EXHIBIT 10.12
NHL ENTERPRISES, L.P.
I 251 AVENUE OF THE XXXXXXXX, 00XX XXXXX
XXX XXXX, XXX XXXX 00000
TEL: (000) 000-0000
FAX: (000) 000x0000
RETAIL LICENSE AGREEMENT
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No.: 63954
Date: August 26, 2005
LICENSEE: Collectible Concepts Group, Inc.
Tel: 000-000-0000
ADDRESS: 0000 Xxxxx Xxxxx Xxxx
Xxxxxxxxxx, XX 00000 Fax: 000-000-0000
USA
Attn: Xxxx X. Xxxxxxxxx
NHL ENTERPRISES, L.P. ("NHLE") has the right to license for
commercial purposes the use of certain properties of the National Hockey League
("NHL") and of the teams comprising said League ("MEMBER TEAMS") in the
Territory specifically --- the names nicknames slogans symbols, logos emblems
insignia colors uniform designs and other indicia of each of the Member Teams of
the National Hockey League the city or regional identification of each of the
National Hockey League Member Teams in conjunction with their colors and an
appropriate professional ice hockey reference and the name initials insignia
colors and other indicia of the National Hockey League including the Conference
and Division names and/or logos (the"NHL MARKS" ) and that except as stated in
paragraph 3(a) hereinafter no other entity has the right to license said NHL
Marks in the Territory for such purposes.
LICENSEE, whose full name and address are set forth above, desires
to obtain the right from NHLE to utilize the NHL Marks in connection with the
manufacture distribution sale and advertising of certain products specified
hereinafter (the "PRODUCTS") in accordance with the conditions and provisions
set forth in this License Agreement.
Therefore, in consideration of the promises, covenants and
undertakings contained in this License Agreement, the parties hereto agree, as
follows:
1. GRANT OF LICENSE.
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For purposes of this License Agreement, the definitions set forth in
paragraph numbered 2 below shall be applicable and controlling Subject to such
definitions NHLE hereby grants to L1CENSEE the NON-EXCLUSIVE right to use the
NHL Marks on the Products throughout the TERRITORY during the TERM or any
RENEWAL TERM(S) in accordance with all of the provisions conditions and
undertakings specified hereinafter in this License Agreement
(a) PRODUCT(S). The Products are as follows
(i) Fanbana-retractable banner/foldsign (hand-held,
self-rolling billboard); (ii) megaphone cap (collapsible
megaphone which can be worn as a hat, hung on the wall or
used as a cone cover for tailgating parties); (iii) satin
wall scroll/growth chart; (vi) window and door scroll; and
(v) raised letter wrist band.
(Each individual item must be reviewed and approved
in writing by NHLE prior to manufacturing.)
(b) TERRITORY. The Territory is the United States, including its
territories and possessions and its Armed Forces or similar
Exchange Services.
(c) TERM. The Term hereof shall be for the period commencing on
7/1/05 and terminating on 6130/07.
(d) LICENSEE PAYMENTS. In consideration for the rights herein
granted to LICENSEE LICENSEE shall pay to NHLE the following:
(i) ROYALTY RATE: LICENSEE will pay NHLE at such times and under
the circumstances specified hereinafter, a ROYALTY PAYMENT in
amount equal to the Royalty Rate of ten percent (10%) or at
NHLE's prevailing rate, whichever is greater, times NET SALES;
All premium and incentive sales must be approved by NHLE at
its sole discretion on a case-by-case basis; and
(ii) ADVANCE AND GUARANTEED MINIMUM PAYMENTS: The Advances and
Guaranteed Minimum Payments in U S dollars to be credited
against Royalty Payments due NHLE are as follows:
Annual Guaranteed Minimum Payments to be paid to NHLE as
follows:
AMOUNT DUE DATE
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For the. License Year beginning 07101/05 to 06/30/06:
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$15,000.00 US due upon the execution hereof
$ 5,000.00 US due on or before 02/01/06
$ 5,000.00 US due on or before 05/01/06
For the License Year beginning 07/01/06 to 06/30107:
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$15,000.00 US due on or before 02/01/07
$10,000.00 US due on or before 05/01/07
TOTAL ANNUAL GUARANTEED MINIMUM PAYMENTS:
$50,000.00 US
Amounts paid in excess of the Guaranteed Minimum Payment for
a License Year may not be applied to reduce or offset the
Guaranteed Minimum Payment due for another License Year.
(e) ADDITIONAL CQNSIOERATION. During each License Year, LICENSEE will
provide NHLE upon NHLE's request and free of charge, with Licensed
Products valued up to $3,000 based on LICENSEE's regular wholesale
price offered to retailers. Any quantity of Licensed Products
requested by NHLE during each License Year exceeding $3,000 in value
shall be made available for purchase by NHLE at LICENSEE's regular
wholesale price offered to retailers.
(f) MIGHTY DUCKS OF ANAHEIM. LICENSEE acknowledges that affiliates of
the former owner of the NHL Member Team currently known as the
"Mighty Ducks of Anaheim" own, control and/or commercially exploit
properties associated with the "Mighty Ducks" xxxx (e.g., motion
pictures, animated television cartoon series, etc.). The grant of
license described herein will not apply to such properties or any
trademarks, copyrights or other intellectual property rights
associated with such properties, as distinguished from the owner's
NHL operations.
STANDARDTERMS AND CONDITIONS
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2. DEFINITIONS.
(a) "TERRITORY" -- the geographical area in which LICENSEE is authorized
to use the NHL Marks -- is specified in paragraph 1(b) above.
