EXHIBIT 10.43
SPRINT SPECTRUM
TRADEMARK AND SERVICE ▇▇▇▇
LICENSE AGREEMENT
BETWEEN
SPRINT SPECTRUM L.P.
AND
WASHINGTON OREGON WIRELESS, LLC
DATED AS OF JANUARY 25, 1999
SPRINT SPECTRUM TRADEMARK AND
SERVICE ▇▇▇▇ LICENSE AGREEMENT
THIS AGREEMENT is made as of the day of , 1999, by and
between Sprint Spectrum L.P., a Delaware limited partnership, as licensor
("Licensor"), and Washington-Oregon Wireless, L.L.C., an Oregon limited
liabilty company, as licensee ("Licensee"). The definitions for this
agreement are set forth on the "Schedule of Definitions".
RECITALS:
WHEREAS, Licensor is the owner of the U.S. trademarks and service
marks "THE CLEAR ALTERNATIVE TO CELLULAR" and "EXPERIENCE THE CLEAR
ALTERNATIVE TO CELLULAR TODAY" and such other marks as may be adopted and
established from time to time and the goodwill of the business symbolized
thereby; and
WHEREAS, Licensee desires to use the trademarks and service
marks in commerce;
NOW, THEREFORE, the parties, in consideration of the mutual
agreements herein contained and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, do hereby agree
as follows:
ARTICLE 1
GRANT OF TRADEMARK AND SERVICE ▇▇▇▇ RIGHTS; EXCLUSIVITY
Section 1.1. License.
(a) Grant of License. Subject to the terms and conditions hereof,
Licensor hereby grants to Licensee, and Licensee hereby accepts
from Licensor, for the term of this agreement, a
non-transferable, royalty-free license to use the Licensed Marks
solely for and in connection with the marketing, promotion,
advertisement, distribution, lease or sale of Sprint PCS Products
and Services and Premium and Promotional Items in the Service
Area.
(b) Related Equipment. The rights granted hereunder to Licensee shall
not include the right to manufacture equipment under the Licensed
Marks. However, subject to the terms and conditions hereof,
Licensor hereby grants to Licensee, and Licensee hereby accepts
from Licensor, for the term of this agreement, a
non-transferable, royalty-free license to market, promote,
advertise, distribute and resell and lease Related Equipment in
connection with the marketing, promotion, advertisement,
distribution, lease or sale by Licensee of Sprint PCS Products
and Services, and to furnish services relating to such Related
Equipment (including installation, repair and maintenance of
Related Equipment), under the Licensed Marks.
ARTICLE 2
QUALITY STANDARDS, MAINTENANCE
Section 2.1. Maintenance of Quality.
(a) Adherence to Quality Standards. In the course of marketing,
promoting, advertising, distributing, leasing and selling Sprint
PCS Products and Services and Premium and Promotional Items under
the Licensed Marks, Licensee shall maintain and adhere to
standards of quality and specifications that conform to or exceed
those quality standards and technical and operational
specifications adopted and/or amended in the manner provided
below ("Quality Standards") and those imposed by Law. Such
Quality Standards are designed to ensure that the quality of the
Sprint PCS Products and Services and Premium and Promotional
Items marketed, promoted, advertised, distributed, leased and
sold under the Licensed Marks are consistent with the high
reputation of the Licensed Marks and are in conformity with
applicable Laws.
(b) Establishment of Quality Standards. The parties acknowledge that
the initial Quality Standards for the Sprint PCS Products and
Services and Premium and Promotional Items are attached to the
Management Agreement as Exhibits 4.1, 4.2, 4.3, 7.2, and 8.1. The
Quality Standards shall (i) be consistent with the reputation for
quality associated with the Licensed Marks and (ii) be
commensurate with a high level of quality (taking into account
Licensee's fundamental underlying technology and standards),
consistent with the level of quality being offered in the market
for products and services of the same kind as the Sprint PCS
Products and Services.
(c) Changes in Quality Standards. In the event that Licensor wishes
to change the Quality Standards, it will notify Licensee in
writing of such proposed amendments, and will afford Licensee a
reasonable time period in which to adopt such changes as may be
required in order for Licensee to conform to the amended Quality
Standards.
Section 2.2. Rights of Inspection. In order to ensure that the
Quality Standards are maintained, Licensor and its authorized agents and
representatives shall have the right, but not the obligation, with prior
notice to Licensee, to enter upon the premises of any office or facility
operated by or for Licensee with respect to Sprint PCS Products and
Services and Premium and Promotional Items at all reasonable times, to
inspect, monitor and test in a reasonable manner facilities and equipment
used to furnish Sprint PCS Products and Services and Premium and
Promotional Items and, with prior written notice to Licensee, to inspect
the books and records of Licensee in a manner that does not unreasonably
interfere with the business and affairs of Licensee, all as they relate to
the compliance with the Quality Standards maintained hereunder.
