AGREEMENT TO REPRODUCE IMAGES
Conditions under which permission is granted to reproduce images from the collections of Thomas P. Jacobsen.
This Agreement by and between the undersigned (hereinafter referred to as "Licensor" and "Licensee") provides that the Licensor agrees to grant the Licensee specific rights to reproduce the IMAGE (NAME AND CHARACTERS) listed below, for the purpose of manufacturing and marketing the specific product described in this Agreement. This Agreement is for one IMAGE only for use on one LICENSED PRODUCT only, in one language.
City, State, Zip:
City, State, Zip:
"NAME AND CHARACTERS (IMAGE)" as used herein shall mean collectively the name(s)(brandname or title), characters, images, symbols, likenesses, modified "art-work", designs and associated goodwill and other indicia constituting the IMAGE being licensed herewith.
A) DATE OF ENACTMENT: Agreement made this ______ day of _______________________,
199__, for the following IMAGE:
(Title/brandname and type of image/label)
(Visual description of image)
* Illustration or photo of image attached: yes_____ no_____
IN CONSIDERATION OF THE FOLLOWING MUTUAL COVENANTS AND OBLIGATIONS, THE PARTIES HEREBY AGREE AS FOLLOWS:
THE LICENSEE AGREES:
1) Licensee agrees and guarantees to pay Licensor a quarterly royalty by check equal to _____ % of the wholesale SALES price for all manufactured LICENSED PRODUCT(S) bearing the above NAME AND CHARACTERS (IMAGE) and sold pursuant to this agreement. Payment will be made on a quarterly accounting to Licensor on or before the 30th day of the first month in the following quarter. A "sale" or "SALES" to be defined as gross sales dollar volume received by Licensee less allowances for normal returns. Such SALES shall be determined without deducting uncollected accounts and shall included all transactions of LICENSED PRODUCT(S) distributed by Licensee or any of its affiliated, associated or subsidiary companies, representatives or agents, even if such transactions are billed. Licensee shall bear all risk for sales made on consignment or credit. The distribution of free samples by the Licensee or his authorized agents (except those provided to Licensor pursuant to this Agreement) shall be deemed a SALE. Licensee shall not sell LICENSED PRODUCT(S) for use as premiums, giveaways, fund-raisers or entries in sweepstakes without written instrument from Licensor.
1a) DISTRIBUTION: Licensee shall sell LICENSED PRODUCT(S) either to jobbers, wholesalers, distributors or retailers for sale or resale and distribution directly to the public. If Licensee sells or distributes the LICENSED PRODUCT(S) at a special price, directly or indirectly, to itself, including without limitation, any subsidiary, person or firm affiliated with the Licensee, for ultimate sale to unrelated third parties, the Licensee shall pay royalties with respect to such sales and distribution, based upon the price generally charged the trade by Licensee.
1b) The quarterly royalty payments shall be accompanied by a complete and accurate statement, certified to be accurate by Licensee showing the number of LICENSED PRODUCT(S) sold and its gross sales price, itemized discounts and allowances from gross sales for returns. Such reports shall be furnished by Licensee whether or not any LICENSED PRODUCT(S) have been sold during the quarter. In the event that any inconsistencies or mistakes are discovered in such reports or payments, they shall be rectified immediately and the appropriate payment made by Licensee.
1c) Upon termination of this Agreement, Licensee shall pay the difference, if any, between the said guaranteed royalty amount and the aggregate royalty payments received by Licensor during the TERM of the Agreement.
1d) In consideration for the permission granted herein, Licensee agrees to pay licensor upon execution of this Agreement a non-refundable advance royalty payment of $_____.___; such payment to be applied against quarterly payments set forth in this Agreement. In the event royalty payments do not equal the advance, Licensor shall not be obligated to refund any portion thereof.
2) "LICENSED PRODUCT" shall mean and include only the one product set forth and described. This agreement is for the following manufactured product:
3) Licensee agrees to submit to Licensor _____ samples from the first production run of the LICENSED PRODUCT, and one (1) sample of subsequent versions or alterations of the original image free of charge. Licensee agrees to submit one copy of all printed advertising materials showing LICENSED PRODUCT(S) to Licensor within thirty (30) days of its distribution. Licensor shall have the right to purchase LICENSED PRODUCT(S) from Licensee at the price equal to the lowest wholesale price at which Licensee offers such LICENSED PRODUCT(S).
