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EXHIBIT 10.14
TRADEMARK LICENSE AGREEMENT
AGREEMENT (the "Agreement") made as of this 10th day of February, 2000
(the "Effective Date") by and between WBT Operating LLC, a Delaware limited
liability company, having a principal place of business at 000 Xxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxx, Xxx Xxxx 00000 ("Licensor") and Training Media Operating
LLC, a Delaware limited liability company, having a principal place of business
at 000 Xxxxx Xxxx Xxxxxxxxx, Xxxxxxxxx, Xxx Xxxx 00000 ("Licensee"). (Licensor
and Licensee each referred to herein as a "Party" and collectively as the
"Parties.")
WHEREAS, Licensor is the owner of the Trademarks (as defined below);
WHEREAS, Licensee desires to license from Licensor, and Licensor desires
to license to Licensee, the Trademarks for use in connection with Licensee's
business, pursuant to the terms and subject to the conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants set forth
herein, Licensor and Licensee hereby agree as follows:
1. DEFINITIONS
1.1 "CONFIDENTIAL INFORMATION" means records or information in the
possession or under the control of a Party relating to the technical, marketing,
product, and/or business affairs or proprietary and trade secret information of
that Party in oral, graphic, written, electronic or machine readable form,
clearly marked as "confidential," or if disclosed orally, information identified
as confidential at the time of disclosure. Confidential Information shall not
include information which can be demonstrated: (i) to have been rightfully in
the possession of the receiving Party from a source other than the disclosing
Party prior to the time of disclosure of said information to the receiving Party
("Time of Disclosure"); (ii) to have been in the public domain prior to the Time
of Disclosure; (iii) to have become part of the public domain after the Time of
Disclosure by any means except an unauthorized act or omission or breach of this
Agreement on the part of the receiving Party, its employees, or agents; or (iv)
to have been supplied to the receiving Party after the Time of Disclosure
without restriction by a third party who is under no obligation to the
disclosing Party to maintain such information in confidence.
1.2 "LICENSEE BUSINESS" means the business of developing, marketing, and
providing (i) printed training materials and information with regard to
information technology and other professional and business-related matters,
including through print courseware, journals, and newsletters, and (ii) live,
in-person instructor-led classroom training conducted by or on behalf of
Licensee.
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1.3 "LICENSOR BUSINESS" means the business of developing, marketing, and
providing technology-based training and information with regard to information
technology and other professional and business-related matters through the
Internet, CD-ROM, intranets and other electronic media conducted by or on behalf
of Licensor.
1.4 "MATERIALS" has the meaning set forth in Section 3.4 hereof.
1.5 "TERM" means the period commencing on the Effective Date and running
until the expiration or termination of this Agreement in accordance with Section
3 hereof.
1.6 "TRADEMARKS" mean the trademarks set forth on Schedule A attached
hereto, as amended in writing by Licensor from time to time.
2. GRANT OF LICENSE
2.1 LICENSE. Subject to the terms and conditions herein, and during the
Term, Licensor grants to Licensee a royalty-free, exclusive (subject to
Licensor's rights to use the Trademarks in connection with the Licensor
Business), worldwide license to use the Trademarks solely in connection with the
Licensee Business, including the right and license to use the Trademarks to
conduct, promote, and market the Licensee Business.
2.2 RIGHT TO SUBLICENSE. Licensee shall have the right to sublicense the
rights granted to it under this Agreement as is required for Licensee to conduct
the Licensee Business in the ordinary course of business, including to contract
printers and distributors. Licensee shall impose on, and such sublicensees shall
adhere to, obligations with respect to the Trademarks which are consistent with
and no less stringent than those required of Licensee by Licensor hereunder.
Licensee shall ensure that the rights of any sublicensee will terminate,
automatically and without notice, in the event of any expiration or termination
of this Agreement.
3. QUALITY CONTROL STANDARDS
3.1 QUALITY STANDARDS. Licensee shall use the Trademarks in a form and
manner reasonably prescribed by Licensor in writing from time to time, and shall
ensure that its use of the Trademarks, and its products and services offered in
connection with the Trademarks, adheres to a standard of quality commensurate
with that associated with the Trademarks in connection with the Licensor
Business. In no event shall the Licensee Business be operated with regard to the
Trademarks in any manner that would injure the good will or reputation of the
Licensor, the Licensor Business, or the Trademarks.
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3.2 COMPLIANCE WITH LAW. Licensee shall ensure that all aspects of its
business used in connection with the Trademarks shall be in compliance with all
applicable laws and regulations.
