Exhibit 10.18

TERM: The rights granted hereunder shall be perpetual, unless sooner terminated in accordance with the provisions of this Agreement (the “Term”).

C.

TERRITORY; NBA controlled channels, including without limitation. In-arena concessionaires of the Member Teams, The NBA Store on 5th Avenue in New York City, the NBA Store on NBA.com (or other such URL designated by NBAP). and NBA City (collectively, the “Authorized Purchasers”).

D.

PURCHASES; ROYALTY RATES; STATEMENTS; LICENSEE shall make Licensed Products only for sale to the Authorized Purchasers and only pursuant to purchase orders duly issued by the Authorized Purchasers (the “Purchase Order”). LICENSEE shall pay to NBAP a combined royalty and advertising promotion payment equal to 12% of the aggregate price of all. Licensed Products purchased by the Authorized Purchasers from LICENSEE (hereinafter referred to as a “Combined Royalty Payment”),

 

Within thirty (30) days following the end of each month, LICENSEE shall furnish to NBAP (on forms provided-by NBAP), a full and accurate statement indicating units sold, unit price, and the calculation of Combined Royalty Payments and, simultaneously with the submission of each such statement, LICENSEE shall make all Combined Royalty Payments due under this Agreement.

1.

2.

3.

 

(a)

Assistance in Protecting Marks: LICENSEE shall cooperate to the fullest extent necessary to assist NBAP in the protection of the rights of NBAP, the NBA, the WNBA and their respective Member Teams in and to the Licensed Marks. Without limiting the effect of the preceding sentence, if any of LICENSEE’S authorized Third Party Contributors (as defined in Paragraph 7 below) uses the Licensed Marks for any unauthorized purpose, LICENSEE shall be responsible for, and shall cooperate fully and use its best efforts to stop, such unauthorized use.

 

(b)

Ownership of Other Intellectual Property: LICENSEE acknowledges that NBAP and/or the Member Teams are the exclusive owners of all variations of the Licensed Marks and all designs or graphics that incorporate any aspect of the Licensed Marks. Any intellectual property rights in the Licensed Marks that may accrue to LICENSEE shall inure to the benefit of NBAP and shall be assigned to NBAP upon its request.

(c)

Designs: All designs of the Licensed Products, including any packages, containers or tags, shall be subject to NBAP’s prior written approval and shall be used solely in furtherance of this Agreement, and such designs will not be used in any other respect by LICENSEE nor will LICENSEE permit any third party to use such designs, except as may be authorized by NBAP. Notwithstanding the foregoing, NBAP acknowledges that LICENSEE may hold other licenses pursuant to which LICENSEE manufactures, distributes or sells products similar in design to the Licensed Products, and nothing in this Agreement is intended to prohibit LICENSEE’S manufacture, distribution or sale of such products not bearing or relating to the Licensed Marks.

(d)

Notices, Labeling and Records: NBAP may from time-to-time designate such copyright, trademark or service mark notices (including the form, location and content of such notices) that LICENSEE shall cause to appear on or within each Licensed Product sold, by means of a tag, label, imprint or other appropriate device, in every instance in which any Licensed Mark is used. The following applicable, general notice (in the English language and the language of the country where the Licensed Products will be sold) must be included on a label, the packaging material or on a separate slip of paper packed with or attached to the Licensed Product:

 

