EXHIBIT 10.9
ADVERTISING SALES REPRESENTATION AGREEMENT
This ADVERTISING SALES REPRESENTATION AGREEMENT (the "Agreement") is made
effective the 1/st/ day of January 1999 by and between Total Sports Inc., a
Delaware corporation with offices at 000 Xxxxxxxxxxxx Xxxxxx, 0/xx/ Xxxxx,
Xxxxxxx, Xxxxx Xxxxxxxx 00000 (hereinafter referred to as "TOTAL"), and Xxxx.Xxx
L.L.C., a Delaware limited liability company with offices at 000 Xxxxxxxxxxxx
Xxxxxx, 0/xx/ Xxxxx, Xxxxxxx, Xxxxx Xxxxxxxx 00000 (hereinafter referred to as
"GOLF").
1. APPOINTMENT. GOLF hereby appoints TOTAL as its worldwide, exclusive
advertising sales representative to sell all on-line advertising and
sponsorship (collectively, the "Advertisements") for the Web Site (as
defined below) and any related publications or materials produced by GOLF,
subject in each case to the exceptions set forth on Schedule A. For the
purposes of this Agreement, "Web Site" shall mean the web site designated
by the URL "xxx.xxxx.xxx" and all other webpages that utilize such URL.
Except as set forth in this Agreement, including Schedule A, GOLF shall
retain no rights to sell advertising, sponsorship or promotional packages
for the Web Site or for related publications or materials produced by GOLF.
2. TOTAL'S OBLIGATIONS. TOTAL, at its own expense, shall use best efforts to
market and sell the Advertisements and shall collect all revenues, fees and
income from or attributable to the Advertisements sold hereunder. Except as
set forth in Schedule A, TOTAL shall have sole discretion in the sales of
Advertising, including forms of payment and the approval of credit;
provided, however, that the Golf board of directors shall have the right to
exclude from the Web Site any Advertising that does not comply with the
standard editorial policies and practices of Golf or its members. TOTAL, at
its own expense, shall be solely responsible for the collection of all fees
and payments related to the Advertisements including reimbursement for all
bad debts and uncollectable accounts.
3. GOLF'S OBLIGATIONS. Upon receipt of an agreement or purchase order to
provide Advertising, GOLF shall, to the extent practicable, work with TOTAL
and the advertiser or sponsor to obtain the required Advertising materials
from such advertiser or sponsor and fulfill all advertising and sponsorship
obligations. GOLF shall direct all Web Site advertising inquires or
opportunities, save as set out in Schedule A, to TOTAL, and shall advise
its Affiliates that Web Site advertising sales are to be arranged by and
through TOTAL.
Portions of this exhibit marked by [*] have been omitted pursuant to
a request for confidential treatment.
4. CONSIDERATION.
4.1 In consideration for the right to be appointed GOLF's exclusive
advertising sales representative, TOTAL shall pay GOLF $[*] on January
1, 2000 and thereafter on each January 1 that occurs during a term
of this Agreement.
4.2 In consideration for its services provided hereunder, commencing April
1, 1999 TOTAL shall retain [*]% of the Net Advertising Revenues (as
defined below) it collects pursuant to this Agreement. For the
purposes of this Agreement, "Net Advertising Revenues" shall mean all
fees and payments booked from the sale of Advertisements less any
third party commissions, fees, refunds, discounts and taxes. The Term
"Net Advertising Revenues" as used herein shall not include revenues
from the transactions described on Schedule A. Net Advertising
Revenues shall be calculated and distributed to GOLF on a monthly
basis not later than thirty (30) days following the last day of the
month.
4.3 TOTAL shall provide monthly reports to GOLF showing Net Advertising
Revenues and a detailed listing of all Advertisements provided on the
Web Site. The monthly reports shall also show all other revenues
attributable to the Web Site including revenues from commerce; amounts
invoiced and received from each Corporate Sponsor (as defined in the
Services Agreement); and Page Views (as defined in the Services
Agreement). With respect to the all advertising space sold for the Web
Site, TOTAL and GOLF shall mutually agree on (and the monthly report
shall show) cash discounts and allowances and adjustments from
Corporate Sponsors. The monthly reports shall be provided with the
payments made pursuant to Section 4.2.
5. INSPECTION OF BOOKS AND RECORDS. During the term of this Agreement, TOTAL
shall keep at its usual places of business complete, accurate and proper
books and records containing all of the documentation necessary to
substantiate payments made pursuant to Section 4. Upon GOLF's reasonable
request, TOTAL shall produce such records for inspection by an authorized
representative of GOLF at all reasonable times during TOTAL's normal
business hours. In the event that any audit or inspection conducted by GOLF
or its representative reveals that TOTAL has underpaid any Net Advertising
Revenues to GOLF, TOTAL shall immediately pay such underpayment to GOLF,
along with interest accrued on such amount at a rate of 8% per annum from
the date on which the amount was initially owed. In addition, in the event
that a payment by TOTAL is understated by more than 5% of the actual amount
due, then TOTAL shall also pay all reasonable costs of the inspection
and/or audit conducted by GOLF or its representatives (but only up to the
amount of the underpayment).
Portions of this exhibit marked by [*] have been omitted pursuant to a
request for confidential treatment.
