EXHIBIT (H)(19)(A)
SUB-LICENSE AGREEMENT
Agreement effective as of this 1st of January, 2001, by and between
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Fidelity Distributors Corporation (hereinafter called "Fidelity"), a corporation
organized and existing under the laws of the Commonwealth of Massachusetts, with
a principal place of business at 00 Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx,
and American International Life Assurance Company of New York (hereinafter
called "Company"), a company organized and existing under the laws of the State
of New York, with a principal place of business at 00 Xxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
WHEREAS, FMR Corp., a Massachusetts corporation, the parent company of
Fidelity, is the owner of the trademark and the tradename "FIDELITY INVESTMENTS"
and is the owner of a trademark in a pyramid design (hereinafter, collectively
the "Fidelity Trademarks"), a copy of each of which is attached hereto as
Exhibit "A"; and
WHEREAS, FMR Corp. has granted a license to Fidelity (the "Master
License Agreement") to sub-license the Fidelity Trademarks to third parties for
their use in connection with Promotional Materials as hereinafter defined; and
WHEREAS, Company is desirous of using the Fidelity Trademarks in
connection with distribution of "sales literature and other promotional
material" with information, including the Fidelity Trademarks, printed in said
material (such material hereinafter called the Promotional Material). For the
purpose of this Agreement, "sales literature and other promotional material"
shall have the same meaning as in the certain Participation Agreement dated as
of the 1st day of January, 2001, among Fidelity, Company and Variable Insurance
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Products Fund III (hereinafter "Participation Agreement"); and
WHEREAS, Fidelity is desirous of having the Fidelity Trademarks used in
connection with the Promotional Material.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and adequacy whereof is hereby
acknowledged, and of the mutual promises hereinafter set forth, the parties
hereby agree as follows:
1. Fidelity hereby grants to Company a non-exclusive,
non-transferable license to use the Fidelity Trademarks in connection with the
promotional distribution of the Promotional Material and Company accepts said
license, subject to the terms and conditions set forth herein.
2. Company acknowledges that FMR Corp. is the owner of all right,
title and interest in the Fidelity Trademarks and agrees that it will do nothing
inconsistent with the ownership of the Fidelity Trademarks by FMR Corp., and
that it will not, now or hereinafter, contest any registration or application
for registration of the Fidelity Trademarks by FMR Corp., nor will it, now or
hereafter, aid anyone in contesting any registration or application for
registration of the Fidelity Trademarks by FMRCorp.
3. Company agrees to use the Fidelity Trademarks only in the form
and manner approved by Fidelity and not to use any other trademark, service xxxx
or registered trademark in combination with any of the Fidelity Trademarks
without approval by Fidelity.
4. Company agrees that it will place all necessary and proper
notices and legends in order to protect the interests of FMR Corp. and Fidelity
therein pertaining to the Fidelity Trademarks on the Promotional Material
including, but not limited to, symbols indicating trademarks, service marks and
registered trademarks. Company will place such symbols and legends on the
Promotional Material as requested by Fidelity or FMR Corp. upon receipt of
notice of same from Fidelity or FMR Corp.
5. Company agrees that the nature and quality of all of the
Promotional Material distributed by Company bearing the Fidelity Trademarks
shall conform to standards set by, and be under the control of, Fidelity.
6. Company agrees to cooperate with Fidelity in facilitating
Fidelity's control of the use of the Fidelity Trademarks and of the quality of
the Promotional Material to permit reasonable inspection of samples of same by
Fidelity and to supply Fidelity with reasonable quantities of samples of the
Promotional Material upon request.
7. Company shall comply with all applicable laws and regulations
and obtain any and all licenses or other necessary permits pertaining to the
distribution of said Promotional Material,
8. Company agrees to notify Fidelity of any unauthorized use of
the Fidelity Trademarks by others promptly as it comes to the attention of
Company. Fidelity or FMR Corp. shall have the sole right and discretion to
commence actions or other proceedings for infringement, unfair competition or
the like involving the Fidelity Trademarks and Company shall cooperate in any
such proceedings if so requested by Fidelity or FMR Corp.
9. This agreement shall continue in force until terminated by
Fidelity. This agreement shall automatically terminate upon termination of the
Master License Agreement. In addition, Fidelity shall have the right to
terminate this agreement at any time upon notice to Company, with or without
cause. Upon any such termination, Company agrees to cease immediately all use of
the Fidelity Trademarks and shall destroy, at Company's expense, any and ail
materials in its possession bearing the Fidelity Trademarks, and agrees that all
rights in the Fidelity Trademarks and in the goodwill connected therewith shall
remain the property of FMR Corp. Unless so terminated by Fidelity, or extended
by written agreement of the parties, this agreement shall expire on the
termination of that certain Participation Agreement.
10. Company shall indemnify Fidelity and FMR Corp. and hold each
of them harmless from and against any loss, damage, liability, cost or expense
of any nature whatsoever, including without limitation, reasonable attorneys'
fees and all court costs, arising out of use of the Fidelity Trademarks by
Company.
11. In consideration for the promotion and advertising of Fidelity
as a result of the distribution by Company of the Promotional Material, Company
shall not pay any monies as a royalty to Fidelity for this license.
12. This agreement is not intended in any manner to modify the terms
and conditions of the Participation Agreement. In the event of any conflict
between the terms and conditions herein and thereof, the terms and conditions of
the Participation Agreement shall control.
13. This agreement shall be interpreted according to the laws of
the Commonwealth of Massachusetts.
IN WITNESS WHEREOF, the parties hereunto set their hands and seals, and hereby
execute this agreement, as of the date first above written.
FIDELITY DISTRIBUTORS CORPORATION
By:
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Date:
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American International Life Assurance
Company of New York
By:
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Date:
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EXHIBIT A
Int. CI.: 36
Prior U.S. Cls.: 101 and 000
Xxx. Xx. 0,000,000
Xxxxxx Xxxxxx Patent and Trademark Office Registered Mar. 15, 1988
SERVICE XXXX
PRINCIPAL REGISTER
[Fidelity Investments Xxxx]
FMR CORP. (MASSACHUSETTS CORPORATION) NO CLAIM IS MADE TO THE EXCLUSIVE
00 XXXXXXXXXX XXXXXX RIGHT TO USE "INVESTMENTS", APART
XXXXXX, XX 00000, ASSIGNEE OF FROM THE XXXX AS SHOWN.
FIDELITY DISTRIBUTORS CORPORATION
(MASSACHUSETTS CORPORATION) SER. NO. 641,707, FILED 1-28-1987
XXXXXX, XX 00000
XXXX XXXXXX, EXAMINING ATTORNEY
FOR: MUTUAL FUND AND STOCK BROKERAGE
SERVICES, IN CLASS 36 (U.S. CLS. 101
AND 102)
FIRST USE 2-22-1984; IN COMMERCE
2-22-1984.
