Agreement - Football Association Premier League Ltd. and Topps Europe Ltd.
THIS AGREEMENT is made the 30th day of September 2003 BETWEEN
(1) THE FOOTBALL ASSOCIATION PREMIER LEAGUE LIMITED a UK company registered
under the Number 2719699 of 11 Connaught Place London W2 2ET ("FAPL") and
(2) TOPPS EUROPE LIMITED, a UK company registered under Number 2331336 of 18
Vincent Avenue Crownhill Milton Keynes MK8 0AW ("the Licensee")
1. Interpretation
1.1 In this Agreement the following expressions shall have the following
meanings
"Album" means in respect of each Season the printed edition of the
album produced for collectable use in connection with the Stickers
issued in respect of that Season only incorporating the Approved Text
together with those of the Club Designs and the FAPL Designs relevant
thereto and relating to each and all of the Clubs in respect of that
Season as approved in each respect by FAPL in accordance with the
terms of this Agreement
"Approved Player" means in relation to any Club those Players of that
Club whose identity has been approved by FAPL and/or that Club
pursuant to the procedure set out at clause 3 in respect of the
applicable Licensed Articles and the applicable Season
"Approved Text" means in connection with any Licensed Articles any
text which the Licensee is entitled to print thereon and which has
been approved in accordance with the terms of this Agreement (which
for the avoidance of doubt may include in relation to statistics
and/or ratings in connection with any Club and/or Players
predominantly statistics and/or ratings having a direct and accurate
statistical basis as opposed to any element of judgement or subjective
"ability rating")
"Authorised Photographs" means the Players Photographs and/or the
Further Photographs having been approved by the relevant Club and FAPL
pursuant to the terms of clause 3
"Binder" means in respect of each Season the binder (being in all
cases in tangible physical form) with sleeves for collectable use in
connection with the Trading Cards issued in respect of that Season
only incorporating the Approved Text together with those of the Club
Designs and the FAPL Designs relevant thereto and relating to each and
all of the Clubs in respect of that Season as approved in each respect
by FAPL in accordance with the terms of this Agreement
"Club Designs" means those official logos designs names nicknames
badges insignia and statistics owned or controlled by each of the
Clubs during the Term and which are made available by the Clubs for
use by the Licensee during the Term including but not limited to the
Club Logos and the Club Strips
"Clubs" means in respect of each football season during the Term those
football clubs which at the commencement of the relevant Season are
affiliated to and members of FAPL (and in connection with the Trading
Card Collection or the Stickers and Albums being those clubs
satisfying the above criteria in respect of the Season during which
the said products are first marketed) as the same shall be notified to
the Licensee by FAPL by 1 June each year during the Term in respect of
the following Season and the word "Club" shall be construed
accordingly
"Club Logo" means the single main official logo of each Club
representations of which have been made available to the Licensee so
as to enable it to exercise its rights hereunder (being one for each
Club at any time during the Term as stipulated by FAPL) and the words
"Club Logos" shall be construed accordingly
"Club Strips" means in respect of each Club the football strip colours
worn by the Players of the Club during the Matches as the same may be
registered with FAPL before the commencement of or at any time during
each Season during the Term (and the logo design badge or insignia of
any manufacturer thereof and/or any Club sponsor which may from time
to time appear thereon) and the words "Club Strip" shall be construed
accordingly
"Competitive Product" means [INFORMATION SUBJECT TO REQUEST FOR
CONFIDENTIAL TREATMENT]
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"Competitor" means [INFORMATION SUBJECT TO REQUEST FOR CONFIDENTIAL
TREATMENT]
"F.A." means The Football Association Limited whose registered office
is at 25 Soho Square London WID 4FA
"FAPL Designs" means the FAPL Marks the FAPL Logo and those official
logos designs badges and insignia owned or controlled by FAPL as
specifically stipulated from time to time by FAPL
"F.A. Marks" means the marks "F.A." and "Football Association" which
are owned by the F.A.
"FAPL Logo" means the official logo of FAPL incorporating the F.A.
Marks and more particularly set out in Schedule 2 hereto and/or such
other marks as may be notified by FAPL to the Licensee from time to
time
"FAPL Marks" means any trade marks registered or unregistered or in
respect of which an application for registration has been made
comprising of and incorporating FAPL Logo or any of the words "Premier
League" or "Premiership"
"Further Photographs" means photographic images of any of the Players
used in connection with Licensed Articles being in each case either
(a) an action photograph of any such Player wearing the Club Strip of
the Club to which the said Player is at the time of publication of the
Licensed Articles in question registered and showing only or
substantially the Player named in the Licensed Articles (or component
thereof) or (b) a photographic portrait showing the said Player's head
and shoulders only in each case in respect of which any and all
copyright licences and/or consents and/or other required consents have
been obtained and all requisite fees and royalties paid by the
Licensee (including but not limited to the obtaining of the consent of
any Club and/or FAPL in relation to the use of the said photographs)
and in respect of which FAPL and the relevant Club each have consented
to use in relation to the Licensed Articles pursuant to clause 3
"Licensed Articles" means the Trading Card Collection and the Stickers
and Albums and the Miniature Stickers and Albums Collection
"Match" means any football match played between two Clubs as part of
the Premiership (and the word "Matches" shall be construed
accordingly)
"Miniature Albums" means in respect of each Season the printed edition
of the miniature albums (having such dimensions and being in such form
or format as FAPL and the Licensee may from time to time agree in
respect of each Season) produced for collectable use in connection
with the Miniature Stickers issued in respect of that Season only and
forming part of the Miniature Stickers and Albums Collection in
respect of that Season incorporating the Approved Text together with
those of the Club Designs and the FAPL Designs relevant thereto and
relating to each and all of the Clubs in respect of that Season as
approved in each respect by FAPL in accordance with the terms of this
Agreement
"Miniature Stickers" means in respect of each Season collectable
miniature stickers having such dimensions and being in such form or
format as FAPL and the Licensee may from time to time agree in respect
of each Season each depicting one Approved Player using an Authorised
Photograph together with those of the FAPL Designs and the Club
Designs appropriate thereto and the Approved Text appropriate thereto
in each case as approved in all regards by FAPL pursuant to this
Agreement and forming part of (and to be marketed sold and/or
distributed only as part of) the Miniature Stickers and Albums
Collection and designed for sale in connection with the Miniature
Albums in respect of the appropriate Season
"Miniature Stickers and Albums Collection" means the collection in
respect of each Season comprising one Miniature Album and
corresponding Miniature Stickers such Miniature Stickers sold in such
form of pack or packet together with such amounts of the Licensee's
bubble gum products in each case as FAPL and the Licensee may agree
from time to time in respect of each Season (or in such other form as
FAPL may agree from time to time pursuant to clause 14.1) but in any
event in a form where the Miniature Stickers are mixed together so
that each such packet and/or each relevant container contains
Miniature Stickers relating to the Players of more than one Club or
otherwise are sold in accordance with the terms of this Agreement
"Minimum Guarantee" means the non-refundable sum payable by the
Licensee to FAPL as set out in clause 6.1.1
"Net Sales Value" means [INFORMATION SUBJECT TO REQUEST FOR
CONFIDENTIAL TREATMENT]
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"Person" means any person in law or body corporate and includes a firm
partnership corporation individual and any other legal entity whether
incorporated or unincorporated
"Player" means a player as defined in the Rules of FAPL as at the
relevant time registered with a Club
"Players' Photographs" means those photographic images of all of those
Players from time to time registered with each of the Clubs and of the
available team of each Club in each case provided to the Licensee by
FAPL pursuant to clause 3 all copyright (save only such non-exclusive
licence thereof as is required by the Licensee to fulfil its
obligations to FAPL and to exercise the rights expressly granted to it
pursuant to this Agreement) in which is vested in FAPL
"Premiership" means the league competition organised by FAPL
"Promotional Materials" means any packaging labels instructions and
instruction manuals containers advertisements technical support and
information materials point of sale advertising marketing and
promotional materials and/or advertisements of whatever nature and in
whatever medium (whether now existing or hereafter created) for or in
relation to any Licensed Articles including for the avoidance of doubt
and without limitation any editorial or content material in any medium
or in any vehicle site programme or document in any such medium which
is in any way controlled produced authorised or commissioned by or on
behalf of the Licensee or at the Licensee's behest whether directly or
indirectly and/or of which the Licensee has editorial approval but
excluding for the avoidance of doubt any materials of whatever nature
which may arise or reasonably be considered to comprise any transient
intangible electronic or digital form of and/or recording of and/or
equivalent to any licensed Articles
"Property" means any and all of the Club Designs and the FAPL Designs
or any part or component thereof
"Quarter" means any quarter during the Term ending on any Quarter Day
"Quarter Day" means each day during the Term which falls on the day
thirteen (13) weeks from the preceding Quarter Day with the first
Quarter Day for the purposes of this definition being 1 June 2004
(notwithstanding that such date is the commencement of the Term)
"Royalties" means those royalties to be paid by the Licensee to FAPL
in respect of Sales of Licensed Articles as set out at clause 6
"Sales" means the number of the Licensed Articles distributed for
value (whether in consideration of monetary payment or otherwise for a
quantified financial benefit) and the word "sold" shall be construed
accordingly
"Season" means a Premiership season which shall generally commence in
August of one year and finish May of the following year
"Stickers" means in respect of each Season collectable stickers sold
in packets in printed paper format only or in such other format having
tangible physical form as may be consented to by FAPL such consent not
to be unreasonably withheld and each depicting one or more Approved
Players and/or any other relevant image (including by way of example
any trophy currently held by or otherwise relating to a particular
