LICENSE AGREEMENT
This license agreement dated January 23, 1995 (hereinafter referred to as
"Agreement"), is between the Family of Ingrid Bergman (hereinafter referred to
as "Licensor"), located c/o Curtis Management Group, 1000 Waterway Blvd.,
Indianapolis, Indiana 46202 and Artisan House, Inc. (hereinafter referred to as
"Licensee") located at 1755 Glendale Blvd., P.O. Box 26566, Los Angeles,
California 90026.
WITNESSETH:
WHEREAS, Licensor is the proprietor of the right of publicity associated
with the name, likeness, voice, signature and visual representation of the late
Ingrid Bergman (hereinafter referred to as "Property").
WHEREAS, Licensee desires to utilize said Property upon the terms and
conditions set forth below.
NOW THEREFORE, in consideration of the mutual promises and undertakings
herein contained and for other good and valuable consideration, intending to be
legally bound, the parties agree as follows:
1. Definition of Terms.
(a) "Consumer Sales" shall mean sales of Goods by Licensee directly or
through its authorized wholesalers, representatives or distributors to retail
establishments for eventual resale to the consumer.
(b) "Mail Order Sales" shall mean sales of Goods by Licensee directly to
the consumer through direct mail solicitation or catalogues.
(c) "Shopping Network Sales" shall mean sales of Goods by Licensee directly
or through it's authorized representatives, wholesalers and distributors through
media such as infomercials; local, cable, wireless or fiber optic television
shopping channels, on-line shopping, or otherwise.
(d) "Original Term" shall mean the period beginning on January 23, 1995 and
ending on December 31, 1995.
(e) "Contract Year" shall mean the period commencing on January 1st and
ending on December 31st of each year of this Agreement.
(f) "Premium" shall mean any article used for the purpose of: increasing
the sale of another item; promoting or publicizing any product or service;
fund-raising or as giveaways; to motivate a sales force, merchant, consumer, or
any other person to perform a specific act.
2. Grant of License.
(a) Subject to the limitations set forth in paragraph 2(c) below and the
other conditions of this Agreement Licensor hereby grants to Licensee the
non-exclusive right to use the Property on the following merchandise
(hereinafter referred to as "Goods"):
Casablanca metal wall sculpture with Humphrey Bogart with an approximate
retail price of $300
(b) Market and Territory: Licensee shall only make sales of Goods as
described in paragraph 1(a, b, c & f). The license hereby granted extends only
to the United States, Canada, Mexico, Australia, Singapore, Hong Kong, Taiwan,
Thailand and Japan (hereinafter "Territory").
3. Advance, Guarantee, Royalty, Renewal.
(a) Licensee agrees to pay one thousand dollars ($1,000) as a
non-refundable advance against royalties earned through December 31, 1995
payable upon execution of this Agreement.
(b) Licensee shall recover within the first year (1995) of this Agreement
the advance royalty payment by offsetting royalties earned against said advance
until the advance is recouped and shall thereafter make the royalty payments to
Licensor as set forth herein.
(c) Licensee agrees to pay royalties to Licensor for each unit of the Goods
as follows:
$3.75 per unit of the Goods, or five percent (5%) of Licensee's "standard
wholesale price", whichever is greater, for the Goods covered by this Agreement
in United States dollars computed upon the total number of units each Good
shipped or otherwise distributed by Licensee or any of its affiliated,
associated (including reps and/or distributors) or subsidiary (hereinafter
"Related") companies, without deductions for bad debt, cost of shipping, cost of
packaging, advertising or promotional expenses, cash or volume discounts or
other costs. A deduction of not more than 5% may be taken for actual certified
returns.
The term "standard wholesale price" as used herein shall mean the highest
price customarily charged by Licensee, or by any of its Related companies, to
unaffiliated third parties for retail sale of the Goods described in paragraph
2, hereof. Royalties at the stated rate shall be due and payable on all units of
Goods shipped or otherwise distributed by Licensee to its related companies or
to a third party or to Licensee from its related companies and irrespective of
the actual price charged for such distributed Goods.
