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Contract 6950132
NASCO PRODUCTS
THIS AGREEMENT made this 12th day of September, 1996, by and
between Licensor The Xxxx Disney Company Licensing (Europe, Middle
East & Africa) S.A. with its principal office located at 50, avenue
Montaigne, 75378 Xxxxx Xxxxx 00, Xxxxxx and Licensee Nasco Products
International Inc. with its principal office located at 00, Xxxxx
Xxxx XX, Xxxxxxxxxxx, XX 00000, Xxxxxx Xxxxxx of
America("you"and"your").
WITNESSETH:
WHEREAS, we have heretofore entered into an agreement with Disney
Enterprises, Inc., a corporation organized and existing under the
laws of the State of Delaware, United States of America
(hereinafter referred to as "Disney"), pursuant to which, in the
Territory hereinafter identified, we have been granted the right to
license third parties to use certain materials and trademarks which
are owned by Disney in a number of merchandising activities and
endeavors; and
WHEREAS, you desire to obtain a license to use some of those
materials and trademarks in and/or in connection with the Article
or Articles of merchandise specified below and we are willing to
grant said license under the conditions, provisions and limitations
hereinafter set forth; and
WHEREAS, you understand and accept that we may sublicense certain
of our rights and obligations under this Agreement to certain
subsidiaries owned or controlled by Disney or other designees or
marketing licensees of Disney who will thereby become sublicensors
hereunder and shall succeed to certain of our rights and duties
hereunder (hereinafter The Xxxx Disney Company Licensing (Europe,
Middle EASt & Africa) S.A., and such other sublicensors shall be
collectively referred to as "we", "us" or "our").
NOW, THEREFORE, it is mutually agreed between you and us as
follows:
1. MEANING OF TERMS As used in this Agreement:
a. "Licensed Material" means the representations of the
following characters:
Mickey Mouse, Xxxxxx Mouse, Xxxxxx Duck, Daisy Suck, Goofy,
Pluto, only used in association with sport themes for the "Mickey
Unlimited" brand.
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and designated still scenes from the motion pictures identified in
Subparagraph 1(b) hereafter.
b. "Trademarks" means "Xxxx Disney", "Disney", the
representations of Licensed Material included in Subparagraph 1(a)
above, and the logo(s) of the following motion pictures, television
series and/or branded programs in which Licensed Material appears:
MICKEY UNLIMITED
c. "Articles" means the following items on or in connection
with which the Licensed Material and/or the Trademarks are
reproduced or used:
Sportbags, Sport backpacks, Sport wallets, Sport tote bags, Sport
waistpacks all to be made of 70D Nylon minimum with PVC backing or
600D Polyester minimum with PVC backing.
d. "Minimum Per Article Royalty" means the following sum for
each Article sold:
Backpacks: 0.70 US$
Waistpacks: 0.35 US$
Sportbags: 0.65 US$
Wallets: 0.25 US$
Tote Bags: 0.80 US$
e. "Principal Term" means the period commencing October 1,
1996 and ending May 31, 1998.
f. "Territory" means Austria, Germany, Switzerland, Belgium,
The Netherlands, Denmark, Finland, Iceland, Norway, Sweden, Spain,
Portugal, France, United Kingdom, Ireland, Italy.
If the Territory includes a country within the European Economic
Area you may export Articles to other countries within the European
Economic Area which are not included in the Territory provided you
give us prior written notice of the countries involved. You may not
export Articles outside the European Economic Area unless such
Articles are destined for ultimate delivery in the Territory or in
the European Economic Area and may not sell or otherwise distribute
any of the Articles to any party if you know, or in the exercise of
prudent business judgment should know, that such sale(s) ultimately
with result in the exporting of Articles outside of the European
Economic Area. Except as specifically provided herein, you shall
not export Articles outside the Territory without prior written
consent.
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g. "Royalties" means a copyright royalty in an amount equal to
the greater of:
(i) Twelve percent (12%) of your Net Invoiced Xxxxxxxx
for Articles sold C.I.F. a location in the Territory or in the
European Economic Area ("In Sales") or, if Articles are sold to a
customer in the Territory or in the European Economic Area F.O.B.
a shipping point outside the Territory or the European Economic
Area for importation by the customer into the Territory ("Out
Sales"), Seventeen percent (17%) of your Net Invoiced Xxxxxxxx for
such Articles. All sales of Articles shipped to a customer outside
the Territory and outside the European Economic Area pursuant to a
distribution permission shall bear a Royalty at the rate for Out
Sales; or
(ii) the Minimum Per Article Royalty, if any has been
specified in Subparagraph 1 (d) above.
"Net Invoiced Billing" shall mean actual invoiced xxxxxxxx (ie
sales quantity multiplied by the selling price) for Articles sold
less volume discounts and other customary discounts separately
identified by Article on the sales invoices. Customary discounts
shall not include cash discounts granted as terms of payments early
payment discounts, year end rebates and allowances or discounts
relating to advertising. Royalties are not due or invoiced charges
for transportation of Articles with the Territory, value added
taxes and taxes on the sale of Articles which are separately
identified on the sales invoices and have actually been paid. No
costs incurred in manufacturing, importing, selling or advertising
the Articles shall be deductible from the actual invoiced xxxxxxxx
for Articles sold, nor shall any deduction be taken for freight
costs included in the selling price or for uncollectible accounts.
No royalties are payable for the mere manufacture of Articles.
You agree that you will advise us, in writing, prior to selling
Articles to any person or entity which is a parent, affiliate,
subsidiary, joint venturer or partner of yours or to any entity
which is directly or indirectly controlled by you or under common
control with you (collectively referred to as ("affiliated
entities"). For purposes of this Agreement, an entity shall be
deemed to be controlled by you if you are the actual or beneficial
owner of 20% or more of the voting corporate or partnership shares.
If you are a corporation with fewer than 20 shareholders, an entity
will also be deemed to be controlled by you if, in the aggregate,
20% or more of the voting corporate or partnership shares of such
entity are owned or controlled by relatives, attorneys, or other
agents of yours or any of your shareholders. Royalties paid to us
on sales of Articles to your affiliated entities shall not be less
than the Royalties paid to us on sales of such Articles to non-
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affiliated entities, regardless of the Net Invoiced Billing amount
charged by you to such affiliated entities. Further, if such
affiliated entity is a reseller of the Articles, the sale to such
affiliated entity shall be counted as a sale for Royalty
calculation purposes but rather, the relevant sale for Royalty
calculation purposes shall be that of such affiliated entity to its
customers.
h. "Royalty Payment Period" means each calendar quarter
period during the Principal Term and during any other term,
provided that the last Royalty Payment Period of the Principal Term
covers the period from April 1, 1998 through May 31, 1998.
i. "Advance" means the following sum(s) payable by the
following date(s) as an advance on Royalties to accrue in the
following period(s).
US$ 10,000 for the period from January 1, 1997 through May 31,
1998; payable upon signature of the agreement.
