TRADEMARK LICENSE AGREEMENT
BETWEEN
SELECT SPORT A/S
AND
VARSITY SPIRIT FASHIONS & SUPPLIES, INC.
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This TRADEMARK LICENSE AGREEMENT (this "Agreement") is made as of December 13,
2002, by and between
Select Xxxxx X/X
00 Xxxxxxxxxxxxx
0000 Xxxxxxxx
Xxxxxxx
a Danish limited liability company
(hereinafter "the Licensor")
and
Varsity Spirit Fashions & Supplies, Inc.
0000 Xxxxx Xxxxx
Xxxxxxx, XX 00000
XXX
an American corporation
(hereinafter "the Licensee")
WHEREAS, the Licensor is the owner of the trademark "Select
Sport" and the related identifying names and logos as further defined in Exhibit
A hereto (in the future referred to collectively as "the Trademarks").
WHEREAS, the Licensee desires to obtain from the Licensor,
and the Licensor is willing to grant to the Licensee, the right to utilize the
Trademarks in connection with its business in the United States, its territories
and possessions (hereinafter "Territory"), at the terms and subject to the
conditions set forth in this Agreement.
NOW THEREFORE, the parties hereby agree as follows:
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1. GRANT AND SCOPE OF LICENSE.
1.1 The Licensor hereby grants to the Licensee, and the Licensee accepts an
exclusive license to utilize the Trademarks in connection with the advertising
(in the Territory), manufacture (anywhere in the world) and sale (in the
Territory) of certain sporting products and services ("the Exclusive Products").
The Exclusive Products are defined as:
a) soccer team uniforms, soccer jerseys, soccer shorts, soccer socks and
goalkeeper apparel
b) team outerwear meaning tracksuits and fleece tops
c) coaching apparel, including shirts, shorts and jackets
d) other soccer apparel, including T-shirts, shorts, outerwear and fleece
e) accessories meaning sports bags, backpacks, caps, hats and coaches bags.
f) soccer footwear
g) organizing and operating soccer camps and events.
1.2 The Licensor hereby grants to the Licensee, and the Licensee accepts a
non-exclusive license to utilize the Trademarks in connection with the
advertising (in the Territory), manufacture (anywhere in the world) and
sale (in the Territory) of certain sporting products and services ("the
non-Exclusive Products").
The non-Exclusive Products are defined as:
a. soccer balls (only as set forth in specific Supply and Purchase
Agreement between Select Sport America, Inc. and the Licensee and
as approved by the Licensor)
b. water bottles
x. xxxx bags
x. xxxx pumps
e. training vests
x. xxxx guards
g. goalie gloves.
Hereinafter Varsity Exclusive Products and Varsity Non-Exclusive Products
are sometimes referred to in total as "the Products" which term, however,
does not include soccer balls supplied according to the above mentioned
separate Supply and Purchase Agreement.
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Balls supplied under the Supply and Purchase Agreement will be Special
Make Up (SMU) designs, and will carry "non-standard" Select ball graphics
and names which will be submitted to Licensor for approval, such approval
not to be unreasonably withheld. The Licensee's ball collection will not
exceed six (6) current models in any product year, unless otherwise
agreed to by Licensee and Licensor. Licensee's designs may not include an
all-white model (i.e. without graphics). Licensee's use of SELECT on
Licensee's SMU balls will be restricted to an acknowledgement on the
valve panel, unless otherwise agreed to in writing by Licensee and
Licensor.
1.3 The Licensee is hereby granted the exclusive right to sell and advertise
the ExclusiveProducts in the Territory in all channels of trade except to
mass merchandisers and warehouse clubs, but including via internet, when
to the best of the Licensee's knowledge the customer is a
within-the-Territory customer. The Licensee is granted the right to sell
and advertise the Non-Exclusive Products in all channels of trade except
at retail.