Club) using any Authorised Photograph together with those of the FAPL
Designs and the Club Designs appropriate thereto in each case as
approved in all regards by FAPL pursuant to this Agreement and
designed for sale in connection with the Album in respect of the
appropriate Season (and the word "Sticker" shall be construed
accordingly)
"Stickers and Albums" means that collection in respect of each Season
comprising one Album and corresponding Stickers designed for use with
each other to be sold in packets of Stickers (or in such other form as
FAPL may agree from time to time pursuant to clause 14.1) mixed
together so that each such packet and/or each relevant container
contains Stickers relating to the Players of more than one Club or
otherwise sold in accordance with the terms of this Agreement
"Term" means the term of this agreement which shall commence upon 1
June 2004 and shall continue until the third anniversary thereof
unless the agreement is terminated earlier in accordance with its
terms
"Territory" means the world
"Trading Card Collection" means in respect of each Season the Binder
and the corresponding collection of Trading Cards sold in packets (or
in such other form as FAPL may agree from time to time pursuant to
clause 14.1) mixed together so that each such packet and/or each
relevant container contains Trading Cards relating to the Players of
more than one Club or otherwise sold in accordance with the terms of
this Agreement
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"Trading Cards" means collectable trading cards sold in paper or
cardboard format only or in such other tangible physical format as may
be consented to by FAPL such consent not to be unreasonably withheld
each depicting one or more Approved Player using an Authorised
Photograph together with those of the FAPL Designs and the Club
Designs appropriate thereto and the Approved Text appropriate thereto
in each case as approved in all regards by FAPL pursuant to this
Agreement and forming part of the Trading Card Collection
"Trading Card Game" means any product comprising a series or set of
trading cards of which the predominant element is one or more
mechanisms subjectively determined by the creator of the product and
relating to the football player depicted in the cards (such as a
subjective "ability rating" for each football player depicted) the
purpose and effect of which predominant element is to differentiate
the cards so as to encourage their use for game playing rather than as
inherently collectable items
"Topps Name and Logo" means that official name and logo of the
Licensee set out at Schedule 3 and such other marks the goodwill and
all relevant intellectual property rights in which are owned by the
Licensee as may be notified to FAPL from time to time by the Licensee
2. Extent of Licence
2.1 In consideration of the payment of the Minimum Guarantee and the
Royalties in accordance with clause 6 FAPL hereby grants to the
Licensee the following rights throughout the Territory and for the
Term
2.1.1 the right subject to the terms of this Agreement to produce
manufacture distribute and sell
2.1.1.1 upon the non-exclusive basis set out at clause 4 the
Trading Card Collection and
2.1.1.2 upon the exclusive basis set out at clauses 4.1 and 4.2
the Stickers and Albums
2.1.1.3 upon the basis as to exclusivity set out at clause 4 the
Miniature Stickers and Albums Collection
2.1.2 the right subject to the terms of this Agreement to incorporate
the Club Designs the FAPL Designs and/or the Authorised
Photographs in all Promotional Materials approved in accordance
with this Agreement
2.2 All rights not expressly granted to the Licensee hereunder are
reserved to FAPL which shall be free to exploit such rights in any
manner in its sole discretion subject to the provisions of clause 4 or
as otherwise agreed herein
2.3 For the avoidance of doubt this Agreement shall not entitle the
Licensee to market a Trading Card Game
3. Supply of Materials and Approvals
3.1 FAPL shall arrange on or before 1 September in each of 2004 2005 and
2006 or such alternative date in such year as FAPL and the Licensee
may agree in writing for the photographing of each and all of the
Players of each and all of the Clubs and a photograph of the entire
available team of each Club and shall provide to the Licensee the
Players' Photographs resulting from the said process on or before the
second Friday in September in each such year or such alternative date
as FAPL and the Licensee may agree in writing. The parties hereby
agree for the avoidance of doubt that (save for such non-exclusive
licence of copyright in relation to the Players' Photographs for the
duration of the Term as is strictly necessary to permit the Licensee
to enjoy and use the rights expressly granted to it pursuant to clause
2.1) any and all copyright and other rights of intellectual property
of whatever nature in and in respect of the Players' Photographs shall
as between the parties remain vested in FAPL
3.2 FAPL shall supply or procure the supply by the Clubs of materials
(including artwork and transparencies used in reproducing the FAPL
Logo and the Club Designs and the re-shooting of any photographs
provided for at 3.1 above) which FAPL (acting reasonably) agrees are
reasonably necessary to the Licensee for the purposes of exercising
the rights granted to it pursuant to this Agreement. Such supply will
take place as soon as is reasonably practicable and at no cost to the
Licensee other than where processing or handling costs are involved in
which case a reasonable charge payable to FAPL (or the Clubs as
appropriate) may be made to cover such costs
3.3 Any materials supplied to the Licensee hereunder together with any
copies thereof made by the Licensee shall as between the parties
hereto remain the property of FAPL and shall be returned to FAPL on
reasonable notice in writing (and in any case following termination
and/or expiry of this Agreement) at the expense of the Licensee
<PAGE>
3.4 In respect of the Trading Card Collection in each Season
3.4.1 the collection shall include at least 1 Player from each Club.
The Licensee shall have discretion to decide how many Players are
depicted from each Club and shall not be obliged to depict an
equal number of Players from each Club. However, the Licensee
shall not allow discrepancies to arise to the depiction of
Players (other than in special or bonus cards comprised in the
collection) of greater than 1:2 as between any two (2) Clubs
3.4.2 the Licensee shall deliver to FAPL as soon as reasonably
practicable following delivery of the Player Photographs to it by
FAPL pursuant to clause 3.1(a) art work proofs of the Trading
Cards and any Binder comprising for each Club the design format
for and all information appearing on the Trading Cards for that
Club and/or Binder plus one representative design of a card for
that Club and (b) a list of the Players to be included in the
Trading Card Collection
3.4.3 FAPL shall consider the materials supplied pursuant to clause
3.4.2 of this Agreement and shall as soon as is reasonably
practicable and in any event before the expiry of fifteen (15)
working days provide the Licensee with written notice that either
3.4.3.1 the said material is approved or
3.4.3.2 the said material is not approved together with details
of the elements thereof which are not approved reasons
for non-approval and suggestions as to what would be
approved in its place but for the avoidance of doubt FAPL
shall not unreasonably withhold approval in relation to
features of the Trading Card Collection and may object to
the inclusion of any Player only on the basis that he is
not or will shortly cease to be registered with the Club
for which he is depicted
3.4.4 In the event that (and to the extent that) FAPL has failed
within fifteen (15) working days of receipt of the materials
supplied pursuant to clause 3.4.2 of this Agreement to provide
written notice as set out at clause 3.4.3.1 and/or 3.4.3.2 in
respect of the same then FAPL shall not thereby be in breach of
this Agreement and the Licensee shall have no rights against FAPL
in connection with the said failure but FAPL shall be deemed to
have notified its approval of the materials so affected pursuant
to clause 3.4.3
3.4.5 In the event that FAPL notifies (or is deemed to have notified
pursuant to clause 3.4.4) the Licensee that all relevant
materials of and relating to the Trading Card Collection are
approved the Players depicted therein shall be deemed Approved
Players the depictions of the Players used therein shall be
deemed Authorised Photographs and the text used therein shall be
deemed Authorised Text (in each case in relation to the Trading
Card Collection only) and the Licensee shall be authorised to
produce and shall produce in sufficient numbers copies of the
Trading Card Collection which conform in all respects with the
relevant materials in accordance with the grant set out at clause
2 of this Agreement
3.4.6 Any and all copies of the Trading Cards and/or the Trading Card
Collection produced pursuant to this Agreement shall conform in
all respects with the relevant materials approved or deemed to
have been approved pursuant to this clause 3.4 and no amendment
change or variation in design to the same may be made by the
Licensee save with the express written consent of FAPL at its
absolute discretion
3.4.7 In the event that FAPL notifies the Licensee that any materials
and/or any component of any materials of or relating to the
Trading Card Collection is not approved the Licensee shall supply
fresh materials relevant thereto in accordance with the terms of
clause 3.4.1 not later than ten (10) working days following
receipt of such notification and the terms of this clause 3.4
shall apply thereto
3.5 In respect of the Stickers and Albums in each Season
3.5.1 the Stickers shall exhibit an equal number of Player Photographs
in respect of each Club and in any event not less than 12 per
Club
3.5.2 the Licensee shall deliver to FAPL as soon as reasonably
practicable following delivery of the Player Photographs to it by
FAPL pursuant to clause 3.1 (a) art work proofs of the Album
comprising for each Club the design format and all text appearing
in the Album for that Club plus one representative design of a
Sticker for that Club and (b) a list of the Players to be
depicted in the Stickers for that Club
<PAGE>
3.5.3 FAPL shall consider the materials supplied pursuant to clause
3.5.2 of this Agreement and shall as soon as is reasonably
practicable and in any event before the expiry of fifteen (15)
working days provide the Licensee with written notice that in the
case of such material either
3.5.3.1 the said material is approved or
3.5.3.2 the said material is not approved together with details
of the elements thereof which are not approved reasons
for non-approval and suggestions as to what would be
approved in its place but for the avoidance of doubt FAPL
shall not unreasonably withhold approval in relation to
features of the Trading Card Collection and may object to
the inclusion of any Player only on the basis that he is
not or will shortly cease to be registered with the Club
for which he is depicted
3.5.4 In the event that (and to the extent that) FAPL has failed within
fifteen (15) working days of receipt of the materials supplied
pursuant to clause 3.5.2 of this Agreement to provide written
notice as set out at clause 3.5.3.1 and/or 3.5.3.2 in respect of
the same then FAPL shall not thereby be in breach of this
Agreement and the Licensee shall have no rights against FAPL in
connection with the said failure but FAPL shall be deemed to have
