to the section or sections of Licensor's website that include the name or marks
of Distributor and/or Distributor's Exclusive Customers. Distributor will be
deemed to have approved the materials if Distributor fails to issue its
disapproval within 14 days after receipt. Licensor may not use any advertising
or promotional materials that Distributor has disapproved.
9.4 Distributor's Marketing Activities.
(a) Generally. Distributor must spend, on an annual basis, at least 1.5% of
Distributor's Gross Sales on advertising, marketing and promotion of the
Products. Licensor must approve all such advertising in accordance with
Section 9A(c). Distributor agrees to participate at Distributor's own expense in
all advertising, promotional and marketing programs that Licensor and
Distributor may mutually agree to from time to time. If Distributor fails to
spend at least 1.5% of its Gross Sales during the first year of the Term, the
difference between 1.5% of Gross Sales and the actual amount spent on
advertising during the first year of the Term shall be added to the minimum
required advertising expenditure for the second year. If Distributor fails to
spend the minimum required amount on advertising during the second or any
subsequent year, Distributor shall pay to Licensor the difference between the
minimum required expenditure on advertising and the actual amount spent on
advertising during the applicable year and Licensor shall deposit any such
amount into the marketing fund.
7
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
(b) Standards for Advertising. All advertisements and promotions that
Distributor creates or uses must be completely factual and ethical and comply
with all federal, state and local laws. Distributor must ensure that its
advertisements and promotional materials do not infringe upon the intellectual
property rights of others.
(c) Approval of Advertising. Before Distributor uses them, Licensor must approve
all advertising and promotional materials that Licensor did not prepare or
previously approve (including materials that Licensor prepared or approved and
Distributor modifies), including any website that Distributor maintains that
displays the Products and/or refers to the Marks. Licensor will be deemed to
have approved the materials if Licensor fails to issue its disapproval within 14
days after receipt. Distributor may not use any advertising or promotional
materials that Licensor has disapproved. Licensor reserves the right to
disapprove of any method or channel of marketing in its commercially reasonable
discretion. Except for any announcements or filings required by the Federal
securities laws, Distributor may not engage in any press releases, interviews or
publicly broadcasted discussions pertaining to the Products without Licensor's
prior approval.
(d) Approval of Artwork. Distributor acknowledges and agrees that all artwork to
be displayed on the Products for a particular Customer must be reviewed and
approved in accordance with Section 10.4.
(e) Publicity. Notwithstanding anything in this Agreement to the contrary,
Distributor may make any public release or announcement relating to transactions
contemplated