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d462356.txt
10.6 TRADEMARK LICENSE AGREEMENT
EXHIBIT 10.6
TRADEMARK LICENSE AGREEMENT
---------------------------
Introduction
------------
This Trademark License Agreement, dated as of July 8, 1999 (as the
same may be supplemented, modified, amended, restated or replaced from time to
time in the manner provided herein, this "Agreement"), is by and between SPAR
Marketing Services, Inc., a Nevada corporation currently having an address at
303 South Broadway, Suite 140, Tarrytown, New York 10591(the "Licensee"), and
SPAR Trademarks, Inc., a Nevada corporation currently having an address at 303
South Broadway, Suite 140, Tarrytown, New York 10591 (the "Licensor"). The
Licensor and the Licensee are sometimes referred to herein individually as a
"Party" and collectively as the "Parties".
Recitals
--------
The Licensor is the owner of the Trademarks (as these and the other
capitalized terms used in these Recitals are defined in Section 1, below) with
respect to the Products and Services, and the Licensee desires to use the
Trademarks in the Territory in connection with the Products and Services. The
Licensor is willing to grant to the Licensee the nonexclusive right and license
to use the Trademarks on and in connection with the Products and Services in the
Territory, all upon the terms and provisions and subject to the conditions set
forth in this Agreement.
Agreement
---------
In consideration of the foregoing, the mutual covenants and agreements
hereinafter set forth, and other good and valuable consideration (the receipt
and adequacy of which is hereby acknowledged by the Parties), the Parties hereto
hereby agree as follows:
Section 1. Definitions. Each use in this Agreement of a neuter pronoun
shall be deemed to include references to the masculine and feminine variations
thereof, and vice versa, and a singular pronoun shall be deemed to include a
reference to the plural variation thereof, and vice versa, in each case as the
context may permit or require. Capitalized terms used herein and not otherwise
defined shall have the meanings ascribed to them in the Merger Agreement (as
hereinafter defined). As used in this Agreement, the following capitalized terms
and non-capitalized words and phrases shall have the meanings respectively
assigned to them below, which meanings shall be applicable equally to the
singular and plural forms of the terms so defined:
(1) "Merger Effective Time" shall mean the "Effective Time" under (and
as defined in) the Agreement and Plan of Merger dated as of February 28, 1999,
among the SPAR Companies and the PIA Companies (which is the time the merger
thereunder takes effect and the SPAR Companies and PIA Companies come under
common control), as the same may be supplemented, modified, amended, restated or
replaced from time to time in the manner provided therein (the "Merger
Agreement").
(2) "PIA Company" and "PIA Companies" shall respectively mean any one
or more of PIA Merchandising Services, Inc., a Delaware corporation, SG
Acquisition, Inc., a Nevada corporation (which is merging into SPAR Acquisition,
Inc.), PIA Merchandising Co., Inc., a California corporation, and their
respective subsidiaries as of the Merger Effective Time.
(3) "Products" shall mean the products claimed in the registrations
for the Trademarks listed in Exhibit A hereto and any other products for which
the Licensor has such Trademark rights.
(4) "Representative" of any Party shall mean any of its directors,
officers, employees, attorneys, heirs, executors, administrators, or agents, any
of such Party's sublicensees, affiliates, successors and assigns, or any of
their respective directors, officers, employees, attorneys, heirs, executors,
administrators, or agents.
(5) "Services" shall mean the services claimed in the registrations
for the Trademarks listed in Exhibit A hereto and any other services for which
the Licensor has such Trademark rights.
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(6) "SPAR Company" and "SPAR Companies" shall respectively mean any
one or more of SPAR Acquisition, Inc., a Nevada corporation, SPAR Marketing,
Inc., a Delaware corporation, SPAR Marketing, Inc., a Nevada corporation, SPAR
Marketing Force, Inc., a Nevada corporation, SPAR, Inc., a Nevada corporation,
SPAR/Burgoyne Retail Services, Inc., an Ohio corporation, SPAR Incentive
Marketing, Inc., a Delaware corporation, SPAR MCI Performance Group, Inc., a
Delaware corporation, and SPAR Trademarks, Inc., a Nevada corporation.
