Exhibit 10.2
REVOCABLE
LICENSE AGREEMENT
(CRYSTAL
MAGIC)
THIS
REVOCABLE LICENSE AGREEMENT ( “Agreement
”), is made and entered into as of November
18
th , 2002 by and between CRYSTAL MAGIC, INC., a
Florida
corporation (“Crystal
”) and DISNEYLAND®
RESORT, A DIVISION
OF WALT DISNEY WORLD CO ., a Florida corporation, (
“Disney ”)
(Crystal and Disney referred To individually as a “Party ”
and collectively, as the “ Parties”).
WITNESSETH
WHEREAS,
Disney owns and operates the entertainment, recreation and
lodging complex known as the Disneyland®
Resort (the “Resort”)
which currently includes Disneyland®
park and Disney’s
California Adventure™ park (individually, the
“Park”
and collectively, the “Parks
”), Downtown
Disney® District (“Downtown
Disney ”) (individually a “Location”
and collectively, the “Locations”),
and related facilities all located in Anaheim,
California;
WHEREAS,
Crystal is engaged in the generation of portraits and 3-D
character, logo and/or name drop (Mickey Mouse, Minnie Mouse;,
Donald Duck, Goofy, Pluto, Disney’s
California Adventure™ Park icons as approved in
advance by Disney and the Disney Merchandise Brand
department), sculpture reproductions inside optically
transparent material (i.e., a crystal glass cube)
(collectively, the “Inventory
”) and the entertainment and show aspects associated
therewith (collectively the “Services
”); and
WHEREAS,
Crystal desires to license space in the Parks and in Downtown
Disney to provide the Services and sell the Inventory, and
Disney and Crystal desire that this Agreement apply to
Crystal’s license of space in such licensed areas in the
manner hereinafter described and on terms hereinafter
provided.
NOW,
THEREFORE, in consideration of the terms, covenants and
conditions herein contained, and other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the Parties hereto agree as
follows:
1.
TERM
OF AGREEMENT.
The
term of this Agreement shall commence as of October 1, 2002
and continue through and including October 30, 2008 (the
“Term”),
unless earlier terminated as provided herein. Neither Party
shall be obligated to extend the Term. Crystal hereby
acknowledges and agrees that during the Term, the Parks and
Downtown Disney and their surrounding areas may undergo major
construction and renovation and agrees that such construction
and renovation will not constitute a breach by Disney of its
obligations under this Agreement.
2.
GRANT OF
NON-EXCLUSIVE LICENSE .
Subject
to the terms and provisions of this Agreement, Disney hereby
grants to Crystal a non-exclusive revocable license to enter
upon and use the Locations (as defined below) for the sole
purpose of providing the Services and producing and selling
the Inventory to guests of the Resort, The “Locations”
shall mean those certain areas at the Parks and Downtown
Disney where Crystal shall provide the Services and sell the
Inventory, as designated by Disney in its sole and absolute
discretion. Disney shall be the owner of the Locations and the
contents therein, except for the Crystal Property (as defined
in Section 20). Notwithstanding anything herein to the
contrary, Crystal shall not, without the prior written consent
of Disney in each instance, which consent may be granted or
withheld in Disney’s sole and absolute discretion,
mortgage or grant a security interest in either this Agreement
or the Locations, CRYSTAL ACKNOWLEDGES AND AGREES THAT THE
LICENSE GRANTED HEREUNDER DOES NOT CONSTITUTE A LEASEHOLD
INTEREST OR OTHER INTEREST IN LAND.
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3.
PERMITTED USE:
OPERATION OF LOCATIONS .
