THIS
AGREEMENT is executed by and between The Topps Company, Inc. with
offices at One Whitehall Street, New York, NY 10004-2109
(hereinafter “Company”), and National Football League
Players Incorporated (“Players Inc”), a for-profit
corporation organized under the laws of the Commonwealth of
Virginia, having its principal place of business at 2021 L Street,
N.W., Suite 500, Washington, D.C., 20036. This Agreement shall
be effective as of March 1, 2004.
(A) Players
Inc represents that the National Football League Players
Association (“NFLPA”) has entered into certain
contracts with Company wherein NFLPA has authorized and will
authorize Company to utilize the Group Licensing Rights (as defined
in the Licensing Agreement between NFLPA and Company, effective
March 1, 2004 (hereinafter “Licensing Agreement”),
the Names, and/or the Logo.
(B) Players
Inc represents that it has entered into an agreement with NFLPA,
effective March 1, 2004 (hereinafter “NFLPA
Agreement”), to provide various services with respect to the
use of certain Group Licensing Rights pursuant to the Licensing
Agreement.
2. DESCRIPTION OF SERVICES. Players Inc shall perform,
as described herein, such services required to implement and
enforce this Licensing Agreement and the NFLPA Agreement. Such
services shall include, but are not limited to, the
following:
(A) NEGOTIATIONS
AND APPROVALS.
(i) With
respect to rights licensed under the Licensing Agreement, Company
agrees and acknowledges that Players Inc shall review and approve
or disapprove in writing the specific manner in which such rights
are to be used on the licensed products in question under such
Licensing Agreement.
(ii) In
the event Company is interested in seeking an individual
player’s personal endorsement, Company agrees and
acknowledges that Players Inc shall review and approve or
disapprove in writing such endorsement, provided the individual
player personally approves such endorsement. Company acknowledges
that all contact between Company and such player or player’s
agent shall be made by Players Inc. Company further agrees and
acknowledges that any player who is committed individually by
contract for products or services competitive with those of Company
may be required to cease from further inclusion in this Agreement
and the Licensing Agreement; provided, however, that the use of
such player for such products and services shall be on an
individual basis and shall not be combined with the use of five or
more other NFL players.
(iii) With
respect to the promotion by Company of the sale of licensed
products under the Licensing Agreement, Company agrees and
acknowledges that Players Inc agrees to review and approve or
disapprove in writing such promotions. Company further
agrees
and
acknowledges that any promotions using the licensed products
covered by the Licensing Agreement as premium items shall require a
separate agreement, to be negotiated by Players Inc, between NFLPA
and Company or other sponsor of the promotion, with separate terms
and conditions, and nothing contained herein shall obligate NFLPA,
Players Inc, or Company to enter into such an agreement.
(iv) Company
agrees to notify Players Inc of any infringement by others of the
rights granted by the Licensing Agreement. Company also agrees and
acknowledges that Players Inc shall completely investigate whether
or not any action shall be taken on account of any such
infringement. Further, in the event Company requests Players
Inc’s approval of any suit or action by Company on account of
any such infringement, Company further agrees and acknowledges that
Players Inc shall completely investigate Company’s
request.
(v) The
list of players for whom Players Inc has group licensing
authorization (the “Player Agreement Report”) is
available to Company via the Internet at
www.nflplayers.com/licensee with Company’s “user
name” and “password.” In addition, Players Inc
may secure authorization from players not listed on the Player
Agreement Report, including but not limited to retired players.
Notwithstanding the foregoing:
(a)
By February 1 of each calendar year covered by this Agreement,
Company shall submit to Players Inc a proposed list of
players’ names for inclusion in the licensed product(s) for
the upcoming football season. Company shall cross-reference its
player list against the current Player Agreement Report. After
cross-referencing the lists, Company must submit its proposed final
player list to Players Inc for approval. With regard to jersey
numbers for active players, it is Company’s sole
responsibility to cross-reference its player list against player
rosters posted on www.nfl.com. If applicable, jersey numbers for
retired players must be submitted to Players Inc for
approval.
(b)
Players Inc shall respond to such submissions in writing to
Company, signifying approval or disapproval in the case of each
player’s name so requested within fifteen (15) business days
or such submissions shall be deemed approved.
(c)
Company may submit requests in writing to Players Inc for
additions, deletions, or substitutions of players’ names and
Players Inc shall respond to such requests within fifteen
(15) business days or such submissions shall be deemed
approved.
