Exhibit 10.13
LICENSE AGREEMENT
THIS LICENSE AGREEMENT (this "Agreement"), dated as of April 28, 2005 is
by and between Execute Sports, Inc., a Nevada corporation, (hereinafter referred
to as "Licensee") and EagleRider, Inc. a California corporation (hereafter
referred to as "Licensor").
WITNESSETH:
WHEREAS, Licensor is the legal and equitable owner, or licensee (with
right to sublicense) of all rights identified on Schedule A, attached hereto and
incorporated herein, including, without limitation, the name and logos owned by
Licensor and any additional logos which may be developed by the parties hereto
and appended to Schedule A from time to time (hereinafter referred to as the
"Property"); and
WHEREAS, Licensee desires to utilize the Property upon and in connection
with the exclusive and non-exclusive manufacture, sale, distribution and
promotion of the products listed on Schedule B, attached hereto and incorporated
herein (each collectively hereinafter referred to as the "Licensed Article(s)").
NOW THEREFORE, in consideration of the foregoing recitals (which are made
a part of this Agreement), the mutual promises herein contained other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. License.
a. Grant of License. Subject to the terms and conditions set forth
herein. Licensor hereby grants to Licensee an exclusive license and
right to utilize the Property in association with the manufacture,
advertising, distribution and sale of Licensed Articles Worldwide
(hereinafter referred to as the "Territory").
b. b. Right to Sublicense. Licensee may, subject to consent of
Licensor, which shall not be reasonably refused, have the right to
sublicense any portion of the manufacture, advertising or sale to
any third party, the rights granted to Licensee hereunder. However,
any approved sublicense shall be subject to the terms of this
Agreement, and Licensee shall remain liable for the full and timely
performance of the obligation hereunder by all approved sub
licensees.
c. Distribution. Licensee may, subject to consent of Licensor,
establish and determine any and all distribution channels for the
Licensed Articles, which may include retail store sales, Internet
sales, print catalogue sales, mail order sales, wholesale sales,
tour programs established in connection with Licensor and/or its
independent retailers or franchisees, mom & pop stores and all other
sales outlets.
2. Term
a. Term of License. The initial term of this Agreement and the license
granted hereunder (the "Initial Term") shall commence on the date
first above written and, unless sooner terminated in accordance with
the provisions hereof, shall remain in full force and effect until
April 28, 2007. At the end of the Initial Term, if Licensee is not
then in default under this Agreement, this Agreement may at the
option of Licensee and Licensor be renewed for up to two additional
two-year terms (each, a "Renewal Term"), upon written notice by
Licensee prior to the expiration of any such term.
b. Termination in Bankruptcy. Notwithstanding any provision herein to
the contrary, if a petition in bankruptcy is filed by or against
Licensee, or if Licensee becomes insolvent, or makes an assignment
for the benefit of its creditors or any arrangement pursuant to any
bankruptcy law, or if Licensee discontinues its business or if a
receiver is appointed for it or its business, then, to the fullest
extent permitted by law at the time of the occurrence, this
Agreement and the license hereby granted shall automatically and
immediately terminate, without any notice or further action by
either party being necessary. In the event this Agreement is
terminated by operation of this Section 2(b) Licensee and its
receivers, representatives, trustees, agents, administrators,
successors and/or assigns shall have no right to further manufacture
any Licensed Articles or any carton, container, packing or wrapping
material, advertising, promotional or display material pertaining
thereto, except upon the separate written consent and instruction of
Licensor. Notwithstanding the above, any and all Licensed Articles
or related goods in inventory and/or unfinished goods and packaging
materials for which production is already underway at such time, may
be completed and sold by, or on behalf of Licensee, subject to all
other terms of this Agreement.