(a) The
Locations shall be used by Crystal to provide the Services and
produce and sell the Inventory and for customers to view the
“show” aspects of Inventory creation and for no
other purpose whatsoever. Crystal shall provide, at its sole
cost and expense, (i) the Services and the Inventory; and (ii)
except for the shelving loaned to Crystal by Disney, all of
the equipment and supplies, including additions thereto and
replacements and renewals thereof, necessary to produce and
sell the Inventory at the Locations (collectively, “Equipment”)
as set forth on Exhibit C
. attached hereto and fully made a part hereof. Subject to
Disney’s approval, which approval Disney may grant or
withhold in Disney’s sole and absolute discretion,
Crystal shall upgrade and replace, at Crystal’s sole
expense. Crystal’s Inventory and Equipment as necessary
to ensure the Locations continually produce first-class
products and services. Notwithstanding anything herein to the
contrary, Crystal shall not, without the prior written consent
of Disney in each instance, which consent Disney may grant or
withhold in Disney’s sole and absolute discretion,
mortgage or grant a security interest in or suffer to permit
any encumbrance to be placed on this Agreement, any Location,
the Equipment or the Inventory. Crystal shall have full
responsibility and obligation for the operation of the
Locations and for all direct costs (calculated pursuant to
Section 5(f) hereinbelow) incurred by Disney for
Crystal’s operation including, but not limited to, the
provision of custodial service, merchandise bags and other
guest service expense items. All Equipment and Inventory
provided by Crystal at any time during the Term of this
Agreement is subject to Disney’s prior written approval,
which approval may be granted or withheld in Disney’s
sole and absolute discretion. Crystal shall be responsible for
the daily care and maintenance of the equipment and supplies
necessary to handle the sale of the Inventory (e.g., sales
register) at the Locations, the costs of which shall be borne
by Crystal.
(b) Disney,
at its sole cost and expense, shall provide trash pickup and
reasonable amounts of utilities (other than telephone) to
certain locations within the Locations for the Term of this
Agreement, subject to any interruptions that may occur due to
construction and/or renovation of the Locations and/or causes
beyond Disney’s control. In no event shall Disney be
liable or responsible for any interruption or disruption of
utility service, and Crystal hereby waives any and all claims
against Disney for any loss, damage and/or expense arising out
of, and/or incurred in connection with, any such interruption
and/or disruption. Crystal shall not make connection to the
utilities except by or through existing outlets.
(c) All
freight, handling and similar charges or costs incurred in
connection with the shipment of the Inventory, equipment and
supplies to the Locations shall be borne by Crystal. Crystal
shall bear the risk of loss for, and shall procure and
maintain adequate insurance against, any delays and/or damages
to the Inventory, equipment and/or supplies during
shipment.
(d) During
the Term, Crystal shall be responsible, at its sole cost and
expense, to provide telephone/data service (including. without
limitation, high speed internet connections such as DSL,
etc,). Crystal shall, at its sole cost and expense, provide
the Services and the Inventory at the Locations in a safe and
efficient manner and in compliance with all applicable laws,
rules, regulations and ordinances and shall keep the Locations
free from trash and debris. Crystal shall be responsible, at
its sole cost and expense, for obtaining any and all licenses
and permits required for the operation of its business at the
Locations.
(e) Disney
shall have the right to approve, in its reasonable discretion,
the prices charged by Crystal for-the Services and the
Inventory. All proposed changes to the pricing must be
approved by Disney in writing in advance in Disney’s
reasonable discretion. Notwithstanding the foregoing, except
for the calendar year 2003, Crystal shall have the right to
increase the prices charged by Crystal for Inventory up to ten
percent (10%) in any calendar year during the Term without
obtaining the prior written approval of Disney.
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(f) Disney
will provide all uniforms for Crystal and its employees.
Crystal acknowledges and agrees that Crystal has no ownership
rights in the uniforms. Crystal shall return the uniforms to
Disney for cleaning and maintenance as Disney may require
during the Term. Crystal shall keep such uniforms clean and
professional at all times in accordance with Disney’s
safety and appearance standards, the condition of which shall
be acceptable to Disney, in its sole and absolute discretion,
or to any other persons or entities designated by Disney to
make such determination, in their sole and absolute
discretion, whenever Crystal or its employees are performing
the Services. Upon expiration or sooner termination of this
Agreement, Crystal shall immediately return the uniforms to
Disney. Crystal will be
responsible for reimbursing Disney for Disney’s uniform
cleaning, maintenance and /or replacement costs for Crystal
and Crystal’s employees upon receipt of a monthly
invoice from Disney . To the extent any of the uniforms
are lost or substantially damaged, as determined by Disney in
its sole and absolute discretion. Crystal agrees to reimburse
Disney for the replacement costs of such uniforms at fair
market value. Crystal shall cause its employees to wear
Disneyland®
Resort nametags, to display Disneyland®
Resort parking stickers on their vehicles, and to obtain
Disneyland®
Resort identification cards, and Disney may charge Crystal for
such nametags, parking stickers, and identification cards
pursuant to Disney’s standard terms and prices set for
such items, which terms and prices are subject to change
without notice. Crystal’s employees shall be responsible
for paying Disney for the replacement cost of lost nametags,
parking stickers and identification cards.