1.4 The Licensee is aware that the Licensor has entered into an agreement
with TEE JAYS MFG. CO., INC. regarding the trademark Selec-T according to
which the Licensor will not adopt, use or authorize anyone else to adopt
or use the trademark Selec-T or any colourable imitation thereof or any
xxxx similar thereto in sound, meaning or appearance. The agreement
between the Licensor and TEE JAYS MFG. CO., INC. is attached hereto as
Exhibit B. The Licensee, its agents, servants, and employees, shall
respect all obligations incurred upon the Licensor according to the
attached agreement. The Licensee is responsible for complying with said
agreement and shall indemnify and hold harmless the Licensor and its
officers, director, employees and agents from and against any and all
losses, liabilities, claims, charges, actions, proceedings, demands,
judgements, settlements, costs and expenses (including, without
limitation, fees and expenses of counsel) which any of them may incur as
a result of any claim or demand which may be brought against any of them
arising in any way out of the non-compliance by the Licensee of
obligations under said Agreement.
2. QUALITY
The Licensee acknowledges that selling products which are of inferior quality
can have an adverse effect on the business reputation of the Licensor and the
goodwill symbolised by the Trademarks licensed hereunder. Accordingly, the
Licensee agrees that the nature and quality of all products offered and/or sold
to the public under the Trademarks through the business of the Licensee shall at
all times be such as to reflect favourably upon the Licensor, shall be equal to
or better than the quality of products previously offered by the Licensor and
shall respond in good faith to the Licensor's reasonable concerns with regard to
such standards.
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3. QUALITY CONTROL
The Licensor has the right to visit the factory(ies) used by Licensee at its
cost in order to enable the Licensor to control the quality of the Products.
In order to control the quality the Licensor shall approve reference samples
before any mass scale production is initiated, such approval not to be
unreasonably withheld. The reference samples shall be kept with the Licensor.
The Licensor has the right to inspect at any time that manufactured products are
in accordance with the reference samples. In the event any sample is not
approved or disapproved by Licensor within seven (7) days from the Licensor's
receipt of the sample, it will be deemed approved.
4. RESERVATION OF RIGHTS
The license granted by this agreement is an exclusive license, however, nothing
contained herein shall prohibit the Licensor neither from licensing the
Trademarks to one or more parties for use in connection with business related or
unrelated to the business of the Licensee anywhere outside of the Territory nor
from licensing the Trademarks to one or more parties for use in connection with
the sale and marketing of other products than the Products within the Territory.
Notwithstanding the foregoing, in order to maintain the quality of the
trademark, the Licensor will not use or sell, or authorize others to use or
sell, any products which bear the SELECT xxxx to be sold to mass merchants or
warehouse clubs in the Territory. The Licensee disclaims any right to use the
Trademarks in any way not in accordance with the express grants in Clause 1
above. Notwithstanding the foregoing, in the event any additional product
categories become available for license or distribution in the Territory
including the non-Exclusive Products herein, then the Licensee shall be granted
an exclusive sixty (60) day right of first negotiation for such rights. Licensee
however accept that this exclusive sixty (60) days right of first negotiation
does not include negotiation of buying partly or all shares owned by the
Licensor in Select Sport America Inc., the company having the present
distribution rights for Select balls in USA.
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5. ASSIGNMENTS
a. The Licensee may not assign or sublicense to any third party any of the
rights granted to it under this Agreement without the prior written consent of
the Licensor, except when said assignment is part of the sale of the overall
business of Licensee. In the event that such sale is to a direct competitor of
Licensor, Licensor and/or Licensee shall have the right to terminate this
Agreement with a written notice of thirty (30) days. Upon such termination,
royalties will remain due for the calendar year quarter whence such thirty (30)
day notice was sent. Notwithstanding the foregoing, it is recognized that
authorized manufacturers of Licensee shall not be considered sublicensees but
nevertheless will be allowed to apply the Trademarks to the Products under
Licensee's direction.
b. Licensee shall be notified within sixty (60) days before any change of
control of Licensor and Licensee shall have the option, before the change of
control, to extend this Agreement for a period of no less than five (5) years
beyond the change-of-control date, on projected sales volumes consistent with
Clause 11 below.
6. NOTICE TO THE PUBLIC
All products offered by the Licensee in the course of business hereunder shall
be marked, labelled, packaged, advertised, distributed and sold in accordance
with this Agreement, in accordance with all applicable laws, rules and
regulations in the territory and in such a manner as will not tend to mislead or
deceive the public. At the request of the Licensor, the Licensee shall cause to
be placed in conjunction with the placement of the Trademarks on all materials
used in connection with the business and made available to the public,
appropriate notice which shall read substantially as follows:
"Manufactured under license from Select Sport A/S."