(7) "Territory" shall mean the United States and Canada.
(8) "Trademark" and "Trademarks" shall respectively mean any and all
of the registered trademarks of the Licensor registered in the United States and
Canada listed in Exhibit A hereto, any additional registered trademarks of the
Licensor deriving or containing any Trademark, and any and all renewals thereof.
Section 2. Grant of License and Affiliate Sublicenses; Limits on Use.
(1) License. Subject to the terms and conditions herein contained, the
Licensor hereby grants to the Licensee a royalty-free, nonexclusive license to
use: (i) the Trademarks (alone or as part of other words or phrases) on and in
connection the Products and Services in the Territory; and (ii) to the extent
the Licensor has any right, title or interest therein, the name "SPAR" (alone or
as part of other words or phrases) in its legal and/or trade name and on or in
connection with any products or services other than the Products and Services.
(2) Sublicenses. The Licensee from time to time may add one or more
subsidiaries or affiliates (but only those under common ownership and control
with the Licensee) as a sublicensee under this Agreement (each a "Sublicensee"
and collectively "Sublicensees"). Each Sublicensee hereby assumes and agrees to
be bound by the terms, provisions and conditions as set forth in this Agreement
as if it were the "Licensee" and a "Party" hereunder. In the event the control
or ownership of any Sublicensee, its business or substantially all of its assets
are sold or transferred so that such Sublicensee, business or assets cease to be
under common ownership and control with the Licensee, such subsidiary or
affiliate shall automatically cease to be a Sublicensee hereunder from and after
such sale or transfer, without, however, relieving or otherwise affecting any of
the obligations of such former Sublicensees with respect to its obligations with
respect to actions or events arising prior to such sale or transfer.
(3) License May Follow Group Sale. In the event that the control or
ownership of all or substantially all of the Licensee and Sublicensees or all or
substantially all of their businesses or assets are sold or transferred (a
"Group Sale"), this Agreement may be transferred (in whole) as part of such
Group Sale by written notice to the Licensor and (if an asset sale) the
assumption of this Agreement by the purchasers by the delivery to the Licensor
of an assumption agreement in form and substance reasonably acceptable to the
Licensor, duly executed by the new Licensee. Any entity not included in the
Group Sale shall automatically cease to be a Licensee or Sublicensee hereunder
from and after such sale or transfer, without, however, relieving or otherwise
affecting any of its obligations with respect to actions or events arising prior
to such sale or transfer.
(4) No Unpermitted Users. No Party shall cause, suffer, or permit any
of its affiliates or cause any other person to use any Trademark in any material
respect unless such person is a permitted Licensee or Sublicensee hereunder.
Section 3. Term. The term of this Agreement shall commence on the date
of this Agreement and continue through December 31, 2098 (as and if extended
pursuant to this Section, the "Term"). The Term of this Agreement is
automatically renewable for additional consecutive ninety-nine year terms. If
the Licensee (in the Licensee's sole and absolute discretion) chooses not to
renew, a written request from the Licensee seeking termination must be received
by the Licensor at least 90 days prior to the scheduled end of the then current
Term. The Term is also subject to earlier termination as provided in this
Agreement. Upon the termination of this Agreement by the Licensee, (i) the right
and license to use the Trademarks granted to the Licensee hereunder shall
forthwith terminate, (ii) the Licensee shall promptly thereafter shall cease and
desist from using the marks on or in connection with the Products or Services,
and (iii) the Licensee shall, promptly upon receipt of the written request of
the Licensor, without charge, execute any and all documents, and record them
with any and all appropriate governmental agencies within the
-2-
Territory, as may be necessary to remove the Trademarks from its company name
and to otherwise reasonably evidence that the Licensee no longer has the right
and license to use the Trademarks; provided, however, that upon such termination
of this Agreement, the Licensee shall have the right to continue to sell any
existing inventory of the Products and to use the Trademarks in connection with
such sale for a period of up to three months after the effective date of
termination of this Agreement.
Section 4. Non-Exclusivity of License; Limits on Licensor's Use and Licensing
Rights: Validity of Trademarks.
