MASTER LICENSE AGREEMENTLicense Agreement |
|
|
You are currently viewing: This License Agreement involves
FRANKLIN COVEY CO | FRANKLIN COVEY PRODUCTS, LLC | Franklin Development Corporation. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
|
|
|
|
Exhibit 10.1
MASTER
LICENSE AGREEMENT
BETWEEN
FRANKLIN
COVEY CO.
AND
FRANKLIN
COVEY PRODUCTS, LLC
MADE
EFFECTIVE AS OF
JULY
5, 2008, 11:59 P.M. MOUNTAIN DAYLIGHT TIME
TAB LE OF CONTENTS
MASTER LICENSE AGREEMENT
This
MASTER
LICENSE AGREEMENT (this “ Agreement
”) between Franklin Covey Products, LLC, a Utah limited
liability company (“ Licensee
”), and Franklin Covey Co., a Utah corporation (“
Licensor
”), dated July 7, 2008, is made effective as of July 5,
2008, 11:59 P.M. Mountain Daylight Time.
Recitals
WHEREAS , Licensor and Licensee are parties to a Master
Asset Purchase Agreement dated as of May 22, 2008, as amended (the
“ Asset
Purchase Agreement ”), a Supply Agreement dated
effective as of July 5, 2008, 11:59 P.M., Mountain Daylight Time
(the “ Supply Agreement
”), a Master Shared Services Agreement dated effective as of
July 5, 2008, 11:59 P.M., Mountain Daylight Time (the “
Shared Services
Agreement ”), the Lease Agreement between Franklin
Development Corporation and Licensee (the “ Lease Agreement
”) and the Sub-sublease Agreement between Licensor and
Licensee (the “ Sub-sublease
Agreement
”) (collectively the “ Ancillary Agreements
”);
WHEREAS , Licensee wishes to license from Licensor the right
to use the Licensed Trademarks and the Licensed Copyrights
(together and as defined below, the “ Licensed Materials
”) in connection with certain of Licensee’s activities,
and Licensor has agreed to license to Licensee the Licensed
Materials for such purpose, subject to the terms and conditions
hereof.
WHEREAS , Licensor wishes to license back from Licensee the
right to use the Assigned Trademarks in connection with certain of
Licensor’s activities, and Licensee has agreed to license to
Licensor the Assigned Trademarks for such purpose, subject to the
terms and conditions hereof.
NOW, THEREFORE , in consideration of the mutual promises and
covenants set forth herein, the parties hereto agree as
follows:
AR TICLE I.
DEFINITIONS
1.1
Definitions
. All
capitalized terms used in this Agreement have the meanings set
forth below, unless the context clearly indicates
otherwise.
“
Affiliate ”
means, when used with reference to any Person, any other
Person that directly, or indirectly through one or more
intermediaries, has control of the first Person, or of which
the first Person has control, or which is under common control
with the first Person.
“
Agreement ”
has the meaning set forth in the Preamble.
“
Ancillary
Agreements ” has the meaning set forth in the
Recitals.
“
Asset
Purchase Agreement ” has the meaning set forth in
the Recitals.
“
Assigned
Software ” has the meaning set forth in Section
2.8.
“
Assigned
Trademarks ” means the Trademarks listed on
Exhibit B.
“
Back of Room
Sales ” has the meaning set forth in Section
2.6.
“
Boxed
PlanPlus Software ” has the meaning set forth in
Section 2.8.
“
Branding
Guidelines ” has the meaning set forth in
Section 4.1.
“
Business of
Licensee ” means the sales and service of and
support functions for Licensed Products.
“
Business
Day ” means any day, other than Saturday or
Sunday, on which commercial banks in the United States of
America are open for business.
“
Charter
Flight ” has the meaning set forth in Section
2.5.
“
Commercial
Loss ” has the meaning set forth in Section
10.2.
“
Competitor
” means any Person that, directly or indirectly through
Affiliates, is engaged in the marketing, distribution or sale
of Training-Oriented Products or Training-Oriented
Services.
“
Confidential
Information ” has the meaning set forth in
Section 11.1.
“
Content-Rich
Media ” has the meaning set forth in Section
2.7.
“
Corporate
Gift Items ” has the meaning set forth in Section
2.10.
“
Current
Version ” has the meaning set forth in Section
2.8.
“
Database Use
Guidelines ” means the provisions set forth on
Exhibit Q.
“
Discloser ”
has the meaning set forth in Section 11.1.
“
Display ”
has the meaning set forth in Section 4.1.
“
Domains ”
has the meaning set forth in Section 3.1.
“
DYO
Planner ” has the meaning set forth in Section
2.3.
“
DYO
Website ” means those Internet pages and related
Software and hardware, regardless of the IP address or the
branded name, through which an online customer may design and
order a DYO Planner, provided that the term shall not apply if
such website is no longer under the direct control and
supervision of Licensee.
“
EBITDA ”
means earnings before interest, taxes, depreciation and
amortization. Depreciation expense generated in the
production of inventory shall be included in inventory’s
standard cost and the amortization of certain costs directly
associated with the generation of revenue may be included in
the EBITDA calculation (i.e. will lower EBITDA).
Examples
of these costs include the depreciation of equipment
specifically used for the production of inventory or the
amortization of a prepaid author royalty.
“
EDS
” means Electronic Data Systems Corporation or any of
its Affiliates.
“
Education
Planner ” has the meaning set forth in Section
2.9.
“
Effective
Date ” has the meaning set forth in Section
8.1.
“
Execution-Related
Materials ” has the meaning set forth in Section
2.3.
“
Existing
Distribution Agreements ” means the agreements
listed on Exhibit G.
“
Existing
Licensor International Agreement ” means an
agreement between Licensor and an International Licensee of
Licensor in effect as of the Effective Date in which such
International Licensee of Licensor pays a royalty to Licensor
in exchange for the right to sell Licensed Products bearing
the Licensed Materials in any portion of the Licensed
Territory.
“
Existing
Sublicensed Entity ” means any Sublicensed Entity
that became a Sublicensed Entity prior to the Effective Date,
provided that such Sublicensed Entity shall be deemed a New
Sublicensed Entity if Licensee renews or amends its agreement
with the Existing Sublicensed Entity on substantially
different terms.
“
Excluded
Countries ” means Japan and South
Korea.
“
GAAP
” means U.S. Generally Accepted Accounting Principles,
as in effect from time to time.
“
Global Cap
Loss ” has the meaning set forth in Section
10.2.
“
Gross Profit
Margin ” means the difference between the price
of the good sold and the cost of the good sold (which includes
standard product cost, freight, credit card merchant
discounts, royalties and amortization).
“
Indemnified
Party ” has the meaning set forth in
Section 9.3.
“
Individual
Effectiveness, Management/Leadership and/or Organizational
Execution Skills ” has the meaning set forth in
Section 2.4.