c. Early Termination, This Agreement may be terminated at any time (i)
by mutual written consent of Licensor and Licensee; (ii) at any time
by Licensee upon thirty (30) days written notice to Licensor; or
(iii) by either party for cause. For purpose of this Section 2,
'cause" shall be defined as any material breach by the other party
of any of the terms or conditions of this Agreement, or any
representations contained herein including, without limitation,
failure by Licensee to timely make Royalty payments as required
under Section 4 of this Agreement or failure by Licensee to obtain
or maintain product liability insurance as required under Section
12(b) of this Agreement, which breach remains uncured thirty (30)
days after written notice thereof to the breaching party. In the
event Licensee elects to cease marketing Licensed Articles, Licensee
shall immediately notify Licensor in writing of such election. This
Agreement and the license granted hereunder shall automatically
terminate thirty (30) days following the date on which Licensee
notifies Licensor of its election to cease marketing Licensed
Articles.
d. Effect of Termination. Upon the termination of this Agreement, for
any reason, the license granted under Section 1 shall terminate. In
such event, Licensee shall cease using the Property and shall cease
manufacturing, selling, distributing and advertising Licensed ,
Articles, except that, in the event this Agreement is terminated
other than by Licensor for cause or by operation of Section 2(b)
above, for a period of ninety (90) days following such termination,
Licensee may continue using the Property solely for the purpose of
disposing of Licensed Articles that were on hand or in the process
of manufacture on the date Licensee received notice of such
termination, subject to Licensee's timely payment of Royalties for
such Licensed Articles. Upon the expiration of such ninety (90) day
period, Licensee shall destroy all Licensed Articles not disposed of
in accordance with this Section 2 (d). In addition, Licensee shall
provide Licensor with a statement, signed by, a duly authorized
officer of Licensee, verifying that Licensee has complied with the
requirements of this Section 2(d). The termination of this Agreement
shall not affect any obligation accruing or arising prior to the
effective date of the termination.
3. Approval of Licensed Articles and Advertising Materials.
a. Pre-Production Submittal Approvals. Licensee shall submit to
Licensor, at no additional cost to Licensor, four (4) pre-production
samples of each proposed Licensed Article, together with the
promotional or packaging material proposed by Licensee to be used
with such Licensed Articles. Licensee shall not manufacture,
advertise, market, sell, use or distribute any Licensed Articles or
any promotional or marketing materials relating to the Licensed
Articles before obtaining Licensor's written approval of all
required pre-production submittals for each such item. Licensor
agrees in good faith not to unreasonably withhold any such approval,
and further agrees that in the event that it disapproves of any
pre-production material, that it will promptly provide Licensee with
written notice detailing any and all reasons for withholding such
approval. In the event Licensor disapproves of any pre-production
submittal, Licensee shall promptly work to modify such submittal to
conform to the requirements of Licensor and shall re-submit such
pre-production submittal to Licensor for review and approval, as set
forth above. On the other hand, if Licensor fails to provide to
Licensee of its written approval or disapproval of any
pre-production submittal within twenty (20) days following
Licensor's receipt thereof, such failure shall constitute a
disapproval of the pre-production submittal.
b. Production Submital Approval. Following Licensor's acceptance of all
pre-production submittals, Licensee shall submit to Licensor, at no
additional cost to Licensor, four (4) production samples of the
Licensed Article as soon as such samples are reasonably available,
for Licensor's approval. Licensee may manufacture, advertise,
market, sell, use, and distribute Licensed Articles after submitting
to Licensor production samples of such License Articles, provided
that, upon Licensor's timely demand, Licensee shall immediately
cease all manufacture, advertisement, marketing, sales, use and
distribution of such Licensed Articles if Licensor disapproves the
production samples. If Licensor fails to notify Licensee in writing
of its disapproval of any production samples within twenty (20) days
following Licensor's receipt thereof, such failure shall constitute
a disapproval of the production submission.
c. Advertising Submittal Approvals. Licensee shall submit to Licensor,
at no additional cost to Licensor, three (3) samples or "mock-ups"
of any advertising materials proposed to be used in connection with
the Licensed Articles or using any of the Property. Licensee shall
not display, reproduce, use or distribute any such proposed
advertising materials before obtaining Licensor's approval of such
materials. If Licensor fails to notify Licensee of its written
approval or disapproval of any proposed advertising materials within
twenty (20) days following Licensor's receipt thereof, such failure
shall constitute a disapproval of any such advertising materials.
