{"id":42481,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/license-agreement-westinghouse-electric-corp-and-salton-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"license-agreement-westinghouse-electric-corp-and-salton-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/license-agreement-westinghouse-electric-corp-and-salton-inc.html","title":{"rendered":"License Agreement &#8211; Westinghouse Electric Corp. and Salton Inc."},"content":{"rendered":"<pre>                                LICENSE AGREEMENT\n\n\n         This Agreement is made by and between Westinghouse Electric\nCorporation, a Delaware corporation, having a principal place of business at\n1515 Broadway, New York, NY 10036 (hereinafter referred to as \"Westinghouse\"),\nand Salton, Inc., a Delaware corporation, having a principal place of business\nat 1955 W. Field Court, Lake Forest, IL 60045 (hereinafter referred to as\n\"Salton\").\n\n         WHEREAS, Westinghouse is the owner of certain valuable and famous\ntrademarks;\n\n         WHEREAS, Salton and its subsidiaries and affiliates are in the business\nof sourcing the manufacture of, manufacturing, marketing, distributing and\nselling, primarily to retailers certain Products as herein defined; and\n\n         WHEREAS, Salton currently is a sublicensee of the White Westinghouse\ntrademark from White Consolidated Industries, Inc., as a sublicensor.\n\n         WHEREAS, Salton desires to become licensed under certain Westinghouse\ntrademarks and Westinghouse is willing to grant such license under the following\nterms and conditions.\n\n         NOW, THEREFORE, in consideration of the premises and the covenants\nherein contained, the parties hereto agree as follows.\n\n                                1.0 - DEFINITIONS\n\n         In this Agreement the following expressions have the following\nmeanings:\n\n         1.1 Categories - the categories of Products identified in Appendix A\nattached hereto and made a part hereof.\n\n         1.2 Licensing Manual - The Westinghouse Corporate Identity and\nLicensing Manual attached hereto and made a part hereof as Appendix B.\n\n         1.3 Marks - The trademarks \"Westinghouse\" and \"Circle W\" as shown in\nAppendix C attached hereto and made a part hereof.\n\n         1.4 NS - \"Net Sales\" - The aggregate of the gross receipts from sales\nof Products less (a) returned goods, refunds, credits and allowances actually\nmade or allowed to a customer with respect to those Products, (b) freight or\nhandling charges charged to customers or incurred on returned goods, and (c)\nsales and excise taxes actually paid.\n\n         1.5 Products - The articles described and listed in Appendix A attached\nhereto and made a part hereof.\n\n         1.6 Territory - North America, South America, Europe, Africa, Asia and\nAustralia-New Zealand (each of such areas are called \"Subterritories\").\n\n         1.7 White Westinghouse Agreement - The licenses agreement between White\nConsolidated Industries, Inc. and Salton\/Maxim Housewares Inc. dated February 6,\n1996, as amended.\n\n\n                                      -1-\n\n\n\n                               2.0 - LICENSE GRANT\n\n         2.1 Unless sooner terminated, Westinghouse hereby grants Salton an\nexclusive license, without the right to grant sublicenses (except as set forth\nherein), to use the Marks during the Term (as defined in Section 9.2) solely on\nor in connection with the Products and solely in the Territory. Westinghouse\nreserves to itself all other rights in and to the Marks. Notwithstanding the\nforegoing, Salton may grant sublicenses to use the Mark consistent with the\nterms of this Agreement to a wholly-owned subsidiary provided that such\nsubsidiary agrees to be bound by the terms of this Agreement and that such\nsubsidiary remains a wholly-owned subsidiary of Salton.\n\n         2.2 Salton shall use the Marks only in the form approved in writing by\nWestinghouse and with no departures in appearance or treatment. Salton shall use\nits best efforts to ensure that the Marks used under this Agreement comply in\nevery respect with the Licensing Manual.\n\n         2.3 Salton shall not use nor authorize others to use the Marks outside\nthe Territory or on any other goods or merchandise of any kind other than as\nspecifically set forth in this Agreement or as otherwise agreed to by the\nparties in writing. Salton shall have the right to source the manufacture of\nProducts in the Subterritory of Asia and any other Subterritory from which it\nsources material amounts of Products which it markets regardless of whether\nSalton has retained the right to sell Products in such Subterritory pursuant to\nthis Agreement. Salton may request, in writing, Westinghouse's consent solely to\nmanufacture in other Subterritories, which consent may not be unreasonably\ndenied.\n\n         2.4 Salton shall not sell any Products nor authorize others to sell any\nProducts outside the Territory nor to any party where they reasonably believe\nProducts will be sold outside the Territory.\n\n         2.5 No rights are granted for the distribution of Products as premiums,\npromotions or giveaways.\n\n         2.6 The license granted is personal to Salton and is not assignable for\nany reason without Westinghouse's prior written consent.\n\n         2.7 Nothing in this Agreement is to be construed as an assignment or\ngrant to Salton of any right, title or interest in the Marks or in any\ncopyright, design, trade name, trademarks, trade dress or other property right\nbeyond the limited license expressly granted hereby. Salton agrees not to assert\nany rights in the Marks, contrary to the provisions of this Agreement.\n\n         2.8 Salton acknowledges that White Consolidated Industries, Inc. has\nlicensed certain parties to use the White-Westinghouse marks in Spain, Portugal,\nArgentina and Mexico as identified in Appendix D to this Agreement and that such\nlicenses shall not constitute or be deemed a breach of the grant of the license\nto Salton by Westinghouse to use the Marks as set forth in this Agreement or of\nany other provision of this Agreement.