Exhibit 10.60

 

TRADEMARK LICENSE AGREEMENT

This Agreement is made and entered into on the 22nd day of October 1986 between Wizard Co., Inc., a corporation of the State of Delaware, with its principal place of business at 900 Old Country Road, Garden City, Long Island, New York 11530 (hereafter referred to as “Licensor”), and Avis Europe plc, an English company, registered number 1995619, with its principal place of business at Avis House, Park Road, Bracknell, Berkshire, RG12 2EW, United Kingdom (hereafter referred to as “Licensee”).

RECITALS

WHEREAS, Licensor holds all right, title and interest in the trademarks and service marks, and the goodwill symbolized by such trademarks and service marks, as well as all related registrations and applications, as listed in Appendix I attached to this Agreement and made a part hereof;

WHEREAS, Licensee desires to use the trademarks and service marks listed in Appendix I in connection with the goods and services stated in Appendix II; and

WHEREAS, Licensor desires to obtain from Licensee an initial royalty payment representing the present value of the rights to be provided to Licensee by Licensor over the term of this Agreement, plus certain other future royalties as provided herein;

NOW, THEREFORE, in consideration of the mutual agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

ARTICLE I

 

1.	DEFINITIONS

Whenever used in this Agreement, unless otherwise indicated, the terms quoted below shall have the meaning ascribed to them in this Article I.

 

1.1

“Alternate Products and Services” shall mean any of the goods or services listed in Appendix II, Part II, until and unless the same shall be deemed Licensed Products and Services. Alternate Products and Services shall not include any goods or services of any affiliate of Licensor offered under or in connection with marks other than the Licensed Marks.

 

1.2

“Licensed Territory” shall mean that part of the world bounded to the west of the Greenwich Meridian by a line running from the north pole to the south pole along 30 degrees of Longitude (but including that part of the Azores and Greenland which lies to the west of such line) and to the east of the Greenwich Meridian by a line running from the north pole to the south pole along 60 degrees of Longitude (but including that part of the U.S.S.R. and Iran which lies to the east of such line) but excluding the Republic of France, Madagascar and the continent of Africa west of the Suez canal and the Red Sea.

 

1.3

“Licensed Marks” shall mean all trademarks and service marks and related registrations and applications listed in Appendix I and, where the context so admits, additional trademarks and service marks that the parties add thereto by mutual agreement and the goodwill attached to such marks, but shall exclude any trademarks and service marks and related registrations and applications which have been assigned to Licensee pursuant to Section 10.1 and such exclusion shall continue until such time (if any) as they shall have been reassigned pursuant to Section 10.5.

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1.4	“Licensed Products and Services” shall mean any of the goods or services listed in Appendix II, Part I, and any Alternate Products and Services deemed Licensed Products and Services pursuant to Section 2.12.

 

1.5	“Sublicensees” shall mean persons or entities who are licensed by Licensee or by Sublicensees to use the Licensed Marks in connection with the sale or distribution of the Licensed Products and Services.

ARTICLE II

 

2.	GRANT OF LICENSE

 

2.1

Subject to the terms and conditions set forth in this Agreement, Licensor grants to Licensee the exclusive right to use the Licensed Marks solely in connection with the sale or distribution of the Licensed Products and Services, and Licensee accepts this license subject to the following terms and conditions.

 

2.2	The license hereby granted extends only to the Licensed Territory.

 

2.3

Licensee may sublicense the rights granted within the Licensed Territory provided that each Sublicensee enters into an agreement (a “Sublicense Agreement”) with the Licensee or its Sublicensee incorporating terms provided for in Section 2.9 hereof. This right to sublicense is personal to Licensee and is granted hereunder only to the named Licensee and to Sublicensees licensed directly by Licensee. Licensee shall promptly notify Licensor in writing of the name and address of all Sublicensees and shall promptly provide Licensor with copies of all Sublicense Agreements between Licensee or any Sublicensee and such Sublicensees.

 

2.4

Licensee recognizes the value of the goodwill associated with the Licensed Marks and acknowledges that the Licensed Marks and all rights in them and the goodwill pertaining to them throughout the world belong exclusively to Licensor, and that the Licensed Marks have secondary meaning in the trade and to customers and purchasers and prospective customers and purchasers of the Licensed Products and Services.

