained, however,
Licensee may include a separate label of its sole choice for care, content, size
and country of origin.
10.1 LABEL INVENTORY. In each annual or year-end statement,
Licensee shall furnish to Licensor a current inventory of all labels designated
in Paragraph 10.
11. TRADEMARKS & COPYRIGHTS. Licensor may seek, in its own name and at
its own expense, appropriate patent, trademark or copyright protection for the
Licensed Products.
11.1 In the event that Licensee requests that Licensor obtain
patent or trademark protection for a particular item or in a particular country
where Licensor had not, heretofore, obtained such protection, Licensor agrees to
take such reasonable steps to obtain such protection, provided, however, that
Licensee shall be obligated to reimburse Licensor for the cost of filing,
prosecuting, and maintaining same.
11.2 Subject to Paragraph 11.6 below, it is understood and
agreed that Licensor shall retain all right, title and interest in the
Trademarks and copyrights and designs of the Licensed Products, as well as any
modifications or improvements made thereto by Licensee, (excluding standard or
generic/basic designs). Upon termination or expiration of this Agreement,
Licensor shall be permitted to make use of same for
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any purpose whatsoever.
11.3 The parties agree to execute any documents reasonably
requested by the other to effect any of the above provisions.
11.4 Licensee acknowledges Licensor's exclusive rights in the
Trademarks and further acknowledges that the Trademarks are unique and original
to Licensor and that Licensor is the owner thereof. Licensee shall not, at any
time during or after the effective Term of the Agreement dispute or contest,
directly or indirectly, Licensor's exclusive right and title to the Trademarks
or the validity thereof.
11.5 Licensee acknowledges that the Trademarks have acquired
secondary meaning.
11.6 Licensee agrees that its use of the designs of the
Licensed Products and/or the Trademarks inures to the benefit of Licensor and
that the Licensee shall not acquire any rights in the designs (except for
standard or generic/basic designs) and/or the Trademarks except as set forth in
this Agreement. Notwithstanding the foregoing, with respect to the designs of
the Licensed Products only, Licensee shall be permitted to utilize similar
designs of the Licensed Products for its other divisions and subsidiaries
provided that, (1) the colors, fabrication and hardware are not the same as the
Licensed Products, (2) the product can only be offered for sale as part of
Licensee's other divisions or subsidiaries after six (6) months from the date
the product is first shipped for sale at retail or the first selling season of
the Licensed Products, whichever is longer, and (3) such products are to be sold
in different "channels of trade" than the Licensed Products. A different channel
of trade is any customer who is not included on Schedule A of the then current
Distribution Plan.
11.7 The parties acknowledge that the faithful representation
of the Trademarks, as they appear in the applications and registration of the
Office of the Patent and Trademark Office of the United States and in
applications and registration in the Licensed Territory, is mandatory on the
part of Licensee with respect to any reproduction used by Licensee, whether it
appears on the Licensed Products or in print or is otherwise displayed in the
media. Licensee further agrees that the Trademarks will always be faithfully and
exactly reproduced, unless prior written authorization for modification thereof
is received from Licensor.
11.7.1 Each first use of the Trademarks by Licensee
shall be submitted to Licensor for approval as set forth in this License. All
goods manufactured, marketed, sold, distributed or advertised hereunder shall
have a notice on the label which states "Trademarks owned and licensed by LOLA,
INC." or such language as Licensor may designate from time to time.
11.8 COPYRIGHT OR TRADEMARK INFRINGEMENT OR MISUSE &
LITIGATION. If Licensee becomes aware of any fraudulent use, misuse, or
infringement of Licensor's
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copyrights or Trademarks or if Licensee becomes aware of any marks confusingly
or substantially similar to the Trademarks, Licensee shall immediately notify
Licensor thereof.