\n\n                         3.0 - RESPONSIBILITY OF SALTON\n\n         3.1 Prior to any use of any Marks, Salton shall, at Salton's expense,\nsubmit to Westinghouse, for Westinghouse's written approval, the following: (a)\ntwo (2) specimens of each design of Product on which said Marks are to appear\n(the \"Specimens\"); (b) clearance from Underwriters Laboratories, Inc. or a\nsimilar recognized independent consumer product safety testing company for each\nSpecimen (\"Test Reports\"); (c) all artwork which Salton intends to use in\nconnection with the Marks; and (d) all packaging, advertising and promotional\nliterature which Salton intends to use in the marketing or merchandising of the\nProducts. Westinghouse shall give Salton written notice of approval or\ndisapproval \n\n                                      -2-\n\n\nwithin ten (10) business days from its receipt of the Specimens, and should\nWestinghouse disapprove, its written notice shall explain in detail the reasons\nfor disapproval so that Salton may prepare and submit new Specimens. After\nWestinghouse has given its written approval of said Specimens, then the approved\nproduct, quality, packaging, advertising and promotional literature shall be the\nstandard for the relevant design of Product produced thereafter (the \"Approved\nQuality\"). Thereafter, consecutively at twelve (12) month intervals, Salton\nshall, at Salton's expense, submit to Westinghouse not less than two (2)\nrandomly selected production run samples (\"Sample\") of each design of the\nProducts and Test Reports (if any) respecting such Products that are prepared\nduring the previous 12 month period. Notwithstanding the foregoing, Westinghouse\nunderstands and agrees that once a design of Product is approved by\nWestinghouse, Salton shall not be required by this provision to obtain\nadditional testing of such Product design. Salton shall obtain Westinghouse's\nprior approval on any new design of Product on which the Marks will be used.\nWithout the prior written approval of Westinghouse, Salton shall not sell or\ndistribute any design of Product which deviates from the Approved Quality.\nProducts or any component thereof not meeting the Approved Quality, including\n\"second and irregulars,\" are not to be sold or distributed under any\ncircumstances without Westinghouse's prior written consent. Notwithstanding the\nforegoing, provided Salton gives Westinghouse prior notice, Salton may from time\nto time revise packaging for the Products solely to include or change statements\nor other information which may be required by the rules of the Underwriters'\nLaboratories, Inc. or laws or regulations of any jurisdiction where the Products\nare sold.\n\n         3.2 Westinghouse, at its own expense, has the right at reasonable times\non notice to Salton to: (i) inspect Salton's manufacturing facilities,\nwarehouses and other facilities directly related to the Products and (ii)\nrequest and cause Salton to arrange for Westinghouse's inspection of\nmanufacturing facilities from which Salton sources the manufacture of Products.\nSalton agrees to cooperate with Westinghouse in carrying out such inspections.\n\n         3.3 Salton shall design, manufacture, source the manufacture of,\nadvertise, promote (through dealers co-op funding or otherwise), sell and ship\nthe Products, in a diligent and professional manner. Salton shall procure and\nmaintain facilities and trained personnel sufficient and adequate to accomplish\nthe foregoing. Salton shall design, cause the manufacture of, advertise and\npromote the Products so that each of the Products fulfills the following\ncriteria: (i) they are not designed, manufactured or marketed as lowest price\npoint products; (ii) they are priced to customers as above the lowest price\npoints for such products and are so called mid level products; (iii) they have\nmanufacturing, design, quality, and additional features that are similar to the\nproducts marketed by others that are commonly perceived in the small kitchen\nelectrics or houseware product business as mid level products (but not, except\nas agreed to by Salton, highest quality or most expensive)and, for example, are\napproximately equivalent in quality to and expected to be approximately as\nexpensive in the consumer market as other branded Products in the same product\ncategory that might compete with the Products marketed under the Marks. Salton\nshall not create a retail exclusive arrangement respecting Products bearing the\nMarks without the prior written consent of Westinghouse.\n\n         3.4 Salton agrees to inform Westinghouse of the details of the use of\nthe Marks, including graphics, position, size, color, script and the like, and\nWestinghouse reserves the right to inspect and to approve the use of the Marks.\n\n         3.5 Salton shall refrain from and shall not authorize others to use or\nmisuse the Marks so as to bring discredit to Westinghouse.\n\n         3.6 Salton agrees that all use of the Marks by Salton under this\nAgreement inures to the benefit of Westinghouse. Salton agrees that at the\ntermination or expiration of this Agreement, Salton will be deemed to have\nassigned, transferred and conveyed to Westinghouse any rights, equities, good\n\n\n                                      -3-\n\n\nwill, titles or other rights in and to the Marks which may have been obtained by\nSalton or which may have vested in Salton in pursuance of endeavors covered\nhereby, and that Salton will execute any instrument requested by Westinghouse to\naccomplish or confirm the foregoing. Any such assignment, transfer or conveyance\nshall be without other consideration than the mutual covenants and\nconsiderations of this Agreement.\n\n         3.7 Salton shall comply with any laws, rules and\/or regulations,\nincluding, but not limited to, any county, state and\/or federal law, with regard\nto the use of the Marks and the design, manufacture, and, to the extent\ncontrolled by Salton, the advertisement, promotion, sale and shipment of the\nProducts.\n\n         3.8 Salton shall not apply for the registration of, or cause the filing\nof an application for the registration of, a trade name, trademark or service\nmark which is identical to or confusingly similar to the Marks; provided that\nSalton shall have the right to continue the use of the \"White Westinghouse\"\ntrademark as set forth in this Agreement.\n\n         3.9 Salton shall promptly notify Westinghouse of any infringement or\npotential infringement of the Marks that come to its attention. Salton will\ncooperate with Westinghouse, at Westinghouse's request, in taking steps to\nterminate such infringement. However, Salton shall not take any legal action to\nprotect against any infringement of the Marks without Westinghouse's permission.\nWestinghouse will take action against infringers to defend the Marks but shall\nnot be required to bring or prosecute actions or suits. Any and all damages\nrecovered in any action or proceeding commenced by Westinghouse shall belong\nsolely and exclusively to Westinghouse. To the extent that Salton incurs\nreasonable out of pocket legal fees and other costs in connection with\nWestinghouse requests under this Section 3.9, Westinghouse shall reimburse\nSalton within forty-five (45) days following a request therefor accompanied by\nreasonable documentation.