(b) "LICENSE YEAR" means the period commencing on the First day of the
Term and on each following July 1st and ending on the following June
30th during the Term or any Renewal Term(s)
(c) "TERM" -- the period during which this License Agreement is in
effect whether or not it is renewed-- is set forth in paragraph 1(c)
above. "Renewal Term(s)," if any are specified in paragraph I above,
are those License Year(s) immediately following the last License
Year of the Term or any prior Renewal Term.
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(d) "PRODUCT(S)" ARE identified in paragraph 1(a) above, and become ~
when LICENSEE applies or uses the licensed NHL Marks strictly in
accordance with the provisions, conditions and undertakings set
forth in this License Agreement
(e) "PREMIUMS" means any product including but not limited to Licensed
Product(s), sold at any price or given away for the purpose of
promoting, publicizing or increasing the sale of any other product
or service, including but not limited to incentives for a sales
force or distributorship(s), or for trade or consumer promotions.
(0 "LICENSED SALES" means the sale of Licensed Products directly to or
for retail outlets, mail order or catalogs, including electronic and
video marketing entities, where the Licensed Products are ultimately
sold to consumers. Licensed Sales do not include the sale of
Licensed Products as Premiums, which require separate agreements
executed by NHLE with both the manufacturer and user of the premium.
(g) "NET SALES" means the gross amount of Licensed Sales of Licensed
Products in U.S. dollars at the invoiced selling price net normal
and reasonable cash and quantity discounts and returns for credit;
no deductions shall be made for costs incurred in manufacturing,
selling, distributing, advertising (including cooperative and
promotional allowances), or for uncollectible accounts.
(h) "ROYALTY PAYMENT" is the Royalty Rate specified in paragraph 1(d)(i)
above times Net Sales of Licensed Products, calculated and payable
in U.S. dollars to NHLE; the Royalty Rate shall be calculated at
NHLE's prevailing standard percentage rate of Net Sales, which
percentage rate may be increased for all or virtually all retail
licenses for any License Year upon two hundred and seventy (270)
days prior notice to LICENSEE.
(i) "GUARANTEED MINIMUM PAYMENT" -- the minimum amount of Royalty
Payment in U.S. dollars which LICENSEE shall pay for each License
Year, irrespective of the amount of Net Sales actually made during
such period -- is specified in paragraph 1(d)(ii) above.
(j) "ADVANCE" is the amount of the Guaranteed Minimum Payment in U.S.
dollars which LICENSEE shall remit to NHLE upon the signing of this
License Agreement by LICENSEE, is specified in paragraph I(d)(ii)
above.
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(k) "NHL INDICIA" means the following matter as it appears on or in
connection with Licensed Products or packaging, labeling,
advertising or promotional material therefor or related thereto: (1)
NHL Marks; (2) words, phrases, slogans and the like ("Words")
derived from or incorporating NHL Marks; (3) caricatures, graphics,
images, designs and the like ("Graphics") derived from NHL Marks or
incorporating NHL Marks or any recognizable part thereof, (4) Words
or Graphics that are hockey specific; and (5) Words or Graphics that
are used exclusively or substantially exclusively in association
with NHL Marks or other NHL Indicia. Words arid Graphics that appear
on or in connection with Licensed Products or packaging, labeling,
advertising or promotional material therefor or related thereto and
which either (x) were used by LICENSEE in an ordinary commercial
manner on unlicensed products or products licensed by others prior
to the entry by LlCENSEE into negotiations with NHLE for this
License Agreement, or (y) are virtually identical to elements so
used by LICENSEE on unlicensed products or on products licensed by
others, shall not be deemed to be NHL Indicia pursuant to clause (5)
above.
3. LIMITATIONS OF LICENSES
In addition to the provisions, conditions and under-takings set
forth in other paragraphs herein, the license granted to LICENSEE is subject to
the following understandings, limitations and conditions:
(a) Each NHL Member Team has retained the right to license its own marks
individually for products other than jackets, replica
jersey/sweaters and trading cards; the sale of Member-Team-licensed
products generally shall be restricted to within a seventy-five mile
radius of the Member Team's home arena, and no such local license
may be granted to LICENSEE for the Products.
(b) To the extent the NHL Marks licensed by this License Agreement
include the names, logos, colors, etc. of the NHL Member Teams, they
include such marks of each of the Member Teams, and LICENSEE agrees
that each Licensed Product will be designed and offered for sale in
enough styles so that there shall be at least one style of each
Licensed Product with the name, logo, colors, etc. of each NHL
Member Team with a home arena in the Territory.
(c) This license to use the NI-IL Marks does not constitute and may not
be used to imply the endorsement of the Licensed Product(s) or any
other product of LICENSEE, and the NHL Marks are not licensed herein
as certification marks or an indication of a particular standard of
quality.
(d) LICENSEE may not sell distribute or make available Licensed Products
as Premiums without a prior written license agreement from NHLE. In
the event such a license is granted to LICENSEE, the Licensed
Products may only be sold to a user specifically approved and
licensed by NHLE for such purpose pursuant to a separate agreement.
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(e) The Licensed Products shall not knowingly be sold or distributed for
retail sale in combination with any other product for a single price
to the exclusion of the opportunity to purchase the Licensed
Products separately.
(f) LICENSEE will not sell the Licensed Products to parties whom it
knows or reasonably should know will resell or distribute the
Licensed Products outside the Territory.
