Merchandising Agreement by Megadox

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									                             MERCHANDISING AGREEMENT
THIS AGREEMENT made effective as of the _____ day of ______________, _______.

BETWEEN:

                                           [Organization]
                                              [address]
                                       (the “Organization”)
                                                                                OF THE FIRST PART

                                              - and -

                                           [COMPANY]
                                            [address]
                                        (the “Company”)
                                                                            OF THE SECOND PART

WHEREAS:

A.     [Organization] has been incorporated to act as the [governing body/organizing committee] for
       the [description of event] (the “Event”);

B.     The [official logos/business marks/etc] as more particularly described in Schedule “A” hereto
       (the “Trade Marks”) associated with [the Event] are the exclusive property of [Organization];

C.     [Organization] intends to make available to the Company the Trade Marks set out in
       Schedule “A” hereto on the various terms, conditions and restrictions contained in this
       Agreement, and other marks made available by [Organization] in its sole discretion from time to
       time;

NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the mutual covenants
and agreements contained in this Agreement and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged by the parties, the parties hereby agree as follows:

1.     Definitions & Interpretation

1.1     In this Agreement, unless the context otherwise requires, the following words and expressions
shall have the meanings ascribed to them as follows:

(a)    “Appropriate Designate” means:
       (i)      with respect to the Trade Marks, [Organization]; and
       (ii)     such other entities as may be named from time to time by [Organization];
(b)    “Company” means [COMPANY];
(c)    “Event” means [Event];
(d)    “Insurance” shall have the meaning ascribed to it in Section [no.] hereof;
(e)    “Manufacturer” shall have the meaning ascribed to it in Section [no.] hereof;
(f)    “Official Sponsors” means those entities designated from time to time by [Organization] as
       Official Sponsors of the Event;
(g)    “Organization” means [Organization];
(h)    “Person” means any individual, firm, company, corporation, government, governmental body or
       agency, instrumentality, unincorporated body of persons or association;
(i)    “Products” means those products as described in Section [no.] hereof;
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(j)     “Territory” means that geographic territory as described in Section [no.] hereof;
(k)     “Trade Marks” means those Trade Marks and other marks as more particularly described in
        Schedule “A” hereto.

1.2    Words importing the singular number include the plural and vice versa and words importing the
masculine gender include the feminine and neuter genders.

1.3   All references to currency are to ______________ currency, unless otherwise provided for in this
Agreement or the schedules hereto and all payments shall be made in _________ currency.

1.4     All of the schedules attached to this Agreement are incorporated by reference and are deemed to
be part of this Agreement.

1.5     “Termination of the rights granted hereunder”, or similar words to that effect as used in this
Agreement, shall not be construed as meaning that this Agreement has terminated with respect to the
obligations and liabilities of the Company hereunder and such obligations and liabilities shall continue to
accrue and continue in full force and effect notwithstanding such termination of rights.

1.6     The words “in writing” or “written”, or similar words to that effect as used in this Agreement
shall include printing, typewriting, or any electronic means of communication by which words are
capable of being visibly reproduced at a distant point of reception, including facsimile, telex, telegraph
and electronic mail (“e-mail”).

2.      Grant and Consent

2.1     [Organization], upon the terms, conditions and other provisions hereinafter set forth, hereby:

        (a)     consents to the use of the Trade Marks by the Company, and

        (b)     grants a license to the Company to use the Trade Marks,

solely upon or in connection with (including and limited to the manufacturing, distribution and retail
sale of) the following product(s):

        (list OR attach a list as Schedule to Agreement)

(such product(s) only as described above, are herein referred to as the “Products”), provided however
that such Products are wholly manufactured by the Company or other person approved by
[Organization] pursuant to the provisions of Section [no.] hereof and that each and every individual
Product be approved, in accordance with the provisions hereof, as to its quality, style and graphic
integrity, prior to its distribution, sale or release for any purpose whatsoever. The Products approved
herein are intended for retail distribution to the general marketplace and any promotional sales
opportunity or other use of the Trade Marks not contemplated and set forth herein requires the prior
written approval of [Organization], which such approval may be arbitrarily withheld.

