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EXHIBIT 6.9
TRADEMARK LICENSE
1. PARTIES.
1.1 RELAX THE BACK FRANCHISING CO., a Texas corporation, is the
licenser and is called 'RTB' in this Agreement. 'RTB' includes
RTB and its successors.
1.2 NEUTRAL POSTURE ERGONOMICS, INC., a Texas corporation, is the
licensee and is called 'NPE' in this Agreement. 'NPE' includes
NPE and its successors.
2. TRADEMARKS IDENTIFIED. The following trademarks are the subjects of this
Agreement and are collectively referenced as 'the Licensed Marks'.
2.1 RELAX THE BACK. This mark has been registered with the United
States Patent and Trademark Office in typed form in registration
number 1714372.
2.2 RELAX THE BACK DESIGN. This mark is the design pictured below
and has been registered with the United States Patent and
Trademark Office as a logotype in Registration number 1763540.
[RELAX THE BACK LOGO]
3. GRANT. RTB grants NPE the exclusive worldwide right to manufacture
ergonomic office seating which bears the Licensed Marks with the
following restrictions and reservation:
3.1 'MARKED GOODS.' The marks may only be used on products specified
by RTB. Such products are called 'Marked Goods' in this
Agreement. NPE agrees to only sell marked goods to authorized
RTB stores.
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3.2 RTB INSPECTION. RTB will inspect all Marked Goods as necessary
to assure their quality and to maintain its rights in the
Licensed Marks.
3.3 RESERVATION. RTB retains all other rights in the Licensed Marks.
4. WARRANTY CONCERNING GRANT. RTB warrants that it has the full and
exclusive right to grant this license and that it is not under any
obligation which is inconsistent with this license.
5. LICENSE FEES.
5.1 NET REVENUES. For purposes of calculating License Fees, 'net
revenue' means gross receipts less deductions for trade
discounts, returns, freight, taxes and government tariffs. For
License Fees purposes, gross receipts from transactions which
are not made at arm's length shall be assigned the value they
would have had in similar commercial sales made at arm's length.
5.2 LICENSE FEE RATE. NPE shall pay to RTB 2% of net revenues from
sales of Marked Goods.
6. LICENSE FEES.
6.1 WHEN PAYMENTS ARE DUE. Payments shall be made on the 5th and
20th of each month. Payments shall be made to RTB, in Austin,
Texas, not later than seven days after the last day of the week
in which they accrue. Payment obligations accrue only on funds
actually received by NPE.
6.2 REPORTS. With each payment, NPE shall provide information
sufficient to allow RTB to calculate the License Fees due that
week. This information shall include, at a minimum, sales
receipts, deductions permitted under this Agreement and License
Fees due.
6.3 INTEREST CHARGES. Overdue License Fee payments shall bear
interest at the prime rate quoted by the Wall Street Journal
plus 4%.
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6.4 ANNUAL REPORTS. NPE agrees to keep adequate and complete records
showing the sale of Marked Goods and to annually prepare and
submit to RTB a report of the same in form satisfactory to RTB.
Such records shall include all information necessary to verify
the total amount and computation of License Fees due and paid
hereunder, and shall be open to inspection by RTB upon
reasonable notice during NPE's regular business hours, as RTB
deems appropriate to confirm such data.
In the event of any dispute between the parties regarding the
payment or computation of License Fees, NPE, shall, upon
request, produce to RTB such audited and unaudited records as
may reasonably be necessary to verify the information, and shall
meet with RTB in a good faith effort to resolve such dispute. In
the event the parties are unable to resolve such dispute, the
parties shall instruct an independent accounting firm as the
parties may agree upon to conduct an audit of the disputed
License Fees. Such audit shall be made with particular reference
to all applicable terms of this Agreement and the determination
so made by such firm as to the correct computation of License
Fees shall be binding on both parties. The cost of such audit
shall be borne equally by both NPE and RTB.
