INNSUITES
BOUTIQUE COLLECTION
TRADEMARK
LICENSE AGREEMENT
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Effective
Date |
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Parties |
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Licensor |
InnSuites
Hotels, Inc. 1615
E. Northern Ave., Suite 102 Phoenix,
AZ 85020 602-944-1500 |
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Licensee |
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Licensed Location |
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Agreement
Terms
In consideration of the
mutual promises and undertakings contained in this agreement and for good and
valuable consideration, the parties agree to the terms set forth in this
agreement.
1. Background:
A.
Licensor is the owner of the Licensed Trademarks (defined below).
B.
Licensor has been using the trademarks, directly or through some
of its licensees, in connection with hotel services for many years and has
developed substantial goodwill in connection with the Licensed Trademarks.
C.
Licensee is currently in the hotel business and has been operating
the Licensee for at least the past 2 years and is experienced in the field of
operating a hotel (or alternatively, the senior management of the Licensee has
a minimum of 2 years experience in the field of hotel operations).
D.
Licensee desires to license the use of the Licensed Trademarks for
use with its hotel operations located at the Licensed Location.
E.
Licensor desires to license Licensee to use the Licensed
Trademarks subject to the terms set forth in this agreement.
2.
Definitions:
A. “Change of Flag” shall
mean Licensee becoming affiliated with a hotel chain which requires an
exclusive relationship with Licensee or Licensee entering into another
trademark license agreement with another licensor who requires an exclusive
relationship with Licensee.
B. “Licensed Telephone
Numbers” shall mean the toll free telephone numbers 1-800-842-4242;
1-888-INNSUITES; and any other telephone numbers adopted or used by Licensor in
connection with hotel services or its central reservation services or in
connection with any services offered by Licensor in connection with the
services which are the subject of this agreement.
C. “Licensed Trademarks” shall mean the
trademarks listed in Exhibit A attached to this agreement and any other names,
marks, logos, designs, and/or trade dress, whether registered or not, used by
Licensor or its Licensees on or in connection with hotel services or its
central reservation services or in connection with any services offered by
Licensor in connection with the services which are the subject of this
agreement. Licensor may update the
trademarks listed on Exhibit A from time to time.
D.
“Licensee” shall refer to the Licensee identified in the Basic
Terms above.
E.
“Licensor” shall refer to the Licensor identified in the Basic
Terms above.
F.
“Licensed Location” shall refer to the hotel operated by Licensee
at the Licensed Location identified in the Basic Terms above.
3. License Grant:
A.
Licensor grants Licensee a license to use the Licensed Trademarks
during the term of this agreement in connection with Licensee’s hotel
operations. This license is limited to use of the Licensed Trademark only in
connection with its hotel operations at the Licensed Location.
B.
During the term of this agreement Licensee shall not enter into an
agreement with a third party related to the operation of a hotel at the
Licensed Location under another name or logo or enter into any other trademark
license agreement related to the operation of a hotel at the Licensed Location
without the prior written consent of Licensor, which consent may be granted or
withheld at the sole discretion of Licensor.
C.
During the term of this agreement Licensor agrees that it will not
grant any other licensee a license to use any of the Licensed Trademarks at any
location within a one mile radius of the Licensed Location.
D.
The trademark license is personal to Licensee and may not be
assigned or transferred to any third party without the prior written consent of
Licensor. In addition the license is site specific for the Licensed Location
only. Licensee may not use the Licensed Trademarks or transfer the license to
use the Licensed Trademark to any other location without the prior express
written permission of Licensor.
E.
Licensee agrees that it will not attempt to register or file any
registration for any Licensed Trademark.
Licensee agrees that it will not challenge the validity or
enforceability of any Licensed Trademark.
F.
Licensor shall use reasonable efforts to advertise and promote the
Licensed Trademarks. Licensor shall
establish an annual budget for the advertising, marketing and promotion of the
Licensed Trademarks; however, the amount of such budget, timing and manner of
the expenditures for the advertising, marketing and promotion of the Licensed
Trademarks shall be within Licensor’s reasonable business judgment.