Royalties generated by sales outside the Territory but within the
European Economic Area, outside the European Economic Area, or made
pursuant to a distribution permission may not be applied against
the Advance.
j. "Guarantee" means the following sum(s) which you guarantee
to pay as minimum Royalties on your cumulative sales in the
Territory in the following period(s):
US$ 207,500 for the period January 1, 1997 through May 31, 1998 to
be allocated as follows:
Country(ies)
Austria 10,000
Belgium 7,000
Denmark 7,500
Finland 7,500
France 30,000
Germany 30,000
The Netherlands 20,000
Iceland 500
Ireland 3,500
Italy 25,000
Norway 2,500
Portugal 2,500
Spain 20,000
Sweden 15,000
Switzland 2,500
United Kingdom 24,000
Total in US$ 207,500
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Such Guarantee shall apply to each country or group of countries as
applicable, as separate accounts, and shall not be cross-
collateralized between and among countries or groups of countries.
k. "Samples" means ten (10) free copies from the first
production run of each supplier of each Article.
l. "Promotion Commitment" means the following sum(s) which you
agree to spend during the following period(s) in the following
way(s):
A minimum of 3% (three percent) of your Net Invoiced Xxxxxxxx
as defined in paragraph 1(g) during the Principal Term to advertise
the Articles. Such sum will be spent in trade show, catalogues and
in other ways as we may determine in our sole discretion from time
to time.
m. "Marketing Date" means the following date(s) by which the
following Article(s) shall be available for purchase and immediate
delivery:
June 1, 1997
n. "Laws" means any and all applicable laws, rules,
regulations, voluntary industry standards, association laws, codes
or other obligations pertaining to any of your activities under
this Agreement, including but not limited to those applicable to
the manufacture, pricing, sale and/or distribution of the Articles.
2. RIGHTS GRANTED
a. In consideration for your promise to pay and actual payment
to us of all Royalties, Advances and Guarantees specified herein,
during the Principal Term and any extension thereof, we grant you
the nonexclusive right under Disney's various copyrights and
Trademarks in the Territory, to reproduce the Licensed Material
only on or in connection with the Articles, to use the Trademarks,
but only such Trademarks and uses thereof as may be approved when
the Articles are approved and only on or in connection with the
Articles, and to manufacture, distribute for sale and sell (other
than by direct marketing methods, including but not limited to
direct mail and door-to-door solicitation) the Articles. You will
sell the Articles only to retailers for resale to the public in the
Territory or to wholesalers for resale to such retailers; provided
however that you may not sell the Articles to retailers that sell
the Articles on a duty-free basis nor may you sell the Articles to
wholesalers for
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resale to such retailers, unless such retailer or wholesaler has a
then-current license agreement with us or an affiliate of ours
permitting it to make such duty-free sales.
b. Unless we consent in writing, you shall not sell or
otherwise provide Articles for use as premiums (including those in
purchase-with-purchase promotions), promotions, give-aways, fund-
raisers or entries in sweepstakes or to customers for resale by
direct mail or other direct marketing methods, or to customers for
inclusion in another product. However, nothing contained herein
shall preclude you from soliciting orders by mail from wholesalers
or retail outlets nor from selling to retailers which sell
predominantly at retail, but which include the Articles in their
mail order catalogs or otherwise sell Articles by direct marketing
methods as well as at retail. If you wish to sell the Articles to
other customers for resale through mail order catalogs, you must
obtain written consent in each instance.
c. Nothing contained herein shall preclude you from selling
Articles to us, Disney or to any subsidiary of ours or Disney's
subject to the payment to us of Royalties on such sales.
d. We further grant you the right to reproduce the Licensed
Material and to use the Trademarks only within the Territory and,if
the Territory includes a country in the European Economic Area, the
European Economic Area, on containers, packaging, display material
and in advertising for the Articles.
e. Nothing contained in this Agreement shall be deemed to
imply any restriction on your freedom and that of your customers to
sell the Articles at such prices as you or they shall determine.
f. You recognize and acknowledge the vital importance to us of
the characters and other proprietary material we own and create and
the association of the Disney name with them. In order to prevent
the denigration of products bearing the Licensed Material and/or
the Trademarks and the value of their association with the Disney
name, and in order to ensure the dedication of your best efforts to
preserve and maintain that value, you agree that during the
Principal Term and any extension hereof, you will not manufacture
or distribute any merchandise embodying or bearing any artwork or
other representation which we determine, in our reasonable
discretion, is confusingly similar to the Disney characters or
other proprietary material.
3. ADVANCE
a. You agree to pay us in full the nonrefundable Advance plus
value-added taxes or other applicable taxes thereon, if any, which
shall be
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on account of Royalties earned and payable only during the
Principal Term and only with respect to sales in the Territory;
provided, however, that if any part of the Advance is specified
hereinabove as applying to any period less than the Principal Term,
such part shall be on account of Royalties to accrue during such
lesser period only. If Royalties earned during any period are less
than the Advance shall be refunded to your.
b. Royalties accruing any sell-off period or extension of the
Principal Term shall not be offset against the Advance unless
otherwise agreed in writing. Royalties accruing during any
extension of the Principal Term or any other term shall be offset
only against an advance paid with respect to such extended term.
c. In no event shall Royalties accruing by reason of any sales
to us or a subsidiary of ours or by reason of sales outside the
Territory pursuant to a distribution permission be offset against
the Advance or any subsequent advance.
d. Notwithstanding anything hereinabove to the contrary, upon
your breach of this Agreement (which breach is not cured in the
period specified in Subparagraph 28(a) hereof) you agree that nay
and all Advances due hereunder shall become immediately due and
payable, regardless of whether we also exercise our right hereunder
to terminate this Agreement because of such breach.
4. GUARANTEE
a. With your statement for each Royalty Payment Period ending
on a date indicated in Subparagraph l(j) hereof defining
"Guarantee," you shall pay us the amount, if any, by which
cumulative Royalties paid with respect to sales in the Territory
during any period or periods covered by the Guarantee provision or
any Guarantee provision contained in any agreement extending the
term hereof, fall short of the amount of the Guarantee for such
period.
b. Advances applicable to Royalties due on sales in the period
to which the Guarantee relates apply towards meeting the Guarantee.
c. In no event shall Royalties paid with respect to sales to
us or to any subsidiary or affiliate of ours or with respect to
sales outside the Territory or outside the European Economic Area
pursuant to a distribution permission apply towards meeting the
Guarantee or any subsequent guarantee.
d. Notwithstanding anything hereinabove to the contrary, upon
your breach of this Agreement (which breach is not cured in the
period specified in Subparagraph 28(a) hereof) you agree that any
and all
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Guarantees due hereunder shall become immediately due and payable,
regardless of whether we also exercise our rights hereunder to
terminate this Agreement because of such breach.
5. PRE-PRODUCTION APPROVALS
a. As early as possible and in any case before commercial
production of any Article you shall submit to us for our review and
written approval (to utilize such materials in preparing a pre-
production sample) all concepts, all preliminary and proposed final
artwork and all three-dimensional models which are to appear on or
in the Article. Thereafter, you shall submit to us for our written
approval a pre-production sample of each Article. We shall
endeavor to respond to such requests within a reasonable time, but
such approvals should be sought as early as possible in case of
delays. In addition to the foregoing, as early as possible, and in
any case no later than sixty (60) days following written conceptual
approval, you shall supply to us for our use for internal purposes,
a mock-up, prototype or pre-production sample of each style of each
Article on or in connection with which the Licensed Material is
used. You acknowledge that we may not approve concepts or artwork
near the end of the Principal Term.
b. Approval or disapproval shall lie solely in our discretion,
and any Article not so approved in writing shall be deemed
unlicensed and shall not be manufactured or sold. If any
unapproved Article is sold, we may, together with other remedies
available to us (including but not limited to immediate termination
of this Agreement), by written notice require such Article to be
immediately withdrawn from the market. Any modification of an
Article, including but not limited to, change of materials, colors,
design or size of the representation of Licensed Material must be
submitted in advance for our written approval as if it were a new
Article. Approval of an Article which uses particular artwork does
not imply approval has been taken from a Disney publication or a
previously approved Article does not mean that its use will
necessarily be approved in connection with an Article licensed
hereunder.
c. If you submit for approval artwork from an article or book
manufactured or published by another licensee of ours or Disney's
of any subsidiary of ours or Disney's, you must advise us in
writing of the source of such artwork. If you fail to do so, any
approval which we may give for use by you of such artwork may be
withdrawn by giving you written notice thereof, and you may be
required by us not to sell Articles using such artwork.