notified its approval of the materials so affected pursuant to
clause 3.5.3
3.5.5 In the event that FAPL notifies (or is deemed to have notified
pursuant to clause 3.5.4) the Licensee that all relevant
materials of and relating to the Stickers and Albums are approved
the Players depicted therein shall be deemed Approved Players the
depictions of the Approved Players shall be deemed Authorised
Photographs and the text used therein shall be deemed Authorised
Text (in each case in relation to the Stickers and Albums only)
and the Licensee shall be authorised to produce and shall produce
in sufficient numbers copies of the Stickers and Albums which
conform in all respects with the relevant materials in accordance
with the grant set out at clause 2 of this Agreement
3.5.6 Any and all copies of the Stickers the Albums and/or the Stickers
and Albums produced pursuant to this Agreement shall conform in
all respects with the relevant materials approved or deemed to
have been approved pursuant to this clause 3.5 and no amendment
change or variation in design to the same may be made by the
Licensee save with the express written consent of FAPL at its
absolute discretion
3.5.7 In the event that FAPL notifies the Licensee that any materials
and/or any component of any sample of or relating to the Stickers
and Albums is not approved the Licensee shall supply fresh
materials relevant thereto in accordance with the terms of clause
3.5.2 not later than 1 week following receipt of such
notification and the terms of this clause 3.5 shall apply thereto
3.6 In respect of Promotional Material
3.6.1 The Licensee shall deliver to FAPL as soon as reasonably
practicable and in any event not later than fifteen (15) working
days prior to the date of the first intended use of the same
sample designs of any and all Promotional Material intended to be
used by the Licensee together with full details of those media in
which the same is intended to be used and in what parts of the
world the same is intended to be used together with such other
details as FAPL may reasonably require from time to time
3.6.2 FAPL shall consider the samples and proposals supplied pursuant
to clause 3.6.1 of this Agreement and shall as soon as is
reasonably practicable and in any event not later than fifteen
(15) working days after receipt provide the Licensee with written
notice that in the case of each such sample and proposed use
either
3.6.2.1 the said sample and proposed use is approved or
3.6.2.2 the said sample and/or proposed use is not approved
together with reasons for non-approval but for the
aovidance of doubt FAPL shall not unreasonably withhold
approval in relation to features of the Promotional
Materials
3.6.3 In the event that (and to the extent that) FAPL has failed
within fifteen (15) working days of receipt of the materials
supplied pursuant to clause 3.6.1 of this Agreement to provide
written notice as set out at clause 3.6.2.1 and/or 3.6.2.2 in
respect of the same then FAPL shall not thereby be in breach of
this Agreement and the Licensee shall have no rights against FAPL
in connection with the said failure but FAPL shall be deemed to
have notified its approval of the materials so affected pursuant
to clause 3.6.2 where (but only where) the said materials are
materials required to produce and/or distribute or otherwise
<PAGE>
publish those Promotional Materials set out at Schedule 4 in
connection with launch of either the Stickers and Albums the
Trading Card Collection or the Miniature Stickers and Albums
Collection in respect of any Season
3.6.4 In the event that FAPL notifies (or is deemed to have notified
pursuant to clause 3.6.3) the Licensee that any sample of the
Promotional Materials and any proposed use of the same is
approved the Licensee shall be authorised to use in accordance
with the terms of use so approved by FAPL and the terms of this
Agreement Promotional Materials which conform in all respects
with the said sample in accordance with the grant set out at
clause 2 of this Agreement
3.6.5 Any and all Promotional Materials produced pursuant to this
Agreement shall conform in all respects with the relevant samples
approved or deemed to have been approved pursuant to this clause
3.6 and no amendment change or variation in design to the
Promotional Materials nor any use not expressly authorised
pursuant to this clause 3.6 may be made by the Licensee save for
such language or regulatory changes as may be appropriate for
territories outside the UK or with the express written consent of
FAPL (which may be withheld at its absolute discretion)
3.6.6 In the event that FAPL notifies the Licensee that any sample of
the Promotional Materials or any proposed use thereof is not
approved the Licensee may supply fresh samples and/or fresh
proposals as to use thereof in accordance with the terms of
clause 3.6.1 following receipt of such notification and the terms
of this clause 3.6 shall apply thereto
3.7 Where and to the extent that FAPL reasonably deems it necessary to
obtain consent or approval from any Club prior to notifying FAPL's
approval of any materials pursuant to this clause 3 FAPL shall notify
the Licensee of this necessity and each of FAPL and the Licensee shall
use their respective reasonable endeavours to procure such consent
3.8 In respect of the Miniature Stickers and Albums Collection in each
Season
3.8.1 the collection shall comprise such total number of Miniature
Stickers comprising such numbers of Player(s) from each Club as
may be agreed between FAPL and the Licensee from time to time in
respect of each Season
3.8.2 the Licensee shall deliver to FAPL as soon as reasonably
practicable in good time for the production of the Miniature
Stickers and Albums Collection in respect of that Season art work
proofs of the Miniature Albums comprising for each Club the
design format for and all information appearing on the Miniature
Albums for that Club plus one representative design of Miniature
Stickers for that Club and a list of the Players to be included
in the Miniature Stickers and Albums Collection
3.8.3 FAPL shall consider the materials supplied pursuant to clause
3.8.2 of this Agreement and shall as soon as is reasonably
practicable and in any event before the expiry of fifteen (15)
working days provide the Licensee with written notice that either
3.8.3.1 the said material is approved or
3.8.3.2 the said material is not approved together with details
of the elements thereof which are not approved reasons
for non-approval and suggestions as to what would be
approved in its place but for the avoidance of doubt FAPL
shall not unreasonably withhold approval in relation to
features of the Miniature Stickers and Albums Collection
and may object to the inclusion of any Player only on the
basis that he is not or will shortly cease to be
registered with the Club for which he is depicted
3.8.4 In the event that (and to the extent that) FAPL has failed within
fifteen (15) working days of receipt of the materials supplied
pursuant to clause 3.8.2 of this Agreement to provide written
notice as set out at clause 3.8.3.1 and/or 3.8.3.2 in respect of
the same then FAPL shall not thereby be in breach of this
Agreement and the Licensee shall have no rights against FAPL in
connection with the said failure but FAPL shall be deemed to have
notified its approval of the materials so affected pursuant to
clause 3.8.3
3.8.5 In the event that FAPL notifies (or is deemed to have notified
pursuant to clause 3.8.4) the Licensee that all relevant
materials of and relating to the Miniature Stickers and Albums
Collection are approved the Players depicted therein shall be
deemed Approved Players the depictions of the Players used
therein shall be deemed Authorised Photographs and the text used
therein shall be deemed Authorised Text (in each case in relation
<PAGE>
to the Miniature Stickers and Albums Collection only) and the
Licensee shall be authorised to produce and shall produce in
sufficient numbers copies of the Miniature Stickers and Albums
Collection which conform in all respects with the relevant
materials in accordance with the grant set out at clause 2 of
this Agreement
3.8.6 Any and all copies of the Miniature Stickers and/or Miniature
Albums and/or the Miniature Stickers and Albums Collection
produced pursuant to this Agreement shall conform in all respects
with the relevant materials approved or deemed to have been
approved pursuant to this clause 3.8 and no amendment change or
variation in design to the same may be made by the Licensee save
with the express written consent of FAPL at its absolute
discretion
3.8.7 In the event that FAPL notifies the Licensee that any materials
and/or any component of any materials of or relating to the
Miniature Stickers and Albums Collection is not approved the
Licensee shall supply fresh materials relevant thereto in
accordance with the terms of clause 3.8.2 not later than ten (10)
working days following receipt of such notification and the terms
of this clause 3.8 shall apply thereto
4. Exclusivity
4.1 FAPL undertakes and warrants to the Licensee (subject to clauses 4.2
and 4.3 and save as set out therein) that neither it nor any Club or
Player shall during the Term produce any Competitive Product or grant
to any Person the right to produce any Competitive Products and/or the
right to grant any such rights. [INFORMATION SUBJECT TO REQUEST FOR
CONFIDENTIAL TREATMENT]
4.2 By way of clarification and refinement of clause 4.1 the parties
hereto agree that the exclusivity granted thereby shall not include
4.2.1 [INFORMATION SUBJECT TO REQUEST FOR CONFIDENTIAL TREATMENT]
4.2.2 [INFORMATION SUBJECT TO REQUEST FOR CONFIDENTIAL TREATMENT]
4.2.3 [INFORMATION SUBJECT TO REQUEST FOR CONFIDENTIAL TREATMENT]
4.2.4 [INFORMATION SUBJECT TO REQUEST FOR CONFIDENTIAL TREATMENT]
4.2.5 [INFORMATION SUBJECT TO REQUEST FOR CONFIDENTIAL TREATMENT]
4.3 [INFORMATION SUBJECT TO REQUEST FOR CONFIDENTIAL TREATMENT]
<PAGE>
5. Use of Property
5.1 For the avoidance of doubt the Licensee hereby acknowledges and agrees
that
5.1.1 the Property will only be utilised in accordance with the terms
of this Agreement and will not be utilised in connection with any
other goods or services manufactured distributed or provided by
the Licensee or for any other purposes whatsoever save only as
expressly authorised by FAPL pursuant to the terms of this
Agreement or by separate arrangement with the Licensee
5.1.2 (except where otherwise agreed by FAPL in writing prior to any
distribution thereof) the Albums Miniature Albums and Binders and
the packets in which the Stickers Miniature Stickers and Trading
Cards are sold and all Promotional Material distributed in
relation to the Licensed Articles shall bear a statement to the
effect that the product is "Manufactured under Licence from the
F.A. Premier League Limited"
5.1.3 the Licensee shall not pass off the Licensed Articles as
authorised or otherwise endorsed by any individual Player(s) or
Manager(s) and shall if reasonably requested by FAPL clearly and
visibly indicate this on the Albums Miniature Albums and Binders
and the packets in which the Stickers Miniature Stickers and
Trading Cards are sold using wording such as "This product is not
endorsed by any individual player or manager" (or some such other
form as may be agreed in writing by FAPL in advance); and without
prejudice to the generality of the above the Licensee agrees that
where individual Players are depicted upon any Promotional
Materials it shall ensure (without prejudice to FAPL's rights of
approval as set out at clause 3) that (to the extent available