4. License Fee and Royalties
a. License Fee. Licensee shall pay to Licensor a one-time,
non-refundable license fee of one thousand dollars $1,000 (the
"License Fee"). The License fee shall be in addition to, and not in
lieu of, the amounts payable as Royalties (as defined below) and
shall not becredited toward such Royalties.
b. Calculation of Royalty. In consideration of the license granted
hereunder, Licensee shall pay Licensor a royalty (the "Royalty") in
an amount of twelve percent (12%) of Licensee's Net Wholesale Sales
Price for each Licensed Article sold to any third party. For
purposes of this Agreement, "Net Wholesale Sales" shall mean the
gross sales by Licensee and its affiliates of all Licensed Articles,
sold pursuant to the Wholesale Price Lists for the Licensed Articles
as determined by the Parties hereto, less trade discounts, actual
returns and allowances. No costs incurred in the manufacture, sale,
distribution or promotion of Licensed Articles shall be added, or
deducted from any Royalty payable by Licensee. However, should
Licensee derive any "handling profits" from the shipping and
handling of Licensed Articles to third parties, then Licensee agrees
to pay Licensor an additional royalty in the amount of 12% of such
"handling profits." Furthermore, no deduction or adjustment shall be
made in the computation of Net Sales for Licensee's uncollectible
accounts. c. Licensor's Direct Purchase of Licensed Articles.
Licensor shall have the right, from time to time, to purchase the
Licensed Articles directly from Licensee for the purpose of resale
through its own company-owned stores. Licensor may purchase any such
Licensed Articles at the current listed price. Royalty for use of
trademarks will be calculated and paid on any such purchase made by
Licensor. Licensee will pay these royalties.
d. Wholesale Price Lists. Prior to the sale of any Licensed Articles,
and, at regular proposed Wholesale Price Lists pertaining to the
Licensed Articles which shall be used for purposes of calculating
the royalties due hereunder. Licensee shall not manufacture,
advertise, market, sell, use or distribute any Licensed Articles
before obtaining Licensor's written approval of such Wholesale Price
Lists, which shall not be unreasonably withheld by Licensor.
Licensor further agrees that in the event that it disapproves of any
Wholesale Price List or otherwise disputes the proposed wholesale
price of any Licensed Article stated thereon, that it will promptly
provide Licensee with, written notice detailing any and all reasons
for withholding such approval.
e. Timing of Royalty Payments. The Royalty shall be calculated on Net
Sales accruing to Licensee during each calendar quarter and shall be
paid to Licensor within forty-five (45) days following the end of
each calendar quarter during the Term of this Agreement. The Royalty
shall be paid in U.S. dollars. Licensee's taxes, if any, including
but not limited to sales, use, inventory, income and value added
taxes on sales of Licensed Articles, shall be payable by Licensee
and shall not be deducted from any Royalties due hereunder.
f. Statements of Account. Within forty-five (45) days following the end
of each calendar quarter, Licensee shall furnish Licensor with a
complete and accurate statement showing the number, description, and
wholesale sales price, permitted deductions from the wholesale sales
price of each and every Licensed Article distributed and/or sold by
Licensee, together with any returns made during such period. Such
statements shall be furnished to Licensor whether or not any
Licensed Articles were sold by Licensee during the previous calendar
quarter. The receipt or acceptance by Licensor of any of the
statements furnished pursuant to this Agreement or of any Royalty
payment hereunder (or the cashing of any Royalty checks paid
hereunder) shall not preclude Licensor from questioning the
correctness thereof at any time, and in the event that any
inconsistencies or mistakes are discovered in such statements or
payments, they shall rectified and appropriate payments made by
Licensee within sixty (60) days thereafter. In the event Licensee
mistakenly pays Licensor more than is due, Licensee may deduct its
overpayment from any future Royalty payments.
