Exhibit 10.5
MOSSY OAK
BRAND CAMO
MANUFACTURERS AGREEMENT
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COPYRIGHT AND TRADEMARK
This is an agreement entered into effective may 30, 2003, by and between
Xxxx Ourdoors, Inc. X.X. Xxxxxx 000, Xxxx Xxxxx, Xxxxxxxxxxx 00000 (hereinafter
"Xxxx") and Innovative Designs, Inc. d/b/a idi gear, 000 Xxxxxx Xxxxxx,
Xxxxxxxxxx, XX 00000, (hereinafter "Licensee"), in which the parties agree as
follows:
ARTICLE I - BACKGROUND
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1.1 Xxxx has created, developed and marketed and continues to create,
develop and market camouflage patterns useful in a variety of fields relating to
hunting, camping, military operations, sports, general apparel and novelty
items.
1.2 Xxxx owns copyright, trademark and proprietary rights related to
certain camouflage patterns and designs and intend to obtain further copyright,
trademark and proprietary rights in future camouflage patterns it creates,
develops and markets.
1.3 Xxxx is the sole owner and has authority to grant non-exclusive
licenses under one or more of its copyright, trademark and proprietary rights.
1.4 Xxxx and Licensee wish to enter into a license agreement under which
Licensee can market certain products that include camouflage designs owned by
Xxxx.
ARTICLE II - DEFINITIONS
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2.1 Licensed Design shall mean the camouflage pattern(s) known as the Mossy
Oak(R)Break-Up(R)and/or New Break-Up(R)patterns and covered by Xxxx' copyrights
including but not limited to U.S. Copyright Registration No. 2,227,642.
2.2 Licensed Trademark shall mean the trademarks Mossy
Oak(R)Break-Up(R)and/or New Break-Up(R).
2.3 Licensed Products shall mean a product which bears or otherwise
includes a Licensed Design and is further restricted to mean only the following
type of products: See Schedule A
2.4 Licensed Field shall mean the marketing of Licensed Products in the
following channels of trade: Wholesale.
2.5 Licensed Territory shall mean the following geographical area: North
America.
ARTICLE III - GRANT
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3.1 Subject to the terms and conditions of this agreement, Xxxx hereby
grants to Licensee and Licensee accepts a non-exclusive license in the Licensed
Field and Licensed Territory to manufacture, or sell products, or to have
manufactured for it, and to sell Licensed Products.
3.2 Subject to the terms and conditions of this agreement, Xxxx also hereby
grants to Licensee and Licensee accepts a non-exclusive license in the Licensed
Field and Licensed Territory to use the Licensed Trademark in association with
the marketing and sale of Licensed Products.
3.3 Licensee acknowledges and agrees that the above granted license is
expressly and solely limited to the marketing and sale of Licensed Products in
the Licensed Field and Licensed Territory and that any use of the Licensed
Designs or Licensed Trademarks on other products or in other field territories
would infringe upon Xxxx' rights.
3.4 Licensee further acknowledges and agrees that the license granted
hereunder is non-exclusive and nothing herein shall prevent Xxxx from granting
licenses to others.
3.5 Licensee further acknowledges and agrees that it has no right to
sublicense others to use the Licensed Design or the Licensed Trademarks.
3.6 Licensee further acknowledges that all fabrics and/or any means of
applying patterns to objects will be obtained only from authorized vendors.
ARTICLE IV - ROYALTY PAYMENTS
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4.1 Licensee shall pay Xxxx a one time licensing fee of $250.00. This fee
shall be paid on the signing of this agreement.
4.2 Licensee shall pay to Xxxx for each Licensed Product sold by Licensee a
running royalty of: Royalty included in the price of fabrics purchased from
licensed vendors.
ARTICLE V - TERMS
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5.1 The term of this agreement is for 2 year(s) from the effective date
indicated above unless either of both parties notify the other of intent to
terminate pursuant to Article 8.1.
