Exhibit 10.17
LICENSE AGREEMENT
This license agreement (hereinafter "Agreement") is made effective as
of the latter of the signature dates below written (hereinafter the "Effective
Date") by and between American Motorcyclist Association, an Ohio corporation,
with its offices at 1315 Yarmouth Drive, Pickerington, Ohio 43147 ("LICENSOR"),
and Execute Sports, with its principal place of business at 23121 Arroyo Vista,
Suite B, Rancho Santa Margarita, CA 92688 ("LICENSEE").
Recitals
WHEREAS, LICENSOR is the owner of the trademarks and service marks
and associated applications and registrations thereof ("MARKS") listed in
Exhibit A for use in association with a motorcyclist association and
motorcyclist related services.
WHEREAS, LICENSEE desires to obtain from LICENSOR a right and license
to use the MARKS in connection with number plates.
WHEREAS, LICENSOR warrants that LICENSOR has full and exclusive right
to grant this license on these MARKS; and
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, the parties hereto agree as follows:
1. LICENSE GRANT
1.1 License Grant. Subject to the terms, conditions, and restrictions of this
Agreement, LICENSOR hereby grants to LICENSEE a non-exclusive, non-transferable
license for the term, to use the MARKS in connection with number plates.
2. OWNERSHIP
2.1 LICENSOR Rights. LICENSEE agrees that LICENSOR shall retain all ownership
rights in the MARKS, and LICENSEE agrees that it will not do anything
inconsistent with such ownership and that all use of the MARKS shall inure to
the benefit of LICENSOR. Nothing in this Agreement shall be interpreted as
giving LICENSEE any right, title, or interest in the MARKS other than the right
to use the MARKS in accordance with this Agreement. LICENSEE further agrees that
it will not challenge the validity of this Agreement or attack the title of
LICENSOR to the MARKS or otherwise disparage the MARKS or contest them in any
way. No license or other interest of any kind in such proprietary rights is
directly or indirectly granted to LICENSEE, except as specifically provided in
Section 1.1 above.
3. QUALITY STANDARDS
3.1 Quality Control. LICENSEE agrees that the nature and quality of all goods
sold, and all services rendered by LICENSEE under the MARKS, and all related
advertising and promotional uses of the MARKS, shall conform to the standards
set by, and be under the control of LICENSOR. LICENSOR has approved the use of
the MARKS on the Product to be manufactured, used, and sold by LICENSEE, a
sample of which is attached hereto as Exhibit B.
4. FORM OF USE
4.1 LICENSEE agrees to use the MARKS only in the form and manner and with
appropriate legends as prescribed by LICENSOR.
5. PAYMENTS
5.1 Lump Sum and/or Royalty Fee Payments. As consideration for the initial term
of the license granted hereunder, LICENSEE agrees to pay LICENSOR a one-time
lump sum payment of $250 and royalty fees of 6% of the LICENSEE's gross sales in
excess of $1,000 of products bearing the MARKS either directly or indirectly,
such as on packaging for the products. LICENSOR shall have the right to retain
an independent service to review the financial records of LICENSEE as it relates
to use of the MARKS. The royalty fees shall accrue and be charged throughout the
term and shall be paid as follows: Not later than thirty (30) days after the end
of each of LICENSEE's calendar quarter, LICENSEE shall pay to LICENSOR the total
amount of royalty fee due for the quarter just ended.
6. TERM AND TERMINATION
6.1 Term of License. This license shall become effective on the Effective Date
of this Agreement, shall continue in force and effect for one (1) year or until
the Agreement between the parties is terminated, whichever is earlier, and shall
not otherwise terminate unless in accordance with the provisions of this section
6.
6.2 Renewal. LICENSOR, in its sole discretion, with or without cause, may refuse
to renew the license at the end of any one (1) year term under the same or
different terms, as LICENSOR so desires. Both parties evidencing intent to renew
must sign a renewal notice or no renewal shall have occurred. If no other terms
are adopted upon renewal, then the same terms herein shall apply.
6.3 Termination. Either party may terminate this Agreement upon sixty (60) days
prior written notice to the other party if a Default, as defined below, by the
other party has occurred and is continuing. The term "Default" shall mean any of
the following: (a) failure by a party to comply with or perform any provision or
condition of this Agreement and continuance of such failure for thirty (30) days
after written notice thereof to such party; or (b) a party becomes insolvent, is
unable to pay its debts as they mature or is the subject of a petition in
bankruptcy, whether voluntary or involuntary, or of any other proceeding under
bankruptcy, insolvency or similar laws; or makes an assignment for the benefit
of creditors; or is named in, or its property is subject to a suit for
appointment of a receiver; or is dissolved or liquidated, or (c) LICENSEE
commits any act that does or may bring harm to the MARKS. In the event of such
termination, the non-defaulting party shall be entitled to pursue any remedy
provided in law or equity, including injunctive relief and the right to recover
any damages it may have suffered by reason of such Default. Upon termination of
this Agreement, LICENSEE shall immediately terminate all use of the MARKS.
