HOMAGE Licensing Terms
In consideration of the agreements contained herein, by Licensor’s signature on the applicable Offer Sheet or any manifestation of its asset to the terms of the Agreement, including without limitation by its acceptance of payment in whole or in part of any Royalty fee or other payment from HOMAGE, Licensor accepts the terms and conditions of the Agreement intending to be legally bound hereby. For the avoidance of doubt, the Agreement is effective as of the Effective Date set forth on the applicable Offer Sheet.
1. Term. The Initial Term of the Agreement shall be as set forth on the applicable Offer Sheet. Following the Initial Term, the Agreement shall automatically renew for successive on (1) year periods (each a “Renewal Term”), unless the Agreement is otherwise terminated as provided herein. The Initial Term, any Renewal Terms, and the Sell-Off Period are referred to herein collectively as the Term (“Term”).
2. Payment Terms. Within thirty (30) days of each calendar quarter, HOMAGE will pay Licensor a Royalty fee for the applicable Licensed Products sold during the preceding quarter, based on the applicable percent of Net Sales and Royalty rate set forth in the Offer Sheet.
3. Offset Payments. If Licensor purchases units of Licensed Property from HOMAGE, HOMAGE may offset Royalty Payments to Licensor for any amount owed to HOMAGE for the said units of Licensed Property or other amounts owed HOMAGE.
4. Auditing. Licensor may request an audit of HOMAGE's books and records relating to Licensed Product once annually, for the prior four (4) quarters. Upon receipt of notice of the audit request from Licensor, HOMAGE will have twenty (20) business days to make HOMAGE's books and records relating to Licensed Product to Licensor available to Licensor.
5. Approved Channels. For the avoidance of doubt, approved channels for wholesale or retail sale of Licensed Products, include without limitation, Homage.com, HOMAGE retail stores, specialty chains, sporting goods stores, department stores, high-end specialty retailers, sports specialty stores, mass merchants, HOMAGE pop-up locations, and at special events and concerts where HOMAGE is a vendor.
6. Sell-Off Period. HOMAGE may continue to sell Licensed Products for up to One Hundred Twenty (120) days after termination of Agreement (the “Sell-Off Period”). During the Sell-Off Period, Licensor shall have a right of first refusal to purchase all Licensed Products at HOMAGE’s cost.
7. Indemnification. Each party shall indemnify and hold harmless each other, its subsidiaries, affiliates, related companies, assigns, directors, officers, agents and employees from any and all losses, damages, liabilities, claims, actions, disbursements and legal costs and attorneys’ fees arising out of or connected with any breach or alleged breach of either party’s representations or warranties, or covenants contained herein or any breach of either party’s obligations hereunder.
8. Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE AGREEMENT, IN NO EVENT SHALL HOMAGE OR ITS REPRESENTATIVES BE LIABLE TO LICENSOR OR ANY THIRD PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS, ANTICIPATED PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT EITHER PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE; IN NO EVENT SHALL HOMAGE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT AND THE LICENSED PRODUCTS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO LICENSOR PURSUANT TO THIS AGREEMENT IN THE THREE (3) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
9. Assignment/Sub-License. This Agreement may not be assigned or sublicensed by HOMAGE, by operation of law or otherwise, without the prior written consent of Licensor; provided that HOMAGE may assign this Agreement in connection with a sale of all or substantially all of the assets or business of HOMAGE.
10. Intellectual Property.
a. Licensor’s Materials. HOMAGE acknowledges that Licensor is the sole owner of, and retains all rights to, the Licensed Property, as well as any materials, images, or other works provided by Licensor (“Licensor’s Materials”). Use of any trademarks included in the Licensed Property or Licensor’s Materials shall inure to the benefit of Licensor. Licensor represents and warrants to HOMAGE that (a) the Licensed Property and Licensor Materials are valid, comply with all applicable laws, and do not infringe the rights of any third party; (b) the Licensor has a licensable interest in the Licensed Property; (c) Licensor has the full right, power and authority to enter into this Agreement, to grant the licenses set forth in this Agreement and to perform its obligations hereunder; (d) the execution of the Offer Sheet by Licensor’s representative has been duly authorized by all necessary action of the party; the Agreement constitutes the legal, valid, and binding obligation of Licensor; (e) neither Licensor’s grant of the license contained in the Agreement, nor the performance of any of its obligations under this Agreement will at any time during the Term conflict with or violate applicable law, require the provision of any payment or other consideration to any third party; (f) Licensor has not granted and will not grant any licenses or other continent or non-contingent right, title or interest under or related to the Licensed Property that conflict with the terms or conditions of the Agreement; there neither are nor at any time during the Term will be any encumbrances, liens, or security interests involving any Licensed Property; (g) Licensor has no knowledge after reasonable investigation of any factual, legal, or other reasonable basis for any litigation, claim or proceeding related to the Licensed Property.
b. Homage’s Materials. Subject to Licensor’s retained rights in Licensor’s Materials, HOMAGE shall own all right, title and interest in and to the Licensed Products, including any images, designs or other materials created by HOMAGE.