(h) Crystal
shall, at its sole cost and expense, maintain the Locations to
Disney’s specifications and standards, including,
without limitation, janitorial, pest control, warehousing and
laundry.
(i) Crystal
shall comply with and abide by, and shall cause its agents,
employees, invitees and licensees to comply with and abide by,
all rules, policies and standards of Disney (including,
without limitation, those grooming standards outlined in the
Disney Look brochure, and background checks of employees) with
respect to the Locations or any portion thereof of which
Crystal has received notice. Crystal shall cause its employees
and agents to comply with and abide by the rules of conduct
and appearance standards established by Disney for its own
employees. Crystal shall cause its agents, invitees and
licensees to comply with all rules and standards that Disney
uses when Disney hires employees including, without
limitation, necessary background checks of such employees
prior to employment. Disney may, from time to time during the
Term of this Agreement and in its sole and absolute
discretion, make changes in, additions to and deletions from
Disney’s rules, policies and standards. Disney shall
give prior written notice to Crystal of any such changes,
additions or deletions. In no event shall Disney’s
failure to advise Crystal in advance of any such change,
addition or deletion relieve Crystal of its obligation to
comply therewith. Disney shall have the right to deny access
to the Locations to any employee of Crystal who, in
Disney’s sole and absolute discretion, does not meet
applicable standards and/or comply with applicable rules or
policies. Employees of Crystal shall, at Crystal’s sole
cost and expense, participate in Disney-sponsored orientation
and training programs prior to beginning employment and on a
periodic basis thereafter as deemed appropriate by Disney in
its sole and absolute discretion. Disney shall have the right
to deny access to the Park to any employee of Crystal who, in
Disney’s sole discretion, does not meet applicable
standards or comply with applicable rules or policies. Disney
shall permit Crystal’s employees working at the
Locations to use all employee facilities at the Parks and to
park in the applicable Disneyland®
Resort employee parking areas if such employees have Disney
parking stickers.
(j) Crystal
acknowledges that the employees used by Crystal to operate its
business at the Locations are employees of Crystal and not
employees of Disney. When hiring such employees for the
Locations, Crystal, at its sole cost and expense, shall comply
with all rules and standards that Disney uses when Disney
hires employees including, without limitation, necessary
background checks of such employees prior to employment.
Crystal shall be responsible for all salaries, employee
benefits, social security taxes, federal and state
unemployment insurance and any and all similar taxes relating
to its employees and for Workers ’
Compensation coverage with respect thereto pursuant to
applicable law and shall file all required returns and reports
with respect to the foregoing. Crystal shall defend, indemnify
and hold Disney and all of its parent, subsidiary, related and
affiliated companies and the officers, directors, agents,
employees and assigns of each, harmless from and against any
and all claims for such salary, tax and/or benefit payments.
Neither Crystal nor Crystal’s employees shall be
entitled to participate in, or to receive, any of
Disney’s employee benefit or welfare plans, specifically
including, but not limited to, coverage under Disney’s
Worker’s Compensation program, and neither Crystal nor
Crystal’s employees shall be deemed an agent of Disney
for purposes of this Agreement. Disney may (if requested by
Crystal), but shall not be required to, assist Crystal in its
hiring efforts for the Locations. Disney shall have no
obligation whatsoever to compensate Crystal or Crystal’s
employees on account of any damages and/or injuries which may
be sustained as a result of or in the course of performance of
Crystal’s Services hereunder. The indemnification
provisions contained in this paragraph shall survive,
indefinitely, the expiration or earlier termination of this
Agreement and shall not be limited by the amount of any
insurance required to be maintained hereunder.