The actual wording and manner of presentation of said notice shall be mutually
agreed to by the Licensee and Licensor, being sensitive to the aesthetic appeal
of the product.
7. ACKNOWLEDGEMENTS OF THE LICENSEE
The Licensee hereby agrees and acknowledges as follows:
a) The Licensor is the sole and exclusive owner of the Trademarks and has
the right to license the goods and services as set forth herein. Neither
the Licensee nor any parent, subsidiary or affiliate of the Licensee
shall (i) do any act which may in any way impair the rights of the
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Licensor in and to the Trademarks, (ii) acquire or claim any right, title
or interest in or to the Trademarks together with the goodwill related
thereto by virtue of the license granted to Licensee hereunder or as a
result of Licensee's use of the Trademarks as contemplated hereby, or
(III) in any way challenge the validity of the Trademarks or Licensor's
ownership thereof both during the continuance of the Agreement and
thereafter. All use of the Trademarks shall inure solely to the benefit
of the Licensor.
b) The Licensee shall not use or register or attempt to register any
trademark or designation which may be in the sole judgement of the
Licensor, the same or confusingly similar to the Trademarks, including,
without limitation, any translation or transliteration of the trademarks.
c) The Licensee shall use the Trademarks in the style, design, manner and
form shown in Exhibit A which is attached hereto and the Licensee shall
not, without the prior written consent of the Licensor, use any
Trademarks or portion thereof (i) in a form other than that attached
hereto as Exhibit A, (ii) as a corporate name, trade name or any other
designation used by it to identify its business on any sign or business
document (including, without limitation, order forms, invoices,
stationary and labels), or (iii) in any manner other than as permitted
under this Agreement. If the Licensee desires to use the Trademarks in a
style, design, manner or form other than that shown in Exhibit A, the
Licensee shall first suggest the new use to the Licensor and obtain prior
written consent to use same (which consent shall be provided at the sole
discretion of the Licensor). Notwithstanding the foregoing, it is agreed
that Licensee may use and register in its own name a domain name approved
in writing in advance by Licensor, incorporating the word "Select" and
link such website to its xxxxxxx.xxx or other website of Licensee. The
right to use or maintain the domain name shall be co-terminous with this
Agreement.
d) The Licensee agrees that all uses of the name and reproductions of the
logo shown in Exhibit A will be accompanied by the symbol " R " or
"(TM)", as designated from time to time by the Licensor.
e) The Licensee agrees to adopt as soon as practical from a business
standpoint, and within no more than six (6) months from receipt of
written notice, any changes in the style, design or forms and manner of
use of the Trademarks as may be required by the Licensor.
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8. INFRINGEMENT
8.1 Identification of infringement
Licensee shall promptly notify the Licensor of any instance which comes
to the Licensee's attention of possible infringement, illegal use, misuse
or misappropriation of any of the Licensor's rights to the Trademarks.
The Licensee shall promptly co-operate with the Licensor and provide such
assistance as shall be requested by the Licensor, at Licensor's cost, in
all respects in identifying instances of possible infringement of any
right of the Licensor.
8.2 Prosecution of infringement actions
The Licensor may, but shall have no obligation to, xxx third parties
alleged by the Licensee to be infringing the trademarks. The Licensee
shall undertake no action to protest or remedy such infringement without
the prior written consent of the Licensor. In any action brought by the
Licensor, (i) the Licensor shall retain full control thereof, including
the settlement or other disposition of the action, and (ii) any recovery
shall be for the account of the Licensor. The Licensee shall, at the
Licensee's own expense, lend such co-operation and assistance to the
Licensor in the prosecution of such infringement suit as the Licensor
shall reasonably request, provided, however, that the Licensor shall
reimburse the Licensee for the reasonable out-of-pocket expenses incurred
by the Licensee in providing such co-operation and assistance whether or
not the Licensor is successful in any such action. If the Licensor elects
not to bring an action, the Licensee may bring such an action on behalf
of the Licensor upon receipt of prior written consent from the Licensor
and at the Licensee's sole expense. In such event, Licensor will
cooperate and assist to the extent necessary, and Licensee shall be
reimbursed for its expenses including legal fees and expert and
investigator fees, if any, from any recovery, the remainder of which
would be paid to Licensor.