5. Obligation to Maintain Records and Periodic Audits. During the Term of
this Agreementand for a period of five (5) years thereafter, Licensee
shall keep and maintain full, true and accurate books of account and other
records containing specific information relating to Licensee's
manufacture, use, distribution and sale of Licensed Articles, including
any and all Wholesale Price Lists for the Licensed Articles all with
sufficient particularity to permit the computation and verification of the
amounts to be paid as Royalties hereunder. During the Term of this
Agreement and for a period of five (5) years thereafter, Licensor or an
agent or representative Licensor shall be permitted, upon prior written
notice to Licensee of at least five (5) days, to audit, inspect and copy
such books and records at Licensee's premises during normal business
hours, to verify the accuracy of the Royalties paid to Licensor. Each such
audit or inspection shall be at Licensor's expense, unless such audit or
inspection reveals a deficiency of more than five percent (5%) in the
payment of any Royalty, in which case Licensee shall reimburse Licensor
for all expenses incurred by Licensor in connection with the audit or
inspection (including but not limited to reasonable attorney's or
accountants' fees), in addition to the amount of the deficiency.
6. Quality Control Matters.
a. Production Quality in General. Licensee shall at all times maintain
the same quality in the Licensed Article and promotional and
packaging materials relating thereto as produced in the examples
approved by Licensor. The Licensed Articles shall conform to
manufacturing standards previously agreed upon by Licensee and
Licensor or established by Licensor from time to time.
b. Quality Control Testing and Spot Checks. The Licensed Articles
manufactured by Licensee pursuant to this Agreement shall be subject
to such quality control testing procedures as have previously been
delivered to Licensee or approved in writing by Licensor or may be
delivered to Licensee by Licensor from time to time during the Term
of this Agreement. In this connection, Licensee expressly covenants
and agrees that it shall not ship any Licensed Article to any
destination if any such Licensed Article fails the quality control
testing procedures required hereunder. In addition, upon Licensor's
reasonable request and at no additional cost to Licensor, Licensee
shall supply Licensor with reasonable quantities of additional
samples of the Licensed Articles and related promotional and
packaging materials for off-site quality control inspection. c.
Notification of Quality Control Problems. In the event that any
Licensed Articles do not, in Licensor's reasonable discretion, meet
the quality standards set forth in this Agreement or otherwise
established by Licensor, in writing during the Term hereof, Licensor
shall notify Licensee in writing of any such deficiencies, and
Licensee shall immediately make its best efforts to repair or change
such Licensed Articles to conform to such quality standards. If such
conformity is not or cannot be reasonably attained, Licensee shall
not permit further such Licensed Articles to be manufactured in such
condition.
d. Changes. If during the Term of this Agreement there is to be any
changes in the Licensed Articles or the promotional or packaging
material relating thereto after approval of production samples by
Licensor, Licensee must comply with the procedures set forth in
Section 3 above for such changed item before the item's manufacture,
advertisement, marketing, sale, use or distribution.
7. Promotional Uses by Licensor. Provided that such Articles are purchased or
otherwise obtained directly from Licensee, Licensor shall have and retain
the right to distribute or utilize all of the Licensed Articles in
connection with any sale, premium, giveaway or promotional arrangement,
which retained right may be exercised by Licensor concurrently with the
rights licensed to Licensee hereunder.
8. Acknowledgment of Ownership Rights. Licensee acknowledges that the
Licensor's claim to the Property is valid and that Licensor and/or its
licensors shall own all right, title and interest in the Property and any
additional properties developed between these parties which are listed on
Attachment "A" hereto or any subsequent addenda thereto. Licensee shall
not directly or indirectly contest the validity of the Property either
during the Term of this Agreement or after its termination or expiration.
Licensee recognizes the great value of the publicity and goodwill
associated with the Property and acknowledges that such goodwill
exclusively belongs to Licensor and/or its franchisees, as the case may
be. Licensee agrees to cooperate full and in good faith with Licensor for
the purpose of securing and preserving Licensor's (or any grantor of
Licensor's) rights in and to the Property. Nothing contained in this
Agreement shall be construed as an assignment or grant to Licensee of any
right, title, or interest in or to the Property. In the event Licensee
acquires any rights to any of the Property (other than as expressly
granted under this Agreement), Licensee agrees to assign, and hereby
assigns, all such rights to Licensor, and Licensee agrees to execute any
instruments requested by Licensor to accomplish or confirm the foregoing.