Section 2.3. Marking; Compliance with Trademark Laws. Licensee shall
cause the appropriate designation "TM" or "SM" or the registration symbol
"(R)" to be placed adjacent to the Licensed Marks in connection with the
use thereof and to indicate such additional information as Licensor shall
reasonably specify from time to time concerning the license rights under
which Licensee uses the Licensed Marks. Licensee shall place the following
notice on all printed or electronic materials on which the Licensed Marks
appear: "THE CLEAR ALTERNATIVE TO CELLULAR", "EXPERIENCE THE CLEAR
ALTERNATIVE TO CELLULAR TODAY", and such other marks as may be adopted and
established from time to time, are trademarks and/or service marks of
Sprint Spectrum L.P., "used under license" or such other notice as Licensor
may specify from time to time.
Section 2.4. Other Use Restrictions. Licensee shall not use the
Licensed Marks in any manner that would reflect adversely on the image of
quality symbolized by the Licensed Marks.
ARTICLE 3
CONFIDENTIAL INFORMATION
Section 3.1. Maintenance of Confidentiality. Each of Licensor and
Licensee and their respective Controlled Related Parties (each a
"Restricted Party") shall cause their respective officers and directors (in
their capacity as such) to, and shall take all reasonable measures to cause
their respective employees, attorneys, accountants, consultants and other
agents and advisors (collectively, and together with their respective
officers and directors, "Agents") to, keep secret and maintain in
confidence the terms of this agreement and all confidential and proprietary
information and data of the other party or its Related Parties disclosed to
it (in each case, a "Receiving Party") in connection with the performance
of its obligations under this agreement (the "Confidential Information")
and shall not, and shall cause their respective officers and directors not
to, and shall take all reasonable measures to cause their respective other
Agents not to, disclose Confidential Information to any Person other than
the parties, their Controlled Related Parties and their respective Agents
that need to know such Confidential Information. Each party further agrees
that it shall not use the Confidential Information for any purpose other
than determining and performing its obligations and exercising its rights
under this agreement. Each party shall take all reasonable measures
necessary to prevent any unauthorized disclosure of the Confidential
Information by any of their respective Controlled Related Parties or any of
their respective Agents. The measures taken by a Restricted Party to
protect Confidential Information shall be not deemed unreasonable if the
measures taken are at least as strong as the measures taken by the
disclosing party to protect such Confidential Information.
Section 3.2. Permitted Disclosures. Nothing herein shall prevent any
Restricted Party or its Agents from using, disclosing, or authorizing the
disclosure of Confidential Information it receives and which:
(i) has been published or is in the public domain, or which
subsequently comes into the public domain, through no fault of
the receiving party;
(ii) prior to receipt hereunder was property within the legitimate
possession of the Receiving Party or, subsequent to receipt
hereunder is lawfully received from a third party having rights
therein without restriction of the third party's right to
disseminate the Confidential Information and without notice of
any restriction against its further disclosure.
(iii) is independently developed by the Receiving Party through
Persons who have not had, either directly or indirectly, access
to or knowledge of such Confidential Information;
(iv) is disclosed to a third party with the written approval of the
party originally disclosing such information, provided that
such Confidential Information shall cease to be confidential
and proprietary information covered by this agreement only to
the extent of the disclosure so consented to;
(v) subject to the Receiving Party's compliance with Section 3.4
below, is required to be produced under order of a court of
competent jurisdiction or other similar requirements of a
governmental agency, provided that such Confidential
Information to the extent covered by a protective order or its
equivalent shall otherwise continue to be Confidential
Information required to be held confidential for purpose of
this agreement; or
(vi) subject to the Receiving Party's compliance with Section 3.4
below, is required to be disclosed by applicable Law or a stock
exchange or association on which such Receiving Party's
securities (or those of its Related Party) are listed.
Section 3.3. Financial Institutions. Notwithstanding this Article 3,
any party may provide Confidential Information to any financial institution
in connection with borrowings from such financial institution by such party
or any of its Controlled Related Parties, so long as prior to any such
disclosure such financial institution executes a confidentiality agreement
that provides protection substantially equivalent to the protection
provided the parties in this Article 3.