LICENSEE Indemnification; LICENSEE shall be solely responsible for, and shall defend, hold harmless and indemnify NBAP, NBA Media Ventures, LLC (“NBAMV”), the NBA, the WNBA, their respective Member Teams and the National Basketball Players Association (“NBPA”), and their respective affiliates, owners, directors, governors, officers, employees and agents (collectively “NBA Parties”) against any claims, demands, disputes (including disputes arising out of or in connection with this Agreement between the parties hereto) causes of action or damages, including attorneys’ fees (collectively, “Claims”), arising out of an allegation relating or referring to: (i) any act or omission of LICENSEE, any Third Party Contributor (as defined In Paragraph 7 below) or any other entity acting on LICENSEE’S behalf (whether or not approved by NBAP pursuant to this Agreement), (ii) any breach of this Agreement by LICENSEE, any Third Party Contributor or any other entity acting on LICENSEE’S behalf (whether or not approved by NBAF pursuant to this Agreement), (iii) the manufacture, distribution, sale, possession or use of any Licensed Product (including, but not limited to, claims relating to (w) any alleged defect (whether obvious or hidden and whether or not present in any sample approved by NBAP) in a Licensed Product or in any packaging or other materials, (x) any alleged injuries to persons or property, (y) any infringement of any rights of any person or entity or (z) the alleged failure by LICENSEE, any Third Party Contributor or any other entity acting on LICENSEE’S behalf (whether or. not approved by NBAP pursuant to this Agreement), to comply with applicable laws, regulations, standards, the terms of the NBAP vendor compliance guide, as amended from time to time by NBAP (the “Compliance Guide”), or the terms of the NBAP Code of Conduct, as amended from time to time by NBAP (the “Code of Conduct”), attached hereto as Exhibit A or (iv) any claim that any Licensed Product or element thereof violates or infringes upon the trademark, copyright or other intellectual property rights (including trade dress and rights of publicity and privacy) of a third party, provided LICENSEE is given prompt written notice of any such Claim. NBAP shall have the option to undertake and conduct the defense of any such Claim at LICENSEE’S expense. In the event NBAP has opted to allow LICENSEE to undertake and conduct the defense of any Claim in any instance to which the foregoing indemnities pertain, NBAP shall approve of the counsel who shall conduct the defense of such Claim. In any instance to which such indemnities pertain, LICENSEE shall keep NBAP fully advised of all developments pertaining to such Claim and shall not enter into a settlement of such Claim or admit liability or fault without NBAP’s prior written approval. LICENSEE shall obtain and maintain product liability insurance providing protection for the NBA Parties against any Claims arising out of any alleged defects in the Licensed Products or any use of the Licensed Products, in an amount and providing coverage satisfactory to NBAP (including the amount of the deductible, rating of insurance and notice provisions). Such insurance obligations shall not limit LICENSEE’S indemnity obligations.

 

(b)

NBAP Indemnification: NBAP shall be solely responsible for, and shall defend, hold harmless and indemnify LICENSEE, its directors, officers, employees and agents against any Claims arising out of an allegation relating or referring to: (i) a claim that the use of the Licensed Marks as specifically approved by NBAP in accordance with the terms of this Agreement violates or infringes upon the trademark, copyright or other intellectual property rights (including trade dress) of a third party in or to the Licensed Marks or (ii) any breach of this Agreement by NBAP, provided NBAP is given prompt written notice of and shall have the option to undertake and conduct the defense of any such Claim. In any instance to which the foregoing indemnities pertain, LICENSEE shall cooperate fully with and assist NBAP in all respects in connection with any such defense. In any instance to which such indemnities pertain, , NBAP shall not enter into a settlement of such Claim or admit liability or fault without LICENSEE’S prior written approval.

(c)

Release: In consideration of the rights granted under this Agreement, except with respect to Claims for which NBAP indemnifies LICENSEE pursuant to Paragraph 5(b), LICENSEE hereby releases the NBA Parties from any Claims that, now or in the future arise out Of or in any manner relate to the manufacture, distribution or sale of the Licensed Products.

 

(a)

Pre-Production: Before producing or distributing of any product bearing a Licensed Mark, LICENSEE shall submit to NBAP all artwork, three dimensional models (if any), prototypes, mock-ups and samples of each product in accordance with the procedures set forth in the Compliance Guide. NBAP shall approve or disapprove in writing all submissions, in its sole discretion, before LICENSEE shall be entitled to distribute, use, produce commercial quantities of or sell any item relating to any such submission. All approvals or authorizations by NBAP are to be granted or withheld in NBAP’s sole discretion and must be evidenced in writing. LICENSEE acknowledges that NBAP’s approval of an article does not imply approval of, or license to use, any elements not owned or controlled exclusively by NBAP contained in the article.