Any such assignment, transfer or conveyance shall be without additional
consideration other than the mutual covenants and consideration set forth
in this Agreement.
9. Representations and Warranties of Licensor.
a. Ownership of Licensed Rights. Licensor owns, or has the right to
license the Property. Licensor has all requisite power and authority
to grant the license to Licensee pursuant to this Agreement.
b. No Known Infringement. There is no pending or, to the knowledge of
Licensor, threatened claim or litigation against Licensor (nor, to
the knowledge of Licensor, does there exist any basis therefor)
contesting Licensor's ownership in, or right to use or license any
of the Property in connection with the manufacture, distribution,
use or sale the Licensed Articles.
c. Binding Agreement. This Agreement, when executed and delivered by
Licensor, shall constitute a valid and binding agreement, in
accordance with its terms, except as limited by(i) bankruptcy,
reorganization, insolvency and other laws affecting the enforcement
of creditors' rights or contractual obligations generally and (ii)
general principles of equity (whether the enforceability, of this
Agreement is considered n a proceeding in equity or at law).
d. No Violation. Neither the execution and delivery by Licensor of this
Agreement nor the consummation of the transactions contemplated
hereby is an event which, of itself or with the giving of notice or
the passage of time or both, constitutes a violation of or will
conflict with or result in any material breach of the terms,
conditions or provisions of any judgment, law or regulation to which
Licensor is subject; or of any agreement or instrument to which
Licensor is a party or by which it is bound.
10. Representations and Warranties of Licensee.
a. Binding Agreement. This Agreement, when executed and delivered by
Licensee, shall constitute a valid and binding agreement,
enforceable upon Licensee in accordance with its terms, except as
limited by (i) bankruptcy, reorganization, insolvency and other laws
affecting the enforcement of creditors' rights or contractual
obligations generally and (ii) general principles of equity (whether
the enforceability of this Agreement is considered in a proceeding
in equity or at law).
b. No Violation. Neither the execution and delivery by Licensee of this
Agreement nor the Consumption of the transactions contemplated
hereby is an event which of itself or with the giving of notice or
the passage of time or both constitutes a violation of or will
conflict with or result in an material breach of the terms,
conditions or provisions of any judgment, law or regulation to which
Licensee is subject, or of any agreement or instrument to which
Licensee is a party or by which it is bound.
11. Infringement Actions.
a. Defense of Third-Party Claims. In the event any third party asserts
any demand, claim or cause of action against Licensee alleging that
Licensee's use of any of the Property in accordance with the terms
of this Agreement infringes the rights of such third party or
otherwise constitutes an act of unfair competition against such
third party, Licensee shall promptly, and in any event no later than
fifteen (15) days following Licensee's receipt of such demand, claim
or cause of action, notify Licensor of the demand, claim or cause of
action. Upon receipt of the above-described notice from Licensee,
Licensor shall defend Licensee against the demand, claim or cause of
action asserted by the third party. In connection therewith,
Licensee shall assist and cooperate with Licensor the defense of any
such action; provided, however. Licensor will bear all damages,
costs and expenses. Including attorneys' fees, arising from all such
legal proceedings, and shall reimburse Licensee for all damages,
costs and expenses, other than attorneys' fees, incurred by Licensee
in providing such assistance to Licensor.
b. Pursuit of Third-Party Infringers. In the event Licensee believes
that a third party is infringing the Property or is committing acts
of unfair competition relating to any of the Property, Licensee
shall promptly and in any event no later than fifteen (15) days
following Licensee's discovery of such acts of infringement or
unfair competition, notify Licensor of such infringement or acts of
unfair competition. Licensor shall have the option, in its sole
discretion, to take such action as such Licensor deems appropriate
to stop such infringement or acts of unfair competition, including,
but not limited to, filing a civil action against the party engaging
in such infringement or unfair competition. Licensee shall cooperate
with Licensor in any action or proceeding commenced by Licensor
relating to any third party act of infringement or unfair
competition and shall, at the request and expense of Licensor, join
any such proceeding as a party. Licensee acknowledges that Licensor,
in its sole discretion may settle or dismiss any such proceeding at
any time. All damages, costs or other amounts recovered by Licensor
as a result of any such action, claim or settlement shall be the
sole property of Licensor.
c. Effect of Infringement Actions on Royalty Obligations. The
institution of any infringement action by or against Licensee with
respect to the Property shall not affect Licensee's obligations to
pay Royalties and to make quarterly reports to Licensor under
Section 4 hereof.