2.2     All terms and provisions of this Agreement shall be subject to the [list any applicable agreements
or other documents] and in any matter or dispute the [applicable agreement(s)] shall take precedence.
The Company hereby acknowledges receipt of a copy of the [applicable agreement(s)] and agrees to abide
by any and all requirements thereof which are applicable to the Company. The terms of this Agreement
shall not be affected by any subsequent amendment to the [applicable agreement(s] unless by mutual
agreement of [Organization], the Company and the Appropriate Designate.
                                                -3-


3.      Exclusivity

3.1       The rights herein granted with respect to the Products shall be the sole and exclusive right of the
Company during the currency of the rights granted hereunder, within the Territory, and subject always
to all of the terms, conditions and other provisions of this Agreement.

4.      Integrity of Trade Marks

4.1     The Company acknowledges that it is of fundamental importance to [Organization] and the
Appropriate Designate that the integrity of the Trade Marks be maintained to a level deemed appropriate
by [Organization] and the Appropriate Designate and in this regard the Company, in addition to the
other terms, requirements and obligations contained in this Agreement, agrees to be bound by and to
scrupulously follow the usage specifications and policies as set out in Schedule ”B” hereto, as may be
amended from time to time by [Organization] in its sole discretion.

5.      Quality Control

5.1     The rights granted hereunder to use the Trade Marks shall apply to the Products, provided
always that all of the Products and all tags, labels, imprints or other devices, cartons, containers, packing
or wrapping material or other accessories whatsoever to the Products which incorporate the Trade Marks
and any art work, advertising, advertising copy, publicity, publication or display or promotional material
whatsoever relating to the Products which incorporate the Trade Marks shall comply with the standards
of quality in relation to design, manufacture and materials used all as shall from time to time be
acceptable to [Organization] (herein collectively referred to as “[Organization]’s Standards”).

5.2      For purposes of this Section 5, prior to the Company’s use, distribution and/or sale of any
Products and any of the above items referred to in this Section 5 in connection with the rights granted
hereunder and for each Trade Mark, the Company shall submit to [Organization] a reasonable number of
such Products and above items referred to free of cost in order to allow [Organization] to determine that
each such Product and/or item complies with [Organization]’s Standards. Notwithstanding the
foregoing, the Company shall submit samples of the Products and any of the above items referred to
herein to [Organization] at the address and in accordance with the provisions of Section [no.] hereof, from
time to time forthwith upon the request of [Organization], and if [Organization]’s Standards are not met
within ____ days of the communication thereof to the Company, [Organization] may give a further ____
days notice to terminate the rights granted hereunder. In the event [Organization]’s Standards are
changed from time to time, or in the event that Product is manufactured which is not in compliance with
[Organization]’s Standards, the Company shall ensure that all Products which do not comply with
[Organization]’s Standards are dealt with pursuant to paragraph [no.] hereof and the provisions of such
paragraph shall apply in such event. After approval has been obtained from [Organization] pursuant to
this Section [no.], the Company shall not depart from the form of Products or items as approved in any
respect without [Organization]’s prior written consent or direction.

5.3      The Company further agrees that [Organization], or a designated representative thereof, shall
have the right at any time during normal business hours, to attend at the premises of the Company or the
Manufacturer, as the case may be, to check the method of manufacture of the Products and any of the
aforementioned items, in order to ensure that [Organization]’s Standards are, at all times during the term
of this Agreement, maintained and complied with.

6.      Markings on Packaging & Promotional Materials

6.1     The Company shall cause to appear in the appropriate place on or within each copy of any of the
Products and on or within all tags, labels, markings, imprints, packaging, advertising, promotional or
display material bearing the Trade Marks, or any of them, an appropriate notice of copyright, trademark,
                                                -4-


official mark or otherwise as stipulated by [Organization] from time to time and, where such Products or
such tags, labels, imprints, markings, packaging, advertising, promotional or display material bears any
one or more of the Trade Marks as a trade mark, service mark, official mark, or otherwise, the Company
shall cause to appear thereon or therein notice of Mark ownership and, in addition, notice that the
Company is using the same as an “Official Licensee”, Registered User or other such designation, the
whole as required from time to time by [Organization] and the Appropriate Designate.

6.2      If and to the extent that the Company is by this Agreement authorized to reproduce in a three-
dimensional model form any one or more of the Trade Marks, the said models, together with all tags,
labels, imprints, markings, packaging, advertising, promotional or display material used in connection
therewith, shall carry such notice of industrial design or other protection as may from time to time be
required by [Organization] and the Appropriate Designate.