“
Intellectual
Property Rights ” means (i) rights in
patentable subject matter, whether or not the subject of an
application, including continuation, divisional,
continuation-in-part, and provisional patent applications and
any patents issuing therefrom, including all reexaminations,
reissues, and extensions thereof, and rights in respect of
utility models or industrial designs, and invention
disclosures or certificates of invention, (ii) rights in
trademarks, service marks, trade names, trade dress and other
designators of origin, registered or unregistered,
(iii) rights in copyrightable subject matter, whether or
not registered, including, without limitation, protectable
designs, look and feel, web pages, and Software,
(iv) trade secrets, including non-public know-how,
inventions, discoveries, improvements, concepts, ideas,
methods, processes, designs, plans, schematics, drawings,
formulae, technical
data,
specifications, research and development information,
technology and product roadmaps, data bases and other
proprietary or confidential information, including customer
lists, but excluding any copyrights or patents that may cover
or protect any of the foregoing, (v) rights in
Internet domain names, uniform resource locators, e-mail
addresses, metadata, and metatags, and (vi) all
other intellectual and industrial property rights of every
kind and nature and however designated, whether arising by
operation of law, contract, license or otherwise including
moral rights and publicity rights.
“
International
Licensee ” has the meaning set forth in Section
2.2.
“
International Licensee
of Licensee ” has the meaning set forth in
Section 2.2.
“
International Licensee
of Licensor ” has the meaning set forth in
Section 2.2
“
Internet
Search Terms ” means the terms listed on
Exhibit O.
“
Lease
Agreement ” has the
meaning set forth in the Recitals.
“
Licensed
Channels ” means the Wholesale Channels and the
Proprietary Consumer Channels.
“
Licensed
Copyrights ” means the copyrights and copyrighted
materials, whether registered or not, that are listed on
Exhibit C.
“
Licensed
Materials ” means the Licensed Trademarks and the
Licensed Copyrights.
“
Licensed
Products ” means products listed on
Exhibit D.
“
Licensed
Territory ” means those territories listed on
Exhibit F.
“
Licensed
Trademarks ” means those trademarks listed on
Exhibit A.
“
Licensee ”
has the meaning set forth in the Preamble.
“
Licensee
Change of
Control ” with respect to Licensee means
(i) the acquisition of Licensee by a third party by means
of any transaction or series of transactions (including,
without limitation, any acquisition, recapitalization,
conversion, reorganization, merger or consolidation) other
than a transaction or series of related transactions in which
the holders of the voting securities of Licensee outstanding
immediately prior to such transaction retain, immediately
after such transaction or series of transactions, at least a
majority of the total voting power represented by the
outstanding voting securities of Licensee or such other
surviving or resulting entity (or if Licensee or such other
surviving or resulting entity is a wholly owned subsidiary
immediately following such acquisition, then by the
outstanding voting securities of its parent); (ii) a sale
or other disposition of all or substantially all of the assets
of Licensee and its wholly owned subsidiaries that relate to
the Business of Licensee by means of any transaction or series
of related transactions, except where such sale or other
disposition is to a wholly owned subsidiary of Licensee;
(iii) any assignment of this
Agreement;
or (iv) any of the foregoing transactions involving a Licensee
Qualified Entity which is a sublicensee of Licensee’s
rights under this Agreement.
“
Licensee
Field ” means the design, development,
manufacture, marketing, promotion, advertisement,
distribution, lease and sale of Licensed Products in the
Licensed Channels in the Licensed Territory.
“
Licensee
Party ” has the meaning set forth in Section
10.2.
“
Licensee
Qualified
Entity ” has the meaning set forth in Section
2.11.
“
Licensee
Qualified
Vendor ” has the meaning set forth in Section
2.11.
“
Licensee
Software Modification ” has the meaning set forth
in Section 2.8.
“
Licensee
Website ” has the meaning set forth in Section
3.1.
“
Licensor ”
has the meaning set forth in the Preamble.
“
Licensor
Change of
Control ” with respect to Licensor means
(i) the acquisition of Licensor by a third party by means
of any transaction or series of transactions (including,
without limitation, any acquisition, recapitalization,
conversion, reorganization, stock purchase, merger or
consolidation); (ii) a sale or other disposition of all
or substantially all of the assets of Licensor; (iii) any
of the foregoing transactions involving a wholly owned
subsidiary of Licensor if such entity is a permitted assignee
of this Agreement or (iv) any of the foregoing
transactions involving the parent corporation of
Licensor.
“
Licensor
Party ” has the meaning set forth in Section
10.2.
“
Licensor
Qualified
Entity ” has the meaning set forth in Section
2.11.
“
Licensor
Qualified
Vendor ” has the meaning set forth in Section
2.11.
“
Licensor
Software Modification ” has the meaning set forth
in Section 2.8.
“
Licensor
Website ” has the meaning set forth in Section
3.1.
“
Licensor’s
Knowledge ” means the actual knowledge, after
diligent and customary inquiry, of Robert A. Whitman,
Sarah E. Merz, Stephen D. Young, Robert Sumbot, Jeff
Anderson and Michael Connelly.
“
Link
” has the meaning set forth in Section 3.1.
“
Material
Breach ” means (i) a breach of this
Agreement that has a material adverse effect on the
non-breaching party’s material Intellectual Property
Rights, the goodwill associated therewith, or the ability to
enforce any of its rights therein, and that has a material
adverse effect on the non-breaching party, (ii) a
material breach of Sections 2.22 or 2.23, (iii) a failure
by a party timely to pay the other party amounts that are owed
and undisputed under this Agreement or any Ancillary
Agreement, individually or in the aggregate, in excess of
$100,000, (iv) the release of any new product or
marketing material, other than New
Products
or New Campaign Materials released in compliance with all of
the terms and conditions of Article V, that has a material
adverse effect on the Business of Licensee or on the business
of Licensor as a result of Licensee’s involvement with
any Prohibited Party or in any Prohibited Activity, or
(v) a pattern of non-trivial breaches of this Agreement
that (A) occur after a Licensee Change of Control
transaction, (B) individually do not constitute Material
Breaches, (C) are not disputed in good faith and
(D) are repeated after the non-breaching party has
provided written notice in good faith that such breaches have
occurred, provided that no such pattern shall exist for this
purpose if there are fewer than two of such breaches by the
same party in the trailing twelve (12)–month
period.
“
MFN
Pricing ” means the party purchasing the good
shall receive a price no less favorable than the price
available to other similarly situated purchasers for the same
good at the time of the sale.
“
Mobile
PlanPlus Software ” has the meaning set forth in
Section 2.8.
“
Software
Modification
” has the meaning set forth in Section 2.8.
“
Modified
Licensed Product ” has the meaning set forth in
Section 5.1.
“
Motivational
Artwork ” has the meaning set forth in Section
2.10.
“
Negotiation
Period ” has the meaning set forth in Section
7.3.
“
New Branding
Effort ” has the meaning set forth in Section
4.2.
