Retailer Creative Materials Usage Agreement
READ THESE TERMS CAREFULLY BEFORE DOWNLOADING THIS MATERIAL. BY SELECTING THE "I ACCEPT" BUTTON BELOW, DOWNLOADING, OR OTHERWISE USING THIS MATERIAL, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, AND THAT YOU AGREE ON BEHALF OF YOUR COMPANY (THE "COMPANY") THAT YOUR COMPANY, AND YOU AS ITS AGENT, ARE BOUND BY ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU AND YOUR COMPANY ARE NOT AUTHORIZED TO USE THE MATERIAL AND IT IS YOUR RESPONSIBILITY TO EXIT THIS DOWNLOAD SCREEN WITHOUT DOWNLOADING THE MATERIAL AND TO DELETE THE MATERIAL FROM YOUR COMPUTER AND OTHER SYSTEMS.
In this Agreement, Hanesbrands Inc., having an address of 1000 E. Hanes Mill Road, Winston-Salem, NC 27105, us referred to as "HBI
WHEREAS, the Company desires to promote the sale of HBI products and has requested that HBI provide the Company with creative materials showcasing HBI products for this purpose;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
- From time to time, HBI may provide the Company with copies of HBI's trademarks, brand logos, labels, images and/or other creative materials, which are owned by or under license to HBI or its affiliates (the "Materials"), in graphical image files or other media. The Materials may include model photography.
- The Company agrees that it will request the Materials in a timely manner, providing HBI sufficient time (but no less than three (3) business days in any event) for HBI to process the request.
- The Materials provided by HBI will be used by the Company solely in connection with the marketing and/or sale of HBI products approved by HBI in advance. The Company recognizes that the Materials may contain images that have restrictive usage rights and/or time-sensitive imagery; therefore, the Company warrants that the Materials will only be used in the manner in which the Company originally requested and HBI approved, and the Company hereby represents and warrants that it will only use the Materials as authorized, and within the time period approved by HBI (as approved by HBI on a case by case basis).
- The Company agrees not to alter, deface or otherwise change the appearance of any Materials without HBI's prior written consent, including but not limited to the color, character and integrity of same.
- The Company acknowledges and agrees that all title to, and ownership of, the Materials and all derivative works thereof shall at all times remain with HBI. The Company will ensure that all Materials hereunder are adequately and correctly displayed on all applicable products, including any markings requested by HBI in order to show evidence of trademark or copyright protection and HBI's ownership of such Materials. In no event shall the Company use the Materials in a manner which will weaken or disparage HBI’s products, trademarks, or reputation. The Company shall not have the right to change or alter any Materials, except with HBI's prior written consent.
- Upon reasonable notice from HBI, the Company will immediately discontinue any use of Materials objected to by HBI as contrary to the terms of this Agreement. Upon request, the Company shall also promptly remove any content related to the Materials or to HBI from its web site(s) and/or Company's retail stores as instructed by HBI.
- The Company agrees that it will not obtain, register, accept assignment of, or use any domain name or uniform resource locator ("URL") that incorporates a trademark, service mark, trade name, or product name associated with, belonging to or licensed by HBI or any of its affiliates, or any word confusingly similar to such marks or names.
- The Company furthermore acknowledges and agrees that HBI is entering into this Agreement with the expectation that the Company’s web site(s) shall be operated in a manner that is consistent with, protects and supports the prestige, image and reputation of HBI, its affiliates and its products. To that end, the Company agrees: (i) to present HBI’s products in a commercially reasonable manner, and in a manner no less favorable than the other products displayed on the Company’s web site(s), (ii) to comply with the Code of On-Line Business Practices established by the Better Business Bureau, and (iii) to operate its web site(s) in such a manner that it is an appropriate environment for the sale of HBI products.
- The term of this Agreement and the usage rights granted herein may be terminated at any time by HBI upon written notice to the Company.
- The Company acknowledges that HBI products are not intended for sale outside the United States, and agrees not to sell or advertise or allow the sale or advertisement of HBI Products in violation of this paragraph.
- The Company shall be solely responsible for updating its web site(s), catalogues and other promotional materials to reflect current HBI product information and availability.
- THE COMPANY SHALL HAVE NO AUTHORITY TO WARRANT HBI'S PRODUCTS OTHER THAN AS EXPRESSLY SET FORTH IN WRITING BY HBI. ANY WARRANTY CONTRARY TO SUCH HBI AUTHORIZATION SHALL BE AT COMPANY'S OWN RISK.
- The Company shall indemnify and hold HBI, HBI affiliates, and their representatives, agents, officers and directors harmless from any and all claims, liabilities and expenses (including reasonable attorney's fees) arising from the Company's use of the Materials or breach of any of the terms contained herein. Since HBI could be irreparably damaged if the Company violates any provision contained in this Agreement (including, without limitation, the use of the Materials in a manner not authorized hereunder), in addition to any other rights and remedies available to HBI, HBI shall be entitled to full injunctive relief restraining any such violation without any bond or security being required, to the extent permitted by applicable law. The foregoing indemnity shall survive the expiration, termination or cancellation of this Agreement.
- During and after the term of this Agreement, the parties acknowledge and agree that information exchanged between the parties shall be considered confidential, unless disclosure of such information is required by laws, regulations or order of government authorities or court order, or unless and to the extent such information has become generally known to the public through a source other than the receiving party.
- This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina, and may not be amended except in writing executed by both parties. The parties hereby waive any challenge to, and consent to the jurisdiction of the federal and state courts of Forsyth County in the Middle District of North Carolina.
- The Company may not assign, subcontract or otherwise transfer all or any part of this Agreement or its rights or obligations hereunder (including the Materials) to any third party, including its affiliates, without the prior written consent of HBI. HBI may assign and/or transfer its rights under this Agreement at any time to any of its affiliates or to any successor to the business or assets of HBI (whether by merger, consolidation, spin-off or otherwise).
IN WITNESS WHEREOF, the parties hereto have entered into this Agreement as of the year and day of acceptance.