(1) Retained Rights and Limits on Use. The Licensee acknowledges and
agrees that, all rights in the Trademarks, other than those specifically granted
in this Agreement, are reserved by the Licensor, and the Licensor may (during
the Term or thereafter) specifically grant other licenses to use the Trademarks
on or in connection with (i) any one or more of the Products and Services within
or outside the Territory or (ii) any other products or services within or
outside the Territory to the extent it has rights therein.
(2) Ownership and Validity of Trademarks. The Licensee acknowledges
and agrees that the Licensor is the legal, valid and exclusive owner of the
Trademarks. The Licensee covenants and agrees that it will not, individually or
with any other licensee or person, at any time during the term of this Agreement
or thereafter, directly or indirectly, challenge, contest or aid in challenging
or contesting (i) the legality or validity of any of the Trademarks, (ii) the
ownership by the Licensor of any of the Trademarks, or (iii) the title of or
registration by the Licensor of any of the Trademarks, in each case whether such
Trademarks are now existing or hereafter acquired, created or obtained and all
renewals thereof.
Section 1. Compliance with Applicable Law. The Licensee covenants and
agrees with the Licensor that, during the Term of this Agreement, unless the
Licensor (in its sole and absolute discretion) consents otherwise in writing,
the Licensee shall comply with all applicable laws, rules, regulations and
ordinances in effect at any time and from time to time in the Territory in
connection with the Products and Services utilizing any of the Trademarks if the
non-compliance therewith would materially impair the prestige and goodwill of
the Trademarks.
Section 5. Standards of Quality. The Licensee acknowledges to and
covenants and agrees with the Licensor that, during the Term of this Agreement,
unless the Licensor (in its sole and absolute discretion) consents otherwise in
writing: (a) none of the Products or Services shall fail in any material respect
to meet the standards of quality with respect to the Trademarks in place at the
time of commencement of this Agreement ("Standards of Quality") if such failure
would materially impair the prestige and goodwill of the Trademarks; and (b)
none of the Products or Services of the Licensee shall otherwise materially
impair the prestige and goodwill of the Trademarks.
Section 6. Registration for the Trademarks in the Territory.
(1) Registration Maintenance. During the term of this Agreement, the
Licensor shall undertake, in its own name, to renew and maintain registration
for the Trademarks in the Territory. The Licensee shall cooperate with the
Licensor in the execution, filing and prosecution of any such instrument(s) or
document(s) as the Licensor from time to time may reasonably request (i) to
obtain renewal and/or maintain registration for the Trademarks in the Territory
and (ii) to confirm the Licensor's ownership rights therein. The Licensor makes
no representation or warranty hereby that the registrations for the Trademarks
will be renewable or maintainable in the Territory, and the failure to renew or
maintain the registrations thereof shall not be deemed a breach hereof by the
Licensor.
(2) Costs and Expenses. Any and all costs and expenses (including,
without limitation, the fees and expenses of attorneys and other professionals)
incurred by the Licensor in the renewal or maintenance of any of the Trademarks
in the Territory shall be borne by the Licensor.
Section 7. Royalties. The license granted under this Agreement is
royalty-free. The Licensee shall not be required to account to the Licensor with
respect to its use of the Trademarks.
-3-
Section 8. Representations and Warranties Respecting the Licensee. The
Licensee represents and warrants to the Licensor that, as of the date hereof and
as of the date of each amendment, renewal or extension hereof or assumption
hereof, except as otherwise disclosed to the Licensor in writing: (a) the
Licensee is a corporation duly incorporated, validly existing and in good
standing under the laws its state of incorporation; (b) the Licensee has the
legal capacity, power, authority and unrestricted right to execute and deliver
this Agreement and to perform all of its obligations hereunder; (c) the
execution and delivery by the Licensee of this Agreement and the performance by
the Licensee of all of its obligations hereunder will not violate or be in
conflict with any term or provision of (i) any applicable law, (ii) any
judgment, order, writ, injunction, decree or consent of any court or other
judicial authority applicable to the Licensee or any material part of the
Licensee's assets and properties, (iii) any of its organizational documents, or
(iv) any material agreement or document to which it is a party or subject or
that applies to any material part of the Licensee's assets and properties; (d)
no consent, approval or authorization of, or registration, declaration or filing
with, any governmental authority or other person is required as a condition
precedent, concurrent or subsequent to or in connection with the due and valid
execution, delivery and performance by the Licensee of this Agreement or the
legality, validity, binding effect or enforceability of any of the terms and
provisions of this Agreement; and (e) this Agreement is a legal, valid and
binding obligation of the Licensee, enforceable against the Licensee in
accordance with its terms and provisions.