\n\n         3.10 Salton acknowledges and agrees that any unauthorized use or misuse\nof the Marks by or for Salton will result in irreparable harm to Westinghouse\nand that Westinghouse, in addition to any other rights or remedies specified in\nthis Agreement, shall be entitled to any remedy, legal or equitable, including\nwithout limitation preliminary injunctive relief, to correct any harm which\nresults from such violation.\n\n         3.11 Salton shall use its best efforts to maximize use of the Marks\nconsistent with reasonable marketing plans.\n\n         3.12 Salton agrees to meet with Westinghouse at least once per year to\nreview and discuss advertising and promotion plans for the Products.\n\n         3.13 Salton shall adopt a mechanism by which it will respond to\ninquiries from customers and other third parties respecting the operation and\nrepair of the Products.\n\n         3.1.4 During the Term of this Agreement, Licensee shall not (i) enter\ninto an agreement with a third party for products or (ii) design, manufacture,\nsource the manufacture, advertise, sell or ship products, that would compete\nwith those Products in the Category identified as \"Vacuum Cleaners,\" except that\nthis Section 3.1.4 shall not apply to the retailer-owned house brands, such as\nKenmore, marketed by Sears Roebuck &amp; Company.\n\n                                      -4-\n\n\n                               4.0 - COMPENSATION\n\n\n         4.1 Salton agrees to pay Westinghouse a royalty at the rate of *% of\nthe NS of all sales of Products through television response sales and\ninfomercials and a royalty at the rate of *% of all the NS of all other sales of\nProducts. If a NS is not available for such Products, a commercially equivalent\namount shall apply.\n\n         4.2 Commencing with the third twelve (12) month period of this\nAgreement (\"Contract Year\") and for each Contract Year thereafter, subject to\nadjustment as set forth in Section 4.3, below, Salton agrees to pay Westinghouse\nthe minimum royalty payments for each Category (\"Category Minimum Annual\nRoyalty\") as set forth below:\n\n         Category                          Category Minimum Annual Royalty ($US)\n         --------                          ------------------------------------\n         Kitchen Electronics                                  $*\n         Fans\/Heaters                                         $*\n         Personal Care                                        $*\n         Table Top Cleaners                                   $*\n         Clocks                                               $*\n         Vacuums                                              $*\n\nEach twelve month period shall correspond to the fiscal year of Salton. Salton\nuses a 52\/53 week fiscal year; each fiscal year of Salton ends at the close of\nbusiness on the Saturday of the last calendar week that begins in June,\nregardless of whether the Saturday of such week falls in June or July. The first\nday of the next fiscal year will begin on a Sunday. Consequently, the first\nContract Year of this Agreement begins on Sunday, June 30, 2002. The second\nContract Year and all succeeding Contract Years shall begin on the next day\nfollowing the end of the next preceding Contract Year.\n\n         4.3 Commencing with the fourth Contract Year and for each Contract Year\nthereafter during the Term, the Category Minimum Annual Royalty for each\nCategory of Products shall be increased by *%.\n\n         4.4 All Category Minimum Annual Royalties shall be payable in equal\nquarterly installments commencing with the initial quarter of the third (3rd)\nContract Year; however, amounts paid by Salton to Westinghouse pursuant to\nSection 4.1 for each Category shall be credited against the applicable Category\nMinimum Annual Royalty for the quarter in which it accrued.\n\n         4.5 Salton shall keep full, true and accurate books of account\ncontaining all particulars which may be necessary for the purpose of determining\nthe amount payable to Westinghouse under this Agreement. Said books and the\nsupporting data shall be open at all reasonable times, for three (3) years\nfollowing the end of the calendar year to which they pertain, to an inspection,\non a confidential basis, by an independent certified public accountant retained\nby Westinghouse, at Westinghouse's expense, for the purposes of verifying\nSalton's payments, and Salton's compliance in other respects with this\nAgreement; provided however, that Westinghouse shall not have the right to audit\nthe books and records of Salton during a period beginning six (6) full calendar\nweeks before the end of Salton's fiscal year and ending at the end of the sixth\n(6th) full calendar week after such fiscal year. If such inspection and\nresulting report indicate an underpayment by Salton which extends beyond the\nforty-fifth (45th) day next following the end of the last quarter of each fiscal\nyear of Salton, Salton shall immediately pay such amount to Westinghouse with\ninterest at prime rate as established by Mellon Bank, N.A. or any successor, at\nthe time of the inspection, and should such under-payment be in excess of $5,000\nSalton shall also bear all costs of the inspection.\n\n--------\n* Confidential Treatment Requested\n\n                                      -5-\n\n\n         4.6 By the forty-fifth (45th) day next following the end of each\nquarter of each fiscal year of Salton, Salton shall deliver to Westinghouse a\ntrue and accurate report certified by an officer or the Controller of Salton,\ngiving such particulars of the business conducted by Salton hereunder, during\nthe preceding calendar quarter under this Agreement as are pertinent to an\naccounting under this Agreement. These shall include at least the following:\n\n                  (1)      the number and type of Products sold by country;\n                  (2)      minimum annual payments due; and\n                  (3)      total payments due.\n\nConcurrently with the delivery of each such report, Salton shall pay to\nWestinghouse the amounts due for the period covered by such report. If no\npayments are due, it shall be so reported. In addition, within thirty (30) days\nof execution of this Agreement, Salton shall report and pay over to Westinghouse\nall amounts due under this Agreement from the Effective Date.\n\n         4.7 Sales of Products in currencies other than United States dollars\nshall be converted to United States dollars at the conversion rate stated in the\nWall Street Journal for the day prior to the date payment is made by Salton.