4) Licensee shall use only quality reproductions which accurately reflect the artistic quality of the NAME AND CHARACTERS (IMAGE). Licensee retains the right to alter or adapt the image to the marketplace by removing copyrighted or trademarked information and wording that associate it with a specific company or geographic location. Licensee agrees that such alterations shall not constitute the creation of a "new image" or "new art-work" thereby circumventing this agreement, and that upon termination of this Agreement Licensee shall not use any similar property that might be confused with the NAME AND CHARACTERS licensed herewith (except as provided in section 2a) of TERMS OF THIS AGREEMENT) . Licensor retains ownership of licensed NAME AND CHARACTERS (IMAGE), and any photographic "transparencies", photocopies, or other mediums used in its reproduction. Licensor is hereby agreeing only on the terms of its reproduction and not on any transfer of ownership or relinquishment of interest in the NAME AND CHARACTERS (IMAGE).
5) Licensee has the right to sub-contract, use or rely upon the services of other manufacturing, marketing and/or distributing entities to produce, market and sell the LICENSED PRODUCT(S) anywhere in the world where the "marks" are recognized or when Licensee receives written permission from the Licensor. Licensee agrees to restrict any such entities from using image for any other LICENSED PRODUCT(S) than that agreed upon herewith, and acknowledges that the NAME AND CHARACTERS (IMAGE) cannot be sub-licensed, given away, reproduced or authorized for use of any kind, to anyone else for any reason whatsoever, without prior specific written instrument from Licensor.
6) Licensee agrees to absorb all costs of reproduction, manufacturing, sale, marketing, exploitation and/or distribution, and that these costs shall not be deducted from SALES. Licensor will incur no costs, charges, fees or expenses of any kind under this Agreement.
7) The Licensee agrees to market and sell the LICENSED PRODUCT(S) only in the following specific territory: "TERRITORY" shall mean and include only the geographical area(s) known as: ____________________________________________________________.
8) Licensee hereby indemnifies and agrees to hold Licensor harmless from any loss, liability, damage, cost or expense (including reasonable council fees) arising out of any claims or suits that may be brought or made against Licensor by reason of any unauthorized use by Licensee in connection with the LICENSED PRODUCT(S) or the NAMES AND CHARACTERS (IMAGE) covered by this Agreement as well as any alleged defects, product liability or inherent dangers in said LICENSED PRODUCT(S) or the use thereof. Copyright liability information shall be obtained by the Licensee completely at his own expense.
THE LICENSOR AGREES:
1) Licensor agrees to provide Licensee with exclusive right to reproduce the NAME AND CHARACTERS (IMAGE) licensed within this Agreement for use on the specific LICENSED PRODUCT(S) during the TERM of this Agreement. Licensor agrees not to compete with Licensee regarding the aforementioned NAME AND CHARACTERS (IMAGE) or product during the TERM of this Agreement.
2) Licensor guarantees ownership of at least one copy of the NAME AND CHARACTERS (IMAGE) in his own personal collection upon the Date of Enactment and is hereby only giving consent to the Licensee to reproduce said IMAGE for the purpose(s) agreed herein. Licensor hereby provides that to the best of his knowledge the image listed herein is free from copyright or trademark restriction and is in the "Public Domain". Licensor does not necessarily hold copyright to the specific NAME AND CHARACTERS in this Agreement, or guarantee it is free of claim of copyright. Licensor will not be held financially or legally liable in any way for losses of any kind incurred by the Licensee or any other party due to legal infringement of any sort.
3) Licensor may, upon prior approval of Licensee, market the product at trade shows and other events and/or marketplaces that do not directly interfere with established marketing efforts of the Licensee. A commission of 10% of the wholesale price will be paid above and beyond royalty for establishing new business. Such commissions shall be accounted for in the quarterly royalty statements.
TERMS OF THIS AGREEMENT
1) The principal TERM of this agreement shall be a period of two years (730 days) from date of enactment. This Agreement is not automatically renewable without written application by licensee 60 days prior to the Agreement's termination. This Agreement may be renegotiated at that time.