space reasonably permits) not less than four (4) Players are
depicted upon each unit of such Promotional Materials. Where the
said Promotional Materials are packets for Stickers Miniature
Stickers or Trading Cards the number of Players which must be so
depicted upon each unit shall be not less than two (2) and the
same two (2) Players shall not appear on more than 50% of such
units
6. Consideration
6.1 In consideration of the grant of the rights granted pursuant to this
Agreement the Licensee agrees to pay to FAPL
6.1.1 by way of payment of the total Minimum Guarantee payable by
Licensee to FAPL which shall be in no way refundable or repayable
but shall be recoupable pursuant to clause 6.7 only the sum of
(pound)[INFORMATION SUBJECT TO REQUEST FOR CONFIDENTIAL
TREATMENT] payable by installments of (pound)[INFORMATION SUBJECT
TO REQUEST FOR CONFIDENTIAL TREATMENT] on each 1 November and 1
April respectively during the Term commencing on 1 November 2004
with the last installment to be paid on 1 April 2007
6.1.2 Royalties upon any and all Sales of Stickers in packet form
within the United Kingdom and Eire the following percentages
based on Sales in any one Season
6.1.2.1 upon the Net Sales Value of Sales of Stickers of up to a
total value of (pound)[INFORMATION SUBJECT TO REQUEST FOR
CONFIDENTIAL TREATMENT] a sum equal to [INFORMATION
SUBJECT TO REQUEST FOR CONFIDENTIAL TREATMENT] per
centum) thereof and
6.1.2.2 upon the Net Sales Value of Sales of Stickers of a total
value of between (pound) [INFORMATION SUBJECT TO REQUEST
FOR CONFIDENTIAL TREATMENT] and (pound) [INFORMATION
SUBJECT TO REQUEST FOR CONFIDENTIAL TREATMENT] a sum
equal to [INFORMATION SUBJECT TO REQUEST FOR CONFIDENTIAL
TREATMENT] per centum) thereof and
6.1.2.3 upon the Net Sales Value of Sales of Stickers of a total
value of more than (pound)[INFORMATION SUBJECT TO REQUEST
FOR CONFIDENTIAL TREATMENT] a sum equal to [INFORMATION
SUBJECT TO REQUEST FOR CONFIDENTIAL TREATMENT] per
centum) thereof PROVIDED THAT each of the total values
referred to in this clause 6.1.2 shall for the purposes
of this clause 6.1.2 be increased for each year of this
Agreement after the first by the corresponding amount of
any increase in the RPI over the previous year and for
this purpose each year shall run from 1 October to 30
September and "RPI" means the retail price index
currently issued by the UK Government from time to time
or any successor index thereto
<PAGE>
6.1.3 Royalties upon the Net Sales Value of the total Sales of Trading
Cards in packet form within the United Kingdom and Eire in a sum
equal to [INFORMATION SUBJECT TO REQUEST FOR CONFIDENTIAL
TREATMENT] per centum) thereof
6.1.4 Royalties upon the Net Sales Value of the total Sales of
Stickers and/or Trading Cards in packet form outside the United
Kingdom and Eire in a sum equal to [INFORMATION SUBJECT TO
REQUEST FOR CONFIDENTIAL TREATMENT] per centum) thereof
6.1.5 Royalties upon the Net Sales Value of Sales of Stickers and/or
Trading Cards in any form other than packet form (in each case
where the same is expressly permitted by FAPL pursuant to this
Agreement and including by way of example and without limitation
in tins boxes or uncut sheets)
6.1.5.1 of a total value of up to (pound)[INFORMATION SUBJECT TO
REQUEST FOR CONFIDENTIAL TREATMENT] in a sum equal to
[INFORMATION SUBJECT TO REQUEST FOR CONFIDENTIAL
TREATMENT] per centum) thereof and
6.1.5.2 of a total value of more than (pound)[INFORMATION SUBJECT
TO REQUEST FOR CONFIDENTIAL TREATMENT] in a sum equal to
[INFORMATION SUBJECT TO REQUEST FOR CONFIDENTIAL
TREATMENT] per centum) in respect of any such Sales which
take place in [INFORMATION SUBJECT TO REQUEST FOR
CONFIDENTIAL TREATMENT] and in a sum equal to
[INFORMATION SUBJECT TO REQUEST FOR CONFIDENTIAL
TREATMENT] per centum) in respect of any such Sales which
take place in any other part of the world
6.1.6 Royalties upon the Net Sales Value of the total Sales of Binders
in a sum equal to [INFORMATION SUBJECT TO REQUEST FOR
CONFIDENTIAL TREATMENT] per centum) thereof
6.1.7 Royalties upon the Net Sales Value of the total Sales of
Miniature Stickers and/or Miniature Albums in a sum equal to
[INFORMATION SUBJECT TO REQUEST FOR CONFIDENTIAL TREATMENT] per
centum) thereof (and for the avoidance of doubt such Net Sales
Value shall be inclusive of any sum payable in respect of the
element of bubble gum incorporated in the packets of the said
Miniature Stickers)
6.2 The Licensee shall within thirty (30) days after each Quarter Day
furnish to FAPL a complete and accurate statement showing
6.2.1 the volume and Net Sales Value of Sales of Licensed Articles
during such Quarter and to date broken down in such manner
(including but not limited to as set out at clause 6.2.2) as FAPL
may stipulate
6.2.2 the number title price format and territory of units sold or
otherwise distributed by or on behalf of the Licensee
6.2.3 the Licensee's estimate of Net Sales Value of Sales and
Royalties for the following Quarter
6.2.4 any other information reasonably requested by FAPL or which is
customary for the Licensee to supply to licensors in the same or
similar relationships as that which the Licensee has with FAPL
under this Agreement
Following the commercial release of the first Licensed Articles
each statement shall be furnished to FAPL as aforesaid whether or
not any Licensed Articles have been Sold during such period. Upon
presentation of the statement FAPL shall issue an invoice to the
Licensee who shall then arrange payment to be made subject to
clause 6.6 within fifteen (15) days of receiving such invoice.
Receipt by FAPL of any of the statements furnished pursuant to
this Agreement or of any sums paid hereunder shall not preclude
FAPL from questioning the correctness thereof at any time and in
the event that any inconsistencies in such statements or mistakes
in payments are discovered they shall immediately be rectified
and the appropriate payments made to FAPL. Subject to clause 6.6
a final payment shall be made and statement furnished within
thirty (30) days after the next Quarter Day following termination
in accordance with clause 15 or the expiry of the Term as the
case may be. For the avoidance of doubt Royalties shall accrue
under this Agreement upon the earlier of the date of shipment by
the Licensee or the date of invoice by the Licensee and shall be
included within the statement for the Quarter during which such
date occurred
PROVIDED ALWAYS THAT
The Licensee shall have the right to withhold from Royalties due
to FAPL in relation to any Quarter a reserve not to exceed
[INFORMATION SUBJECT TO REQUEST FOR CONFIDENTIAL TREATMENT]%
([INFORMATION SUBJECT TO REQUEST FOR CONFIDENTIAL TREATMENT] per
centum) of Royalties due on the Licensee's cumulative Sales made
on a "sale or return" basis up to the end of such Quarter which
<PAGE>
reserve shall be liquidated and adjusted by payment to FAPL of
all sums owing by way of Royalties upon Sales actually made and
not returned to the Licensee such payment to be made in
accordance with this Agreement within nine (9) months following
the month in which such reserve was created and in any event no
later than fifteen (15) months after the launch date for the
collection of Trading Cards Miniature Stickers or Stickers in
question or by the end of March in the year following such launch
whichever date is later. All sales of Licensed Articles made
through direct mail and/or via the internet shall be deemed to
have been sold on a non-returnable basis and accordingly the
Licensee shalt not maintain reserves with respect to such Sales
6.3 If the Licensee fails either in whole or in part to make any payment
due hereunder by the due date interest shall be charged by FAPL and
compounded on each Quarter Day on the outstanding amount at a rate of
[INFORMATION SUBJECT TO REQUEST FOR CONFIDENTIAL TREATMENT]%
([INFORMATION SUBJECT TO REQUEST FOR CONFIDENTIAL TREATMENT] per
centum) per annum above the base rate from time to time charged by
Barclays Bank plc from the due date as aforesaid until such date as
payment of such amount is received in cleared funds by FAPL
6.4 All sums payable hereunder are exclusive of Value Added Tax which
where appropriate shall be paid by the Licensee in addition. FAPL
shall deliver to the Licensee an invoice within fourteen (14) days
after receipt of funds from the Licensee
6.5 The Licensee acknowledges that it shall have no right to set off any
debts owed to it by FAPL against any payments due from it to FAPL
hereunder nor any right to any refund recoupment or other recovery in
respect of any payments made by it to FAPL hereunder other than under
the proviso to clause 6.2 and under clause 6.7
6.6 All sums due to FAPL pursuant to this Agreement shall be paid on
presentation by FAPL of its invoice as provided for by clause 6.2 by
pre-paid electronic transfer at the Licensee's expense to an account
of FAPL to be notified to the Licensee at least ten (10) clear working
days before the due date for payment so that such payment can be
requisitioned by the Licensee in time to enable the account of FAPL to
receive cleared funds by the due date
6.7 The Licensee shall be entitled to recoup the Royalties out of sums
paid by way of the Minimum Guarantee (being the sums payable pursuant
to clause 6.1.1 only) with the intention that the Licensee shall pay
Royalties exceeding the Minimum Guarantee only to the extent that such
Royalties are generated through Sales over the duration of this
Agreement. The Minimum Guarantee shall be paid to FAPL in accordance
with the terms of this Agreement upon the due dates as set out at
clause 6.1.1 and thereafter the Licensee shall be entitled itself to
retain the Royalties otherwise payable to FAPL but only until such
time as it shall have recouped the entirety of the Minimum Guarantee
paid and payable pursuant to this Agreement from this source;
thereafter Royalties must be paid in accordance with clauses 6.1 and
6.2
6.8 Amounts invoiced or received by the Licensee in foreign currencies
will be deemed converted into pounds sterling at the relevant exchange
rate as published by Barclays Bank plc for the date of invoice or
receipt as appropriate
6.9 No Royalty is payable for Sales of Stickers or Trading Cards supplied
by the Licensee pursuant to a Children's Mail Service operated in
substantially the same manner as that by which it currently allows
customers to complete their collections (details of which are set out
at Schedule 5) being a service whereby Stickers can be supplied by the
Licensee upon request by mail order at a nominal price only in numbers
to each collector of not more than 15% of the total number of Stickers
comprised in the Stickers and Albums for that Season and/or of Trading
Cards in the Trading Card Collection for that Season respectively
7. Accounting Records and Rights of Inspection
7.1 The Licensee agrees to keep accurate books of account and records
covering all transactions relating to this Agreement and the Licensed
Articles (including without limitation any distribution of Licensed
Articles described at clause 14.3) and FAPL shall have the right
(itself or through such firm of accountants as FAPL may choose to
appoint from time to time) no more than twice in any one calendar year
and on ten (10) business days' notice in writing to examine such that
such payment can be requisitioned by the Licensee in time to enable
the account of FAPL to receive cleared funds by the due date books and
records at the principal place of business of the Licensee during the
Licensee's regular business hours and shall have full access thereto
for the said purpose and for the purpose of making extracts therefrom.