(g) This license is personal to LICENSEE and LICENSEE shall not assign,
transfer or sub-license any or all of the rights granted herein to
any third party without the written consent of NHLE. LICENSEE shall
not pledge or encumber this license as security or collateral for
any obligation of LICENSEE.
(h) No use of the NHL Marks shall be preprinted by LICENSEE on its
stationery, envelopes, business cards, invoices, statements, packing
slips or other similar documents or materials unless approved in
advance by NHLE.
(i) LICENSEE shall not purchase or otherwise obtain the Licensed
Products it is authorized to sell under this License Agreement from
any other entity without the prior written consent of NHLE, unless
such other entity enters into a written agreement with LICENSEE, in
a form which Is acceptable to NHLE in its sole discretion, which
agreement limits said other entity's rights solely to supplying
LICENSEE with Licensed Products pursuant to the written agreement..
(1) LICENSEE agrees that it will cause to appear conspicuously,
indelibly and legibly on each of the Licensed Product(s) and on all
advertising material, tags, labels and devices bearing any of the
NHL Marks or other NHL Indicia, such proper trademark, copyright or
other notices of property right in the NHL Marks or other XXXX
Indicia or other material as may be designated by NHLE. In addition,
LICENSEE shall place a notice specified by NHLE that the Licensed
Products are genuine merchandise officially licensed.
(k) In the event LICENSEE uses authors, photographers, artists or any
other persons to create and/or design NHL Indicia for or in
connection with the Licensed Products or packaging, labeling,
advertising or promotional material therefor or related thereto
LICENSEE shall either use personnel within its employ so such work
qualifies as a "work made for hire ` under the Copyright Act (17
U.S.C. ss.101) and assign copyright in such work to NHLE or if
LICENSEE engages personnel under conditions which do not give rise
to such a "work made for hire," LICENSEE shall obtain an assignment
of copyright to NHLE of any copyrightable material prepared or
depicted by such author, photographer, artist or other person for
the Licensed Products or such packaging, labeling, advertising or
promotional material. Such obligations shall apply only to those
parts of otherwise unified textual or graphic matter which qualify
as NHL Indicia In addition to all other rights and remedies afforded
by this License Agreement and applicable law, LICENSEE agrees to
hold harmless NHLE NHL and its Member Teams other NHLE Licensees and
the partnership partners, principals, officers, directors, employees
and agents thereof, from any claim, suit or damage, including
attorney's fees, judgments, court costs and consequential damages,
that arise out of LICENSEE's failure to deliver to NHLE the
assignment(s) of copyright required by this provision.
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(i) LICENSEE further agrees that it will not apply for or seek to obtain
trademark, copyright or any other proprietary right in the NHL Marks
or any other NHL Indicia on Licensed Products or packaging labeling
advertising or promotional material therefor or related thereto NHLE
NHL and/or any or all of its Member Teams jointly and severally may
at their option apply for and obtain in any or all of their own
names trademark copyright or other property right protection for the
NHL Marks or other NHL Indicia (furnished or provided by LICENSEE or
NHLE) for the Licensed Product(s) or packaging, labeling,
advertising or promotional material therefor or related thereto.
Upon request, LICENSEE will furnish (i) necessary specimens or
facsimiles for such purpose free of cost, (ii) evidence of the date
of first shipment or sale of each Licensed Product in commerce and
also, if earlier, in intrastate commerce, and (iii) such additional
information documents, specimens and facsimiles as may be reasonably
required to evidence and perfect the trademark. Copy right or other
property right protection for the NHL Marks or other NHL Indicia
(all free of cost)
(m) If demanded by LICENSEE, NHLE shall undertake to procure and obtain
in its own name, or the name of the National Hockey League or any or
all of its Member Teams, trademark, copyright, design patent or
other property right protection of the NHL Marks or other matter
(furnished or provided by NHLE or LICENSEE) for the Licensed
Product(s) at LICENSEE's expense, including reasonable attorneys'
fees.
(n) LICENSEE agrees that if LICENSEE receives knowledge of any
manufacture or sale by anyone other than LICENSEE of products
licensed under this License Agreement or of such products as would
be confusingly similar in the minds of the public and which bear or
are promoted in association with the NHL Marks or other NHL Indicia
under this License Agreement, or any names, symbols, emblems,
designs or colors which may be confusingly similar in the minds of
the public to such NHL Marks or other NHL Indicia, LICENSEE will
call such fact to the attention of NHLE. NHLE shall then have the
exclusive right in its sole discretion to prosecute any such
manufacture or sale, either in its own name or the name of the
National Hockey League and/or one or more of its Member Teams and
LICENSEE shall cooperate arid assist in the prosecution of any such
action. If demanded by NHLE, LICENSEE shall join in or cooperate in
the prosecution of any such action as may be instituted by NHLE; all
such prosecution shall be at NHLE's expense, including reasonable
attorneys fees The proceeds recovered in any such prosecution in the
form of damages, profits or other recovery shall belong solely to
NHLE. LICENSEE shall not commence any action of its own to restrain
or recover damages for any alleged infringements of the NHL Marks or
other NHL Indicia without first obtaining express written permission
to do so from NHLE.
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(o) LICENSEE will not attack the title or right of NHLE or NHL and/or
its Member Teams in and to the NHL Marks other NHL Indicia or any
copyright or trademark pertaining thereto, nor will it attack the
validity of the License granted hereunder during the Term hereof or
thereafter
(p) LICENSEE will not harm, misuse or bring into disrepute the NHL
Marks, their reputation or that of their owners.