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d. Notwithstanding the above, as we rely primarily on you for
the consistent quality and safety of the Articles and their
compliance with applicable laws and standards, we will not
unreasonably object to any change in the design of an Article or in
the materials used in the manufacture of the Article or in the
process of manufacturing the Articles which you advise us in
writing is intended to make the Article safer or more durable.
e. If we have supplied you with forms for use in applying for
approval of artwork, models, pre-production and production samples
of Articles, you shall use such forms when submitting anything for
our approval.
6. APPROVAL OF PRODUCTION SAMPLES
a. Before shipping an Article to any customer, you agree to
furnish to us, for our approval of all aspects of the Article in
question, from the first production run of each supplier of each of
the Articles the number of Samples, with packaging, set forth in
Subparagraph 1(k) which shall conform to the approved artwork,
three-dimensional models and pre-production sample. Approval or
disapproval of the artwork as it appears on the Article as well as
of the quality of the Article shall lie in our sole discretion and
may inter alia be based on unacceptable quality of the artwork or
of the Article as manufactured. Any Article not so approved shall
be deemed unlicensed, shall not be sold and unless otherwise agreed
by us in writing, shall be destroyed. Such destruction shall be
attested to in a certificate signed by an officer of yours.
Production samples of Articles for which we have approved a pre-
production sample shall be deemed approved, unless with 20 days of
our receipt of such production sample we notify you to the
contrary.
b. You agree to make available at no charge such additional
samples of each Article as we may from time to time reasonably
request for the purpose of comparison with earlier samples or to
test for compliance with applicable laws, regulations and
standards, to maintain consistent quality and to permit us upon
reasonable request to inspect your manufacturing operations and
testing records (and those of your suppliers) for the Articles.
c. It is specifically understood that we may disapprove an
Article or a production run of an Article because the quality is
unacceptable to us, and, accordingly, we recommend that you submit
production samples to us for approval before committing to a large
original production run or to purchase a large shipment from a new
supplier.
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d. No modification of an approved production sample shall be
made without our further prior written approval. Articles being
sold must confirm in all respects to the approved production
sample. It is understood that if in our reasonable judgement the
quality of an Article originally approved has deteriorated in later
production runs, or if the Article has otherwise been altered, we
may, in addition to other remedies available to us, by written
notice require such Article to be immediately withdrawn from the
market.
e. The rights granted hereunder do not permit the sale of
"seconds" or "irregulars". All Articles not meeting the standard
of approved samples shall be destroyed or all Licensed Material and
Trademarks shall be removed or obliterated therefrom.
f. Notwithstanding the above, as we rely primarily on you for
the consistent quality and safety of the Articles and their
compliance with applicable laws and standards, we will not
unreasonably object to any change in the design of an Article or in
the materials used in the manufacture of the Article or in the
process of manufacturing the Articles which you advise us in
writing is intended to make the Article safer or more durable.
g. We shall have the right, by written notice to you, to
require modification of any Article approved by us under any
pervious agreement between us pertaining to the Licensed Material.
Likewise, if the Principal Term of this Agreement is extended by
you mutual agreement, we shall have the right, by written notice to
you, to require modification of any Article approved by us under
this Agreement. It is understood that there is no obligation upon
either party to extend the Agreement.
h. If we so notify you of a required modifications under
Subparagraph 6(g) with respect to a particular Article, such
notification shall advise you of the nature of the changes required
and you shall not accept any order for any such Article until the
Article has been resubmitted to us with such changes and you have
received our written approval of the Article as modified. However,
you may continue to distribute your inventory of the previously
approved Articles until such inventory is exhausted (unless such
Articles are dangerously defective, as determined by us.)
i. You shall take professional quality photographic slides of
each Article approved hereunder and shall provide us with (2) two
copies of each such slide within 30 days of the first production
run of each respective Article. Each such slide shall bear the
relevant style number of the Article shown. You also shall prepare
and supply us with copies of a photobook containing photos of all
such items for each complete collection.
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7. APPROVAL OF PACKAGING, PROMOTIONAL MATERIAL AND ADVERTISING
a. All containers, packaging, display material, promotional
material catalogs and advertising, including but not limited to
television advertising and press releases, for Articles must be
submitted to us for our written approval before use. To avoid
unnecessary expense if changes are required, our approval thereof
should be procured when such is still in rough or storyboard
format. We shall endeavor to respond to requests for approval
within a reasonable time. Approval or disapproval shall lie in our
sole discretion, and the use of unapproved containers, packaging,
display material, promotional material, catalogs or advertising is
prohibited. Whenever you shall prepare catalog sheets or other
printed matter containing illustrations of Articles, you will
furnish to us five (5) copies therof when they are published.
b. If we have supplied you with forms for use in applying for
any such approvals, you shall use such forms when submitting
anything for our approval.
8. ARTWORK
Within 15 days of receiving our invoice,you shall pay us for
artwork done at your request by us or Disney or third parties under
contract to us or Disney in the development and creation of
Articles, display, packaging or promotional material (including any
artwork which in our opinion is necessary to modify artwork
initially prepared by you and submitted to us for approval) at our
or Disney's then prevailing commercial art rates. Estimates of
artwork charges are available upon request. While you are not
obligated to use our or Disney's in house creative services, you
are encouraged to do so in order to minimize delays which may occur
if outside artists do renditions of Licensed Material which we
cannot approve and to maximize the attractiveness of the Articles.
9. PRINT, RADIO OR TV ADVERTISING
You shall obtain all consents and approvals necessary in connection
with print, radio or television advertising, if any, for the
Articles which we may authorize. Such authorization shall be
exercised within our sole discretion, including without limitation
for reasons of overexposure of the Licensed Material. We shall
have the right to prohibit you from advertising the Articles by
means of television and/or billboards. You represent and warrant
that all advertising and promotional materials shall comply with
all applicable laws and regulations. Our approval of copy or
storyboards for such advertising will not imply a representation or
belief by us that such copy or storyboards are sufficient to meet
any applicable code, standard,
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or other obligation. This Agreement does not grant you any rights
to use the Licensed Material in animation.
10. LICENSEE NAME AND ADDRESS ON ARTICLES
a. Your name (or a trademark of yours which you have advised
us in writing that you are using) your address (at least city and
country) and the country of manufacture (if different from your
address) will appear on permanently affixed labeling on each
Article or, if the Article is sold to the public in packaging or
container, printed on such packaging or container so that the
public can identify the supplier of the Article. On soft goods
"permanently affixed" shall mean sewn on.
b. You shall advise us in writing of all trade names or
trademarks you are using on Articles if such names or marks differ
from your corporate name as indicated herein.