Section 3.4. Procedures. In the event that any Receiving Party (i)
must disclose Confidential Information in order to comply with applicable
Law or the requirements of a stock exchange or association on which such
Receiving Party's securities or those of its Related Parties are listed or
(ii) becomes legally compelled (by oral questions, interrogatories,
requests for information or documents, subpoenas, civil investigative
demand or otherwise) to disclose any Confidential Information, the
Receiving Party shall provide the disclosing party with prompt written
notice so that in the case of clause (i), the disclosing party can work
with the Receiving Party to limit the disclosure to the greatest extent
possible consistent with legal obligations or in the case of clause (ii),
the disclosing party may seek a protective order or other appropriate
remedy or waive compliance with the provisions of this agreement. In the
case of a clause (ii), (A) if the disclosing party is unable to obtain a
protective order or other appropriate remedy, or if the disclosing party so
directs, the Receiving Party shall, and shall cause its employees to,
exercise all commercially reasonable efforts to obtain a protective order
or other appropriate remedy at the disclosing party's reasonable expense,
and (B) failing the entry of a protective order or other appropriate remedy
or receipt of a waiver hereunder, the Receiving Party shall furnish only
that portion of the Confidential Information which it is advised by opinion
of its counsel is legally required to be furnished and shall exercise all
commercially reasonable efforts to obtain reliable assurance that
confidential treatment shall be accorded such Confidential Information, it
being understood that such reasonable efforts shall be at the cost and
expense of the disclosing party whose Confidential Information has been
sought.
Section 3.5. Survival. The obligations under this Article 3 shall
survive, as to any party, until two (2) years following the date of
termination of this agreement, and, as to any Controlled Related Party of a
party, until two (2) years following the earlier to occur of (A) the date
that such Person is no longer a Controlled Related Party of a party, or (B)
the date of the termination of this agreement; provided that such
obligations shall continue indefinitely with respect to any trade secret or
similar information which is proprietary to a party or its Controlled
Related Parties and provides such party or its Controlled Related Parties
with an advantage over its competitors.
ARTICLE 4
REPRESENTATIONS, WARRANTIES AND COVENANTS OF LICENSEE
Section 4.1. Licensor's Ownership. Licensee acknowledges Licensor's
exclusive right, title and interest in and to the Licensed Marks and
acknowledges that nothing herein shall be construed to accord to Licensee
any rights in the Service Area in the Licensed Marks except as expressly
provided, herein. Licensee acknowledges that its use in the Service Area of
the Licensed Marks shall not create in Licensee any right, title or
interest in the Service Area in the Licensed Marks and that all use in the
Service Area of the Licensed Marks and the goodwill symbolized by and
connected with such use of the Licensed Marks will inure solely to the
benefit of the Licensor.
Section 4.2. No Challenge by Licensee. Licensee covenants that (i)
Licensee will not at any time challenge Licensor's rights, title or
interest in the Licensed Marks (other than to assert the specific rights
granted to Licensee under this agreement), (ii) Licensee will not do or
cause to be done or omit to do anything, the doing, causing or omitting of
which would contest or in any way impair or tend to impair the rights of
Licensor in the Licensed Marks, and (iii) Licensee will not represent to
any third party that Licensee has any ownership or rights in the Service
Area with respect to the Licensed Marks other than the specific rights
conferred by this agreement.
ARTICLE 5
REPRESENTATIONS, WARRANTIES AND COVENANTS OF LICENSOR
Section 5.1. Title to the Licensed Marks. Licensor represents and
warrants that:
(a) Licensor has good title to the Licensed Marks and has the right
to grant the licenses provided for hereunder in accordance with
the terms and conditions hereof, free of any liabilities,
charges, liens, pledges, mortgages, restrictions, adverse claims,
security interests, rights of others, and encumbrances of any
kind (collectively, "Encumbrances"), other than Encumbrances
which will not restrict or interfere in any material respect with
the exercise by Licensee of the rights granted to Licensee
hereunder.
(b) There is no claim, action, proceeding or other litigation pending
or, to the knowledge of Licensor, threatened with respect to
Licensor's ownership of the Licensed Marks or which, if adversely
determined, would restrict or otherwise interfere in any material
respect with the exercise by Licensee of the rights purported to
be granted to Licensee hereunder.
Except as expressly provided above in this Section 5.1, Licensor
makes no representation or warranty of any kind or nature whether express
or implied with respect to the Licensed Marks (including freedom from third
party infringement of the Licensed Marks).
The representations and warranties provided for in this Section 5.1
shall survive the execution and delivery of this agreement.
Section 5.2. Other Licensees. In the event Licensor grants to any
third party any licenses or rights with respect to the Licensed Marks,
Licensor shall not, in connection with the grant of any such license or
rights, take any actions, or suffer any omission that would adversely
affect the existence or validity of the Licensed Marks or conflict with the
rights granted to Licensee hereunder.