 

2.5

Licensee agrees that it will not, and will use its best efforts so that its Sublicensees will not, during the term of this Agreement (a) do anything either by an act of omission or commission which might impair, jeopardise, violate or infringe the Licensed Marks; (b) claim adversely to Licensor or anyone claiming through Licensor any right, title or interest in and to any of the Licensed Marks in the Licensed Territory, or anywhere else in the world; (c) misuse or harm or bring into dispute the Licensed Marks; (d) register or apply for registration in the United States, any state thereof, or anywhere else in the world, of any of the Licensed Marks or any other mark which is, in Licensor’s reasonable opinion, the same as or confusingly similar to any of the Licensed Marks. Licensee further agrees that it will not, and will use its reasonable efforts so that its Sublicensees will not, after this Agreement has terminated, perform any of the actions set forth in (a) through (d) above.

 

2.6

Licensee agrees that its use and the use by its Sublicensees of the Licensed Marks shall inure to the benefit of Licensor, and neither Licensee nor its Sublicensees shall at any time acquire any rights in the Licensed Marks. Any application to register the Licensed Marks or any mark confusingly similar to any of the Licensed Marks,

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2.7

Licensee shall execute, and shall use its best efforts to cause any Sublicensee to execute, any documents deemed reasonably necessary by Licensor to obtain protection for the Licensed Marks or to maintain their continued validity and enforceability based upon the use thereof by the Licensee or any Sublicensee.

 

2.8

Licensee agrees that it and, to its best efforts, its Sublicensees shall use the Avis name and related trademarks in connection with such Licensed Products and Services as are provided by it, and shall not use any other trademark or service mark in combination with the Licensed Marks without the prior written consent of Licensor, which consent shall not be unreasonably withheld.

 

2.9

Each Sublicense Agreement shall provide that (a) the License granted thereby does not extend beyond the Licensed Territory or some part thereof, (b) the Licensed Marks covered thereby may be used solely in connection with the sale or distribution of Licensed Products and Services, (c) the Sublicensee agrees to maintain the quality standards established by Licensor and described in Article V of this Agreement, to preserve and protect the Licensed Marks and to provide information and assistance to Licensee with respect to matters as to which Licensee must inform and assist Licensor under this Agreement, (d) the. Sublicense Agreement shall terminate not later than the expiry of this Agreement, and (e) the Sublicensee shall observe terms having the same effect as those contained in Sections 2.5, 2.6, 2.7, 2.8 and 8.10 hereof. The Sublicense Agreement shall also provide for the grant of rights to use the Avis System pursuant to the License Agreement of even date herewith (the “System License Agreement”) between Avis Rent A Car System, Inc. (“ARACS”) and Licensee, and for other related rights, but shall not grant to the Sublicensee any rights with respect to the Licensed Marks which exceed the rights granted by Licensor to Licensee by this Agreement. At the request of Licensor, the Sublicense Agreement or an additional appropriate agreement between the Licensor or the sublicensor and the Sublicensee shall be entered into in form suitable for recording as a registered user or similar agreement. Licensee is free to determine all other terms of the Sublicense Agreement provided that the same are not in conflict herewith and with the System License Agreement.

 

2.10

Licensor shall take all necessary action, as requested by Licensee, to obtain protection for the Licensed Marks by registration thereof, shall maintain all the Licensed Marks in force, throughout the Licensed Territory, and shall execute any documents deemed reasonably necessary for such purpose by Licensee. All such action shall be taken at the sole cost and expense of Licensee, except to the extent that the Licensed Marks are being used by Licensor in the Licensed Territory with respect to Alternate Products and Services. Licensee’s obligation hereunder to reimburse costs and expenses of Licensor shall be limited to obligations, evidence of which is provided to Licensee, incurred by Licensor to third parties, and shall not include direct staff costs and overhead of Licensor.

 

2.11

Nothing in this Agreement shall prevent either party, its licensees or sublicensees from using the Licensed Marks in activities conducted pursuant to the Joint Promotion Agreement dated the date hereof between Licensee and ARACS outside their respective territories for the purpose of identifying, advertising or promoting their activities as conducted within their respective territories.

 

2.12

If there shall be proposed at any time the distribution or sale by Licensee of any of the Alternate Products and Services in the Licensed Territory using the Licensed Marks, such Alternate Products and Services shall be deemed Licensed Products and Services, provided that at such time the parties shall agree upon (a) a royalty in an amount equal to that then being customarily paid for similar newly-issued licenses in connection with similar products and services to be paid by Licensee to Licensor in connection with such uses of the Licensed Marks, and (b) standards and systems for the distribution and sale of

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such Alternate Products and Services appropriate to and consistent with the Licensed Marks and their protection and enhancement as provided in the Guidelines. If Licensee shall not wish to license the Licensed Marks for use in connection with such Alternate Products and Services, Licensor shall thereafter be free to license the Licensed Marks to others for such use. If Licensor and Licensee shall be unable to agree to the ~terms of the use of the Licensed Marks for Alternate Products and Services after good faith bargaining within a reasonable period of time, the matter shall be referred to review and arbitration under the terms of the Review and Arbitration Agreement between the parties and others dated [ ] (the ‘Review Agreement. “) Licensor does not warrant by any provision of this Agreement that it has the power to grant the right to use the Licensed Marks in connection with any of the Alternate Products and Services.