9. COMPLIANCE WITH LAWS AND INDEMNITY
9.1 Compliance with laws
The Licensee represents and warrants to the Licensor that the Licensee
shall comply with any and all applicable laws, rules and regulations and
any applicable safety standards in the Licensee's exercise of its rights
under this Agreement,
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9.2 Child labour etc.
The Licensee represents and warrants to the Licensor that the Licensee,
including any subcontractor or supplier to the Licensee, shall refrain
from using child labour in the manufacture of products under this
Agreement or in any other way in connection with the Licensee's exercise
of its rights under this Agreement, irrespective of whether the use of
child labour is or is not in compliance with the laws and regulations of
the country of manufacture.
The above representation and warranty shall also cover other conditions
which may be considered unacceptable or give rise to criticism from an
ethical or moral point of view, including, but not limited to, inhumane
working conditions.
If there is doubt as to whether certain conditions may be unacceptable or
subject to criticism from an ethical or moral point of view, the Licensee
shall consult with the Licensor prior to initiating any action which will
involve such conditions.
9.3 Indemnity
The Licensee assumes full responsibility for the conduct of business
under this Agreement and shall indemnify and hold harmless the Licensor
and its officers, director, employees and agents from and against any and
all losses, liabilities, claims, charges, actions, proceedings, demands,
judgements, settlements, costs and expenses (including, without
limitation, fees and expenses of counsel) which any of them may incur as
a result of any claim or demand which may be brought against any of them
arising in any way out of the exercise by the Licensee of its rights
under this Agreement, including, without limitation, claims alleging (i)
negligence in connection with the business of the Licensee, (ii) the
infringement by the Licensee of any patent, process, trade secret,
copyright or trademark (other than claims directly relating to the
Licensee's authorized use of the Trademarks licensed hereby), or (iii)
any design, manufacturing, handling or other defects or any inherent
danger in the conduct of the Licensee's business. The Licensee's
obligations to indemnify the Licensor pursuant to this section shall
survive any termination of the Agreement.
With respect to any claim by a third party relating to the Licensee's use
of the Trademarks licensed herein, the Licensor assumes full
responsibility for the conduct of business under this Agreement and shall
indemnify and hold harmless the Licensee and its officers, director,
employees and agents from and against any and all losses, liabilities,
claims, charges, actions, proceedings, demands, judgements, settlements,
costs and expenses (including, without limitation, fees and expenses of
counsel) which any of them may incur as a result of any claim or demand
which may be brought against any of them arising in any way out of the
exercise by the Licensee of its rights under this Agreement.
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9.4 Insurance
The Licensee shall carry and maintain at its own cost and expense, with a
responsible insurance carrier acceptable to the Licensor, product
liability, advertising claims and general liability insurance in an
amount not less that $ 1,000,000 per claim or suit at all times during
which the Trademarks are being used in connection with the Licensee's
business, and shall name the Licensor as an additional named insured on
each such policy. Such coverage shall apply no matter when any such claim
or suit is asserted, and by its terms may not be terminated or modified
without at least 20 days prior written notice to the Licensor. This
insurance may be obtained by the Licensee in conjunction with a policy
which covers business other than business in connection with this
agreement. The Licensee shall from time to time upon reasonable request
by the Licensor, promptly furnish to the Licensor evidence, in form and
substance satisfactory to the Licensor, of the maintenance of the
insurance, including, without limitation, copies of policies,
certificates of insurance (with applicable riders and endorsements) and
proof of premium payments. An indemnified party shall provide written
notice of any claim hereunder, and the Licensee (or its insurer) shall
have the option to undertake the defence of such claim.
9.5 Warranty
In no event shall the Licensor be liable to the Licensee for any damages,
whether direct or indirect, consequential or otherwise, arising out of or
in connection with this Agreement or the goods or services bearing the
Trademarks or any similar xxxx either during or after the term of this
Agreement,
a. except as set forth in 9.3, and
b. except for unwarranted termination according to Clause 15 below in
which event the common Danish rules relating to damages for breach of
contract shall apply.
