Licensing Agreement for NFL Football Trading Cards

Licensing Agreement for NFL Football Trading Cards

Agreement made on the , between

, a corporation organized and existing under the laws of the state of , with its principal office located at

,

referred to herein as Company, and the National Football League Players, Inc., referred to herein as NFLPA, a corporation organized under the laws of the Commonwealth of Virginia, having its principal place of business at

,

1. Representations

The NFLPA has entered into certain contracts with Company wherein NFLPA has authorized and will authorize Company to utilize the Group Licensing Rights, as defined in the Licensing Agreement between NFLPA and its members, effective (date) (hereinafter Licensing Agreement).

2. Description of Services

Company shall perform, as described herein, such services required to implement and enforce the Licensing Agreement between NFLPA and its members. Such services shall include, but are not limited to, the following:

A. Negotiations and Approvals

With respect to rights licensed under the Licensing Agreement also described therein as Licensed Rights, Company agrees and acknowledges that the NFLPA shall review and approve or disapprove in writing the specific manner in which such rights are to be used on the licensed products in question under such Licensing Agreement.

B. In the event Company is interested in seeking an individual player's personal endorsement, Company agrees and acknowledges that the NFLPA shall review and approve or disapprove in writing such endorsement, provided the individual player personally approves such endorsement. Company acknowledges that all contact between Company and such player or player’s agent shall be made by the NFLPA.

C. Company further agrees and acknowledges that any player who is committed individually by contract for products or services competitive with those of Company may be required to cease from further inclusion in this Agreement and the Licensing Agreement; provided, however, that the use of such player for such products and services shall be on an individual basis and shall not be combined with the use of five or more other NFL players.

D. With respect to the promotion by Company of the sale of licensed products under the Licensing Agreement, the NLFPA and Company agree and acknowledge that the NLFPA shall review and approve or disapprove in writing such promotions. Company further agrees and acknowledges that any promotions using the licensed products covered by the Licensing Agreement as premium items shall require a separate agreement, to be negotiated between NFLPA and Company or other sponsor of the promotion, with separate terms and conditions, and nothing contained herein shall obligate NFLPA or Company to enter into such an agreement.

E. Company agrees to notify the NFLPA of any infringement by others of the rights covered by the Licensing Agreement. Company also agrees and acknowledges that the NFLPA shall completely investigate whether or not any action shall be taken on account of any such infringement. Further, in the event Company requests the NFLPA’s approval of any suit or action by Company on account of any such infringement, Company further agrees and acknowledges that the NFLPA shall completely investigate Company's request.

F. Company agrees and acknowledges that the NFLPA shall compile and update an Attachment A to the Licensing Agreement. Attachment B to the Licensing Agreement shall be established and modified in the following manner:

1. Upon effective date of the Licensing Agreement, and thereafter annually on March 1 of each calendar year covered by this Agreement, Company shall submit to the NFLPA a proposed list of players' names for inclusion in Attachment A for the upcoming football season.

2. The NFLPA shall respond to such submission in writing to Company, signifying approval or disapproval in the case of each player's game so requested.

3. Company may submit requests in writing to the NFLPA for additions, deletions, or substitutions of players' names contained in Attachment A to the Licensing Agreement and the NFLPA shall respond to such requests within a reasonable period of time.

G. Company agrees and acknowledges that the NFLPA shall review and approve or disapprove in writing the quality and style of samples of artwork, plans, photographs, and any other representations of licensed products produced by or for Company (hereinafter collectively "artwork") and samples of each of the licensed products, together with their packaging, hangtags, and wrapping material. Company further agrees and acknowledges that review and approval shall be before the manufacture, sale, or distribution of such artwork, whichever occurs first, and no licensed products shall be manufactured, sold, or distributed by Company without such prior written approval of such artwork and such sample licensed products. Any request by Company for such approval that is received by Players Inc and is not responded to within 15 business days shall be deemed approved by the NFLPA. Subsequent to final approval, Company will send periodically a reasonable number of production samples of licensed products to the NFLPA to ensure quality control, and should the NFLPA require additional samples for any reason, the NFLPA may purchase such at Company's cost.

