Exhibit 10.2
HAWAII MILLENNIUM COMMISSION
NONEXCLUSIVE LICENSE AGREEMENT
THIS AGREEMENT ("Agreement"), by and between the HAWAII
MILLENNIUM COMMISSION, a temporary commission established by Executive Order No.
99-01 on March 5, 1999, whose principal place of business is located at 0000 Xxx
Xxxxx Xxxxxxxxx, Xxx 00, Xxxxxxxx, Xxxxxx 00000, hereinafter referred to as the
"Commission" or "Licensor", and The Pathways Group, Inc., a corporation
organized under the laws of the State of Hawaii, whose principal place of
business is located at Grosvenor Center, 2500 Makai Tower, 000 Xxxxxx Xxxxxx,
Xxxxxxxx, Xxxxxx 00000, hereinafter referred to as the "Licensee",
RECITALS
WHEREAS, the objective of Licensor is to attract visitors to
the State of Hawaii which includes former island residents, former visitors and
new visitors; and
WHEREAS, the Licensor is the owner of all rights, title and
interest in and to certain designations comprising designs, trade names,
trademarks, logotypes, and certain logographics and/or symbols (collectively
"Indicia"), as are set forth on Exhibit "B" attached hereto and incorporated
herein by this reference; and
WHEREAS, the Licensor has exercised its rights of ownership
with respect to its Indicia in the United States through Federal and/or State
registration or use and Licensee recognizes and affirms the Licensor's rights of
ownership to said Indicia; and
WHEREAS, the Licensee desires a license to use the Indicia in
the geographic areas specified below, and Licensor is willing, subject to the
conditions specified below, to grant such a non-exclusive license;
NOW, THEREFORE, in consideration of the mutual promises and
covenants contained herein, the parties agree to the terms set forth as follows:
A. EFFECTIVE DATE: The effective date of this Agreement
shall be July 20, 1999.
B. TERM: This Agreement shall remain in full force and
effect from the effective date stated herein, through
January 31, 2001, unless terminated by either party as
provided for in Exhibit "A" attached hereto.
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C. ROYALTY PAYMENT AND FEES: In consideration of this
nonexclusive license agreement, Licensee agrees to
fulfill all of the terms and conditions contained in
that Website Development Agreement attached hereto as
Exhibit "D".
D. NOTICE: All notices and other communications shall be
given in writing to the other party at their respective
addresses noted hereunder, or such other address as may
be designated from time to time during the term of this
Agreement;
LICENSOR:
HAWAII MILLENNIUM COMMISSION
0000 Xxx Xxxxx Xxxxxxxxx
Xxx 00
Xxxxxxxx, Xxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
LICENSEE:
The Pathways Group, Inc.
Hawaii Xxxxxx
Xxxxxxxxx Xxxxxx
Xxxxx 0000, Xxxxx Xxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
E. TERMS AND CONDITIONS: The terms and conditions attached
hereto as Exhibit "A" are incorporated herein and made a
part hereof by reference.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized representatives on the day and year written
hereunder.
LICENSOR:
HAWAII MILLENNIUM COMMISSION
By: _______________________________
Title: ____________________________
Date: _____________________________
LICENSEE:
THE PATHWAYS GROUP, INC.
By: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
Date: 7/16/1999
CITY AND COUNTY OF HONOLULU )
) SS:
STATE OF HAWAII )
On this ___ day of __________, 19__, before me appeared
___________________ of ______________________, to me personally known, who,
being by me duly sworn, did say that he/she is the person described in and who
executed the foregoing instrument, and acknowledged that he/she executed the
same as his/her free act and deed, and further declares that he/she is the
___________________ of said Corporation, and has the authority to bind the
Corporation herein.
Notary Public
My commission expires:___________
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EXHIBIT "A"
TERMS AND CONDITIONS
1. DEFINITIONS
1.1 "Indicia" means the names, symbols, designs, colors, trade
names, trademarks, abbreviations, slogans, seals, logotypes,
logographics and/or symbols set forth on Exhibit "B" attached
hereto and shall include the term "Official Hawaii Millennium
Smart Card".
1.2 "Licensed product" means the article of merchandise listed in
Exhibit "C", attached hereto, bearing one or more Indicia.
2. GRANT OF LICENSE
2.1 Non-exclusive license. Subject to the terms and conditions of
this Agreement, Licensor hereby grants to Licensee a
non-exclusive license to use the Indicia on and in conjunction
with the marketing, promotion, and sale of the licensed
product in the State of Hawaii.
