EXHIBIT 10.3
ENDORSEMENT AGREEMENT
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THIS AGREEMENT, made and entered into as of this 26th of April 2004, by and
between World Golf League Inc., and Xxxx Xxxx, c/o Axcess Sports &
Entertainment, LLC, Xxx Xxxxxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxxxxxxx, XX 00000:
WITNESSETH:
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WHEREAS, Player (Xxxx Xxxx) is recognized as a highly skilled professional
golfer.
WHEREAS, Company (World Golf League, Inc.) desires to obtain the rights to
use the name, fame, image and athletic renown of Player in connection with the
advertisement and promotion of its products as provided herein.
NOW, THEREFORE, the parties agree as follows:
1. Definitions. As used herein, the following terms shall be defined as set
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forth below:
(a) "Contract Period" shall mean that period of time commencing on April 26th,
2004 and concluding April 26th 2004, unless terminated sooner as provided
herein.
(b) "Services" shall mean use of Player in television advertising and/or
commercial-tie-ins with Company products/services
(c) "Player Identification" means the right to use, subject to the provisions
hereof, Player's name, fame, nickname, initials, autograph, voice, video or film
portrayals, facsimile signature, photograph, likeness and image or facsimile
image, and any other means of endorsement by Player used in connection with the
advertisement and promotion of Company's Services.
(d) "Contract Territory" shall mean Worldwide.
2. Grant of Rights. In consideration of the remuneration to be paid to
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Player pursuant hereto, Player grants to Company the right and license during
the Contract Period to use the Player Identification solely in connection with
the advertisement and promotion of Company's Services within the Contract
Territory solely in connection with the advertisement and promotion of Services.
It is understood that Company may not use the Player Identification in
connection with any items for sale or resale, other than Company Services as
specified herein. The foregoing rights to use the Player Identification is
limited to television, radio and print advertising, advertising published over
the Internet (provided such material is limited to advertising only), public
relations materials, point-of-sale displays, free standing inserts, direct mail
and billboards. Company shall ensure that all uses of Player Identification
comply with applicable law.
3. Prior Approval. Company agrees that neither use of the Player
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Identification nor any item used in connection with the Player Identification
will be made hereunder unless and until the same has been approved by player.
Player agrees that any material, advertising or otherwise, submitted for
approval as provided herein may be deemed by Company to have been approved
hereunder if the same is not disapproved in writing within ten (1) business days
after receipt thereof. Player agrees that any material submitted hereunder will
not be unreasonably disapproved and, if it is disapproved, that Company will be
advised of the specific grounds therefore. If Company desires immediate approval
of advertising material hereunder, Company shall have the right to directly
contact Player's authorized agent to obtain such approval. Company agrees to
protect, indemnify and save harmless Player and his authorized agent, or any of
them, from and against any and all expenses, damages, claims, suits, actions,
judgments and costs whatsoever, arising out of, or in any way connected with,
any advertising material furnished by, or on behalf of, Company.
4. Services of Player. (a) If Company desires to utilize the services
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of Player at a Company sponsored event, Player agrees to make (1) personal
appearance as mutually agreed upon and at places reasonably convenient to his
schedule. Such appearances shall not exceed (2) hours unless otherwise agreed
upon. Company connection with such services. Company further understands that
failure to utilize services of Player pursuant to this section shall not result
in any reduction in payments to Player hereunder nor may the obligation to
provide services be carried beyond the Contract Period. The obligation of Player
to provide his services is subject to the condition that payments to Player are
current and up to date.
(b) Company will desire to utilize services of Players for a one to two hour
commercial taped tie-in with Company, Player and Company must mutually agree
upon reasonable time and place of commercial activity.
(c) If Company desires to utilize the services of Player as a model in
connection with Company advertising to promote its products in excess of one (1)
personal appearance and the commercial one to two hour tie-in as mutually agreed
upon and at places reasonably convenient to his schedule, each additional
appearance will be at a rate of $40,000 per day. Any additional appearances by
Player at $40,000 shall be subject to Player's sole approval, no matter how
arbitrary or capricious Player might be in refusal. Such appearances shall not
exceed two (2) hours unless otherwise agreed upon. Company agrees that it will
reimburse Player for all reasonable travel, lodging and meal expenses incurred
by Player in connection with such services. Company further understands that
failure to utilize services of Player pursuant to this section shall not result
in any reduction in payments to Player hereunder nor may the obligation to
provide services be carried beyond the Contract Period. The obligation of Player
to proved his services is subject to the condition that payments to Player are
current and up to date.
(d) Should Company use Player in television advertising to promote Company's
Services, Company will make all applicable required union scale and pension and
welfare payments. Company and Player will mutually agree on the portion of the
Annual Fee that shall be allocated for such broadcast services.
(e) If Company confirms Player availability and an illness, injury or other
cause beyond Player's control prevents Player's appearance on that date, then
the parties will reschedule for another date, subject always to Players prior
bona fide commitments. Player non-appearance for the foregoing reasons in not a
breach of this Agreement and Player is not responsible for any expenses incurred
by Company in connection with that nonappearance.