2) Either party shall have the right to terminate this Agreement upon the others breach of contract, insolvency, bankruptcy or assignment of assets. However, the Licensor shall have the right to terminate this agreement if the Licensee:
(i) defaults on the performance of any of its obligations provided for in this agreement; or
(ii) if any government agency finds the that the LICENSED PRODUCT(S) are defective in any manor.
2a) During the TERM of this Agreement, should the Licensor acquire his own copy or access to another copy of the same NAME AND CHARACTERS (IMAGE) he shall still be bound by the terms of this Agreement.
3) This agreement may not be assigned, sold or otherwise transferred to any other party in whole or in part at any time for any reason or under any circumstances. The NAME AND CHARACTERS (IMAGE) licensed herewith is not to be released, loaned or given, franchised or "sub-licensed" to any other party at any time by the licensee, his agents, affiliates or sub-contracted parties, assignees, receivers, liquidators, trustees, or any other party, either voluntarily or involuntarily.
|3a) Licensee recognizes the great value of the publicity and goodwill associated with the NAME AND CHARACTERS (IMAGE) and acknowledges that any and all GOODWILL arising therefrom belongs to Licensor exclusively, and cannot be attached, litigated or laid claim to upon termination of this Agreement, and that the name and characters have acquired a secondary meaning in the mind of the purchasing public.
4) The "MARKETING DATE" shall mean the date by which the Licensee, in good faith, shall commence procedures to manufacture, distribute and sell the LICENSED PRODUCT or this Agreement/license shall terminate. For this Agreement, the MARKETING DATE is _________________________________________ (90 days from Date of Enactment).
4a) In the event that default of any of the provisions of this Agreement occurs, the Licensor shall/may give notice of termination in writing to Licensee by certified mail. The Licensee shall have ten (10) days in which to correct any of these defaults, and failing such, this Agreement shall terminate, and any and all payments then or later due from Licensee hereunder shall then be due and payable.
5a) In the event of any disputes in connection with this agreement, the parties agree to first attempt settlement by arbitration. Unresolved disputes shall then be settled in a court of law. This agreement shall be construed in accordance with the laws of the State of California, and the parties hereto agree that the Courts in California, County of Contra Costa, have personal jurisdiction over them regarding any action(s) related to this agreement..
6) Upon termination of this Agreement in any manner provided herein, the Licensee will cease and desist from all use of the NAMES AND CHARACTERS (IMAGE) originally provided by the Licensor.
6a) FINAL REPORT: Licensee shall deliver to Licensor, as soon as practicable and within thirty (30) days following the expiration or termination of this Agreement, a report indicating the number, location and description of LICENSED PRODUCT(S) on hand. Following expiration or termination Licensee may manufacture no more LICENSED PRODUCT(S) but may continue to distribute its remaining inventory for a period not to exceed ninety (90) days, on the express condition royalties have been paid and the required quarterly report relative thereto has been submitted.
7) RESERVATION OF RIGHTS: Licensor retains all applicable rights not expressly and exclusively conveyed herein, and licensor may license firms, individuals, co-partnerships or corporations to use all NAMES AND CHARACTERS (IMAGE), art-work and other textual matter in connection with other products in the same and other territories.
7a) NO PARTNERSHIP: This Agreement does not constitute and shall not be construed as a partnership or joint venture between Licensor and Licensee. The Licensee shall have no right to obligate or bind Licensor in any manner whatsoever, and nothing herein contained shall give or is intended to give any rights to any third persons.
8) This Agreement constitutes the entire understanding between the parties with respect to the subject matter hereof, and no other agreements, understandings. and representations of discussions are included except as expressly noted herein. This Agreement may only be modified or changed by written instrument, signed by both parties, making specific reference to this Agreement by date, parties and subject matter, thereby constituting a new Agreement.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of the day and year first above written.
LICENSOR: Thomas P. Jacobsen/Patco Enterprises
WITNESSED BY: _________________________________
(Notary / Relationship) ______________________
COPIES: __________ LICENSOR
(NOTE: 5/10/98 - CONTENT OF THIS TEXT MAY CHANGE WITHOUT NOTICE. DO NOT DOWNLOAD THIS DOCUMENT FOR USE IN LICENSING. INSTEAD, CONTACT SITE ADMINISTRATOR FOR MOST CURRENT VERSION IN HARD COPY. <CLICK HERE> )
(Page last updated: 5/14/98)