“
New Campaign
Materials ” has the meaning set forth in Section
5.1.
“
New
Derivative Product ” has the meaning set forth in
Section 5.1.
“
New Licensed
Product ” has the meaning set forth in
Section 5.1.
“
New
Product ” has the meaning set forth in
Section 5.1.
“
New
Sublicensed Entity ” means any Sublicensed Entity
that becomes a Sublicensed Entity after the Effective
Date.
“
Notice of
Alleged Infringement ” has the meaning set forth
in Section 2.18.
“
Notice
Period ” has the meaning set forth in
Section 7.3.
“
Offer
Notice ” has the meaning set forth in
Section 7.3.
“
On-Site
Training ” has the meaning set forth in Section
2.5.
“
Online
PlanPlus Software ” has the meaning set forth in
Section 2.8.
“
Option
Fee ” has the meaning set forth in Section
6.4.
“
Ordinary
Course of Business ” means the ordinary course of
the business in question consistent with past custom and
practice.
“
Organizational
Client ” means an organization that purchases
products or services where the decision maker at the client
makes the purchase decision on behalf of people who are
employees or members of, or otherwise actively affiliated
with, the organization.
“
Partial
Option Fee ” has the
meaning set forth in Section 6.4.
“
Partial
Royalty Buy-Out Option ” has the
meaning set forth in Section 6.4.
“
Permitted
Offeror ” has the meaning set forth in Section
7.3.
“
Person ”
means an individual, corporation, partnership, limited
partnership, limited liability company, unincorporated
association, trust, joint venture, union or other organization
or entity, including a governmental entity.
“
Planner ”
means any paper-based product (i) bearing Trademarks of
Licensor and (ii) organized consecutively by date so that
its user may organize, plan and schedule events and tasks,
along with ancillary pages that serve a related purpose,
including, by way of example, pages to organize addresses and
phone numbers and pages to take notes at
meetings.
“
PlanPlus
Software ” has the meaning set forth in Section
2.8.
“
Product
Guidelines ” has the meaning set forth in
Section 4.1.
“
Prohibited
Activity ” means (i) publishing or promoting
indecent or pornographic materials, (ii) deriving a
substantial portion of revenue from gaming activities or the
promotion or sale of alcoholic beverages, tobacco products or
firearms, (iii) having as a primary purpose the advocacy
of a particular political or moral position or
(iv) illegal activities.
“
Prohibited
Party ” means any Person that, directly or
indirectly through Affiliates, engages in a Prohibited
Activity.
“
Proprietary
Consumer Channels ” means the sales channels
defined under such term in Exhibit E.
“
Public
Program ” has the meaning set forth in Section
2.5.
“
Public
Program Cost Of Goods ” means fifty percent (50%)
of the listed retail price for a seat at such Public
Program.
“
Public
Program Gross Margin ” means fifty percent (50%)
of the retail price that would have been charged for the seat
that was converted to an On-Site Training had the conversion
not occurred.
“
Qualified
Entity ” has the meaning set forth in Section
2.10.
“
Qualified
Vendor ” has the meaning set forth in Section
2.10.
“
Quality
Guidelines ” has the meaning set forth in
Section 4.1.
“
Recipient ”
has the meaning set forth in Section 11.1.
“
Relationship
Manager ” has the meaning set forth in Section
7.1.
“
Reset EBITDA
Threshold ” has the meaning set it Section
6.1.
“
Reset
Ratio ” has the meaning set forth in Section
6.1.
“
Reset
Royalties Minimum ” has the meaning set forth in
Section 6.1
“
Royalties ”
has the meaning set forth in Section 6.1.
“
Royalty
Buy-Out Option ” has the meaning set forth in
Section 6.4.
“
Search Terms
Use Guidelines ” means the provisions set forth
on Exhibit P.
“
SEC
” means the U.S. Securities and Exchange
Commission.
“
Shared
Services Agreement ” has the meaning set forth in
the Recitals.
“
Software ”
means computer programs or data, whether in object code or
source code, regardless of the media format of such Software,
and all documentation relating thereto.
“
Specialty
Products ” has the meaning set forth in Section
5.1.
“
Standard
Planner ” has the meaning set forth in Section
2.3.
“
Standard
Spread ” has the meaning set forth on
Exhibit T.
“
Strategic
Relationship Committee ” has the meaning set
forth in Section 7.2.
“
Sublicense
Agreement ” means a written agreement between
Licensor or Licensee, on the one hand, and a permitted
Sublicensed Entity under Section 2.11, on the other hand,
whereby such Sublicensed Entity expressly agrees, at minimum,
that: (i) the Licensed Materials or Assigned Trademarks, as
applicable to the subject matter of the Sublicense Agreement,
are the property of Licensor or Licensee, respectively, and
are subject to this Agreement; (ii) the party that owns the
assets that are the subject matter of the Sublicense Agreement
shall retain all ownership of such assets and the Sublicensed
Entity shall not assert ownership or any other right or
interest in any of such assets; (iii) any and all goodwill
associated with the Sublicensed Entity’s use of such
assets shall inure to the benefit of the party that owns the
assets; (iv) the Sublicense Agreement shall terminate
immediately on termination of this Agreement for any reason;
and (v) the party that owns the assets is an intended
third-party beneficiary of the Sublicense
Agreement.
“
Sublicensed
Entity ” means a Qualified Entity, Qualified
Vendor or International Licensee which has executed a
Sublicense Agreement pursuant to Section 2.11
hereof.
“
Substantial
Distribution ” has the meaning set forth in
Section 2.8.
“
Sub-sublease
Agreement ” has the
meaning set forth in the Recitals.
“
Supply
Agreement ” has the meaning set forth in the
Recitals.
“
Tailored
Planner ” has the meaning set forth in Section
2.3.
“
Top-Level
Logos ” has the meaning set forth in Section
4.2.
“
Trademark ”
means rights in trademarks, trade names, service marks,
service names, design marks, logos, trade dress, or similar
rights with respect to identification of origin, whether
registered or unregistered, as well as rights in Internet
domain names, uniform resource locators and e-mail
addresses.
“
Training-Oriented
Product ” has the meaning set forth in Section
2.4.
“
Training-Oriented
Service ” has the meaning set forth in Section
2.4.
“
Training
Planner ” has the meaning set forth in Section
2.3.
“
Updates ”
has the meaning set forth in Section 4.2.
“
Wholesale
Channels ” means the sales channels defined under
such term in Exhibit E.
AR TICLE II.