11.8.1 Licensor shall have the first option in its
discretion, to institute and prosecute lawsuits against third persons for
infringement of the rights licensed in this Agreement. Licensor shall not be
required to institute legal action if, in its sole and absolute discretion, the
probability of success therein or results of successful litigation do not
justify the time and expense thereof. In the event that Licensor determines in
its sole and absolute discretion not to prosecute any such litigation, then in
such event Licensee shall have the right, in its discretion, to institute and
prosecute lawsuits against third persons for infringement of the rights licensed
in this Agreement. The cost and expense of any lawsuit shall be borne by the
party bringing suit. Any recovery, whether by judgment, settlement, or
otherwise, shall be retained by the party bringing suit. Licensee shall
cooperate fully with Licensor in any proceeding to protect the Trademarks and
copyrights and other intellectual property rights granted herein.
11.9 OTHER TRADEMARKS OF LICENSOR. Licensee shall have no
right whatsoever to any trademark or other intellectual property that may be
developed by Licensor or its affiliates that is not, in the sole opinion of
Licensor, part of the Licensee's brand line and directly related to the Licensed
Products. Notwithstanding the foregoing, Licensee shall not be permitted to use
Licensor's trademark "Lola" or anything substantially similar thereto with
respect to this License Agreement.
12. WARRANTIES & OBLIGATIONS.
12.1 Licensor represents and warrants that; (a) it has the
right and power to grant the licenses herein; and (b) that there are no other
agreements with any other party in conflict herewith.
12.2 To the best of Licensor's knowledge, it has no actual
knowledge that the Property and/or Trademarks infringe any valid right of any
third party.
12.3 Licensee shall be solely responsible for the manufacture,
production, sale and distribution of the Licensed Products and will bear all
related costs associated therewith.
12.4 Licensee represents and warrants that it will use its
best efforts to promote, market, sell and distribute the Licensed Products as
provided in this Agreement.
12.5 Licensee represents and warrants that it has the right
and power to enter into this Agreement and that there are no other agreements
with any other party in conflict herewith.
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12.6 Subject to its rights under Paragraph 11.6 above,
Licensee represents and warrants that during the term of this Agreement it will
not enter into an agreement with anyone to copy or "knock-off", or directly or
indirectly copy or "knock-off", or cause to be copied or "knocked-off" any of
the Licensed Products for itself or anyone else or any other products
manufactured or licensed by Licensor.
13. INDEMNITY.
13.1 Licensor shall indemnify, defend and hold Licensee, its
officers, directors, employees, and agents harmless from any liability,
attorney's fees, costs and expenses arising from any claims asserted against
Licensee or Licensor arising from Licensee's use of the Trademarks, designs,
images, artwork, logos, drawings, illustrations, trade names, and the like,
which Licensor may provide to Licensee from time to time pursuant to this
Agreement and which Licensee utilized ONLY in accordance with the terms of this
Agreement. This indemnity does not cover any modifications or changes made to
the Trademarks by Licensee, without Licensor's prior consent. Licensor shall be
entitled, at its option to provide legal counsel to represent Licensee at
Licensor's cost. Licensor shall not be required to pay for Licensee's
independent legal counsel, if Licensor provides legal counsel to represent
Licensee with respect to any claim. Nothing herein is intended to nor shall it
relieve Licensee from liability for its own acts, omissions, or negligence.
13.2 Licensee shall defend and indemnify Licensor, its
officers, directors, agents, and employees against all costs, expenses and
losses (including reasonable attorney fees and costs) incurred through claims of
third parties against Licensor or Licensee based on the manufacture, marketing,
sale, advertising, distribution of the Licensed Products designed by Licensee
including, but not limited to, actions founded on product liability on all
products manufactured by Licensee.
13.3 Each party will promptly notify the other of any claims
or actions to which the foregoing indemnification may apply.
14. GOODWILL. Licensee recognizes the great value of the publicity and
goodwill associated with the Trademarks, Copyrights and designs of the Licensed
Products , and agrees that the value of the goodwill exclusively belongs to
Licensor.
15. COPYRIGHT NOTICE. Licensee shall place a legally sufficient
copyright notice which protects the rights of Licensor on each and every design,
style, garment, creation or writing which is capable of protection pursuant to
the copyright laws of the United States of America and the Licensed Territory at
the reasonable direction of Licensor. Any public distribution of goods bearing
copyrightable works of Licensor by Licensee without a copyright notice as
required above, is unauthorized and a violation
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of this Agreement.