Section 5.3. Abandonment. Licensor covenants and agrees that, during
the term of this agreement, it will not abandon the Licensed Marks.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF BOTH PARTIES
Section 6.1. Representations and Warranties. Each party hereby
represents and warrants to the other party as follows:
(a) Due Incorporation or Formation; Authorization of Agreement. Such
party is a corporation duly organized, a limited liability
company duly organized or a partnership duly formed, validly
existing and, if applicable, in good standing under the laws of
the jurisdiction of its incorporation or formation and has the
corporate, company or partnership power and authority to own its
property and carry on its business as owned and carried on at the
date hereof and as contemplated hereby. Such party is duly
licensed or qualified to do business and, if applicable, is in
good standing in each of the jurisdictions in which the failure
to be so licensed or qualified would have a material adverse
effect on its financial condition or its ability to perform its
obligations hereunder. Such party has the corporate, company or
partnership power and authority to execute and deliver this
agreement and to perform its obligations hereunder and the
execution, delivery and performance of this agreement have been
duly authorized by all necessary corporate, company or
partnership action. Assuming the due execution and delivery by
the other party hereto, this agreement constitutes the legal,
valid and binding obligation of such party enforceable against
such party in accordance with its terms, subject as to
enforceability to limits imposed by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and the
availability of equitable remedies.
(b) No Conflict with Restrictions; No Default. Neither the execution,
delivery and performance of this agreement nor the consummation
by such party of the transactions contemplated hereby (i) will
conflict with, violate or result in a breach of any of the terms,
conditions or provisions of any law, regulation, order, writ,
injunction, decree, determination or award of any court, any
governmental department, board, agency or instrumentality,
domestic or foreign, or any arbitrator, applicable to such party
or any of its Controlled Related Parties, (ii) will conflict
with, violate, result in a breach of or constitute a default
under any of the terms, conditions or provisions of the articles
of incorporation, articles of organization or certificate of
formation, bylaws, operating agreement or limited liability
company agreement, or partnership agreement of such party or any
of its Controlled Related Parties or of any material agreement or
instrument to which such party or any of its Controlled Related
Parties is a party or by which such party or any of its
Controlled Related Parties is or may be bound or to which any of
its material properties or assets is subject (other than any such
conflict, violation, breach or default that has been validly and
unconditionally waived), (iii) will conflict with, violate,
result in a breach of, constitute a default under (whether with
notice or lapse of time or both), accelerate or permit the
acceleration of the performance required by, give to others any
material interests or rights or require any consent,
authorization or approval under any indenture, mortgage, lease
agreement or instrument to which such party or any of its
Controlled Related Parties is a party or by which such party or
any of its Controlled Related Parties is or may be bound, or (iv)
will result in the creation or imposition of any lien upon any of
the material properties or assets of such party or any of its
Controlled Related Parties, which in any such case could
reasonably be expected to materially impair such party's ability
to perform its obligations under this agreement or to have a
material adverse effect on the consolidated financial condition
of each party or its Parent.
(c) Governmental Authorizations. Any registration, declaration or
filing with, or consent, approval, license, permit or other
authorization or order by, any governmental or regulatory
authority, domestic or foreign, that is required to be obtained
by such party in connection with the valid execution, delivery,
acceptance and performance by such party under this agreement or
the consummation by such party of any transaction contemplated
hereby has been completed, made or obtained, as the case may be.
(d) Litigation. There are no actions, suits, proceedings or
investigations pending or, to the knowledge of such party,
threatened against or affecting such party or any of its
Controlled Related Parties or any of their properties, assets or
businesses in any court or before or by any governmental
department, board, agency or instrumentality, domestic or
foreign, or any arbitrator which could, if adversely determined
(or, in the case of an investigation could lead to any action,
suit or proceeding, which if adversely determined could),
reasonably be expected to materially impair such party's ability
to perform its obligations under this agreement or to have a
material adverse effect on the consolidated financial condition
of such party or its parent; and such party or any of its
Controlled Related Parties has not received any currently
effective notice of any default, and such party or any of its
Controlled Related Parties is not in default, under any
applicable order, writ, injunction, decree, permit, determination
or award of any court, any governmental department, board, agency
or instrumentality, domestic or foreign, or any arbitrator, which
default could reasonably be expected to materially impair such
party's ability to perform its obligations under this agreement
or to have a material adverse effect on the consolidated
financial condition of such party or its Parent.
Section 6.2. Survival. The representations and warranties provided
for under this Article 6 will survive the execution and delivery of this
agreement.
ARTICLE 7
PROSECUTION OF INFRINGEMENT CLAIMS
Section 7.1. Notice and Prosecution of Infringement. Licensee agrees
to notify Licensor promptly, in writing, of any alleged, actual or
threatened infringement of any of the Licensed Marks within the Service
Area of which Licensee becomes aware. Licensor has the sole right to
determine whether or not to take any action on such infringements. Licensor
has the sole right to employ counsel of its choosing and to direct any
litigation and settlement of infringement actions. Any recoveries, damages
and costs recovered through such proceedings shall belong exclusively to
Licensor, and Licensor shall be solely responsible for all costs and
expenses (including attorney fees) of prosecuting such actions. Licensee
agrees to provide Licensor with all reasonably requested assistance in
connection with such proceedings.