(q) LICENSEE acknowledges that except as expressly provided herein,
there is no right to renew this License Agreement, and no options to
extend this License Agreement have been granted or are implied
hereunder.
(r) LICENSEE will manufacture, sell and distribute the Licensed
Product(s) in an ethical manner and in accordance with the terms and
intent of this License Agreement
(s) LICENSEE will not incur or create any expenses chargeable to NHLE,
NHL or its Member Teams without the prior written approval of NHLE.
(t) LICENSEE will protect to the best of its ability, its right to
manufacture, sell and distribute the Licensed Product(s) hereunder
(u) LICENSEE will comply with all laws and regulations relating or
pertaining to the manufacture, sale advertising or use of the
Licensed Product(s), shall maintain high quality and standards
commensurate with LICENSEE's market, and shall comply with any
regulatory agencies which
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shall have jurisdiction over the Licensed Product(s).
(v) LICENSEE will never disclose any confidential and non-public
information about NHLE, NHL and/or its Member Teams which it
acquires from any source during the Term or any Renewal Term(s)
hereof.
(w) Notwithstanding anything contained herein to the contrary, the
LICENSEE shall not have the right to use, reference or exploit or to
grant third parties the right to use, reference or exploit, the NHL
Marks or other NHL Indicia on the Internet or any other on-line
media in any manner whatsoever without NHLE's prior written consent,
which consent may be withheld in NHLE's sole discretion.
4. REPORTS AND PAYMENTS.
On or before the twentieth (20th) day following each month of the
Term or any Renewal Term(s), LICENSEE shall submit to NHLE, or in accordance
with written instructions given by NHLE, a full and accurate statement showing
the quantity, description and Net Sales of each of the Licensed Products sold or
distributed during such month on forms to be furnished by NHLE Simultaneously
with the submission of such statement LICENSEE shall remit the Royalty Payment
due on Net Sales for each such month by check or electronic transfer payable to
` NHL Enterprises, L P " and delivered directly to NHLE or, in accordance with
written instructions given to LICENSEE by NHLE. Such statements shall be
submitted whether or not they reflect any Net Sales of Licensed Products.
Receipt and acceptance by NHLE of any statement furnished by LICENSEE or Royalty
Payments paid hereunder shall not preclude NHLE from questioning the correctness
thereof at any time; in the event any errors are disclosed, such statements
shall be rectified and any differences in Royalty Payments remitted within ten
(1 0) days to NHLE. LICENSEE acknowledges that time is of the essence in making
payments to NHLE. lf any payments to NHLE are not remitted on the date due,
LICENSEE shall pay interest at the rate of one and one-half percent (1 .5%) per
month from such date until payment thereof is made to NHLE. If requested by NHLE
LICENSEE at its own expense shall provide NHLE within sixty (60) days of the end
of each License Year a detailed statement for such License Year certified by an
independent certified public accountant approved by NHLE, showing the Net Sales
of each Licensed Product sold or distributed by LICENSEE during such year,
together with a computation of Royalty Payments on Net Sales due NHLE for such
year.
5. CATALOG CONTRIBUTIONS.
NHLE shall have the right but not the obligation to publish
catalogs, sales sheets and brochures ("Catalogs") during any License Year in
order to promote the sale of Licensed Products. The format and style of any such
Catalog will be in NHLE's sole discretion. LICENSEE undertakes (i) to contribute
to each such Catalog by furnishing, free of charge, such samples, artwork,
photography and the like as may be available to it and requested, and (ii) to
participate in each such Catalog and pay for a minimum of one page at NHLE s
prevailing rate to cover the cost of such publication including distribution
costs to retailers, wholesalers, mail order houses and other outlets for
Licensed Products. The payment by LICENSEE for such participation will be in
addition to any Advances, Guaranteed Minimum Payments and Royalty Payments due
NHLE as specified herein.
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6. BOOKS AND RECORDS.
LICENSEE agrees to keep accurate books of account and records
covering all transactions relating to this License. NHLE and its duly authorized
representative shall have the right at all reasonable hours of the day to
examine and audit such books of account and records and all other documents and
material in LICENSEE's possession or under its control with respect to the
subject matter and terms of this License Agreement, and shall have free and full
access thereto for such purposes. All such books of account and records shall be
kept available for at least two years after termination or expiration of this
License Agreement. LICENSEE will designate a symbol or number which will be used
exclusively in connection with Licensed Products and with no other articles
which LICENSEE may manufacture, sell, or distribute. In the event that an audit
by NHLE reveals an underpayment by L1CENSEE LICENSEE shall immediately upon
demand remit payment to NHLE in the amount of such underpayment plus interest
calculated at the rate of one-and-one-half percent (1 5%) per month from the
date such payment was actually due until the date such payment is made LICENSEE
shall reimburse NHLE for the entire costs and expenses of such audit if the
underpayment is two percent (2%) or more than the amount required to be paid to
NHLE for the applicable License Year.
