Exhibit 10.18
FORM:
STORE
Non-Apparel
– NPR
LICENSEE: CRYSTAL
MAGIC
INC. RETAIL
PRODUCT LICENSE AGREEMENT
ADDRESS: 7703
Kingspointe Parkway
Suite 300
Oriando,FL32819
THIS RETAIL PRODUCT LICENSE AGREEMENT is entered into by NBA
Properties. Inc. (“NBAP”), with its principal office at
645 Fifth Avenue, New York, New York 10022. and the licensee listed
above (“LICENSEE”) with regard to the commercial use of
certain names, logos, symbols, emblems, designs and uniforms and
all identifications, labels, insignia, indicia or trade dress
thereof (the “Marks”) of the National Basketball
Association (the “NBA”), the Women’s National
Basketball Association (the “WNBA”) and their
respective Member Teams (separately, the “NBA Marks”
and the “WNBA Marks”). Subject to the terms of this
Agreement and the attached NBAP Standard Terms and Conditions, NBAP
hereby grants to LICENSEE, and LICENSEE hereby accepts, the
non-exclusive right and license to use the NBA Marks and the WNBA
Marks (collectively, the “Licensed Marks”) solely in
connection with the manufacture, distribution and sale of the
products described in Paragraph A below (“Licensed
Products”) to the Authorized Purchasers described in
Paragraph C below. No license or right is granted for the use of
the NBA Marks or the WNBA Marks for any purpose other than on the
Licensed Products sold to the Authorized Purchasers in accordance
with this Agreement.
A.
LICENSED
PRODUCTS : Crystal awards and crystal desktop
accessories.
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B.
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TERM : The rights granted hereunder shall be perpetual,
unless sooner terminated in accordance with the provisions of this
Agreement (the “Term”).
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C.
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TERRITORY ; NBA controlled channels, including without
limitation. In-arena concessionaires of the Member Teams, The NBA
Store on 5 th
Avenue in New York City, the NBA Store on NBA.com (or other such
URL designated by NBAP). and NBA City (collectively, the
“Authorized Purchasers”).
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D.
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PURCHASES; ROYALTY RATES; STATEMENTS; LICENSEE shall make
Licensed Products only for sale to the Authorized Purchasers and
only pursuant to purchase orders duly issued by the Authorized
Purchasers (the “Purchase Order”). LICENSEE shall pay
to NBAP a combined royalty and advertising promotion payment equal
to 12% of the aggregate price of all. Licensed Products purchased
by the Authorized Purchasers from LICENSEE (hereinafter referred to
as a “Combined Royalty Payment”),
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Within
thirty (30) days following the end of each month, LICENSEE shall
furnish to NBAP (on forms provided-by NBAP), a full and accurate
statement indicating units sold, unit price, and the calculation of
Combined Royalty Payments and, simultaneously with the submission
of each such statement, LICENSEE shall make all Combined Royalty
Payments due under this Agreement.
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E
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ADVERTISING AND PROMOTION:
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Consistent
with NBAP’s past practice of creating, undertaking and
supporting advertising and promotion activities with respect
to NBAP-licensed products sold at retail, NBAP shall devote up
to two percent (2%) of the Combined Royalty Payments made by
LICENSEE pursuant to Paragraph D above to cover the expenses
incurred by MBAP in connection with such advertising and
promotion activities.
AGREED
TO AND ACCEPTED,
subject AGREED
TO AND ACCEPTED:
to
and incorporating the attached
NBAP
NBA PROPERTIES,
INC.
Standard
Terms and Conditions which
the
undersigned has
read: By:
CRYSTAL
MAGIC
INC.
Salvatore LaRocca
Executive Vice President
Global
merchandising Group
By:
/s/Steven M. Rhodes
Title: President
Dated: 10/23/07
2
NBAP
STANDARD TERMS AND CONDITIONS
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1.
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STATEMENTS AND PAYMENTS
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LICENSEE
shall not deduct or withhold from any payment to NBAP any
amounts by reason of any tax (including any taxes imposed on
NBAP). Any tax applicable to the distribution and sale of the
Licensed Products shall be borne, and paid directly, by
LICENSEE. All computations and payments shall be in U.S.
dollars, from a U.S. source approved by NBAP, at the spot rate
for the local currency as published in the Wall Street Journal
for the last business day of the preceding month. If LICENSEE
shall fail to timely pay any amount due under this Agreement,
then without prejudice to any other rights that NBAP may have
under this Agreement or otherwise, LICENSEE shall pay interest
on such amount at a rate equal to the lesser of (i) three
percent (3%) per annum over the highest prime rate (announced
by JP Morgan Chase Manhattan Bank, New York branch) prevailing
during the period between the date the payment first became
due and the date such payment is actually paid or (ii) the
highest rate permitted by law during the period between the
date the payment first became due and the date such payment is
actually paid. The receipt or acceptance by NBAP of any of the
statements furnished or Combined Royalty Payments made by
LICENSEE (including the cashing by NBAP of any checks) shall
not preclude NBAP from auditing LICENSEE’S books and
records pursuant to Paragraph 8 or claiming any shortfall in
payments due hereunder.