ARTICLE 8
LICENSEE DEFENSE AND INDEMNIFICATION OF LICENSOR
Section 8.1. Indemnification. (a) Each party hereby agrees to
indemnify the other party against and agrees to hold it harmless from any
Loss incurred or suffered by such other party arising out of or in
connection with:
(i) the material breach of any representation or warranty made by
such party in this agreement; and
(ii) the material breach of any covenant or agreement by such party
contained in this agreement.
(b) In addition to the indemnification provided for in Section
8.1(a), Licensee agrees to indemnify Licensor against and hold
it harmless from any Loss suffered or incurred by Licensor or
its Controlled Related Parties by reason of a third party claim
arising out of or relating to (i) the use of the Licensed Marks
by Licensee; or (ii) the marketing, promotion, advertisement,
distribution, lease or sale by Licensee (or any permitted
sublicensee) or by any additional Licensee (or any permitted
sublicensee) of any Sprint PCS Products and Services, Related
Equipment or Premium and Promotional Items under the Licensed
Marks pursuant to this agreement, including unfair or
fraudulent advertising claims, warranty claims and product
defect or liability claims, pertaining to the Sprint PCS
Products and Services, Related Equipment or Premium and
Promotional Items. Notwithstanding the foregoing, Licensee will
not be required under this paragraph (b) to indemnify any Loss
arising solely out of Licensee's use of the Licensed Marks in
compliance with the terms of the Trademark and Service ▇▇▇▇
Usage Guidelines; provided that Licensor shall have no
obligation to indemnify for third-party claims alleged to arise
from the specifics of uses of third-party trademarks or service
marks, or the specifics of claims made, in marketing materials
prepared by or for Licensee, which marketing materials have not
been approved by Licensor prior to the publication out of which
such claims are alleged to have arisen.
ARTICLE 9
OBLIGATIONS/SETOFF
Section 9.1. Obligations/Setoff. The obligations of the parties as
set forth in this agreement shall be unconditional and irrevocable, and
shall not be subject to any defense or be released, discharged or otherwise
affected by any matter, including impossibility, illegality,
impracticality, frustration of purpose, force majeure, act of government,
the bankruptcy or insolvency of any party hereto, and the obligations of
each party shall not be subject to any right of setoff or recoupment which
such party may not or hereafter have against the other party.
ARTICLE 10
LIMITATION ON USE OF LICENSED MARKS
Section 10.1. Restrictions on Use. Licensee is not permitted to make
any use of the Licensed Marks in connection with products or services other
than the Sprint PCS Products and Services, and as specifically authorized
in Sections 1.1(b) above with respect to Related Equipment and Premium and
Promotional Items, nor to make any use of the Licensed Marks directed
outside of the Service Area.
Section 10.2 Adherence to Trademark and Service ▇▇▇▇ Usage
Guidelines. Licensee agrees to comply with and adhere to Trademark and
Service ▇▇▇▇ Usage Guidelines for the depiction or presentation of the
Licensed Marks, as furnished by Licensor. Prior to Licensee depicting or
presenting any of the Licensed Marks on any type of marketing, advertising
or promotional materials, Licensee agrees to submit samples of such
materials to Licensor for approval. Licensor shall have fourteen (14) days
from the date Licensor receives such materials to approve or object to any
such materials submitted to Licensor for review. In the event Licensor does
not object to such materials within such fourteen (14) day period, such
materials shall be deemed approved by Licensor. Thereafter, Licensee shall
not be obligated to submit to Licensor materials prepared in accordance
with the samples previously approved by Licensor and the Trademark and
Service ▇▇▇▇ Usage Guidelines; provided, however, Licensee shall, at the
reasonable request of Licensor, continue to furnish samples of such
marketing, advertising and promotional materials to Licensor from time to
time during the term hereof at the request of Licensor.
Section 10.3. Use of Similar Trademarks and Service Marks. Licensee
agrees not to use (a) any trademark or service ▇▇▇▇ which is confusingly
similar to, or a colorable imitation of, the Licensed Marks or any part
thereof, or (b) any work, symbol, character, or set of words, symbols, or
characters, which in any language would be identified as the equivalent of
the Licensed Marks or that are otherwise confusingly similar to, or a
colorable imitation of, the Licensed Marks, whether during the term of this
agreement or at any time following termination of this agreement. Licensee
shall not knowingly engage in any conduct which may place the Sprint PCS
Products and Services, the Licensed Marks or Licensor in a negative light
or context.