7. QUALITY CONTROL OF LICENSED PRODUCTS.
LICENSEE agrees that the Licensed Product(s) shall be of high
standard and of such style, appearance and quality as shall be adequate and
suitable to their promotion, distribution and sale to the best advantage of
LICENSEE NHLE, NHL and its Member Teams. To this end LICENSEE shall perform as
follows:
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(a) Before selling or distributing any of the Licensed Product(s),
LICENSEE shall submit without charge samples of each such
Licensed Product, including all styles, colors and variations,
together with its cartons and containers, including packaging
and wrapping material, hang. tags and labels (the "Related
Materials"), for NHLE's written approval in accordance with
procedures specified hereafter. Licensee shall submit for
review all Licensed Products and Related Materials at each of
the following stages of production: 1) rough sketches or
layout concepts; 2) finished artwork or final proofs 3)
pre-production samples or strike-offs and 4) finished products
suitable for retail sale. The samples of Licensed Products and
Related Materials submitted by LICENSEE for quality control
purposes shall be delivered directly to NHLE at its address
specified first above or in accordance with written
instructions given by NHLE. The quality and style of each such
Licensed Product and its Related Materials shall be subject to
NHLE's prior approval. In the event that any item submitted to
NHLE shall not have been approved, disapproved or otherwise
commented upon within twenty (20) business days after receipt
thereof by NHLE, then LICENSEE shall have the right to so
notify NHLE of such fact by telegram or telefax message. In
the event that NHLE fails to then approve, disapprove or
otherwise comment upon the submitted items within ten (10)
business days after receipt by it of such communication, any
items so submitted by LICENSEE shall be deemed to have been
approved LICENSEE shall, in addition, thereafter furnish to
NHLE free of cost for its prior written approval six (6)
production samples of each such Licensed Product, together
with their Related Materials, within fifteen (I 5) days of the
start of each License Year that this License Agreement is in
effect.
(b) After samples of each Licensed Product(s) and Related
Materials have been approved pursuant to this paragraph,
LICENSEE shall not depart therefrom in any material respect
without NHLE's prior written consent.
(c) NHLE shall have the right to withdraw its approval of approved
samples of Licensed Products and Related Materials if the
quality of any such item ceases to be acceptable or in the
event of some factor which reflects unfavorably upon the
professional, business or personal reputation of NHL, its
Member Teams or NHLE.
(d) Subject to the terms and conditions hereof, LICENSEE may
utilize the NHL Marks for such selling, advertising,
promotional and display materials for the Licensed Product(s)
as in its judgment will best promote the sale of said Licensed
Product(s) LICENSEE agrees that it will not use the NHL Marks
or any reproduction thereof in any advertising promotional or
display material or in any other manner without NHLE's prior
written approval. In the event that any advertising,
promotional or display material submitted to NHLE shall not
have been approved, disapproved or otherwise commented upon
within twenty (20) business days after receipt thereof by
NHLE, then LICENSEE shall have the right to so notify NHLE of
such fact by telegram or telefax message. In the event that
NHLE fails to then approve, disapprove or otherwise comment
upon the submitted items within ten (10) business days after
receipt by it of such telegraphic or telefax communication,
any items so submitted shall be deemed to have been approved.
Prior to use by LICENSEE, six (6) production copies of all
such advertising promotional and display materials will be
furnished to NHLE free of charge
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8. PROMOTIONAL SUPPORT OF NHL TEAMS AND DISTRIBUTION OF LICENSED
PRODUCTS.
(a) L1CENSEE undertakes to support the National Hockey League and
its Member Teams by supplying to NHLE free of charge samples
of Licensed Products to a total value at LICENSEE'S lowest
wholesale price of five hundred U S dollars ($500 00) annually
Such free samples will be distributed by NHLE to NHL and/or
the Member Teams directly or used by NHLE in its discretion
for promotions directly benefiting the Member Teams In
addition to supplying such samples of Licensed Products free
of charge, LICENSEE also undertakes to supply NHLE at NHLE's
expense samples' of Licensed Products at LICENSEE's cost in
such quantities as requested by
NHLE for the Member Teams or for promotions authorized by
NHLE.
(b) LICENSEE undertakes to sell Licensed Products to the NHL
Stores (as defined below): 1) at the lowest minimum
quantities; ii) at the lowest prices charged by LICENSEE to
any distributor; and iii) at the most advantageous credit
terms and return privileges offered by LICENSEE to any
distributor. L1CENSEE also agrees to deliver new styles or
designs of Licensed Products to the NHL Stores on a prompt and
timely basis, and in no event later than to other outlets,
provided orders have been placed with LICENSEE for said new
styles or designs by said NHL Stores on as timely a basis as
those orders placed by other outlets "NHL Stores' shall mean
retail outlets owned by, and/or operated by or under license
from any NHL Member Team or any of the NHLECOs (including
without limitation "brick-and-mortar and other traditional
outlets, the NHL and NHL Member Team online stores, and any
other outlets distributing Licensed Products through the
internet, wireless networks, television and any other
interactive media).
(c) LICENSEE undertakes to sell, distribute, and supply, within
the Territory, the Licensed Products in such manner as may be
required to meet the competition by manufacturers of similar
articles. LICENSEE further undertakes to make and maintain
adequate arrangements for the broadest possible distribution
of Licensed Products throughout the Territory through all
regular channels of distribution consistent with Licensed
Sales including but not limited to companies selling through
mail order catalogs; companies consisting of or operating
groups of stores or department stores commonly known as
"chains;" independently run stores; and wholesale distributors
selling to retail outlets. LICENSEE will use its best efforts
to place Licensed Products in at least one first class retail
outlet in the marketing area of each NHL Member Team within
the Territory, and to sell to each catalog merchant and
"chain" buying the Licensed Product(s) merchandise bearing the
NHL Marks of each NHL Member Team operating within the
geographic area served by said catalog merchant or "chain".