6.3     Each and every tag, label, imprint, marking, and all packaging, advertising, promotional or
display material bearing the Trade Marks or containing any of the notices herein above referred to, shall
be submitted by the Company to [Organization], for [Organization]’s written approval prior to use by the
Company, it being understood that [Organization] shall supply and the Company shall use, the dates and
language to be inserted in all such notices.

6.4      The Company further agrees to cooperate fully and in good faith with [Organization] for the
purpose of securing or protecting [Organization]’s and the Appropriate Designate’s legal rights in any of
the Trade Marks, and, in the event that there has been no previous registration of any of the Trade Marks
or any part thereof or any of the Products and/or any material relating thereto, the Company shall, upon
the written request of [Organization] or the Appropriate Designate, register such a copyright, trade mark
and/or industrial design in the appropriate class, in the appropriate governmental office, whether
domestic or foreign, at [Organization]’s expense, and any and all copyright, trade marks, service marks,
industrial designs or other rights in and to any of the Trade Marks or any part thereof or any of the
Products and/or any material related thereto and connected therewith, as between the Company and
[Organization] or the Appropriate Designate, as the case may be, are reserved to [Organization] or the
Appropriate Designate, as the case may be, and all such registration by the Company shall be in the name
of [Organization] or the Appropriate Designate (if it requests same), as the case may be, and nothing
herein contained shall be construed as an assignment or grant to the Company of any right, title, or
interest in or to any copyright, trade mark, official mark, industrial design or other mark of or relating to
any of the Trade Marks or any part thereof or any of the Products or any right in relation thereto.

7.      Distribution

7.1     The Company hereby covenants and agrees with [Organization] that:

(a)     the Company shall diligently and continuously promote the Products within the Territory with a
        view to gaining maximum volume of distribution and sales, and further covenants to diligently
        and continuously manufacture, distribute and sell the Products so as to satisfactorily meet
        demand;

(b)     the Company shall not distribute or sell the Products as part of, or in direct association with, or
        where the Company knows or ought to know, that the Products may become used in association
        with, any other goods, items, products or services, so that such other goods, items, products or
        services are in any manner, directly or indirectly, associated with [Organization], the Appropriate
        Designate, the Event, or the rights granted hereunder, unless [Organization] has given prior
        written consent to same;
                                                 -5-


(c)      subject to governing laws, the Company shall not sell or distribute, in any manner whatsoever,
         any of the Products:

         (i)     to jobbers, wholesalers, distributors, retail stores or merchants, who are not acceptable to
                 [Organization]; or

         (ii)    by way of any type of promotion, regardless of form, which involves any association
                 whatsoever with [Organization], the Appropriate Designate, the Event or the rights
                 granted hereunder, unless [Organization] has given prior written consent to same;

(d)      the Products shall be manufactured, distributed, advertised and sold in compliance with all
         applicable governmental rules, laws and regulations. The Company shall cause accurate labeling
         regarding the care, maintenance and use of the Products where applicable, to be affixed to the
         Products. In addition, the Company shall pre-test the Products prior to selling same and the
         Company hereby warrants and represents that the Products shall be, in all respects, safe,
         non-injurious and fit for use by the person or entity for whom the Products are intended;

(e)      the Company and its employees, servants and agents will, in the process of effecting distribution
         and retail sale of the Products, maintain the highest standard of conduct and good taste so as to
         preserve and enhance the good will, good name, reputation of [Organization], the Appropriate
         Designate, Canadian Olympic Movement, Canadian Olympic Team and the Event;

(f)      the Company agrees to sell to [Organization], the Appropriate Designate, Official Sponsors,
         suppliers to [Organization] and parties to other Merchandising Agreements, all from time to
         time, quantities of the Products at the lowest prices and on the best terms as the Company sells
         similar quantities in the course of its distribution;