LICENSE
2.1
License
Grant to
Licensee
. Subject to all of the terms and conditions of
this Agreement, Licensor hereby grants to Licensee an exclusive,
worldwide, transferable (subject to Sections 7.3 and 12.1),
sublicensable (subject to Section 2.11), royalty-bearing
license, during the term set forth below, to use the Licensed
Materials in connection with the design, development, manufacture,
marketing, promotion, advertisement, distribution, lease and sale
of Licensed Products, through the Licensed Channels, within the
Licensed Territory. In addition, subject to all of the
terms and conditions of this Agreement, Licensor hereby grants to
Licensee a license during the term set forth below to translate the
Licensed Copyrights into foreign languages as necessary to sell
Licensed Products into Licensed Channels. As used in
this Section 2.1, “exclusive” means that Licensor may
not, after the Effective Date and during the term of this
Agreement, grant to any third party a license to use, reproduce or
display the Licensed Materials in the Licensee Field and that
Licensor, subject to Section 2.22, may itself use the Licensed
Materials for any purpose outside the Licensee
Field. The rights granted to Licensee herein are
expressly subject to the provisions of the Existing Distributor
Agreements.
2.2
Special
Provisions: International
. The rights granted to Licensee in
Section 2.1, as those rights may apply in countries and
territories other than the United States, are subject to the
following restrictions, limitations and qualifications, in addition
to any and all restrictions provided elsewhere in this
Agreement.
(a)
Definitions.
(i)
“
International
Licensee ” means any International Licensee of
Licensee or International Licensee of Licensor.
(ii)
“
International
Licensee of Licensee ” means any third-party
distributor, manufacturer, sales organization or similar service
provider, other than a Competitor or Prohibited Party, that is
located outside the United States and engaged by Licensee in the
Ordinary Course of Business to design, manufacture, distribute
and/or sell Licensed Products in the Licensee Field outside the
United States or, subject to Article V, to create New Products or
New Campaign Materials. The International Licensees of
Licensee as of the Effective Date are set forth on attached Exhibit
M. Exhibit M shall be amended to include the names of
parties which become International Licensees of Licensee as
permitted by Section 2.11.
(iii)
“
International
Licensee of Licensor ” means any third-party
distributor, manufacturer, sales organization or similar service
provider that is located outside the United States and engaged by
Licensor in the Ordinary Course of Business to engage in business
activities. The International Licensees of Licensor as
of the Effective Date are set forth on attached Exhibit
L. Exhibit L shall be amended to include the names of
parties which become International Licensees of Licensor as
permitted by Section 2.11.
(b)
Licensee
shall have no right of exclusivity in any country, territory or
region in which Licensor, as of the Effective Date, has granted a
non-exclusive license to an International Licensee of Licensor
which gives such International Licensee the right to sell Licensed
Products in the Licensed Channels. Licensor shall pay to
Licensee, according to the provisions of Section 2.24, the portion
of royalties which Licensor receives under such Existing Licensor
International Agreements that is directly attributable to the sale
by International Licensees of Licensor of (i) Licensed
Products bearing the Licensed Materials or (ii) Licensed
Products that do not bear the Licensed Materials and were supplied
to the International Licensee of Licensor by Licensee, but in both
cases not including the sale of Licensed Products in connection
with Training-Oriented Services or Training-Oriented Products and
not including the sale of Content-Rich Media. Licensor
shall make diligent inquiries with International Licensees of
Licensor to determine the amounts payable by such International
Licensees under all Existing Licensor International Agreements,
provided that Licensor shall not be obligated to conduct audits of
such International Licensees for such purpose.
(c)
Licensee
acknowledges that Licensor has, as of the Effective Date, granted
to certain International Licensees of Licensor a limited right to
manufacture Licensed Products for distribution within such
Licensee’s territory, including in some cases the right to
manufacture Licensed Products for distribution in the Wholesale
Channels. Nothing in Section 2.1 shall be deemed to
derogate from the rights already granted to such International
Licensees of Licensor. Subject to the foregoing
limitations, Licensee shall have the exclusive right to manufacture
Licensed Products for sale in the Licensed Channels outside of the
United States other than the Excluded Countries, provided that (i)
Licensor may freely grant to International Licensees of Licensor
the right to manufacture Licensed Products (with the right to
sublicense) for use in connection with Training-Oriented Services
or Training-Oriented Products conducted within such International
Licensee’s territory, and (ii) Licensor
may
permit the transfer or assignment of any existing
manufacturing agreement between an International Licensee of
Licensor and a vendor of such International Licensee if the
transfer or assignment is made in connection with the
International Licensee’s sale of its business and the
Person acquiring the International Licensee’s business
is not a Competitor or a competitor of
Licensee. Licensor shall use its best efforts to
cause International Licensees of Licensor that have the right
to manufacture Licensed Products for sales in the Licensed
Channels to enter into new, separate agreements with Licensee
for such manufacturing.
(d)
After
the Effective Date, Licensor shall not enter into any manufacturing
agreement with any New Sublicensed Entity that permits the
manufacture of Licensed Products for distribution in the Licensed
Channels, provided the Licensor may renew any Existing Licensor
International Agreement. Licensee shall consult with
Licensor with regard to any measures to enforce its rights under
any new manufacturing agreements between Licensee and International
Licensees of Licensor in order to reduce disruption to the
relationship between Licensor and such International Licensees and
shall terminate any such agreement only with Licensor’s prior
written consent.
(e)
If
Licensor’s commitments relating to any Excluded Country are
altered such that including such country in the Licensed Territory
would not contravene any existing agreement of Licensor, then
Licensee at its option may add such country to the Licensed
Territory. Licensor shall provide Licensee written
notice of this option promptly after it becomes exercisable and may
set a reasonable time period in which Licensee must give notice of
its exercise of its right.
2.3
Special
Provisions: Planners
. The rights granted to Licensee in Section 2.1,
as those rights relate to certain categories of Planners (other
than Education Planners, which are addressed in Section 2.9 below),
are subject to the following restrictions, limitations and
qualifications.
(a)
Definitions.
(i)
“
DYO
Planner ” means any Planner that is customized
according to the specifications of a customer through the DYO
Website, printed and shipped to an address specified by the
customer, and not including training or Execution-Related
Materials.
(ii)
“
Standard
Planner ” means a Planner in the general form
available to the general public in retail channels as of the
Effective Date and not including training or Execution-Related
Materials. For the avoidance of doubt, the content
contained in Planners available to the general public in retail
channels as of the Effective Date shall not be deemed
“training or Execution-Related Materials.”
(iii)
“
Tailored
Planner ” means a Planner that has been customized
according to the specifications of an Organizational Client or
other organizational customer to contain logos, employee directory
information, a listing of company holidays and any other
information approved by Licensor not including training or
Execution-Related Materials.
(iv)
“
Training
Planner ” means a Planner that has been customized
according to the specifications of an Organizational Client or
other organizational customer
and
that does contain training and/or Execution-Related
Materials. A Training Planner may also include
logos, employee directory information, a listing of company
holidays and other information supplied by the Organizational
Client or other organizational customer.
(v)
“
Execution-Related
Materials ” means information included in a Planner
that assists an individual in performing tasks required or
recommended by an employer, client or similar entity. As
an example and without limitation, execution-related materials
include information in a Planner for a retail manager that sets out
steps to be followed in preparation for the peak retail selling
season.
