NAPPA License Agreement

NAPPA LICENSE AGREEMENT

THIS LICENSE AGREEMENT (hereinafter Agreement), made as of this ______ day of _________________, 201__, is by and between Epstein Custom Media Inc., (hereinafter “LICENSOR”) and ______________________________________ (hereinafter “LICENSEE”).

WITNESSETH: (Please complete the following information.)

WHEREAS, LICENSOR sponsors, coordinates and owns certain rights and interests to an awards program titled National Parenting Product Awards (hereinafter “Program”) in which a judge or panel of judges selects certain children’s media and toys or parenting products and resources;

WHEREAS, LICENSOR has rights to the trademarks, names, symbols, designs, likenesses and visual representations of NAPPA logo/seal, which trademarks, names, symbols, designs, likenesses and visual representations are hereinafter referred to as the “Property”;

WHEREAS LICENSEE was awarded a NAPPA award in the __________ (indicate year awarded) Program for its product titled ____________________________________ _______________________________ (hereinafter referred to as the “Product”); and

WHEREAS, LICENSEE desires a license to utilize said Property in connection with its business of the sale of the Product;

NOW, THEREFORE, in consideration of the mutual promises herein contained, it is mutually agreed as follows:

1. LICENSE. The subject of this license is the NAPPA Award logo/seal, (hereinafter referred to as the “Licensed Property”), and is attached hereto as Exhibit A and incorporated herein by reference. LICENSOR hereby grants to LICENSEE a nonexclusive, royalty-free, revocable, and limited license to:

̈¨¨(a) publish or display the Licensed Property on the packaging of the Product (“Product License”); AND/OR ̈¨¨(b) publish or display the Licensed Property in conjunction with the Product in its catalogue or printed promotional materials entitled ____________________________________ (“Catalogue License”); AND/OR ̈¨¨(c) publish or display the Licensed Property on its internet web site (“Internet License”).

2. DELIVERY. LICENSOR shall deliver the Licensed Property to LICENSEE in digital format on a tangible media as mutually agreed by the parties.
3. FEES. Upon execution of this Agreement and in consideration of the rights granted to use the Licensed Property herein, LICENSEE shall pay LICENSOR the following fees:, $0.00 for the NAPPA Seal dated with the year of the award win; $_____$350 for Licensing Agreement One Year Renewal to include the Product License, Catalogue License and Internet License. $____ $1,300 for a non-dated Lifetime Seal (valid only if the product does not have substantial changes).
4. TERM. Subject to Section 9 of this Agreement, the term of this Agreement shall begin on the date first written above and shall continue until Licensor gives notice, at its option, of revocation, which shall not be sooner than one year subsequent to the date hereof.
5. GOODWILL. Notwithstanding anything contained in this Agreement, any and all goodwill arising from the use of the Licensed Property as set forth in Section 1 of this Agreement, shall inure to the benefit of LICENSOR. LICENSEE shall not assert any claim to any goodwill associated with the Licensed Property.
6. QUALITY. LICENSOR has reviewed and surveyed LICENSEE’s proposed use of the Licensed Property, as of the date of this Agreement, and has found that LICENSEE’s proposed use of the Licensed Property meets LICENSOR’s high standard of quality. LICENSEE agrees to maintain such high standard of quality of usage. If LICENSEE at any time makes any material change to the Product (including without limitation, the content or packaging thereof), LICENSEE shall not publish or display the Licensed Property on the packaging of such changed Product without LICENSOR’s prior inspection and approval thereof. LICENSEE shall operate its business in accordance with the highest standards of quality associated with the children’s media and toy industry, and in compliance with all applicable trademark laws and governmental regulations. LICENSOR or its designated representative shall be permitted, at a reasonable time, to inspect any facility used in said business and review any advertising or other documents targeted to LICENSEE’s customers or the public and related to or containing the Licensed Property. LICENSEE shall not use the Licensed Property in any way that implies that any product or service of LICENSEE other than the Product has been awarded an award in the Program.
7. PROPRIETARY RIGHTS.
   (a) Sole and Exclusive Ownership. LICENSEE acknowledges that LICENSOR is the sole and exclusive owner of all right, title and interest in the Property and that nothing contained in this Agreement shall be construed to convey any rights or proprietary interests in the Property, other than the license granted in Section 1 of this Agreement.