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(k) Crystal
shall not sell food or beverages in the Locations. Crystal
shall not offer for sale or otherwise distribute any
merchandise other than the Inventory at or from the Locations
without the express prior written consent of Disney, which
consent Disney may grant or withhold in its sole and absolute
discretion. Crystal shall not offer for sale or otherwise
distribute any merchandise similar to merchandise sold by
Disney at other locations in the Resort. Disney shall have the
right to approve, in its reasonable discretion, the prices
charged by Crystal for any Inventory offered for sale from the
Locations.
(I) Disney
shall have the right to approve the design and quality of the
Services and the Inventory, including, without limitation,
theming, packaging, quality, safety, quantity and
appropriateness, which approvals Disney may grant or withhold
in its sole and absolute discretion; provided, however, that
nothing contained in this sentence shall relieve Crystal of
its obligation to ensure that all Inventory produced, sold
and/or offered for sale in the Locations is in compliance with
applicable federal and state law as well as local codes.
Disney shall have the right to provide any signage and
additional equipment at Crystal’s sole expense as deemed
necessary in Disney’s sole and absolute
discretion.
(m) Crystal
shall produce and provide the Inventory for sale at the
Locations on each day the applicable Park and/or Downtown
Disney is open during the hours specified by Disney from time
to time (unless otherwise Instructed or approved by Disney).
Upon request by Disney, Crystal shall provide the Services and
the Inventory during certain events held at the Parks and
Downtown Disney, including, without limitation, private
parties and Grad Nites. Crystal acknowledges that these events
may be held after the scheduled closing time of the applicable
Park and/or Downtown Disney.
(n Disney
may close either Park and/or Downtown Disney, or both Parks
and/or Downtown Disney, and/or portions thereof (and may
instruct Crystal to close the Locations, or portions thereof),
for up to forty five (45) days per calendar year during the
Term hereof (“Excused
Closings”), which may or may not be consecutive,
for any maintenance, repair and/or rehabilitation of the
applicable Park and/or Downtown Disney (and/or for any
construction, maintenance, repair and/or rehabilitation within
the applicable Park and/or Downtown Disney which affects the
operation of the Locations) which Disney deems necessary or
desirable, in its sole and absolute discretion, and for such
other business reason as Disney deems appropriate, in its sole
and absolute discretion. Any Excused Closings of the
applicable Park and/or Downtown Disney, the Locations or
portions thereof as aforesaid shall be without claim by or
compensation to Crystal. Prior to the expiration of the Term
of this Agreement, a determination will be made as to whether
Disney has caused the Locations to be closed to the public
after the opening thereof in excess of the number of days
permitted under this paragraph (hereinafter referred to as a
“Non-excused
Closing ”), If there has been a Non-excused
Closing, Disney shall grant to Crystal an extension of the
Term with respect to Crystal’s operation of the
Locations for a period of time equivalent to the period of
such Non-excused Closing, such extension to constitute
Crystal’s sole remedy as a result thereof.
(o) Crystal
shall place no signs, posters or similar materials in or about
the Locations or Locations without the prior written approval
of Disney, which approval Disney may grant or withhold in its
sole and absolute discretion.
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(p) Disney
shall have access to the Locations and all portions thereof at
all reasonable times for purposes of inspecting the operation,
sanitation and maintenance thereof and reviewing the level of
Crystal’s compliance with its obligations under this
Agreement and with all applicable laws.
(q) Disney
shall have the right to approve the design and quality of all
items, if any, selected by Crystal for use in the sale of the
Inventory and the operation of the Locations such as
equipment, fixtures, decorations, signage, etc., which
approval Disney may grant or withhold in its sole and absolute
discretion.
4.
THIRD
PARTY AGREEMENTS .
(a) Disney
shall have the right to enter into agreements with third
parties pursuant to which said third parties are identified in
signage, on magazines and/or otherwise in and/or at the
Locations, and any fees payable by any said third party shall
be for Disney’s account. Should Crystal enter into any
agreements with third parties pursuant to which said third
parties are so identified, which it may do only with the prior
express written approval of Disney (which approval Disney may
grant or withhold in its sole and absolute discretion), then
any fees collected from any said third party shall be for
Disney’s account. Nothing herein contained shall be
deemed to authorize Crystal to grant to third parties any of
the rights granted to it by Disney pursuant to this
Agreement.