Section 10.4. Services of Public Figures. Licensee agrees to obtain
Licensor's prior written approval (which approval will not be unreasonably
withheld) before engaging the services of any celebrity or publicly known
individual for endorsement of any Sprint PCS Products and Services or
Premium and Promotional Items.
ARTICLE 11
CONTROL OF BRAND IMAGE
Section 11.1 Exclusive Use of Licensed Marks. The Sprint PCS Products
and Services shall be marketed by Licensee solely under the Licensed Marks.
Section 11.2. Consistency With Brand Image and Principles. Licensee
shall use the Licensed Marks in a manner that is consistent with the brand
image and principles established by Licensor, and mechanics to ensure
consistency will be included in the Marketing Communications Guidelines.
Section 11.3 Management of Brand Image. Licensor shall be responsible
for the overall management of the brand image for the Licensed Marks. All
advertising, marketing and promotional materials using the Licensed Marks
prepared by Licensee shall, in addition to the provisions set forth in
Section 11.2 above, comply with the Marketing Communications Guidelines to
be furnished by Licensor to Licensee as such Marketing Communications
Guidelines may be amended and updated by Licensor from time to time. Such
Marketing Communications Guidelines shall establish reasonable principles
to be followed in the development of advertising, marketing and promotional
campaigns in order to ensure a consistent and coherent brand image. All
advertising, marketing and promotional campaigns conducted by Licensee
shall be conducted in a manner consistent with the Marketing Communications
Guidelines.
Section 11.4. Advertising Agencies; Promotions. Licensee may select
its own advertising agencies for development of its advertising and
promotional campaigns; provided, however, that all media buys shall be
coordinated by Licensee with the buying agency of Licensor. Licensee and
Licensor shall conduct ongoing reviews of upcoming advertising, marketing
and promotional campaigns of each party and shall use good faith efforts to
coordinate their respective campaigns in a manner that will maximize the
advertising, marketing and promotional efforts of the parties and be
consistent with the Marketing Communications Guidelines. Licensee shall not
initiate any products or promotions under names which are confusingly
similar to any names of national product offerings or promotions by
Licensor. Neither Licensor nor any of its Controlled Related Parties shall
initiate any products or promotions under names which are confusingly
similar to any names of national product offerings or promotions by
Licensee. In addition, Licensor will use its commercially reasonable
efforts to ensure that no third party licensee under the Licensed Marks
initiates any products or promotions in the Service Area under names which
are confusingly similar to any names of national product offerings or
promotions by Licensee.
Section 11.5 Ownership of Advertising Materials. All agreements
entered into by Licensee with advertising agencies shall provide that
Licensor shall own all advertising materials (including concepts, themes,
characters and the like) created or developed thereunder. Subject to the
terms and conditions set forth herein, Licensee shall receive a perpetual,
non-exclusive, royalty-free license to use such materials in connection
with advertising and promotional materials developed by Licensee; provided,
however, that the rights granted under such perpetual license shall be
limited solely to the use of such materials and shall not extend the term
of the license with respect to the Licensed Marks provided for hereunder.
ARTICLE 12
RELATIONSHIP OF PARTIES
Section 12.1. Relationship of Parties. It is the express intention of
the parties that Licensee is and shall be an independent contractor and no
partnership shall exist between Licensee and Licensor pursuant hereto. This
agreement shall not be construed to make Licensee the agent or legal
representative of Licensor for any purpose whatsoever (except as expressly
provided in Articles 7 and 8), and Licensee is not granted any right or
authority to assume or create any obligations for, on behalf of, or in the
name of Licensor (except as expressly provided in Articles 7 and 8).
Licensee agrees, and shall require its permitted sublicensees to agree, not
to incur or contract any debt or obligation on behalf of Licensor, or
commit any act, make any representation, or advertise in any manner that
may adversely affect any right of Licensor in or with respect to the
Licensed Marks or be detrimental to Licensor's image.
ARTICLE 13
TERM; TERMINATION; EFFECTS OF TERMINATION
Section 13.1. Term. This agreement commences on the date of execution
and continues until the Management Agreement terminates, unless earlier
terminated in accordance with the terms set forth in this Article 13. This
agreement automatically terminates upon termination of the Management
Agreement.
Section 13.2. Events of Termination. If any of the following events
shall occur with respect to Licensee, each such occurrence shall be deemed
an "Event of Termination":
(a) Bankruptcy. The occurrence of a "Bankruptcy" with respect to
Licensee.
(b) Breach of Agreements. Licensee fails to perform in accordance
with any of the material terms and conditions contained herein in
any material respect.