If such inspection reveals that the Licensee has underpaid any
Royalties the Licensee shall on demand account for such underpayment
(together with interest in accordance with clause 6.3) and if the
Licensee has underpaid such Royalties by a factor of 3% (three per
centum) or more of those due under the most recent statement or under
<PAGE>
the statements for the period covered by the audit the Licensee shall
in addition reimburse the reasonable cost of such audit and such audit
shall not count as one of the two audits to which FAPL is entitled in
each calendar year
7.2 All books of account and records referred to in clause 7.1 shall be
kept available for at least two (2) years after expiry or earlier
termination of this Agreement or any renewal hereof and the Licensee
agrees to permit inspection thereof by FAPL during such two (2) year
period in accordance with clause 7.1
8. Intellectual Property
8.1 FAPL and/or any of the Clubs may in its absolute discretion take such
steps to obtain trade mark registrations in respect of the Property as
it may deem necessary
8.2 The Licensee agrees to include on the Albums and Binders and the
Miniature Albums and the packets in which the Stickers and Trading
Cards and Miniature Stickers are sold and/or any Promotional Materials
featuring any of the Property
8.2.1 the following copyright notice "(C) (In the F.A. Premier League
logo) The F.A. Premier League Limited [(Year)]" and
8.2.2 an appropriate trade marks notice whenever the FAPL Marks the
Club Logos and/or the F.A. Marks are used For the purposes of
this clause 8.2 an appropriate trade marks notice shall mean, the
symbol TM or the symbol as notified to the Licensee by FAPL in
advance of production of the Licensed Articles. Such copyright
and trade mark notices as FAPL may reasonably stipulate shall
also appear on the opening page of any Album or Miniature Album
or in such other place as the parties may agree
8.3 The parties hereby agree that to the extent sponsorship has been
procured for FAPL and/or any Clubs and/or Players and/or Players
Photographs and/or which is reflected in or otherwise relates to the
Players Photographs or other Property the Licensee shall carry a
discreet acknowledgement of such sponsorship and if required a logo of
such sponsor in the title pages or in such other place in any Album or
Miniature Album as FAPL may reasonably stipulate provided that the
same is not used to promote the goods and/or services of any
Competitor
8.4 The Licensee acknowledges that as between FAPL and the Licensee all
copyright trade marks and any other intellectual property rights in
the Property and the words "Premier League " and "Premiership"
together with any goodwill attaching thereto shall remain the sole
property of FAPL
8.5 As regards all copyrights in relation to and associated with the
Licensed Articles (save only in the Topps Name and Logo and/or the
Property and/or any Authorised Photographs) and the related packaging
labelling promotional advertising display or other materials
(including without limitation the artwork statistics text and layout
of the Licensed Articles and the design and format of the Licensed
Articles and the Promotional Materials) together with any items text
materials photographs artwork or components of such materials created
or used at any time by the Licensee pursuant to rights granted to it
by FAPL at any time prior to the date of this Agreement (all together
the "Materials") the Licensee hereby agrees that to the extent it is
or becomes at any time and/or by any means entitled to ownership of or
other rights in connection with such copyright (wherever in the world
such copyright may now or in future subsist) that copyright and/or
those rights shall be owned jointly by the Licensee and FAPL. The
Licensee hereby agrees that it will take all steps and do all things
reasonably practicable to ensure that any and all copyright in the
Materials becomes vested in the Licensee and thus jointly in the
Licensee and FAPL in accordance with this clause 8.5 and shall do all
things and execute all documents reasonably necessary to perfect such
grant of joint copyright to FAPL upon FAPL's request. FAPL in return
hereby grants back to the Licensee a licence thereof necessary for the
Licensee to discharge its obligations or to enjoy the rights expressly
granted to it pursuant to this Agreement. For the avoidance of doubt
8.5.1 nothing herein shall prevent the Licensee using any underlying
works or concepts in relation to any products outside the scope
of this Agreement notwithstanding that those works or concepts
have been developed in relation to the Materials provided that
use of such works does not result in reproduction (wholly or
substantially) of any Licensed Articles and/or any Materials
8.5.2 Neither the Licensee nor FAPL shall use any of the artwork
designs Authorised Photographs Approved Text or other component
part of the Licensed Articles and/or any part or parts of the
Promotional Materials and/or the Materials for so long as any
relevant copyright subsists therein without the written consent
of the other
<PAGE>
8.6 FAPL hereby agrees that it will use reasonable endeavours to procure
the waiver (to such extent only that the same is necessary to enable
the Licensee to discharge its obligations or to enjoy the rights
expressly granted to it pursuant to this Agreement) by all appropriate
persons of any and all moral rights (as defined at Chapter IV of Part
I of Copyright Designs and Patents Act 1988 or equivalent provisions
under the laws of any other jurisdiction) in any Players' Photographs
and in any Property. The Licensee agrees that it will use reasonable
endeavours to procure the waiver (to such extent only that the same is
necessary to enable FAPL to discharge its obligations or to enjoy the
rights expressly granted to it pursuant to this Agreement) by all
appropriate persons of any and all moral rights in any Materials
(other than the Players' Photographs or any Property)
8.7 As between the Licensee and FAPL the Property and any and all
trademarks copyrights and other proprietary rights in and to the
Property are exclusively owned reserved and/or controlled by FAPL and
any and all intellectual property rights or other rights in the same
which may at any time accrue to the Licensee shall inure to the
benefit of and are hereby assigned together with the goodwill attached
thereto to FAPL
8.8 FAPL shall have the right to terminate this Agreement in the event
that the Licensee asserts any rights in or to the Property other than
as set forth herein. Nothing contained in this Agreement nor the use
by the Licensee of the Property will give the Licensee any ownership
interest in any such trademark logo copyright or trade name of FAPL.
The Licensee shall not by virtue of this Agreement obtain or claim any
right title or interest in or to the Property except the rights of use
as are specifically set forth herein
8.9 Without prejudice to the other provisions of this Agreement the
Licensee undertakes to develop manufacture package store and
distribute the Licensed Articles in accordance with standards and
specifications of quality no less than those which the Licensee
applies in its business in collectable stickers and trading card
products immediately prior to the date of release of such Licensed
Articles. FAPL shall have the right no more than twice in any one
calendar year and upon reasonable notice in writing to inspect the
premises or factories of the Licensee or any Person granted the right
to manufacture produce or store the Licensed Articles where the
Licensed Articles are manufactured or stored for the purpose of
satisfying itself that the Licensed Articles are being manufactured
and stored in accordance with the terms of this Agreement
8.10 The Licensee shall use reasonable endeavours to ensure that all
Licensed Articles sold offered for sale distributed or delivered under
this Agreement are accompanied by appropriate explanations notes
and/or instructions (including in languages other than English if Sale
offer for sale distribution or delivery is to take place in countries
where English is not the first language for such instructions) and
warnings and precautions (including health warnings if any) concerning
use of the Licensed Articles and/or (in the case of the Miniature
Stickers and Albums Collection) in respect of the bubble gum or other
products included in the packets in which the same are sold
8.11 the Licensee shall provide or procure the provision of to the same
extent as it does for its other collectable stickers and cards
products appropriate technical information and customer support for
the Licensed Articles (including but not limited to support for
customers in completing their collections of such nature as FAPL and
the Licensee may from time to time agree) and appropriate warranties
for the Licensed Articles for consumers
8.12 The Licensee shall ensure the following notice appears on the Albums
Miniature Albums and Binders and the packets in which the Stickers
Miniature Stickers and Trading Cards are sold "Unauthorised
reproduction of any part of this product is prohibited" or some such
other similar notice as utilised by the Licensee for other products
8.13 The Licensee shall if so reasonably requested by FAPL from time to
time provide FAPL with details of its efforts adequately to secure the
Licensed Articles against unauthorised use copying and access
9. Indemnity and Limitation of Liability
9.1 The Licensee hereby agrees fully and effectively to indemnify and to
keep indemnified FAPL against and hold it harmless from all claims
actions loss or liability direct indirect and consequential losses of
whatever nature (including but not limited to reasonable legal fees
but excluding pure economic loss) arising out of
9.1.1 any alleged unauthorised use of any patent process copyright
and/or trade marks (including but not limited to the Property)
idea method or device used by the License in connection with the
Licensed Articles and/or the Promotional Materials and/or the
Materials save where such use is pursuant to FAPL's authorisation
<PAGE>
9.1.2 any use of and/or alleged defects in the Licensed Articles (and
in the case of the Miniature Stickers and Albums Collection any
bubblegum or other products included in the packets in which the
same are sold) and/or the Promotional Materials or out of
instructions for use of the Licensed Articles (and in the case of
the Miniature Stickers and Albums Collection any bubblegum or
other products included in the packets in which the same are
sold) or lack of the same (including without limitation all
public and product liability)
9.2 If any claim or threat of action (including without limitation any
originating process in any proceedings arbitration or other process
("Proceedings")) in respect of which FAPL seeks indemnity pursuant to
clause 9.1 is received by or comes to the notice of FAPL FAPL shall as
soon as practicable give or procure to be given to the Licensee
written notice of the same and shall make no comment or admission to
any third party in respect thereof. Such notice shall be accompanied
by a copy of the relevant document(s)
9.3 Save to the extent that the Proceedings relate to the Property in any
way (in which event FAPL shall have sole discretion as to what action
if any is to be taken subject only to the provisions of clause 12)
9.3.1 FAPL shall allow the Licensee to have conduct on its behalf of
any litigation or settlement negotiations in relation to any
Proceedings in respect of which FAPL seeks indemnity pursuant to
clause 9.1 and
9.3.2 if so requested in writing by the Licensee FAPL shall take such
action as the Licensee may reasonably request (with the Licensee
to reimburse FAPL's reasonable expenses in so doing) to avoid
dispute resist appeal compromise or defend such Proceedings
9.4 This clause and clauses 9.5 to 9.9 inclusive set out the Licensee's
entire liability (including any liability for the acts and omissions
of its employees agents and sub-contractors) to FAPL in respect of
9.4.1 any breach of its contractual obligations arising under this
Agreement and
9.4.2 any representation or tortious act or omission including without
limitation for negligence arising under or in connection with
this Agreement save only in respect of those matters expressly
stated in this clause 9 of this Agreement to give rise to an
obligation set out therein of the Licensee to indemnify FAPL
9.5 Any act or omission on the part of the Licensee or its employees
agents or sub-contractors falling within clause 9.4 above shall for
the purpose of this clause 9 be known as an "Event of Licensee's
Default"
9.6 The Licensee's liability to FAPL for death or injury resulting from
its own negligence or that of its employees agents or sub-contractors
shall not be limited
9.7 Save as set out at clause 9.1 and subject to the provisions of clause
9.6 and 9.8 the Licensee's entire aggregate liability howsoever
arising and of whatever nature in respect of any and all Events of
Licensee's Default of whatever nature and howsoever arising shall be
limited to the payments it is obliged to make to FAPL pursuant to
clause 6.1 (should it fail to pay the same) and over and above such
payments the additional sum of (pound)[INFORMATION SUBJECT TO REQUEST
FOR CONFIDENTIAL TREATMENT]
9.8 Without prejudice to clause 9.1 the Licensee shall not (to the extent
permitted by law) be liable to FAPL in respect of any Event of
Licensee's Default for loss of profits goodwill or any type of special
indirect or consequential loss or damage (including loss or damage
suffered by FAPL as a result of an action brought by a third party)
save to the extent that such loss was reasonably foreseeable or the
Licensee had been advised of the possibility of FAPL incurring the
same
9.9 This clause and clauses 9.10 to 9.13 inclusive set out FAPL's entire
liability (including any liability for the acts and omissions of its
employees agents and sub-contractors) to the Licensee in respect of
9.9.1 any breach of its contractual obligations arising under this
Agreement and
9.9.2 any representation or tortious act or omission including without
limitation for negligence arising under, or in connection with
this Agreement save only in respect of those matters expressly
stated herein or in any subsequent agreement in writing to give
rise to an obligation set out therein of FAPL to indemnify the
Licensee
9.10 Any act or omission on the part of FAPL or its employees agents or
sub-contractors falling within clause 9.9 above shall for the purpose
of this clause 9 be known as an "Event of FAPL's Default"
<PAGE>