16. INSURANCE. Licensee shall, throughout the Term of this Agreement
and any extension or renewal hereof, obtain and maintain at its sole cost and
expense, from a qualified insurance company, reasonably acceptable to Licensor,
and, Product Liability Insurance naming Licensor and its President Xxxxx Xxxxx,
as additional insured thereon. Such policy shall provide protection against any
and all claims, demands and causes of action arising out of any defects or
failure to perform, alleged or otherwise, of the Licensed Products or any
material used in connection therewith or any use thereof. The amount of the
coverage shall be at least Two Million ($2,000,000) Dollars. The policy shall
provide for ten (10) days notice to Licensor from the insurer by registered or
certified mail, return receipt requested, in the event of any modification,
cancellation or termination thereof. Licensee shall furnish Licensor a
certificate of insurance evidencing such coverage upon execution of this
Agreement, and in no event shall Licensee manufacture, distribute or sell the
Licensed Products prior to receipt by Licensor of such evidence of insurance.
17. TERMINATION. The following termination rights are in addition to
the termination rights provided elsewhere in this Agreement and unless otherwise
provided in this Paragraph 17, are subject to the cure provision set forth in
Paragraph 17.7 below.
17.1 IMMEDIATE RIGHT OF TERMINATION. Licensor shall have the
right to immediately terminate this Agreement by giving written notice to
Licensee in the event that Licensee does any of the following:
17.1.1 Licensee fails to achieve 70% of the required
Guaranteed Minimum Net Sales in any Contract Year during the Initial Term or the
Option Period as set forth on Schedule "A" hereto.
17.1.2 Licensee files a petition in bankruptcy or is
adjudicated a bankrupt or insolvent, or makes an assignment for the benefit of
creditors, or an arrangement pursuant any bankruptcy law, or if the Licensee
discontinues its business or a receiver is appointed for the Licensee or for the
Licensee's business and such receiver is not discharged within ninety (90) days;
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17.2 TERMINATION AFTER NOTICE. Subject to the provisions contained in
Paragraph 17.7 below, Licensor shall have the right to terminate this Agreement
upon the occurrence of the following events:
17.2.1 Licensee fails to meet the Initial Shipment Date
as specified in Schedule "A" hereto;
17.2.2 Licensee fails to make timely payment of
Royalties or other monies due Licensor two or more times during any twelve month
period;
17.2.3 Licensee breaches any provision of this
Agreement, (except as specifically noted in Paragraph 17.1 above) including, but
not limited to, the unauthorized assertion of rights in the Trademarks;
17.2.4 Licensee fails to obtain or maintain product
liability insurance in the amount and of the type provided for herein;
17.2.5 Licensee fails to promptly discontinue the
distribution or sale of the Licensed Products, Trademarks or Copyrights or the
use of any packaging or promotional material which does not contain the
requisite notices or labels;
17.2.6 Licensee has not taken steps to restore the
quality of and cure the defects with respect to the Licensed Products in
accordance with Paragraph 9 of this Agreement.
17.3 ACCELERATED PAYMENTS ON DEFAULT. In the event of a
default and the rights of Licensee under this Agreement are terminated, all
payments required hereunder shall be accelerated and shall be due and payable to
Licensor immediately, in full, plus interest at prime (as determined by Bank of
America when due) plus one(1%) percent, per annum from the date due or the date
of default, whichever shall first occur;
17.4 This Agreement may be terminated by the mutual consent of
the parties in writing.
17.5 DEFAULT. Subject to the provisions of Paragraph 17.7, in
addition to the foregoing rights of Licensor, either party may terminate this
Agreement and the rights of the other party if either party is in default or has
materially breached any of the terms of this Agreement, or any additional or
supplemental agreements that may be entered into between the parties.