(b) Restrictions. Notwithstanding anything contained in this Agreement, LICENSEE shall: (i) not grant any licenses for use of the Licensed Property by any third party or in contravention to the use as explicitly set forth in Section 1 of this Agreement; (ii) not at any time challenge or contest the validity, ownership, title, or registration of LICENSOR in and to the Licensed Property or the validity of the license granted hereunder; (iii) not acquire, or make any representation or otherwise take any action to imply that it owns, any right, title or interest in the Licensed Property, other than the rights granted to LICENSEE herein; (iv) execute such documents as LICENSOR may request from time to time to ensure that all right, title, interest in and to the Licensed Property resides with LICENSOR; or (v) not adopt or use, without LICENSOR’s prior written consent, any variation of the Licensed Property or any mark, name, symbol, word(s) or logo confusingly similar to the Licensed Property or Property (vi) not use the Licensed Property in combination with any other name or symbol, word(s), logo or mark so as to form a composite mark; (vii) not incorporate the Licensed Property in LICENSEE’s corporate name or trade name in any manner whatsoever; (viii) not use any name or marks with the Licensed Property as to form a new mark.

(c) LICENSEE’s Material Breach. LICENSEE acknowledges that any breach by it of any provision of this Section 7 is material and, notwithstanding any other provision of this Agreement, this

Agreement shall immediately terminate upon any such breach that is not cured within ten (10) business days of LICENSEE receiving notice or otherwise becoming aware of such breach.

8. PROMOTIONAL MATERIAL. LICENSEE may only use the Licensed Property in marketing and promotional materials which are related to the Product and include the packaging thereof (“Promotional Material”). Any Promotional Material must be approved by LICENSOR prior to distribution or publication thereof. If LICENSEE refers to the Program in any text of Promotional Material, LICENSEE must use the following language:

“A NAPPA winner” or “A National Parenting Product Award winner.” A program sponsored by Epstein Custom Media (“Promotional Language”). Winning products that are ongoing in their development – such as websites, magazines, radio and television series, etc. – must include the year of the award when making reference to their award. “A 2018 NAPPA winner” or “A 2018 National Parenting Product Awards winner.”

9. TERMINA TION.
   (a) General. Notwithstanding Section 4 and except as provided in Section 7, if LICENSEE breaches any of the terms and conditions of this Agreement, then in such event LICENSOR may terminate this Agreement on thirty (30) days prior written notice to LICENSEE; provided however that if LICENSEE removes the cause or causes of such breach to LICENSOR’s reasonable satisfaction and before the expiration of such 30-day period, LICENSOR shall rescind, in writing, such notice of termination.

(b) Effect of Termination. Upon termination of this Agreement, for any reason, all licenses and rights granted under Sections 1 and 7 of this Agreement shall immediately terminate; and

(c) Disposal of Stock Upon Termination. Upon termination of this Agreement, for any reason, other than any termination pursuant to Section 9(d) or due to LICENSEE’s breach, LICENSEE shall have the right to sell any remaining units of the Product in its possession bearing the Licensed Property (“Excess Units”) and to use any Promotional Materials from which the Licensed Property cannot be removed by LICENSEE’s reasonable efforts, until the earlier of (i) three months after such termination or (ii) the date that all such Excess Units have been sold (the “Sell-Off Period”), whichever is sooner. If after the three-month anniversary of such termination, LICENSEE still has Excess Units in its possession, LICENSEE shall promptly destroy all such Excess Units and provide LICENSOR with certification, signed by a senior officer of LICENSEE, that LICENSEE has done so, unless LICENSOR shall have agreed in writing to extend the Sell-Off Period.

(d) Immediate Termination. LICENSEE agrees that this Agreement shall terminate in any jurisdiction in which LICENSOR becomes aware that it does not own all right, title and interest in the Licensed Property, immediately upon LICENSOR’s becoming aware.

(e) Survival. The provisions of Sections 5, 7, 11, 13(f), 13(g) and 13(h) shall survive the termination of this Agreement.

10. REPRESENTATIONS, WARRANTIES AND COVENANTS.
    (a) By the Parties. Each of LICENSOR and LICENSEE represents and warrants that it has full right, power and authority to enter into this Agreement and to perform all of its obligations hereunder.

(b) By LICENSEE. (i) LICENSEE represents and warrants that it has obtained and covenants that it shall continue to maintain, from financially sound and reputable insurance companies, product liability, errors and omissions, and other insurances (“Insurance”), all in such amounts and insuring against such risks as are customarily maintained by companies engaged in the same businesses or in the same industry as LICENSEE. LICENSEE covenants that it shall timely pay all premiums, fees and charges required in connection with each of its Insurance policies. Upon LICENSOR’s written request that LICENSEE add LICENSOR as an additional insured under each such policy and deliver to LICENSOR a copy of each such policy, LICENSEE shall promptly do so. (ii) LICENSEE covenants that it shall cause all use of the Licensed Property to reproduce faithfully in full design and appearance thereof.