11. COMPLIANCE WITH APPROVED SAMPLES AND APPLICABLE LAWS AND
STANDARDS
a. Each article and component thereof distributed hereunder
shall be of good quality and free of defects in design, materials
and workmanship, and shall comply with all applicable Laws, and
such specifications, if any, as may have been specified in
connection with this Agreement, and shall conform to the sample
thereof approved by us.
b. Without limiting the foregoing, you covenant on behalf of
your own company, and on behalf of all of your third-party
manufacturers and suppliers (collectively, "Manufactures"), as
follows:
(i) You and the Manufacturers agree not to use child
labor in the manufacturing, packaging, or distribution of the
Articles. The term "child" refers to a person younger than the age
for completing compulsory education, but in no case shall any child
younger than fourteen (14) years of age be employed in the
manufacturing, packaging or distribution of the Articles.
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(ii) You and the Manufacturers agree to provide employees
with a safe and healthy workplace in compliance with all applicable
Laws. You and the Manufacturers agree to provide us with all
information we may request about manufacturing, packaging and
distribution facilities for the Articles.
(iii) You and the Manufacturers agree only to employ
persons whose presence is voluntary. You and the Manufacturers
agree not to use prison labor, or to use corporal punishment or
other forms of mental or physical coercion as a form of discipline
of employees.
(iv) You and the Manufacturers agree to comply with all
applicable wage and hour Laws, including minimum wage, overtime,
and maximum hours. You and the Manufacturers agree to utilize fair
employment practices as defined by applicable Laws.
(v) You and the Manufacturers agree not to discriminate
in hiring and employment practices on grounds of race, religion,
national origin, political affiliation, sexual preference, or
gender.
(vi) You and the Manufacturers agree to comply with all
applicable environmental Laws.
(vii) You and the Manufacturers agree to comply with all
applicable Laws pertaining to the manufacture, pricing, sale and
distribution of the Articles.
(viii) You and the Manufacturers agree that we may engage
in activities such as unannounced on-site inspections of
manufacturing, packaging and distribution facilities in order to
monitor compliance with applicable Laws.
c. Both before and after you put Articles on the market, you
shall follow reasonable and proper procedures for testing that
Articles comply with all applicable Laws, and shall permit our
designees to inspect testing, manufacturing and quality control
records and procedures and to test the Articles for compliance.
You agree to promptly reimburse us for the reasonable costs of such
testing. You shall also give due consideration to any
recommendations by us that Articles exceed the requirements of
applicable Laws. Articles not manufactured, packaged or
distributed in accordance with applicable Laws shall be deemed
unapproved, even if previously approved by us, and shall not be
shipped unless and until they have been brought into full
compliance therewith.
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12. DISNEY OWNERSHIP OF ALL RIGHTS IN LICENSED MATERIAL
You acknowledge that the copyrights and all other proprietary
rights in and to Licensed Material are exclusively owned by and
reserved to Disney. You shall neither acquire nor assert copyright
ownership or any other proprietary rights in Licensed Material or
in any derivation, adaptation, variation or name thereof. Without
limiting the foregoing, you hereby assign to Disney all your
worldwide right, title and interest in the Licensed Material and in
any material objects consisting of or incorporating drawings,
paintings, animation cels, or sculptures of the Licensed Material,
or other derivations, adaptations, compilations, collective works,
variations or names of Licensed Material heretofore or hereafter
created by or for you or any parent, subsidiary, affiliate, joint
venturer or partner of yours. All such new materials shall be
included in the definition of "Licensed Material" under this
Agreement. You acknowledge that said assignment includes, without
limitation, the right on Disney's part to license such material
outside the Territory during the term of this Agreement and
anywhere thereafter and to demand delivery of such materials
(delivery costs to be borne by us) when they are no longer needed
by you for the manufacture, sale or promotion of the Articles. If
any third party makes or has made any contribution to the creation
of any new materials which are included in the definition of
Licensed Material under this Paragraph, you agree to obtain from
such party a full assignment of rights so that the foregoing
assignment by you shall vest full rights to such new materials in
Disney. The obtaining of such assignment forthwith upon the
creation of new materials is an essential term of this Agreement.
The foregoing assignment to us of material objects shall not
include that portion of your displays, catalogs or promotional
material not containing Licensed Material or the physical items
constituting the Articles, unless such items are in the shape of
the Licensed Material.
13. COPYRIGHT NOTICE
As a condition to the grant of rights hereunder, each Article and
any other matter containing Licensed Material shall bear a properly
located permanently affixed copyright notice in our name(e,g,
"Disney") or such other notice as we may notify to you in writing.
You will comply with such instructions as to form, location and
content of the notice as we or Disney may give from time to time.
You will not, without our prior written consent, affix to any
Article or any other matter containing Licensed Material a
copyright notice in any other name. If through inadvertence or
otherwise a copyright notice on any Article or other such matter
should appear in your name or the name of a third party, you hereby
agree to assign to Disney the copyright represented by any such
copyright notice in your name and, upon request, cause the
execution and delivery to us of whatever documents are necessary to
convey to Disney that copyright represented by any such copyright
notice in another party's name. If by inadvertence a proper
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copyright notice in Disney's name is omitted from any Article or
other matter containing Licensed Material, you agree at your
expense to use all reasonable efforts to correct the omission on
all such Articles or other matter in process of manufacture or in
distribution. You agree to advise us promptly and in writing of
the steps being taken to correct any such omission and to make the
corrections on existing Articles which can be located.
14. NON-ASSOCIATION OF OTHER FANCIFUL CHARACTERS WITH LICENSED
MATERIAL
To preserve Disney's identification with its characters and to
avoid confusion of the public, you agree not to associate other
characters (other than such as constitute a trademark of yours) or
licensed properties with the Licensed Material or the Trademarks
either on the Articles or in their packaging or, without our
written permission, on advertising, promotional or display
materials.
15. ACTIVE MARKETING OF ARTICLES
You agree to manufacture (or have manufactured for you) and offer
for sale all the Articles and to exercise the rights granted
herein. You agree that not later than by the Marketing Date
applicable to a particular Article or, in the absence of such a
date being specified in Subparagraph 1(m), by six (6) months from
the commencement of the Principal Term, shipments to customers of
Articles will have taken place and that Articles shall be available
for purchase and prompt delivery to customers. In any case in
which such sales have not taken place or when the Article is not
then and thereafter available for purchase by the public, we may
either invoke our remedies under Paragraph 28, or withdraw such
Article from the list of Articles licensed in this Agreement
without obligation to you other than to give you written notice
thereof.
16. PROMOTION COMMITMENT
You agree to carry out the Promotion Commitment, if any, as defined
in Subparagraph 1(1). Concurrently with your submitting to us a
statement following each Royalty Payment Period as specified
herein, you also shall provide us with a statement describing the
funds spent as required in this paragraph and a description of the
manner in which such funds were spent, all in such detail as we may
specify from time to time.
Page 16
17 TRADEMARK RIGHTS AND OBLIGATIONS
a. All uses of the Trademarks by you hereunder shall inure to
Disney's benefit. You acknowledge that Disney is the exclusive
owner of all the Trademarks and of any trademark incorporating all
or any part of a Trademark or any Licensed Material and the
trademark rights created by such uses. Without limiting the
foregoing, you hereby assign to Disney all the Trademarks and any
Licensed Material and the trademark rights created by such uses
together with the goodwill attaching to that part of the business
in connection with which such Trademarks or trademarks are used.