2.2 Extent of license - no right to sublicense. Licensee shall
have no right to sublicense others to use the Indicia.
2.3 Limitations of license - not a promotional license. Licensee
may not use Indicia in connection with premiums, for publicity
purpose, for fundraising, as giveaways in combination with
sales or to be disposed of under similar methods of
merchandising, absent express written approval by Licensor.
Licensee may not use any Indicia in connection with any
sweepstakes, lottery, game of chance, or similar promotional
or sales device, scheme or program.
3. TERM OF AGREEMENT
3.1 This agreement shall remain in full force and effect from the
effective date and for the term specified on the first page of
this Agreement, unless terminated by either party as provided
in paragraph 9 herein prior to the expiration of the term of
this Agreement. Upon such expiration or termination, all
rights granted to Licensee herein shall cease.
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4. PRODUCT QUALITY AND APPROVALS
4.1 Quality standards. Licensee agrees that it is essential to
protect the reputation of the Licensor and that all goods
sold, promoted or advertised which incorporate the Indicia
shall be of high and consistent quality, in full conformance
with all applicable federal, state and county laws and
regulations. Licensee also agrees that it is essential to
protect the good will associated with the Indicia licensed to
Licensee hereunder. Licensee therefore agrees that any use of
Indicia by Licensee shall be accomplished in such a manner as
to protect the good will associated with the Indicia and not
in a manner that would at any time place the Indicia, the
Commission or the State of Hawaii in a negative light.
Licensee may be required to furnish documentation stating that
the product to be licensed meets the United States
government's standards for testing of said product.
4.2 Written approval required. Licensee may not manufacture, sell,
promote or distribute any licensed product until it has
received written approval from the Licensor of the same, in
the manner provided herein. Such approval may be granted,
withdrawn or withheld as the Licensor, in its sole discretion,
may determine.
4.3 Sample requirements and approval procedure. Prior to the
production, sale, promotion or distribution of any product,
Licensee shall submit to Licensor, AT LICENSEE'S EXPENSE, one
sample of the product together with all tags, labels, cartons
and containers, including packing and wrapping material, as it
would produce for sale or distribution. The sample is for the
Licensor's records and is not returnable. Samples may be
furnished as follows:
(a) Specification sheet, concept, layout and description
of proposed product showing how Indicia and other
artwork and wording will be used; AND
(b) Quality sample (blank product and sketches with PMS
colors specified) or colored renderings of proposed
artwork; OR
(c) Actual finished sample.
The Licensor shall have fourteen (14) days from the receipt of
a sample within which to approve or disapprove the product. If
the Licensor fails to approve the product within fourteen (14)
days from the receipt
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thereof, the product shall be deemed to be disapproved. Only
products manufactured in strict conformity with the submitted
sample shall be accepted hereunder.
4.4 Modification of previously approved product. Licensee agrees
that any proposed change to a licensed product involving any
alteration in structure, design or quality of the product
shall be submitted for written approval prior to any use,
sale, or other distribution to the public. Licensee agrees to
withhold any use, sale or other distribution of such licensed
product until approved in writing by the Licensor.
4.5 Defective products. In the event that the quality standards
hereinabove referred to are not met or are not maintained
throughout the period of manufacture, sale, promotion or
distribution of any licensed product, or a licensed product is
deemed by the Licensor to be a safety, health or other hazard
or risk to the public, and Licensor notifies Licensee of any
defect in any product or of any deviation from the approved
use of any of the Indicia; upon notification, Licensee shall
immediately cease production of said product and shall have
forty-eight (48) hours to remove said product from public sale
and distribution. Defective products in Licensee's inventory
shall not be sold under or in association with any of the
Indicia; however, if it is possible to correct all defects or
deviations in the products, such products may be sold. If it
is not possible to correct the defects, or Licensee chooses
not to correct all defects in the products in Licensee's
inventory, Licensee shall remove all of the Indicia which are
used on the defective products. If Licensee succeeds in
removing all of the Indicia, Licensee may dispose of such
products as it chooses so long as there is no association of
those products with the Licensor.
4.6 Inspection of licensee's premises. To assure that the
provisions of this Agreement are being observed, the Licensee
agrees that it will allow the Licensor or its designee, upon
24 hours notice, to enter the Licensee's premise and the
premise where the licensed products are being manufactured
during regular business hours for the purpose of inspecting
the licensed products.
