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英文合同6

2009-05-14 6页 doc 62KB 37阅读

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英文合同6 LICENSE AGREEMENT AGREEMENT ("Agreement") made and effective _________,_________,_________(m,d,y) by and between , Inc., a _________ corporation having its principal office at _________("Licensor"), and , Inc., a _________ corporation having its principal office a...
英文合同6
LICENSE AGREEMENT AGREEMENT ("Agreement") made and effective _________,_________,_________(m,d,y) by and between , Inc., a _________ corporation having its principal office at _________("Licensor"), and , Inc., a _________ corporation having its principal office at _________ (hereinafter referred to as "Licensee"). WHEREAS, Licensor is the owner of the trademark White-Westinghouse and associated designs and trade dress (together, the "Trademark"), and is using the Trademark throughout the World; and WHEREAS, Licensor has the right to grant Licensee the license, right and permission to use the Trademark; and WHEREAS, Licensee is in the business of manufacturing, distributing and selling articles described and specified on Exhibit A hereto (the "Products"), and desires to secure the license, right and permission to use the Trademark upon, and in connection with, the manufacturing, distributing and selling of such Products; and WHEREAS, the Products that are the subject of this Agreement have been defined by the parties as listed on Exhibit A hereto (and any other articles which the parties mutually agree to be subject to the provisions of this Agreement which, in accordance with the terms of this Agreement, bear the Trademark (collectively, the "Trademarked Product"); and WHEREAS, Licensor desires to grant to Licensee, and Licensee desires to accept from Licensor, a license to use the Trademark in the design, manufacture, advertising, sale and promotion of the Products, subject to each of the terms, provisions and conditions of this Agreement; NOW, THEREFORE, in consideration of the mutual promises, covenants and provisions herein contained and wishing to be bound hereby, the parties hereto do hereby agree as follows: Article 1GRANT OF LICENSE AND DESIGNATION OF TRADEMARK PRODUCTS Effective upon the execution of this Agreement, Licensor hereby grants to Licensee, for the period hereinafter specified and upon the terms, provisions and conditions of this Agreement, the exclusive right and license to use the Trademark within the geographic area described in Article 2 hereof, in the design, manufacture, advertising, sale and promotion of the Trademarked Product. In the event of any good faith disputes between the parties to this Agreement regarding the definition of Trademarked Product, the final decision regarding such definition shall rest in Licensor's sole and absolute discretion. The rights granted to Licensee herein are limited to use on or in connection with the Trademarked Product and Licensee specifically agrees not to use the Trademark in any manner or on any product, service or item, except as set forth in this Agreement. Licensee recognizes that Licensor sells products of the same description as some of the products licensed herein, namely, humidifiers and air cleaners. Licensee agrees not to challenge Licensor's continued right to sell such products under the Trademark. ARTICLE 2GEOGRAPHIC AREA The rights granted to Licensee hereunder may be exercised by Licensee within the USA and Canada (the "Territory"), and Licensee shall have exclusive rights with respect to the use of the Trademark in connection with the Trademarked Product. Upon Licensee's request, Licensor may, in its discretion, extend the areas in which Licensee may exercise said rights, but any such extension shall, in each instance, be evidenced by a written and duly executed amendment to this Agreement for such periods and upon such terms and conditions as shall be determined by Licensor. From time to time Licensor may wish to purchase Trademarked Product for sale outside the Territory. Licensee agrees to sell Trademarked Product to Licensor at the same price Licensee sells Trademarked Product to its best customer. ARTICLE 3REPRESENTATIONS AND WARRANTIES OF LICENSOR 3.1 ORGANIZATION AND POWER. Licensor is a corporation duly organized, validly existing and in good standing under the laws of the State of . Licensor has all corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder. 3.2 AUTHORIZATION. The execution, delivery and performance by Licensor of this Agreement and the consummation of the transaction contemplated hereby has been duly and validly authorized by all requisite corporate action, and no other corporate act or proceeding on the part of Licensor is necessary to authorize the execution, delivery and performance of this Agreement and the consummation of the transaction contemplated hereby. 