3.3 RIGHT OF INSPECTION. Licensor shall have the right, upon reasonable
prior notice and during regular business hours, and not more than twice in any
calendar year, to inspect Licensee's premises and to monitor Licensee's and its
permitted sublicensees' compliance with the quality standards set forth in
Sections 3.1 and 3.2 hereof.
3.4 PROVISION OF REPRESENTATIVE SAMPLES. Upon Licensor's reasonable
request, and not more than twice in any calendar year, Licensee shall provide
Licensor with representative samples of products, business forms, marketing
materials, and advertising materials ("Materials") bearing the Trademarks.
3.5 NON-CONFORMANCE WITH STANDARDS OF QUALITY. In the event that in the
reasonable opinion of Licensor the Licensee Business or Materials deviate from
the standards of quality set forth in Sections 3.1 and 3.2 hereof, Licensee
shall, upon written notice from Licensor, promptly take steps which are
necessary to correct such deviations.
4. TERM
4.1 TERM. The term of this Agreement shall commence on the Effective Date
and shall continue for a period of ten (10) years ("Initial Term"), and for
consecutive one (1) year periods thereafter ("Renewal Term(s)"), unless either
Party provides at least one (1) year prior written notice of its intention not
to enter into a subsequent Renewal Term, in which case this Agreement shall
expire at the end of the Initial Term or Renewal Term then current following
such one (1) year notice period.
4.2 TERMINATION. This Agreement may be terminated by Licensor, upon
notice to Licensee, if there shall occur a material breach by Licensee of this
Agreement, including a non-conformance with the quality control standards set
forth in Section 3 hereof, which material breach is not cured within ninety (90)
days after written notice from Licensor, provided that Licensee shall have an
additional ninety (90) days if such breach or non-conformance is not reasonably
subject to cure during the initial ninety (90) day period and Licensee continues
to diligently pursue such cure. Licensee acknowl-
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edges that there would be no adequate remedy at law in the event that a breach
by Licensee of this Agreement injures or threatens to injure the good will or
reputation of Licensor, the Licensor Business, or the Trademarks, and, in such
event, Licensor shall be entitled to immediate equitable relief enjoining such
breach.
4.3 OBLIGATIONS UPON EXPIRATION OR TERMINATION. Licensee shall, promptly
upon expiration or termination of this Agreement, cease all use of the
Trademarks.
5. OWNERSHIP OF THE TRADEMARKS
5.1 NO RIGHT, TITLE, OR INTEREST. Licensee shall not have any right,
title or interest, express or implied, in and to the Trademarks, except as
licensed hereunder and subject to the terms and conditions set forth in this
Agreement. Licensee acknowledges that the Trademarks and all rights thereto
(with the exception of those rights expressly granted to Licensee under this
Agreement) and the good will pertaining to the use of the Trademarks belong
exclusively to Licensor, and that Licensee's use of the Trademarks shall inure
to the benefit of Licensor for the purpose of trademark and trade name
ownership, registration, enforcement, and maintenance.
5.2 NO CHALLENGE BY LICENSEE. Licensee agrees and covenants that it shall
not (i) challenge the validity of Licensor's ownership of the Trademarks or any
registration or application for registration thereof, or (ii) seek its own
registration of the Trademarks, or any name or xxxx confusingly similar to, or
dilutive of, the Trademarks.
5.3 ENFORCEMENT. Licensee shall promptly notify Licensor in writing
should it become aware of activity by a third party that reasonably would be
construed to constitute an unauthorized use, infringement, or dilution of the
Trademarks. Licensor shall have the sole initial right to take, and to determine
whether or not to take, at Licensor's expense, any action(s) it deems
appropriate with respect to any unauthorized use, infringement, or dilution of
the Trademarks, and Licensee shall, at Licensor's expense, fully cooperate with
Licensor in connection with any such action. If Licensor declines to take action
with respect to a particular unauthorized use, infringement, or dilution, then,
Licensee may undertake, at Licensee's expense, such action with the prior
written consent of Licensor, which consent shall not be unreasonably withheld,
at Licensee's own expense, and Licensor shall fully cooperate with Licensee in
connection with any such action. All recovery in the form of monetary damages or
settlement shall belong to the Party bearing the expense of bringing such claim
or suit.