(b)
Licensee
shall have the exclusive right to design, market, manufacture and
sell DYO Planners that use or incorporate the Licensed Materials
worldwide, including the Excluded Countries. Licensee
shall not directly or indirectly facilitate the inclusion of any
training or Execution-Related Materials into any DYO
Planner.
(c)
Licensee
shall have the exclusive right to design, manufacture, market and
sell Standard Planners in the Licensee Field.
(d)
Licensee
shall have a non-exclusive right to design, market and sell
Tailored Planners in the Licensee Field. Licensee shall
not develop internally or contract externally with a dedicated
sales force to promote exclusively or primarily the sale of
Planners to Organizational Clients, provided that (i) personnel of
Licensee’s bricks-and-mortar stores may make direct sales
calls but shall at all times hold themselves out as representing
Licensee and not Licensor, and (ii) Licensee may enter into
distribution agreements substantially similar in purpose and scope
to the Existing Distribution Agreements.
(e)
Licensor
may, directly or indirectly, design, market and sell Tailored
Planners to any Organizational Client, subject to the manufacturing
right of first offer provided in Section 2.3(g) and the limits on
certain sales provided in Section 2.3(h).
(f)
Without
limiting Licensor’s other retained and reserved rights in any
way, Licensor retains and reserves all rights to design, develop,
market, promote, advertise, distribute, lease or sell Training
Planners to Organizational Clients, subject to the manufacturing
right of first offer provided in Section 2.3(g).
(g)
Licensor
grants to Licensee a right of first offer to manufacture any
Tailored Planner or Training Planner sold by Licensor or its
Affiliates, subject to the terms and conditions of the Supply
Agreement. The right of first offer shall be conditioned
on Licensee’s ability to meet Licensor’s cost, quality
and timeliness requirements.
(h)
Licensor’s
sales of Tailored Planners not used in connection with
Training-Oriented Services or Training-Oriented Products shall be
subject to the 1% sales cap provisions of Section
2.22.
2.4
Special
Provisions: Training-Oriented Products and
Training-Oriented Services
. The rights granted to Licensee in Section 2.1,
as those rights relate to Training-Oriented Products and
Training-Oriented Services, are subject to the following
restrictions, limitations and qualifications.
(a)
Definitions.
(i)
“
Training-Oriented
Product ” means any good, product or thing in any
tangible form (including Software) that is designed to teach
individuals or organizations Individual Effectiveness,
Management/Leadership and/or Organizational Execution
Skills.
(ii)
“
Training-Oriented
Service ” means any seminar, session, online course,
webinar, consultation or similar interaction, whether or not for a
fee, where the subject matter of such service relates to or
includes Individual Effectiveness, Management/Leadership and/or
Organizational Execution Skills.
(iii)
“
Individual
Effectiveness, Management/Leadership and/or Organizational
Execution Skills ” means any and all organizational,
management, leadership or personal effectiveness skills and the
techniques and strategies for attaining such skills including,
without limitation, executive coaching, management coaching,
performance review, trust-building (in or out of an organizational
setting), execution-related skills, personal time management,
personal performance, personal goal-setting (including personal
time-management, performance and goal setting in any academic or
educational environment), family effectiveness, family
organization, family goal-setting, family values, personal fitness,
wellness and life balance, and any other form of
training.
(b)
Except
as provided in Section 2.4(c) and in this Section 2.4(b), Licensee
shall have no right to design or develop a New Product that is a
Training-Oriented Product or that includes any Training-Oriented
Service. Licensee may design, develop, manufacture,
market, promote and distribute products in print, electronic and
online media for the limited purpose of permitting customers who
purchase Licensed Products to use Licensed Products in a more
efficient manner, provided Licensor gives its prior written
approval.
(c)
If
Licensor sells or agrees to sell a certain Training-Oriented
Product on a non-exclusive basis through websites that are part of
the Wholesale Channels, Licensee shall have the right to sell the
same Training-Oriented Product through Licensee’s Websites;
and if Licensor sells or agrees to sell a certain Training-Oriented
Product on a non-exclusive basis through bricks-and-mortar stores
that are part of the Wholesale Channels, Licensee shall have the
right to sell the same Training-Oriented Product through
Licensee’s bricks-and-mortar stores that are part of the
Proprietary Consumer Channel. Licensor shall supply such
products at MFN Pricing on a commercially reasonable delivery
schedule.
(d)
Licensee
acknowledges that Licensor intends to make significant investments
in the development of blogs, online communities and similar media
as a method for the delivery of Training-Oriented Products and
Training-Oriented Services. Licensee acknowledges that
blogs, online communities and similar media are useful tools for
the promotion of Planners but that any such activity, to the extent
that it includes Individual Effectiveness, Management/Leadership
and/or Organizational Execution Skills, are prohibited under this
Section 2.4, provided that Licensee may continue to use the blogs
and online communities in existence as of the Effective Date under
the name “Get Organized.” Licensor agrees
that:
(i)
Licensee
may modify the existing blogs and online communities or create new
forms of blogs and online communities pursuant to an annual plan
prepared by Licensee and approved by Licensor, whose consent shall
not be unreasonably withheld;
(ii)
Licensee’s
executives and employees shall be invited to participate in
planning sessions for new products under development by Licensor
involving blogs and online communities when Licensor determines, in
good faith, that coordination of such an effort would be mutually
beneficial, provided that neither Licensor nor Licensee shall have
any obligation to participate in any such joint
offering.
(e)
Subject
to any restrictions contained in any agreement between Licensee and
its suppliers, the restrictions of this Section 2.4(e) and Section
2.22 and the terms and conditions of the Supply Agreement, Licensor
shall have the right to purchase Licensed Products in any quantity
from Licensee for use in connection with its Training-Oriented
Services and Training-Oriented Products at Standard Spread;
provided, however, that such Licensed Products are sold by Licensor
as an implementation tool for the Training-Oriented Products and
Training-Oriented Services and not as the principal purpose of the
transaction. Such sales of Licensed Products by Licensor
are subject to the one percent (1%) sales cap provisions of Section
2.22.
2.5
Special
Provisions: Public Programs . The
rights granted to Licensee in Section 2.1 include the right to sell
Public Programs, subject to the following restrictions, limitations
and qualifications.
(a)
Definitions.
(i)
“
Charter
Flight ” means a Public Program that is organized by
Licensee, that utilizes curriculum in the form previously
established and used by Licensor, and that is delivered by a
consultant of Licensor.
(ii)
“
On-Site
Training ” means any training seminar that takes place
at the premises of an Organizational Client or at premises chosen
by the Organizational Client for the primary use of that
organization’s employees, agents, consultants or
personnel.
(iii)
“
Public
Program ” means a curriculum-based training seminar
with open enrollment that individuals, groups and companies may
attend (in person or virtually) for a fee, but the term does not
include On-Site Training.