17.6 ACTS DETRIMENTAL TO THE BRAND. Licensee acknowledges that
it is only one of multiple licensees of the Trademark; that its actions and
omissions can greatly impact the business of Licensor, the business of other
licensees of Licensor and the value of the Trademark(s); and that the quality of
Licensee's production, timely delivery of approved orders, and conduct of its
business can greatly impact the business of other licensees of Licensor and the
value of the Trademarks. As a result, in the event that the Licensee takes any
action which is, in the reasonable opinion of
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Licensor, materially harmful to the Trademarks or the business of Licensor,
Licensor's other licensees, or the Trademarks, then Licensor shall have the
right to terminate all rights of Licensee under this Agreement.
17.7 CURE PERIOD. Before Licensor terminates the rights of
Licensee under this Agreement, (except with respect to the provisions contained
in Paragraph 17.1 which are grounds for immediate termination), Licensor shall
give Licensee written notice, setting forth the basis for such termination,
default or failure to perform. Licensee shall have thirty (30) days from and
after mailing of such written notice to cure such default, breach or failure to
perform. In the event that such breach, default or failure to perform is not
cured within said thirty (30) days, then Licensor may forthwith terminate all of
Licensee's rights hereunder.
17.8 Licensee shall have the right to terminate this Agreement
by giving written notice to Licensor in the event that:
17.8.1 Xxxxx Xxxxx is no longer the chief operating
officer or chief executive officer of Licensor; or
17.8.2 If Licensor files a petition in bankruptcy and is
adjudicated bankrupt or insolvent, or makes an assignment for the benefit of
creditors, or an arrangement pursuant to any bankruptcy law, or if Licensor
discontinues its business.
17.9 Notice of a party's election to terminate this Agreement
must be given, if at all, within sixty days after the occurrence of the event
giving rise to the right to terminate.
18. POST TERMINATION RIGHTS. All of the following rights and duties
shall be applicable upon any termination of Licensee's rights under this
Agreement, whether by expiration of the term hereof or by earlier termination
pursuant to the provisions hereof.
18.1 Not less than thirty (30) days prior to the expiration of
this Agreement, or immediately upon earlier termination thereof, Licensee shall
provide Licensor with a complete inventory of all inventory of the Licensed
Products then on-hand and all piece goods for same (the "Inventory").
18.2 DELETION OF TRADEMARK. Immediately upon expiration or
earlier termination of this Agreement, Licensee shall take all steps necessary
to change its name if it incorporates any of the Trademarks or similar words in
its business name and delete any references to the Trademarks and similar words
from any signs, business names, or any use in advertising, print or otherwise.
Subject to Paragraph 18.4, this change of name shall be completed within ninety
(90) days after expiration or earlier termination of this Agreement.
Notwithstanding the foregoing, in the event that this
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Agreement is terminated for cause as provided in Paragraphs 17.1 and 17.2 above,
then Licensee shall remove all references to the Trademarks or similar words in
its business name and delete any references to the Trademarks and similar words
anywhere same is used within thirty (30) days from and after the date of such
termination.
18.3 DISPOSITION OF SAMPLES, PATTERNS, MARKERS, LABELS AND
FASTENERS ON TERMINATION. Any samples, patterns, markers and labels or fasteners
(snaps, buttons, etc.) on which the Trademarks appear, which are not affixed to
a finished Licensed Product, shall be delivered to Licensor by Licensee within
thirty (30) days of the expiration or termination of this Agreement, except as
provided in Paragraph 18.4 below. An inventory of such items on hand upon
expiration or termination of this Agreement shall be delivered to Licensor
within twenty (20) days of the expiration or termination. All such items of
inventory shall be used in accordance with this provision and no other
disposition of these items shall occur. Licensor shall pay Licensee for all such
material at a price equal to Licensee's cost thereof, including freight; such
payment to be made within thirty (30) days after delivery.
18.4 LIQUIDATION OF GOODS. Immediately upon the expiration or
termination of Licensee's rights under this Agreement, Licensee shall have the
right to complete all work in process, and to complete bona fide purchase
orders. Licensee shall have the right to use the items of inventory listed in
Paragraph 18.3 above, for completion of work in process. Licensee shall no
longer have the right to use the Trademarks in any form or in any manner, except
for the purpose of selling off the existing inventory of the Licensed Products.