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6. CONFIDENTIAL INFORMATION Each Party agrees that it shall take reasonable
steps to protect the Confidential Information of the other party, using methods
at least substantially equivalent to the steps it takes to protect its own
proprietary information, but not less than a reasonable standard, during the
Term of this Agreement and for a period of two (2) years following expiration or
termination of this Agreement, and shall prevent the duplication or disclosure
of Confidential Information, other than by or to its employees who must have
access to the Confidential Information to perform such party's obligations
hereunder, provided that each Party shall make such employees aware of the
restrictions of this Section 6, or as required or reasonably necessary under
applicable law, but only to the extent so required or reasonably necessary and
only subject to a protective order or other appropriate confidentiality
arrangement.
7. INDEMNITY Licensor shall defend, hold harmless, and indemnify Licensee,
and its affiliates, officers, directors, shareholders, employees, contractors,
agents, and representatives, from and against any and all claims, demands,
actions, liabilities, damages, losses, fines, penalties, costs, and expenses
(including all attorneys' fees) of any kind whatsoever (collectively, "Losses")
actually or allegedly arising or resulting from the Licensor Business. Licensee
shall defend, hold harmless and indemnify Licensor, and its affiliates,
officers, directors, shareholders, employees, contractors, agents, and
representatives, from and against any and all Losses actually or allegedly
arising or resulting from the Licensee Business.
8. GENERAL
8.1 INDEPENDENT CONTRACTOR. The Parties agree and acknowledge that the
relationship of the Parties is in the nature of an independent contractor. This
Agreement shall not be deemed to create a partnership or joint venture and
neither Party is the other s agent, partner, employee, or representative.
Neither Party hereto shall have the right to obligate or bind the other Party in
any manner whatsoever, and nothing herein contained shall give or is intended to
give any rights of any kind to any third persons.
8.2 FORCE MAJEURE. Neither Party shall be deemed in default of this
Agreement to the extent that performance of its obligations or attempts to cure
any breach are delayed, restricted or prevented by reason of any act of God,
fire, natural disaster, act of government, strikes or labor disputes, inability
to provide raw materials, power or supplies, or any other act or condition
beyond the reasonable control of such Party provided that such party gives the
other party written notice thereof promptly following discovery thereof and uses
its best efforts to cure the delay.
8.3 PARTIAL INVALIDITY. Should any provision of this Agreement be held to
be void, invalid or inoperative, the remaining provisions of this Agreement
shall not be af-
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fected and shall continue in effect and the invalid provision shall be deemed
modified to the least degree necessary to remedy such invalidity.
8.4 NO WAIVER. The failure of either Party to partially or fully exercise
any right or the waiver by either Party of any breach shall not prevent a
subsequent exercise of such right or be deemed a waiver of any subsequent breach
of the same or any other term of this Agreement
8.5 NO ASSIGNMENT. Licensor and Licensee shall not assign any of their
respective rights or obligations under this Agreement, except in connection with
the sale of all or substantially all of its business to which this Agreement
relates or as a collateral assignment to their respective senior lenders. All of
the terms and provisions of this Agreement shall be binding upon, shall inure to
the benefit of, and shall be enforceable by the respective permitted successors
and assigns of the Parties.
8.6 NOTICES. Any notice required or permitted to be sent shall be in
writing and shall be sent by Federal Express or like courier delivery, or if
sent by facsimile, with a confirmation copy by mail. Notice is effective upon
receipt. Notices shall be sent to the Parties at the addresses listed above,
unless a Party changes its address by giving written notice to the other party.
8.7 ENTIRE AGREEMENT. This Agreement, including the Schedule hereto, sets
forth the entire agreement between the Parties on this subject and supersedes
all prior negotiations, understandings, and agreements between the Parties
concerning the subject matter hereof. No amendment or modification of this
Agreement shall be made except by a writing signed by the Party to be bound
thereby or the permitted successor or assign of such Party.
8.8 SEVERABILITY. If any provision of this Agreement is determined by a
court of competent jurisdiction to be invalid or unenforceable, such
determination shall not affect the validity or enforceability of any other part
or provision of this Agreement.
8.9 GOVERNING LAW. This Agreement shall be governed and interpreted in
accordance with the laws of the State of New York without regard to principles
of conflict of laws. The Parties agree to submit to the exclusive jurisdiction
over all disputes hereunder and venue in the federal and state courts in the
State of New York located in New York County.
8.10 HEADINGS. The section headings contained in this Agreement are for
reference purposes only and shall not in any way affect the meaning or
interpretations of this Agreement.
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
Effective Date.
WBT OPERATING LLC (Licensor) TRAINING MEDIA OPERATING LLC
(Licensee)
By: /S/ [SIG] By: /S/ [SIG]
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Print Name: Print Name:
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Title: Title:
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Date: Date:
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