(b) Crystal
recognizes that certain agreements entered into by Disney with
third parties contain provisions obligating the use and/or
availability of said third parties’ products and/or
services, and/or restricting the use and/or availability of
products and/or services which compete with said third
parties, in the Parks, the Locations and/or in the Locations.
Accordingly, Crystal shall, if requested by Disney, conform
its use of, the merchandise sold in, and the operation of the
Locations in accordance with provisions agreed to by Disney in
such agreements with third parties. Disney may, in its sole
and absolute discretion, hereafter enter into any agreements
with third parties which contain such commitments affecting
the Locations, and Crystal shall, if requested by Disney,
conform its use of, the merchandise sold in, and the operation
of the Locations with such provisions at Disney’s
cost.
5.
FEE
FOR SERVICES/OTHER PAYMENTS,
(a) Crystal’s
compensation for the Services shall be based solely on the
Services provided.
(b) All
sales at the Locations are to be handled by Disney’s
personnel whether on-site or by mail order or drop shipping.
Crystal shall not accept any money from guests but shall refer
all sales transactions, including, without limitation, special
orders and mail orders, to Disney personnel for processing
through cash registers in accordance with Disney’s
standard sales procedures.
(c) Disney
shall collect the compensation from the guests and shall pay
to Crystal a fee (“Fee”) of sixty percent (60%) of
gross revenues from retail sales from the Locations, less
applicable sales, use, excise or other taxes. Disney shall
retain the remaining gross revenues from retail sales from the
Locations. The term “gross revenues from retail sales
from the Locations” is defined as “all monies and
other things of value received by, or paid to, Disney and all
credit extended by Disney, arising upon, out of or in
connection with the Locations during the Term, plus the amount
of any applicable sales, use, excise or other Taxes, less the
amount of any of Crystal’s merchandise and/or products
which are returned to Disney or replaced by Disney, less the
amount of any refunds made by Disney in connection with the
Locations, less the amount of any cancelled orders for
Crystal’s merchandise or products, and less the amount
of any shipping charges for merchandise and/or products
shipped to guests”. The Fee shall be payable within
fifteen (15) business days of the close of previous fiscal
month’s retail sales; however, six (6) months after the
commencement of the Term, Disney agrees to reevaluate whether,
based on Disney’s financial system upgrade, Disney can
pay the Fee to Crystal on a weekly or bi-weekly
schedule.
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(d) Disney
shall maintain complete and accurate records evidencing the
gross revenues from retail sales from the Locations. Disney
agrees to make available to Crystal once each calendar year,
upon thirty (30) days’ prior written request by Crystal,
a full, permanent and accurate set of Disney’s
accounting books and records relating solely to gross revenues
from retail sales from the Locations. Crystal will have the
right, at its sole cost and expense, to audit said books and
records. Disney agrees to keep all such books and records for
at least three (3) years following the expiration or sooner
termination of this Agreement.
(e) Disney
reserves the exclusive right, throughout the Term hereof, to
have sole control over the Locations and Crystal shall have no
rights or interest therein, which control may include, but is
not limited to: admission to the Parks and Downtown Disney and
to the various facilities therein and to approve, in its
reasonable discretion, the rates and prices for the services
and merchandise at the Locations, all of which shall be for
Disney’s account, the establishment of the hours of
operation at the Locations which need not be the same as the
hours of operation of the Parks or Downtown Disney or the
various facilities therein, the establishment of the schedule
for maintenance, repair and rehabilitation of the Locations,
the promulgation of strict standards and rules for the
appearance, sanitation, cleanliness and maintenance of the
Locations and for the conduct, courteousness and appearance of
persons employed therein, and the promulgation of strict
standards and rules for the preservation of good order with
respect to the Locations and for the health, comfort and
convenience of the patrons and guests thereof. At all times,
Crystal shall have no rights or interest, implied or
otherwise, in any revenues realized from the Locations (other
than from the sale of the Inventory), the sale of food,
beverage, merchandise or any other items offered or the
various facilities therein.