H. Company may choose to use player names and/or likenesses to promote licensed products on or in any material pertaining to packaging, hangtags, wrapping material, print ads, flyers point-of-purchase displays, press releases, catalogues, trade show booths and exhibits, or any other written material or medium, including but not limited to, electronic, interactive or Internet us; provided however, that Company agrees and acknowledges that the NFLPA shall review and approve or disapprove in writing such use by Company. Company further agrees and acknowledges that the number of the player cards in any such use, if approved, shall be a minimum of six, and shall be selected from Attachment A to the Licensing Agreement. Player names, likenesses, or both so used shall be written or displayed with equal prominence.

I. Company may choose to use player names and/or likenesses (including, without limitation, action footage) in radio or television commercials to promote licensed product(s); provided however, that Company agrees and acknowledges that the NFLPA shall review and approve or disapprove in writing such use. Company further agrees and acknowledges that the number of players included in such commercials, if approved, shall be a minimum of six and shall be selected from Attachment A to the Licensing Agreement. The players used in such commercials shall be shown with equal prominence. Company further agrees and acknowledges that the NFLPA shall review all scripts and story boards before any commercials shall be made or shall be contracted for by Company.

J. Company agrees and acknowledges that the NFLPA will negotiate with Company regarding the amount of required additional payments to the NFLPA separate from and in addition to the guarantees or royalty payments included in the Licensing Agreement, if Company requests to use player names, likenesses, or both in accordance with this subsection 2(J), in any radio or television commercials, print ads, point-of-purchase displays, packaging, hangtags, wrapping material, press releases, catalogues, flyers, trade show booths and exhibits, or any other written material or medium, including but not limited to electronic, interactive or Internet use, to promote licensed products. Company further agrees and acknowledges that all contacts with such players or their agents shall be made by NFLPA

K. In the event Company wishes to secure an individual player or players to make appearances to promote licensed products or to autograph licensed products, Company agrees and acknowledges that the selection of such player and the separate fee to the NFLPA for such player services shall be subject to mutual agreement between Licensee and Players Inc. Company further agrees and acknowledges that all contact with the requested player or his agents shall be made by NFLPA Once the player has made the appearance or performed the autograph service, payment shall be made immediately to the NFLPA. Any such payments shall be separate from and in addition to any royalties or payments paid by Company under the Licensing Agreement. Once the selection of such player and such separate fee have been agreed upon by Company and the NFLPA, in the event of cancellation of such appearance or autographing (other than by player or the NFLPA), Company shall nevertheless be obligated to make such fee payment to Company immediately upon such cancellation.

L. Notwithstanding anything to the contrary herein, Licensee shall be permitted to show on counter card boxes, without additional separate payment to the NFLPA or players: (1) six or more examples of the football trading cards licensed herein, and/or (2) a list of six or more players' names whose images or likenesses are used on the football trading cards licensed herein; provided, however, that such cards are shown with equal prominence, and provided further, however, that the NFLPA shall retain all rights to prior written approval contained herein.

M. Annually by May 1 of each calendar year covered by this Agreement, Company shall submit to the NFLPA for approval, a preliminary marketing plan for all licensed products for the upcoming license period. The NFLPA shall respond in writing signifying approval or disapproval of such marketing plan within fifteen (15) business days. Such marketing plan shall include without limitation: a complete listing and description of all products to be produced, quantities, pricing and advertising and promotion schedules.

N. For licensed product to be produced under each brand or sub-brand covered by this Agreement, Company shall submit annually to the NFLPA for approval a product outline. Such product outline shall include without limitation a complete listing and description of all products to be produced, pricing, quantities, and advertising and promotion schedules. The NFLPA shall respond in writing signifying approval or disapproval of such product outlines within fifteen (15) business days.

