Promotional Materials Agreement IMPORTANT PLEASE READ CAREFULLY

Transcription

1 Promotional Materials Agreement IMPORTANT PLEASE READ CAREFULLY Before using Tommy Bahama Group, Inc s ( TBG ) Promotional Materials (as defined below), you (the undersigned) explicitly agree to be bound by this Agreement as set forth in the Terms below as well as any subsequent revisions to the Terms which may be provided to you in writing, or posted on the TBG Promotional Materials Website (as defined below), from time-to-time by TBG. Definitions TBG Promotional Materials: any and all trademarks, names, signs, logos, banners, postcards, posters, counter cards, signs and any other materials, in whatever form, owned and/or used by TBG for the promotion of its company, its products and activities which are made available to you for your use, subject to these Terms. TBG Products: TOMMY BAHAMA, TOMMY BAHAMA RELAX, TOMMY BAHAMA GOLF 18, TOMMY BAHAMA SPA, TOMMY BAHAMA SWIM, ISLAND SOFT INDIGO PALMS, TOMMY BAHAMA DENIM, and TOMMY BAHAMA JEANS branded products, and any derivatives thereof. TBG Promotional Materials Website: any and all elements and contents of the website available under the URL Please note that TBG Promotional Materials may not be downloaded, copied, saved or otherwise obtained from any other source. TBG Ecommerce Website: any and all elements, contents and the look and feel of the website available under the URL or any other URL s from which any TBG Products can be purchased directly from TBG or a TBG Affiliate (as defined below). TBG Affiliate: any corporation, company or other entity that directly or indirectly controls, is controlled by, or is under common control with, TBG. For the purpose of this definition, the word "control" shall mean the direct or indirect ownership of more than fifty percent (50%) of the outstanding voting stock of the corporation, company, or other entity.

2 Use of TBG Promotional Materials You are allowed to use the TBG Promotional Materials, under the conditions as set forth herein. TBG, herewith, grants you a non-exclusive and non-transferable license, without the right to grant sub-licenses, to use the TBG Promotional Materials, at your retail store(s) and / or on your website for the sole purpose of promoting TBG Products. You are not permitted to use the TBG Promotional Materials for any other purposes, including without limitation, broadcast, video, television, newspapers, magazines or for use in connection with off-price selling. The Usage Guidelines must be adhered to, and are set forth on Addendum A attached hereto. You may not use the TBG Promotional Materials for commercial gain outside of promoting the sale of TBG Products. Without limited the foregoing, you may not use the TBG Promotional Materials in connection with promoting non-tbg Products, or non-tbg related sales, promotions or giveaways (including listing other brands, companies or trademarks on such items as posters, postcards or other signage) without explicit advanced written consent from TBG s Marketing Department (contact information set forth on Addendum B attached hereto). You shall use TBG Promotional Materials only in such form as it is made available on the TBG Promotional Materials Website, or as otherwise provided to you by TBG, and shall not make any changes to the graphics, logos, photographs, visual elements, HTML source code or any other parts of the TBG Promotional Materials. TBG Promotional Materials that consist of visual images without a TBG brand signifier may not be used independently, and you must get approval from TBG s Marketing Department for the form and placement of a brand signifier on such images. If you desire to create something new using TBG Promotional Materials, you must create a mock-up of the visual layout and language that you would like to use and then submit such mock-up to TBG s Marketing Department. Please note that it is appropriate to incorporate your own store name, address and phone number into the mock-up. Under no circumstances shall TBG Promotional Materials that have been altered, or combined with other materials or language, be distributed publicly in any form without TBG s explicit advance written approval. After any TBG Promotional Materials are distributed publicly, you must submit a copy of the final product to TBG s Marketing Department for our record keeping purposes, and to ensure that changes are not made after our approval is given. Please note that no discretionary advertising assistance will be provided without your adherence to these conditions, and any variation from these procedures may be considered a material breach of contract, creating liability for damages to TBG s intellectual property.