\n\n         4.8 All payments made hereunder by Salton shall be made payable to\n\"Westinghouse Electric Corporation\" by check or by immediately available United\nStates funds and delivered to:\n\n\n                  President\n                  Westinghouse Electric Corporation\n                  c\/o Viacom Inc.\n                  Controller's Office - 53rd Floor\n                  1515 Broadway\n                  New York, NY 10036\n\nwith a copy of the notice of payment to:\n\n                  Jo Ann Haller\n                  Assistant General Counsel\n                  Westinghouse Electric Corporation\n                  11 Stanwix Street\n                  Pittsburgh, PA  15222\n\nand to:\n                  Allan Feldman, President\n                  Leveraged Marketing Corporation of America\n                  156 West 56th Street\n                  New York, New York 10019\n\n\n                                      -6-\n\n\n\n                      5.0 - OWNERSHIP OF THE LICENSED MARKS\n\n         5.1 Salton acknowledges that the Marks, worldwide, are the property of\nWestinghouse and that Westinghouse has substantial and valuable goodwill in the\nMarks. Salton shall take all reasonable measures to maintain and protect\nWestinghouse's proprietary rights including placing any reasonable notice of\nsuch ownership that Westinghouse shall reasonably require. Salton shall\ncooperate fully and in good faith with Westinghouse for the purpose of securing\nand preserving Westinghouse's rights in and to the Marks. Salton shall execute\nany documents reasonably required by Westinghouse to protect the Marks. To the\nextent that Licensee incurs any out of pocket expense, including legal fees and\ncosts, Westinghouse shall reimburse Salton within forty-five (45) days after\nSalton submits a statement for such fees and costs accompanied by reasonable\ndocumentation. Salton shall not take any action, or by its knowing inaction\nallow any event to occur, which would injure or impair Westinghouse's\nproprietary rights in and to the Marks. Salton shall not contest the validity of\nthe Marks or any rights of Westinghouse therein, nor shall Salton willingly\nbecome an adverse party in litigation in which others shall contest the Marks or\nWestinghouse's said rights. In addition thereto, Salton shall not in any way\nseek to avoid its obligations hereunder because of the assertion or allegation\nby any persons, entities or government agencies, bureaus, or instrumentalities\nthat the Marks, or any of them, are invalid or ineffective or by reason of any\ncontest concerning the rights of Westinghouse therein; provided however, that,\nif there is a final determination by a court or arbitration panel that a third\nparty owns the Marks and\/or the rights granted under this Agreement to Salton,\nLicensee shall have no obligations under this Agreement if its use of the Marks\nunder this Agreement is impaired or Salton is required to make additional\nroyalty payments to such third party for continued use of the Marks.\n\n         5.2 Salton shall indicate on all Product packaging and related\nadvertising materials intended to be delivered to consumers that the Products\nare manufactured and distributed by or for Salton.\n\n         5.3 Salton shall comply with proper use instructions as Westinghouse\nmay issue from time to time with respect to the Marks; provided that, to the\nextent that there is packaging, advertising or other materials or Product\nInventory already in inventory which has been approved by Westinghouse, Salton\nshall have the right to use up such inventory before making changes in such\npackaging, advertising or other materials or Product Inventory.\n\n                  6.0 REPRESENTATIONS, WARRANTIES AND COVENANTS\n\n         6.1 Salton represents warrants and covenants to Westinghouse as\nfollows:\n\n                  6.1.1 Salton will not use the Marks and has not and will not\ngrant any right or license to use the Marks other than as authorized under this\nAgreement.\n\n                  6.1.2 Salton is a corporation duly organized, validly existing\nand in good standing under the laws of Delaware. Salton has all corporate power\nand authority to execute and deliver this Agreement and to perform its\nobligations hereunder.\n\n                  6.1.3 The execution, delivery and performance by Salton of\nthis Agreement and the consummation of the transaction contemplated hereby has\nbeen duly and validly authorized by all requisite corporate action, and no other\ncorporate act or proceeding on the part of Salton is necessary to authorize the\nexecution, delivery and performance of this Agreement and the consummation of\nthe transaction contemplated hereby.\n\n                  6.1.4 Salton is not subject to nor obligated under its\ncertificate of incorporation or bylaws, any applicable law, rule or regulation\nof any governmental authority, or any agreement (except as \n\n\n\n                                      -7-\n\n\nset forth in Schedule 6.1.4), instrument, license or permit, or subject to any\norder, writ, injunction or decree, which would be breached or violated by its\nexecution, delivery or performance of this Agreement.\n\n                  6.1.5 Salton's execution and delivery of this Agreement and\nperformance of its obligations hereunder, including the obligation of payments\nhereunder, do not and will not conflict with, violate, or result in any default\nunder any agreement, instrument or other contract to which Salton is a party or\nby which it is bound except as set forth in Schedule 6.1.4.\n\n                  6.1.6 There are no claims, actions, suits, or other\nproceedings pending, or to the knowledge of Salton, threatened, which, if\nadversely determined, would adversely affect the ability of Salton to consummate\nthe transactions contemplated by this Agreement or perform its obligations\nhereunder.\n\n                  6.1.7 Salton: (i) has received no notice from any governmental\nauthority to the effect that it is not in compliance with and is now in\ncompliance with and (ii) shall comply with all applicable laws and regulations\nrelating to the manufacture (to the extent, if any, that it is a manufacturer),\nsale and distribution of the Products and shall require its subcontractors to\ncomply with applicable laws and regulations relating to the manufacture of the\nProducts.