 

2.13

Notwithstanding Section 2.12, if Licensor or any of its affiliates which are otherwise entitled to use the Avis name are at the time of a proposal under Section 2.12 engaged in the distribution and sale of such Alternate Products and Services anywhere in the world, and intend to engage in the same directly in the Licensed Territory and Licensee neither is then engaged in nor has carried out a detailed feasibility study or other substantial action sufficient to demonstrate that it has a firm present intention to engage in, such distribution and sale, Licensor shall not be obligated to license the Licensed Marks to Licensee for use in connection with such Alternate Products and Services, and Licensor or its affiliates can distribute and sell such Alternate Products and Services using the Licensed Marks. Licensor will give reasonable notice to Licensee of the intention of it or its affiliates to so use the Licensed Marks. If Licensor shall thereafter decide to license the Licensed Marks for use in connection with Alternate Products and Services to which the preceding sentence is applicable, other than Licensed Marks which Licensor is free to license to others pursuant to Section 2.12, prior to entering into any license agreement with another person, Licensor shall offer to Licensee for a period of ninety (90) days the opportunity to enter into such an agreement on substantially the same terms. Any dispute arising under this Section 2.13 shall be referred to review and arbitration under the terms of the Review Agreement.

 

2.14

Licensee shall not use the Licensed Marks in connection with the sale or distribution of any products or services other than the Licensed Products or Services, but nothing in this Agreement shall prevent Licensee from engaging in the sale or distribution of any such other products or services in such a manner as not to use or adversely affect the Licensed Marks.

 

2.15

Until the expiration of a period of six (6) months from the date of execution of this Agreement, neither Licensor nor any of its affiliates otherwise entitled to use the Avis name shall engage in or license the distribution and sale of any products or services in the Licensed Territories, other than (a) products or services listed on Appendix III, Part I, (b) products or services listed on Appendix III, Part II with respect to which Licensor and Licensee have bargained in good faith to reach an agreement under which Licensee participates with Licensor on a reasonable basis in the costs and benefits of such distribution and sale, and (c) other products or services mutually agreed to by Licensor and Licensee.

 

2.16

Nothing in this Agreement shall prevent Licensee from accepting from ARACS the assignment of certain license Agreements with sublicensees predating this Agreement or acting thereunder in accordance with the existing terms of such agreements and the related assignment and assumption agreements between Licensee and ARACS.

 

2.17	Nothing in this Agreement shall prevent Licensor, its licensees or sublicensees from engaging in the distribution and sale of Alternate Products and Services without using any of the Licensed Marks in connection therewith.

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ARTICLE III

 

3.	GENERAL INDEMNIFICATION PROVISIONS

 

3.1	All claims for indemnification under this Agreement in respect of any third party claim shall be asserted and resolved as provided in this Section 3.

 

3.2

In the event that any third party claim or demand (a “Claim”) for which either party (“Indemnitor”) may be liable under this Agreement to indemnify the other party (“Indemnitee”) is asserted against or sought to be collected from Indemnitee, Indemnitee shall as promptly as practicable inform Indemnitor in writing of the Claim, and shall provide such details of the Claim (including amount, if known) and any documents relating thereto as are then available to it (the “Claim Notice”). The failure on the part of Indemnitee to give a Claim Notice promptly shall not relieve the Indemnitor of any indemnification obligations hereunder unless, and then only to the extent that, the Indemnitor is materially prejudiced thereby.

 

3.3

The Indemnitor shall have 15 days from delivery of the Claim Notice (the “Notice Period”) to inform Indemnitee whether or not it desires to conduct the defence of the Claim, in which case Indemnitor shall, at its sole cost and expense, have the right to defend Indemnitee by appropriate proceedings and by counsel reasonably acceptable to Indemnitee and shall have the sole power to direct and control such defence; provided that Indemnitee may participate in such defence at its sole cost and expense.