(c) Material Misrepresentation. Licensee breaches any material
representation or warranty of Licensee made in Section 4.2 or
Article 6 in any material respect.
(d) Termination of Management Agreement. The termination of the
Management Agreement, for whatever reason.
Section 13.3. Licensor's Right to Terminate Upon Event of
Termination. Licensor may, at its option, without prejudice to any other
remedies it may have, terminate this agreement by giving written notice of
such termination to Licensee as follows: (a) immediately, upon the
occurrence of any Event of Termination pursuant to Section 13.2(a) with
respect to Licensee; or (b) after the expiration of thirty (30) days from
Licensee's receipt of written notice from Licensor of the occurrence of any
Event of Termination pursuant to Sections 13.2(b) or 13.2(c), if such
failure to perform or breach is then still uncured; or (c) immediately upon
the repeated or continuing occurrence of Events of Termination pursuant to
Section 13.2(b) (regardless of whether such continuing failures to perform
or breaches have been cured by Licensee in accordance with the provisions
of clause (b) or this Section 13.3); or (d) immediately upon the occurrence
of a termination pursuant to Section 13.2(d).
Section 13.4 Licensee's Right to Terminate. Licensee may, at its
option, without prejudice to any other remedies it may have, terminate this
agreement by giving written notice of such termination to Licensor as
follows: (a) immediately, in the event that Licensor abandons the Licensed
Marks or otherwise ceases to support the Licensed Marks in Licensor's
business; or (b) immediately in the event of the occurrence of a Bankruptcy
with respect to Licensor; or (c) immediately in the event of an occurrence
of termination pursuant to Section 13.2(d).
Section 13.5. Effects of Termination. Upon the termination of this
agreement for any reason, all rights of Licensee in and to the Licensed
Marks in the Service Area shall cease within thirty (30) days following the
date on which this agreement terminates (except in the case of a
termination resulting from an Event of Termination described in Section
13.2(b), (c) or (d), in which case such rights to use the Licensed Marks
will terminate immediately upon the date of termination); provided,
however, that Licensee may thereafter sell, transfer or otherwise dispose
of any Related Equipment and Premium and Promotional Items that are then in
Licensee's inventory (or which Licensee has purchased or is then legally
obligated to purchase) for an additional reasonable period not to exceed
three (3) months. Licensee's right of disposal under this Section 13.5
shall not prohibit Licensor from granting to third parties during the
disposal period licenses and other rights with respect to the Licensed
Marks. The provisions of Articles 3, 4, 5, 6 and 8 will survive any
termination of this agreement.
ARTICLE 14
ASSIGNMENT; SUBLICENSING
Section 14.1. Licensee Right to Assign. Licensee, without the prior
written consent of Licensor (in its sole discretion), shall have no right
to assign any of its rights or obligations hereunder.
Section 14.2. Licensor Right to Assign the Licensed Marks. Nothing
herein shall be construed to limit the right of the Licensor to transfer or
assign its interests in the Licensed Marks, subject to the agreement of the
assignee to be bound by the terms and conditions of this agreement.
Section 14.3. Licenses to Additional Licensees; Sublicenses; Licenses
to Additional Licensees. Licensee shall not sublicense (or attempt to
sublicense) any of its rights hereunder without the prior written consent
of Licensor, in the sole discretion of Licensor.
ARTICLE 15
MISCELLANEOUS
Section 15.1. Notices. Any notice, payment, demand, or communication
required or permitted to be given by any provision of this agreement shall
be in writing and mailed (certified or registered mail, postage prepaid,
return receipt requested) or sent by hand or overnight courier, or by
facsimile (with acknowledgment received), charges prepaid and addressed as
described on the Notice Address Schedule attached to the Master Signature
Page, or to such other address or number as such party may from time to
time specify by written notice to the other party in accordance with the
provisions of this Section 15.1. All notices and other communications given
to a party in accordance with the provisions of this agreement shall be
deemed to have been given and received (i) four (4) Business Days after the
same are sent by certified or registered mail, postage prepaid, return
receipt requested, (ii) when delivered by hand or transmitted by facsimile
(with acknowledgment received and, in the case of a facsimile only, a copy
of such notice is sent no later than the next Business Day by a reliable
overnight courier service, with acknowledgment of receipt) or (iii) one (1)
Business Day after the same are sent by a reliable overnight courier
service, with acknowledgment of receipt.
Section 15.2. Binding Effect. Except as otherwise provided in this
agreement, this agreement shall be binding upon and inure to the benefit of
the parties and their respective successors, transferees, and assigns.
Section 15.3. Construction. This agreement shall be construed simply
according to its fair meaning and not strictly for or against any party.
Section 15.4. Time. Time is of the essence with respect to this
agreement.