7. TERMINATION OF AGREEMENT.
7.1 Without prejudice to any other rights RTB may have, RTB may
terminate this Agreement, without liability, at any time:
(a) If NPE shall fail to make any payments due hereunder or
to deliver any of the statements required hereunder;
(b) If NPE shall be unable to pay its obligations when due,
or shall make any assignment for the benefit of
creditors, or shall file any petition under Chapter 11
of Title 11, United States Code, or shall file a
voluntary petition in bankruptcy, or be adjudicated
bankrupt
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or insolvent, or if any receiver is appointed for its
business or property, or if any trustee in bankruptcy or
insolvency shall be appointed for NPE;
(c) If the quality of the Marked Goods should become less
than that as established and approved by RTB; or
(d) If NPE shall fail to follow RTB's instructions regarding
appropriate use of the Licensed Marks in connection with
the Marked Goods.
7.2 In the event this Agreement is terminated for any reason stated
above, NPE, its receivers, representatives, trustees, agents,
administrators, successors and/or assigns shall have no right to
and shall not sell, exploit or in any way deal with, or in, any
of the Licensed Marks or Marked Goods which are the subject of
this license, or any carton, container, sign, packaging or
wrapping material, advertising, promotional or display material
pertaining thereto, except with and under the written consent
and instructions of RTB.
In the event of breach by NPE of any provision of this
Agreement, RTB shall give notice in writing to rectify the
breach within forty-five (45) days and if the breach is not
rectified within such period, RTB shall be entitled to exercise
any remedies it may have hereunder, provided that if such breach
is capable of being rectified within the said forty-five (45)
days, RTB shall delay taking action so long as NPE shall have
begun to rectify such breach within such period and thereafter
proceeds diligently to complete the rectification of the
breach and such breach is rectified within a reasonable period
thereafter.
This Agreement may be terminated by either party upon ninety
(90) days written notice to the other party. Termination may be
with or without cause or reason. No action will lie for
capricious termination.
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7.3 LICENSE FEES. All accrued obligations and claims, including
obligations and claims or causes of action for breach of this
Agreement, shall survive termination of this Agreement.
Obligations of confidentiality shall survive termination of this
Agreement. This section controls in the case of a conflict with
any other section of this Agreement.
8. CONFIDENTIALITY. The terms of this Agreement shall be confidential. To
maintain the secrecy of the terms, the parties shall employ those
measures which a prudent business person would take to protect valuable,
secret, proprietary information. The parties may by mutual agreement
relax this requirement of confidentiality to any extent deemed
desirable.
9. QUALITY CONTROL.
(a) NPE warrants that all Marked Goods bearing the Licensed Marks
shall be of a nature that shall be consistent with the quality
standards established and required by RTB. NPE shall comply with
any quality standards that RTB may set forth from time to time
with regard to the Marked Goods. The initial quality standard
for each of the Marked Goods shall be that currently maintained
by NPE. NPE shall not add a new product or service or change the
quality of any existing product or service, unless RTB first
agrees in writing to such product, service or quality change.
(b) NPE shall furnish or make available to RTB a reasonable number
of representative samples of the Marked Goods to permit RTB to
determine that such Marked Goods meet the quality standards set
forth herein. The costs associated with the submission and
testing of such samples shall be borne by NPE. RTB shall have
the right to inspect NPE's places of business (during normal
business hours) to assure compliance with the quality standards
established by RTB. If so notified in writing by RTB, NPE shall
not offer or provide any
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products or services whose nature or quality does not comply
with the quality standards established by RTB.
(c) NPE shall comply with such standards and instructions as RTB may
establish from time to time with respect to the style,
appearance and manner of use of the Licensed Marks. Upon the
request of RTB, copies or accurate reproductions of all
materials displaying the Licensed Marks such as labels,
advertising and promotional materials, letterhead, business
cards, signs and the like, shall be provided to RTB for review
as to form and content. In accordance with RTB's instructions,
NPE shall cease or modify any use of the Licensed Marks that RTB
deems not to be in compliance with the applicable standards or
instructions.