(d) Except as otherwise provided in the following paragraphs, upon
completion of the Original Term or any subsequent renewal term (as herein
provided), this Agreement will automatically be extended for additional one year
terms, subject to a $1,000 minimum annual guarantee payable prior to the 30th
day of each calendar quarter in minimum equal quarterly installments--if
unearned), unless either party shall give the other not less than ninety (90)
days notice in writing (by confirmed receipt via certified mail, telefax, or
overnight mail) of its intention to not renew this Agreement.
4. Payment and Reporting.
Not later than the thirtieth (30th) day after the close of every calendar
quarter during the Original Term and any extension thereof, and thereafter so
long as any sales are made by the Licensee pursuant to this Agreement, the
Licensee shall furnish to the Licensor a full and complete statement showing the
number of Goods which have been sold by the Licensee and the selling price
thereof during the preceding calendar quarter. An item will be considered to be
sold when it is ordered and then invoiced or shipped, whichever is
sooner. The Licensee shall pay to the Licensor, c/o Curtis Management Group,
1000 Waterway Blvd., Indianapolis, IN 46202, such royalties as the statement
indicates are due the Licensor. All payments shall be made by company check
drawn on U.S. funds payable to "Curtis Management Group". All late payments
shall be subject to a two percent per month (24% annual rate) late charge on
all such outstanding amounts.
5. Ouality.
Licensee acknowledges that if the Goods manufactured and sold by it are of
inferior quality in material and workmanship, the substantial goodwill which the
Licensor has built up and now possesses in the Property will be impaired.
Accordingly, Licensee warrants that the Goods will be of high standard and of
such appearance and quality as shall be reasonably adequate and suited to their
exploitation and best advantage. Licensee shall submit to Licensor finished art
work and/or a facsimile of all Goods to be manufactured, together with its
cartons and containers, including packaging and wrapping material, which shall
be approved in writing by the Licensor before the Goods are advertised,
distributed or sold. Any article submitted and not disapproved within fourteen
(14) days of their receipt of same by Licensor shall be deemed to have been
approved. After samples of the Goods have been approved pursuant to this
paragraph, Licensee shall not depart therefrom without written consent from
Licensor. In the event there is a departure from the approved sample of the
Goods made or distributed by Licensee, or in the event there is an occurrence
connected with the Goods which reflect unfavorably upon Licensor, the Licensor
shall have the right, in the reasonable exercise of its sole discretion, to
withdraw its approval of such Goods, at which time this Agreement shall
automatically terminate with respect to such Goods. Thereupon, Licensee shall
cease the use of the Property in the sale, advertising, distribution or use of
such Goods immediately upon notice from Licensor; and within ten (10) days
thereafter shall pay all amounts due to Licensor hereunder. If there are other
Goods under this Agreement not covered or affected by the foregoing two
sentences of this paragraph, this Agreement shall remain in full force and
effect as to those other Goods.
6. Advertising.
All advertisements and promotional material which Licensee intends to use
to promote Goods shall be submitted to Licensor for its written approval prior
to publication. Licensor shall have fourteen (14) days from the date of receipt
of said material in which to approve or disapprove it, such approval not to be
unreasonably withheld.
7. Samples.
Licensee shall supply Licensor with five (5) samples of each of the
completed Goods, promptly after completion. Licensor shall have the right to
purchase additional samples for its own personal use at wholesale.
8. Books and records.
The Licensee shall keep full, complete and accurate books of account and
records covering all transactions relating to the subject matter of this
Agreement. Licensor through its authorized representative, shall have the right
to examine such books of account and records and other documents and material in
Licensee's possession or under its control insofar as they relate to the
manufacture and sale of Goods. The Licensor shall have free and full access
there to at any reasonable hour of the day during which the Licensee's offices
are open and in any reasonable manner. In the event an examination of Licensee's
books and/or records reveals a deficiency in royalties paid to Licensor of more
than three
hundred dollars ($300.00), Licensee shall pay all expenses related to the
performance of the examination and shall immediately pay the deficient amount to
Licensor. Upon its discretion, Licensor may require that Licensee furnish
financial reports of Licensee's financial status.