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2.
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NON-RESTRICTIVE GRANT; RIGHTS RESERVED
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Nothing
in this Agreement shall prevent NBAP from granting any other
licenses and rights. All rights not exclusively granted to
LICENSEE in this Agreement are expressly reserved by NBAP.
LICENSEE shall have no right to continue manufacturing or
selling Licensed Products after the termination of this
Agreement.
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3.
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OWNERSHIP OF MARKS AND GOODWILL
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LICENSEE
acknowledges that the NBA Marks and the WNBA Marks and the
goodwill attached thereto belong exclusively to NBAP, the NBA,
the WNBA and their respective Member Teams. LICENSEE also
acknowledges (i) the great value of the goodwill associated
with the NBA Marks and the-WNBA Marks, (ii) that the NBA Marks
and the WNBA Marks are famous and (iii) that the NBA Marks and
the WNBA Marks have secondary meanings in the minds of the
public. LICENSEE agrees that all use by LICENSEE of the NBA
Marks and the WNBA Marks shall inure to the benefit of NBAP,
the NBA, the WNBA and their respective Member Teams, and any
right that may accrue to LICENSEE related thereto shall be
assigned to NBAP or its designee upon NBAP’s request.
LICENSEE shall not, during the Term or thereafter, challenge
(y) the rights of the Member Teams, whether severally owned or
held in association as the NBA, WNBA or NBAP’s rights,
in and to the NBA Marks and the WNBA Marks, or (z) the
validity, legality or enforceability of this Agreement.
LICENSEE shall not. without NBAP’s specific
authorization, use, during or after the Term, (i) any Licensed
Marks or (ii) any Marks or other material in connection with
the Licensed Marks that are confusingly similar to the
Licensed Marks, and/or that relate or refer to any Licensed
Mark, Member Team or event or activity involving the NBA, the
WNBA or a Member Team.
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(a)
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Assistance
in Protecting Marks: LICENSEE shall cooperate to the fullest extent
necessary to assist NBAP in the protection of the rights of NBAP,
the NBA, the WNBA and their respective Member Teams in and to the
Licensed Marks. Without limiting the effect of the preceding
sentence, if any of LICENSEE’S authorized Third Party
Contributors (as defined in Paragraph 7 below) uses the Licensed
Marks for any unauthorized purpose, LICENSEE shall be responsible
for, and shall cooperate fully and use its best efforts to stop,
such unauthorized use.
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(b)
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Ownership of Other Intellectual Property: LICENSEE
acknowledges that NBAP and/or the Member Teams are the exclusive
owners of all variations of the Licensed Marks and all designs or
graphics that incorporate any aspect of the Licensed Marks. Any
intellectual property rights in the Licensed Marks that may accrue
to LICENSEE shall inure to the benefit of NBAP and shall be
assigned to NBAP upon its request.
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3
Any
copyright, trademark, service mark or other intellectual
property right used, created, developed or procured by or on
behalf of LICENSEE with respect to or involving (i) any
Licensed Product or (ii) the Licensed Marks, derivations or
adaptations of the Licensed Marks or (iii) any word, symbol or
design which uses or is similar to the Licensed Marks so as to
suggest association with or sponsorship by the NBA, the WNBA,
one of their respective Member Teams or any of their
affiliates, is hereby assigned, or in the case of rights not
yet assignable, shall be assigned to NBAP, and upon
NBAP’s request, LICENSEE shall, at its sole expense,
apply for registration of such intellectual property right in
the name of NBAP or its designee. To the extent such
intellectual property right was not created by LICENSEE,
LICENSEE shall take all necessary steps to secure an
assignment to NBAP of such intellectual property, including,
but not limited to, any copyright from a creator of any
original work of authorship that does not constitute a work
made for hire. Any copyright, trademark, service mark or other
intellectual property right affecting or relating to the
Licensed Marks procured in the name of LICENSEE or applied for
in the name of LICENSEE is hereby assigned to NBAP. LICENSEE
shall supply NBAP with any necessary supporting materials
required to obtain registrations of any intellectual property
right required to be assigned to NBAP under this
Agreement.
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(c)
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Designs: All designs of the Licensed Products, including any
packages, containers or tags, shall be subject to NBAP’s
prior written approval and shall be used solely in furtherance of
this Agreement, and such designs will not be used in any other
respect by LICENSEE nor will LICENSEE permit any third party to use
such designs, except as may be authorized by NBAP. Notwithstanding
the foregoing, NBAP acknowledges that LICENSEE may hold other
licenses pursuant to which LICENSEE manufactures, distributes or
sells products similar in design to the Licensed Products, and
nothing in this Agreement is intended to prohibit LICENSEE’S
manufacture, distribution or sale of such products not bearing or
relating to the Licensed Marks.