(g)      in the event that the Company is at any time unable or unwilling to produce and sell to
         [Organization] or to the Appropriate Designate, for its or their purpose, Products in a form,
         quality, style, substance and quantity requested by [Organization] or the Appropriate Designate
         and at as low prices and on as good terms as the Company sells similar quantities of the Products
         in the course of its distribution, [Organization] and the Appropriate Designate shall have the
         right to place orders for the supply of the Products as it or they require with suppliers other than
         the Company, and such shall not constitute a breach of this Agreement; and the terms and
         conditions of Paragraph 7.1(g) hereof notwithstanding, in the event that other persons related to
         or associated with [Organization] (which such term shall include without limitation “Official
         Sponsors”, Appropriate Designates, and parties to other Merchandising Agreements from time to
         time), are able to procure Products in form, quality, style, and substance equal to the Company’s
         Products, but at a selling price of ____% or more less than the Company’s selling price, then such
         related or associated entities shall have the right to place orders for the supply of such Products
         as it requires from suppliers other than the Company, and such action shall not constitute a
         breach of nor jeopardize the relationship of the parties to this Agreement.

8.       Indemnification

8.1(a)   The Company shall indemnify and hold [Organization] and the Appropriate Designate harmless
         of and from any claims or suits arising out of any patent, process, method or device or out of
         infringement of any copyright, trade mark, trade name, patent or libel or invasion of the right of
         privacy, publicity, or other property rights, or defects or failure to perform, alleged or otherwise,
         in or relating to the Products, or infringement or breach of any other personal or property right of
         any person by the Company, its officers, employees, agents or anyone directly or indirectly acting
         by, through, on behalf of or pursuant to contractual or any other relationship with the Company
                                                -6-


        in connection with the preparation, manufacture, distribution, retail sale, advertising and/or
        promotion of the Products, or, in relation thereto, any material naming or referring to any
        performers, personnel, marks and/or elements. The aforesaid indemnification does not apply to
        any particular matter concerning whether or not [Organization] had the right to consent to, or
        grant, the use of the Trade Marks by the Company pursuant to this Agreement. As concerns the
        foregoing indemnification, the Company shall defend and hold harmless [Organization] and the
        Appropriate Designate, at no cost and expense to them whatsoever, against any loss, damage or
        expense whatsoever (including, without limitation, loss of anticipated profits, special, incidental
        or consequential damages, legal fees on a solicitor and client basis, and expenses of investigation
        with respect to any claim, action or proceeding against [Organization] or the Appropriate
        Designate or otherwise). The aforesaid indemnification applies whether or not such loss, damage
        or expense is reasonably contemplated by the parties, naturally arises or is usual, exceptional,
        probable or remote. This indemnity is in addition to and shall not affect any other indemnity
        contained in this Agreement. [Organization] and the Appropriate Designate shall have the right
        to defend any action or proceeding relating to the aforesaid with attorneys of their own selection.

(b)     The Company shall indemnify and save harmless [Organization] and the Appropriate Designate
        against any loss, damage or expense whatsoever (including, without limitation, loss of
        anticipated profits, special, incidental or consequential damages, legal fees on a solicitor and
        client basis and expenses of investigation with respect to any claim, action or proceeding against
        [Organization] or the Appropriate Designate or otherwise) arising from or incidental to any
        failure on the Company’s part to perform and discharge its obligations and liabilities under this
        Agreement or any misrepresentation of the Company under this Agreement or any act by the
        Company not expressly authorized by this Agreement, whether or not such loss, damage or
        expense is reasonably contemplated by the parties, naturally arises from such failure or is usual,
        exceptional, probable or remote. This indemnity is in addition to and shall not affect any other
        indemnity contained in this Agreement.

9.      Protection of Marks

9.1      Any words (whether in English, French or any other language), graphics or other copy or design
placed upon or around or used in direct or indirect association with the Trade Marks or the Products
when directly or indirectly associated with the Trade Marks, by the Company and in connection with the
rights granted hereunder, shall first have the prior written approval of [Organization].

9.2      The Company acknowledges and agrees that it has no right, title or interest in or to the Trade
Marks, nor any part thereof, except the use of the same as herein set out and that nothing in this
Agreement shall be construed as an assignment or grant to the Company of any right, title or interest in
or to the Trade Marks or in any copyright, trade mark, official mark or industrial design of [Organization]
or the Appropriate Designate and that it shall not take any action to the detriment of [Organization]’s or
the Appropriate Designate’s right, title or interest in or to any of the aforesaid, either during the currency
of this Agreement or thereafter. The Company shall not ,whether directly or indirectly, at any time assert
the invalidity of the Trade Marks or any part thereof, or contest [Organization]’s or the Appropriate
Designate’s ownership of or rights in or to the Trade Marks or any part thereof.