9. Goodwill.
Licensee acknowledges that the Property is unique and original and that the
Licensor is the owner thereof. Licensee shall not, during the Original Term of
the Agreement or at any time thereafter, dispute or contest, directly or
indirectly, the Licensor's ownership of the Property; the Licensor's exclusive
right (subject to this license) to use the Property; the validity of any of the
copyrights or trademarks pertaining thereto or the Licensor's ownership thereof,
nor shall the Licensee assist or aid others in doing so. At the Licensor's
request the Licensee shall cooperate with the Licensor in preventing or stopping
any infringement or unfair use by any third party of the Goods or Property. The
Licensor shall determine what action, if any, it elects to pursue in regard to
preventing or stopping any infringement or unfair use by any third party of the
Goods or Property and shall be under no obligation whatsoever to take action at
Licensee's request.
10. Copyright, Etc.
(a) The Licensor shall apply to register trademarks and claims to copyright
for any design incorporating the Property, and apply for design patents on the
Goods and/or the Property as may be reasonably necessary, in the Licensor's sole
discretion, to protect the Licensor's interests. All applications for
registration of claims to copyright, where applicable, shall identify the
Licensor as the copyright proprietor; all applications to register trademarks
shall identify the Licensor as the trademark owner; and all applications for
design patents shall correctly identify the inventor and shall be assigned to
the Licensor at no additional cost.
(b) If Licensor requires any specimens of the Goods, or any photographic
reproductions of the same, for use in filing copyright claims, where applicable,
or trademark or design patent application, Licensee shall provide the Licensor
with the same at Licensee's expense.
(c) At Licensor's request, the Licensee shall execute assignments in favor
of Licensor of any and all copyrights, trademarks or other intellectual property
rights of whatever kind relating to the Goods and/or the Property without
further consideration and Licensee will upon the request of Licensor assign to
the Licensor any rights, if any, which Licensee may have acquired through its
use of the Property.
(d) Licensee warrants that it will provide a legally sufficient copyright
notice on the Goods and packaging, wrapping, advertising and promotional
material bearing any reproductions of the Goods or the Property, in the
following format:
TM/(C) 1994 Family of Ingrid Bergman under license authorized by
Curtis Management Group, Indianapolis, Indiana, 46202 USA
(e) Licensee warrants that it will provide a legally sufficient trademark
notice by prominently displaying the letters TM (or the sign (R) if so specified
by the Licensor) against every occurrence of Property on the Goods and against
every occurrence of the Property on packaging, wrapping,
advertising and promotional material for the Goods.
(f) Licensee warrants that it will take such precautions as are necessary
to insure that any promotional materials for the Goods which utilize the
Property made by its customers bear the Licensor's copyright and/or trademark
notice as provided in paragraph 10 (d & e).
11. Right of Termination.
Without prejudice to any other rights, Licensor shall have the right to
terminate this Agreement, or a portion thereof, upon written notice to Licensee,
at any time that the following may occur:
(a) If full and regular production and aggressive marketing has not
commenced within three (3) months from the date of this Agreement. Any
individual categories of Goods granted in paragraph 2(a) not in distribution
throughout the Territory within five (5) months are subject to revocation of
production rights. If the Goods are out of production for more than three
consecutive months, Licensor may terminate the production rights for the
particular category of Goods, that particular Good in a particular territory, or
terminate the entire Agreement at Licensor's sole discretion.
(b) If Licensee shall fail to make any payment due hereunder or to deliver
any of the statements herein referred to, and if such default shall continue for
a period of five (5) days after written notice of such default is sent by
Licensor to Licensee.