(f) Any
services of Disney’s personnel which are subject to
reimbursement by Crystal shall be invoiced at Disney’s
direct costs for such services (i.e. payroll costs, including,
without limitation, payroll taxes and fringe benefit costs)
(at the Disney composite rate, as computed annually) plus
overhead items directly related to those services, such as
supervision, small tools, owned equipment, training, etc,
(expressed as a percentage of direct labor costs and
recomputed annually) plus twenty percent (20%) of all direct
labor costs to cover administrative overhead. Materials shall
be invoiced at net cost to Disney, plus three percent (3%)
thereof to cover overhead. Any other services performed on
behalf of Disney by any person not a party to this Agreement
shall be billed at net cost to Disney, plus five percent (5%)
to cover overhead.
(g) Disney
shall be entitled to reduce by the same percentages that
Disney does so for its own employees ( provided,
however that the highest percentage shall not exceed
thirty-five (35%)), the sales price of Inventory sold to
employees of Disney and of its parent, subsidiary, related and
affiliated companies, and Disney shall reduce by the following
percentages the sales price of merchandise and/or services in
any Disney-owned and operated retail shop sold to Crystal
employees if Disney does so for its own employees with respect
to the same merchandise and/or services and in the same retain
shop. Said percentages are currently as follows:
(i) all
employees who have at least three (3) years of service based
on their hire date (and their spouses), who are currently
receiving a thirty-five percent (35%) reduction shall continue
to receive a thirty-five percent (35%) reduction;
and
(ii) all
other employees not otherwise described above and their
spouses shall receive a twenty percent (20%) reduction;
provided, however, that if any of Crystal’s employees
are already receiving a thirty-five percent (35%) reduction as
discussed in subsection (i) above, such employee shall
continue to receive a thirty-five percent (35%)
reduction.
6.
MAINTENANCE
AND REPAIR .
(a) Disney’s
obligation to provide the Locations, as set forth in Section
2, shall include the obligation to routinely clean and
maintain the surrounding area of the Locations, at
Disney’s sole cost and expense. Crystal shall be
responsible for the maintenance costs of and all other costs
and expenses for all items and elements in the Locations,
including, but not limited to, the following: equipment,
supplies, signs, decorations, and Crystal’s Property (as
defined in Section 20 below).
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(b) Unless
otherwise approved by Disney, Disney shall provide all repair
and rehabilitation of the Locations which it reasonably deems
necessary or desirable, in its sole and absolute discretion,
at Crystal’s sole cost and expense, except for those
items which are at Disney’s expense pursuant to Section
6(a). If the Parties determine that a major rehabilitation of
the Locations is required, then Disney shall perform the work
and Crystal shall reimburse Disney for all costs and expenses
incurred by Disney in connection with such repair and/or
rehabilitation, in accordance with Section 5(f) above. Disney
may, but shall not be required to, permit Crystal to provide
some or all of such repair and rehabilitation work, provided
that any such repair or rehabilitation work shall be subject
to such conditions as Disney may establish in its sole and
absolute discretion.
7.
SALES
TAX.
Amounts
retained by Disney or paid to Disney under this Agreement may
be subject to tax. Accordingly, the applicable sales, use,
excise or other taxes on such amounts shall be deducted from
Crystal’s Fee and retained by Disney or paid to Disney
by Crystal, as appropriate. Crystal shall be responsible for
and shall pay any and all personal property taxes and/or
assessments on Crystal’s Property, the Inventory, and
the Equipment.
8.
WARRANTIES
.