You agree to execute and deliver to Disney such documents as Disney
may require to register you as a registered user or permitted user
of the Trademarks or such trademarks and to follow Disney's or our
instructions for proper use thereof in order that protection and/or
registrations for the Trademarks and such trademarks may be
obtained or maintained. We acknowledge that you retain all rights
of ownership in and to your trademarks, trade names, trade dress
and all other indicia used on or in association with the Articles
that do not incorporate Disney related elements.
b. You agree not to use any Licensed Material or Trademarks or
any trademark incorporating all or any part of a Trademark or any
Licensed Material on any business sign, business cards, stationary
or forms (except as licensed herein) or to use any Licensed
Material or Trademark as the name of your business or any division
thereof, unless otherwise agreed by Disney in writing.
c. Nothing contained herein shall prohibit you from using your
own trademarks on the Articles or your copyright notice on the
Articles when the Articles contain independent material which is
your property. Further, nothing contained herein is intended to
give us any rights to, and we shall not use, any trademark,
copyright or patent used by you in connection with the Articles
which is not derived or adapted from Licensed Trademarks or other
material owned by us.
18. REGISTRATIONS
Except with Disney's written consent, neither you, your parent or
any subsidiary, affiliate, joint venturer or partner of yours will
register or attempt in any country to register copyrights in, or
register as a trademark, service xxxx, design patent or industrial
design, or business designation,any of the Licensed Material,
Trademarks or derivations or adaptions any of the Licensed
Material, Trademarks or derivations or adaptions thereof, or any
word, symbol or design which is so similar thereto as to suggest
association with or sponsorship by us or Disney or any subsidiary
Page 17
of ours or Disney's. In the event of breach of the foregoing, you
agree, at your expense and at our request, immediately to terminate
the unauthorized registration activity and promptly to execute and
deliver, or cause to be delivered, to Disney such assignments and
other documents as Disney may require to transfer to Disney all
rights to the registrations, patents or applications involved.
19. UNLICENSED USE OF LICENSED MATERIALS
a. You agree that you will not use the Licensed Material or
the Trademarks or any other material the copyright to which is
owned by Disney in any way other than as herein authorized (or as
is authorized in such other written contract signed by both of us
as may be in effect between us). In addition to any other remedy we
may have, you agree that the profits from any use thereof on
products other than the Articles (unless authorized by us in
writing), and all Disney's without written authorization, shall be
payable to us.
b. You agree to give us prompt written notice of any
unlicensed use by third parties of Licensed Material or Trademarks
and that you will not, without written consent, bring or cause to
be brought any criminal prosecution, lawsuit or administrative
action for infringement, interference with or violation of any
rights to Licensed Material or Trademarks. You agree to cooperate
with us, and, if necessary, to be named by us as a sole complaint
or co-complainant in any action against an infringer of the
Licensed Material or Trademarks and you agree to pay to us all or
any part of damages or other monetary relief recovered in such
action other than for reasonable expenses incurred at our request.
20. STATEMENTS AND PAYMENTS OF ROYALTIES
a. (i) You agree to furnish to us by the 15th day after each
Royalty Payment Period a full and accurate statement showing by
Article, with stock number or other item description, the Royalties
payable, quantities, country of sale, Net Invoiced Xxxxxxxx and
applicable Royalty rate(s) of Article invoiced during the preceding
Royalty Payment Period reported in the currency invoiced to
customers and the quantities and invoice value of defective
Articles returned for credit or refund in such period. A statement
is due even if no sales occurred during the period covered by the
statement. We then shall submit to you an invoice for all
Royalties due on Xxxxxxxx shown by such statements, plus value
added taxes, if any, and other applicable taxes due
Page 18
thereon ("Royalty invoice"). You agree to pay us all amounts
indicated on such Royalty invoices on or by the earlier of thirty
(30) days after the end of the Royalty Payment Period, or the
fifteenth (15th) day after we send such invoice to you. You shall
bear any costs associated with the transfer of such payments to us.
To the extent that any Royalties are not paid, you authorize us to
offset Royalties due against any sums which we or any affiliate of
out may owe to you or any parent or subsidiary or affiliate of
yours. No deduction or withholding from Royalties payable to us
shall be made by reason of any tax. Any applicable tax on the
manufacture, distribution and sale of the Article shall be borne by
you.
(ii) If you fail to furnish to us a royalty statement i
such detail and by such day as required hereunder, we may
nevertheless submit a Royalty invoice to you, prepared based on the
average amount invoiced during the immediately preceding three
periods, together with interest thereon, the amount of which
invoice shall be immediately payable. We will make any necessary
adjustments to such invoice amount on the Royalty invoice next
prepared after we receive accurate reporting information from you.
Our submission of a Royalty invoice to you due to your failure to
timely furnish the statement required hereunder, shall not
constitute a waiver on our part of your breach of your reporting
obligations.
b. If we at any time so request, your statements shall be made
on statement forms which we provide or in a form as we require
(including for example, electronic transmission). Should any
investment to implement electronic reporting be required, such
investment shall be borne entirely by you. You will fully comply
with the instructions supplied by us for completing such forms or
adhering to any such format. Apparel Articles shall be reported
separately by size range (e.g. "boys'", "girls'"," men's", etc.)
Your statements shall identify for each Article the character or
other Licensed Material used on each such Article.
c. Your statement shall with respect to all Articles report
separately:
(i) In Sales;
(ii) Out Sales;
(iii) sales of Articles outside the Territory pursuant to
a distribution permission (indicating the country involved);
Page 19
(iv) your sales of Articles as a supplier to any of our
licensees and the licensees of any of our affiliates for the
Articles (which sales shall not generate Royalties payable to us so
long as such licensees are reselling the Articles and Paying us
royalties on such resales);
(v) sales of Articles to us, Disney or any subsidiary of
ours or Disney's; and
(vi) sales of Articles under any brand or program
identified in Subparagraph 1(b).
d. Sales of items licensed under contracts with us other than
this Agreement shall not be reported on the same statement as sales
of Articles under this Agreement.
e. Your statements and payments shall be delivered to us at
the address indicated on page 1 of this Agreement and/or to any
entity designated by us as a sublicensor of our rights hereunder,
at the address indicated on any notice of sublicense we may deliver
to you.
21. ARTICLES RETURNED FOR CREDIT OR REFUND
Royalties reported on sales of defective Articles which have been
returned to you for credit or refund and on which a refund has been
made or credit memo issued may be credited against Royalties due.
The credit shall be taken in the Royalty Payment Period in which
the refund is given or credit memo issued. Unused credits may be
carried forward, but in no event shall you be entitled to a refund
of Royalties.
22. INTEREST
Royalties, Advances or Guarantees received after the date due shall
bear interest at the rate of fifteen (15%) per annum from the date
due (or maximum permissible by law if less than (15%).
23. AUDITS AND MAINTENANCE RECORDS
You agree to keep and preserve during the term of this Agreement
and for at least two years after the expiration of this Agreement
accurate records of all transactions relating to this Agreement
including shipments to you of Articles and components thereof,
inventory records, records of sales and shipments by you and
records of returns, and that we, or our representatives, shall have
the right from time to time, during normal business hours, but only
for the purpose of confirming your performance
Page 20
hereunder, to examine and make extracts from all such records,
including the general ledger, all invoices (whether or not they
relate to the Articles) and any other records which we reasonably
deem appropriate to verify the accuracy of your statements or your
performance hereunder, including records of your parent, subsidiary
and affiliate companies if they are involved in activities that are
the subject of this Agreement. In particular your invoices shall
identify the Articles separately from goods which are not licensed
hereunder. If in an audit of your records it is determined that
there is a shortfall in Royalties reported for any Royalty Payment
Period you shall, upon request by us, pay such shortfall and, if
the shortfall is 5% or more in Royalties reported for such period,
you also shall reimburse us for the full out-of-pocket costs of the
audit, including the costs of employee auditors calculated at
US$150 per hour per person for travel time during normal working
hours and actual working time. The obligation to maintain records
and to grant us and our resprsentatives access to such records
shall survive the expiration or earlier termination of this
Agreement.