4. Fees:
A.
In consideration of the license granted hereunder, Licensee agrees
that it shall pay the following fees set forth in Fee Schedule attached to this
agreement as Exhibit B. All fees shall
be paid to Licensor at the address listed above on or before the 1st
day of each month. Any fees not paid by the 15th of the month shall
be considered a default under this agreement.
B.
In the event of a default under this agreement for failure to pay
fees when due, upon 3 days written notice to Licensee, Licensor may suspend its
services to Licensee, including suspension of any services booking reservations
made with Licensee through any reservation center operated by or in conjunction
with Licensor.
C.
In the event fees due are not paid by the 15th of each
month, Licensor may impose late fees and other charges on Licensee as set forth
in the Fee Schedule attached as Exhibit B.
D.
All remedies for late payment as provided for in this paragraph
are in addition to any and all other remedies available to Licensor in this
agreement or at law or in equity due to a default or breach of this agreement.
5. Licensee Representations and Warranties:
A.
Licensee has been continuously operating a hotel at the Licensed
Location for at least two years prior to the effective date of this agreement
(or alternatively, the senior management of the Licensee has a minimum of 2
years experience in the operations of hotels similar to Licensee’s operations
at the Licensed Location.
B.
Licensee has had substantial operating revenue from its hotel
operations at the Licensed location for at least each
of the last 2 years.
C.
In connection with its consideration of entering into this License
Agreement, Licensee has estimated its anticipated revenues and represents to
Licensor that it has determined, based upon reasonable investigation, that
entering into this License Agreement may increase its anticipated revenue for
the period of one year from the effective date, but that such revenue increase
is not expected to be more than 20% of its gross revenue for such period.
D.
Neither Licensor nor any of its officers, employees, agents or
representatives have made any representations to
Licensee contrary to the terms set forth in this agreement.
E.
Licensee has the full power and authority to enter into this
agreement.
6. Quality Control Provisions:
A.
Licensee shall use the Licensed Trademarks in the manners
reasonably requested by Licensor. Unless
specified otherwise by Licensor, all use of the Licensed Trademarks shall
include the designation “®” or such other trademark notices specified by
Licensor.
B.
Licensee shall submit samples of all advertising and marketing
materials bearing any of the Licensed Trademarks to Licensor for review and
approval. Licensor shall have not less than 14 days to review and approve such
samples. Licensee shall not use the
Licensed Trademarks in any materials or in any manner not approved by Licensor. In addition, Licensee shall make any changes
concerning the manner of use of the Licensed Trademarks requested by Licensor.
C.
Licensee agrees that its hotel operated at the Licensed Location
shall be operated in a professional manner, and in a clean, safe and orderly
manner. Licensee further agrees that the
Licensed Location shall be operated in compliance with reasonable hospitality
industry standards of service, cleanliness and operations. Licensee agrees that
it shall operate the Licensed Location in a manner to enhance the goodwill associated
with its hotel and the goodwill associated with the Licensed Trademarks.
D.
Licensor shall have the right to inspect Licensee’s hotel and its
services at any time on reasonable notice to ensure Licensee’s compliance with
the terms of this agreement and to ensure that the quality of Licensee’s
services adequately reflect at a minimum the standards for service offered by
Licensee at the time this license commenced. Failure to maintain the quality of
services at a level equal to or exceeding the quality of services offered at
the time this agreement commences shall be a breach of this agreement.
E.
In the event Licensee is unable to accommodate a guest with a
confirmed and guaranteed reservation, Licensee shall, at its own expense, make
arrangements to accommodate the guest in comparable or better accommodations in
the same vicinity at no cost to the guest.
The “walked guest” shall receive, at a minimum,
one night’s free lodging at the Licensee’s expense. Repeated (2 or more) failures to make such
accommodations shall be a breach of this agreement
F.