Section 9. Representations and Warranties Respecting the Licensor. The
Licensor represents and warrants to the Licensee that, as of the date hereof and
as of the date of each amendment, renewal or extension hereof or assumption
hereof, except as otherwise disclosed to the Licensee in writing: (a) the
Licensor is a corporation duly incorporated, validly existing and in good
standing under the laws its state of incorporation; (b) the Licensor has the
legal capacity, power, authority and unrestricted right to execute and deliver
this Agreement and to perform all of its obligations hereunder; (c) the
execution and delivery by the Licensor of this Agreement and the performance by
the Licensor of all of its obligations hereunder will not violate or be in
conflict with any term or provision of (i) any applicable law, (ii) any
judgment, order, writ, injunction, decree or consent of any court or other
judicial authority applicable to the Licensor or any material part of the
Licensor's assets and properties, (iii) any of its organizational documents, or
(iv) any material agreement or document to which it is a party or subject or
that applies to any material part of the Licensor's assets and properties; (d)
no consent, approval or authorization of, or registration, declaration or filing
with, any governmental authority or other person is required as a condition
precedent, concurrent or subsequent to or in connection with the due and valid
execution, delivery and performance by the Licensor of this Agreement or the
legality, validity, binding effect or enforceability of any of the terms and
provisions of this Agreement; (e) this Agreement is a legal, valid and binding
obligation of the Licensor, enforceable against the Licensor in accordance with
its terms and provisions; (f) the Licensor is the registered, legal and
beneficial owner of the Trademarks; (g) the Licensor has full power and
authority and the unrestricted right to grant the licenses contemplated
hereunder; (h) the license of the Trademarks hereunder is made free and clear of
any and all liens or encumbrances; (i) the Trademark registrations are in full
force and effect; and (j) the Licensor has no knowledge of any infringements or
competing claims with respect to any Trademark.
Section 10. Termination.
(1) Termination for Cause. The Licensor shall have the right to
terminate this Agreement (and the licenses and other rights, remedies and
interests granted to the Licensee hereunder), and end the Term, by written
notice to the Licensee in the event the Licensee shall default in the
performance or satisfaction of any of the terms and provisions of this
Agreement, which violation or failure shall have continued for more than thirty
(30) days after notice thereof by the Licensor to the Licensee and which
violation or failure has materially impaired the prestige and goodwill of the
Trademarks, provided, however, that if such default is capable of being cured
and if the Licensee shall have commenced to cure such default within such period
and shall proceed continuously in good faith and with due diligence to cure such
default, then such thirty day period shall instead be such longer period as may
be reasonably necessary to effect such cure (not to exceed 180 days).
(2) Termination Without Prejudice; Certain Continuing Provisions. The
termination of this Agreement (and the licenses and other rights, remedies and
interests granted to the Licensee hereunder), for any reason, shall be without
prejudice to any other right or remedy the Licensor may have, including (without
limitation) the right of the Licensor to recover from the Licensee any and all
(i) damages to which it may be entitled by reason of the happening of the event
giving rise to such termination or any other event
-4-
and (ii) reimbursements, indemnifications and other amounts that remain
unsatisfied by the Licensors hereunder, which rights and remedies all shall
survive any such termination hereunder. In addition, the terms and provisions of
this subsection and Sections 12 through 21 hereof shall survive any such
termination hereunder.
Section 11. Infringement.