24. MANUFACTURE OF ARTICLES BY THIRD PARTY MANUFACTURERS
a. If you at any time desire to have Articles or components
thereof containing Licensed Material manufactured by a third party,
you must, as a condition to the continuation of this Agreement,
notify us of the name and address of such manufacturer and the
Articles or components involved and obtain our prior written
permission to do so. If we are prepared to grant permission, we
willdo so if:
(i) you and each of your manufacturers and any
submanufacturers sign a Consent/Manufacturer's Agreement in the
form attached hereto; and
(ii) we receive suvh agteements properly signed.
b. Your purchase of Articles from a third party manufacturer
without such agreements as are required hereunder being signed and
delivered to us shall be a violation of this Agreement. It is not
our policy to reveal the names of your suppliers to third parties
or to any division of ours involved with buying products except a
may be necessary to enforce our contract rights or protect out
trademarks and copyrights.
c. If any such manufacturer utilizes Licensed Material or
Trademarks for any unauthorized purpose, you shall cooperate fully
in bringing such utilization to an immediate halt. If, by reason
of your not having supplied the above mentioned agreements to us or
not having given us the name of any
Page 21
penalty, loss, damage or expense, you will fully compensate us for
any cost or loss we sustain.
25. INDEMNITY
a. You shall indemnify us and Disney and our their related
companies during and after the term hereof against all claims,
liabilities (including settlements entered into in good faith with
your consent, not to be unreasonably withheld) and expenses
(including reasonable legal fees) arising out of your activities
hereunder or out of any defect (whether obvious or hidden and
whether or not present in any sample approved by us) in any Article
or arising from personal injury, property damage, or any
infringement of any rights of any other person by the manufacture,
sale, possession or use of Articles or their failure to comply with
applicable laws, regulations and standards. The parties
indemnified hereunder shall include Disney Enterprises, Inc. and
its parent, subsidiaries and their officers, directors, employees
and agents. This agreement to indemnify shall survive the
expiration or earlier termination of this Agreement. The indemnity
shall not apply to any claim or liability relating to any
infringement of the copyright of a third party caused by your
utilization of the Licensed Material and the Trademarks in
accordance with provisions hereof.
b. We shall indemnify you during and after the term hereof
against all claims, liabilities (including settlements entered into
in good faith with our consent, not to be unreasonably withheld)
and expenses (including reasonable legal fees) arising out of any
claim that your use of any representation of the Licensed Material
or the Trademarks approved in accordance with the provisions of
this agreement infringes the copyright of any third party or
infringes any right granted by us or Disney to such third party.
You shall not, however, be entitled to recover for lost profits.
c. Additionally, if by reason of any claims referred to in
Subparagraph 25(b) you are precluded from selling any stock of
Articles or utilizing any materials in your possession or which
come into your possession by reason of any required recall, we
shall be obligated to purchase such Articles and materials from you
at their out-of-pocket cost to you, excluding overhead, but we
shall have no other responsibility or liability with respect to
such Articles or materials.
d. No warranty or indemnity is given with respect to any
liability or expense arising from any claim that use of the
Licensed Material or the Trademarks on or in connection with the
Articles hereunder or any packaging, advertising or promotional
material infringes on any trademark right of any third party or
otherwise constitutes unfair competition by reason of any prior
rights acquired by such third party other than rights acquired
Page 22
party other than rights acquired from Disney. It is expressly
agreed that it is your responsibility to carry out such
investigations as you may deem appropriate to establish that
Articles, packaging, promotional and advertising material which are
manufactured or created hereunder, including any use made of the
Licensed Material and the Trademarks therewith, do not infringe
such right of any third party, and neither we nor Disney shall be
liable to you if such infringement occurs.
e. You an we agree to give each other prompt written notice of
any claim or suit which may arise under the indemnity provisions
set forth above. Without limiting the foregoing, you agree to give
us written notice of any product liability claim made with respect
to any Article within seven (7) days of your receipt of the claim.
26. INSURANCE
You shall maintain at your cost in full force and effect at all
times while this Agreement is in effect and for three years
thereafter commercial general liability insurance, including
contractual and products liability coverage waiving subrogation
with limits of no less than the equivalent of ten million French
Francs (FF10,000,000) per occurrence and naming as additional
insured those indemnified in Paragraph 25 hereof. You shall
deliver to us a certificate or certificates of insurance evidencing
satisfactory coverage and indicating that we shall receive written
notification of cancellation, non-renewal or of any material change
in coverage at least 30 days prior to the effective date thereof.
Compliance herewith in no way limits your indemnity obligations,
except to the extent that your insurance company actually pays us
amounts which you would otherwise be obligated to pay us.
27. WITHDRAWAL OF LICENSED MATERIAL
You agree that we may, without obligation to you other than to give
you written notice thereof, withdraw from the scope of this
Agreement any Licensed Material which by the Marketing Date or, in
the absence of such a date being specified in Subparagraph 1(m), by
six(6) months from the commencement of the Principal Term, is not
being used on or in connection with Articles. We may also withdraw
any Licensed Material or Articles the use or sale of which under
this Agreement would infringe or reasonably be claimed to infringe
the rights, other than rights granted by us, of a third party, in
which case our obligations to you shall be limited to the purchase
at cost of Articles and other materials utilizing such withdrawn
Licensed Material which cannot be sold or used.
Page 23
28. TERMINATION
Without prejudice to any other right or remedy available to us:
a. If you fail to manufacture, sell and distribute the
Articles or to furnish statements or to pay Royalty invoices as
herein provided, or if you breach the terms of this Agreement, and
if any such failure is not corrected within 15 days after we send
you written notice thereof (or, in the event of a breach which
cannot be corrected within 15 days, if you fail to commence such
correction within 15 days and thereafter diligently prosecute it to
completion), we shall have the right at any time to terminate this
Agreement by giving you written notice thereof.
b. We shall have the right at any time to terminate this
Agreement by giving you written notice thereof:
(i) if you deliver to any customer without our written
authorization merchandise containing representations of Licensed
Material or other material the copyright or other proprietary
rights to which are owned by Disney other than Articles listed
herein and approved in accordance with the provisions hereof; or
(ii) if you deliver Articles outside the European
Economic Area or knowingly sell Articles to a third party for
delivery outside the European Economic Area (except when such
Articles are destined for immediate re-importation into the
European Economic Area), unless pursuant to a written distribution
permission or separate written license agreement with us or any
affiliate of ours;
(iii) if a breach occurs which is of the same nature, and
which violates the same provision of this Agreement, as a breach of
which we have previously given you written notice;
(iv) if you breach any material term of any other license
agreement between us, and we terminate such agreement for cause;
(v) if you make any assignment for benefit of creditors,
or file a petition in bankruptcy, or are adjudged bankrupt, or
become insolvent, or are placed in the hands of a receiver, or if
the equivalent of any such proceedings or acts occurs, though known
by some other name or term; and/or
(vi) if you are not permitted or are unable to operate
your business in the usual manner, or are not permitted or are
unable to provide us with assurance satisfactory to us that
Page 24
you will so operate your business, as debtor in possession or its
equivalent, or are not permitted, or are unable to otherwise meet
your obligations under this Agreement or to provide us with
assurance satisfactory to us that you will meet such obligations.