LICENSEE agrees to maintain adequate inventories of the
Licensed Products as an essential part of its distribution
program. LICENSEE will not sell Licensed Products to any
retail outlet within any area to the exclusion of other retail
outlets that may desire to purchase Licensed Products and
whose credit rating and sales merchandising policies warrant
such sales. In the event LICENSEE sells or distributes other
merchandise of the same grade and quality as the Licensed
Products, but which do not bear any of the Licensed Marks,
LICENSEE will not discriminate in the granting of commissions
and discounts to salesmen, dealers and distributors for the
Licensed Products. LICENSEE acknowledges and agrees that the
foregoing provisions of this paragraph 8 are material
provisions of this License Agreement.
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9. GOODWILL
L1CENSEE recognizes the great value of the reputation and goodwill
associated with the NHL Marks and other NHL Indicia and, in such connection,
acknowledges that such goodwill exclusively belongs to NHL and its Member Teams,
that LICENSEE's use of the NHL Marks and other NHL Indicia will inure to the
benefit of NI-IL and its Member Teams, and that the NHL Marks and other NHL
Indicia have acquired a secondary meaning in the mind of the purchasing public
related to NHL and its Member Teams. LICENSEE further recognizes and
acknowledges that a breach by LICENSEE of any of its covenants, agreements or
undertakings hereunder will cause immediate irreparable damage which cannot be
readily remedied in damages in an action at law and which in addition thereto
constitutes an infringement of rights in the NHL Marks and other NHL Indicia
thereby entitling NHLE NHL and its Member Teams to equitable remedies, costs and
damages, including reasonable attorneys' fees.
10. INDEMNIFICATIONS.
(a) LICENSEE hereby indemnifies and agrees to hold harmless NHLE,
NHL Enterprises Canada, L.P., NHL Enterprises B.V., NHL Interactive Cyber
Enterprises, LLC, NHL, its Member Teams and each of their respective
partnerships, partners principals, officers directors, governors, owners, other
officials, employees affiliates and other related entities servants agents,
representatives successors and assigns (collectively the "Indemnified Parties")
from any loss liability damage cost, expense (including reasonable attorneys'
fees) claims or suits (each, a "Claim" and collectively the "Claims") arising
out of or relating to (i) any act or omission of LICENSEE (ii) any breach of any
obligation or covenant undertaken or made by LICENSEE in this License Agreement
or (iii) the manufacture, distribution, advertising, promotion, offering for
sale and sale of the Licensed Products, including without limitation any Claim
against any of the Indemnified Parties by reason of or alleging any unauthorized
or infringing use by LICENSEE of any patent, process, trade secret, copyright,
trademark, or publicity right or other property (other than the NHL Marks
covered by this License Agreement) or any alleged defects (design,
manufacturing, handling or other) or inherent dangers in the Licensed Products
or the use thereof. LICENSEE agrees to obtain and maintain at its own expense
through and until all applicable statutes of limitations have expired insurance
coverage written on an occurrence basis and providing protection for each of the
Indemnified Parties and LICENSEE against the Claims, as follows (the "Required
Insurance Coverage"): (1) commercial general liability, including bodily injury
and property damage, contractual liability, personal injury and advertising
liability, and including a waiver of subrogation with respect to the Indemnified
Parties, in amounts no less than $5,000,000 per occurrence/$5,000,000 aggregate,
(2) product liability, including bodily injury and property damage, in amounts
no less than $5,000,000 per occurrence/$5,000,000 aggregate, (3) automobile
liability in amounts no less than $1,000,000 Combined Single Limit, Bodily
Injury and Property Damage and (4) workers' compensation, in amounts no less
than the statutory limit. Within thirty (30) days from the date of this License
Agreement,' LICENSEE shall submit to NHLE a fully paid policy or certificate of
insurance from a New York admitted carrier with a Best's rating of no less than
MI evidencing the Required Insurance Coverage and naming each of the Indemnified
Parties as additional insured parties with respect to all of the Required
Insurance Coverage except workers' compensation, providing that coverage shall
extend to the Claims arising out of the use of Licensed Product(s) manufactured
or sold under this License Agreement or otherwise arising out of this License
Agreement, no matter when such Claims may be asserted, and further providing
that the insurer shall not terminate or materially modify such coverage without
written notice to NHLE at least thirty (30) days in advance thereof, and that if
the insurer does so, NHLE will have the option to pay the premiums necessary to
maintain or continue such insurance in effect, in which case NHLE shall be
entitled to reimbursement from LICENSEE for the cost of such premiums. The
Required Insurance Coverage shall be primary to all other valid and collectible
insurance held by the additional insured parties. LICENSEE acknowledges and
agrees that LICENSEE's acquisition of the Required Insurance Coverage shall not
satisfy or limit LICENSEE's indemnity obligations hereunder, LICENSEE shall
provide NHLE with renewal policies or certificates of insurance in accordance
with the terms hereof on an annual basis, covering all periods through and until
all applicable statutes of limitations have expired.
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(b) The indemnities provided for herein are conditioned upon the
indemnified party's furnishing the indemnifying party with prompt
written notice of such Claim(s) as to which it seeks indemnification
hereunder. NHLE shall have the option and right, at NHLE's election
and at the indemnifying party's cost and expense, to assume and
control the defense of such Claim(s). Each party shall cooperate
with the other party in the defense of such Claim(s). The
indemnifying party shall reimburse the indemnified party (or
parties) for all reasonable out-of-pocket costs incurred by the
indemnified party (or parties) in connection with such cooperation.
In any instance in which the indemnities set forth in paragraph I
0(a) pertain, LICENSEE shall not enter into a settlement of any or
all of the Claims or admit liability or fault without NHLE's prior
written approval Termination or expiration of this License Agreement
shall not affect the continuing obligations of LICENSEE as an
indemnifying party hereunder.