10. EFFECTIVE DATE
This Agreement shall become effective on the date of execution by the second
party.
The Agreement will terminate on December 31, 2005, unless the parties have
agreed to prolong the Agreement.
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The Licensee has an option to extend the Agreement for a further period of up to
five (5) years beyond December 31, 2005, if the Licensee has not at any time
during the lifetime of the Agreement been in material default. Notice of
prolongation must be given to the Licensor not later than June 1, 2005, and
state the period of extension. If the Licensee chooses not to extend for a full
period of five years, the Licensee will not at a later time be able to extend
the Agreement for the full period of five years.
In the notice of extension Licensee will commit to a minimum sales target for
the succeeding years. The sales target must not be below the projected sales
stated in Clause 11 below.
11. PROJECTED SALE
As from the year 2003 and until 31 December 2010 the Licensee projects to sell
for the following amounts:
2003: $ 500,000
2004: $ 1,000,000
2205: $ 2,000,000
2006: $ 3,000,000
2007: $ 4,000,000
2008: $ 5,000,000
2009: $ 6,000,000
2010: $ 7,000,000
The projected sales amount is calculated on basis of the net invoiced sales of
the Products exclusive of all government levies and other duties.
12. PAYMENT
By way of lump sum payment in consideration for entering this Agreement the
Licensee pays at the time of signature of this Agreement an amount of $ 250,000
to the Licensor to be held in trust by Licensor's attorneys until the Agreement
is signed by Licensor. In the event of non-execution by Licensor the amount of $
250,000 will be refunded to Licensee.
Furthermore, the Licensee shall pay to the Licensor a royalty of 4 per cent on
the net invoiced retail sales.
"NET INVOICED SALES" means the gross invoice price of the Products sold, shipped
or otherwise disposed of by Licensee, less deductions for:
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a) where shown on the invoice, freight costs, and taxes which are paid to
any governmental authority in respect to the supply of the Products;
b) credits and allowances given for returned or defective Products;
c) where shown on the invoice, allowances, quantity or other discounts
actually granted, or chargebacks;
d) sales of Products to the Select US ball distributor for their use in
brand promotional activities.
For the sake of clarity, Products that are provided Free of Charge by Licensee
for promotional, sales or marketing purposes are not subject to Royalty. Also,
Select soccer balls purchased from the Select ball distributor, or from Select
Sport A/S are not subject to Royalty.
If the annual sales exceed $ 10,000,000, the incremental royalty rate will be
reduced to 3 per cent on sales above $ 10,000,000, but with 4 per cent up to $
10,000,000.
Even if the Licensee does not sell the amount of products envisaged above the
Licensee shall still pay a minimum royalty based on 75 per cent of the projected
royalties meaning that the Licensee for each of the years shall pay the
following minimum royalty fees irrespective of actual sales:
2003: $ 15,000
2004: $ 30,000
2005: $ 60,000
2006: $ 90,000
2007: $ 120,000
2008: $ 150,000
2009: $ 180,000
2010: $ 210,000
Payment of the minimum royalty fee must be effected each year in four (4) equal
instalments by the end of each quarter, i.e. March 31, June 30, September 30,
and December 31. No later than 60 days after the end of each calendar year, the
Licensee will provide to the Licensor a statement prepared by the Licensee's
certified public accountant documenting the sales for the previous calendar
year. The annual royalty fee based on this statement - with the deduction of the
already paid minimum royalty fees - must be paid at time of presentation of this
statement.
The Licensor has the right to let its own certified public accountant check the
statement from the Licensee. The Licensee is obliged to give the Licensor all
requested information in order to calculate the royalty amount.
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In the event that royalties are not paid within 60 days after each calendar
year, the Licensee shall pay interests with 1.5 per cent per month from the due
date and until payment takes place. The royalty must be paid without any
deduction for taxes of whatever kind.
13. SPORT BALLS
It is understood that Sport Balls for sale by Licensee in the Territory are to
be purchased from the then-current U.S. distributor thereof, if any. If for any
reason the then-current distributor cannot deliver such balls within a
reasonable time, then Licensee may, with the approval of Licensor, not to be
unreasonably withheld, arrange for manufacture and purchase of the balls bearing
the Trademarks either directly from the then-current distributor's source or, if
not available, then elsewhere (subject to the further terms of any agreement
between Licensee and the then-current distributor, if any).