(c) If Licensee is involved in any act of bankruptcy or insolvency, then
Licensor shall have the right to terminate this Agreement. Notwithstanding the
foregoing, Licensor shall, at any time during the term of this Agreement, have
the option of demanding an assurance from Licensee of Licensee's on-going
ability to perform the provisions of this Agreement. Unless reasonable and
adequate assurance is received by Licensor from Licensee concerning Licensee's
ability to perform, Licensor shall have the right to terminate this Agreement.
12. Sales after Expiration.
Upon expiration of this Agreement, Licensee shall be permitted to sell or
ship its remaining inventory of Goods for a period of ninety (90) days following
the expiration date of this Agreement. Upon termination of this Agreement,
Licensee shall not be permitted to sell or ship its remaining inventory of Goods
following the termination date of this Agreement. The Licensee shall not,
without prior written consent of the Licensor, sell or ship any such remaining
Goods as distress merchandise, or to unaffiliated third parties for eventual
resale, or otherwise than in the ordinary course of business. Licensee shall not
stockpile inventory prior to expiration or termination of this Agreement for
purposes of sale or shipment thereafter. For purposes of this Agreement, a
distress sale shall be defined as one in which the merchandise is sold for less
than fifty percent (50%) of the normal wholesale selling price.
13. Rights reserved by Licensor.
Any and all rights in and to said Property which are not expressly granted
to the Licensee are hereby reserved by the Licensor. Any one or more of such
reserved rights may be exercised or enjoyed by the Licensor, directly or
indirectly, at any and all times.
14. Licensor's Claim.
Whatever claim Licensor may have against Licensee hereunder for royalties
and/or for damages shall become a first lien upon all of said Goods manufactured
or produced pursuant to the
terms of this Agreement in the possession or under the control of Licensee or
its agents upon the expiration or termination of this Agreement.
15. Remedies.
All specific remedies provided for in this Agreement shall be cumulative
and shall not be exclusive of one another or of any other remedies available in
law or equity. Failure of the Licensor to insist upon strict performance of any
of the covenants or terms hereof to be performed by the Licensee shall not be
construed to be a waiver of any such other covenants or terms. Should Licensor
be forced to initiate legal action due to Licensee's breach hereof, then all
legal costs incurred therein by Licensor shall be recoupable by Licensor.
16. Licensee's Indemnification & Product Liability Insurance.
Licensee hereby agrees to be solely responsible for, to defend and
indemnify Licensor and its respective officers, agents and employees, and to
hold each of them harmless from any claims, demands, causes of action or
damages, including reasonable attorney's fees arising out of the distribution
or use of the Goods. Licensee will obtain and maintain product liability
insurance at least in the amount of $1,000,000 with a deductible of not more
than $10,000 (certificate of which shall be furnished to Licensor) providing
adequate protection for Licensor and its respective officers, agents, and
employees against any claims, demands, arising out of any alleged defects in
Goods or any use thereof. Such insurance policy shall provide that it may not be
cancelled without at least ten (10) days written notice to Licensor.
17. Licensor's Warranty.
Licensor represents and warrants to Licensee that it has the power to enter
into this Agreement. Should any third party assert a claim, demand, or cause of
action against Licensee contesting Licensor's ownership of the Property in
relation to Licensee's use of the Property under this Agreement, Licensor shall
have the option to undertake and conduct the defense of any such claim, demand
or cause of action. Licensee may, but shall not be obligated to join in such
defense and be represented by its own counsel. If Licensee elects to be
represented by its own counsel, Licensee will pay its own attorney's fees.
Licensee agrees that while it may counsel Licensor concerning the disposition of
any such action, Licensor shall have the sole and final decision concerning the
disposition of any action which involves the Property and has the right to order
the Licensee to dispose of inventory and all works in progress as it sees fit.
Licensor shall also have the right, in its discretion, to institute and
prosecute lawsuits against third persons for infringement of the rights licensed
in this Agreement. Any lawsuit shall be prosecuted solely at the cost and
expense of the Licensor and all sums recovered in any such lawsuits, whether by
judgement, settlement or otherwise, shall be retained solely and exclusively by
the Licensor. Upon request of the Licensor, the Licensee shall execute all
papers, testify on all matters, and otherwise cooperate in every way necessary
and desirable for the prosecution of any such lawsuit. The Licensor shall
reimburse the Licensee for all reasonable expenses incurred as a result of such
cooperation.