9.11 FAPL's liability to the Licensee for death or injury resulting from
its own negligence or that of its employees agents or sub-contractors
shall not be limited
9.12 Subject to the provisions of 9.11 and 9.13 FAPL's entire aggregate
liability howsoever arising and of whatever nature in respect of any
and all Events of FAPL's Default of whatever nature and howsoever
arising shall be limited to the aggregate amount of the Minimum
Guarantee payable pursuant to clause 6.1.1 which FAPL has actually
received from the Licensee as at the date of any such liability to pay
being agreed or determined by a court of competent jurisdiction
9.13 FAPL shall not (to the extent permitted by law) be liable to the
Licensee in respect of any Event of FAPL's Default for loss of profits
goodwill or any type of special indirect or consequential loss or
damage (including loss or damage suffered by the Licensee as a result
of an action brought by a third party) save to the extent that such
loss was reasonably foreseeable or FAPL bad been advised of the
possibility of the Licensee incurring the same
10. Licensee's Warranties and Undertakings
10.1 The Licensee hereby warrants and undertakes to FAPL that it shall
10.1.1 not adopt or use any other marks drawings symbols emblems logos
designations or names confusingly similar to the Property or
the F.A. Marks
10.1.2 not during the Term do or suffer to be done any act or thing
which will in any way alter harm misuse or bring into disrepute
impair or adversely affect the Property or the rights and
interests of FAPL and/or the Clubs and/or the F.A. and/or the
Players therein nor use the Property in any manner likely to
cause harm to the goodwill attached thereto or to the F.A.Marks
10.1.3 not during the Term exercise the rights granted under this
Agreement nor use the Property in any manner which in the
reasonable opinion of FAPL is prejudicial to the image of FAPL
the F.A. the Clubs the Players or the good name of football in
general
10.1.4 not without the prior written consent of FAPL engage in any
joint exploitation of or otherwise enter into any joint
marketing or promotion in relation to the rights granted
hereunder with any third party whatsoever or otherwise
associate any Licensed Articles or the Property with any third
party's products or services (including but not limited to by
featuring within any Licensed Article any advertising or
message on a representation of a perimeter board at a Stadium
or otherwise save by the representation of the Clubs' sponsors
as stipulated by FAPL as part of the Authorised Photographs)
PROVIDED THAT this sub-clause shall in no way restrict Sale or
promotion in marketing materials used by the Licensee generally
of the Licensed Articles together with other products of the
Licensee AND FURTHER THAT the proposed promotional and
marketing arrangements set out at Schedule 1 shall be deemed to
have the prior written consent of FAPL subject to FAPL's rights
of approval in all respects as set out in clause 3 of this
Agreement. The Licensee shall disclose fully and fairly to FAPL
all material terms of any offer or proposal made in connection
with any joint exploitation or marketing or promotion in
relation to the rights granted hereunder with any third party
whether proposed by Licensee or received by it (including but
not limited to all financia l terms and/or consideration
provisions) prior to seeking any such consent of FAPL
10.1.5 not do or omit to do any thing which might undermine the
validity of the FAPL Marks the Club Logos and/or the F.A. Marks
as registered trade marks
10.1.6 not make any representation or give any warranty on behalf of
FAPL nor create any expense hargeable to FAPL or otherwise
pledge the credit of FAPL
10.1.7 if so requested by FAPL
10.1.7.1 enter into an undertaking on terms reasonably
satisfactory to FAPL that it will comply with such terms
and conditions regarding the use of the Property and
the F.A. Marks as may reasonably be required by FAPL
10.1.7.2 execute and deliver at FAPL's expense a registered user
agreement in relation to the use of the F.A. Marks
and/or the FAPL Marks and/or the Club Logos in a form
satisfactory to FAPL if such agreement is in FAPL's
reasonable opinion necessary or desirable to protect
the F.A.'s position in relation to the F.A. Marks or
FAPL's position in relation to the FAPL Marks or the
Clubs position in relation to the Club Logos
<PAGE>
10.1.7.3 supply to FAPL the date of first release of the Licensed
Articles in each country in the Territory
10.1.8 not hold itself out as a supplier to FAPL or otherwise
associate itself with FAPL except strictly in accordance with
and subject to the terms of this Agreement
10.1.9 procure that the Licensed Articles (and in the case of the
Miniature Stickers and Albums Collection any bubblegum or other
products included in the packets in which the same are sold)
comply with high industry safety standards applicable in the
Territory to the manufacture distribution and/or sale of goods
of the nature of the Licensed Articles (and in the case of
the Miniature Stickers and Albums Collection any bubblegum or
other products included in the packets in which the same are
sold) (notwithstanding that compliance with any such standard
or code may not be compulsory by law) and that the Promotional
Materials comply with all applicable advertising codes in the
Territory
10.1.10 use its reasonable endeavours at all times before and during
the Term to safeguard the security of all stocks of the
Licensed Articles under its possession or control or in the
possession or control of its manufacturers and to ensure that
no such stocks are distributed to any third party otherwise
than in accordance with the terms of this Agreement
10.1.11 feature in each of the Stickers and Albums and the Trading
Card Collection and in the Miniature Stickers and Albums
Collection in respect of each Season all of the Clubs (and not
only some of the Clubs) which are members of FAPL at the start
of the Season in respect of which the said Licensed Articles
are released and all on the same basis and to the same extent
in accordance with the terms of this Agreement
10.1.12 throughout the Term produce advertise market promote and offer
for sale the complete range of Licensed Articles throughout
the United Kingdom and Eire and shall use its discretion as to
how and the extent to which it markets Licensed Articles else-
where in the Territory making where appropriate translated
and/or alternate versions for territories whose English is not
the first or main language spoken. Without prejudice to the
foregoing the Licensee shall use reasonable endeavours
consistent with the Licensee's business judgment and normal
practices to maximise the Sales of and revenue from the Licensed
Articles so as at least to exceed in itspayment of Royalties the
Minimum Guarantee (including but not limited to the manufacture,
maintenance and supply of sufficient stocks of Licensed Articles
to meet demand) and shall give priority to developing the
following territories as markets [INFORMATION SUBJECT TO REQUEST
FOR CONFIDENTIAL TREATMENT] PROVIDED THAT the Licensee shall not
be obliged to market or sell Licensed Products in any of the
said territories or in any other territory outside the United
Kingdom and Eire unless FAPL has provided to it an indemnity
without limit in terms of amount against the consequences of any
alleged invalidity of the Property or alleged infringement of
any third party rights by its use of the Property in a manner
consistent with this Agreement within the relevant territory.
Nothing in this clause shall have the effect of obliging FAPL to
provide any such indemnity
10.1.13 effect and maintain adequate insurance (including for product
liability and errors and omissions) to remain in place for at
least twelve (12) months after the last distribution or sale of
Licensed Articles under this Agreement with FAPL named as an
additional insured thereon and not as a named insured and provide
evidence of the policy and of the cover note to FAPL upon request
in writing
10.1.14 obtain all necessary third party consents and/or licences
(including any copyright licences) required in connection with
the Licensed Articles (and in the case of the Miniature Stickers
and Albums Collection any bubblegum or other products included in
the packets in which the same are sold) (including in connection
with the development manufacture sale distribution promotion or
delivery thereof)
10.1.15 ensure that nothing in the Licensed Articles (and where
applicable in the case of the Miniature Stickers and Albums
Collection nothing in any bubblegum or other products included in
the packets in which the same are sold) and/or the Promotional
Materials and/or the Materials shall be
10.1.15.1 illegal in any part of the world in which the same are
or are to be used or
10.1.15.2 in breach of any applicable generally accepted industry
standards in any part of the world in which the same
are or are to be used or
<PAGE>
10.1.15.3 obscene or
10.1.15.4 blasphemous and/or insulting to any religion or system
of belief or
10.1.15.5 defamatory of any person or
10.1.15.6 likely to bring FAPL and/or any Club or any subsidiary
or holding company of any Club or any subsidiary of any
holding company of any Club (in each case as defined by
s736 of the Companies Act 1985 as amended) and/or any
officer employee or director of FAPL and/or of any such
company into disrepute or
10.1.15.7 likely to bring FAPL and/or FIFA UEFA the Football
League Limited the F.A. and/or any other governing body
of football and/or the game of football into disrepute
10.1.15.8 of a nature which infringes the copyright trade marks
patents designs registered design rights in respect of
databases rights in respect of passing off moral rights
or other intellectual property rights of any nature of
any person anywhere in the world
11. FAPL's Warranties
11.1 FAPL hereby undertakes and warrants to the Licensee that
11.1.1 it is fully entitled to enter into this Agreement and to grant
the rights granted hereunder to the Licensee
11.1.2 it is or will procure that it becomes the sole owner or
controller or valid licensee (to the extent necessary to grant
the rights granted hereunder) of the Property and the Player
Photographs and in particular but without limitation to the
foregoing has been licensed by the Clubs to sub-license to the
Licensee such rights in the Club Designs as may be owned or
controlled by the Clubs
11.1.3 it is and will remain entitled to procure (in accordance with
its rules from time to time) compliance by the Clubs and the
Players with the commitments made on their behalf in this
Agreement particularly (but without limitation) in relation to
the provisions on exclusivity set out in clause 4 and shall use
best endeavours (short of litigation) to procure such compliance
promptly upon being so requested by the Licensee. For the
avoidance of doubt it is hereby agreed that failure by FAPL to
secure such compliance and in particular compliance with clause 4
shall be a breach of its obligations under this Agreement
11.1.4 the exercise by the Licensee of the rights granted to it
pursuant to this Agreement as provided in this Agreement will not
infringe the rights of any third party
11.1.5 the terms of this Agreement shall apply mutatis mutandis in
respect of Clubs promoted to the Premiership from time to time
during Seasons after the 2004/2005 season (or relevant part
thereof if less than a complete Season prior to expiry or
termination of this Agreement)
11.2 For the avoidance of doubt FAPL gives no warranty that FAPL the Clubs
or the Licensee shall have any entitlement to use in any way the
images and/or the name fame likeness or other attributes of any Player
save only as expressly set out in this Agreement and the Licensee
shall make no use of the same save as expressly authorised by FAPL
either in this Agreement or as otherwise authorized in writing
12. Infringement
12.1 In the event that any third party infringes or attempts to infringe
any rights acquired by the Licensee hereunder during the Term the
Licensee shall inform FAPL of such infringement or attempted
infringement as soon as the relevant facts are known to it. If FAPL
decides (in its absolute discretion) that proceedings shall be
commenced the Licensee shall at the request of FAPL and at the
Licensee's own expense give full co-operation and provide all
information and assistance to FAPL as FAPL may reasonably consider
necessary. If FAPL decides not to commence proceedings the Licensee
shall not have any right to do so in its own name or otherwise whether
pursuant to sections 30 or 31 of the Trade Marks Act 1994 or
otherwise. FAPL shall bear the costs of any such proceedings (save
only the Licensee's costs of assistance therewith as set out above)
and shall be entitled to retain any recovery therefrom to cover such
costs any balance being divided between the parties in accordance with
the Royalty percentages as set out in this Agreement
<PAGE>
12.2 If at any time during the Term the Licensee becomes aware that any
other Person alleges that the use of the Property infringes any rights
of another party the Licensee shall immediately give to FAPL full
particulars in writing thereof and shall make no comment or admission
to any third party in respect thereof. FAPL will in consultation with
the Licensee take such steps as it considers reasonably necessary to
defend any such allegation but shall not be obliged to take any steps
if it decides in its absolute discretion not to do so
12.3 In the event that any third party infringes or attempts to infringe
any rights of the Licensee in connection with the Licensed Products
(not being rights acquired by the Licensee hereunder and/or the
Materials) during the Term FAPL shall inform the Licensee of such
infringement or attempted infringement as soon as the relevant facts
are known to it. If the Licensee decides that proceedings shall be
commenced FAPL shall at the request of the Licensee give full
co-operation and provide all information and assistance to the
Licensee as the Licensee may reasonably consider necessary. The
Licensee shall bear the costs of any such proceedings (including
FAPL's reasonable costs of assistance therewith as set out above) and
shall be entitled to retain any recovery therefrom
12.4 If at any time during the Term FAPL becomes aware that any other
Person alleges that the use of the Topps Name and Logo in the Licensed
Articles infringes any rights of another party FAPL shall immediately
give to the Licensee full particulars in writing thereof and shall
make no comment or admission to any third party in respect thereof.