11. TERM1NATION.
(a) NHLE shall have the right to terminate this License Agreement
without prejudice to any rights which it may have in the premises,
whether in law, or in equity, or otherwise, upon the occurrence of
any one or more of the following events (herein called "defaults"):
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(I) If any governmental agency finds that the Licensed Product(s) are
defective in any way, manner or form;
(ii) lf LICENSEE distributes, sells or offers to sell any Licensed
Products not made in complete conformity to the provisions of paragraph
7 of this License Agreement, or distributes, sells or offers to sell any
merchandise bearing a copy or simulation of any NHL Xxxx or other NHL
Indicia other than the Products
(iii) If LICENSEE shall be unable to pay its debts when due or shall
make any assignment for the benefit of creditors, or shall file any
petition under the bankruptcy or insolvency laws of any nation,
jurisdiction, county or place, or shall have or suffer a receiver or
trustee to be appointed for its business or property, or be adjudicated
a bankrupt or an insolvent:
(iv) In the event that LICENSEE does not commence in good faith to
manufacture, distribute and sell each Licensed Product throughout
the Territory within sixty (60) days of the commencement of the Term
hereof and fails to maintain an inventory of Licensed Products
sufficient to supply the market demand therefor; or
(v) If there is a change in more than fifty percent (50%) ownership or
controlling interest of LICENSEE or a material change in management
of LICENSEE.
(b) In the event LICENSEE violates, breaches or defaults in performing
any of the provisions of this License Agreement other than those
identified in paragraph I I (a) above, and does not fully cure such
violation, breach or default within ten (10) days notice from NHLE,
this License Agreement shall automatically terminate, and LICENSEE
shall pay NHLE within thirty (30) days without further demand all
amounts then due NHLE and also shall pay therewith as liquidated
damages all amounts still due NHLE as Guaranteed Minimum Payments
for the remainder of the Term or any Renewal Term(s). lf such
payments are not remitted when due, LICENSEE consents to the entry
of judgment for such amount by a court having jurisdiction over
LICENSEE or any of its assets. In addition, NHLE shall be entitled
to xxx for injunctive relief and other consequential damages,
including reasonable attorneys' fees incurred by NHLE, NHL and/or
its Member Teams as a result of any such violation, breach or
default by LICENSEE.
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(c) It is agreed and recognized that the nature of the business of NHLE,
NHL and its Member Teams requires great public respect for and trust
in the reputation and integrity of NHL and its Member Teams.
Accordingly, it is agreed that in the event of some unanticipated
factor, development or event which, in NHLE's reasonable opinion,
causes continued association of NHL and/or its Member Teams with
LICENSEE or the Licensed Products to have a materially adverse
reflection upon NHL or its Member Teams, NHLE may terminate this
License Agreement unilaterally by written notice to LICENSEE. It is
further agreed that if it he NHLE should determine, within its sole
discretion, that LICENSEE, or any sub-contractor or sub-manufacturer
of LICENSEE involved in the production, manufacture or marketing of
the Licensed Product(s), have violated any labor laws or standards
applicable to their business, including, but not limited to, child
labor practices, then the NHLE may terminate this License Agreement
immediately upon written notice to LICENSEE. It is further agreed
that if the NHLE should determine, within its sole discretion, that
LICENSEE, or any sub-contractor or sub-manufacturer of L1CENSEE
involved in the production manufacture or marketing of the Licensed
Product(s), have violated any labor laws or standards applicable to
their business, including, but not limited to, child labor
practices, then the NHLE may terminate this License Agreement
immediately upon written notice to LICENSEE. In the event of such
termination, LICENSEE shall be excused from all further (but not
past due or subsequently earned) royalty obligations; the pro-rated
amount of any minimum guarantee paid in advance will be refunded to
LICENSEE; and NHLE will, in the event it cannot approve distribution
of the remainder of LICENSEE's inventory and work in process,
reimburse LICENSEE for its expenses of salvage or for unsalvageable
products for LICENSEE s cost of manufacturing or acquiring the same
It is further agreed that if NHLE should determine, within its sole
discretion that LICENSEE, or any sub-contractor or sub-manufacturer
of LICENSEE involved in the production, manufacture or marketing of
the Licensed Product(s), have violated any labor laws or standards
applicable to their business, including, but not limited to, child
labor practices, then NHLE may terminate this License Agreement
immediately upon written notice to LICENSEE.
(d) In the event of termination of this License Agreement pursuant to
paragraph 11(a) hereof, LICENSEE will refrain from further use of
the NHL Marks and other NHL Indicia (or any further reference to all
or each of them, direct or indirect, or any simulation of the NHL
Marks or other NHL Indicia). LICENSEE agrees that the NHL Marks and
other NHL Indicia possess a special, unique and extraordinary'
character which makes difficult the assessment of the monetary
damage sustained by unauthorized use. LICENSEE recognizes that
irreparable injury would be caused by unauthorized use and agrees
that injunctive and other equitable relief would be appropriate in
the event of a breach of this License Agreement, provided, however,
that such remedy shall not be exclusive of other legal remedies
otherwise available to NHLE, NHL and/or its Member Teams.