3 You shall not use the TBG Promotional Materials on website(s) that is / are in any way similar to the TBG Ecommerce Website. You shall not use any TBG trademarks or words describing TBG Products as, or part of, the registered URL for website(s) on which you use the TBG Promotional Materials. Any digital or electronic usage of the TBG Promotional Materials on a website or otherwise must be approved in advance by TBG s Marketing Department. You will not harm, misuse or bring into disrepute TBG or the TBG Products; on the contrary, you will maintain the value and reputation thereof to the best of your abilities. Therefore, you will not publish or link to any unlawful, criminal, illegal or immoral content on your website and will furthermore refrain from any acts that may be infringing on intellectual property rights or any other third party rights, or that may be unlawful or that constitute a violation of any applicable law, regulation or court order. You will regularly monitor the TBG Promotional Materials Website in order to ensure that you are using the latest TBG Promotional Materials, as well as to ensure that you are aware of any changes by TBG to these Terms, which changes shall be deemed to amend this Agreement upon the earlier of the date such changes are posted by TBG on the TBG Promotional Materials Website, or are otherwise provided to you in writing. In the event that you do not agree on any changes made by TBG to these Terms, you will immediately cease any and all use of the TBG Promotional Materials. Once TBG Promotional Materials have been removed from the TBG Promotional Materials Website, you have six (6) months to closeout your use of such obsolete materials. After that time, the obsolete materials must be destroyed and replaced with current TBG Promotional Materials. If you desire to continue using any obsolete materials for any reason, such usage must be approved in advance by TBG s Marketing Department. Nothing in these Terms shall grant you any rights with regard to the TBG Promotional Materials other than the right to use the TBG Promotional Materials as set out hereunder. In addition, TBG reserves the right, in its reasonable discretion, to require you to modify how you are using the TBG Promotional Materials at any time if TBG determines in its sole discretion that such usage is not in line with the aspirations of the brand or the intended demographic, or it is not presented in an approved format. Intellectual Property Rights All intellectual property rights (including but not limited to trademarks and copyrights) relating to TBG Promotional Materials, the TBG Promotional Materials Website, the TBG Ecommerce Website, and/or other products or services from TBG, are exclusively owned by, or licensed to, TBG. Nothing in this Agreement intends any transfer of any intellectual property right, or to vest

4 any intellectual property right with you. Furthermore, all goodwill arising from use of the TBG trademarks shall inure to the benefit of TBG. You are not allowed to register any trade names, trademarks, logos, domain names or any other names or signs similar to TBG s intellectual property rights, including but not limited to the TBG Promotional Materials. General Provisions You represent and warrant that you are authorized to agree to and comply with the Terms herein. You acknowledge and agree that your use of the TBG Promotional Materials will be at your own risk and account. You agree to indemnify, defend and hold TBG and all TBG Affiliates harmless from and against any and all claims, demands, actions, causes of action, damages, liability and costs, including reasonable attorneys fees incurred by said parties, in connection with or arising out of (a) your use of the TBG Promotional Materials, or (b) any breach or violation of this Agreement. TBG reserves the right to terminate this Agreement at any time, and thereafter, within ten (10) days, you will destroy any items that make use of the TBG Promotional Materials and make no further use of the TBG Promotional Materials. Reasons for termination may include without limitation product cancellation, account being in arrears, or a cessation of a product relationship. TBG reserves the right to modify these Terms at any time. Only TBG may modify, amend or waive these Terms. No licensee of TBG, or other third party, is authorized to modify, amend or waive any Terms, grant any rights with respect to TBG Promotional Materials, or otherwise act on behalf of TBG. TBG will not be liable in relation to any damage or cost caused by the modification of these Terms and / or the termination of this Agreement.

5 PRICING POLICY IN AN ADVERTISEMENT ADDENDUM 1 Tommy Bahama Promotional Materials USAGE GUIDELINES The Tommy Bahama name may not be used in clearance, discount or off-price advertising of any kind, nor in connection with an off-price sale. This has long been a policy of the Tommy Bahama brand in all of its other product categories as well. For those retailers who price products within the store with both the suggested and the actual prices, that practice can be used within the store only. All advertising of the Tommy Bahama brand can include a single price for the products featured or shown. However, there can be no mention of a sale price, sale percentage off, regular price/sale price, old price/new price in the ad itself. This policy must be followed if the name Tommy Bahama and/or any photo, sketch or other depictions of the brand or its products are present in the ad. This applies to all communication media vehicles. **Note that if you are doing a targeted mailing or other marketing effort to your existing customer base that you may mention an exclusive sale or offer, but only to an existing customer base. It may not be published to the general public. The following are examples of advertising practices that are not allowed by the policy. Failure to adhere to this policy can and will result in the elimination of the account as a Tommy Bahama approved retailer: Percentage discounts of any amount are not permitted in any ads; no percent off reference is acceptable. DO: Men s Apparel 25% Off Today Only! DON T: Tommy Bahama Shirts 25% Off Today Only! Comparative price advertising such as regular price / new price is not acceptable. DO: Queen Luxury Bed Regular Price $3000, New Price $1800! DO: Tommy Bahama Bed Our Price $1800 DON T: Tommy Bahama Bed Regular Price $3000, Our Price $1800! Was / is pricing in advertising is not acceptable. DO: Tommy Bahama Watch - $495 DON T: Tommy Bahama Watch, Was $595, Now is $495