12. Indemnification.
a. Indemnification of Licensor. Licensee shall indemnify and hold
harmless Licensor, its officers, employees and representatives (the
"Licensor Indemnities"), and hereby indemnifies and holds harmless
such Licensor Indemnities, from and against all damages, claims,
losses, expenses, costs, obligations and liabilities, including,
without limitation, liabilities for attorneys' fees such items being
hereinafter collectively reflected to as "Loss and Expense")
suffered or incurred by a Licensor Indemnity directly or indirectly
as a result of (i) an injury to or death of any person or persons
directly or indirectly arising out of or resulting from any goods or
services manufactured, finished, distributed, sold or offered by
Licensee, its employees, agents or representatives, (ii) any damage
to or loss of any property directly or indirectly arising out of or
resulting from any goods or services manufactured, finished,
distributed, sold or offered by Licensee, its employee, agents or
representatives, (iii) any breach of any representation or warranty
made by Licensee under this Agreement, or (iv) any failure by
Licensee to perform or fulfill any of its covenants or agreements
set forth in this Agreement or any agreement executed in connection
herewith.
b. Indemnification of Licensee. Licensor shall indemnify and hold
harmless Licensee, its officers, employees and representatives (the
"Licensee Indemnities"), and hereby indemnifies and holds harmless
such Licensee Indemnities, from and against all damages, claims,
losses, expenses, costs, obligations and liabilities, including,
without limitation, liabilities for attorneys' fees such items being
hereinafter collectively reflected to as "Loss and Expense")
suffered or incurred by a Licensee Indemnity directly or indirectly
as a result of (i) any alleged infringement of any copyright,
trademark, trade secret or other intellectual property right held by
any third party, directly or indirectly arising out of or resulting
from any goods or services manufactured, finished, distributed, sold
or offered by Licensee, its employees, agents or representatives,
(ii) any breach of any representation or warranty made by Licensor
under this Agreement, or (iv) any failure by Licensor to perform or
fulfill any of its covenants or agreements set forth in this
Agreement or any agreement executed in connection herewith.
c. Liability Insurance. In support of its obligations under this
Agreement, Licensee shall, during the Term of this Agreement and for
period of six (6) months thereafter, maintain general liability
insurance (which shall include product liability) underwritten by a
Best A-rated insurer, which insurance shall have coverage limits of
not less than one million U.S. dollars ($1,000,000) per occurrence
for death or personal injury, one million U.S. dollars ($1,000,000)
per occurrence for property damage, and two million U.S. dollars
($2,000,000) aggregate liability per year. Within thirty (30) days
following the execution of this Agreement, also within 30 days of
the annual renewal term, and within thirty (30) days prior to the
beginning of each calendar year during the Term of this Agreement,
Licensee will provide Licensor with a copy of its certificate(s) of
insurance verifying the existence of the liability insurance
required hereunder and of Licensee's compliance with the terms of
this Section 13(c).
13. Compliance with Applicable Laws.
Licensee agrees that the Licensed Articles will be manufactured, sold,
distributed, and promoted in accordance with all applicable Federal, State
and local laws and that the policy of manufacture, sale, distribution
and/or promotion by Licensee shall be of high standard and to the best
advantage of the Property and that the same shall in no manner reflect
adversely upon the good name or reputation of Licensor or the Property.
14. Government Clearance and Export Matters.
a. Government Clearance. Licensee shall, at its own expense, obtain any
required governmental consents, approvals or clearances (including,
without limitation, export and import licenses) required to make,
have made, use, market, sell or distribute the Licensed Articles.