3.3 NO VIOLATION. Licensor is not subject to nor obligated under its certificate of incorporation or bylaws, any applicable law, rule or regulation of any governmental authority, or any agreement, instrument, license or permit, or subject to any order, writ, injunction or decree, which would be breached or violated by its execution, delivery or performance of this Agreement. 3.4 OWNERSHIP OF TRADEMARK. Licensor is the owner of the Trademark and, to Licensor's knowledge, the use of the Trademark in the design, manufacture, advertising, sale and promotion of any of the Trademarked Product will not infringe any intellectual property or any other rights of any third party. 3.5 RIGHT TO GRANT LICENSE. Licensor has the full right, power and authority to grant the license as set forth in Article 1 hereof. ARTICLE 4REPRESENTATIONS AND WARRANTIES OF LICENSEE 4.1 ORGANIZATION AND POWER. Licensee is a corporation duly organized, validly existing and in good standing under the laws of the State of . Licensee has all corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder. 4.2 AUTHORIZATION. The execution, delivery and performance by Licensee of this Agreement and the consummation of the transaction contemplated hereby has been duly and validly authorized by all requisite corporate action, and no other corporate act or proceeding on the part of Licensee is necessary to authorize the execution, delivery and performance of this Agreement and the consummation of the transaction contemplated hereby. 4.3 NO VIOLATION. Licensee is not subject to nor obligated under its certificate of incorporation or bylaws, any applicable law, rule or regulation of any governmental authority, or any agreement, instrument, license or permit, or subject to any order, writ, injunction or decree, which would be breached or violated by its execution, delivery or performance of this Agreement. ARTICLE 5TERM OF AGREEMENT 5.1 CONTRACT TERM. The Contract Term for each of Category 1, Category 2 and Category 3 Trademarked Product commences on the date first mentioned above and ends on _________,_________,_________(m,d,y) at midnight Eastern Standard Time, unless sooner terminated pursuant to the terms of this Agreement. 5.2 EXTENSION TERMS. Licensor hereby grants to Licensee the option to extend the term of this Agreement for up to thirteen (13) one (1) year periods commencing as of _________,_________,_________(m,d,y) and ending on _________,_________,_________(m,d,y), at midnight Eastern Standard Time, unless sooner terminated pursuant to the terms of this Agreement with such extended term(s) to be subject to the same terms and conditions as provided herein except that as a condition to the extension term(s), Licensee must achieve specified levels of Minimum Sales during the then preceding Contract or Extension Term of this Agreement as set forth in Article 8hereof. Such option to extend the term of this Agreement must be exercised by Licensee, if at all, by giving written notice to Licensor at least one hundred and twenty (120) days prior to the expiration of the then preceding Contract Term of this Agreement. Licensor may terminate this Agreement without cause, in respect of some or all of the Trademarked Product provided however, that such termination shall not be permitted within the first 5 (five years) following the Effective Date of this Agreement. Notice of termination must be given in writing to the other Party hereto 1 (one) year prior to the termination date. Licensee shall have the right to sell off inventory of Trademarked Product in accordance with Article 21. Neither Licensor nor Licensee shall be liable for any compensation or damages by reason of such early termination. ARTICLE 6ROYALTIES 6.1 EARNED ROYALTIES OF CATEGORIES 1 AND 3 OF TRADEMARKED PRODUCT. Subject to Article 7 hereof, Licensee shall pay to Licensor for the rights granted hereunder a sum equal to the following percentages of the Net Invoice Value of Trademarked Product sold by Licensee (the "Royalties"): TRADEMARKED PRODUCT - WHOLESALE PRICE UNDER $,_________/UNIT $,_________ OR MORE/UNIT Contract Term X% Y% First Extension Term Y% Y% Second and Third Extension Term(s) Y% Z% Fourth and Future Extension Term(s) Y% W% The Royalties shall be remitted in accordance with Article 7.4 of this Agreement. 6.2 EARNED ROYALTIES CATEGORY 2. Subject to Article 7 hereof, Licensee shall pay to Licensor for the rights granted hereunder a sum equal to two percent (2%) of the Net Invoice Value of Trademarked Product sold by Licensee (the "Royalties"). The Royalties shall be remitted in accordance with Article 7.4 of this Agreement. 