GOODWILL
(a) NPE recognizes the great value of the goodwill associated with
the Marks and acknowledges that the Marks and all the rights
therein, and goodwill attached thereto, insure to, benefit and
belong exclusively to RTB. NPE shall at all times recognize the
validity of the Licensed Marks and RTB's rights and title
therein. NPE shall not, during the term of this Agreement or
thereafter, attach, impair or put in issue the title or any
rights of RTB in and to the Licensed Marks or attach the
validity of the license granted herein.
(b) The parties understand and agree that RTB's primary objective in
entering into this Agreement is the further protection and
enhancement of its uniquely valuable trademarks and service
marks. Accordingly, the parties agree that it would be the
result of a mutual mistake of fact if any activity permitted or
contemplated hereunder threatened to injure or diminish the
image or reputation of RTB or any of its trademarks, service
marks; and NPE covenants and agrees that, notwithstanding any
other provision of this Agreement, it will
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never take or continue any action which it knows or has reason
to know would result in or cause a boycott of any product or
service bearing RTB's trademarks, or threaten to injure or
diminish the image or reputation of RTB or any of its marks or
products or services (such as boycott, threatened injury, and
diminishment hereafter referred to as "Injury to RTB"). In the
event any action taken or continued by NPE results, or threatens
to result, in Injury to RTB, NPE agrees promptly to take all
steps necessary to avoid or stop the occurrence of such Injury
to RTB.
PROTECTION OF RIGHTS
(a) NPE Agrees to assist RTB, at RTB's sole expense, in the
protection and defense of any of RTB's rights in the Licensed
Marks, in the filing and prosecution of any trademark
application, renewals, and the like, in the recording of this
Agreement or an other relevant agreements, and in the doing of
any other acts with respect to the Licensed Marks, including the
prevention of the use thereof by any unauthorized persons, and
that in the judgment of RTB may be necessary or desirable under
any law, regulation or decree of the United States.
(b) NPE shall notify RTB promptly in writing of any infringements or
imitations by others of the marks which come to NPE's attention
and RTB shall have the sole right to determine whether or not
any action shall be taken on account of any such infringements
or imitations. If RTB so desires it may prosecute any claims or
suits in its own name or join NPE as a party thereto, all at
RTB's expense.
(c) NPE shall not institute any suit or take any action on account
of any actual or alleged infringements or imitations of Marked
Goods, and NPE shall not have any rights against RTB for damages
or other remedy by reason of RTB's failure to prosecute any
alleged infringements or imitations by others of the Marks.
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INDEMNIFICATION
(a) NPE agrees to indemnify and hold harmless RTB from any and all
claims arising from the manufacture, purchase, distribution,
sale or use by NPE of the Licensed Marks or the Marked Goods
under this Agreement. This indemnification shall include but
is not limited to claims of product liability or patent,
copyright, trademark or trade dress infringement or trade
secret misappropriation which are not directly caused by the
Licensed Marks. NPE agrees to give RTB prompt notice of such
claims and NPE has the right and obligation, at its sole
expense, to defend such claims and shall be solely responsible
for satisfying any monetary judgments awarded or any monetary
settlements entered into as a result of such claims. RTB may
at its sole election participate in any such defense at its
own expense. In any event, NPE agrees to keep RTB fully
informed regarding any such claim or cost incurred solely from
the exercise of the license rights granted NPE under this
Agreement.This Indemnity does not include any claims arising
out of the use of the Licensed Marks.
(b) RTB agrees to indemnify and hold harmless NPE and its
subsidiaries companies from any and all claims of patent,
copyright, trademark or trade dress infringement or trade
secret misappropriation directly caused by NPE's use of the
Marks under this Agreement. NPE agrees to give RTB prompt
notice of any such claims and RTB shall have the right and
obligation, at its sole expense, to defend any such claim and
to be solely responsible for satisfying any monetary judgment
awarded or any monetary settlements entered into as a result
of such claims. NPE may at its sole election participate in
any such defense at its own expense. In any event, RTB agrees
to keep NPE fully informed regarding such claims.