12. FINAL STATEMENT.
LICENSEE shall deliver as soon as practicable, to NHLE following
expiration or termination of this License Agreement a statement indicating the
number and description of Licensed Product(s) on hand Following expiration of
this License Agreement LICENSEE may manufacture no more Licensed Product(s) in
association with the NHL Marks and/or other NHL Indicia but may continue to
distribute and sell its remaining inventory for a period not to exceed sixty
(60) days following such expiration, subject to payment of applicable royalties
thereto, provided, however, that LICENSEE shall have no such right if this
License Agreement is terminated pursuant to paragraph 11 . Following expiration
or termination of this License Agreement for whatever reason, LICENSEE agrees to
make no use of the NHL Marks and/or other NHL Indicia whatsoever either in or on
products or in advertising publicity promotional or display materials. NHLE
shall have the right to conduct a physical inventory in order to ascertain or
verify such inventory and/or statement in the event LICENSEE refuses to permit
NHLE to conduct such physical inventory LICENSEE shall forfeit its right
hereunder to dispose of such inventory. In addition to such forfeiture, NHLE
shall have recourse to any and all other legal remedies available to it.
Notwithstanding the foregoing, in the event that NHLE terminates this License
Agreement pursuant to any of the provisions of this License Agreement, LICENSEE
shall have no right to dispose of its inventory beyond the effective date of
such termination and shall be subject to the payment of damages specified
herein.
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13. NOTICES.
All notices which either party hereto is required or may desire to
give to the other shall be given by addressing the same to the other at the
address above written, or at such other address as may be designated in writing
or by telefax message by any such party in a notice to the other given in the
manner prescribed in this paragraph. All such notices shall be sufficiently
given when the same shall be received by telefax message, or after such notice
is deposited so addressed, postage prepaid, in the United States or Canadian
mail, and/or when the same shall have been delivered, so addressed, to a
telegraph or cable company toll prepaid. The date of actual receipt of such
telefax message, mail or telegraphing shall be the date of the giving of such
notice.
14 NO PARTNERSHIP OR JO1NT VENTURE ETC
This License Agreement does not constitute and shall not be
construed as constituting a partnership, joint venture or agency between
LICENSEE and either the NHLE, NHL and/or its Member Teams. Neither party shall
have any right to obligate or bind the other party in any manner whatsoever, and
nothing herein contained shall give, or is intended to give, any rights of any
kind to any third persons.
15. CONSTRUCTION.
This License Agreement shall be construed in accordance with the
laws of the State of New York of the United States of America without reference
to the conflicts of law provisions thereof.
16. WAIVER MODIFICATION ETC
This License Agreement represents the entire agreement and
understanding of the parties hereto with respect to the subject matter hereof
and supersedes all previous representations, understandings or agreements
between the parties hereto No waiver modification or cancellation of any term or
condition of this License Agreement shall be effective unless executed in
writing by the party charged therewith No written waiver shall excuse the
performance of any act other than those specifically referred to therein NHLE
makes no warranties to the LICENSEE except those specifically expressed on the
first page hereof
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17. NO ENDORSEMENT BY PLAYERS ETC
This License Agreement does not carry with it any right to use the
name, likeness, reputation, goodwill, persona, or any other aspect of the right
of privacy, personality or publicity of any individual or group, including any
individual, or group of, current or former NHL player(s). LICENSEE understands
and agrees that it is LICENSEE's responsibility to secure whatever rights may be
required for the use of any such. name, likeness, reputation, goodwill, persona
or other aspect in connection with the Licensed Products. LICENSEE further
understands and agrees that neither the execution hereof nor any grant of
approval hereunder nor any other act or omission by NHLE shall operate or be
construed as a grant by NHLE of any such rights or as approval by NHLE of the
use of any such name likeness, reputation, goodwill, persona or other aspect in
connection with the Licensed Products in the event LICENSEE shall not have
secured such rights LICENSEE shall not exercise the rights granted hereunder in
any manner that will constitute an endorsement of a Licensed Product by any
current or former NHL player(s) without the specific consent of such player(s).
18. ARBITRATION.
(a) Any dispute or disagreement between the parties hereto shall be
determined in any forum of NHLE's choosing, and LICENSEE hereby consents to
venue and personal jurisdiction in any New York State court sitting in New York
City and the United States District Court for the Southern District of New York.
In any such action, the forum may retain jurisdiction to award damages, profits,
attorneys' fees or costs, as allowed by law in such matters.
(b) Without limiting the provisions of clause (a) above, NHLE may
elect to have any dispute or disagreement between the parties hereto arising out
of or relating to this License Agreement settled by binding arbitration in New
York City under the rules then in effect of the American Arbitration
Association, and judgment upon the award may be entered in the courts of the
State of New York and any other court having jurisdiction.
19. ACCEPTANCE BY NHLE.
This instrument, when signed by LICENSEE, shall be deemed an
application for a license and not a binding agreement unless and until accepted
by NHLE by signature of a duly authorized officer and the delivery of such a
signed copy to LICENSEE. The receipt and/or deposit by NHLE of any check or
other consideration given by LICENSEE and/or the delivery of any material by
NHLE to LICENSEE shall not be deemed an acceptance by NHL of this application.
The foregoing shall apply to any documents relating to renewals or modifications
hereof.
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IN WITNESS WHEREOF, the parties hereto have signed this License
Agreement as of the day and year first above written.
NHL ENTERPRISES, L.P., LICENSEE: COLLECTIBLE CONCEPTS GROUP, MC,
BY: NHL ENTERPRISES, INC.,
ITS GENERAL PARTNER
By: /s/ XXXXX X. XXXXXXXX By: /s/ XXXX X. XXXXXXXXX
--------------------- ---------------------
Name: Xxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxxxxxx
Title: Group Vice President, Title: President
Consumer Products Marketing
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