Trademark License Agreement - 4/12/95

EXHIBIT 10.49


TO


GARGOYLES, INC.


FORM S-1


"[*]" = confidential information omitted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment.


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TRADEMARK LICENSE AGREEMENT


This Trademark License Agreement (hereinafter "Agreement") is made and entered into as of the last date signed by one of the parties, below (hereinafter "Effective Date"), by and between Gargoyles, Inc., a Washington corporation having a place of business in Kent, Washington (hereinafter "G.I."), and [*], a Delaware corporation having a place of business in [*], [*] (hereinafter "[*]").


The parties hereby agree as follows:


1.0 LICENSE GRANT


1.1 Subject to the terms and conditions of this Agreement, including payment of the royalties due hereunder, G.I. hereby grants to [*] an exclusive right to use and/or to license the use of the mark GARGOYLES (hereinafter the "Mark") on and in connection with [*] Products, [*] Services, Licensed Products and Licensed Promotions, as defined herein.


1.2 "[*] Services" as used in this Agreement means services performed by or for [*] in connection with the production, distribution, promotion or [*] of [*] (together, "[*]").


1.3 "[*] Products" as used in this Agreement means products bearing the Mark or marketed in conjunction with the Mark that are sold either by [*] only or by [*] and others but as to any of which [*] receives no License Revenue, as defined herein. By way of example, [*] Products include, but are not limited to, [*], artwork and art editions, and certain products distributed in electronic form.


1.4 "Licensed Products" as used in this Agreement means products manufactured, marketed, distributed or licensed by [*]'s licensees which are associated with "[*]" and bear the Mark or are marketed in conjunction with the Mark as to the sale of which by the licensees [*] receives License Revenue, as defined herein. By way of example, Licensed Products include, but are not limited, to, certain T-shirts, caps, shoes, and products distributed in electronic form.


1.5 "Licensed Promotions" as used in this Agreement means promotional uses of the Mark by [*] itself or under arrangements between [*] and third parties


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[*] Confidential Treatment Requested


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intended by [*] primarily to increase the market exposure of "[*]" (by way of example, [*]'s present agreements with [*] and [*] to promote "[*]"). Licensed Promotions may include the distribution of promotional items bearing the Mark or marketed in conjunction with the Mark.


1.6 [*]'s exclusive rights under this Agreement are limited to products and services associated with "[*]" licensed hereunder. Nothing in this Agreement shall limit or restrict G.I.'s rights with respect to uses of the Mark in connection with the sale or promotion of GARGOYLES Performance Eyewear or other products or services not associated with "[*]."


1.7 Any rights not expressly granted to [*] hereunder are reserved by G.I.


2.0 ROYALTY OBLIGATIONS AND PAYMENTS


2.1 [*] agrees to pay G.I. a royalty of [*] percent ([*]) of its License Revenue (as defined below) for the first [*] dollars ([*]) of License Revenue.


2.2 [*] agrees to pay G.I. a royalty of [*] percent ([*]) of its License Revenue (as defined below) on all License Revenue in excess of [*] dollars ([*]) of License Revenue.


2.3 [*] shall have no obligation to pay G.I. royalties on revenue it receives in conjunction with [*] Services, [*] Products or Licensed Promotions.


2.4 "License Revenue" as used in this Section 2.0 means all past, present and future money due and received by [*] from third-party licensees for Licensed Products manufactured or sold in the United States or Canada (including all money due and received from licensees identified in Appendix 2, hereto).


3.0 ACKNOWLEDGMENT OF RIGHTS


3.1 [*] acknowledges that the Mark is a valid and enforceable trademark of G.I., and agrees not to challenge or contest G.I.'s ownership of the Mark or to challenge or contest the validity of the license granted under this Agreement.


3.2 All rights [*] has acquired or may acquire in the Mark, including all associated goodwill, shall be the sole property of G.I. and are hereby assigned to G.I. All use of the Mark by [*] and its licensees shall inure to the benefit of G.I.


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[*] Confidential Treatment Requested


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4.0 QUALITY, INSPECTION AND LICENSE APPROVAL


4.l [*] agrees that the quality of the products sold and services distributed under this Agreement shall meet or exceed industry standards. In the case of [*] Services performed by [*], [*] agrees that such services shall be of the same general quality as those services provided by it prior to the Effective Date of this Agreement.


4.2 [*] further agrees that it shall monitor the quality and performance of its licensees and their products under this Agreement in accordance with its standard licensing procedures, including requiring its licensees to enter into agreements having quality control and approval provisions substantially as provided in the standard [*] license agreement attached hereto as Appendix l. [*] agrees that its use and licensing of the Mark shall be consistent with [*]'s practices, as they may evolve from time to time, for [*] and products.


4.3 [*] shall cooperate with G.I. to facilitate periodic review of products distributed and services performed under this license, as and when reasonably requested by G.I.


4.4 [*] shall use its reasonable efforts to ensure that all products distributed and services performed under this license comply with all applicable laws, rules, and regulations and do not violate or infringe any right of any third party.


4.5 Appendix 2 to this Agreement is a list of actual and prospective (i.e., under negotiation) U.S. licensees for Licensed Products, as of the Effective Date of this Agreement.


4.6 [*] agrees to consult with G.I. from time to time, at least quarterly, concerning the nature of future Licensed Products and Licensed Promotions and to afford G.I. a reasonable and timely opportunity to comment and suggest modifications which may impact consumers' perception of the Mark with respect to the nature of the Licensed Products and Licensed Promotions and the manner in which the Mark is used in such promotions. [*] agrees to work with G.I. to make such modifications, whe ...