(1) Defense of Infringements. In the event that legal proceeding shall
be instituted by any third party with respect to the alleged infringement by the
Trademarks on the rights of any third party, the Licensor shall have the right,
at its option and expense and either in its name, in the name of the Licensee,
or in the name of both the Licensor and the Licensee, to be represented by
counsel selected by the Licensor, and to defend against, negotiate, settle or
otherwise deal with such proceeding. The Licensee may participate in or (if the
Licensor elects not to do so) defend any such proceeding at its own cost and
expense (subject to reimbursement by the Licensor of reasonable costs and
expenses if the Licensee prevails in such proceeding) and with counsel of its
choice; provided, however, that if the Licensor defends the proceeding, the
Licensor shall control such proceeding. The Licensee shall not settle such
proceeding, or any claim or demand, admit liability or take any action with
respect thereto without the prior written consent of the Licensor, which shall
not be unreasonably withheld.
(2) No Liability for Continuing Unauthorized Use. If any of the
Trademarks shall be declared by a court of competent jurisdiction to be an
infringement on the rights of any third party so that the Licensee may not
thereafter continue in the use thereof, or if the Licensee shall unlawfully use
any of the Trademarks after the Term, the Licensor shall not be liable to the
Licensee or any other person or entity for any damages or otherwise as a result
of continuing use by the Licensee after such declaration or the end of the Term.
(3) Notice and Prosecution of Infringement. The Licensee shall
promptly notify the Licensor of any infringement, counterfeiting or passing-off
of any of the Trademarks of which it has actual knowledge, whether by the use of
any of the Trademarks or otherwise, but shall not take any action, legal or
otherwise, with respect to such infringement, counterfeiting or passing-off
without prior notice to the Licensor. In the event that the Licensee deems legal
proceedings to be reasonably necessary to enjoin any third party with respect to
the alleged infringement, counterfeiting or passing-off of any of the
Trademarks, the Licensor shall have the right, at its option and expense and
either in its name, in the name of the Licensee, or in the name of both the
Licensor and the Licensee, to be represented by counsel selected by the
Licensor, and to prosecute, negotiate, settle or otherwise deal with such
proceeding. The Licensee may participate in or (if the Licensor elects not to do
so) prosecute any such proceeding at its own cost and expense (subject to
reimbursement by the Licensor of reasonable costs and expenses if the Licensee
prevails in such proceeding) and with counsel of its choice; provided, however,
that if the Licensor prosecutes the proceeding, the Licensor shall control such
proceeding. The Licensee shall not settle such proceeding, or any claim or
demand, release any liability or take any action with respect thereto without
the prior written consent of the Licensor, which shall not be unreasonably
withheld.
(4) Licensee and Licensor Cooperation. The Licensee will cooperate
fully with the Licensor at the Licensor's expense in any such action the
Licensor may decide to take, and, if requested by the Licensor, shall join with
the Licensor in such actions as the Licensor may deem advisable for the
protection of the Trademarks or the Licensor's rights. The Licensor will
cooperate fully with the Licensor at the Licensee's expense (subject to
reimbursement as provided above) in any such permitted action the Licensee may
decide to take, and, if requested by the Licensee, shall join with the Licensee
in such actions as the Licensor may deem advisable for the protection of the
Trademarks or the Licensee's rights.
(5) Costs and Expenses. Except as otherwise provided above, any and
all costs and expenses (including, without limitation, the fees and expenses of
attorneys and other professionals) incurred in the protection or defense of any
of the Trademarks in the Territory, or the defense of any use or application of
the Trademarks, shall be borne by the Licensor.
Section 12. Expenses of and Indemnity by the Licensee.
(1) The Licensee will pay and discharge, at its own expense, any and
all expenses, charges, fees and taxes (other than as provided in subsection (b)
of this Section and Section 6 hereof) arising
-5-
out of or incidental to the carrying on of the Licensee's business, and the
Licensee will indemnify and hold the Licensor harmless from any and all claims
that may be imposed on the Licensor for such expenses, charges, fees and taxes.
(2) Except as otherwise provided in Section 10 hereof, the Licensee
shall indemnify, defend (with counsel selected by the Licensee and reasonably
acceptable to the Licensor) and hold the Licensor and its representatives and
agents harmless from, against and with respect to any claim, suit, loss, damage,
demands, injuries or expense (including the reasonable fees and expenses of
attorneys and other professionals) arising out of or related directly or
indirectly to any Product, Service, or other Trademark bearing item sold or
provided by the Licensee or any other act or omission of the Licensee, except to
the extent attributable to the bad faith, negligence or willful misconduct of
the Licensor or its representatives.