The Licensee will in consultation with FAPL take such steps as it
considers reasonably necessary to defend any such allegation but shall
not be obliged to take any steps if it decides in its absolute
discretion not to do so
12.5 In the event that any third party infringes or attempts to infringe
any rights in or in connection with the Materials which are the
subject matter of joint copyright hereunder during the Term or at any
time thereafter until the expiry of all relevant copyrights any party
which becomes aware of the same shall inform the other of such
infringement or attempted infringement as soon as the relevant facts
are known to it. If either party ("the first party") decides (in its
absolute discretion) that proceedings shall be commenced it shall
notify the other ("the second party") in writing of that decision and
the second party (in the event that it does not agree terms with the
first party to participate as joint claimant in the said proceedings)
shall at the request of the first party give full co-operation and
provide all information and assistance to the first party as the first
party may reasonably consider necessary. The first party shall bear
the costs of any such proceedings (including the second party's
reasonable costs of assistance therewith as set out above) and shall
be entitled to retain any recovery therefrom
12.6 If at any time during the Term or at any time thereafter until the
expiry of all relevant copyrights either party becomes aware that any
other Person alleges that the use of the Materials which are the
subject of joint copyright hereunder infringes any rights of another
party that party shall immediately give to the other full particulars
in writing thereof and shall make no comment or admission to any third
party in respect thereof. The parties will in consultation with each
other take such steps as they consider reasonably necessary to defend
any such allegation and in the event of any dispute between the
parties as to any action to be taken neither party shall make any
admission or compromise any proceedings arising therefrom or fail to
take any step to defend any such allegation and/or proceedings arising
therefrom without first giving written notice to the other party of
their intention to do so such notice to be given in sufficient time to
give the notified party the opportunity to take such action as it may
reasonably consider appropriate to restrain such admission compromise
or failure to act. For the avoidance of doubt the contents of this
clause shall be without prejudice to the Licensee's indemnity given to
FAPL pursuant to clause 9.1 and any indemnity given by FAPL pursuant
to clause 10.1.12
13. Confidentiality
13.1 Neither FAPL nor the Licensee shall disclose to any third party (other
than professional advisers and the Clubs) any confidential information
relating to the business or future plans of the other party at any
time acquired during the existence of this Agreement save in so far as
such information has come into the public domain through no fault of
the recipient or its agents or employees or its disclosure is required
by law or by other regulatory authorities such as any stock exchange
to which either party is subject. No reference shall be made to the
terms of this Agreement other than its existence by either party
hereto in any advertising publicity or Promotional Material without
the prior consent of the other which consents may be given or withheld
in the absolute discretion of the parties hereto. The parties agree
that without prejudice to the generality of the foregoing in the event
that it is necessary to enforce any rights granted pursuant to the
same or to take any step against the other and/or against any third
party in proceedings to which this Agreement is relevant the parties
<PAGE>
shall have the right to make reference to and to exhibit this
Agreement in full or part as reasonably required but where appropriate
the party so making reference or exhibiting the same shall endeavour
to seek to do so without disclosing the sums payable pursuant to
clause 6.1 where such an omission is reasonable appropriate and proper
and does not in any way compromise the interests of that party
14. Distribution and Promotion of Licensed Articles
14.1 The Licensee and its distributors shall only sell the Licensed
Articles either to bona fide independent wholesalers or retailers for
resale or by the Licensee's own distribution directly to the public
(including without limitation by such methods as mail order or for
distribution of physical product only via the internet) in all cases
in the course of normal trading and in particular (but not by way of
limitation) shall not within England sell or distribute the Licensed
Articles to hawkers peddlers street vendors or to any Person (other
than commercial partners of the Licensee with the prior written
consent of FAPL not to be unreasonably withheld) intending to use them
for publicity purposes whether as gifts or otherwise. Should the
Licensee wish to undertake distribution or Sale of the Licensed
Articles by any method or means not hereby authorised (including but
not limited to sale in forms or formats other than in packets as
referred to at clause 6.1.5) the Licensee shall notify FAPL in writing
accordingly and shall furnish FAPL with particulars of the Licensee's
proposals concerning such distribution or sale to which FAPL shall not
withhold its consent unreasonably. For the avoidance of doubt nothing
in this clause shall override FAPL's discretion to withhold consent to
Licensed Articles or Promotional Materials pursuant to clause 3
14.2 The Licensee shall provide to FAPL free of charge twenty-five (25)
complimentary copies of complete versions of each of the Stickers and
Albums and the Trading Card Collection and the Miniature Stickers and
Albums Collection in respect of each Season within fourteen (14) days
of the first commercial distribution of such Licensed Article. FAPL
shall have the right to buy further copies of each such Licensed
Article from the Licensee at cost price for itself and for the Clubs
provided that the Clubs shall not offer or permit or do anything which
might allow others to offer such Licensed Articles for re-sale. For
the avoidance of doubt (a) such Licensed Articles may be offered at
charity auctions run by the Clubs and (b) Royalties will not be
payable by the Licensee on such Sales to the Clubs which shall be
generally disregarded for the purposes of clause 6
14.3 [INFORMATION SUBJECT TO REQUEST FOR CONFIDENTIAL TREATMENT]
14.4 Prior to launching the Licensed Articles for any Season (and at the
Licensee's or FAPL's reasonable request at any time thereafter) the
Licensee and FAPL shall discuss the Licensee's proposed marketing plan
for the Licensed Articles for the Season in question and shall discuss
how FAPL's own activities can be coordinated with such marketing plan
to best support the sale of Licensed Articles
15. Duration and Termination
15.1 This Agreement shall commence subject to the terms of clause 15.5 upon
1 June 2004 and shall continue for a period of three (3) calendar
years until the third anniversary thereof unless it is earlier
terminated in accordance with this clause 15
15.2 Either party may terminate this Agreement without prejudice to its
other remedies forthwith by notice in writing to the other to take
effect on the date specified in the notice on or after the occurrence
of any of the following events
15.2.1 if the other is in material breach of this Agreement provided
that if the breach is capable of remedy the notice shall only be
given if the party in breach shall not have remedied the same
within fifteen (15) days of receipt of notice in writing
specifying the breach and requiring it to be remedied
15.2.2 if the other party takes any steps (including but not limited
to convening any meeting of creditors) with a view to proposing
or proposes or makes or enters into any arrangement or
composition with or for the benefit of its creditors (including
any voluntary arrangement as defined in the Insolvency Act) or
negotiations or proceedings are commenced with a view to the
general readjustment or re-scheduling of all or any part of the
liabilities of such other
<PAGE>
15.2.3 if a supervisor receiver administrator administrative receiver
or other encumbrancer takes any step with a view to taking
possession of or is appointed over or any person takes any step
to levy enforce upon or sue on or any distress execution or other
process is levied or enforced (and is not discharged within seven
days) upon the whole or any substantial part of the assets of the
other
15.2.4 if the other ceases or threatens to cease to carry on business
or is or becomes unable to pay or suspends or threatens to
suspend making payments of its debts within the meaning of
Section 123 of the Insolvency Act
15.2.5 if a petition is presented or a meeting is convened for the
purpose of considering a resolution or other steps are taken for
the making of an administration order against the other and/or
the winding-up bankruptcy or dissolution of the other
15.3 FAPL may terminate this Agreement without prejudice to its other
remedies forthwith by notice in writing to the Licensee to take effect
on the date specified in the notice
15.3.1 if the Licensee is in material breach of clause 6.1 or 6.2
provided that if the breach is capable of remedy the notice shall
only be given if the Licensee shall not have remedied the same
within (notwithstanding clause 15.2) seven (7) days of receipt of
notice in writing specifying the breach and requiring it to be
remedied
15.3.2 if the Licensee fails to effect or maintain in place adequate
insurance in accordance with clause 10.1.13 provided that the
termination notice shall only be given if the Licensee has not
remedied the same within seven (7) days of receipt of a notice
specifying the breach and requiring it to be remedied
15.3.3 in the event of any change in ownership or control over more
than 50% (fifty per centum) of the shares of the Licensee save
where this is for purposes of corporate re-organization within
the Licensee's group of companies
15.3.4 in the circumstances set out at clause 8.8
15.4 Where FAPL is entitled to terminate for breach of any provision of
this Agreement which requires FAPL to give its approval to the
Licensee or obliges the Licensee to comply with the discretionary
requirements of FAPL it shall not terminate unless (a) the Licensee
has failed within a reasonable time to take reasonable steps to remedy
the breach and/or (b) the Licensee can be shown to have wilfully
disregarded requirements of FAPL already known to it (including
without limitation where FAPL has given express written notice on a
previous occasion making it clear that such actions are contrary to
its requirements)
15.5 In the event that the agreement between FAPL and the Licensee of 28
February 2001 ("the Prior Agreement") is terminated for any reason by
either party or otherwise comes to an end for any reason prior to its