14. FORCE MAJEURE
14.1 The obligations under this Agreement shall be subject to Acts of God,
wars, whether declared or not, riots, civil commotions acts, orders or
requests of any government or local authority, strike, lock-outs, fire,
lacking or deficient supply of raw material, accidents in manufacture,
or any other cause beyond the control of the parties.
14.2 If either party under this Agreement is prevented or delayed in the
performance of any of its obligations under this Agreement by such force
majeure events, and if such party gives written notice thereof to the
other party specifying the matters constituting force majeure, together
with such evidence as it reasonably can give and specifying the period
for which it is estimated that such prevention or delay will continue,
then the party so prevented or delayed shall be excused the performance
or punctual performance as the case may be as from the date of such
notice for so long as such cause of prevention or delay shall continue.
14.3 If by virtue of the preceding sub-clause either party shall be excused
the performance or punctual performance of any obligation for a
continuous period of one (1) month, then the parties shall consult
together with a view to agreeing what action should in the circumstances
be taken and what amendments to the terms of this Agreement ought to be
made, if any.
14.4 If at any time before the Agreement is wholly terminated under this
article, the party who has been excused the performance of any of its
obligations in accordance with the preceding provisions of this article
receives a written notice from the other party that such other party
wholly waives its right to receive further performance of that
obligation, then the Agreement shall not be terminated but shall remain
in force subject to such waiver as aforesaid.
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15. TERMINATION
15.1 Right to terminate
The licence granted under this Agreement may be terminated by the
Licensor by written notice to the Licensee if the Licensee shall be
unable to pay its debts when they become due, make an assignment for the
benefit of creditors, file any petition or have any petition filed
against it under the bankruptcy or insolvency laws of any jurisdiction,
have or suffer a receiver or trustee to be appointed for its business or
property, or be adjudicated a bankrupt or insolvent.
15.2 Termination by Licensee
In the event of material default by the Licensor hereunder, the Licensee
may give the Licensor written notice thereof and demand correction, and
if said correction is not made and demonstrated to the Licensee's
satisfaction within thirty (30) days of such demand, the Licensee may
terminate the Agreement.
15.2 Termination by default
In the event of material default by the Licensee hereunder, the Licensor
may give the Licensee written notice thereof and demand correction, and
if said correction is not made and demonstrated to the Licensor's
satisfaction within 30 days of such demand, the Licensor may terminate
the Agreement.
15.3 Effects of termination or expiration
If this agreement expires or is terminated for whatever reason and
irrespective whether termination is effected by the Licensor or the
Licensee, the Licensee shall immediately take steps to cease all use of
the Trademarks for any purpose and shall completely cease use of the
Trademarks within sixty (60) days of such termination. Within that time
period, at the Licensor's option, the Licensee shall destroy or furnish
to the Licensor all printed materials bearing the Trademarks, for
destruction by the Licensor, and warrant in writing that all use has
ceased.
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The Licensee shall have a period of six (6) months following termination
to sell-off or otherwise dispose of inventories of products that carry
any of the Trademarks.
On the date of termination the rights to the Trademark belongs to the
Licensor who may in any way dispose of the Trademarks.
16. GENERAL
16.1 Relationship between the Licensor and the Licensee
Nothing set forth in this Agreement shall be construed to constitute the
Licensee as the partner, employee or agent of the Licensor, nor shall
either party have any authority to bind the other in any respect, it
being intended that each party shall remain an independent contractor
responsible only for its own actions.
16.2 Notices
Except as otherwise set forth herein, any agreement, approval, consent,
notice, request or other communication required or permitted to be given
by either party to the other under this Agreement shall be in writing
and shall be deemed to have been given (i) when delivered by hand or by
courier, (ii) when ten (10) days have elapsed after its transmittal by
registered or certified mail, postage prepaid, return receipt requested,
(iii) when three (3) days have elapsed after its transmittal by a
nationally-recognised over-night courier such as Federal Express to the
address set forth below, or (iv) immediately upon transmittal by
facsimile to the number set forth below, in each case, with a copy
provided in the same manner and at the same time to the copy recipients
shown below:
To Licensor:
Select Xxxxx X/X
00 Xxxxxxxxxxxxx
0000 Xxxxxxxx
Xxxxxxx
Tel.: (00) 00 00 00 00
Fax: (00) 00 00 00 00
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To Licensee:
Xxx XxXxxxx
Varsity Spirit Fashions & Supplies Inc.