Licensee shall participate in Licensor’s online review
procedures. In addition, Licensor may
implement other similar online or other automated procedures to allow customers
to review the quality of their stays. Licensee
agrees to participate in all such review procedures as implemented from time to
time. If Licensee receives multiple
negative reviews and the Licensee’s performance falls in the bottom twenty-five
percent (25%) of guest comments and the Licensee does not take reasonable
steps, in Licensor’s reasonable business judgment, to remedy the low guest satisfaction, that shall be considered a breach of this
agreement.
7. Term and Renewal:
A.
The term of this agreement shall be for one year from the
Effective Date. This agreement shall
automatically renew for successive one year terms unless either party gives the
other party not less than 90 days written notice of its intent not to renew
this agreement.
B.
Upon any renewal of this agreement Licensor may amended this
agreement by giving Licensee written notice of any amendments to this
agreement; provided that Licensor shall give Licensee notice of any amendment
not less than ninety (90) days prior to the renewal date of this agreement. Such new terms shall be automatically
included in this agreement upon the renewal date and shall apply for the
renewal term (or any successive renewal term) unless not less than (30) days
prior to the renewal date Licensee gives notice to Licensor that it rejects
such amendment. If Licensee rejects such
amendment, then the Licensor’s notice of amendment shall operate as a notice of
termination and the agreement shall expire at the end of such term.
8. Termination:
A.
Licensee may terminate this agreement for any reason by giving not
less than 90 days written notice of termination to Licensor.
B.
In the event of a sale of the hotel located at the Licensed
Location or in the case of a Change of Flag, Licensee may terminate this agreement
by giving Licensor 30 days written notice of
termination.
C.
Licensor may terminate this agreement upon ninety (90) days
written notice in the event Licensee is in default for failure to make timely
payments of any fees due to Licensor and such failure continues for ten days
after notice of such default is given to Licensee.
D.
Either party may terminate this agreement upon a material breach
of this agreement which breach is not cured within 90 days after written notice
of such breach is given to the party alleged to be in breach.
E.
Licensor may terminate this agreement upon 90 days written notice
for Licensee’s breach of this agreement by failing to maintain the quality of
its services, by failing to cooperate in online or other automated guest review
procedures, or upon receiving multiple negative ratings in such review
procedures placing Licensee in the bottom twenty-five (25%) of guest service.
F.
Licensor may terminate this agreement immediately in the event
that Licensee files for protection under any bankruptcy or insolvency laws.
G.
Licensor may terminate this agreement upon 30 days notice in the
event that Licensee does any act (or failure to act) which causes substantial
harm or damage to the goodwill associated with the Licensed Trademarks.
H.
Upon termination of this agreement for any reason, Licensee shall
immediately cease all use of the Licensed Trademarks (including removal of all
Licensed Trademark from any web sites and/or online or other electronic
advertising) and shall return or destroy any and all signs or materials using
or bearing any of the Licensed Trademarks.
9. Insurance: Licensee agrees to maintain reasonable liability insurance
related to its operations and shall keep Licensor informed as the coverage
provided by such insurance policies, the amount of such coverage and the
termination of any policies of insurance. Licensee shall have Licensor named as
an additional insured on all such policies of insurance.
10. Limitation of Liability: In no event shall the
total liability of Licensor under this agreement exceed the total amount paid
by Licensee to Licensor during the prior 12 months.
11. Indemnification:
A.
Licensee agrees to indemnify, defend and hold harmless Licensor,
and its officers, directors, employees, agents and representatives from and
against any and all claims, demands, actions causes of action, damages or
liabilities arising out of or related to the services provided by Licensee or
any and all acts of Licensee or any of its officers, directors, employees,
agents, and representatives.
B.
Licensor agrees to indemnify, defend, and hold harmless, Licensee
and its officers, directors, employees, agents and representatives from and
against any and all claims, demands, actions causes of action, damages or
liabilities arising out of or related to Licensee’s use of any of the Licensed
Trademark; except Licensor shall have no obligation to defend such claims if
such claim arises out of Licensee’s use of any trademark in a manner not
authorized by Licensor.
C.