6.4 Ceasing of Operations. In the event that LICENSEE ceases operations, all
rights acquired by the LICENSEE hereunder shall terminate.
6.5 Rights Upon Termination. If this Agreement is terminated, then all of
LICENSEE'S rights and licenses with respect to the MARKS shall terminate and
LICENSEE shall immediately discontinue all use of the MARKS and, at LICENSOR'S
sole discretion, shall either destroy or deliver to LICENSOR any unsold
inventory of products bearing the MARKS.
7. GENERAL
7.1 Governing Law. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Ohio, without reference to conflict of
law principles.
7.2 Partial Invalidity. If any provision in this Agreement shall be found or be
held invalid or unenforceable in any jurisdiction in which this Agreement is
being performed, then the meaning of said provision shall be construed, to the
extent feasible, so as to render the provision enforceable, and if no feasible
interpretation would save such provision, it shall be severed from the remainder
of this Agreement, which shall remain in full force and effect. In such event,
the parties shall negotiate, in good faith, a substitute, valid and enforceable
provision, which most nearly effects the parties' intent in entering into this
Agreement.
7.3 Modification. Except as otherwise herein stated, no alteration, amendment,
waiver, cancellation or any other change in any term or condition of this
Agreement shall be valid or binding on either party unless the same shall have
been mutually assented to in writing by both parties.
7.4 Waiver. The failure of either party to enforce at any time any of the
provisions of this Agreement, or the failure to require at any time the
performance by the other party of any of the provisions of this Agreement, shall
in no way be construed as a present or future waiver of such provisions, nor in
any way affect the right of either party to enforce each and every such
provision thereafter. The express waiver by either party of any provision,
condition or requirement of this Agreement shall not constitute a waiver of any
future obligation to comply with such provision, condition or requirement.
7.5 Assignment. This Agreement shall be binding upon and inure to the benefit of
the 3 parties hereto and their respective successors and assigns. LICENSEE shall
not assign any of its rights, obligations or privileges (by operation of law or
otherwise) hereunder without the prior written consent of LICENSOR, which shall
not be unreasonably withheld. LICENSOR shall have the right to assign its
rights, obligations and privileges hereunder to an assignee that agrees in
writing to be bound by the terms and conditions of this Agreement.
7.6 Force Majeure. Notwithstanding anything else in this Agreement, and except
for the obligation to pay money, no default, delay or failure to perform on the
part of either party shall be considered a breach of this Agreement if such
default, delay or failure to perform is shown to be due to causes such as
strikes, lockouts or other labor disputes, riots, civil disturbances, actions or
inactions of governmental authorities, or epidemics, war, embargoes, severe
weather, fire, earthquakes, acts of God or the public enemy, nuclear disasters,
or default of a common carrier; provided, that for the duration of such force
majeure the party charged with such default must continue to use all reasonable
efforts to overcome such force majeure.
7.7 Notices. Any notice required or permitted to be given by either party under
this Agreement shall be in writing and shall be personally delivered or sent by
certified or registered letter or by a national overnight courier-signature upon
receipt required, to the other party at its address first set forth above, or
such new address as may from time to time be supplied hereunder by the parties
hereto. If mailed, such notices will be deemed effective three (3) working days
after deposit, postage prepaid, in the mail.
7.8 Entire Agreement. The terms, conditions and exhibits herein contained
constitute the entire Agreement between the parties and supersede all previous
agreements and understandings, whether oral or written, between the parties
hereto with respect to the subject matter hereof.
7.9 Enforcement. LICENSEE and LICENSOR agree that money damages would be
inadequate compensation to LICENSOR in the event LICENSEE breaches any provision
of this Agreement. Accordingly, all the provisions of this Agreement shall be
specifically enforceable against LICENSEE, and LICENSOR shall be entitled, in
addition to other available remedies, to an injunction against LICENSEE for a
breach of any provision of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed
below by their respective duly authorized officers or representatives.
"LICENSOR" AMERICAN MOTORCYCLIST "LICENSEE"
ASSOCIATION
By: /s/ Robert Rasor By: /s/ Don Dallape
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Print Name: Robert Rasor Print Name: Donald Dallape
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Title: President Title: President
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Date: March 21, 2003 Date: 03/24/03
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EXHIBIT A
U.S. TRADEMARK/SERVICE MARK REGISTRATIONS BEING LICENSED
Mark Registration No. Reg. Date
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AMA and design 1070002
AMA Pro Racing 2649508,2559805,2002-9976
AMA Motocross 78/103854
FOREIGN TRADEMARKS/SERVICE MARKS REGISTRATIONS BEING
LICENSED
Mark Country Registration Number(s)
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AMA and design Japan 4146195, 4119516, 3231091
AMA Pro Racing 2649508, 2559805, 2002-9976
EXHIBIT B
Attach sample use of MARKS here.
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[ AMERICAN MOTORCYCLIST ASSOCIATION LOGO ]
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