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EXHIBIT 10.28
LICENSE AGREEMENT
This LICENSE AGREEMENT (this "Agreement") is made and entered
into as of
February 10, 2003 by and between Weatherbeeta PTY LTD
("Licensor"), an
Australian corporation and Dover Saddlery, Inc. ("Licensee"), a
Delaware
corporation.
RECITALS
I. As described in a letter agreement dated February__, 2003,
between
Licensee and Licensor (the "Letter Agreement"), Licensor has
acquired certain
rights to the Marks and the goodwill appurtenant thereto
pursuant to a secured
party sale by The Bank of New York to Licensor's nominee
Weatherbeeta USA, Inc.,
which has assigned all of said rights to Licensor.
II. Licensee desires to license from Licensor certain of those
rights.
NOW THEREFORE, for good and valuable consideration, the receipt
and
sufficiency of which is hereby acknowledged by Licensor the
parties agree that:
1. As used in this Agreement the following terms shall have the
following
meanings:
"Domain Name" means the URL address and domain name
www.millerharness.com.
"Marks" means the trademarks and tradenames "Millers" and
"Miller's
Harness", whether registered or common law marks, and including,
but not limited
to those trademarks registered with the U.S. Patent and
Trademark Office as
Registration Nos. 1087381,1608811, and 0885095; that Trademark
registered with
the Canada Intellectual Property Office as Registration No.
240890; that
Trademark registered with the Mexican Industrial Property Office
as Registration
No. 504551; those trademarks registered with the Brazil
Instituto Nacional Da
Propriedade Industrial as Registration Nos. 816641200, 816641196
and pending
applications with Processing Numbers 817201564 and 817201572;
and the mark
attached hereto as Exhibit A.
"Territory" means North America, Central America and South
America.
2. Licensor hereby grants to Licensee, and Licensee hereby
accepts from
Licensor, a perpetual, exclusive right, license and privilege
(subject only to
the Debtor's License, described below), in accordance with the
terms and
conditions of this Agreement, to utilize the Marks in the
Territory in
connection with: (i) a retail mail order sales catalog
distributed within the
Territory for retail sales of equestrian products and apparel;
and (ii) an
Internet web site that uses the Domain Name for retail sales of
equestrian
products and apparel ((i) and (ii) hereafter collectively
referred to as the
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"Field"). Licensee shall have no right to use the Marks or the
Domain Name for
any other purpose outside of the Field. Specifically, but not by
way of
limitation, Licensee shall have no right to make, have made, or
import products
bearing the Marks or the Domain Name, and may only sell and
offer to sell such
products purchased from authorized licensees of Licensor.
Licensee acknowledges
that its license granted herein overlaps with the non-exclusive
license (the
"Debtor's License", attached hereto) granted to English
Equestrian Group LLC and
Miller Harness Company, Inc. (the "Debtors") and to The Bank of
New York to
utilize certain rights, including the Marks and the Domain Name,
in the
Territory until April 30, 2003, solely in connection with the
distribution,
marketing and/or sale of certain inventory currently owned by
the Debtors.
Licensor agrees that it will not 1) extend or otherwise amend
the Debtor's
License and 2) grant any other licenses permitting any third
party to use the
Marks or the Domain Name in the Field and within the
Territory.
3. Licensee accepts its rights hereunder "AS IS", without
any
representation or warranty whatsoever, express or implied.
Licensor expressly
disclaims any and all warranties with respect to the Marks and
the Domain Name
and the rights therein, including, but not limited to, any
warranty that
Licensor has good title to the Marks or valid registration of
the Domain Name,
that the Licensor has the power or authority to grant the rights
purportedly
granted herein, that the Marks or Domain Name do not infringe
upon the rights of
any third party, or that no third party has rights superior to
those granted
herein. Licensee acknowledges that it has had the opportunity to
conduct due
diligence with respect to Licensor's acquisition of the Marks
and the Domain
Name and the rights that Licensor has acquired in such Marks and
the Domain
Name.
4. Licensor agrees that during the term of this Agreement, no
fee, royalty
or other payment or compensation shall be due to Licensor for
the license
granted pursuant to this Agreement. Licensee agrees that the
nature and quality
of all services rendered by Licensee in connection with the
Marks, and all
related advertising, promotional and other uses of the Marks by
Licensee shall
conform to standards set by and under the control of
Licensor.
5. Licensee agrees to cooperate with Licensor in facilitating
Licensor's
control of the nature and quality of the services rendered by
Licensee in
connection with the Marks, to permit reasonable inspection of
Licensee's
operations, and to supply Licensor with specimens of all uses of
the Marks upon
reasonable request accompanied by advance notice of at least
fifteen (15)
business days. Licensee shall comply with all applicable laws,
regulations, and
obligations, and shall obtain all appropriate government
approvals pertaining to
the uses of the Marks and the Domain Name covered by this
Agreement.
6. Licensee agrees to notify Licensor of any unauthorized use of
the Marks
by others promptly as it comes to Licensee's attention. Licensor
hereby grants
to Licensee the right to bring infringement or unfair
competition proceedings
against third
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parties for unauthorized usage of the Marks or the Domain Name
in the Territory
and within the Field. Licensor agrees to reasonably cooperate
with Licensee in
connection with all such proceedings, at Licensee's expense.
Licensor shall have
the right, in its discretion and at its sole expense, to join
and participate in
all such proceedings initiated by Licensee. Any recovery as a
result of such
action by Licensee shall belong solely to Licensee, except to
the extent that
such recovery represents damage to Licensor, in which case any
such recovery
shall be paid to Licensor. In the event Licensee
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