11. Manufacture. Manufacture of Licensed Products may be undertaken directly by HOMAGE or its contract manufacturers or suppliers. All manufacture of Licensed Products shall be in accordance with all applicable laws, rules and regulations. HOMAGE shall not use child labor in the manufacturing, packaging or distribution of products bearing the Licensed Property.
12. Insurance. HOMAGE shall obtain, at its own expense, product liability insurance from a recognized insurance company, providing adequate protection with a limit of liability (in addition to costs of defense) of not less than One Million ($1,000,000.00) Dollars per occurrence, insuring, without limitation, against any claims, suits, losses or damages arising out of any alleged defects in the Licensed Products, including actions for breach of warranty, negligence and strict liability in tort. If requested, HOMAGE shall provide Licensor with a certificate evidencing the paid policy naming the Licensor as an insured party.
13. Books and Records. HOMAGE shall maintain separate and appropriate books of account and records all in accordance with generally accepted accounting principles (including, without limitation, a sales journal, sales return journal, cash receipt book, general ledger, purchase orders, cutting tickets, and inventory records) and shall make accurate entries concerning all transactions. Licensor shall have the right to inspect such books and records in accordance with the Auditing terms above.
14. Quarterly Reports. During each quarter, at the same time Royalty payments are made under this Agreement, HOMAGE shall submit a quarterly report setting forth the number, description and invoice price of each of the Licensed Products sold (by style number), the gross sales price, and any other information that may be reasonably required by Licensor for each month during the previous calendar quarter.
15. Confidentiality. Each Party hereto shall, and shall ensure that its affiliates shall maintain the confidentiality of all data, information, reports, studies, business plans, marketing plans, procedures, strategies, proposals, financial information, suggestions and other information that constitutes proprietary or trade secret information of the other party, and other materials regarding the other party, its business, and its affiliates with the same level of care and in accordance with the same procedures as such party uses with respect to its own such data, information, reports, studies, suggestions and other similar materials, and in no event less than a standard of reasonable care., and shall not, unless otherwise required by law, at any time disclose the other party’s confidential information to third parties, for any reason whatsoever.
16. Notices. All notices to and communications with Licensor, including, without limitation, royalty payments and statements, shall be sent to Licensor Address set forth on the Offer Sheet, and all notices to and communications with HOMAGE shall be sent to HOMAGE, LLC, Attention: Director of Licensing, 4480 Bridgeway Avenue, Columbus, Ohio 43219, or such other address as may later be designated by HOMAGE.
17. Further Assurances. Each party shall, upon the reasonable request of the other party, promptly execute such documents and perform such acts as may be necessary to give full effect to the terms of this Agreement.
18. Termination. Either party may terminate this Agreement on written notice to the other party if the other party breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the breaching party receives written notice thereof.
19. Force Majeure. Neither party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, including any obligation to timely make any payment hereunder, when and to the extent such failure or delay is caused by: acts of nature; flood, fire or explosion; war, terrorism, invasion, riot or other civil unrest; embargoes or blockades in effect on or after the date of this Agreement; national or regional emergency; strikes, labor stoppages or slowdowns or other industrial disturbances; any passage of law or governmental order, rule, regulation or direction, or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition; or national or regional shortage of adequate power or telecommunications or transportation facilities (each of the foregoing, a “Force Majeure Event”).
20. Independent Contractors. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
21. Miscellaneous. The Offer Sheet may be executed in counterparts, including copies of signatures, fax copies, PDF copies via e-mail, electronic signature, or with detachable signature pages, each of which will be deemed to be an original, but all of which together will constitute one and the same instrument and will be effective as if all executed in one unified document. The terms contained in these Standard License Terms and the terms contained in the applicable Offer Sheet constitute the sole and entire agreement between HOMAGE and Licensor for the license of Licensed Property by HOMAGE from Licensor. In the event of a conflict between the terms of the Offer Sheet and these Standard License Terms, the terms of the Offer Sheet shall apply. All capitalized terms used but not defined herein shall have the same meanings as defined in the applicable Offer Sheet. This Agreement sets forth the entire understandings among the parties and supersedes all prior conversations, agreements, understandings, writings and representations between any of them or among all of them with respect to the subject matter of this Agreement. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement. No modification, amendment, waiver, termination, or discharge of this Agreement will be binding unless in writing and signed by the party to be charged. Any action or dispute under or relating to the terms of this Agreement, or the breach of this Agreement, will be litigated in Franklin County, Ohio. This Agreement will be construed under and governed by the laws of the State of Ohio, without giving effect to any conflicts of laws principles.