Licensee shall have one hundred fifty (150) days from the date of expiration or
termination of this Agreement to dispose of its inventory of the Licensed
Products. If any of the Licensed Products remain unsold after the expiration of
one hundred fifty (150) days, Licensee shall then remove the Licensed Products
from its inventory and return such unsold inventory to Licensor at no cost to
Licensor, other than freight. All sales of the remaining inventory shall be sold
in accordance with the terms of this Agreement, and the accounting and payment
shall be made within thirty (30) days after the close of the one hundred fifty
(150) day sell off period.
18.5 Except as provided above, upon expiration or earlier
termination of this Agreement, all of the rights of Licensee under this
Agreement shall forthwith terminate and immediately revert to Licensor and
Licensee shall immediately discontinue all use of the Trademarks at no cost
whatsoever to Licensor.
18.6 Licensee hereby agrees that, at the expiration or earlier
termination of this Agreement for any reason, Licensee will be deemed
automatically to have assigned, transferred and conveyed to Licensor any and all
rights, goodwill or other right, title or interest in and to the Trademarks,
trade dress, copyrights, or any other intellectual property rights which may
have been obtained by Licensee as a result of
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this License. Licensee will execute, and hereby irrevocably appoints, Licensor
its attorney in fact (acknowledging that such power is coupled with an interest)
to execute, if Licensee fails or refuses to do so, any instrument requested by
Licensor to accomplish or confirm the foregoing.
19. MUTUAL EXCLUSIVITY. Licensor shall provide Licensee with
substantial design input for the Licensed Products, and it is and will be
impossible to determine which design features are not the property of Licensor.
Licensee further agrees that all existing and future graphic designs and designs
of the Licensed Products are and shall remain the sole and exclusive property of
Licensor. Subject to its rights under Paragraph 11.6 above, Licensee agrees that
it shall not manufacture, sell or distribute products using the graphic designs
of the Licensed Products or substantially similar designs under any other name
or label other than the Trademarks.
20. NON-ASSIGNABILITY. Neither this Agreement nor any of the Licensee's
rights hereunder are assignable by Licensee, without the prior written consent
of Licensor. Such consent may be withheld in the sole and absolute discretion of
Licensor. The transfer of more that fifty (50%) percent in the aggregate of the
shares of beneficial ownership of Licensee will be deemed an assignment.
Notwithstanding the foregoing, Licensor's consent shall not be unreasonably
withheld in the event of a sale of all or substantially all of the assets of
Licensee or in the event of a transfer of more than fifty percent in the
aggregate of the shares of beneficial ownership of Licensee Licensor may assign
its rights under this Agreement or the payments to be made by Licensee to
Licensor hereunder.
20.1 SUBLICENSE-SUBCONTRACT. Licensee may not sublicense its
rights under this Agreement without the prior written consent of Licensor, which
approval or disapproval shall be subject to the sole and absolute discretion of
Licensor. Any sublicense or attempted sublicensing by Licensee without the prior
written consent of Licensor shall constitute a breach of this Agreement. Any
sublicense consented to by Licensor must provide that the sublicensee shall be
bound by all of the terms and conditions of this Agreement. Approval by Licensor
to one sublicense shall not relieve the Licensee of any of its obligations under
this Agreement, including, without limitation, its obligations set forth on
Schedule "A".
20.1.1 Licensee shall have the right to subcontract the
actual manufacture of the Licensed Products, provided that all such
subcontractors agree to be bound by the terms and conditions of any
sub-contractor Agreement heretofore provided by Licensor to Licensee
specifically for use by Licensee's sub-contractors. Licensee must provide
Licensor with the appropriate acknowledgment of the terms of such sub-contractor
Agreement from such subcontractor prior to using such subcontractor.