 

3.4

Indemnitee shall not settle a Claim for which it is indemnified by Indemnitor unless Indemnitor does not defend Indemnitee against such Claim, except that Indemnitee shall have the sole right to defend, settle or compromise a Claim with respect to which it has waived its right to indemnification pursuant to this Agreement.

 

3.5	If Indemnitor does not serve notice under Section 3.3 during the Claim Period, Indemnitee may take such steps as are reasonable to defend itself against a Claim and to settle or compromise such Claim.

 

3.6

Unless Indemnitee agrees (such agreement not to be unreasonably withheld) Indemnitor may settle or compromise actions and consent to entry of judgments only on terms providing for the delivery of the claimant or plaintiff of a duly executed written unconditional release of Indemnitee from all liability in respect of such action.

 

3.7	During the Notice Period, Indemnitee may, without prejudicing its right to indemnification, take reasonable actions to preserve all and any rights with respect to the subject matter of a Claim notified to Indemnitor.

 

3.8	Indemnitee will provide all assistance and access to all documents and personnel reasonably required by Indemnitor in connection with the Defence of any Claim.

ARTICLE IV

 

4.	INDEMNIFICATION BY LICENSEE

 

4.1

Licensee shall indemnify and hold Licensor harmless from and against any and all damages, claims, losses, costs and expenses (including reasonable attorneys’ fees) arising out of, caused by or connected directly or indirectly with any breach or non-performance by Licensee of any of its obligations hereunder. The foregoing shall not limit or negate any rights of indemnity Licensor may have from Licensee under any other agreement between them.

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4.2	Subject to Article III, the indemnifications set forth in this Article IV shall survive the termination of this Agreement.

ARTICLE IV

 

5.	QUALITY CONTROL

 

5.1

Licensee agrees that all artwork, designs, labels, tags, brochures and other advertisements and promotional material employing the Licensed Marks, whether used in radio, television, or print media, and measures taken by Licensee and the Sublicensees to identify themselves as licensees of Licensor, shall be in accordance with written guidelines (“Guidelines”) furnished from time to time by Licensor to Licensee, which Guidelines may be updated or modified at any time by Licensor during the term, including renewals, of this Agreement. The style and manner in which the Licensed Marks are used in advertisements or other promotional materials used by Licensor and Licensee or any subsidiary with the approval of Licensor prior to the date of this Agreement are deemed Acceptable Uses of the Licensed Marks. Licensee and any Sublicensee shall have the right to use the Licensed Marks in advertisements or other promotional materials in a manner consistent in all material respects with such Acceptable Uses and the Guidelines so as to give the Licensed Marks full and favourable prominence and publicity. Any changes in the Acceptable Uses or in the Guidelines may only be made by Licensor on prior notice to Licensee, providing for transition periods and rules for phase out of obsolete materials which shall be reasonable in light of the cost and effort required of Licensee and the Sublicensees to effect such changes. Licensee and all Sublicensees shall submit to Licensor for Licensor’s written approval any advertisement or promotional material which uses the Licensed Marks in a style or manner that is significantly different from the Acceptable Uses or the Guidelines. Licensee further agrees that representative samples of other uses of the Licensed Marks by Licensee or any Sublicensee shall be submitted to Licensor upon request. Should Licensor at any time reasonably object to any advertisement or other promotional material of the Licensee or Sublicensees as being in violation with the Acceptable Uses or the Guidelines, Licensee shall, at its own expense, cure such violations promptly.

 

5.2	Licensee agrees that the Licensed Products and Services sold, distributed or provided by Licensee and the Sublicensees will be of such quality as to protect the goodwill of the Licensed Marks; and will be provided, sold and/or distributed in accordance with all applicable laws.

 

5.3

Licensee agrees that Licensor and/or its designated agents or representatives may enter the premises of Licensee or any of its Sublicensees at any reasonable time to inspect the premises and observe the conduct of business and rendering of services to insure compliance with the quality standards outlined in this Agreement.

 

5.4

Licensee agrees that in connection with each Licensed Product or Service sold or offered by it or its Sublicensees and all tags, labels, containers, packaging, advertising, promotional or display materials containing or referring to the Licensed Marks, Licensee and its Sublicensees shall where and to the extent necessary under local law to protect the status of the Licensed Marks apply the appropriate legend indicating the status of the Licensed Marks and the fact (if it be the case) that the marks are registered.

 

5.5	Licensee and Licensor agree to monitor the activities of their licensees and sublicensees (including sublicensees thereof) to insure compliance with the standard worldwide Guidelines established by Licensor and the requirements of this Article V of the Agreement.

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