License Agreement - Hearst Corp. and A. Copeland Enterprises Inc.
King Features Syndicate Division
THE HEARST CORPORATION
235 East 45th Street
New York, New York 10017
March 11, 1976
Gentlemen:
The following when executed by the parties hereto shall set forth our
agreement with respect to your use of the characters contained in the cartoon
strip entitled POPEYE, their names, pictures, likenesses, images, symbols,
caricatures, cartoons and signatures in connection with your business as
specifically described below on the following terms and conditions:
2. We hereby agree not to object to your use and registration of
the mark POPEYES in connection with your business and trade during the term of
this agreement and after* which
* the expiration of the original copyright for the POPEYE cartoon feature
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business and trade is hereby described as the operation and supply and
franchising the operation of restaurants specializing in the sale of food items
such as fried chicken, french fries and other prepared or packaged foods or food
ingredients.*
* the foregoing shall not apply to the reproduction of any of the copyrighted
designs or the features licensed hereunder.
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7. All decisions relating to your business as described hereunder
and the operation thereof shall be, except as otherwise provided herein, within
your sole power and discretion.
You are aware of the high reputation that the Cartoon and Characters
enjoy and you agree that the quality of services, products and facilities
provided by you and your franchisees and/or licensees hereunder shall accord
with and maintain this high reputation, and that said cartoon characters will
not in any way be used by you or your franchisees in any way that will disparage
the POPEYE cartoon or the characters thereof.
8. We shall make available to you without cost at your request
existing original drawings, color separations or other mechanical aspects of
the Cartoon for your use hereunder. You will return all of the foregoing to us
in good condition upon request. Further, we shall furnish such cooperation and
assistance to you, at your request, as we are able with respect to the use of
said artwork and Cartoon hereunder in your business.
9. As a material condition of this agreement, you will properly
affix to each reproduction of the Cartoon or any part thereof licensed
hereunder such due notice of copyright in the name of King Features Syndicate,
Inc. (or any such other name as is furnished therefor in writing by us to you),
as is provided by the Universal Copyright Convention, such as "(c) by King
Features Syndicate, Inc.", and including in such notice as part thereof the
proper year or years.
10. We shall have the continuing right to approve all artistic and
literary materials displaying the cartoon characters and name thereof licensed
herein, and the manner of their use hereunder before said use. Such approval
shall be in our sole discretion, shall be in writing, and shall not be
unreasonably withheld. However, if we fail to approve or disapprove of any
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such materials within fifteen (15) days of our receipt thereof, our approval
thereof shall be conclusively presumed.
11. Upon the happening of any one of the following events, we shall
have the option to terminate this agreement forthwith: the filing by you of a
petition in bankruptcy; the filing against you of a petition of bankruptcy and
the failure of you to take affirmative action within sixty (60) days to have
such a petition dismissed; the making by you of a general assignment for the
benefit of your creditors; the involuntary appointment of a receiver or trustee
of all or substantially all of your assets and the failure by you to take
affirmative action within sixty (60) days to have such appointment dismissed;
the application for relief by you under any insolvency law; the liquidation, in
whole or in part, of your business.
13. Except as otherwise provided herein, we warrant and represent
that we have not heretofore granted nor will we hereafter grant any rights
inconsistent with or in direct conflict
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with those granted hereunder. We further warrant and represent that we are the
copyright proprietor of said Cartoon or possess the rights we are hereunder
granting from the said owner. It is understood that no warranty or
representation is made by us with regard to the use of the name WIMPY or
variations thereof and the use of said name may subject you to legal liability.
14. You acknowledge that the rights granted hereunder are of a
special, unique and extraordinary nature and that the breach of this agreement
will cause irreparable damage incapable of adequate compensation by damages in
an action at law and accordingly, we shall be entitled to and you consent to
injunctive or other equitable relief to prevent or cure any breach or
threatened breach of this agreement by you.
15. You agree to indemnify and hold us, King Features Syndicate,
Inc., and their and our respective successors and assigns, harmless from and
against all loss, liability, damage and expense (including reasonable attorney's
fees) arising out of any claims, demands, actions or suits resulting from your
operation hereunder and in connection with the supply, operation of or
franchising of POPEYES restaurants.
You warrant, represent and agree that you will exercise your best
efforts to insure that all food or other materials sold or supplied by you and
your franchisees and/or licensees and in connection with which the POPEYE
cartoons are used will at all times be of good merchantable quality, fit for
human consumption,
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free from any deleterious or injurious ingredients or substances and shall be
manufactured in strict adherence to all applicable federal, state and local
laws.
16. Nothing herein contained shall be deemed to create a
partnership, joint venture or other similar relationship between us.
17. You shall have no right to use the Cartoon or any part thereof
of equivalent thereto except to the extent expressly permitted hereunder. In
this connection, it is understood that you shall have no right hereunder to
reproduce, use or sell or cause to be sold reproductions of the Cartoon, or any
part thereof, either alone or in combination with any product or thing offered
for sale or resale, except as specifically authorized in paragraphs 1 and 2
hereof with respect to the described operation of the restaurant business only.
Upon termination of this agreement, you agree that you will not in any way or
manner in connection with the sale of any product, service or thing, use or
cause to be used, directly or indirectly, the Cartoon or any part, name or
element thereof as licensed hereunder. However, nothing herein shall be
construed to require your discontinuance of the POPEYES mark for your
restaurant services or food products after this agreement is terminated.
18. Any and all rights in and to the said Cartoon and Characters not
expressly granted to you herein are reserved to us and any one or more of these
said rights may be exercised or enjoyed by us, directly or indirectly, at any
and all times.
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19. Any and all rights and remedies reserved by or to us herein
shall be cumulative and shall not exclude any other right or remedy legally or
equitably available. Our failure to insist upon the strict performance of any
of the covenants or terms hereof to be performed by you shall not be construed
as a waiver of such covenants or terms.
20. All notices required or desired to be given hereunder shall be
by registered mail or telegram to the parties hereto at their addresses
herein set forth or as such may be from time to time supplied in writing.
Notices given by registered mail shall be deemed given on actual receipt by the
addressee or on the seventh day following delivery to the post office,
whichever occurs first; and those by telegram on the date delivered to the
addressee by the telegraph office.
21. You agree to pay any and all sales, use or other excise taxes,
including interest and penalties, which may be now or hereafter imposed or
levied on the transfer or use of the artwork or material hereunder or upon any
of the rights herein licensed or the exercise thereof. However, none of the
foregoing taxes shall be deemed to mean or include those imposed or levied on
us in the nature of a corporate income tax.
22. This agreement sets forth the entire understanding of the
parties and may not be modified or waived, in whole or in part, except in
writing signed by the party against whom such modification or waiver in sought
to be enforced. There are no
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warranties, representations or promises other than those herein expressly set
forth. This agreement shall be construed in accordance with and governed by the
laws of the United States of America, State of New York.
23. This agreement shall be binding upon and inure to the benefit of
The Hearst Corporation and its successors and assigns.
24. In the event of the declaration by a judicial tribunal having
jurisdiction over the parties of the invalidity of any portion of this
agreement, such decision shall not affect the remaining portion which shall
remain and continue in full force and effect.
25. See '87 Letter Agr
Very truly yours,
KING FEATURES
BY: /s/
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Vice President & General Manager
ACCEPTED AND APPROVED:
A. COPELAND ENTERPRISES, INC.
BY: /s/ Alvin Copeland
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Alvin Copeland, President