20.2 NO HYPOTHECATION. Licensee shall not pledge, hypothecate,
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mortgage, grant liens in or upon, grant security interests in, or use as
collateral any of Licensee's rights under this Agreement without the prior
written consent of Licensor, which consent may be withheld in the sole and
absolute discretion of Licensor. Any such action without the prior written
consent of Licensor shall be void and of no force and effect and shall entitle
Licensor to forthwith terminate Licensee's rights under this Agreement.
21. SALE OF LICENSED PRODUCTS TO XOXO RETAIL STORES OR XOXO OUTLET
STORES. As additional consideration for Licensor entering into this Agreement,
with respect to any XOXO Retail Stores owned or controlled by Licensor, any
affiliate of Licensor, 8-3 Retailing, Inc., or any company subsequently
established by Licensor, or any of the principals of Licensor, individually or
collectively, for the express purpose of operating XOXO Retail Stores,
(hereinafter collectively referred to as "Retail Stores"), Licensee shall sell
to Licensor on a "CONSIGNMENT" basis, to no more than five (5) of such Retail
Stores as or when opened, any Licensed Products manufactured by Licensee
pursuant to this Agreement and ordered by such Retail Store in reasonable
quantities, and at the Licensee's lowest wholesale selling price to anyone and
same shall be delivered to such Retail Stores in accordance with the terms of
such order(s). All Licensed Products so ordered by shall be paid by such Retail
Store to Licensee within forty-five (45) days of the end of the month in which
the Licensed Products are received, if not returned as provided below. Any such
Retail Store shall have the right to return any unsold Licensed Products ordered
from Licensee anytime within sixty (60) days after the receipt of same by such
Retail Store(s) without any obligation for the payment of same to Licensee.
Licensee shall provide any such retail store referenced above with a Return
Authorization for such merchandise on demand, prior to the return of such
merchandise to Licensee.
21.1 During the Term of this Agreement, with respect to any
Licensed Products that are either not sold by Licensee during the normal course
of business, seconds, overruns, damaged, off-priced, discontinued or otherwise
Licensed Products that are not sold during the selling season for same
(hereinafter referred to as "Off-Priced Goods"), Licensor shall have the first
right to purchase same from Licensee for its XOXO Outlet Stores at such
reasonable price as the parties agree, prior to offering such Off-Priced Goods
to anyone else. Licensee shall notify Licensor or its buyer for the XOXO Outlet
Stores of any Off-Priced Goods subject to the within provision. Licensor or its
buyer for the XOXO Outlet Stores shall have 5 business days from and after
receipt of same within which to purchase any quantity of the Off-Priced Goods
offered for sale herein. In the event that Licensor or its buyer for the XOXO
Outlet Sores does not notify Licensee of its intention to buy all or any portion
of the Off-Priced Goods offered for sale, then Licensee shall be entitled to
dispose of that portion of such Off-Priced Goods which Licensor or its buyer for
the XOXO Outlet Stores does not purchase. Licensor shall be provided payment
terms for same of not less than 45 days from the end of the month in which the
Licensed Products are received. In the event
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that Licensor declines to purchase such Off-Priced Goods, then Licensee shall be
permitted to sell same to any third-party listed in Schedule B of the then
current Distribution Plan, provided that the price and terms are no more
favorable to such third party as that offered to Licensor.
22. GENERAL PROVISIONS.
22.1 Payments. All payments due hereunder shall be payable to
Licensor.
22.2 NOTICES. Any notice required to be given hereunder shall
be in writing and delivered personally to the other designated party at the
address set forth below or mailed by certified or registered mail, return
receipt requested or delivered by a recognized national overnight courier
service, in a sealed envelope, with postage thereon fully paid and addressed as
follows:
If to Licensor: Xx. Xxxxx Xxxxx
Xxxx, Inc. d.b.a. XOXO
0000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Fax: (000) 000-0000
With copies to: Xx. Xxxxxxx X. Xxxxx, Esq.
Zimmerman, Rosenfeld, Xxxxx & Leeds LLP
0000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Fax: (000) 000-0000
and
Xx. Xxxxx Xxxxxxxxxx
President/CEO
Xxxxx Xxxxx, Ltd.