5. Marketing Rights. The general marketing rights are outlined below.
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(a) During the term of the Agreement, Company is granted use of Player likeness
and facsimile in advertising and promotion of the Company.
(b) During Contract Period, one (1) personal appearance (not to exceed two
hours). Player and Company will mutually agree upon the nature of the
appearances (may include but not limited speaking engagements, golf exhibitions,
appearances at corporate meetings). Time and place of appearances to be mutually
agreed upon by Player and Company.
6. Payments. Base fee payment of $75,000 shares of World Golf League Stock
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(the stock must be available for sale immediately) payable upon Agreement
execution. Additional appearances above and beyond the one (1) guaranteed
personal appearance and commercial tie-in, Company will pay Player within five
(5) days of the execution of this contract. Player may elect to have payments
made by check, wire transfer, or bank transfer. Unless such election has been
made in writing, all payments shall be made by check drawn to the order of
"Axcess Sports, Inc." Past due payments hereunder shall bear interest at the
rate of (a) one and one-half percent (1-1/2%) per month, or (b) the maximum
interest rate permissible under law, whichever is less. All amounts herein are
in United States Dollars.
7. Authorized Agent. Player hereby designates Axcess Sports Inc, Attention
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Xxxxxxx Xxxxxxx as his authorized agent for all purposes hereunder. All notices
of submissions to be made or delivered by Company to Player pursuant to this
Agreement shall be delivered to said address free of all charges such as, for
example, shipping charges and customs charges. In the event that any such
charges are paid by Player or by his authorized agent, Company agrees to make
prompt reimbursement.
8. Default. (1) if either party at any time during the Contract Period
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shall (i) fail to make any payment or any sum of money herein specified to be
made, or (ii) fail to observe or perform any of the covenants, agreements or
obligations hereunder (other than the payment of money), the nondefualting party
may terminate this Agreement as follows: as to (i) if such payment is not made
within ten (10) days after the defaulting party shall have received written
notice of such failure to make payment, or as to (ii) if such default is not
cured within thirty (30) days after the defaulting party shall have received
written notice specifying in reasonable detail the nature of such default. In
order to be a sufficient notice hereunder, any such written notice shall specify
in detail each item of default and shall specify the provision of this Agreement
which applies to each item of default, and shall specify in detail the action
the defaulting party is required to take in order to cure each item of default.
The termination rights set forth in this section shall not constitute the
exclusive remedy of the nondefaulting party hereunder, however, and if default
is made by either party hereunder, the other may resort to such other remedies
as said party would have been entitled to if this section had been omitted from
the Agreement, subject to the terms of this Agreement. Termination under the
provision of this section shall be without prejudice to any rights or claims
which the terminating party may otherwise have against the defaulting party, and
if Company is the defaulting party, Company shall be responsible for any and all
payments due under the terms of this Agreement in addition to other liabilities
set forth above.
(b) If Company shall become bankrupt or insolvent, or if Company's business
shall be place din the hands of a receiver, assignee or trustee, whether by
voluntary act of Company or otherwise, the Contract Period shall, at the
election of Player, immediately terminate.
9. Termination for Cause
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Player may terminate this agreement for cause if either of these two events
occur:
(PGA Tour Prohibition)
(a) If during the term of this agreement, the PGA Tour or any other authorized
group of the PGA Tour mandates against Player from fulfilling his
responsibilities pursuant to this agreement the Player will be permitted to
terminate this agreement for cause and have no monetary obligations to company
going forward.
(Conduct Unbecoming)
(b) To the extent Company engages in any conduct or activity that sheds a
negative or disparaging light on Company and/or Player- then Player may
terminate this agreement for cause.
10. Representation. Company hereby represents/ warrants and covenants that
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its business is in good standing and not currently in violation of any federal,
state, or local laws, regulations, rules or ordinances.
11. Confidentiality. Company accepts that compensation paid to Player is
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private, confidential, and a trade secret. Company also agrees that violation of
said confidentiality is hard to determine and Company also agrees to $100,000 in
liquidated damages should they violate Player's confidentiality.
12. Use of Player Identification After Termination. From and after the
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termination of the Contract Period all of the rights of Company to the use of
the Player Identification shall cease absolutely and Company shall not
thereafter use or refer to the Player Identification in advertising or promotion
in any manner whatsoever. It is further agreed that following termination of the
Contract Period, Company shall not advertise, promote, distribute or sell any
item whatsoever in connection with the use of any name, figure, design, logo,
trademark or trade name similar to or suggestive of the Player Identification.
13. Trademarks. Company agrees that it till not file, during the Contract
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Period or thereafter, any application for trademark registration or otherwise
obtain or attempt to obtain owndership0 of any trademark or trade name within
the Contract Territory or in any other country of the world which consists of
the Player Identification or any xxxx, design or logo intended to make reference
to Player. In the event that, prior to commencement of the Contract Period,
Company has filed one or more applications for registration of any such
trademark, or otherwise has obtained any rights to such trademark, Company
agrees to cause such applications and/or trademarks to be assigned and
transferred to Player forthwith.