\n\n                  6.1.8 Without cost to Westinghouse, Salton shall maintain\ninsurance that protects Westinghouse, its officers, directors, employees,\nagents, and its parent, affiliates and their officers, employees and agents\nagainst any and all liability regardless of the basis, including punitive or\nexemplary damages in connection with (a) Salton's use of the Marks in violation\nof this Agreement, (b) any alleged defect(s) in the Products, and (c) the\ndesign, use, manufacture (to the extent, if any, that Salton is a manufacturer),\ndistribution, marketing, sale or servicing of the Products including but not\nlimited to product liability and any alleged contractual liability of\nWestinghouse in connection with such actions concerning the Products. The kinds\nand amounts of insurance shall be as Salton and Westinghouse from time to time\nagree, and at a minimum shall include the following:\n\n                  6.1.8.1 Salton shall maintain in effect for at least the life\nof all the Products manufactured, distributed or serviced by or for Salton,\nliability insurance, written on an occurrence basis, with limits of at least\nFive Million U.S. Dollars ($5,000,000) per occurrence, or in years 2004 and\nlater, such higher amount as may be reasonable considering legal or economic\nchanges as well as deteriorating loss experience. The insurance will cover at\nleast the liabilities typically insured by commercial general liability policies\n(including products\/completed operations, advertising liability) issued in the\nyear this Agreement is signed. Westinghouse shall be an additional insured on\nsuch policies, which shall contain severability of interest or cross liability\nclauses.\n\n                  6.1.8.2 All insurance shall be provided by insurance\ncompanies, on policy forms, and with deductibles and retentions acceptable to\nWestinghouse, such acceptance not to be unreasonably withheld. Any such\ndeductible or retention shall be the responsibility of Salton.\n\n                  6.1.8.3 Such insurance or risk financing arrangements shall be\nprimary with no rights of contribution equitable or otherwise, with any other\ninsurance afforded Westinghouse.\n\n                  6.1.8.4 Salton shall furnish Westinghouse with certificates of\ninsurance within thirty (30) days after execution of this Agreement, and\nannually thereafter. Such certificates will stipulate that coverage will not be\ncanceled, reduced, or modified without thirty (30) days prior written notice to\nWestinghouse. Any cancellation, reduction or modification, without the prior\nwritten consent of Westinghouse, which results in there not being in force\ninsurance coverage which satisfies all the requirements of Section 6.1.8,\nincluding all its subsections, shall be deemed a material breach of this\nAgreement.\n\n                                      -8-\n\n\n                  6.1.8.5 At reasonable times on advance written notice to\nSalton, Westinghouse may review the insurance policies at Salton's offices.\n\n                  6.1.8.6 The requirements of this clause will survive this\nAgreement, and will remain in effect for at least the life of the Products\nmanufactured, distributed, or serviced by or for Salton.\n\n         6.2 Westinghouse represents, warrants and covenants to Salton as\nfollows:\n\n                  6.2.1 Westinghouse is a corporation duly organized, validly\nexisting and in good standing under the laws of the State of Delaware.\nWestinghouse has all corporate power and authority to execute and deliver this\nAgreement and to perform its obligations hereunder.\n\n                  6.2.2 The execution, delivery and performance by Westinghouse\nof this Agreement and the consummation of the transaction contemplated hereby\nhas been duly and validly authorized by all requisite corporate action, and no\nother corporate act or proceeding on the part of Westinghouse is necessary to\nauthorize the execution, delivery and performance of this Agreement and the\nconsummation of the transaction contemplated hereby.\n\n                  6.2.3 Westinghouse is not subject to nor obligated under its\ncertificate of incorporation or bylaws, any applicable law, rule or regulation\nof any governmental authority, or any agreement, instrument, license or permit,\nor subject to any order, writ, injunction or decree, which would be breached or\nviolated by its execution, delivery or performance of this Agreement.\n\n                  6.2.4 Westinghouse is the owner of the Marks and, to\nWestinghouse's knowledge, the use of the Marks in the manufacture, advertising,\nsale and promotion of any of the Products will not infringe any intellectual\nproperty or any other rights of any third party.\n\n                  6.2.5 Westinghouse has the full right, power and authority to\ngrant the license as set forth in Article 2.0 hereof.\n\n                  6.2.6 Licensor is not subject to nor obligated under its\ncertificate of incorporation or bylaws, any applicable law, rule or regulation\nof any governmental authority, or any agreement, instrument, license or permit,\nor subject to any order, writ, injunction or decree, which would be breached or\nviolated by its execution, delivery or performance of this Agreement except as\nset forth in Schedule 6.1.4.\n\n                  6.2.7 Licensor's execution and delivery of this Agreement and\nperformance of its obligations hereunder, including the obligation of payments\nhereunder, do not and will not conflict with, violate, or result in any default\nunder any agreement, instrument or other contract to which Licensor is a party\nor by which it is bound except as set forth in Schedule 6.1.4.\n\n                  6.2.8 There are no claims, actions, suits, or other\nproceedings pending, or to the knowledge of Licensor, threatened, which, if\nadversely determined, would adversely affect the ability of Licensor to\nconsummate the transactions contemplated by this Agreement or perform its\nobligations hereunder.\n\n                                      -9-\n\n\n                              7.0 - INDEMNIFICATION\n\n         7.1 Salton shall indemnify and hold Westinghouse and its affiliates, as\nwell as their respective officers, directors, agents, employees, successors and\nassigns, harmless from and against any and all claims, suits, damages,\nliabilities, costs and expenses including, but not limited to, court costs and\nreasonable attorneys fees, arising out of, based on or in any other manner\nrelated to:\n\n                  7.1.1 the breach of any representation, warranty, covenant or\nobligation of Salton under this Agreement;\n\n                  7.1.2 any use by Salton of the Marks which is not permitted by\nor not in accordance with the terms of this Agreement;\n\n                  7.1.3 any defect or alleged defect in the Products including,\nwithout limitation, any injuries to persons or property arising therefrom; or\n\n                  7.1.4 the design, manufacture, distribution, promotion or sale\nof the Products including, without limitation, infringement of patents or\nmisappropriation of trade secrets;\n\n                  7.1.5 any claims by third parties against Westinghouse arising\nout of this Agreement, except to the extent such claims directly result from\nWestinghouse's breach of its warranties in Section 6.2.