9.3     The Company further agrees that:

(a)     it shall use the Trade Marks solely in accordance with the provisions of this Agreement and in
        such manner as to protect and preserve all of [Organization]’s and the Appropriate Designate’s
        rights;
                                                -7-


(b)     it will not adopt or use in [country] or elsewhere any trade mark, symbol, name, word or other
        mark which includes or is confusingly similar to any of the Trade Marks or any part thereof; and

(c)     it will not use any of the Trade Marks or any part thereof, as part of a trade, business or corporate
        name or style to be used by it.

9.4     The Company agrees that, should any right, title or interest in or to the Trade Marks or any part
thereof or any copyright, Trade Mark or Official Mark of [Organization] or the Appropriate Designate
become vested in it (by operation of law or otherwise) it shall hold the same in trust for [Organization] or
the Appropriate Designate, as the case may be and as their interests may appear and shall, at the request
of [Organization] or the Appropriate Designate, as the case may be, forthwith unconditionally assign any
such right, title or interest to [Organization] or the Appropriate Designate, as the case may be. Should the
Company, with the prior written consent of [Organization] and the Appropriate Designate, create and
make use of any of the Trade Marks or any part thereof in a configuration other than that set out in
Schedule “B” hereto, as amended from time to time by [Organization] in its sole discretion, then the
Company agrees that all rights in and to any new version, translation or arrangement of the Trade Marks,
or other change in the Trade Marks created by the Company, shall be and shall remain the exclusive
property of [Organization] or the Appropriate Designate, as the case may be and as their interests may
appear, and the provisions of this Agreement shall apply to same, mutatis mutandis, as they do to the
Trade Marks. [Organization] and the Appropriate Designate shall be the sole judge as to whether there
has been any new version, translation, arrangement or change of the Trade Marks.

10.     No Assignment or Sub-License

10.1    The rights granted hereunder are personal to the Company and are not assignable by the
Company and are subject to the conditions that no part of the process of manufacture of the Products
shall be carried on by any person other than the Company without the prior written consent of
[Organization] (which such person, so consented to shall be herein referred to as the “Manufacturer”).
Should the Products or any part thereof not be manufactured by the Company, then the Company shall
obtain the due execution by the Manufacturer of an exclusive manufacturing agreement in the form
attached hereto as Schedule “C”, as may be amended by [Organization] from time to time in
[Organization]’s sole discretion and the Company shall provide a copy of such duly executed agreement
to [Organization] prior to [Organization] granting consent to such Manufacturer to manufacture the
Products or any part thereof.

11.     Territory

11.1    The Products may not be sold, offered for sale, advertised, or promoted in other than the
following geographical territory (herein referred to as the “Territory”):



Subject to Paragraphs 7.1(g) and (h) hereof, and except for those persons who have been authorized by
[Organization] to use the logos as more particularly described in Schedule “A” hereto on a without profit
or gain basis, [Organization] shall not grant to any person other than the Company, the right or consent
to use the Trade Marks in association with merchandise or wares identical to the Products within the
Territory, so long as the Company fully respects its obligations under the terms of this Agreement.
[Organization] hereby expressly reserves the right to consent to and grant the right to use the Trade
Marks to other persons engaged in the manufacture, distribution and/or retail sale of merchandise or
wares identical or similar to the Products coming into the same general descriptive category as the
Products in geographic areas other than the Territory.
                                                -8-


12.     Supply of Products

12.1    The Company shall commence manufacturing the Products so as to have the same available in
reasonable quantities for general distribution and retail sale not later _______days following the date of
execution of this Agreement.

13.     Royalty Payments, Financial & Sales Information

13.1     As consideration for [Organization] entering into this Agreement, the Company shall pay to
[Organization] royalties based on sales of the Product (including Product subsequently modified with the
prior written consent of [Organization]) calculated in accordance with the provisions of Schedule “D”
hereto. Immediately upon the occurrence of sales transactions in respect of which royalties are payable,
an amount of the Company’s monies equivalent to the amount of royalties payable shall be deemed
automatically to constitute trust funds whose beneficiary is [Organization]. At [Organization]’s request,
the Company shall establish a separate trust account solely for the royalty monies, and shall deposit to
such trust account all royalty monies to be paid to [Organizatio
								
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