29. RIGHTS AND OBLIGATIONS UPON EXPIRATION OR TERMINATION
Upon the expiration or termination of this Agreement all rights
herein granted to you shall revert to us, and we shall be entitled
to retain as our property all Royalties and other things of value
paid or delivered to us. You agree that from the expiration or
termination of this Agreement you shall neither manufacture not
have manufactured for you any Articles, that upi will deliver to us
any and art work (including animation cels and drawings) which may
have been provided to you or used or created by you in connection
with this Agreement, that you will at our option either sell to us
at a price to be negotiated in good faith between us (reflecting
the residual economic value but at a rate not exceeding cost to
you) or destroy or efface any molds, plates and other items used to
reproduce Licensed Material or Trademarks and that, subject as
hereinafter provided, you will cease selling Articles. If you have
any unsold Articles in inventory on the expiration or termination
of this Agreement, you shall provide us with a full statement of
the kinds and numbers of such unsold Articles and, if such
statement has been provided to us and if you have fully complied
with the terms of this Agreement including the payment of all
Royalties due and the Guarantee, you shall have the right for a
limited period of 90 days from such expiration or earlier
termination date to sell off and deliver such Articles; provided
however, in recognition of our interest in maintaining a stable and
viable market for the Articles during and after the sell-off
period, you agree to refrain from "dumping" the Articles in the
Territory or in the European Economic Area during the sell-off
period. For purposes of this paragraph 29, "dumping" shall mean the
distribution of product at volume levels significantly above your
prior sales practices with respect to the Articles and at price
levels significantly below your prior sales practices with respect
to the Articles, provided that nothing contained herein shall be
deemed to restrict your ability to set product prices at your
discretion. You shall furnish us statements covering such sales
and pay us Royalties on such sales. Such Royalties shall not be
applied against the Advance or toward meeting the Guarantee.
Except as otherwise agreed by us in writing, any inventory of
Articles in your possession or control after the expiration or
termination hereof and of any sell-off period granted hereunder
shall be destroyed or all Licensed Material and Trademarks removed
or obliterated therefrom or, if we so elect at our option, shall be
sold to us at cost.
Page 25
30. WAIVERS
A waiver by either of us at any time of a breach of any provision
of this Agreement shall not apply to any breach of any other
provision of this Agreement or imply that a breach of the same
provision at any other time has been or will be waived or that this
Agreement has been in any way amended, nor shall any failure by
either party to object to conduct of the other be deemed to waive
such party's right to claim that a repetition of such conduct is a
breach hereof.
31. PURCHASE OF ARTICLES BY US OR DISNEY
If we or Disney wish to purchase Articles, you agree to sell such
Articles to us or Disney or any subsidiary of ours or theirs at as
low a price as you charge for similar quantities sold to your
regular customers and to pay us Royalties on any such sales.
32. NON-ASSIGNABILITY
a. You shall not voluntarily or by operation of law assign,
sublicense, transfer, encumber or otherwise dispose of all or any
part of your interest in this Agreement without our prior written
consent, to be granted or withheld in our absolute discretion. Any
attempted assignment, sublicense, transfer, encumbrance or other
disposal without such consent shall be void and shall constitute a
material default and breach of this Agreement. "Transfer" within
the meaning of this Paragraph 32 shall include any merger or
consolidation involving your company, its majority shareholder or
its ultimate controlling entity, any sale or transfer of all or
substantially all of your parent company's or your ultimate
controlling entity's assets and any transaction or series of
related transactions resulting in the transfer of thirty-three and
one-third percent (33-1/3%) or more of the voting stock of your
company, its majority shareholder or its ultimate controlling
entity or, if your company is a partnership, thirty-three and one-
third percent (33-1/3) or more of the profit and loss participation
in your company or the occurrence of any of the foregoing with
respect to any general partner of your company.
b. You agree to provide us with at least two (2) weeks prior
written notice of any desired assignment of this Agreement or other
transfer as defined in Subparagraph 32(a). Our consent (if given)
to any assignment of this Agreement or other transfer shall be
subject to such terms and conditions as we deem appropriate,
including but not limited to payment of a transfer fee. The amount
of the transfer fee shall be determined by us based upon the
circumstances of the particular assignment or transfer, taking
Page 26
into account such factors as the estimated value of the license
being assigned or otherwise transferred; the risk of business
interruption or loss of quality, production or control we may
suffer as a result of the assignment or other transfer, the
identity, reputation, creditworthiness, financial condition and
business capabilities of the proposed assignee or transferee; and
our internal costs related to the assignment or other transfer;
provided however, in no event shall the transfer fee be less than
an amount equal to the actual Royalties earned hereunder in the
twelve (12) month period immediately preceding the notice of
proposes assignment or, in such figures are unavailable, then an
amount equal to the Guarantee for the first year of this Agreement.
The foregoing transfer fee shall not apply if this Agreement is
assigned to one or more of your affiliates as part of a corporate
reorganization involving some or all of the entities existing in
your corporate structure when this Agreement is signed; provided
however, that you must give us written notice of such assignment
and a description of the reorganization. If you have more than ne
merchandise license agreement with us for the Territory, and an
event occurs which would trigger the transfer fee provisions of
this Paragraph 32, you need only pay to us one transfer fee,
determined by us as set forth above. The provision of this
Subparagraph 32 (b) shall supersede any conflicting provisions on
this subject in any merchandise license agreement previously
entered into between you and us.
c. Notwithstanding Subparagraphs 32(a) and (b), you may, upon
written notice to us, unless we have objected within thirty (30)
days of receipt of such notice, sublicense your rights hereunder to
your affiliates. You, hereby irrevocably and unconditionally
guarantee that they will observe and perform all of your
obligations hereunder, including without limitation, the provisions
governing approvals, and compliance with approved samples,
applicable laws and all other provisions hereof, and that they will
otherwise adhere strictly to all of the terms hereof, and act in
accordance with your obligations hereunder. Any involvement of an
affiliate in the activities which are the subject of this Agreement
shall be deemed carried on pursuant to such a sublicense and thus
covered by such guarantee, but, unless notified by us as a breach
of this Agreement.
Page 27
33. RELATIONSHIP
This Agreement does not provide for a joint venture, partnership,
agency or employment relationship between us.
34. CHOICE OF LAW AND VENUE
This Agreement shall be governed and interpreted according to the
laws of the Republic of France. Any legal actions pertaining to
this Agreement shall be commenced with the courts of Paris,
however, each party has the right to assert claims vis a vis the
other at its general place of jurisdiction. The prevailing party
shall be entitled to recover reasonable attorneys' fees and costs
incurred in any action.
35. HEADINGS
Headings of paragraphs herein are for convenience of reference only
and are without substantive significance.
36. MODIFICATIONS OR EXTENSIONS OF THIS AGREEMENT
Except as otherwise provided herein, this Agreement can only be
extended or modified by a writing signed by both parties.
37. NOTICES
All notices which either party is required or may desire to serve
upon the other party shall be in writing, addressed to the party to
be served at the address set forth on page 1 of this Agreement,
(unless we have provided you with a notice of sublicense of this
agreement, in which case you shall address all notices to the
sublicensor(s) as shall have been notified to you pursuant to such
notice of sublicense) and may be served personally, sent by an
internationally recognized courier service, by postage prepaid
registered or certified mail, addressed as herein provided (unless
and until otherwise notified) or by facsimile transmission
confirmed by a transmission report. Such notice shall be deemed
served upon personal delivery, on the date it is recorded as
delivered by receipt of courier service or mailing receipt, or upon
the date shown on the facsimile transmission report; provided,
however, that service of a request for approval of materials under
this Agreement will be effective only upon our actual receipt of
the request and of any required accompanying materials.