\n\n         7.2 Westinghouse shall indemnify and hold harmless Salton from and\nagainst the cost and expenses (including, without limitation, reasonable\nattorneys fees and costs) of any and all claims, suits, losses, damages, costs,\ndemands, obligations, investigations, causes of action, and judgments arising\nout of any assertion or allegation by any persons, entities or government\nagencies that the Marks used by Salton under this Agreement infringe any\ntrademark, trade name or any other personal property right of a third party.\n\n         7.3 A party (the \"Notifying Party\") shall promptly notify the other\nparty (the \"Indemnifying Party\") of the existence of any claim, demand or other\naction giving rise to a claim for indemnification under this Agreement which\ninvolves a third party (a \"Third Party Claim\") and shall give the Indemnifying\nParty a reasonable opportunity to defend the same at its own expense and with\nits own counsel, provided that the Notifying Party shall at all times have the\nright to participate in such defense at its own expense.\n\n         7.4 Each party shall make available to the other, at the other's\nexpense, such information and assistance as the other shall reasonably request\nin connection with the defense of a Third Party Claim threatened or filed in\nconnection with any activities conducted hereunder.\n\n                                8.0 - DISCLAIMERS\n\n         8.1      Nothing contained in this Agreement shall be constructed as:\n\n                  8.1.1 (Except as provided in Section 3.1 and Article 6.0) A\nWARRANTY WHETHER STATUTORY, EXPRESSED OR IMPLIED, A WARRANTY OF MERCHANTABILITY,\nA WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, OR A WARRANTY ARISING FROM\nCOURSE OF DEALING OR USAGE OF TRADE;\n\n                                      -10-\n\n\n                  8.1.2 an agreement to bring or prosecute actions or suits\nagainst third parties or conferring any right to bring or prosecute actions or\nsuits against third parties; and\n\n                  8.1.3 conferring any right to use in advertising, publicity,\nor otherwise, any trademarks, service marks, trade name or name of Westinghouse,\nor any contraction, abbreviation or simulation thereof, except as specifically\npermitted in this Agreement.\n\n                     9.0 - TERM, TERMINATION AND EXPIRATION\n\n         9.1 The Base Term of this Agreement shall be for six (6) year(s)\ncommencing March 31, 2002 and ending on March 31, 2008 at midnight Eastern\nStandard Time, unless sooner terminated.\n\n         9.2 This Agreement shall automatically renew for five (5) 5-year\nincrements (each an \"Extension Term\"). In the event Salton chooses not to extend\nthe term of the Agreement, Salton shall so notify Westinghouse in writing no\nlater than 120 days prior to the end of the Base Term or then-current Extension\nTerm, as applicable and in such case, this Agreement shall terminate effective\nthe last day of such Base Term or Extension Term. The Base Term and any\nexercised Extension Term are referred to as the Term of the Agreement.\n\n         9.3 Westinghouse may elect to terminate this Agreement upon thirty (30)\ndays' prior written notice to Salton if:\n\n                  9.3.1 Salton does not meet the quality standards for the\nProducts as established pursuant to the terms of this Agreement;\n\n                  9.3.2 Salton's use or misuse of the Marks in violation of this\nAgreement may bring discredit to Westinghouse;\n\n                  9.3.3 Salton fails to make payments due Westinghouse when due\nunder this Agreement;\n\n                  9.3.4 any proceeding is instituted by or for Salton for\nbankruptcy, reorganization or other relief for debtors; or\n\n                  9.3.5 any proceeding is instituted by or for Salton to\ndissolve its corporate structure or for winding-up.\n\n                  9.3.6 Salton directly or indirectly, merges or otherwise comes\nunder the shared or sole control or direction of any other party contrary to the\nterms of Section 14.1.\n\n         9.4 In the event of an alleged material breach by either party of any\nof the terms of this Agreement, the party suffering such breach shall give\nnotice to the other, in writing, thereof, specifying the type and circumstances\npertaining to such breach in form sufficient to enable opportunity for\ncorrection thereof by the party allegedly in breach. If such breach shall not\nhave been remedied during a ninety (90) day period immediately following the\nreceipt of such notice, the party giving said notice shall have the right to\nnotify the other in writing of its decision to terminate this Agreement. In the\nevent that the breach is remedied within such ninety (90) day period, this\nAgreement shall continue in full force and effect the same as if no notice had\nbeen given. Waiver by any party of its right to terminate because of any one\nbreach shall not constitute a waiver of any subsequent breach of the same or of\na different nature. No termination of this Agreement by expiration or otherwise\nshall relieve or release any party from any of its obligations hereunder with\nrespect to royalties due or acts committed under this Agreement.\n\n                                      -11-\n\n\n         9.5      Upon any expiration or termination of this Agreement:\n\n                  9.5.1 all rights granted to Salton hereunder terminate at such\nexpiration or termination;\n\n                  9.5.2 Salton shall immediately discontinue any and all use of\nthe Marks but shall be permitted to sell remaining stock within six (6) months.\nSalton shall continue to abide by the terms of this Agreement respecting the\nProducts during the six (6) month period. Westinghouse shall be entitled to\nreceive royalties on the sale of such stock in accordance with Article 4.0.\nAfter the expiration of the aforesaid six (6) month period, Salton shall destroy\nall Product and packaging and promotional material remaining in Salton's\npossession which are identified in any manner by or with the Marks.\nNotwithstanding the above, Westinghouse shall have the right to purchase such\nexcess stock of Licensed Items, in whole or in part, prior to any sale or offer\nof sale by Salton to any third party, for an amount equal to the wholesale cost\nof such Licensed Items. It is specifically understood and agreed that the\nSalton's right to dispose of stock shall be conditioned upon the absence of harm\nto the Marks and\/or the reputation of Westinghouse arising from the Salton's use\nof the Marks, as determined by Westinghouse in its sole discretion.