0000 Xxxxxxxxx Xxxxxxx
Xxxxxxxxx, XX. 00000
Fax: (000) 000-0000
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If to Licensee: Biscayne Apparel International, Inc.
0000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: President
Fax: (000) 000-0000
With copies to: Law Offices of Xxxxxx & Xxxxxxx
Attn: Xxxxxxx X. Xxxxxx
Suite 1200
000 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Fax: (000) 000-0000
Either party may change the address to which notice or payment is to be
sent by written notice to the other in accordance with the provisions of this
Paragraph.
22.3 ENTIRE AGREEMENT. This Agreement constitutes the entire
understanding between the parties with respect to the subject matter hereof and
supersedes all prior negotiations, dealings, agreements and understandings of
the parties in connection therewith and is intended as a final expression of
their Agreement.
22.4 SEVERABILITY. The invalidity or unenforceability of any
provision hereof shall not affect the other provisions hereof, and this
Agreement shall be construed in all respects as if such invalid or unenforceable
provisions were omitted.
22.5 AMENDMENT. No amendment, modification or alteration of
this Agreement shall be valid unless it is in writing and signed by all parties
hereto.
22.6 NO AGENCY OR JOINT VENTURE. This Agreement does not
constitute and shall not be construed as constituting an agency, partnership or
joint venture between the parties. Licensee shall have no right to obligate or
bind Licensor in any manner whatsoever, and nothing herein contained shall give,
or is intended to give, any rights of any kind to any third persons.
22.7 GOVERNING LAW. This Agreement shall be deemed to have
been made in, and shall be construed in accordance with the laws of the State of
California, and its validity, construction, interpretation and legal effect
shall be governed by the laws of the State of California applicable to contracts
entered into and performed entirely therein. It is further agreed that this
Agreement is deemed to have been consummated in the State of California and as
such, in the event of a dispute between the parties, the parties consent to in
personam jurisdiction in either the Federal or State Court in the county of Los
Angeles, State of California to hear any dispute with respect to same. As a
result the parties hereby agree to waive any jurisdictional or venue
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defenses otherwise available to it.
22.8 ATTORNEY FEES AND COSTS. If either party to this
Agreement shall bring any action against the other, declaratory or otherwise,
arising out of this Agreement, the losing party shall pay to the prevailing
party a reasonable sum for attorney fees incurred in bringing or defending such
suit and/or enforcing any judgment granted therein, all of which shall be deemed
to have accrued upon the commencement of such action and shall be paid whether
or not such action is prosecuted to judgment. Any judgment or order entered in
such action shall contain a specific provision providing for the recovery of
attorney fees and costs incurred in enforcing such judgment. For the purposes of
this section, attorney fees shall include, without limitation, fees incurred in
the following: (1) post judgment motions; (2) contempt proceedings; (3)
garnishment, levy, and debtor and third party examinations; (4) discovery; and
(5) bankruptcy litigation.
22.9 INTERPRETATION. The parties hereto are sophisticated and
have been represented by lawyers throughout this transaction, who have carefully
negotiated the provisions hereof. As a consequence, the parties do not believe
that the presumptions of CIVIL CODE Section 1654 relating to the interpretation
of contracts against the drafter of any particular clause should be applied in
this case and therefore waive its effects.
22.10 RECITALS. The recitals set forth on the first page of
this Agreement are incorporated herein by this reference as though fully set
forth herein.
22.11 SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and shall inure to the benefit of Licensee and its successors and assigns
and shall also be binding upon and shall inure to the benefit of Licensor and
its successors and assigns.
22.12 HEADINGS. The subject headings of the Sections of this
Agreement are included for purposes of convenience only and shall not affect the
construction or interpretation of any term or provisions hereof.
22.13 PARTIES BENEFITTED. Nothing in this Agreement, whether
express or implied, is intended to confer any rights or remedies under or by
reason of this Agreement on any persons other than the parties to it and their
respective successors and assigns, nor is anything in this Agreement intended to
relieve or discharge the obligation or liability of any third persons to any
party to this Agreement, nor shall any provisions give any third persons any
right of subrogation or action against any party to this Agreement.