5. TRADEMARK USE AND OWNERSHIP
5.1 Proper use of Indicia. Licensee agrees that it will use the
Indicia only in the prescribed form and manner, without
alteration, modification or dilution, and consistent with all
State and Federal laws. Licensee shall cause to appear on or
within each licensed product (by means of a tag, label,
imprint or other appropriate device), such copyright,
trademark, service xxxx or other designation which Licensor
may designate. Licensee shall use no other markings in
association with the licensed product other those specified by
the Licensor, without first obtaining the Licensor's prior
written approval. Licensee agrees to submit to Licensor copies
of any advertisement or promotional materials containing the
licensed product for Licensor's approval prior to any use
thereof.
5.2 Acknowledgment of licensor's ownership. Licensee acknowledges
Licensor's ownership of the Indicia. Licensee agrees that it
will not do anything inconsistent with such ownership, and
that use of the Indicia by Licensee shall inure to the benefit
of Licensor. Licensee agrees that it will not, during the term
of the license herein or thereafter, challenge the rights of
Licensor to its Indicia.
Licensee agrees that it shall not apply for registration,
copyright or otherwise seek to obtain ownership of the Indicia
in any country. Licensee shall provide, at reasonable cost to
be borne by Licensor, any evidence, documents and testimony
concerning the use by Licensee of any one or more of the
Indicia, which Licensor may request for use in obtaining or
defending the registration of any Indicia.
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5.3. Indicia usage not endorsement or sponsorship. Licensee agrees
that it will neither state nor imply either directly or
indirectly that the Licensee or the Licensee's activities are
supported, endorsed, or sponsored by the Licensor and upon the
direction of the Licensor, shall issue express disclaimers to
that effect.
5.4 Goodwill in Indicia. License recognizes the goodwill
associated with the Indicia and acknowledges that said
goodwill belongs to the Licensor.
6. TERMINATION OF AGREEMENT
6.1 Termination upon 30 days notice. This Agreement may be
terminated by EITHER party without cause upon thirty (30) days
written notice to the other party.
6.2 Termination for cause. Without prejudice to any other right,
the Licensor shall have the right to terminate this agreement
with less than thirty (30) days written notice in the event
that:
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(a) Licensee materially breaches any of the conditions or
provisions of this Agreement;
(b) Licensee shall not have begun a bona fide
manufacturing, distribution and sales operation of
said licensed product within three (3) months from
the date of this Agreement;
(c) Licensee shall fail to manufacture, distribute or
sell such licensed product for a period of three (3)
consecutive months;
(d) Licensee files a petition in bankruptcy or is
adjudicated as bankrupt or insolvent, or makes
assignment for the benefit of creditors, or an
arrangement pursuant to any bankruptcy law, or if the
Licensee discontinues its business or if a receiver
is appointed for the Licensee for the Licensee's
business;
(e) Licensee becomes subject to any voluntary or
involuntary order of any governmental agency
involving the recall of any of the licensed products
and/or promotional and packaging material because of
safety, health or other hazards or risks to the
public.
Licensor shall give ten (10) days written notice to the
Licensee of the basis for such termination. The license and
the rights granted under this Agreement shall terminate ten
(10) days after mailing of such written notice unless such
default is cured within the ten (10) day period.
In the event that any product is produced, sold or distributed
prior to its approval, Licensor reserves the right upon
notification of the Licensee to demand that Licensee
immediately cease production of said product and remove all
such product from public sale and distribution within
forty-eight (48) hours of such notification. If said product
is not removed from public sale and distribution within
forty-eight (48) hours of notification, Licensor shall have
the option to immediately terminate this Agreement.
6.3 Material breach. A material breach shall include but not be
limited to the following:
(a) Licensee's use of Indicia in a manner which is
contrary to the provisions of this Agreement;
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(b) Licensee's manufacturing, sale, promotion,
distribution and/or use of any licensed product that:
(1) fails to meet quality standards set forth
herein;
(2) has not been granted the Licensor's written
approval;
(c) Licensee's refusing or neglecting a request by
Licensor for sample products or other product
specifications, or access to the premises of
Licensee;
(d) Licensee's actions which jeopardize the Licensor's
ownership of its Indicia or the goodwill associated
with such Indicia.