6 Tommy Bahama brand name, logos or any company identifiers cannot be in an ad that features off price or discount advertising of other lines/brands. DO: XYZ Denim 50% Off!! Discounts on ABC Shoes!! DON T: XYZ Denim 50% Off!! Tommy Bahama Shirts!! Discount on ABC Shoes!! No depiction of any Tommy Bahama products can be present in any ad that contains any version of off price or discount advertising. DO: Distribute an ad with various graphics promoting a weekend half-off sale. (No Tommy Bahama images) DON T: Distribute an ad with a photograph of a Tommy Bahama shirt that also promotes a weekend half-off sale. In the case of a storewide sale, there can be no reference in the advertising communication that the sale applies to Tommy Bahama, even if the product is discounted within the store. DO: Ocean s Island Shop Storewide Sale This Weekend Only!! All Brands on Sale!! DON T: Ocean s Island Shop Storewide Sale This Weekend Only!! Tommy Bahama, XYZ Denim, ABC Shoes, and so much more!! In the case of floor sample clearance events, the Tommy Bahama product can be included in the sale but not in the advertising and communication that takes place outside the store. DO: Ocean s Furniture Shop Storewide Sample Clearance Sale This Weekend Only!! XYZ Rugs, ABC Sofas, and so much more!! DON T: Ocean s Furniture Shop Storewide Sample Clearance Sale This Weekend Only!! Tommy Bahama Beds, XYZ Rugs, ABC Sofas!! Tommy Bahama images cannot be used without the brand name present. You must have a signed agreement on file. All creative must be on record and approved by Tommy Bahama. DO: Create a promotional point of sale sign promoting purchasing Tommy Bahama for Father s Day (though not on sale), and use an approved TBG Promotional Material image of our Tommy Bahama model. DON T: Create a promotional point of sale sign promoting purchasing a shirt for Dad on Father s Day, and use an approved TBG Promotional Material image of our Tommy Bahama model without our Tommy Bahama logo present. In addition, of course you can set your own prices, but as a courtesy, we ask that you refrain from advertising and / or pricing Tommy Bahama products with a 99 ending, as this implies that we are a price driven brand or that the product is being cleared. DO: Tommy Bahama Watch $ DON T: Tommy Bahama Watch $349.99

7 BRAND IDENTITY It is essential that the identity of the Tommy Bahama brand is maintained and communicated properly through marketing and advertising. It is very important to distinguish between your corporate name and the Tommy Bahama brand name. Only the brand name Tommy Bahama should be used directly in connection with the products. DO: Correct Usage (Retailer & Tommy Bahama) Joe s Tropical Store presents Tommy Bahama Outdoor Furnishings Joe s Tropical Store presents Tommy Bahama Outdoor Furniture s Indochine Collection Joe s Tropical Store presents the Indochine Collection by Tommy Bahama Outdoor Furniture DON T: Incorrect Usage (co-branding of manufacturer and Tommy Bahama) Joe s Tropical Store presents Tommy Bahama Outdoor Furniture by XYZ, Inc. Manufacturing Joe s Tropical Store presents XYZ, Inc. s Tommy Bahama Outdoor Furniture LOGO USAGE It is important to use the actual Tommy Bahama logo to increase brand recognition. The Tommy Bahama logo has been uniquely modified and should avoid being set as type. DO: DON T: Tommy Bahama THANK YOU FOR ADHERING TO THESE GUIDELINES!

8 ADDENDUM 2 TBG Marketing Department Contacts: Kyle Zitek Director of Marketing Tommy Bahama Group, Inc. 428 Westlake Avenue North Suite 388 Seattle, WA p: f: Kyle.Zitek@TommyBahama.com Kristin Storm Marketing Associate 428 Westlake Avenue North Suite 388 Seattle, WA p: f: Kristin.Storm@tommybahama.com Elissa Cotero Marketing Assistant 428 Westlake Avenue North Suite 388 Seattle, WA p: f: Elissa.Cotero@tommybahama.com