(b)
Each
fiscal year, Licensee may sell up to nine (9) Public Program seats
per bricks-and-mortar store to any Organizational Client so long as
such seats are sold only through direct sales efforts at
bricks-and-mortar stores owned, leased or franchised by Licensee
and operating under a name that is a Licensed
Trademark. Licensee shall sell each seat at a price not
less than Licensor’s then-current list price subject to
Licensor’s standard corporate discount structure for the
relevant number of seats but not including preview
pricing. For purposes of this Section 2.5(b),
“fiscal year” means the fiscal calendar as practiced by
Licensor, and “preview pricing” means the discounted
prices available on a limited basis to individuals for marketing
purposes. The following examples illustrate the
calculation of limits in this Section 2.5(b).
(i)
Example
1: An employee of Company A, which is an Organizational
Client, enters Store 1, a qualified Licensee store, and requests to
purchase nine (9) seats to a Public Program. On the same
day, another employee from Company A enters Store 2, also a
qualified Licensee store, and requests to purchase nine (9) seats
to the same Public Program. Licensee may sell all 18
seats.
(ii)
Example
2: Licensor is on a calendar fiscal year. In
February, an employee from Company A purchases nine (9) seats to a
Public Program from Store 1. In December, a different
employee from Company A enters Store 1 and requests to purchase
nine (9) seats to a different Public Program. Licensee
may not sell the second set of nine (9) seats.
(iii)
Example
3: Licensor is on a calendar fiscal year. In
December, an employee from Company A purchases nine (9) seats to a
Public Program from Store 1 for the first time that
year. In the following January, an employee from Company
A enters Store 1 and requests to purchase nine (9) seats to the
same Public Program. Licensee may sell all 18
seats.
(c)
Notwithstanding
anything in Section 2.5(b), Licensee shall have no right to sell
seats to any Public Program that takes place outside the United
States.
(d)
Licensee
shall use information obtained from Organizational Clients as a
result of the sale of Public Programs only for the purpose of
selling additional Public Program seats and only so long as seats
are available for sale to such Organizational Client under the nine
(9) seat cap set forth in Section 2.5(b). Licensee shall
promptly provide all relevant information obtained from such
Organizational Clients to Licensor, unless such disclosure would
violate state or federal laws. All rights to such
information not granted to Licensee shall vest in
Licensor. Without limiting the generality of the
previous sentence, Licensor shall have the exclusive right to make
direct sales calls on Organizational Clients that have attended or
will attend a Public Program for the purpose of selling additional
Training-Oriented Services or Training-Oriented
Products.
(e)
Other
than a Charter Flight, Licensor retains all rights (i) to
appoint any facilitator, consultant, coordinator or other group
leader for any Public Program and (ii) to manage and control
all administrative matters relating to enrollment in any Public
Program.
(f)
For
each seat to a Public Program that it sells, Licensee shall pay
Licensor the Public Program Cost Of Goods. If Licensor
in its sole discretion converts any Public Program into On-Site
Training and cancels the sale of such seats to the Public Program,
Licensor shall pay Licensee the Public Program Gross Margin per
cancelled seat.
(g)
Licensee
may operate a Charter Flight if such Charter Flight is not within
sixty (60) days of and not within sixty (60) miles of a Public
Program scheduled by Licensor covering the same
curriculum. Licensee may designate a facilitator for any
Charter Flight subject to the consent of Licensor, whose consent
shall not be unreasonably withheld. Licensee shall bear
all risks relating to any Charter Flight, including all costs, and
shall be entitled to retain all revenues therefrom.
(h)
The
parties agree to work together in good faith to identify additional
marketing opportunities to promote and sell Public
Programs.
2.6
Special
Provisions: Back of Room Sales
.
The rights granted to Licensee in Section 2.1 include
the right to conduct Back of Room Sales at Public Programs and at
certain On-Site Trainings, subject to the following restrictions,
limitations and qualifications.
(a)
Definitions.
(i)
“
Back of Room
Sales ” means any sales operation conducted at a
Public Program (other than a virtual Public Program) or On-Site
Training where participants in the training event may purchase
Licensed Products.
(b)
Licensee
shall have the right but not the obligation to operate Back of Room
Sales at any Public Program (other than a virtual Public Program)
and, if so requested by Licensor or the Organizational Client, at
any On-Site Training. Licensor shall consult with
Licensee to set the time, location and merchandise selections for
such Back of Room Sales. Licensee, its employees,
representatives and agents shall conduct any Back of Room Sales
operation in a professional manner.
(c)
If
Licensee declines to provide the Back of Room Sales for any Public
Program or On-Site Training, Licensor shall have the right
(i) to manage such Back of Room Sale or to engage a
third-party to do so and (ii) if inventory is available, to
purchase any requested products from Licensee at Standard
Spread.
(d)
If
Licensor outsources any Public Program to a third party, Licensor
shall use its best efforts to require the sale of Licensed Products
at any back-of-room sale conducted by such third
party. To the extent that Licensed Products are
permitted or required at such outsourced event, Licensee shall have
the right to supply such products at prices it sets in its own
discretion.
(e)
Licensee
shall have the right to operate Back of Room Sales only in the
United States and in countries, other than the Excluded Countries,
which Licensor covers with a direct sales office.
2.7
Special
Provisions: Content-Rich Media
.
The rights granted to Licensee in Section 2.1 include
the right to sell Content-Rich Media, subject to the following
restrictions, limitations and qualifications.
(a)
Definitions.
(i)
“
Content-Rich
Media ” means content created, prepared, commissioned
or licensed by Licensor and presented in books, audio books,
videos, audiotapes, CDs, DVDs and similar media (other than
Software), including each of the foregoing that is delivered in
downloadable format, not including the 7 Habits Interactive
product.
(b)
Licensee
shall have the right to sell Content-Rich Media that is available
to Licensee as of the Effective Date, as set forth on
Exhibit R, through the Proprietary Consumer Channels, through
International Licensees of Licensee but only to consumers, and
through other channels through which Licensee is selling
Content-Rich Media as of the Effective Date; provided, however,
that Licensee may sell downloadable Content-Rich Media
permitted
under this Section 2.7(b) only in the Proprietary Consumer
Channels and only so long as Licensor sells such downloadable
title on a non-exclusive basis through third-party wholesale
channels targeting consumers. Subject to the terms
and conditions of the Supply Agreement, Licensor shall supply
Content-Rich Media available under this Section 2.7(b), other
than downloadable Content-Rich Media, to Licensee at Standard
Spread.
(c)
Licensee
shall have the right to sell the 7 Habits Interactive product
through the Proprietary Consumer Channels. Subject to
the terms and conditions of the Supply Agreement, Licensor shall
supply the 7 Habits Interactive product to Licensee at MFN
Pricing.