Page 28
38. MUSIC
Music is not licensed hereunder. Any charges, fees or royalties
payable for music rights or any other rights not covered by this
Agreement shall be in addition to the Royalties and covered by
separate agreement.
39. SEVERABILITY
The invalidity or unenforceability of any provision or portion of
this Agreement shall effect the validity or enforceability or any
other provision or portion of this Agreement.
40. PREVIOUS AGREEMENTS
This Agreement, and any confidentiality agreement you may have
signed pertaining to any of the Licensed Material, contains the
entire agreement between us concerning the subject matter hereof,
and supersedes any pre-existing agreement and any oral or written
communications between us concerning the subject matter hereof.
However, this Paragraph 40 shall not be construed as preventing
application of any provision which survives the term hereof.
Further, if any pre-existing agreement(s) allow you to sell or
distribute Articles outside the Territory or to manufacture any
Articles outside the Territory, such agreements(s) shall be deemed
to remain in effect to the extent that they relate to Licensed
Material and Articles licensed hereunder.
41. CONFIDENTIALITY
You represent and warrant that you did not disclose to any third
party the prospect of a license from us, and that you did not trade
on a prospect of a license from us prior to full execution of this
Agreement. You agree to keep the terms and conditions to any third
party without obtaining our prior written consent; provided,
however, that this Agreement may be disclosed on a need-to-know
basis to your attorneys and accountants who agree to be bound by
this confidentiality provision.
Page 29
Please sign below under the word "Agreed". When signed by both
parties this shall constitute an agreement between us.
THE XXXX DISNEY COMPANY
LICENSING (EUROPE, MIDDLE
EAST & AFRICA)S.A.
By:_______________________
Title:_____________________
Date:______________________
AGREED:
NASCO Products International, Inc.
By:/s/Xxxxxxxx Xxxxxxxx-Xxxxx
Title: President
Page 30
CONSENT/MANUFACTURER'S AGREEMENT
DISNEY CHARACTER MERCHANDISE
Licensee: Nasco Products International Inc
00, Xxxxx Xxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
X.X.X.
Reference is made to the license agreement dated September 12, 1996
between The Xxxx Disney Company Licensing (Europe, Middle East &
Africa)S.A. ("Licensor") and Nasco Products International Inc.
("Licensee"), expiring on May 31, 1998. Licensor hereby consents
to the manufacture of the "Authorized Articles" referenced below,
for the account of Licensee, upon the condition that the
Manufacturer shall sign and fully comply in all respects with this
Agreement. Failure of said condition shall entitle Licensor to
terminate the Manufacturer's Agreement forthwith and require that
that portion of all copies and molds or other devices used to
manufacture the "Authorized Articles" in possession of the Licensee
or the Manufacturer be immediately delivered to Licensor or be
destroyed to Licensor's satisfaction.
NAME AND ADDRESS Hi Performance Company Limited
OF MANUFACTURER: 3F Xxxxxx Estate Phase 3 Xxxx 0
00 Xxx Xxxx Xxxxxx, Xxxxxxx Xxxx Xxxx
TERRITORY OF MANUFACTURE China - Hong Kong
EXPIRATION OF
LICENSE AGREEMENT: May 31, 1998
(unless sooner terminated or extended)
AUTHORIZED ARTICLES:
Sportbags, Sport backpacks, Sport wallets, Sport
tote bags, Sport waistpacks all to be made of 70D
Nylon minimum with PVC backing or 600D Polyester
minimum with PVC backing.
DISNEY PROPERTIES:
Mickey Mouse, Xxxxxx Mouse, Xxxxxx Duck, Daisy Duck,
Goofy, Pluto, only used in association with sport
themes for the "Mickey Unlimited" brand.
The Manufacturer signing below agrees that (except as may be
authorized under a separate Disney Manufacturer's agreement or
license):
1. The Manufacturer will not manufacture the Authorized Articles to
the order of anyone but the Licensee, will invoice only the
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Licensee, will not ship to anyone other than the Licensee or
Licensee;s designees and will not ship after the expiration date of
the License.
2. The Manufacturer will not subcontract production of the
Authorized Articles or components which contain the Disney
Properties without Disney's written consent.
3. The Manufacturer will not (without Licensor's written consent)
manufacture merchandise utilizing any of the Disney Properties
listed above or any other properties the copyright or trademark to
which is owned by Disney, other than the Authorized Articles in
accordance with this agreement.
4. From time to time, the Manufacturer will permit Licensor's
authorized representative to inspect its activities and premises,
accounting books and invoices relevant to its manufacture and
supply of Authorized Articles.
5. The Manufacturer will not publish or cause the publication of
pictures of the Authorized Articles in any publication or
promotional material, nor advertise the fact that it is permitted
to manufacture Authorized Articles, nor use the name "Disney" or
any variant thereof without Licensor's prior written consent.
6. In manufacturing the Authorized Articles, the Manufacturer will
comply with all applicable laws and regulations, voluntary industry
standards, codes or other obligations (collectively, "Laws"),
including but not limited to, applicable laws and regulations,
voluntary industry standards, codes or other obligations
(collectively, "Law"), including but not limited to, applicable
health and safety standards and labor laws for manufacturing
operations. Specifically, the Manufacturer covenants that:
a. The Manufacturer agrees not to use child labor in the
manufacturing or packaging of Disney merchandise. The Term "child"
refers to a person younger than the age of completing compulsory
education, but in no case shall any child younger than fourteen
(14) years of age be employed in the manufacturing of Disney
merchandise.
b. The Manufacturer agrees to provide employees with a safe
and healthy workplace in compliance with all applicable Laws. The
Manufacturer agrees to provide Disney with all information Disney
may request about manufacturing or packaging facilities for the
Articles.
c. The Manufacturer agrees only to employ persons whose
presence is voluntary. The Manufacturer agrees not to use prison
labor, or to use corporal punishment or other forms of mental or
physical coercion as a form of discipline of employees.
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d. The Manufacturer agrees to comply with all applicable wage
and hour Laws, including minimum wage, overtime, and maximum hours.
The Manufacturer agrees to utilize fair employment practices as
defined by applicable Laws.
e. The manufacturer not to discriminate in hiring and
employment practices on grounds of race, religion, nation origin
political affiliation, sexual preference or gender.
f. The Manufacturer agrees to comply with all applicable
environmental Laws.
g. The Manufacturer agrees that Licensor may engage in
activities such as unannounced inspections of manufacturing or
packaging facilities in order to monitor compliance with applicable
laws.
7. Upon expiration or termination of the License Agreement, or
upon notification by Licensor or Licensee, the Manufacturer will
(a) immediately cease manufacturing the Authorized Articles and
deliver to Licensor or its authorized representative that portion
of any and all molds, plates, engravings or other devices used to
reproduce the Disney Properties, or (b) provide Licensor with
satisfactory evidence that the Disney properties, have been erased
or eradicated and are no longer reproducible.
LICENSOR: LICENSEE:
By:/s/P. Sissmann By:/s/Xxxxxxxx Xxxxxxxx-Xxxxx
Title: President Title: President
MANUFACTURER:
By:/s/Xxx Xxxxxxxxx
Title: President