Section 13. Relationship between the Parties. The rights, powers,
privileges, remedies and interests accorded to the Licensor under this Agreement
and applicable law are for the protection of the Licensor, not the Licensee, and
no term or provision of this Agreement is intended (or shall be deemed or
construed) to impose on the Licensor any duty or obligation to the Licensee to
monitor or police any of the activities of the Licensee. No term or provision of
this Agreement is intended to create, nor shall any such term or provision be
deemed or construed to have created, any employment, joint venture, partnership,
trust, agency or other fiduciary relationship between the Licensee and the
Licensor or constitute the Licensee as an employee, joint venturer, partner,
trustee, agent or other representative for or of the Licensor. The Licensee
shall not be entitled or have any power or authority to bind or obligate the
Licensor in any manner whatsoever or to hold itself out as an employee, joint
venturer, partner, trustee, agent or other representative for or of the
Licensor.
Section 14. Waiver of Jury Trial. In any action, suit or proceeding in
any jurisdiction brought against any Party by any other Party, each Party hereby
irrevocably waives trial by jury.
Section 15. Consent to New York Jurisdiction and Venue, Etc. Each
Party hereby consents and agrees that the Supreme Court of the State of New York
for the County of Westchester and the United States District Court for the
Southern District of New York each shall have personal jurisdiction and proper
venue with respect to any dispute between the Parties; provided that the
foregoing consent shall not deprive any Party of the right in its discretion to
voluntarily commence or participate in any other forum having jurisdiction and
venue. In any dispute, no Party will raise, and each Party hereby expressly and
irrevocably waives, any objection or defense to any such jurisdiction as an
inconvenient forum.
Section 16. Notices. Except as otherwise expressly provided, any
notice, request, demand or other communication permitted or required to be given
under this Agreement shall be in writing, shall be sent by one of the following
means to the addressee at the address set forth above (or at such other address
as shall be designated hereunder by notice to the other parties and persons
receiving copies, effective upon actual receipt) and shall be deemed
conclusively to have been given: (i) on the first Business Day following the day
timely deposited with Federal Express (or other equivalent national overnight
courier) or United States Express Mail, with the cost of delivery prepaid or for
the account of the sender; (ii) on the fifth Business Day following the day duly
sent by certified or registered United States mail, postage prepaid and return
receipt requested; or (iii) when otherwise actually received by the addressee on
a Business Day (or on the next Business Day if received after the close of
normal business hours or on any non-business day).
Section 17. Further Assurances. Each Party agrees to do such further
acts and things and to execute and deliver such statements, assignments,
agreements, instruments and other documents as the other Party from time to time
reasonably may request in order to (a) evidence or confirm the transfer or
issuance of any stock or Asset or (b) effectuate the purpose and the terms and
provisions of this Agreement, each in such form and substance as may be
acceptable to the Parties.
Section 18. Interpretation, Headings, Severability, Etc. The parties
acknowledge and agree that the terms and provisions of this Agreement have been
negotiated, shall be construed fairly as to all parties hereto, and shall not be
construed in favor of or against any party. The section headings contained in
this Agreement are for reference purposes only and shall not affect the meaning
or interpretation of this Agreement. In the event that any term or provision of
this Agreement (other than Section 1 hereof) shall be finally determined to be
superseded, invalid, illegal or otherwise unenforceable pursuant to applicable
law by a governmental authority having jurisdiction and venue, that
determination shall not impair or otherwise
-6-
affect the validity, legality or enforceability (a) by or before that authority
of the remaining terms and provisions of this Agreement, which shall be enforced
as if the unenforceable term or provision were deleted or reduced pursuant to
the next sentence, as applicable, or (b) by or before any other authority of any
of the terms and provisions of this Agreement. If any term or provision of this
Agreement is held to be unenforceable because of the scope or duration of any
such provision, the parties agree that any court making such determination shall
have the power, and is hereby requested, to reduce the scope or duration of such
term or provision to the maximum permissible under applicable law so that said
term or provision shall be enforceable in such reduced form.