0000 Xxxxx Xxxxx
Xxxxxxx, XX 00000
XXX
Tel.: (000) 000 0000
Fax: (000) 000 0000
With a copy to:
Xxxxxx X. Xxxxx, Esq.
St. Xxxx Xxxxxxx Xxxxxxxx & Reens LLC 000 Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
XXX
Tel.: (000) 000-0000
Fax: (000) 000-0000
or to such other address as the recipient party shall have designated by
notice so given.
16.3 Entire Agreement
This Agreement, including the Exhibits referenced herein, constitutes
the entire agreement of the parties relating to its subject matter and
supersedes all prior oral or written understandings or agreements
relation thereto. No promise, understanding, representation, inducement,
condition or warranty not set forth herein has been made or relied upon
by either party hereto.
16.4 Amendments
This Agreement may not be amended, modified or cancelled except by a
written instrument executed by both parties.
16.5 Binding effect
This Agreement shall be binding upon and shall inure to the benefit of
the Licensor and the Licensee any and all parent companies and/or
subsidiaries as applicable.
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16.6 Waiver
No waiver of, acquiescence in or consent to any breach of or default
under this Agreement shall be deemed a waiver of, acquiescence in or
consent to any other breach or default occurring at any time.
16.7 Severability
If any provision of this Agreement, or the application of the provision
to any person or circumstance, is held to be inconsistent with any
present or future law, ruling, rule or regulation or any court or
governmental or regulatory authority having jurisdiction over the
subject matter of this Agreement, such provision shall be deemed to be
modified to the minimum extent necessary to comply with such law,
ruling, rule or regulation, and the reminder of this Agreement, or the
application of such provision to persons or circumstances other than
those as to which it is held inconsistent, shall not be affected. If any
provision is determined to be illegal, unenforceable or void, and if the
remainder of this Agreement shall not be affected by such determination
and is capable of substantial performance, then such void provision
shall be deemed rescinded and each provision not so affected shall be
enforces to the extent permitted by law.
16.8 Governing law
This Agreement shall be governed by and construed in accordance with the
laws of Denmark.
Any and all disputes, controversies and claims arising out of or in
connection with this Agreement, or the breach, termination or invalidity
thereof, shall be finally settled under the rules of conciliation and
arbitration of the International Chamber of Commerce by one or more
arbitrators appointed in accordance with the said rules. The place of
venue shall be London.
The arbitration award shall be final and binding upon the parties. Each
party waives any objection which such party may now or hereafter have to
the laying of venue of any such arbitration, suit or proceeding and
irrevocably submits to the jurisdiction of any such arbitration in any
such action, suit or proceeding.
Notwithstanding the foregoing, neither party waives the right to seek
prohibitory injunction pertaining to this Agreement or the transactions
contemplated thereby. In particular, without limiting the foregoing,
Licensor shall have the right to seek prohibitory injunction without
pledging of security in the event that Licensee continues the use of the
Trademarks after the termination or expiration of this Agreement.
18
Unless the parties agree otherwise, the arbitration proceedings shall be
conducted in the English language. The arbitration award shall be final
and binding upon the parties.
16.9 Counterparts
This Agreement may be executed in several counterparts, each of which
shall constitute an original, but all of which taken together shall
constitute one and the same instrument.
16.10 Headings
The headings in this Agreement are for reference purposes only, do not
constitute a part of this Agreement and shall not affect its meaning or
interpretation.
16.11 Confidentiality
Each of the parties hereto agrees not to disclose the terms and
conditions of this Agreement to any third party (except as required by
law) without the prior written consent of the other party.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in duplicate
by their duly authorized representatives.
/s/ Xxxxx Xxxx /s/ Xxxx X. Xxxxxxx
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Select Sport A/S Varsity Spirit Fashions & Supplies, Inc.