(vi) Company
agrees and acknowledges that Players Inc shall review and approve
or disapprove in writing the quality and style of samples of
artwork, plans, photographs, and any other representations of
licensed products produced by or for Company (hereinafter
collectively “artwork”) and samples of each of the
licensed products, together with their packaging, hangtags, and
wrapping material. Any approval by Players Inc will be in writing.
Company further agrees and acknowledges that review and approval
shall be before the manufacture, sale, or distribution of such
artwork, whichever occurs first, and no licensed products shall be
manufactured, sold, or distributed by Company without such prior
written
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approval of
such artwork and such sample licensed products. Players Inc shall
respond in writing signifying approval or disapproval of such
submissions within 15 business days. Any request by Company for
such approval that is received by Players Inc and is not responded
to within fifteen (15) business days shall be deemed approved
by Players Inc. Subsequent to final approval, Company will send
periodically a reasonable number of production samples of licensed
products to Players Inc to ensure quality control, and should
Players Inc require additional samples for any reason, Players Inc
may purchase such at Company’s cost.
(vii) Company
agrees and acknowledges that Players Inc shall review and approve
or disapprove in writing the use by Company of player names,
likenesses, or both to promote licensed products on or in any
material pertaining to packaging, hangtags, wrapping material,
print ads, flyers, point-of-purchase displays, press releases,
catalogues, trade show booths and exhibits, or any other written
material or medium, including but not limited to electronic,
interactive or internet use. Any approval by Players Inc shall be
in writing. Company further agrees and acknowledges that review and
approval shall be before implementation of such promotional
material. Players Inc shall respond in writing signifying approval
or disapproval within fifteen (15) business days. Any such
request by Company for approval that is received by Players Inc and
is not responded to within fifteen (15) business days shall be
deemed approved by Players Inc. Company further agrees and
acknowledges that the number of players included in any such use,
if approved, shall be a minimum of six, and shall be selected from
the Player Agreement Report. Player names, likenesses, or both so
used shall be written or displayed with equal
prominence.
(viii) Company
agrees and acknowledges that Players Inc shall review and approve
or disapprove in writing the use by Company of player names,
likenesses, or both (including, without limitation, action footage)
in radio or television commercials to promote licensed products.
Any approval by Players Inc will be in writing. Company further
agrees and acknowledges that review and approval shall be before
production and dissemination of any such radio or television
commercial. Players Inc shall respond in writing signifying
approval or disapproval of such submissions within fifteen
(15) business days. Any such request by Company for approval
that is received by Players Inc and is not responded to within
fifteen (15) business days shall be deemed approved by Players
Inc. Company further agrees and acknowledges that the number of
players included in such commercials, if approved, shall be a
minimum of six and shall be selected from the Player Agreement
Report. The players used in such commercials shall be shown with
equal prominence. Company further agrees and acknowledges that
Players Inc shall review all scripts and story boards before any
commercials shall be made or shall be contracted for by
Company.
(ix) Company
agrees and acknowledges that Players Inc will negotiate with
Company regarding the amount of required additional payments to
Players Inc separate from and in addition to the guarantees or
royalty payments included in the Licensing Agreement, if Company
requests to use player names, likenesses, or both in accordance
with this subsection 2(C), in any radio or television commercials,
print ads, point-of-purchase displays, packaging, hangtags,
wrapping material, press releases, catalogues, flyers, trade show
booths and exhibits, or any other written or graphic material or
medium, including but not limited to electronic or interactive use,
to promote licensed products. Company further agrees and
acknowledges that all contacts with such players or their agents
shall be made by Players Inc.
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(x) In
the event Company wishes to secure an individual player or players
to make appearances to promote licensed products or to autograph
licensed products, Company agrees and acknowledges that the
selection of such player and the separate fee to Players Inc for
such player services shall be subject to mutual agreement between
Company and Players Inc, provided, however that player’s
autograph services may be secured on a non-exclusive basis only.
Company may at its discretion require that an autograph session be
scheduled to witness the player’s autograph signing, provided
that Company communicates to Players Inc in writing at the time the
request for the player’s services is made that Company will
require that player perform such services at a witnessed session.
Company further agrees and acknowledges that all contact with the
requested player or his agents shall be made by Players Inc. Once
the player has made the appearance or performed the autograph
service, payment shall be made immediately to Players Inc. Any such
payments shall be separate from and in addition to any royalties or
payments paid by Company under the Licensing Agreement or this
Service Agreement. Once the selection of such player and such
separate fee have been agreed upon by Company and Players Inc, in
the event
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