Section 15.5. Table of Contents; Headings. The table of contents and
section and other headings contained in this agreement are for reference
purposes only and are not intended to describe, interpret, define or limit
the scope, extent or intent of this agreement.
Section 15.6. Severability. Every provision of this agreement is
intended to be severable. If any term or provision hereof is illegal,
invalid or unenforceable for any reason whatsoever, that term or provision
will be enforced to the maximum extent permissible so as to effect the
intent of the parties, and such illegality, invalidity or unenforceability
shall not affect the validity or legality of the remainder of this
agreement. If necessary to effect the intent of the parties, the parties
will negotiate in good faith to amend this agreement to replace the
unenforceable language with enforceable language which as closely as
possible reflects such intent.
Section 15.7. Further Action. Each party, upon the reasonable request
of the other party, agrees to perform all further acts and execute,
acknowledge, and deliver any documents which may be reasonably necessary,
appropriate, or desirable to carry out the intent and purposes of this
agreement.
Section 15.8. Governing Law. The internal laws of the State of
Missouri (without regard to principles of conflict of law) shall govern the
validity of this agreement, the construction of its terms, and the
interpretation of the rights and duties of the parties.
Section 15.9. Specific Performance. Each party agrees with the other
party that the other party would be irreparably damaged if any of the
provisions of this agreement are not performed in accordance with their
specific terms and that monetary damages would not provide an adequate
remedy in such event. Accordingly, in addition to any other remedy to which
the nonbreaching party may be entitled, at law or in equity, the
nonbreaching party shall be entitled to injunctive relief to prevent
breaches of this agreement and specifically to enforce the terms and
provisions hereof.
Section 15.10. Entire Agreement. The provisions of this agreement set
forth the entire agreement and understanding between the parties as to the
subject matter hereof and supersede all prior agreements, oral or written,
and other communications between the parties relating to the subject matter
hereof.
Section 15.11. Limitation on Rights of Others. Nothing in this
agreement, whether express or implied, shall be construed to give any party
other than the parties any legal or equitable right, remedy or claim under
or in respect of this agreement.
Section 15.12. Waivers; Remedies. The observance of any term of this
agreement may be waived (either generally or in a particular instance and
either retroactively or prospectively) by the party or parties entitled to
enforce such term, but any such waiver shall be effective only if in
writing signed by the party or parties against which such waiver is to be
asserted. Except as otherwise provided herein, no failure or delay of any
party in exercising any power or right under this agreement shall operate
as a waiver thereof, nor shall any single or partial exercise of any such
right or power, or any abandonment or discontinuance of steps to enforce
such right or power, preclude any other further exercise thereof or the
exercise of any other right or power.
Section 15.13. Jurisdiction; Consent to Service of Process.
(a) Each party hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any
Missouri State court sitting in the County of ▇▇▇▇▇▇▇ or any
Federal court of the United States of America sitting in the
Western District of Missouri, and any appellate court from any
such court, in any suit action or proceeding arising out of or
relating to this agreement, or for recognition or enforcement of
any judgment, and each party hereby irrevocably and
unconditionally agrees that all claims in respect of any such
suit, action or proceeding may be heard and determined in such
Missouri State Court or, to the extent permitted by law, in such
Federal court.
(b) Each party hereby irrevocably and unconditionally waives, to the
fullest extent it may legally do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action
or proceeding arising out of or relating to this agreement in
Missouri State court sitting in the County of ▇▇▇▇▇▇▇ or any
Federal court sitting in the Western District of Missouri. Each
party hereby irrevocably waives, to the fullest extent permitted
by law, the defense of an inconvenient forum to the maintenance
of such suit, action or proceeding in any such court and further
waives the right to object, with respect to such suit, action or
proceeding, that such court does not have jurisdiction over such
party.
(c) Each party irrevocably consents to service of process in the
manner provided for the giving of notices pursuant to this
agreement, provided that such service shall be deemed to have
been given only when actually received by such party. Nothing in
this agreement shall affect the right of a party to serve process
in another manner permitted by law.
Section 15.14. Waiver of Jury Trial. Each party waives, to the
fullest extent permitted by applicable law, any right it may have to a
trial by jury in respect of any action, suit or proceeding arising out of
or relating to this agreement.
Section 15.15. Consents. Whenever this agreement requires or permits
consent by or on behalf of a party, such consent shall be given in writing
in a manner consistent with the requirements for a waiver of compliance as
set forth in Section 15.13, with appropriate notice in accordance with
Section 15.1 of this agreement.
Section 15.16. Master Signature Page. Each party agrees that it will
execute the Master Signature Page that evidences such party's agreement to
execute, become a party to and be bound by this agreement, which document
in incorporated herein by this reference.
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