(c) No Additional Warranties. EXCEPT AS EXPRESSLY CONTAINED HEREIN, EACH PARTY SPECIFICALLY DISCLAIMS ANY ADDITIONAL REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

11. INDEMNIFICATION.
    (a) By LICENSOR. LICENSOR shall indemnify and hold LICENSEE, and its assigns, successors, affiliates and subsidiaries, and its respective employees, representatives, officers, directors, and agents, harmless from and against any claims or damages with respect to any suit, claim, or proceeding brought against LICENSEE alleging that the Licensed Property constitutes an infringement of any person or entity’s trademark rights.

(b) By LICENSEE. LICENSEE shall indemnify and hold LICENSOR, and its assigns, successors, affiliates and subsidiaries, and its respective employees, representatives, officers, directors, and agents harmless from and against any claims, expenses or damages with respect to any suit, claim, or proceeding brought against LICENSOR and arising out of LICENSEE’s: (i) distribution, marketing, sale or any other use of the Product, including without limitation, claims alleging (x) that the Product infringes a third party’s copyright, trademark, proprietary, trade secret, right of privacy or publicity, patent, or other similar rights or interests, or (y) defect(s) in the Product, or (z) acts of unfair competition by LICENSEE; or (ii) use of the Licensed Property, except as provided in Section 11(a) of this Agreement. LICENSEE further represents and warrants that the Product has not been manufactured with lead paint or any other materials toxic to humans, and further agrees to indemnify, defend and hold harmless LICENSOR from any and all claims related to the Product, including but not limited to issues related to toxicity.

(c) Mechanics of Indemnification. LICENSEE shall promptly notify LICENSOR of any possible infringements, imitations, or unauthorized use of the Licensed Property by others of which the LICENSEE becomes aware. LICENSEE shall promptly notify LICENSOR of the full details of such infringements, imitations, or unauthorized use of the Licensed Property, and shall assist in preventing any recurrence thereof. LICENSOR shall have the sole right to bring, at its expense, any action on account of such infringements, imitations, or unauthorized use of the Licensed Property and LICENSEE shall cooperate with LICENSOR, as LICENSOR may request, in connection with any such action. Any proceeds of any such action shall be applied first to offset expenses incurred by LICENSOR in connection therewith, then to offset expenses incurred (if any) by LICENSEE to cooperate with LICENSOR in connection therewith, and LICENSOR shall solely be entitled to the remaining balance. LICENSEE may, at its sole option and expense, participate in any such action through separate counsel of its own choosing.

12. LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR LOSS OF PROFITS, REVENUES OR DATA, OR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13. MISCELLANEOUS PROVISIONS.
    (a) Entire Agreement. This Agreement constitutes the entire agreement of the parties regarding the subject matter contained herein and incorporates and supersedes all prior written or oral representations, negotiations, statements, and agreements made by and among the parties hereto.

(b) Assignment. LICENSOR or LICENSEE may assign its rights and obligations under this Agreement to any corporation or other entity controlled by, or under common control with, LICENSOR or LICENSEE, or to any entity that succeeds to substantially all of the business assets of LICENSOR or LICENSEE. Should either party elect to so assign this Agreement then such assigning party shall notify the other party of (1) its intent to assign no less than ten (10) business days before such assignment and of (2) the actual assignment no more than three (3) business days after such has occurred.

(c) Modification and Waiver. Any modifications or waivers to this Agreement must be in writing and signed by all parties hereto. Failure to enforce any provision(s) contained herein or to require performance of any provision(s) herein shall not be construed to be a waiver of such provision(s) of this Agreement.

(d) Notices. Any notices required or permitted hereunder shall be given to the appropriate party at the address specified herein or at such other address as the party shall specify in writing. Such notice shall be deemed given: upon personal delivery; if sent by fax, upon confirmation of receipt; or if sent by certified or registered mail, postage prepaid, three (3) days after the date of mailing.

(e) Severability and Reformation. In the event that any provision of this Agreement is held to be invalid, illegal, or unenforceable, by any court of competent jurisdiction, the remaining provision(s) shall be unimpaired, and a valid, legal, and enforceable provision, as similar in terms to such invalid, illegal, or unenforceable provision(s) as possible, shall be automatically added as a part of this Agreement.

(f) Injunctive Relief. LICENSEE acknowledges that monetary relief shall be inadequate as a sole remedy in the event that LICENSEE breaches this Agreement and LICENSOR shall be entitled to injunctive relief in the event of any such breach.

(g) Headings. The section headings contained herein are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement.

(h) Governing Law. This Agreement shall be governed by the laws of the State of California and any actions brought by either party shall be brought in U.S. District Court, Central District, State of California or the City Court of the City of Los Angeles.

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date shown above. LICENSOR: Epstein Custom Media, Inc.

______________________________________________________ Printed Name Title

______________________________________________________ Signature Date

LICENSEE:

_____________________________________________________ Company

_____________________________________________________ Business Address

_____________________________________________________ Printed Name Title

_____________________________________________________ Signature Date

_____________________________________________________ Email