\n\n                  9.5.3 the expiry or withdrawal of Salton's right to use the\nMarks shall not entitle Salton to compensation or damages of any description\nother than as provided in Section 9.4;\n\n                  9.5.4 all accrued payments to Westinghouse shall be paid to\nWestinghouse within thirty (30) days of such expiration or termination;\n\n                  9.5.5 all monies previously paid to Westinghouse pursuant to\nthis Agreement will be retained by Westinghouse; and\n\n                  9.5.6 the provisions of Article 7.0 and 9.0 shall survive.\n\n                              10.0 - MINIMUM SALES\n\n         10.1 Beginning in the fifth Contract Year, Westinghouse, upon ninety\ndays written notice to Salton, may elect to amend the definition of Territory to\ndelete therefrom the following jurisdictions should the NS of all Products sold\nby or for Salton not exceed the respective minimums indicated below for the\npreceding calendar year.\n\n                  Jurisdiction                              NS ($US)\n                  ------------                              --------\n         North America                                        $*\n         South America                                        $*\n         Europe                                               $*\n         Africa                                               $*\n         Asia                                                 $*\n         Australia - New Zealand                              $*\n\nFrom and after such deletion from the definition of Territory, Salton's license\nunder this Agreement for those jurisdictions shall be terminated.\n\n         10.2 Beginning in the third Contract Year, Westinghouse, upon ninety\ndays written notice to Salton, may elect to amend the definition of Products to\ndelete therefrom a Category should the NS of Products sold by or for Salton\nwithin such Category not exceed the respective minimums indicated below\n\n--------\n* Confidential Treatment Requested\n\n                                      -12-\n\n\n\nfor the immediately preceding calendar year:\n\n                  Category                           NS ($US)\n                  --------                           --------\n         Kitchen Electronics                             $*\n         Fans\/Heaters                                    $*\n         Personal Care                                   $*\n         Table Top Cleaners                              $*\n         Clocks                                          $*\n         Vacuums                                         $*\n\n\n                              11.0 - EFFECTIVE DATE\n\n         11.1 Upon execution by both parties, the Effective Date of this\nAgreement shall be March 31, 2002.\n\n                              12.0 - CHOICE OF LAW\n\n         12.1 This Agreement shall be construed, interpreted and governed in\naccordance with the laws of the State of New York.\n\n                                  13.0 - NOTICE\n\n         13.1 Any notice, request or statement hereunder shall be deemed to be\nsufficiently given or rendered when sent by certified mail, telex, or telegram,\nand if given or rendered to Salton addressed to:\n\n                  David Sabin\n                  Chairman\n                  Salton, Inc.\n                  1955 West Field Court\n                  Lake Forest, IL  60045\n\nwith a copy to:\n                  Marc Levenstein\n                  Senior Vice President and General Counsel\n                  Salton, Inc.\n                  1955 West Field Court\n                  Lake Forest, IL  60045\n\nor, if given or rendered to Westinghouse addressed to:\n\n\n                  President\n                  Westinghouse Electric Corporation\n                  c\/o Viacom Inc.\n                  Controller's Office - 53rd Floor\n                  1515 Broadway\n                  New York, NY 10036\n\n                                      -13-\n\n\n\nwith a copy to:\n                  Jo Ann Haller\n                  Assistant General Counsel\n                  Westinghouse Electric Corporation\n                  11 Stanwix Street\n                  Pittsburgh, PA  15222\n\nand a copy to:\n                  Allan Feldman, President\n                  Leveraged Marketing Corporation of America\n                  156 West 56th Street\n                  New York, New York 10019\n\n  or, in any case, to such changed address or person as Westinghouse or Salton\n  shall have specified by written notice pursuant hereto.\n\n\n\n                        14.0 - ASSIGNMENT\/SUBCONTRACTING\n\n\n\n         14.1 Salton shall not assign this Agreement in whole or in part without\nthe prior written consent of Westinghouse, except that Salton shall have the\nright to assign this Agreement as in connection with (1) the merger of Salton\ninto or the consolidation of Salton with another company that becomes the\nsurviving entity or (2) the acquisition of all or substantially all of the\nassets and business of Salton by another company (each an \"Acquisition\" for\npurposes of this Section 14.1), provided that: a. the business of Salton is\ncontinued and b. the net worth of the surviving entity immediately following any\nsuch Acquisition is not less than the net worth of Salton immediately prior to\nany such transaction. Notwithstanding the right granted to Salton in this\nSection 14.1 to assign this Agreement in the case of an Acquisition of Salton,\nSalton shall not have such right unless Salton first receives the advance\nwritten consent of Westinghouse if the assignee is a person, company or other\nentity that, at the time of such Acquisition of Salton, owns or controls through\na subsidiary or is owned or controlled by a person, company or other entity that\nowns or controls, a \"Significant Rival Trademark\". As used in this Section 14.1,\na Significant Rival Trademark is a trademark that is nationally known in both\nthe United States and the large countries of Western Europe; (ii) is used to\nmarket a variety of small kitchen electric products and other home use and non\nhome use products both in the United States and in the large countries of\nWestern Europe and (iii) also refers to the name of a well known company. Salton\nand Westinghouse agree that: (x) two current examples of a Significant Rival\nTrademark are the trademarks \"General Electric\" and \"GE\" and (y) current\nexamples of trademarks that are not, at the date hereof, Significant Rival\nTrademarks are Cuisinart and Moulinex.\n\n         14.2 Westinghouse may assign this Agreement in whole or in part.