[END OF PAGE]
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Section 19. Successors and Assigns; Assignment; Intended
Beneficiaries. Whenever in this Agreement reference is made to any person, such
reference shall be deemed to include the successors, assigns, heirs and legal
representatives of such person, and, without limiting the generality of the
foregoing, all representations, warranties, covenants and other agreements made
by or on behalf of any Party in this Agreement shall inure to the benefit of the
successors, assigns, heirs and legal representatives of each other Party;
provided, however, that nothing herein shall be deemed to authorize or permit
the Licensee to assign any of its rights or obligations under this Agreement to
any other person, and the Licensee covenants and agrees that it shall not make
any such assignment, except as otherwise provided in Section 1 hereof or with
the prior written consent of the Licensor. The representations, warranties and
other terms and provisions of this Agreement are for the exclusive benefit of
the Parties hereto, and, except as otherwise expressly provided herein, no other
person (including creditors of any party hereto) shall have any right or claim
against any Party by reason of any of those terms and provisions or be entitled
to enforce any of those terms and provisions against any Party.
Section 20. No Waiver by Action, Etc. Any waiver or consent respecting
any representation, warranty, covenant or other term or provision of this
Agreement shall be effective only in the specific instance and for the specific
purpose for which given and shall not be deemed, regardless of frequency given,
to be a further or continuing waiver or consent. The failure or delay of a Party
at any time or times to require performance of, or to exercise its rights with
respect to, any representation, warranty, covenant or other term or provision of
this Agreement in no manner (except as otherwise expressly provided herein)
shall affect its right at a later time to enforce any such provision. No notice
to or demand on any Party in any case shall entitle such Party to any other or
further notice or demand in the same, similar or other circumstances. All
rights, powers, privileges, remedies and other interests of each Party hereunder
are cumulative and not alternatives, and they are in addition to and shall not
limit (except as otherwise expressly provided herein) any other right, power,
privilege, remedy or other interest of such Party under this Agreement or
applicable law.
Section 21. Counterparts; New York Governing Law; Amendments; Entire
Agreement. This Agreement shall be effective as of the date first written above
when executed by Parties and delivered to the Licensor. This Agreement may have
been executed in two or more counterpart copies of the entire document or of
signature pages to the document, each of which may be executed by one or more of
the Parties hereto, but all of which, when taken together, shall constitute a
single agreement binding upon all of the Parties hereto. This Agreement shall be
governed by and construed in accordance with the applicable laws pertaining in
the State of New York (other than those that would defer to the substantive laws
of another jurisdiction). Each and every modification and amendment of this
Agreement shall be in writing and signed by all of the Parties, and each and
every waiver of, or consent to any departure from, any representation, warranty,
covenant or other term or provision of this Agreement shall be in writing and
signed by each affected Party. This Agreement contains the entire agreement of
the parties and supersedes all prior and other representations, agreements and
understandings (oral or otherwise) between the parties with respect to the
matters contained herein.
IN WITNESS WHEREOF, the Parties have duly executed and delivered this
Agreement as of the date first above written.
SPAR Marketing Services, Inc.
By: /s/ Robert G. Brown
-------------------------------------
Robert G. Brown
Chief Executive Officer
SPAR Trademarks, Inc.
By: /s/ Robert G. Brown
-------------------------------------
Robert G. Brown
Chief Executive Officer
EXHIBIT A
---------
United States
Mark Reg. No. Reg. Date
---- -------- ---------
SPAR 1,357,128 August 27, 1985
SPAR & design 1,357,132 August 27, 1985
SPAR & design 1,387,743 March 25, 1986
SPAR 1,441,909 June 9, 1987
SPAR 1,597,275 May 22, 1990
Canada
Mark Reg. No. Reg. Date
---- -------- ---------
SPAR 337,986 March 11, 1988
SPAR & design 337,987 March 11, 1988
SPAR & design 341,996 June 23, 1988
SPAR 349,073 December 16, 1988
SPAR & design 390,182 November 15, 1991