expiry by effluxion of time FAPL may by notice in writing served upon
the Licensee at any time following the termination of the Prior
Agreement and before the commencement of the Term terminate this
Agreement with immediate effect notwithstanding that the Term of the
same has not yet commenced and upon service by FAPL of such notice in
such circumstances this Agreement shall have no effect whatsoever
between FAPL and the Licensee
16. Effect of Expiry or Termination
16.1 On expiry of the Term of this Agreement or on termination of this
Agreement by the Licensee in accordance with clause 15.2 the Licensee
shall (subject as hereinafter provided) have the right on a
non-exclusive basis to distribute or cause to be distributed and/or
sell the balance of any Licensed Articles (save only the Miniature
Stickers and Albums Collection) already manufactured or in the process
of manufacture at the time of such expiry or termination for a period
of [INFORMATION SUBJECT TO REQUEST FOR CONFIDENTIAL TREATMENT] from
the date of such expiry or termination. On expiry of such period the
Licensee shall (as FAPL may at its discretion direct) either
immediately destroy or procure the destruction of the balance of
Licensed Articles and Promotional Material then remaining in stock and
furnish to FAPL a certificate in a form acceptable to FAPL evidencing
such destruction or return the same to FAPL without charge to FAPL and
in accordance with FAPL's reasonable instructions. For the avoidance
of doubt the Licensee shall continue to comply with the provisions of
clause 6.1 and 6.2 during any such sell-off period. The right granted
to the Licensee pursuant to this clause 16.1 shall not apply in the
event that this Agreement is terminated by FAPL prior to expiry of the
Term
<PAGE>
16.2 To the extent that the Licensee is not able to dispose within the said
sell-off period referred to at clause 16.1 or 16.6 of any stocks of
Licensed Articles and/or Promotional Material then held or forthwith
upon termination of this Agreement by FAPL in accordance with clause
15.2 or 15.3 the Licensee shall not be entitled thereafter to dispose
of any stocks of Licensed Articles and/or Promotional Materials then
held and FAPL shall have the immediate right to
16.2.1 take possession of such stocks and sell or distribute the same
in whatever manner it sees fit PROVIDED THAT it shall account to
the Licensee for amounts recovered by it through such sale or
distribution in excess of (i) the amounts that would otherwise
have been payable to FAPL by the Licensee under this Agreement
had such stocks been sold by the Licensee and (ii) FAPL's
reasonable expenses incurred in its sale or distribution of such
stocks or
16.2.2 require the Licensee by notice in writing forthwith either to
destroy or procure the destruction of the balance of such
Licensed Articles and/or Promotional Material then remaining in
stock or in the process of manufacture and furnish to FAPL a
certificate in a form acceptable to FAPL evidencing such
destruction or to return the same to FAPL without charge and in
accordance with FAPL's reasonable instructions
16.3 For the avoidance of doubt the provisions set out in clauses 1
(Interpretation) 6 (Consideration) 7.2 (Accounting for Royalties) 8.5
(Joint Copyright) 9 to 11 (Indemnities and Warranties) 12
(Infringement) 13 (Confidentiality) 15 (Termination) and 16 (Effect of
Expiry of Termination) 17 (Assignment and Sub-Licensing) 20
(Illegality) 21 (Entire Agreement) 22 (Waivers Remedies Cumulative
Amendments etc) 23 (Costs) 24 (Notices) and 25 (Governing Law) of this
Agreement shall survive expiry of the Term or earlier termination
hereof
16.4 On termination of this Agreement by FAPL all Royalties accrued and not
paid by such date shall become immediately due and payable to FAPL and
FAPL shall not be obliged to reimburse the Licensee for any Royalties
already paid by the Licensee
16.5 On termination of this Agreement the Licensee shall (and shall procure
that persons acting under its control and/or any of its sub-licensees
hereunder shall) as soon as practicable cancel to the extent required
so to do in order to comply with the Licensee's obligations under this
clause 16 all orders placed with or by third parties for or in
connection with the Licensed Articles and shall execute all such
documents and do all such acts as may be required by FAPL or any third
part for the purpose of cancelling any registration of the Licensee as
a Registered User or licensee of the Property the FAPL Marks and/or
the Club Logos (or any part thereof) and in the event that the
Licensee fails to execute any such document or do such act within
seven (7) days of any request in writing from FAPL the Licensee hereby
irrevocably appoints and authorises FAPL to execute or do the same on
the Licensee's behalf as its agent
16.6 On expiry of the Term or on termination of this Agreement by the
Licensee in accordance with clause 15.2 the Licensee shall (subject as
hereinafter provided) have the right on a non-exclusive basis to
distribute or cause to be distributed and/or sell the balance of any
items forming part of the Miniature Stickers and Albums Collection
already manufactured or in the process of manufacture at the time of
such expiry or termination for a period of three (3) calendar months
from the date of such expiry or termination. On expiry of such period
the Licensee shall (as FAPL may at its discretion direct) either
immediately destroy or procure the destruction of the balance of
Miniature Stickers and/or Miniature Albums and Promotional Material
relating to the same then remaining in stock and furnish to FAPL a
certificate in a form acceptable to FAPL evidencing such destruction
or return the same to FAPL without charge to FAPL and in accordance
with FAPL's reasonable instructions. For the avoidance of doubt the
Licensee shall continue to comply with the provisions of clause 6.1
and 6.2 during any such sell-off period. The right granted to the
Licensee pursuant to this clause 16.6 shall not apply in the event
that this Agreement is terminated by FAPL prior to expiry of the Term
17. Assignment and Sub-Licensing
17.1 The Licensee hereby contracts with FAPL as agent for any sub-licensee
to whom the Licensee may grant any right to manufacture Licensed
Articles. In the event of any such grant all references herein to the
Licensee (save in this clause) shall be deemed to be or to include
references to such sub-licensee. For the avoidance of doubt the grant
of any such right to any sub-licensee shall not remove any of the
Licensee's obligations to FAPL under this Agreement. Subject thereto
the Licensee shall not assign or sub-license the benefit of this
Agreement without the prior consent in writing of FAPL to be given or
withheld in its absolute discretion save that such consent shall not
be unreasonably withheld where the Licensee wishes to assign or
<PAGE>
sub-license its rights and obligations to a company which is a holding
company of the Licensee a subsidiary of the Licensee or a subsidiary
of a holding company of the Licensee (and for this purpose the terms
"subsidiary" and "holding company" shall have the meaning ascribed to
them in Sections 736 and 736A of the Companies Act 1985)
18. Address for Payment
18.1 All sums payable hereunder shall be paid by the Licensee to FAPL or as
FAPL shall from time to time otherwise direct in writing and all
consents approvals and notices required hereunder shall be requested
of or given to FAPL at its address aforesaid unless FAPL shall
otherwise so notify the Licensee
19. No Partnership
19.1 Nothing in this Agreement shall be construed as constituting a
partnership or joint venture between the parties hereto
20. Illegality
20.1 If any provision or term or term of this Agreement shall become or be
declared illegal invalid or unenforceable for any reason whatsoever in
any jurisdiction such term or provision shall be divisible from this
Agreement in such jurisdiction and shall be deemed to be deleted from
this Agreement provided always that if such deletion substantially
affects or alters the commercial basis of this Agreement the parties
shall negotiate in good faith to amend and modify the provisions and
terms of this Agreement as may be necessary or desirable in the
circumstances. For the avoidance or doubt a declaration in one
jurisdiction shall not affect the validity lawfulness or
enforceability of that provision in any other jurisdiction
21. Entire Agreement
21.1 This Agreement sets out the entire agreement and understanding between
the parties in relation to the transactions hereby contemplated and
supersedes all previous agreements and arrangements between them with
regard to such transactions. Neither party may rely on any warranty
agreement representation or statement which is not expressly set out
in this Agreement
22. Waivers Remedies Cumulative Amendments etc
22.1 No failure or delay by either party in exercising any right power or
privilege under this Agreement shall operate as a waiver thereof nor
shall any single or partial exercise by either party of any right
power or privilege preclude any further exercise thereof or the
exercise of any other right power or privilege
22.2 The rights and remedies herein provided are cumulative and not
exclusive of any rights and remedies provided by law
22.3 No provision of this Agreement may be amended modified waived
discharged or terminated otherwise than by the express written
agreement of the parties hereto nor may any breach of any provision of
this Agreement be waived or discharged except with the express written
consent of the party not in breach
23. Costs
23.1 Each of the parties shall be responsible for its respective legal and
other costs incurred in relation to the negotiation preparation and
signature of this Agreement
24. Notices
24.1 Any notice or demand to be given under this Agreement shall be duly
given if
24.1.1 delivered personally or
24.1.2 mailed by first class pre-paid mail to the address stated in
this Agreement of the party to be served which notices shall be
deemed to have arrived in due course of post or
<PAGE>
24.1.3 sent by facsimile to the addressee's number notified to the
sender by the addressee or recorded in any official index of
facsimile numbers which notices shall be deemed to have arrived
on the date of transmission if transmitted not later than one
hour before close of business at the addressee on a business
day or otherwise on the next business day provided the sender
receives confirmation of successful transmission
25. Governing Law
25.1 This Agreement shall be governed by English law and the parties agree
to submit to the non-exclusive jurisdiction of the courts of England
IN WITNESS whereof the parties have duly executed this Agreement the day and
year first above written
SIGNED by, for and on behalf of )
THE FOOTBALL ASSOCIATION ) /s/ Richard Scudamore
PREMIER LEAGUE LIMITED ---------------------
SIGNED by, for and on behalf of ) /s/ Christopher Rodman
TOPPS EUROPE LIMITED ----------------------