 

(b)

Promotional Use of Product: If NBAP wishes to purchase Licensed Products for give-away purposes and not for resale, LICENSEE shall sell the Licensed Products to NBAP at LICENSEE’S direct manufacturing cost for such Licensed Products and LICENSEE shall not be required to make Combined Royalty Payments on such sales to NBAP.

 

(c)

Rejections and Non-Compliance: All submissions or samples not approved by NBAP shall promptly be destroyed by LICENSEE. In the event of LICENSEE’s unapproved or unauthorized manufacture, distribution, use or sale of any products or materials bearing the Licensed Marks, or the failure of LICENSEE to comply with Paragraphs 6, 7(a) or 7(b), NBAP shall have the right: (i) to revoke LICENSEE’S rights with respect to any Licensed Product and cancel any Purchase Order for any Licensed Product, without liability, whether or not such Licensed Product has already been received and/or accepted by NBAP, and if already received by NBAP, such Licensed Product shall be returned to LICENSEE at Its own expense and risk and/or (ii) at LICENSEE’S expense, to confiscate or order the destruction of such unapproved, unauthorized or non-complying products. Such right(s) shall be without prejudice to any other rights NBAP may have under this Agreement, the Purchase Order or otherwise.

 

 

 

(a)

Third Party Contributors: If LICENSEE desires to use a third party manufacturer, supplier, subcontractor or sublicensee (each, a “Third Party Contributor”) in connection with the manufacturing of all or any part of a Licensed Product, LICENSEE must first notify NBAP of the name and address of such proposed Third Party Contributor and of the Licensed Product LICENSEE desires such proposed Third Party Contributor to manufacture. NBAP shall have the right, in its sole discretion, to withhold or withdraw approval of any proposed Third Party Contributor and may predicate its approval on any terms or conditions as NBAP shall determine in its sole discretion. LICENSEE may not use a Third Party Contributor in connection with the manufacture of all or any part of a Licensed Product prior to receiving such approval from NBAP. Attached as Schedule A is a true and complete list of all Third Party Contributors authorized by NBAP as of the date of execution of this Agreement.

 

(b)

Conduct Requirements: LICENSEE represents and warrants to NBAP that LICENSEE shall faithfully comply with and adhere to, and LICENSEE shall take all steps necessary to ensure that all Third Party Contributors shall faithfully comply with and adhere to, all of the terms, provisions and policies contained in this Agreement, the Code of Conduct and the Compliance Guide and all applicable United States and foreign laws, government rules and regulations, court and administrative decrees and the highest standard of business ethics then prevailing in the industry with regard to the conduct of all aspects of LICENSEE’S (or any Third Party Contributors) business and the manufacture, distribution, sale, testing and use of all Licensed Products (collectively, “Conduct Requirements”). NBAP and its authorized representatives shall have the right, upon reasonable prior notice, to examine and audit LICENSEE to ensure compliance with the Conduct Requirements, LICENSEE shall allow NBAP or its designee or NBAP’s or its designee’s authorized representatives access to any of its premises, personnel and business records at all reasonable times for the purposes of such auditing. LICENSEE shall take all necessary steps in negotiating contracts with Third Party Contributors to provide NBAP and its authorized representatives with a contractual right to audit such Third Party Contributors to ensure compliance with the Conduct Requirements, including the right of NBAP to have access to the premises and personnel of any Third Party Contributor at all reasonable times for the purposes of such auditing.

 

(c)

Governmental Approvals: It shall be LICENSEE’S sole responsibility, at its sole expense, to obtain all approvals of all governmental authorities which may be necessary in connection with the Licensed Products and LICENSEE’S performance under this Agreements.