6.3 DEFINITION OF NET INVOICE VALUE. As used throughout this Agreement, the term "Net Invoice Value" shall mean the aggregate of the invoiced amounts of Trademarked Product sold by Licensee, less (a) returned goods, refunds, credits and allowances actually made or allowed to customer with respect to Trademarked Product, (b) freight or handling charges charged to customers or incurred on returned goods, and (c) sales and excise taxes actually paid ("NIV"). ARTICLE 7MINIMUM ROYALTY PAYMENTS 7.1 MINIMUM ROYALTIES. The minimum royalties for the Contract Term shall be paid as follows: Category 1: Sixty-five $,_________dollars ($,_________) in advance upon execution of this Agreement. The Minimum Royalty for each Extension Term as shown below shall be payable in four (4) equal installments each by the thirtieth day of March, June, September and December of the respective Term. Category 2: Eighty-five $,_________dollars ($,_________) in advance of execution of this Agreement and the balance of fifteen $,_________dollars ($,_________) payable on or before _________,_________,_________(m,d,y) . The Minimum Royalty for each Extension Term as shown below shall be payable in four (4) equal installments each by the _________th day of March, June, September and December of the respective term. Category 3: Forty-$,_________dollars ($,_________) in advance on execution of this Agreement and the balance in eight (8) equal installments of $,_________ each by the 30th day of March, June, September and December of _________(y) and _________(y) . The Minimum Royalty for each extension term shall be paid in four (4) equal installments each by the _________th day of _________, _________, _________ and _________ of the respective term. Category 1 Category 2 Category 3 ----------------- ----------------- ----------------- Minimum Royalties Minimum Royalties Minimum Royalties ----------------- ----------------- ----------------- Term Year ------- ------ Initial 1996/8 $,_________ $,_________ $,_________ Ext. 1 1999 $,_________ $,_________ $,_________ Ext. 2 2000 $,_________ $,_________ $,_________ Ext. 3 2001 $,_________ $,_________ $,_________ Ext. 4 2002 $,_________ $,_________ $,_________ Ext. 5 2003 $,_________ $,_________ $,_________ Ext. 6 2004 $,_________ $,_________ $,_________ Ext. 7 2005 $,_________ $,_________ $,_________ Ext. 8 2006 $,_________ $,_________ $,_________ Ext. 9 2007 $,_________ $,_________ $,_________ Ext. 10 2008 $,_________ $,_________ $,_________ Ext. 11 2009 $,_________ $,_________ $,_________ Ext. 12 2010 $,_________ $,_________ $,_________ Ext. 13 2011 $,_________ $,_________ $,_________ 7.2 INITIAL ROYALTY PAYMENT. Licensee shall pay Licensor an Initial Royalty Payment of: Category 1: Sixty-five $,_________($,_________); Category 2: Eighty-five $,_________($,_________); Category 3: forty $,_________dollars ($,_________) upon execution of this Agreement. The Initial Royalty Payment for each Category shall be applied against the first royalties payable for that Category respectively, pursuant to Article 7.4 of this Agreement. 7.3 MINIMUM ROYALTY PAYMENTS. To the extent that the aggregate, cumulative, Minimum Royalties set forth above exceeds the aggregate, cumulative Earned Royalties paid to Licensor by the end of the Contract Term or Extension Term, as applicable, Licensee shall pay Licensor such excess with the Royalty payment for the last fiscal quarter of the Contract Term or such Extension Term, as applicable, in accordance with Article 7.4. 7.4 APPLICATION OF EARNED ROYALTIES. The Earned Royalties to be paid under Article 6 shall be applied against the Minimum Royalties due under this Article 7, and Licensee shall pay by each due date specified in this Article 7 the sum of: (i) the Minimum Royalties as specified above; plus (ii) the excess, if any, of the Earned Royalties (per Article 6) over the Minimum Royalties for the then current term payable by such due date (such sum hereinafter referred to as the "Royalty Payment"). Each Royalty Payment, payable in U.S. currency, shall be remitted by check at Licensor's address as provided in this Agreement. 7.5 QUARTERLY REPORTS OF SALES AND ROYALTY PAYMENTS. On or before the twentieth (20th) day of each January, April, July and October during the Contract Term and any Extension Term, Licensee shall deliver to Licensor the following: (i) a written statement, certified to be true and correct by the Chief Financial Officer of Licensee, setting forth the Gross and NIV sales for each Trademarked Product during the preceding calendar quarter and a calculation of the Royalties payable under Article 6 and 7 of this Agreement for such period, and (iv) a check payable to Licensor in full payment of the amount due under Articles 6 and 7 of this Agreement for such period. Each Royalty payment, payable in U.S. currency, shall be remitted by check at Licensor's address as provided in this Agreement. 