Licensor agrees to cooperate with and to assist Licensee in any
reasonable manner in applying for, obtaining or maintaining any such
consents, approvals or clearances, all at Licensee's expense.
b. Limitations on Export. This Agreement and the License shall be
subject to all of the statutes and regulations of the United States
controlling or relating to the export of products and other
commodities.
15. Proprietary Rights Notices.
Licensee agrees that where commercially practicable, each Licensed Article
and all packaging, advertising promotional or display materials employing
the Property shall bear an appropriate trademark and/or copyright notice
and any other legal notices Licensor may prescribe from time to time
during the Term of this Agreement. If such notice cannot be placed
directly on the Licensed Articles, then Licensee shall place such notice
on all packaging, advertising and display materials used in connection
with the Licensed Article.
16. Additional Limitations on Sale of Licensed Articles.
a. Agreement to Actively Sell Articles. Licensee agrees to diligently
and continuously manufacture, sell, distribute and promote Licensed
Articles and to make and maintain adequate arrangement for the
distribution of the Licensed Articles. Licensee agrees to print and
distribute at its own expense 30,000 EagleRider catalogues to
licensors customers within the first 12 months of this agreement. In
addition to all other remedies available to it hereunder, upon
ninety (90) days written notice to Licensee, Licensor may remove
from this Agreement any Property that is not diligently and
continuously used by Licensee in the manufacture, sale, distribution
and promotion of the Licensed Articles or class or category of
Licensed Articles that is not diligently and continuously
manufactured, sold, distributed and promoted by Licensee for a
period of at least five (5) consecutive months. Licensor has the
right to terminate this agreement at any time if Licensee is unable
to supply franchises or Licensor with an adequate supply of
merchandise within the trademark class 025 in a reasonable amount of
time.
b. Sales to Licensor. Licensee agrees to sell to Licensor such
quantities of Licensed Articles as Licensor shall request at as low
a price on as good terms as Licensee sells similar quantities of the
Licensed Articles to the general trade.
17. Miscellaneous.
a. Entire Agreement. This Agreement, together with the Attachments
hereto, constitutes the entire Agreement between the parties and
supersedes and cancels any and all prior agreements, written or
oral, between them relating. to the subject matter hereof; this
Agreement may not be amended except in a writing signed by both of
the parties hereto. Assignment. This Agreement may not be assigned
without the prior written consent of
b. Assignment. This Agreement may not be assigned without the prior
written consent of each of the parties. c. Binding Effect. This
Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and permitted
assigns.
d. Survival. The provisions of Sections 2(d), 4, 5, 6, 7, 8, 11, 12 and
15 shall survive the termination or expiration of this Agreement for
any reason.
e. Notices. Unless otherwise specified herein, all notices, demands and
other communications that may be or are required to be given
hereunder or with respect hereto shall be in writing and shall be
given either by personal delivery, by overnight delivery service or
by certified mail, return receipt requested, postage prepaid and
shall be deemed to have been given or made when personally
delivered, the next business day following the date such notice was
sent by overnight delivery service, or three (3) days after the date
such notice was deposited in the mail, as the case may be, and shall
be addressed as follows:
If to Licensor:
EagleRider, Inc.
11860 South La Cienega Blvd
Hawthorne, CA 90250
Attention: Chris McIntyre and/or Jeff Brown
Phone: (310) 536-6777
If to Licensee:
Execute Sports, Inc.
1284 Puerta Del Sol, Ste 150
San Clemente, CA 92673
Attention: Don Dallape
Phone: (949) 498-5990
Any party may change its address for purposes of notice pursuant to
the Agreement by notifying the other parties of such change of
address in the manner set forth above.
f. Law Governing. This Agreement shall be governed by, construed and
enforced in accordance with the laws of the State of California,
without regard to the conflicts of law rules of such State.
g. Arbitration of Disputes. In the event of any dispute or controversy
arising out of, or relating to, this Agreement, the parties hereto
agree to submit such dispute or controversy to binding arbitration.