ARTICLE VI - QUALITY
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6.1 Licensee covenants and agrees that the Authorized Products shall meet
acceptable industry standards in the Licensed Field and shall be the same or
equivalent quality of those goods currently marketed and sold to the general
public by Licensee. In order that the standard of quality of goods licensed
hereby are maintained, Xxxx may request, but not more than twice in any quarter
of any calendar year, samples of Licensed Products manufactured by and/or for
Licensee pursuant to this agreement for Xxxx' inspection and reasonable
approval. Should Xxxx xxxx the quality of the Licensed Products to fall below
the above standard, then Xxxx shall so inform Licensee in writing of the
applicable defect or defects. Should Licensee fail in a reasonable or timely
manner, which prima facie shall be deemed thirty (30) days, to provide notice to
Xxxx of the remedy of such defects, Xxxx shall have the right to cancel this
agreement, provided, however, that if the defect is of such nature that it
cannot be corrected or remedied within such thirty (30) day period, which in no
case shall be extended for a period to exceed ninety (90) days in total.
6.2 If Licensee uses the Licensed Trademark in association with the
marketing and sale of Licensed Products, Licensee covenants and agrees that its
use of the marks shall comply with industry standards and the applicable
trademark law. In order to ensure that the above standards are maintained, Xxxx
may request, but not more than twice in any quarter of any calendar year samples
of all Licensed Products, packages of Licensed Products, advertisements or
similar material which include the Licensed Trademarks for Xxxx' inspection and
reasonable approval. Should Xxxx xxxx the quality of the Licensed Product to
fall below the above standard, then Xxxx shall so inform Licensee in writing of
the applicable defect of defects. Should Licensee fail in a reasonable or timely
manner, which prima facie shall be deemed thirty (30) days, to provide notice to
Xxxx of the remedy of such defects, Xxxx shall have the right to cancel this
agreement, provided, however, that if the defect is of such nature that it
cannot by corrected or remedied within such thirty (30) day period, then this
agreement shall no be canceled so long as Licensee diligently proceeds to cure
or remedy said defect beyond said thirty (30) day period, which in no case shall
be extended for a period to exceed (90) days in total.
ARTICLE VII - MARKING
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7.1 Licensee shall place on the Licensed Products in a manner prescribed by
the copyright laws, a sufficient copyright notice. Unless otherwise indicated,
such notice shall include the copyright notice(R), the year of publication, and
an identification of Xxxx Outdoors as the owner. Xxxx shall have the right to
designate to Licensee the particular copyright notice to be used on one or all
Licensed Products. To the extent that Xxxx does so designate that a particular
copyright notice be used, the Licensee shall use that particular notice.
7.2 Licensee covenants and agrees that in all instances where Xxxx so
desires, Licensee will include on Licensed Products the Authorized Trademark
associated with the Authorized Design and shall also include, when requested, an
appropriate trademark such as "TM" or(R).
7.3 In order to ensure that Licensee is complying with the requirements of
paragraphs 7.1 and 7.2, Xxxx may request, but not more than twice in any quarter
of any calendar year, samples of Licensed Products or other materials which
contain or should contain the above markings.
ARTICLE VIII - TERMINATION
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8.1 After one hundred and eighty days either party may terminate this
agreement by giving the other at least ninety (90) days notice in writing of the
intention to so terminate.
8.2 This agreement may be terminated by either party for a material breach
by the other party of the provisions, hereof. Such termination shall be
effective thirty (30) days after written notice to the other party of the
breach, unless the material breach is remedied within that period.
8.3 Xxxx may terminate this agreement in the event that Licensee is
delinquent in a royalty payment due thereunder, provided, however, that if such
delinquency is remedied within thirty (30) days after Xxxx provides notice of
such delinquency, the agreement shall not be terminated.
8.4 Xxxx may unilaterally and immediately terminate this agreement in the
event that Licensee becomes insolvent, admits its inability to pay its
obligations as they become due, makes an assignment for the benefits of
creditors, files a voluntary petition in bankruptcy, or be adjudicated a
bankrupt, or should a receiver or trustee be appointed to take possession of a
substantial part of the assets of Licensee, or should a moratorium interruption
in the payment of bills by Licensee be ordered by a court or agency with
competent jurisdiction.
8.5 In the event of termination of this agreement, Licensee shall have the
right to complete all contracts for the sale of Licensed Products under which
Licensee is obligated on the date of termination, provided Licensee pays
royalties on such sales as required in Article 4.2 hereof and provided all such
sales are completed within six (6) months after the date of termination.
8.6 Subject to the exceptions set forth in paragraph 8.5 above, upon
termination of this agreement Licensee shall discontinue to manufacture or have
manufactured Licensed Products and shall discontinue and not use in the future
the Licensed Designs and Licensed Trademarks.