7.6 QUARTERLY REPORT OF SALES AND ROYALTY PAYMENTS. Licensee shall report Gross and NIV sales separately for Category 1, Category 2 and Category 3 of Trademarked Product, respectively, in accordance with Article 7.4, and also report Consolidated Gross and NIV sales ("Consolidated Sales") which shall include Gross and NIV sales of Category 1, Category 2 and Category 3 of the Trademarked Product, in accordance with Article 7.4. ARTICLE 8MINIMUM SALES OF TRADEMARKED PRODUCT FAILURE TO MEET MINIMUM SALES IN CATEGORY 1, CATEGORY 2 AND CATEGORY 3 OF TRADEMARKED PRODUCT. Licensee shall use its best efforts to advertise and sell Trademarked Product in the Territory during the Term of this Agreement. Should Licensee fail to achieve a level of NIV sales equal to the combined minimum sales of Category 1, Category 2, and Category 3 of Trademarked Product, as set for below, which, for purposes of this Paragraph 8.1, Licensee may accumulate over any two consecutive Terms, then Licensor may, at its option, elect to terminate Licensee's grant in, of or to that Category(ies) of Trademarked Product for which Licensee shall not have achieved minimum sales for two consecutive Terms by written notice delivered to Licensee within sixty (_________) days after the end of any period in which Licensee failed to maintain such required Minimum Sales. Such termination shall be effective upon delivery of said notice but shall not affect Licensee's outstanding indebtedness to Licensor or any of the provisions relating thereto, nor shall it affect Category(ies) of Trademarked Product for which Licensee achieves the Minimum NIV Sales as set forth below in this Article 8. Category 1 Category 2 Category 3 Term Year Minimum Sales Minimum Sales Minimum Sales Initial 1996/8 $,_________ $,_________ $,_________ Ext. 1 1999 $,_________ $,_________ $,_________ Ext. 2 2000 $,_________ $,_________ $,_________ Ext. 3 2001 $,_________ $,_________ $,_________ Ext. 4 2002 $,_________ $,_________ $,_________ Ext. 5 2003 $,_________ $,_________ $,_________ Ext. 6 2004 $,_________ $,_________ $,_________ Ext. 7 2005 $,_________ $,_________ $,_________ Ext. 8 2006 $,_________ $,_________ $,_________ Ext. 9 2007 $,_________ $,_________ $,_________ Ext. 10 2008 $,_________ $,_________ $,_________ Ext. 11 2009 $,_________ $,_________ $,_________ Ext. 12 2010 $,_________ $,_________ $,_________ Ext. 13 2011 $,_________ $,_________ $,_________ ARTICLE 9ADVERTISING AND ART WORK 9.1 ADVANCE SUBMISSION. Licensee shall submit to Licensor for approval all advertising and promotional items, programs and materials relating to the Trademarked Product at least fourteen (14) days prior to intended usage. Licensor shall provide Licensee with written approval or disapproval within ten (10) business days after Licensor's receipt thereof. Should Licensor disapprove, its written notice shall explain in detail the reasons for disapproval so that Licensee may prepare and submit new advertising and art work. 9.2 ART WORK. Licensor shall make available to Licensee any and all necessary film, photostats, artwork and full color reproductions of its Trademark, artwork, designs and other materials necessary for Licensee's use in accordance with this Agreement. 9.3 EXPENSE REIMBURSEMENT. Licensee shall reimburse Licensor's reasonable out-of-pocket expenses, including, reasonable hourly charges for creative personnel incurred by Licensor in the preparation for Licensee, when and if required, of new artwork, mechanical, and film. All charges shall be agreed to prior to the time such expenses are incurred, and all sums due to Licensor under this Article 9 shall be paid by Licensee upon receipt of an appropriate invoice. ARTICLE 10LICENSEE'S RECORDS Licensee shall keep and maintain at its regular place of business separate and complete books and records of all business transacted by Licensee in connection with Category 1, Category 2, Category 3 of Trademarked Product, including, but not limited to, books and records relating to Gross and NIV of sales and orders for Trademarked Product. Such books and records shall be maintained in accordance with generally accepted accounting principles and procedures consistently applied. Licensor or its duly authorized agents or representatives shall have the right to inspect said books and records at Licensee's premises during Licensee's regular business hours upon reasonable prior notice to Licensee. ARTICLE 11LICENSEE'S ANNUAL REPORTS AND ANNUAL ROYALTY PAYMENTS On or before the fifteenth (15th) day of the second (2nd) month following the end of Licensee's fiscal year, Licensee shall render to Licensor a statement certified by Licensee's Chief Financial Officer disclosing gross and NIV value of sales. Royalties due and Royalties paid for Licensee's preceding fiscal year, and for any Contract or Extension Term which ended within said fiscal year, relating to Category 1, Category 2 and Category 3 of Trademarked Product. If said statement discloses that Licensee has paid Royalties in excess of the amounts required to be paid, Licensor shall apply said excess to the next Royalty payment or, if no further Royalty payments are due, such excess shall be remitted to Licensee. ARTICLE 12AUDIT BY LICENSOR If Licensor so chooses, it may (at its expense, except as provided below) cause its independent accountants to audit or review, upon reasonable prior notice to Licensee, all books and records of Licensee pertaining Trademarked Product. Licensor shall deliver to Licensee not later than sixty (_________) days from Licensor's receipt of the applicable Report a statement describing its objections (if any) to Licensee's determination of the Royalties for the applicable period. Each of Licensor and Lic
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