14. Reservation of Rights. All rights not herein specifically granted to
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Company shall remain the property of Player to be used in any manner the Player
deem appropriate. Company understand that Player have reserved the right to
authorize others to use Player Identification within the Contract Territory and
during the Contract Period in connection with all tangible and intangible items
and services other than Services themselves.
15. Indemnity. Company and Player mutually agree to protect, indemnity and
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save harmless party, and its authorized agent, or any of them, from and against
any and all expenses, damages, claims, suits, actions, judgments and costs
whatsoever, including reasonable attorney's fees, arising out of, or in any way
connected with, actions or omissions of other party, any advertising material
furnished by, or on behalf of, other party or any claim or action for personal
injury, death or other cause of action involving alleged defects in other
party's Services or products. Company agrees to provide and maintain, at its own
expense, general commercial and errors and omissions insurance with limits no
less than $3,000,000 and naming Player as an additional named insured. Within
thirty (30) days from the date hereof, Company will submit to Player evidence of
such policy, requiring that the insurer shall not terminate or materially modify
such without written notice to Player at least twenty (20) days in advance
thereof.
16. Limited Liability. Notwithstanding anything to the contrary herein, in the
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event Company incurs any expenses, damages or other liabilities (including,
without limitation, reasonable attorney's fees) in connection with the
performance or non-performance of any term or provision hereof, Player liability
to Company shall not exceed the remuneration, excluding reimbursement of
expenses, actually paid to Player by Company. In no event will Player be liable
for any indirect, incidental, reliance, special or consequential damages arising
out of the performance or non-performance of the Agreement, whether or not
Player had been advised of the possibility of such damages.
17. Waiver. The failure of either party at any time or times to demand
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strict performance by the other of any of the terms, covenants or conditions set
forth herein shall not be construed as a continuing waiver or relinquishment
thereof and each may at any time demand strict and complete performance by the
other of said terms, covenants and conditions. Any waiver of such rights must be
set fort in writing.
18. Severability. If any provision of this Agreement shall be declared
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illegal, invalid, void or unenforceable by any judicial or administrative
authority, the validity of any other provision and of the entire Agreement shall
not be affected thereby.
19. Assignment. This Agreement shall bind and inure to the benefit of Player,
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and the successors and assigns of Player. The rights granted Company hereunder
are personal to it, shall be used only by it or its affiliate and shall not
without the prior written consent of Player be transferred or assigned to any
other party, except to World Golf League, Inc. Company may transfer or assign
right to World Golf League, Inc. without prior written notice or consent.
20. Governing Law/Mediation/Arbitration. (a) This agreement shall be governed
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by, and its provisions enforced in accordance with, the laws of the State of
Florida, without regard to its principals of conflicts of laws.
(a) Any dispute arising under this Agreement will be first referred for
resolution to Company and Player respective designees to the extent that the
designees of the parties cannot resolve the dispute within five (5) business
days of referral to them, the parties agree to try in good faith to settle the
dispute by non-binding mediation under the Commercial Mediation Rules of the
American Arbitration Association before resorting to arbitration. If after three
(3) days of mediation with the mediator, the dispute is not settled, or if the
mediator declares an impasse prior to the end of the three (3) day period, the
aggrieved party may pursue binding arbitration as set forth below. Any and all
mediation hearings shall be held in Jacksonville, FL unless the parties agree
otherwise.
(b) In the event a dispute arises under this agreement which cannot be resolved
through mediation, such dispute shall be submitted to arbitration and resolved
by a single arbitrator (who shall be a lawyer not employed by or associated with
either party to this agreement) in accordance with the Commercial Arbitration
Rules of the American Arbitration Association then in effect. All such
arbitration shall take place at the office of the American Arbitration
Association located in Cleveland, Ohio. Each [arty is entitled to depose one (1)
fact witness and any expert witness retained by the other party, and to conduct
such other discovery as the arbitrator deems appropriate. The award or decision
rendered by the arbitrator shall be final, binding and convulsive and judgment
may be entered upon such award by any court.
21. No Joint Venture. This Agreement does not constitute and shall not be
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construed as constituting an association, partnership, joint venture or
relationship of principal and agent or employer and employee between Player and
Company. Neither party shall have any right to obligate or bind the other party
in any manner whatsoever, and except as expressly set forth herein, nothing
herein contained shall give, or is intended to give, any rights of any kind to
any third person.
22. Entire Agreement. This writing constitutes the entire agreement between
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the parties hereto and may not be changed or modified except by a writing signed
by the party or parties to be charged thereby.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the date first above written.
World Golf League
By: /s/ XXXXXXX X. XXXXXXX /s/ XXXX XXXX
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Name: Xxxxxxx X. Xxxxxxx Player: Xxxx Xxxx
Title: President and CEO