Crystal
hereby represents and warrants to Disney:
(a) that
Crystal has the experience and skill to operate its business
as required hereunder;
(b) that
Crystal shall comply with all applicable federal, state and
local laws and regulations, including, without limitation, all
professional registrations, the comprehensive operating plan
therefor prepared by Crystal and having the prior approval of
Disney, which approval Disney may withhold in its sole and
absolute discretion, and such rules, regulations and standards
as Disney may establish from time to time, and that Crystal
shall provide Disney, on an annual basis during the Term of
this Agreement, copies of any applicable business licenses
including, but not limited to, its City of Anaheim Business
License to evidence such compliance;
(c) that
Crystal shall operate its business in a manner consistent with
the quality of the operation of the Parks Downtown Disney and
shall provide its customers that same professional level of
customer service as the Parks and Downtown Disney accord their
guests;
(d) that
Crystal is adequately financed to meet any financial
obligation it may be required to incur hereunder;
(e) that
Crystal is not, and will not be, under any disability,
restriction or prohibition with respect to Crystal’s
right to fully perform hereunder in accordance with the terms
and conditions of the Agreement;
(f) that
Crystal has the requisite power and authority to execute,
deliver and perform its obligations under this Agreement, that
all consents, approvals, notices and/or filings with any other
person (including, without limitation, shareholders and/or
affiliates) required for the execution, delivery and
performance of its obligations under this Agreement have been
obtained or waived, without violation or breach of any
applicable law and/or agreement, understanding and/or
arrangement to which it is a party and/or by which its
property is bound:
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(g) that
Crystal shall provide the Inventory and otherwise perform the
Services hereunder in accordance with generally accepted
professional standards, and that all Inventory and Services
shall be in good taste with due regard to Disney’s
reputation and standards as determined by Disney in its sole
and absolute discretion; and
(h) that
the Inventory shall not contain any images which are profane,
obscene, insulting or otherwise unsuitable for family-oriented
entertainment including, but not limited to, any images which
portray any Disney character in such a manner, as determined
by Disney in its sole and absolute discretion.
All
representations and warranties made by Crystal in this
Agreement shall survive the expiration or earlier termination
of this Agreement,
9.
PROMOTIONAL
RIGHTS OF DISNEY.
Notwithstanding
any other provision of this Agreement to the contrary, Disney
and. its parent, related, affiliated, and subsidiary companies
shall have the right to photograph, take motion pictures of,
televise, make miniatures of and/or otherwise reproduce in any
manner and/or through any media the Inventory, the Locations
or any portion thereof, and to display, use, sell, license
and/or exploit in any manner any such pictures and/or other
reproductions for any purpose whatsoever, commercial and/or
otherwise, connected with promoting, advertising and/or
publicizing the Inventory and/or the Locations. Crystal shall
obtain, for Disney’s benefit, releases, clearances
and/or other instruments from its employees necessary to
permit Disney to make and use and/or permit to be made and
used any photographs, motion pictures and/or other
reproductions for any of the purposes herein provided. The
provisions of this section shall survive the expiration or
sooner termination of this Agreement.
10.
USE
OF DISNEY NAME.
Crystal
acknowledges and agrees that it shall acquire no interest in
any copyrights, trademarks, service marks, other intellectual
property or intellectual property rights of Disney, its
parent, or any of its related, affiliated or subsidiary
companies. Without limiting the generality of the foregoing,
except to the extent permitted above by this Agreement,
Crystal shall acquire no right to use, and shall not use the
name “Disney”
(either alone or in conjunction with or as part of any other
word or name), “Disneyland,” “Disney’s
California Adventure,” “Downtown Disney”,
“Disneyland Hotel,” “Disney’s Paradise
Pier Hotel” or “Disney’s Grand Californian
Hotel” or any fanciful characters (such as, but not
limited to, Mickey Mouse), designs or other intellectual
property of Disney or any of its parent, related, affiliated
or subsidiary companies; (a) in any of Crystal’s
advertising, publicity or promotion; (b) to express or imply
any endorsement by Disney of Crystal’s business or
Inventory; or (c) in any other manner or for any purpose
whatsoever (whether or not similar to the uses prohibited by
Sections 10(a) and 10(b) hereinabove). The provisions of this
Section 10 shall survive the expiration or earlier termination
of this Agreement.
11.
INSURANCE:
INDEMNIFICATION.
(a) Crystal
shall provide and keep in force during the Term of this
Agreement:
(i) a
policy or policies of Commercial General Liability Insurance
(including products liability and contractual coverage) and
Automobile Liability Coverage (for all vehicles), with minimum
limits of Two Million Dollars ($2,000,000) and One Million
Dollars ($1,000,000), respectively, combined single limit per
occurrence, protecting Crystal, Disney, Disney’s parent,
related,
