NAME AND TRADEMARK LICENSE AGREEMENT
Exhibit 10.2
NAME
AND TRADEMARK LICENSE
AGREEMENT
Whereas
the name and trademark that is the subject: of this Agreement
is:
Trademark: XXXXXXX
XXXXXXX INC.
Registration
no: TBD
Registration
Date: TBD
hereinafter
referred to as the "Xxxx";
Whereas
Licensor has adopted, used, is using the Xxxx in conjunction with its goods
and/or services in commerce throughout the United States, and is the owner
of
the Xxxx to be registered in the United States Patent and Trademark Office
and
in the appropriate foreign trademark office(s);
and
Whereas,
Licensee is desirous of using the Xxxx for decorative fabrics and furniture
in
the United States ("Territory");
Now,
therefore, in consideration of the mutual covenants of the parties, the receipt
of which is hereby acknowledged by Licensor, the parties hereby agree as
follows:
1. License.
Licensor grants to Licensee the right to use the Xxxx during the
term
of this
Agreement,
and Licensee hereby undertakes to use the Xxxx in the Territory in connection
with the
manufacture,
sale, and distribution of decorative fabrics and furniture ("Permitted
Products").
2. Quality
of Products. Licensee shall use the Xxxx only with the Permitted
Products
manufactured
by or for Licensee in accordance with the guidance and directions furnished
to
Licensee
by Licensor, or its representatives or agents, from time to time, if any,
but
always the
quality
of the goods and services furnished by Licensee in connection with the Xxxx
shall be
commensurate
or better than the goods and services currently offered by Licensee. Licensee's
current
quality
if satisfactory to Licensor.
3. Royalty. Licensee
shall be required to pay to Licensor a royalty of 5% of sales
of
products
labeled as XXXXXXX XXXXXXX for the use of the
Xxxx.
4. Inspection. Licensee
will permit duly authorized representatives of Licensor to
inspect
the Permitted Products of Licensee bearing the Xxxx at all reasonable times,
for
the purpose
of
ascertaining or determining compliance with paragraphs 1, 2 and 3
hereof.
5. Use
of Trademarks. Licensee shall provide; Licensor with samples
(or reasonable
facsimiles)
of literature, brochures, signs, advertising materials, and products bearing
the
Xxxx
prepared
by or for Licensee, and Licensee shall obtain the approval of Licensor with
respect to all
such
literature, brochures, signs, advertising materials, and products bearing
the
Xxxx. Such
approval
shall not be unreasonably withheld. When using the Xxxx under this Agreement,
Licensee
undertakes
to comply with all laws pertaining to the Xxxx in force at all times in the
Territory. This
provision
includes compliance with marking requirements.
6. Extent
of License. The right granted in paragraph 1 hereof shall be
non-exclusive
and
shall
not be transferable by Licensee without Licensor's prior written
consent.
7. Indemnity.
Licensor assumes no liability to Licensee or to third parties with
respect
to
the
performance characteristics of the goods or services offered by Licensee
under
the Xxxx, and
Licensee
shall indemnify Licensor from and against any and all claims, demands, suits
and
expenses,
including
without limitation, attorneys' fees, by or of any third parties against Licensor
involving the
offering
and/or sale of Licensee's goods or services.
8. Termination.
a. Except
as otherwise provided herein, this Agreement shall remain in full
force
and effect for one (1) year, renewable for additional, successive one (1)
year
periods. The additional
periods shall be effective if they are requested by Licensee and approved
by
Licensor.
b. Licensor
may terminate this Agreement at its option, and without cause,
upon
thirty (30) days written notice to Licensee. Licensor may terminate this
Agreement without notice if
Licensee fails to comply with the terms of this Agreement, or if Licensee
abandons use of the Xxxx.
c. If
Licensee makes any assignments of assets or business for the benefit
of
creditors, or a trustee or receiver is appointed to conduct its business
or
affairs, or it is adjudged in
any legal proceeding to be either a voluntary or involuntary bankruptcy,
then
the rights granted
herein shall forthwith cease and terminate without prior notice or legal
action
by Licensor.
9. Ownership
of Trademarks. Licensee acknowledges Licensor's exclusive right,
title
and
interest in and to the Xxxx, and any registration that has issued or may
issue
thereon, and will not
at
any
time do or cause to be done any act or thing contesting or in any way impairing
or tending to
impair
part of such right, title and interest. In connection with the use of the
Xxxx,
Licensee shall
not
in
any manner represent that it has any ownership in the Xxxx or registrations
thereof, or any
other
trademark that is confusingly similar to the Xxxx, and acknowledges that
use of
the Xxxx shall
enure
to
the benefit of Licensor. On termination of this Agreement in any manner provided
herein,
Licensee
will cease and desist from all use of the Xxxx in any way and will deliver
up to
Licensor, or
Licensor's
duly authorized representatives, all material and papers upon which the Xxxx
appears, and
furthermore,
Licensee will not at any time adopt or use without Licensor's prior written
consent, any
work
or
xxxx which is likely to be similar to or confusing with the
Xxxx.
10. Express
Reservation. Licensor expressly reserves the right to
continue to use the
Xxxx
for
all goods and services.
11. Warranties. Licensor
makes no warranties of any kind, expressed or implied,
regarding
the Xxxx.
12. Notices.
Any notices required or permitted to be given under this Agreement
shall be
deemed
sufficiently given if mailed by registered mail, postage prepaid, addressed
to
the party to be
notified
at its address shown below, or at such other address as may be furnished
in
writing to the
notifying
party.
13. Construction. This
Agreement will be governed by Texas law and construed
according
to its fair meaning and not for or against either party, and is the entire
agreement
concerning
its subject matter. All disputes between the
parties will be resolved by binding
arbitration
in San Antonio, Texas, in accordance with the rules of the American
Arbitration
Association.
An exception is that either party may obtain temporary judicial relief in
an
appropriate
court
of
jurisdiction within the State of Texas, pending confirmation of an arbitration
award.
This
is a
legal and binding agreement between the parties and supersedes all prior
discussions, understandings, and agreements between the parties hereto relating
to the subject matter hereof. The parties each declare, warrant, and represent
to the other that it has had the right to consult with an attorney of its
own
choosing, and has had the effect and meaning of this document explained to
them
by such attorney, or that it knowingly waives the right to consult with an
attorney.
IN
TESTIMONY WHEREOF, we hereunto set our hands and seal this 29th day of August,
2005.
XXXXXXX
XXXXXXX INC.
/s/
Xxxxxx X. Xxxxxx
Xxxxxx
X.
Xxxxxx, President
KBK,
Inc.
Name:
/s/ Xxxxxxx X. Xxxxxx
Xxxxxxx
X. Xxxxxx
Title:
Vice- President