With regard to any claim for which indemnification is sought under
this paragraph, the indemnified party shall promptly give notice of the claim
to the indemnifying party and shall reasonably cooperate with the indemnifying
party in the defense or settlement of such claim. The indemnifying party shall have complete
control of the defense or settlement of such claims; except that no party shall
settle any claim on any terms which materially requires the other party to take
any act or materially restricts the other party from taking any act, without
that parties consent. In any event, the
indemnified party may appear in any action with counsel of its own choosing,
provided it does so at its own cost.
12. No Partnership: Nothing in this agreement shall be
construed as to create any partnership, joint venture or any agency
relationship between the parties to this agreement.
13. General Provisions:
A.
Notices: Any notices required or permitted to be given under this
agreement shall be in writing and shall be given to the parties at their
addresses first listed above. Either party may change its address for notice by
giving the other party notice of its new address. Notice shall be given by personal delivery,
sent by fax or email, by recognized overnight courier (e.g. FedEx) or by certified
mail. Notice shall be deemed given upon
receipt or 3 days after deposit in the mail, if sent by certified mail.
B.
Arbitration: Parties agree to resolve disputes by arbitration. In the event
of any dispute arising out of or related to this agreement, the dispute shall
be resolved by binding arbitration held in Phoenix, Arizona. Such arbitration
shall be conducted by a single arbitrator and shall be conducted by the
American Arbitration Association in accordance with its commercial rules.
Notwithstanding the foregoing, nothing in this agreement shall prevent either
party from seeking and obtaining injunctive relief in a court of competent
jurisdiction.
C.
Governing Law/Jurisdiction: This agreement shall be governed by Arizona
law. To the extent any dispute is not resolved by arbitration as provided for
in this agreement, Licensee consents to the exclusive jurisdiction and venue of
the courts located in Maricopa County, Arizona for the resolution of all
disputes arising out of or related to this agreement.
D.
Attorneys’ Fees: In the event of any legal action or arbitration arising out of
or related to this agreement the prevailing party in such action shall be
awarded its court or arbitration costs and its reasonable attorneys’ fees
incurred in such action.
E.
Entire Agreement: This agreement and the attachments hereto constitute the entire
agreement between the parties with regard to the subject matter of this
agreement.
F.
Authority to Sign: Any person signing this agreement in a representative capacity
represents and warrants that he or she holds the position stated, that they
have the requisite power and authority to sign this agreement on behalf of the
entity indicated, and that they are authorized to sign this agreement.
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LICENSOR: InnSuites Hotels, Inc. By ___________________________ Title __________________________ |
LICENSEE: Company Name By ___________________________ Title __________________________ |
Rev. 1-01-09
281258
Exhibits
Exhibit A – Licensed Trademarks
Exhibit B – Fee Schedule
Exhibit A
Licensed Trademarks
A.
“InnSuites”
B.
“InnSuites Boutique Hotel Collection”
C.
“InnSuites Boutique Collection Suite Hotel”
D. “Your Suite Choice Value”
E. “Your Boutique Suite
Choice Value”
F. “InnSuites Hotels”
G. “InnSuites Hotel &
Suites”
H. InnSuitesBoutiqueHotelCollection.com
I. BoutiqueHotelsReservations.com
J. innsuites.com
K. Celebrity Suites
Rev. 1/1/09
Exhibit B
Fee Schedule
The
Member Licensee shall pay the following fees to Licensor starting next year:
- Monthly Trademark License fee: 2010
No charge. For 2011-2014 the fee is discounted to $10 per room per month
or up to 100 rooms and $2 per month thereafter. For years 2015-2018 the
fee is $16 per room per month for up to 100 rooms and $4 per month
thereafter. Thereafter the fee is $26 per room per month for up to 100
rooms and $8 per room per month thereafter.
B. Central Reservation Fee: One
night reservation: $5
Two night reservation: $7
Three night reservation:$9
Four night reservation:
$12
Five or more nights: $15
- Initial Fee: $20,000 fee waived.
6/10