3. Periodic Statements

A. Company shall furnish to the NFLPA, no later than fifteen (15) days following the last day of each May, August, November, and February of this Agreement, a complete and accurate statement certified to be accurate by an officer of Company, showing the number, description, and gross purchase price, of the licensed products distributed by Company during the preceding quarterly reporting period, as described in Section of the Licensing Agreement, together with any returns made during such reporting period. Once in every twelve-month period, Company shall furnish the NFLPA with a detailed statement certified by an officer of Company, showing the number of gross sales of the licensed products covered by the Licensing Agreement.

B. Such statements shall be furnished to the NFLPA whether or not any of licensed products have been purchased during the reporting period for which such statement is due. The payment made hereunder or under the Licensing Agreement (or the cashing of any check paid hereunder or under the Licensing Agreement) shall not preclude the NFLPA from questioning the correctness thereof at any time and, in the event any inconsistencies or mistakes are discovered in connection therewith, they shall immediately be rectified and the appropriate payment made by Company.

4. Books and Records

A. For a period of two (2) years following the termination or expiration of this Agreement, Company shall maintain accurate books and records for itself and any subsidiary or affiliated entity with respect to its sale of licensed products under this Agreement and the Licensing Agreement. Said books and records shall be subject to inspection and audit by the NFLPA at reasonable times upon reasonable notice from the NFLPA to Company. In addition, Company shall cause any entity with which it contracts for services or production of product to cause its books and records to be available for audit and inspection by the NFLPA to the extent necessary to confirm the audit of Company.

i. Company shall not interfere with such inspections and audits in any way.

ii. The cost of such inspections and audits shall be paid by Company if the result of such inspections and audits indicates a difference of 3% or more, when compared to the statement certified to be accurate by an officer of Company for the twelve month period covered by such statement as described in herein, or the cost of such inspections and audits as the result of an inspection or audit performed by the NFLPA shall be paid by the NFLPA if such difference is less than 3%.

iii. In the event any inconsistencies or mistakes are discovered as a result of such inspections and audits, they shall be rectified immediately and the appropriate payment shall be made immediately by Company.

5. Trading Cards

Company shall provide to the NFLPA free of charge the following:

A. Prior to each December 1 of this Agreement, for each player included in Attachment A, 100 of each individual common card, 6 of each card other than common cards, and one complete set of all player cards produced for that annual period; and

B. Prior to each December 1 of this Agreement, six cases of count goods and six dozen complete sets of all player cards produced for that annual period.

6. Term

A. The term of this Agreement shall extend from to (hereinafter referred to as the Original Service Period) unless terminated in accordance with the provisions hereof. Company may renew this Agreement for an Additional Service Period from to , provided Company has faithfully fulfilled its obligations hereunder in the Original Service Period. Notice of desire to renew shall be given by Company no later than in the Original Service Period.

B. Company acknowledges and agrees that Company has and shall have no right to extend or renew this Agreement beyond the term and renewal options, if any, stated herein. No conduct by either the NFLPA or Company shall create, imply, or infer a new license agreement, service agreement, or extension of the stated term and renewal options, if any, of this Agreement or the Licensing Agreement, unless same is specifically set forth in a written agreement signed by both the NFLPA and Company. Company's agreement that this Agreement is subject to the term and renewal options, if any, stated herein, in all events whatsoever, is a material inducement for the NFLPA to enter into this Agreement.

C. Notwithstanding anything to the contrary, this Agreement is coextensive with the Licensing Agreement, and termination of the Licensing Agreement shall result in termination of this Agreement. As provided in the Licensing Agreement, termination of this Agreement shall result in termination of the Licensing Agreement.

7. Compensation

A. In consideration of the payment of one dollar, and other good and valuable consideration hereby acknowledged as received, the NFLPA agrees to provide Company with the services listed in this Agreement.

B. Company agrees to spend the following total amounts on activities that stimulate and promote the market for licensed product(s) (hereinafter marketing payments), subject to prior written approval by the NFLPA of such activities:

i. of sales, during each annual period of the Original Service Period, and

ii. of sales, during the Additional Service Period, if applicable.