7. POST-TERMINATION AND EXPIRATION RIGHTS AND OBLIGATIONS
7.1 No right to manufacture, sell, promote or distribute licensed
product. If this agreement is terminated pursuant to
paragraphs 6.1 or 6.2, the Licensee and its receivers,
representatives, trustees, agents, administrators, successors
of permitted assigns of the Licensee shall have no further
right to manufacture, sell, promote, or distribute licensed
product.
7.3 Post-termination or expiration procedures. After the
expiration or termination of this Agreement, all rights
granted to the Licensee shall revert to the Licensor and the
Licensee shall immediately refrain from further use of the
Indicia or any further reference to them, either directly or
indirectly, in connection with the manufacture, sale,
promotion or distribution of the Licensee's products. The
Licensee agrees to immediately discontinue the manufacture of
all licensed products and the use of all Indicia.
8. INDEMNIFICATION
8.1 Licensee shall defend, indemnify, and hold harmless Licensor
and the State of Hawaii, their officers, employees and agents
from and against any and all losses and expenses (including
attorneys' fees), claims, suits, or other liability of any
kind, including without limitation product liability, (1)
arising directly or indirectly out of the acts or omissions of
Licensee, its officers, agents or employees, or (2) arising
out of or in connection with the exercise of the license
granted by this Agreement. Licensor shall have no obligation
to indemnify Licensee as a result of activities by Licensee
under this agreement for infringement of any patent,
copyright, or trademark belonging to any third party, or for
damages or costs involved in any proceeding based upon such
infringement, or for any royalty or obligation incurred by
Licensee because of any patent, copyright or trademark held by
a third party.
9. INFRINGEMENT
9.1 Licensee agrees to notify Licensor promptly of any known use
of the Indicia by others not duly authorized by Licensor.
Notification of such infringement shall include all details
known by Licensee that would enable or aid Licensor to
investigate such infringement brought to its attention by
Licensee. However, the Licensor shall have the sole right to
determine whether or not any action shall be taken on account
of any such infringements. Any award to the Licensor for the
payment by a third party of damages or profits by reason of
infringement or unfair competition will be solely for the
benefit of the Licensor. No action shall be taken by the
Licensee in the nature of an assertion of any legal right to
an Indicia subject to this Agreement or for any purpose
whatsoever, without prior written approval of the Licensor.
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10. LIABILITY INSURANCE
10.1 Coverage required. The Licensee shall, throughout the term of
this Agreement procure and maintain at its sole cost and
expense from a qualified licensed insurance company, a general
liability all risks insurance policy. The Licensor and the
State of Hawaii shall be named as additional insureds under
any such policy of insurance. Such policy shall provide
protection against any and all losses and expenses (including
attorneys' fees), claims, suits, or other liability of any
kind, including without limitation product liability, (1)
arising directly or indirectly out of the acts or omissions of
Licensee, its officers, agents or employees, or (2) arising
out of or in connection with the exercise of the license
granted by this Agreement. The amount of coverage shall be
$________________________ for personal injuries arising out of
each occurrence, and coverage thereunder of
$________________________________ for property damage arising
out of each occurrence. The policy shall provide for ten (10)
days notice to the Licensor from the insurer by Registered or
Certified mail, return receipt requested, in the event of any
modification, cancellation or termination. In addition, the
policies shall state that any insurance maintained by the
Licensor will apply in excess of, and not contribute with,
insurance provided by the Licensee's policy.
10.2 Certificate of insurance to be deposited with Licensor.
Licensee shall furnish Licensor a certificate of insurance
with the required endorsement, naming the Licensor and the
State of Hawaii as additional insureds, within thirty (30)
days after the execution of this Agreement, and in no event
shall the Licensee manufacture, sell, promote or distribute
the licensed products prior to receipt by the Licensor of such
evidence of insurance. Licensor shall have the right to
inspect the original policies of such insurance.
10.3 Licensor's right to adjust insurance coverage required. The
Licensor retains the right to adjust the insurance coverage
required on a semi-annual basis if the Licensor deems the
existing coverage to be insufficient to provide adequate
protection to the Licensor and the State of Hawaii. The
Licensor's requirements shall be reasonable, but, shall be
designed to assure protection from and against the kind and
extent of the risks which exist at the time a change in
insurance coverage is required. The Licensor shall notify the
Licensee of any change in the minimum required coverage limits
for such insurance by written notice, at least sixty (60) days
prior to the date of such required change.