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(d)
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Notices, Labeling and Records : NBAP may from time-to-time
designate such copyright, trademark or service mark notices
(including the form, location and content of such notices) that
LICENSEE shall cause to appear on or within each Licensed Product
sold, by means of a tag, label, imprint or other appropriate
device, in every instance in which any Licensed Mark is used. The
following applicable, general notice (in the English language and
the language of the country where the Licensed Products will be
sold) must be included on a label, the packaging material or on a
separate slip of paper packed with or attached to the Licensed
Product:
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“The
NBA and individual NBA member team identifications reproduced
on this product are trademarks and copyrighted designs, and/or
other forms of intellectual property, that are the exclusive
property of NBA Properties, Inc. and the respective NBA member
teams and may not be used, in whole or in part, without the
prior written consent of NBA Properties, Inc. © 200_ NBA
Properties, Inc. All rights reserved.”
“The
WNBA and individual WNBA team identifications reproduced on
this product are trademarks and copyrighted designs, and/or
other forms of intellectual property, that are the exclusive
property of WNBA Enterprises, LLC and may not be used, in
whole or in part, without the prior written consent of WNBA
Enterprises, LLC. © 200_ WNBA Enterprises, LLC. All
rights reserved.”
LICENSEE
shall: (i) cause all Licensed Products to bear the NBA logo or
WNBA logo on either the article or its packaging in such
place, in such prominence, and in such form as NBAP may
designate from time-to-time, (ii) faithfully comply with and
adhere to NBAP’s mandatory holographic label and hang
tag system, or such other shipment tracking, identification
and anti-counterfeiting systems, packaging tags and labels
that NBAP may establish from time-to-time, (iii) unless
approved in writing by NBAP, not cross-license or otherwise
use other licensed properties or other Marks with the Licensed
Products or Licensed Marks and (iv) keep appropriate records,
and advise NBAP, of the date when each of the Licensed
Products is first placed on sale or sold in
each country of the Territory and the date of first use in
each country of each different Licensed Mark on the Licensed
Products and any promotional or packaging materials,
5.
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5. INDEMNIFICATIONS
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(a)
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LICENSEE Indemnification ; LICENSEE shall be solely
responsible for, and shall defend, hold harmless and indemnify
NBAP, NBA Media Ventures, LLC (“NBAMV”), the NBA, the
WNBA, their respective Member Teams and the National Basketball
Players Association (“NBPA”), and their respective
affiliates, owners, directors, governors, officers, employees and
agents (collectively “NBA Parties”) against any claims,
demands, disputes (including disputes arising out of or in
connection with this Agreement between the parties hereto) causes
of action or damages, including attorneys’ fees
(collectively, “Claims”), arising out of an allegation
relating or referring to: (i) any act or omission of LICENSEE, any
Third Party Contributor (as defined In Paragraph 7 below) or any
other entity acting on LICENSEE’S behalf (whether or not
approved by NBAP pursuant to this Agreement), (ii) any breach of
this Agreement by LICENSEE, any Third Party Contributor or any
other entity acting on LICENSEE’S behalf (whether or not
approved by NBAF pursuant to this Agreement), (iii) the
manufacture, distribution, sale, possession or use of any Licensed
Product (including, but not limited to, claims relating to (w) any
alleged defect (whether obvious or hidden and whether or not
present in any sample approved by NBAP) in a Licensed Product or in
any packaging or other materials, (x) any alleged injuries to
persons or property, (y) any infringement of any rights of any
person or entity or (z) the alleged failure by LICENSEE, any Third
Party Contributor or any other entity acting on LICENSEE’S
behalf (whether or. not approved by NBAP pursuant to this
Agreement), to comply with applicable laws, regulations, standards,
the terms of the NBAP vendor compliance guide, as amended from time
to time by NBAP (the “Compliance Guide”), or the terms
of the NBAP Code of Conduct, as amended from time to time by NBAP
(the “Code of Conduct”), attached hereto as
Exhibit
A or (iv) any claim that any Licensed Product or element
thereof violates or infringes upon the trademark, copyright or
other intellectual property rights (including trade dress and
rights of publicity and privacy) of a third party, provided
LICENSEE is given prompt written notice of any such Claim. NBAP
shall have the option to undertake and conduct the defense of any
such Claim at LICENSEE’S expense. In the event NBAP has opted
to allow LICENSEE to undertake and conduct the defense of any Claim
in any instance to which the foregoing indemnities pertain, NBAP
shall approve of the counsel who shall
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