8.

9.

12.

 

(a)

Waiver: None of the provisions of this Agreement can be waived or modified except expressly by a writing signed by both parties. There are no representations, promises, agreements, warranties, covenants or undertakings by either party other than those contained in this Agreement No failure on the part of NBAP to exercise any right under this Agreement shall operate as a waiver of such right; nor shall any single or partial exercise of any right preclude any other or further exercise or the exercise of any other rights.

 

(b)

Survival: No termination of this Agreement shall relieve LICENSEE of its obligation to pay NBAP any amounts due to NBAP at the time of termination, regardless of whether these amounts are then or thereafter payable. The provisions of Paragraphs 8 and 19(d) shall survive the termination of this Agreement.

 

(c)

Governing Law and Jurisdiction: This Agreement shall be construed in accordance with the laws of the State of New York, USA, without regard to its principles of conflicts of laws. Any claim arising under this Agreement (except as provided under Paragraph 14) shall be prosecuted only in a federal or state court of competent jurisdiction located within the City of New York, USA and LICENSEE consents to the jurisdiction of such court and to the service of process by mail.

 

(d)

Confidentiality: LICENSEE shall not (nor shall it permit or cause its employees or agents or any Third Party Contributor to) divulge, disseminate or publicize the terms of, or the information relating to, this Agreement to any third party (other than its attorneys or accountants), except as may be required by law or to fulfill the terms of this Agreement.

 

(e)

Construction: This Agreement has been executed in a text using the English language, which text shall be controlling. This Agreement, together with any exhibits or attachments, when fully-executed shall constitute the entire agreement and understanding between the parties and cancels, terminates and supersedes any prior agreement or understanding relating to the subject matter of this Agreement between LICENSEE and the NBA, WNBA any Member Team, NBAP or NBAMV. The headings in this Agreement are for reference purposes only and shall not affect the interpretation of this Agreement. This Agreement shall not be binding on NBAP until signed on its behalf by its President or Executive Vice President. Global Merchandising Group or such other executive designated by the President to sign # # #

·  

Wages and Benefits: Product Suppliers shall provide wages, overtime compensation and benefits at not less than the minimum levels required by applicable laws and regulations or the prevailing local industry levels, if higher.

·  

Working Hours: Product Suppliers shall, at a minimum, comply with all applicable working hours laws and regulations. Except in unusual business circumstances, employees shall not be required to work more than the lesser of (a) 48 hours per week and 12 hours of overtime or (b) the limits on regular and overtime hours allowed by local law or, where local law does not limit the hours of work, the regular work week in such locality plus 12 hours of overtime. In addition, except in unusual business circumstances, employees shall be entitled to at least one day off in every seven-day period.

·  

Child Labor: Product Suppliers shall not employ any person under the age of 15 (or 14 where allowed by local law) or under the local age for completing compulsory education, if higher

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Forced Labor: Product Suppliers shall not use any forced labor, whether in the form of prison labor, indentured labor, bonded labor or otherwise.

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Harassment or Abuse: Product Suppliers shall treat each employee with dignity and respect, and shall not use corporal punishment, threats of violence or other forms of physical, sexual, psychological or verbal harassment or abuse.

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Nondiscrimination: Product Suppliers shall not discriminate in employment practices on the basis of race, religion, age, nationality, social or ethnic origin, gender, sexual orientation, political opinion or disability.

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Freedom of Associations Product Suppliers shall recognize and respect the right of employees to join organizations of their own choosing and shall neither threaten nor penalize employees for their efforts to organize or bargain collectively.

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Health and Safety: Product Suppliers shall provide employees with a safe and healthy working environment. Manufacturing facilities shall, at a minimum, contain clean restrooms, potable water, adequate fighting, adequate ventilation and fire exits, Residential facilities, if provided, shall also be kept sanitary and safe.