22.14 CONFIDENTIALITY. The parties hereto agree that the terms
of this Agreement shall be kept confidential and not disclosed to any third
party except in the ordinary course of business or if required by law, without
the prior written consent of the other party hereto. Licensee acknowledges that
prior to and/or during the term of
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this Agreement that it may be given access to or become acquainted with
"Confidential Information" (as such term is defined below), which is of great
value to Licensor. Licensee further acknowledges that maintaining the
confidentiality of all such Confidential Information is critically important to
Licensor. As a result of the foregoing Licensee shall not either during or after
the term of this Agreement, use or disclose, directly or indirectly, to anyone
other than representatives of Licensor or other persons designated by Licensor
any information, data, documents, customer list(s), designs and styles,
manufacturing procedures, company policies, or other materials of any kind or
nature in any way related to Licensor, its business affairs or operations, even
if acquired by Licensee in the course of the performance of Licensee's
obligations hereunder and even if provided to Licensee by Licensor
("Confidential Information"). Licensee acknowledges that a breach of the
provisions of this paragraph will cause Licensor irreparable harm for which
there is no adequate remedy at law, and therefore, in addition to any and all
other rights or remedies available to Licensor, Licensor shall be entitled to
injunctive relief and all other remedies provided by law or equity. Such
remedies shall include, without limitation, the right to prevent dissemination
of any Confidential Information.
22.15 FURTHER ACTION. Each party hereto agrees to perform any
further acts and to execute and deliver any documents which may be reasonably
necessary to carry out the provisions hereof.
22.16 COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, which shall be
deemed to constitute one and the same instrument.
22.17 NO IMPLIED WAIVERS. The failure of either party at any
time to require performance by the other party of any provision hereof shall not
affect in any way the full right to require such performance at any time
thereafter. The waiver by either party of a breach of any provision hereof shall
not be construed or held to be a waiver of the provision itself.
22.18 TIME. Time is of the essence of the Agreement.
22.19 PROTECTION OF TRADEMARKS. Neither Licensor or Licensee
shall, at any time, do or suffer to be done any act or thing which will in any
way impair the rights of the Licensor in and to the Trademarks or the rights of
the Licensee in and to its rights under this Agreement or which affects the
validity of the Trademarks or which depreciates the values thereof or which
tends to bring the Trademarks into disrepute.
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23. SHOWROOM FOR LICENSED PRODUCTS
Licensee acknowledges the importance of providing customers with the
ability to view all of the Licensee's Licensed Products in one location and in
close proximity to Licensor's showrooms so that Licensor can introduce its
customers to the Licensed Products. Licensor may, in its discretion, provide a
showroom for all Licensees in close proximity to Licensor's showrooms or as part
of Licensor's showrooms in Los Angeles and New York, as Licensor shall
reasonably determine. At the Licensor's request, the Licensee shall provide a
current sample line of its Licensed Products in each showroom. Licensor shall
provide a sales person in each showroom to show Licensee's line to customers and
prospective customers and to refer such customers or prospective customers to
Licensee. With respect to Licensee's own showroom, Licensee shall provide,
display and maintain complete current sample lines of its Licensed Products. The
Licensed Products shall be completely separated from other products sold or
manufactured by Licensee.
Licensee shall be required to maintain a booth at no more than two (2)
trade shows per Year as determined by Licensor and Licensee and where Licensor's
products are exhibited or offered for sale, at Licensee's sole cost and expense
and exhibit therein the Licensed Products manufactured by Licensee pursuant to
this Agreement. Licensee's booth shall be maintained as part of or in connection
with Licensor's booths at such trade shows.
IN WITNESS WHEREOF, the parties hereto, have entered into this
Agreement effective on the day and year set forth above.
LICENSOR:
LOLA, INC.
By:
----------------------------------
Xxxxx Xxxxx, President
Date: _____________, 1997
LICENSEE:
Biscayne Apparel International, Inc.
By:
----------------------------------
Xxxxx Xxxxxxxxxx, Xx., President
Date: __________, 1997
25