(d)
If
Licensor determines after the Effective Date that it intends to
offer a new item of Content-Rich Media for sale in Wholesale
Channels through non-exclusive distribution agreements, then
Licensee shall have the exclusive right to promote and sell that
item of Content-Rich Media through the Proprietary Consumer
Channels other than Licensee’s e-commerce affiliate
partners. Nothing in this Section 2.7 shall limit
Licensee’s rights under any written agreement to which
Licensee is a party as of the Effective Date and that is listed on
Exhibit N. Subject to the terms and conditions of
the Supply Agreement, to the extent Licensee chooses to be supplied
by Licensor, Licensor shall supply Content-Rich Media available
under this Section 2.7(c) to Licensee at MFN Pricing.
(e)
Licensee
may request the right to sell items of Content-Rich Media that are
not otherwise available to Licensee under this Section 2.7, subject
to the terms and conditions of this Agreement. Licensor
shall consider in good faith and shall not unreasonably deny any
such request. If Licensor permits the sale of additional
Content-Rich Media under this Section 2.7(e), such products will be
treated according to the terms of Section 2.7(d).
(f)
Licensee
shall pay MFN Pricing for each downloaded copy of Content-Rich
Media. Licensor acknowledges that as of the Effective
Date, Licensee purchases existing Content-Rich Media through
certain distributors, and nothing in this Section 2.7 shall be
deemed to limit its right to source such products through vendors
other than Licensor.
(g)
Other
than the grant to Licensee in Section 2.7(b), (c) and (d), Licensor
retains and reserves all rights to market, distribute and sell
Content-Rich Media. Without limiting the generality of
the previous sentence, Licensor has the exclusive right to sell
Content-Rich Media worldwide in the Wholesale Channel and through
online channels, other than the Licensee Websites as provided in
this Section 2.7.
2.8
Special
Provisions: Software
. During the term of the Agreement, Licensee
shall have the right to sell the Software products described below,
subject to the following conditions, restrictions, limitations and
qualifications.
(a)
Definitions.
(i)
“
Assigned
Software ” means the Software assigned or otherwise
transferred by Licensor to Licensee pursuant to the Asset Purchase
Agreement and includes Forms Wizard, Address/Phone Software and
Confidant.
(ii)
“
Boxed PlanPlus
Software ” means the planning and organizational
Software currently known as PlanPlus for Outlook, PlanPlus for
Windows, PlanOne, TasksPlus and ProjectsPlus.
(iii)
“
Current
Version ” means the version of Software as it exists
as of the Effective Date.
(iv)
“
Licensee Software
Modification ” means a modification to the Software
code of any PlanPlus Software commissioned and paid for by Licensee
and approved by Licensor pursuant to Section
2.8(c)(i).
(v)
“
Licensor Software
Modification ” means a modification to the Software
code of any PlanPlus Software commissioned and paid for by
Licensor.
(vi)
“
Mobile PlanPlus
Software ” means the planning and organizational
Software for use by customers through cellular telephones or
similar personal device and currently known as Mobile
PlanPlus.
(vii)
“
Online PlanPlus
Software ” means the planning and organizational
Software currently known as the Basic, Sales, Business and Project
editions of PlanPlus Online.
(viii)
“
PlanPlus
Software ” means Boxed PlanPlus Software, Online
PlanPlus Software, and Mobile PlanPlus Software.
(ix)
“
Software
Modification ” means any Licensor Software
Modification or Licensee Software Modification.
(x)
“
Substantial
Distribution ” means that, through Licensee’s
agreements, the Software in question is available for retail sale
on the store shelves of at least 30 percent of the retail stores in
a geographic region or organizational subdivision of a retail
chain, as those geographic regions or organizational subdivisions
are defined by such retail chain.
(b)
Licensee
acknowledges that Licensor’s ability to grant to Licensee the
rights to resell PlanPlus Software called for in this Section 2.8
is contingent upon obtaining the consents of certain third-party
software developers of the PlanPlus Software and/or amending the
agreements with such developers. Licensor agrees to use
commercially reasonable efforts to obtain such consents and
negotiate such amendments on reasonably acceptable terms as soon as
practicable, and Licensee agrees to cooperate with Licensor for
this purpose. No rights shall be granted to Licensee
under this Section 2.8 except as permitted pursuant to such
consents and/or amendments.
(c)
Software
Modifications.
(i)
Within
sixty (60) days after the Effective Date and thereafter within
thirty (30) days of the commencement of each fiscal year of
Licensee, Licensee shall prepare and deliver to Licensor a written
plan that outlines all Licensee Software Modifications to any
PlanPlus Software that Licensee proposes during the next fiscal
year (or,
as
the case may be, during the remaining portion of the 2008
fiscal year), including general descriptions of the
functionality and estimated completion
dates. Licensor shall have ten (10) Business Days
to approve any or all of the proposed Licensee Software
Modifications, which approval shall not be unreasonably
withheld. If Licensor fails to respond within such
ten (10) day period, the plan as written shall be deemed
approved. Licensee shall have the right to make all
Licensee Software Modification approved pursuant to this
2.8(c)(i) without further approval.
(ii)
Licensee
shall, on reasonable notice by Licensor, assist in the continued
development and support of PlanPlus Software and Licensor Software
Modifications for use by Licensor so long as (A) Licensor
funds the development of the features so commissioned,
(B) Licensor reimburses Licensee for the time spent by
Licensee employees in providing such assistance and
(C) Licensor’s demands for such assistance are not
excessive in view of the time which Licensee can reasonably make
available without detracting from Licensee’s conduct of its
Business.
(d)
Boxed
PlanPlus Software.
(i)
Licensee
shall have the right to sell, directly or through distributors,
Boxed PlanPlus Software as follows:
(ii)
Licensor
shall have the right to sell, directly or through distributors,
Boxed PlanPlus Software as follows:
the
exclusive rights granted under Subsection (d)(ii)(2)
above).
(e)
Online
PlanPlus Software and Mobile PlanPlus Software.
(i)
Licensee
shall have the right to sell, directly or through distributors,
Online PlanPlus Software and Mobile PlanPlus Software as
follows:
(ii)
Licensor
shall have the right to sell, directly or through distributors,
Online PlanPlus Software and Mobile PlanPlus Software as
follows:
(iii)
Licensor
shall have the non-exclusive right to sell, directly or through
distributors, the Assigned Software in its Current Version and in
versions incorporating any Software Modification outside the
Licensed Channels.
(f)
Subject
to the terms and conditions of the Supply Agreement, PlanPlus
Software shall be made available to the other party, as applicable,
as set forth below:
(i)
Licensee
shall supply Licensor with requested copies of Boxed PlanPlus
Software at Standard Spread if such Software is used in connection
with Licensor’s Training-Oriented Services or
Training-Oriented Products and at MFN Pricing if such Software is
sold to Licensor for any any other purpose. Licensee
shall have no obligation to make any payment to Licensor for any
Boxed PlanPlus Software sold.