18. No Partnership or Joint Venture.
This Agreement does not constitute and shall not be construed as
constituting a partnership, agency, or joint venture between Licensor and
Licensee. The Licensee shall have no right to obligate or bind Licensor in any
manner whatsoever and nothing herein contained shall give or is intended to give
any right of any kind to any third party.
19. No Assignment.
The license hereby granted is and shall be personal to the Licensee and shall
not be assignable
by any action of the Licensee or by operation of the law, and any attempt at
such assignment shall be null and void. The Licensee shall have no right to
grant any sublicenses. This Agreement shall inure to the benefit of and shall be
binding upon Licensor's successors and assigns.
20. Notice.
Whenever notice is required to be given under this Agreement, it shall be
deemed to be good and sufficient notice if in writing, signed by an officer or
an authorized agent of the party serving such notice and sent by telegram,
telefax, or mailed by registered or certified mail, to the other party at the
address stated above unless notification of a change of address is given in
writing.
21. Entire Agreement.
This Agreement contains the entire understanding of the parties. There are
no representations, warranties, promises, covenants or understandings other than
those herein contained.
22. Confidentiality.
This Agreement and the contents hereof constitute a confidential business
relationship between the parties. Each panty acknowledges that significant
damage could be done to the other one should the terms of this Agreement become
public knowledge. Both parties agree that they will not reveal the terms of this
Agreement to any third party (excluding agents, attorneys, representatives, and
others with whom they have a legal obligation to disclose) and that they will
exercise reasonable precautions to insure that neither they nor their employees
or agents shall allow the terms of the Agreement to become public knowledge.
23. Disclaimer.
This Agreement in no manner absolves Licensee of its responsibility, if
any, to procure legally sufficient permission from the copyright owner(s) of the
photographs, illustrations, and/or artwork utilized in conjunction with the
manufacture and distribution of the Goods. Licensee agrees to indemnify and hold
harmless Licensor and its agent(s) from any and all claims made by third parties
with respect to copyrighted materials utilized in conjunction with this
Agreement.
24. Construction & Jurisdiction.
(a) This Agreement shall be construed in accordance with the laws of the
state of Indiana.
(b) Nothing in this Agreement is intended to be contrary to the laws of any
country or political subdivision thereof. In the event that any of the
paragraphs or particular terms or conditions set forth within any paragraphs are
held to be unenforceable by a court of record with competent jurisdiction, such
paragraph or particular term of condition therein shall be deemed to be stricken
from this Agreement within the jurisdiction of such court and the Agreement
shall otherwise remain in full force and effect in such jurisdiction and in its
entirety in other jurisdictions.
(c) Notwithstanding any present or future legal decisions in any
jurisdiction, regarding the necessity of Licensee to be licensed hereunder,
Licensee agrees to pay royalties as provided herein for as long as it exploits
the Property.
25. Arbitration and/or Forum Selection Clause.
Both parties acknowledge and consent that any controversy or claim arising
out of or relating to this Agreement, or the breach thereof, shall be settled
either by arbitration in Indianapolis, Indiana or in a court located in the
State of Indiana as follows:
(a) Any controversy or claim arising out of or relating to the Agreement,
or breach thereof, shall be settled by arbitration in Indianapolis, Indiana, in
accordance with the Rules of the American Arbitration Association. The judgment
upon the award rendered by the arbitrator(s) may be entered in any court having
the jurisdiction thereof; and/or
(b) Licensee agrees and consents to venue and jurisdiction within any court
located in the State of Indiana, agreeing that any such court would have
exclusive jurisdiction over any dispute, case or controversy arising under or in
connection with this Agreement, and that such any Indiana court shall be a
proper forum in which to adjudicate such dispute, case or controversy.
The prevailing party in any action above (including arbitration) shall be
allowed to recoup any and all attorney fees, interest and costs therein.