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MANUFACTURERS
(a) RTB acknowledges that NPE will obtain Marked Goods from
manufacturers of NPE's own choice, or the performance of
services from independent contractors of NPE's own choice, and
that the Licensed Marks will be applied or affixed to the
Marked Goods by said manufacturers or used in producing the
Marked Goods.
(b) RTB may request and NPE shall provide the identity of each
such manufacturer or independent consultant used by NPE.
(c) NPE shall be fully responsible to RTB for the conduct of those
with whom NPE contracts to insure compliance with this
Agreement.
MARKINGS
Subject to RTB's instructions and approval, NPE shall periodically
inform all persons from whom NPE obtains Marked Goods of the
appropriate trademark and copyright notices to be used in connection
with the advertising, promotion, display and sale of the Marked Goods.
NOTICES
All notices and statements to be given and all payments to be made
pursuant to this Agreement shall be sent by First Class Mail Postage
Prepaid, if to NPE to:
0000 Xxxxx Xxxxx Xxxxxx
Xxxxx, Xxxxx 00000
And if to RTB, to:
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
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NO FRANCHISE OR JOINT VENTURE
Nothing contained herein shall be construed to place the parties in the
relationship of franchiser/franchisee, partners or joint venturers, it being
agreed and understood as well that each party is an independent contractor and
is not an agent or employee of the other party.
ASSIGNMENT
This License may be assigned or sublicensed, in whole or in part, upon the
mutual written consent of the parties. RTB reserves the right to approve or
disapprove of any proposed sublicense and/or to impose additional conditions
upon sublicenses regarding control and use of the Licensed Marks.
10. DISPUTE RESOLUTION. Any controversy or claim arising out of or
relating to this Agreement shall be submitted to non-binding mediation
under the Commercial Mediation Rules of the American Arbitration
Association. If such mediation fails to resolve a controversy or
claim, the controversy or claim may be submitted to binding
arbitration under the Commercial Arbitration Rules of the American
Arbitration Association if both parties agree. Judgment upon the award
rendered by the arbitrator(s) may be entered by any Court having
jurisdiction. The arbitrator, and not a court of law, shall have the
exclusive power to construe this arbitration provision so as to
determine the existence and scope of the arbitrator's jurisdiction.
The prevailing party in a dispute under this paragraph is entitled to
reasonable attorney's fees and costs in addition to any other relief
to which that party may be entitled. Any mediation or arbitration
hereunder shall be conducted in Austin, Texas.
11. MODIFICATION AND WAIVER. This Agreement may be modified only by a
written document signed by RTB and NPE. All waivers of provisions of
this Agreement must be in writing and signed by the party making the
waiver.
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12. INTERPRETATION AND SEVERABILITY. This Agreement shall be interpreted
under the laws of the State of Texas. If a part of this Agreement
violates law, it shall be narrowed by interpretation to the minimum
extent necessary to avoid the illegality and shall be given effect as
fully and broadly as permitted by law. The invalidity,
unenforceability or waiver of part of this Agreement shall not affect
the balance of the Agreement, and specifically shall not vitiate its
arbitration provisions.
13. THIS ENTIRE AGREEMENT. This Agreement contains the entire
understanding of the parties with respect to the Licensed Marks. It
supersedes all other written and oral agreements between the parties
with respect to this subject matter.
14. FORCE MAJEURE. Each party shall be excused from any breach of this
Agreement which is proximately caused by government regulation, war,
strike, act of God or other similar circumstance normally deemed
outside the control of well-managed business.
15. READINGS. Headings which appear in BOLDFACE type are solely for
convenience of reference. Such heading is not part of this Agreement
and shall not be used to construe it.
CONTRACT DATE: January 12, 1997
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RELAX THE BACK FRANCHISING CO. NEUTRAL POSTURE ERGONOMICS, INC.
by /s/ XXXX XXXXXXX by /s/ XXXXXXX XXXXXXX
-------------------------------- -------------------------------
Name: Xxxx XxXxxxx Xxxxxxx Xxxxxxx
Title: Corporate Purchasing Chief Executive Officer
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