C. Such activities shall include, but are not limited to, sponsorships, promotions, player appearances, and special events. Company shall provide documentation that such approved expenditures have been made. The expenditure documentation shall be provided on a quarterly basis and shall be certified by an officer of Company. Such documentation shall be subject to inspection and audit by the NFLPA Players on the same basis as Company's books and records.

D. If at the end of each annual period or Service Period(s) covered by this Agreement, Company has not spent the required amount for such period specified above in this Section 7(B), then Company shall pay to the NFLPA no later than the last day of such period, an amount equal to the difference between the amount specified in this Section 7(B) for such period and the amount actually spent by Company during such period on approved activities.

8. Payments and Notices

All transactions under this Agreement including, without limitation, all payments and all notices, reports, statements, approvals, and other communications, shall be with or made payable in the name of the National Football League Players, Inc., at

All correspondence, notices, approvals, and other communications to Company shall be with , Attention: .

9. Indemnification and Insurance

A. Company agrees that it, during the term of this Agreement or thereafter, will not challenge or in any way infringe upon the title or any rights of the NFLPA in and to any of the licensed rights described in Section 2 of the Licensing Agreement, or challenge or in any way infringe upon the validity of this Agreement.

B. Company further agrees to assist the NFLPA to the extent necessary in the procurement of any protection for the Licensing Rights or to protect any of the Licensing Rights, and the NFLPA, if it so desires, may commence or prosecute at its own expense any claims or suits in its own name or in the name of Company or join Company as a party thereto, with Company's consent, which shall not be reasonably withheld. Company shall notify the NFLPA in writing of any infringement or imitations of which Company becomes aware.

C. For its own acts, Company hereby indemnifies the NFLPA, and undertakes to defend the NFLPA from and against any claims, suits, losses, damages, and expenses (including reasonable attorneys' fees and expenses) arising out of any acts omissions of Company in conjunction with this Agreement, including but not limited to the marketing, sale, distribution, or use of the Licensing Rights. Company agrees to obtain, at its own expense, general liability insurance providing adequate protection for Company and the NFLPA against any such claims or suits in amounts not less than Three Million Dollars ($3,000,000.00). Within thirty (30) days from the date hereof, Company shall submit to Players Inc a fully paid policy or certificate of insurance naming the NFLPA as an insured party, requiring that insurer will not terminate or materially modify such agreement without written notice to the NFLPA at least twenty (20) days in advance thereof.

10. Company and NFLPA not a Partnership

Nothing herein contained shall be construed to place Company and the NFLPA in the relationship of partners or joint venturers, and Company shall not have the power to obligate or bind the NFLPA in any manner whatsoever.

11. No Waiver

The failure of either party to this Agreement to insist upon the performance of any of the terms and conditions of this Agreement, or the waiver of any breach of any of the terms and conditions of this Agreement, shall not be construed as subsequently waiving any such terms and conditions, but the same shall continue and remain in full force and effect as if no such forbearance or waiver had occurred.

12. Governing Law

This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of .

13. Notices

Any notice provided for or concerning this Agreement shall be in writing and shall be deemed sufficiently given when sent by certified or registered mail if sent to the respective address of each party as set forth at the beginning of this Agreement.

14. Mandatory Arbitration

Any dispute under this Agreement shall be required to be resolved by binding arbitration of the parties hereto. If the parties cannot agree on an arbitrator, each party shall select one arbitrator and both arbitrators shall then select a third. The third arbitrator so selected shall arbitrate said dispute. The arbitration shall be governed by the rules of the American Arbitration Association then in force and effect.

15. Entire Agreement

This Agreement shall constitute the entire agreement between the parties and any prior understanding or representation of any kind preceding the date of this Agreement shall not be binding upon either party except to the extent incorporated in this Agreement.

16. Modification of Agreement

Any modification of this Agreement or additional obligation assumed by either party in connection with this Agreement shall be binding only if placed in writing and signed by each party or an authorized representative of each party.

17. Assignment of Rights

The rights of each party under this Agreement are personal to that party and may not be assigned or transferred to any other person, firm, corporation, or other entity without the prior, express, and written consent of the other party.

WITNESS our signatures as of the day and date first above stated.