11. SERVERABILITY
11.1 In the event that any term or provision of this Agreement
shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegally or
enforceability shall not affect any other term or provision of
this Agreement which shall be interpreted and construed as if
such term or provision, to the extent the term or provision
shall have been held invalid, illegal or unenforceable, had
never been contained.
12. MODIFICATION AND WAIVER
12.1 This Agreement may not be amended, modified, or rescinded
except by a written agreement executed by both the Licensor
and Licensee or as provided herein. It is agreed that no
waiver by either party of any breach or default of any of the
provisions of this Agreement shall be deemed a waiver as to
any subsequent and/or similar breach or default.
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13. ASSIGNABILITY
13.1 This Agreement shall inure to the benefit of the Licensor, its
successors and assigns, but will be personal to Licensee and
shall be assignable by Licensee only with the prior written
consent of the Licensor.
14. NEGATION OF AGENCY
14.1 Licensee is an independent contractor. Nothing contained
herein shall be deemed to create an agency, joint venture, or
partnership relationship between the Licensor and the
Licensee. Licensee shall have no right to obligate or bind
Licensor in any manner whatsoever, and nothing contained in
this Agreement shall give or is intended to give any rights of
any kind to third persons.
15. NOTICES
15.1 Licensor and Licensee shall send all notices and other
communications, in writing, to the other at their respective
addresses noted on the first page of this Agreement, or such
other addresses as may be designated from time to time during
the term of this Agreement.
Any notice of termination or expiration of this Agreement
shall be communicated to the other party at its last address
for which notice was effective, in writing, and sent by
Registered or Certified Mail, postage prepaid, return receipt
requested, and shall be deemed to have been given at the time
such notice is mailed or sent. All other written communication
by either party, except as otherwise specified in this
Agreement, shall be sent by first class mail or by facsimile
and shall be deemed to have been given at the time such notice
is mailed or sent.
16. GOVERNING LAW
16.1 This Agreement shall be construed, interpreted and applied in
accordance with the laws of the State of Hawaii. The parties
hereto consent to the personal jurisdiction and venue of any
court of competent jurisdiction, Federal or State, situated in
the City and County of Honolulu, State of Hawaii, for the
bringing of any action hereunder.
17. AGREEMENT SUBJECT TO APPROVAL
17.1 The terms and conditions of this Agreement are subject to the
approval of the Commission and the Department of the Attorney
General, State of Hawaii. The Commission reserves the right to
amend any provision herein; however, in the event that
material changes are made by said Commission, the Licensee
shall have an option to terminate this agreement as provided
herein.
18. HEADINGS
18.1 The headings used in connection with the paragraphs and
subparagraphs of this Agreement are inserted only for purposes
of reference. Such headings shall not be deemed to govern,
limit, expand, modify or in any other manner affect the scope,
meaning or intent of the provisions of this Agreement or any
part thereof, nor shall such headings otherwise be given any
legal effect.
19. ENTIRE AGREEMENT
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19.1 This Agreement constitutes the entire agreement and understanding
between the parties, both oral and written, and cancels, terminates and
supersedes any prior agreement or understanding between the parties. There are
no representations, promises, agreements, warranties, covenants or undertakings,
written or oral, express or implied, other than those contained herein.
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EXHIBIT "B" - Indicia
MILLENNIUM LOGO
THE OFFICIAL LOGO OF THE HAWAII
MILLENNIUM COMMISION
THE SLOGAN
"Hawaii 2000 - The Xxxx Of The New Millennium."
This theme was considered to be, by far, the strongest of few options and
apparently unique in popular usage.
The year 2000 is not, in fact, the start of the millennium. It is the following
year, 2001. The year 2000 in this context is, therefore, considered
the xxxx of the new millennium.
THE TYPEFACE
Serif Times Roman was selected for its strength, symbolic of the
people of the state of Hawaii
GRAPHIC ELEMENTS
The type, with its earth tones, symbolizes the land of the Hawaiian Islands
anchored in the midst of the Pacific Ocean. Directly above it are eight
rays of light, one for each island, symbolic of the lava that created our
islands, and the power of light that drives our people's past, resent and
future. The climax of the design is the North Star, used
by ancient Polynesian navigators to steer them safely to
the land of aloha. Regardless of how many millenia
we celebrate, the North Star will always
watch over Hawaii.
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EXHIBIT "C" - Licensed Product
1. The Official Hawaii Millennium Smart Card (either individually or in
commemorative sets).
2. The Official Hawaii Millennium Smart Card Network.
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EXHIBIT "D" - Website Development Agreement
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