\n\n         14.3 Salton is responsible for the work of any of its contractors or\nsubcontractor and for any debts, obligations or liabilities incurred by any such\ncontractors or subcontractor in connection with the Products. Salton shall\ndiscontinue using any contractor or subcontractor who shall fail to comply with\nquality standards and\/or delivery schedules required by Salton or Westinghouse\n\n\n                                      -14-\n\n\n\n                               15.0 - SEVERABILITY\n\n\n\n         15.1 The provisions of this Agreement are severable, and in the event\nthat any provision of this Agreement is determined to be invalid or\nunenforceable under any controlling body of law, such invalidity or\nunenforceability shall not in any way affect the validity or enforceability of\nthe remaining provisions hereof.\n\n\n\n                                  16.0 - MERGER\n\n\n\n         16.1 This instrument sets forth the entire and only agreement between\nthe parties hereto as to the subject matter hereof; reflects and merges all\npertinent prior discussions and correspondence pertaining thereto, and\nsupersedes and cancels all pre-existing agreements pertaining thereto between\nthem. Any representation, promise, definition, warranty or condition pertaining\nthereto and not incorporated herein, shall not be binding upon either party.\nThis instrument shall not become effective unless and until dated and signed\nbelow on behalf of each of the parties by their duly authorized officers or\nrepresentatives. This instrument and its appendices may not be modified,\nenlarged, or changed in any way hereafter except by an instrument signed by each\nof the parties hereto.\n\n\n\n                       17.0 - REPORTING OF ADVERSE EVENTS\n\n\n\n         17.1 Salton shall report to Westinghouse, within forty-eight [48] hours\nfrom receipt of the information, any materially adverse event that is reported\nto occur as a result of use of any of the Products. Such events must be reported\nin as much detail as possible, whether or not there is proof of a causal\nconnection between the events and use of the Products. A materially adverse\nevent includes any experience relating to the Products which is reasonably\nregarded to be seriously detrimental to person or property in any manner.\n\n\n\n                           18.0 - FINANCIAL STANDARDS\n\n\n\n         18.1 Salton shall provide its annual financial statements to\nWestinghouse annually or its quarterly financial statements as requested by\nWestinghouse. So long as Salton remains a publicly held company, Westinghouse\nshall be entitled only to such statements as are required to be filed with the\nU.S. Securities and Exchange Commission under the Securities Act of 1933, as\namended, and the Securities and Exchange Act of 1934, as amended. Such financial\nstatements shall be prepared in accordance with U.S. GAAP. Salton must promptly\nnotify Westinghouse of a termination of any significant line of credit of or\nguarantee of indebtedness by personal guarantor. Should Salton's net worth fall\nbelow $25,000,000 in the aggregate, Westinghouse may terminate this Agreement.\nLikewise, Licensor may terminate this Agreement immediately if any of the\nfollowing occur: (1) Salton is in default under the provisions of any line of\ncredit or debt agreement with financing institutions; (2) a sale or transfer of\nSalton's assets which, in Westinghouse's opinion, may affect the ability of\nSalton to operate its business pursuant to this Agreement; or (3) Salton incurs\nnet operating losses in the aggregate for two or more consecutive years.\n\n                                      -15-\n\n\n                         19.0 - RELATIONSHIP OF PARTIES\n\n\n\n         19.1 The relationship hereby established between Salton and\nWestinghouse is solely that of independent contractors. This Agreement shall not\ncreate an agency, partnership, joint venture or employer\/employee relationship,\nand nothing hereunder shall be deemed to authorize either party to act for,\nrepresent or bind the other except as expressly provided in this Agreement.\n\n\n\n                       20.0 - AGENTS, FINDERS AND BROKERS\n\n\n\n         20.1 Each of the parties to this Agreement shall be responsible for the\npayment of any and all agent, brokerage and\/or finder commissions, fees and\nrelated expenses incurred by it in connection with this Agreement or the\ntransactions contemplated hereby and agrees to indemnify the other and hold it\nharmless from any and all liability (including, without limitation, reasonable\nattorney's fees and disbursements paid or incurred in connection with any such\nliability) for any agent, brokerage and\/or finder commissions, fees and related\nexpenses claimed by its agent, broker or finder, if any, in connection with this\nAgreement or the transactions contemplated hereby. Westinghouse's sole\nagent\/finder\/broker in connection with this Agreement is Leveraged Marketing\nCorporation of America (\"LMCA\") with offices at 156 West 56th Street, New York,\nNew York 10019. As between Westinghouse and Salton, any and all commissions,\nfees and\/or other monies due LMCA in connection with this Agreement shall the\nresponsibility of Westinghouse.\n\n\n\n         IN WITNESS WHEREOF and intending to be legally bound, the parties\nhereto have caused these presents to be signed by their proper officers\nthereunto duly authorized.\n\n\n\nSALTON INC.                                           WITNESS:\n\n\nBY: \/s\/ David Sabin\n    ------------------                                --------------------------\n    David Sabin\n    Chairman\n\n\nDATE:\n      ----------------\n\n\nWESTINGHOUSE ELECTRIC CORPORATION                     WITNESS:\n\n\nBY: \/s\/ James F. Davis                                --------------------------\n    ------------------\n    James F. Davis\n    Vice President\n\n\nDATE: \n      ----------------\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8750,9252],"corporate_contracts_industries":[9393,9465],"corporate_contracts_types":[9613,9616],"class_list":["post-42481","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-salton-inc","corporate_contracts_companies-viacom-inc","corporate_contracts_industries-consumer__appliances","corporate_contracts_industries-media__broadcasting","corporate_contracts_types-operations","corporate_contracts_types-operations__ip"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42481","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42481"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42481"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42481"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42481"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}