IN WITNESS WHEREOF, the parties hereto have signed by their duly authorized
officers as of the day and year first above written.
"Licensor" "Licensee"
/s/ Isabella Rossellini [Illegible]
- --------------------------------- -------------------------
Isabella Rossellini Artisan House, Inc.
_________________________________
Ingrid (Isotta) Rossellini Aborn
_________________________________
Roberto Rossellini
_________________________________
Pia Lindstrom
(a) Any controversy or claim arising out of or relating to the Agreement,
or breach thereof, shall be settled by arbitration in Indianapolis, Indiana, in
accordance with the Rules of the American Arbitration Association. The judgment
upon the award rendered by the arbitrator(s) may be entered in any court having
the jurisdiction thereof, and/or
(b)Licensee agrees and consents to venue and jurisdiction within any court
located in the State of Indiana, agreeing that any such court would have
exclusive jurisdiction over any dispute, case or controversy arising under or in
connection with this Agreement, and that such any Indiana court shall be a
proper forum in which to adjudicate such dispute, case or controversy.
The prevailing party in any action above (including arbitration) shall be
allowed to recoup any and all attorney fees, interest and costs therein.
IN WITNESS WHEREOF, the parties hereto have signed by their duly authorized
officers as of the day and year first above written.
"Licensor" "Licensee"
[Illegible]
____________________________________ ----------------------------
Isabella Rossellini Artisan House, Inc.
/s/ Ingrid (Isotta) Rossellini Aborn
- ------------------------------------
Ingrid (Isotta) Rossellini Aborn
____________________________________
Roberto Rossellini
____________________________________
Pia Lindstrom
(a) Any controversy or claim arising out of or relating to the Agreement,
or breach thereof, shall be settled by arbitration in Indianapolis, Indiana, in
accordance with the Rules of the American Arbitration Association. The judgment
upon the award rendered by the arbitrator(s) may be entered in any court having
the jurisdiction thereof; and/or
(b) Licensee agrees and consents to venue and jurisdiction within any court
located in the State of Indiana, agreeing that any such court would have
exclusive jurisdiction over any dispute, case or controversy arising under or in
connection with this Agreement, and that such any Indiana court shall be a
proper forum in which to adjudicate such dispute, case or controversy.
The prevailing party in any action above (including arbitration) shall be
allowed to recoup any and all attorney fees, interest and costs therein
IN WITNESS WHEREOF, the parties hereto have signed by their duly authorized
officers as of the day and year first above written.
"Licensor" "Licensee"
[Illegible]
_________________________________ --------------------------
Isabella Rossellini Artisan House, Inc.
_________________________________
Ingrid (Isotta) Rossellini Aborn
/s/ Roberto Rossellini
- ---------------------------------
Roberto Rossellini
_________________________________
Pia Lindstrom
(a) Any controversy or claim arising out of or relating to the Agreement,
or breach thereof, shall be settled by arbitration in Indianapolis, Indiana,
in accordance with the Rules of the American Arbitration Association. The
judgment upon the award rendered by the arbitrator(s) may be entered in any
court having the jurisdiction thereof; and/or
(b) Licensee agrees and consents to venue and jurisdiction within any court
located in the State of Indiana, agreeing that any such court would have
exclusive jurisdiction over any dispute, case or controversy arising under or in
connection with this Agreement, and that such any Indiana court shall be a
proper forum in which to adjudicate such dispute, case or controversy.
The prevailing party in any action above (including arbitration) shall be
allowed to recoup any and all attorney fees, interest and costs therein.
IN WITNESS WHEREOF, the parties hereto have signed by their duly authorized
officers as of the day and year first above written.
"Licensor" "Licensee"
[Illegible]
________________________________ --------------------------
Isabella Rossellini Artisan House, Inc.
________________________________
Ingrid (Isotta) Rossellini Aborn
________________________________
Roberto Rossellini
/s/ Pia Lindstrom
- --------------------------------
Pia Lindstrom