8.7 Xxxx may terminate this agreement in the event that total yardage of
fabric purchased by Licensee incorporating Licensed Design for any full year of
the term of this agreement shall be less than One Thousand (1,000) yards.
Royalties are included in the price of fabrics purchased from licensed
converters.
8.8 The proposal for license between Xxxx and Licensee will be for 60 days
from the date that the agreement is received by Licensee. If the contract is not
executed within the 60 day limit it will be considered null and void unless an
extension is agreed by both parties in writing.
ARTICLE IX - PROPRIETARY INTEREST
---------------------------------
9.1 It is agreed and understood by the parties that6 nothing in this
agreement shall confer upon Licensee any proprietary interest in the Licensed
Designs, the Licensed Trademarks, or any other copyright, trademark and patent
rights owned by Xxxx.
9.2 Licensee acknowledges and agrees that Xxxx is the owner of the Licensed
Designs and Licensed Trademarks and that Licensee will not contest the validity
or enforceability of the Licensed Trademarks or Xxxx' copyrights in the Licensed
Designs.
9.3 Any use of the Licensed Trademarks by Licensee shall inure solely to
the benefits of Xxxx.
ARTICLE X - BEST EFFORTS
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10.1 Licensee shall use its best efforts to sell, to promote the sale of,
to generate demand for and to maintain ample capacity to supply demand for
Licensed Products in the Licensed Field and Licensed Territory.
ARTICLE XI - MISCELLANEOUS
11.1 This agreement is personal to the parties and shall not be assigned by
either party without the prior written consent of the other, except that it is
assignable to the successor in interest to the entire business of any such
party.
11.2 All notices required under this agreement shall be in writing and
shall for all purposes deemed to be given and received if sent by certified or
registered mail, postage prepaid, to the respective parties at the following
addresses:
Xxxx Outdoors, Inc. Innovative Designs, Inc. d/b/a idi gear
X.X. Xxxxxx 000 000 Xxxxxx Xxxxxx
Xxxx Xxxxx, XX 00000 Xxxxxxxxxx, XX 00000
Either party may change its address herein by written notice to the other party.
11.3 A party's failure to perform hereunder shall not be a breach hereof if
such failure is caused by conditions beyond its control, provided however, that
such a party shall notify the other party in writing thirty (30) days of
commencement of such condition. Nevertheless, Xxxx may terminate this agreement
on thirty (30) days advance written notice if any such failure to perform by
Licensee continues for six (6) months.
11.4 This is the entire agreement between the parties and supersedes all
previous agreements, understandings, representations or warranties between the
parties relating to the subject matter hereof. No amendment, alteration or
waiver of any provision of this agreement shall be effective unless in writing
signed by authorized representatives of both parties.
11.5 If any provision of this agreement is determined to be invalid or
unenforceable by a court of competent jurisdiction, it shall be deleted from the
agreement, but the remaining provisions shall not be affected or impaired
thereby.
11.6 This agreement shall be construed in accordance with the laws of the
State of Mississippi.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be
executed by their authorized representatives.
Date: 6-24-03 Xxxx Outdoors, Inc.
By: /s/ Xxxxxx Xxxxxx
Xxxxxx Xxxxxx, Executive Vice President
Licensing & Sales
Date: 6-16-03 Innovative Designs, Inc. d/b/a idi gear
By: /s/ Xxxxxx Xxxxxxxx
Xxxxxx Xxxxxxxx (Name)
CEO (Title)
Account Representative: Xxx Xxxxxxxxxx
SCHEDULE A
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INNOVATIVE DESIGNS, INC. d/b/s idi gear
Product Fabric Distribution Pattern Royalties
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All-in-One Rip stop nylon Xxxxxx Wholesale BU, NBU Included in Fabrics
----------------- -------------- ------ ------------ ------- -------------------
All in One
Accessory" seat
cushion w/pillow,
thermal rain
parka, sleeping
bag, flotation
raft, comforter
and picnic blanket
----------------- -------------- ------ ------------ ------- -------------------
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Patterns: Registration No. Trademark Registration No. Code
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Original BreakUp(R) VAU 429-017 2109659 XX
Xxx Xxxxx Xx(X) XXX 000-000 76/374042 NBU
Mossy Oak(R) XXX 00-000 2,227,642; 2003245 MO
PLEASE NOTE: Your company is licensed to manufacture only the products set forth
in this Schedule A. Any delineation from this Schedule A will be a breach of the
agreement and your agreement will be subject to termination.