(ii)
For
each unit of Online PlanPlus Software and Mobile PlanPlus Software
sold by Licensee in the three-year period following the Effective
Date, Licensee shall pay to Licensor the Standard Spread for so
long as Licensee has received, in the then-current fiscal year,
EBITDA contribution from such sales of less than $3,020,000; and
Licensee shall pay MFN Pricing for each unit sold thereafter for
the remainder of such fiscal year. For each unit of
Online PlanPlus Software and Mobile PlanPlus Software sold by
Licensee after the initial three-year period following the
Effective Date, Licensee shall pay to Licensor MFN
Pricing.
(iii)
Licensee
agrees to supply Licensor with requested copies of Assigned
Software at MFN Pricing.
(g)
If
either party collects proceeds of sales of any PlanPlus Software
for the other party, the party receiving the payment shall deliver
it to the other party as provided
in
Section 2.24. Licensee shall be credited with any
sale of PlanPlus Software that began with a lead from the
Proprietary Consumer Channels.
(h)
The
parties shall use commercially reasonable efforts to cooperate to
use branding strategies for the Software products described in this
Section 2.8 to avoid confusion in the marketplace between their
respective versions.
(i)
Other
Provisions.
(i)
Licensee
shall promptly provide to Licensor all relevant information
regarding customers who purchase more than fifty (50) copies of any
PlanPlus Software in a single order, unless such disclosure would
violate any applicable law.
(ii)
Licensee
shall not develop internally or contract externally with a
dedicated sales force to promote and sell PlanPlus Software to
Organizational Clients, provided, however, that Licensee may follow
up all leads received in the Licensed Channels by telephone or
electronic means or in person so long as the person is an employee
of a bricks-and-mortar store of Licensee.
2.9
Special
Provisions: Education Channels
.
The rights granted to Licensee in Section 2.1 include
the conditional right to sell Education Planners, subject to the
following restrictions, limitations and
qualifications. Licensee acknowledges that the education
channel is outside of the Licensee Field and further acknowledges
that Licensor is subject to agreements with School Specialty, Inc.
that
may permit sales of certain sales of Licensed Products in the
Licensed Channels. Nothing in Section 2.1 shall be
deemed to derogate from the rights already granted to School
Specialty, Inc.
(a)
Definitions.
(i)
“
Education
Planner ” means a Planner that is designed to be used
by educators or students and that contains training or
Execution-Related Materials.
(b)
Except
as provided in this Section 2.9, Licensor shall retain all rights
to manufacture, distribute and sell Education Planners
worldwide.
(c)
If
Licensor sells or agrees to sell any Education Planners as a
stand-alone product through a Wholesale Channel on a non-exclusive
basis, Licensee shall have:
(i)
the
right to sell the same Education Planners through the Proprietary
Consumer Channels other than Licensee’s e-commerce affiliate
partners; and
(ii)
a
right of first offer to be a distributor of such Education Planners
into the Wholesale Channel unless Licensor enters into an exclusive
distribution agreement with School Specialty, Inc.
2.10
Special
Provisions: Motivational Artwork and Corporate Gift
Items
. Subject to all of the terms and conditions of
this Agreement, the rights granted to Licensee in Section 2.1 as
they relate to Motivational Artwork and Corporate Gift Items shall
be exclusive in the Proprietary Consumer Channels and non-exclusive
in the Wholesale
Channels.
“ Motivational
Artwork ” means any print, artwork or other
display-worthy media created, prepared, commissioned or
licensed by Licensor. “ Corporate Gift
Items ” means any objects typically given as
gifts in a corporate setting, including, without limitation,
paperweights, desk sets and similar items.
2.11
Sublicenses
.
(a)
Definitions.
(i)
“
Licensee
Qualified
Entity ” means any entity other than a Competitor or
Prohibited Party that is (a) wholly-owned by Licensee, but
only for so long as such entity is wholly-owned by Licensee,
(b) listed on Exhibit J (including as such Exhibit may be
amended in the future), but only for so long as (I) Licensee
(or a wholly-owned subsidiary of Licensee) maintains the ownership
interest that it has in such entity as of the Effective Date as set
forth on Exhibit J (or as of the date on which Exhibit J was
amended to add such Licensee Qualified Entity) and (II) any
other equity holder in such entity continues to maintain the
ownership interest that it has in such entity as of the Effective
Date as set forth on Exhibit J or, if it transfers any equity
interests, it transfers those equity interests to Licensee or a
wholly-owned subsidiary of Licensee, or (c) a franchisee of
Licensee or a franchisee of a wholly-owned entity of Licensee but
only so long as such franchisee is subject to a valid, written
franchise agreement with Licensee or Licensee’s wholly-owned
entity.
(ii)
“
Licensee
Qualified
Vendor ” means any third-party distributor,
manufacturer, sales organization or similar service provider, other
than a Competitor, Prohibited Party or International Licensee of
Licensee, that is engaged by Licensee in the Ordinary Course of
Business to design, manufacture, distribute and/or sell Licensed
Products in the Licensee Field or, subject to Article V, to
create New Products or New Campaign Materials.
(iii)
“
Licensor
Qualified
Entity ” means any entity other than a Prohibited
Party that is (a) wholly-owned by Licensor, but only for so
long as such entity is wholly-owned by Licensor, or (b) listed
on Exhibit J, but only for so long as (I) Licensor (or a
wholly-owned subsidiary of Licensor) maintains the ownership
interest that it has in such entity as of the Effective Date as set
forth on Exhibit J (or as of the date on which Exhibit J was
amended to add such Licensor Qualified Entity) and (II) any
other equity holder in such entity continues to maintain the
ownership interest that it has in such entity as of the Effective
Date as set forth on Exhibit J or, if it transfers any equity
interests, it transfers those equity interests to Licensor or a
wholly-owned subsidiary of Licensor.
(iv)
“
Licensor
Qualified
Vendor ” means any third-party distributor,
manufacturer, sales organization or similar service provider, other
than a Prohibited Party or International Licensee of Licensor, that
is engaged by Licensor in the Ordinary Course of Licensor’s
business to design, manufacture, distribute and/or sell products
using the Assigned Trademarks.
(v)
“
Qualified
Entity ” means any Licensee Qualified Entity or
Licensor Qualified Entity.
(vi)
“
Qualified
Vendor ” means any Licensee Qualified Vendor or
Licensor Qualified Vendor.
(b)
Licensee
shall have the right to grant sublicenses of its rights under
Section 2.1 only to Licensee Qualified Entities, Licensee
Qualified Vendors and International Licensees of Licensee, subject
to the restrictions of this Section 2.11. Other than
permitted sublicenses to Licensee Qualified Entities, Licensee
Qualified Vendors or International Licensees of Licensee, any
attempted sublicense by Licensee shall be prohibited and
void. Licensor shall have the right to grant sublicenses
of its rights under Section 2.12 only to Licensor Qualified
Entities, Licensor Qualified Vendors and International
L
| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
SITE SEARCH
AGREEMENTS / CONTRACTS
CLAUSES
| Get Email Updates |