The sole arbitrator shall be selected from the list by the American
Arbitration Association ("AAA") following written request by any
party hereto. If the parties hereto after notification of the other
party(ies) to such dispute cannot agree upon an arbitrator within
thirty (30) days following receipt of the list by all parties to
such arbitration, then either party may request, in writing, AAA,
appoint an arbitrator within ten (10) days following receipt of such
request (the "Arbitrator"). The arbitration shall take place in the
County of Los Angeles, California, at a place and time mutually
agreeable to the parties or if no such agreement is reached within
ten (10) days following notice from the Arbitrator, at a place and
time determined by the Arbitrator. Such arbitration shall be
conducted in accordance with the Streamlined Arbitration Rules and
Procedures of AAA. Each party hereby waives any right it may have to
assert the doctrine of forum non conveniens or similar doctrine or
to object to venue with respect to any proceeding brought in
accordance with this Section, and stipulates that the Arbitrator
shall have in personam jurisdiction and venue over each of them for
the purpose of litigating any dispute, controversy, or proceeding
arising out of or related to this Agreement. Each party hereby
authorizes and accepts service of process sufficient for personal
jurisdiction in any action against it as contemplated by this
Section by registered or certified mail, return receipt requested,
postage prepaid, to its address for the giving of notices as set
forth in this Agreement. The decision of the Arbitrator shall be
final and binding on all the parties to the arbitration, shall be
non-appealable and may be enforced by a court of competent
jurisdiction. In addition to its reasonable attorneys' fees, the
prevailing party shall also be entitled to recover from the
non-prevailing party its reasonable costs and expenses. The
Arbitrator may grant any remedy appropriate including, without
limitation, injunctive relief or specific performance. All
applicable rules of California law and Civil Procedure shall govern
and in the event that any discovery dispute arises, either party may
seek resolution and/or enforcement thereof by the Superior Court
within the County where the Arbitration is conducted. Prior to the
appointment of the Arbitrator, any party may seek a temporary
restraining order or a preliminary injunction from the Orange County
Superior Court, which shall be effective until the Arbitrator
renders a final decision.
h. Waiver of Provisions. The terms, covenants and conditions of this
Agreement may be waived only by a written instrument executed by the
party waiving compliance. The failure of any party at any time or
times to require performance of any provision of the Agreement shall
in no manner affect the right at a later date to enforce the same or
to enforce any future compliance with or performance of any of the
provisions hereof. No waiver by any party of any condition or other
breach of any provision, term or covenant this Agreement whether by
conduct or otherwise, in any one or more instances, shall be deemed
to be or construed as a further or continuing waiver of any such
condition or the breach of any other provision, term or covenant of
this Agreement.
i. Captions. The captions of Sections of this Agreement are for
convenience of reference only and shall not control or affect the
meaning or construction of the provisions of this Agreement.
j. Severability. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under present or future law
effective during the Term hereof, such provision shall be fully
severable and this Agreement shall be construed and enforced as if
such illegal, invalid or unenforceable provision never comprised a
part hereof, and the remaining provisions hereof shall remain in
full force and effect and shall not be affected by the illegal,
invalid or unenforceable provision or by its severance here from.
Further, in lieu of such illegal, invalid or unenforceable
provision, there shall be added automatically as part of this
Agreement a provision as similar in its terms to such illegal,
invalid or unenforceable provision as may be possible and be legal,
valid and enforceable.
k. Further Assurances. From time to time after the date hereof,
Licensee and Licensors shall execute all such additional
instruments, licenses and certificates and shall take all such other
actions as Licensee or Licensors, as the case may be, may reasonably
request in connection with the consummation of this Agreement and
effecting the intent and purpose hereof.
l. Relationship of Parties. Nothing in this Agreement, its provisions,
or the transactions, obligations and relationships contemplated
hereby shall, in and of itself, constitute any party to this
Agreement as the agent, employee or legal representative for any
other party hereto for any purpose what ever, nor shall any party to
this Agreement hold itself out as such. This Agreement does not
create and shall not be deemed to create a relationship of partners,
joint ventures, associates or principal and agent between the
parties hereto. Each of the parties acknowledges that it is acting
as a principal hereunder.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
LICENSOR: LICENSEE:
EagleRider Inc. Execute Sports, Inc.
By Chris McIntyre By: Don Dallape