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6. WARRANTIES AND DISCLAIMER
6.1 Each party hereby represents and warrants that (i) it is capable of
performing its obligations hereunder; (ii) it has the full right,
power, and authority to enter into and perform this Agreement; (iii)
the performance of its obligations hereunder will not breach any other
contract by which it is bound; and(iv) the performance of its
obligations hereunder will not violate any applicable laws or
regulations.
6.2 EXCEPT AS SET FORTH ABOVE, TOTAL MAKES NO OTHER REPRESENTATIONS OR
WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES IT IS
PROVIDING PURSUANT TO THIS AGREEMENT.
7. INDEMNIFICATION. Each party shall hold harmless the other party and its
officers, employees and agents from any demand, claim, loss, liability or
damage, including reasonable attorneys' fees, whether in tort or in
contract, related to or arising out of the defaulting party's (i) breach of
its representations or warranties, (ii) its gross negligence or willful
misconduct, or (iii) its acts or omissions related to this Agreement.
8. LIMITATION OF DAMAGES AND LIABILITY. NOTWITHSTANDING ANYTHING TO THE
CONTRARY CONTAINED IN THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO THE
OTHER HEREUNDER FOR INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES
(INCLUDING REASONABLE ATTORNEYS' FEES AND LOST PROFITS) THAT RESULT FROM OR
ARE RELATED TO THE OBLIGATIONS HEREUNDER, EVEN IF THE PARTY FROM WHOM
INDEMNITY IS SOUGHT HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES
(EXCEPT FOR DAMAGES CAUSED BY GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE
PARTY FROM WHOM INDEMNITY IS SOUGHT). IN ANY EVENT, NEITHER PARTY'S
AGGREGATE LIABILITY TO THE OTHER SHALL EXCEED ALL THE AMOUNTS RETAINED BY
TOTAL UNDER SECTION 4.2 HEREOF. NOTHING IN THIS SECTION SHALL LIMIT IN ANY
MANNER EITHER PARTY'S RIGHTS TO SEEK INJUNCTIVE RELIEF.
9. TERM AND TERMINATION.
9.1 Except as provided herein, this Agreement shall be effective as of the
date first set forth above and terminate on June 15, 2003.
9.2 This Agreement shall terminate immediately upon the termination of the
Services Agreement entered into by and between GOLF and TOTAL on July
29, 1998 (the "Services Agreement").
9.3 Upon material breach of any obligation under this Agreement by a
party, the other party shall have the right to terminate this
Agreement by written notice to the breaching party if such breach
remains uncured for a period of thirty (30) days after written notice
of such breach is sent to the breaching party.
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9.4 If either party files a bankruptcy petition, becomes the subject of an
involuntary bankruptcy petition and fails to cure such petition in its
favor within sixty (60) days, makes a general assignment for the
benefit of creditors, has a receiver appointed for its assets, or
ceases to conduct business, it shall be considered a material default
of this Agreement. Upon the happening of any of these events, the
defaulting party shall immediately send notice of default to the other
party.
9.5 Sections 6, 7, 8, 9 and 11 of this Agreement shall continue to bind
the parties after termination of the Agreement provided herein.
10. ASSIGNMENT. Neither party may assign or subcontract its rights or
obligations under this Agreement, either in whole or in part, without the
prior written consent of the other party, which shall not be unreasonably
withheld, and any attempt to do so shall be void and of no effect. An
assignee of either party authorized under this Agreement shall be bound by
the terms of this Agreement and shall have all of the rights and
obligations of the assigning party set forth in this Agreement. If any
assignee shall fail to agree to be bound by all of the terms and
obligations of this Agreement, then such assignment shall be deemed null
and void and of no force or effect.
11. MISCELLANEOUS
11.1 This Agreement constitutes the entire Agreement as to TOTALS'
advertising sales representation of GOLF and except as otherwise
contemplated herein, supersedes all prior agreements, written and
oral, relating to the subject matter hereof, to the extent directly
applicable.
11.2 Modifications and amendments to this Agreement, including any exhibit
or appendix hereto, shall be enforceable only if they are in writing
and are signed by authorized representatives of both parties.
11.3 No term or provision of this Agreement shall be deemed waived and no
breach excused unless such waiver or consent is in writing and signed
by the party claimed to have waived or consented.
11.4 Nothing contained in this Agreement shall be construed so as to
constitute either party as a partner or joint venturer or agent of the
other party, or to require either party to share profits, gains or
ownership interest in or from any property or activities. Each party
will be solely responsible for the payment of its employees'
compensation, including employment taxes, worker's compensation, and
any similar taxes associated with employment of its employees. No
party shall be liable for the debts, accounts, obligations or other
liabilities of the other party, including without limitation, the
other party's obligation to withhold payroll and income taxes.
11.5 All notices or other communications given under this Agreement shall
be in writing, and shall be sent by telex, facsimile, or registered
airmail to the party for which it is intended at the address stated at
the beginning of this Agreement for such party, or at such other
address as such party shall have designated for such
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purpose by written notice to the other party. Such notices shall be
considered as received two (2) business days after sending and
obtaining confirmation of receipt in the case of telex and facsimile
and ten (10) days in the case of registered airmail.
11.6 If any action at law or in equity is necessary to enforce the terms of
this Agreement, the prevailing party shall be entitled to reasonable
attorneys' fees, costs and expenses, in addition to any other relief
to which it may be entitled.
11.7 This Agreement will be governed by the laws of the State of Delaware
without regard to its conflicts of law provisions.
11.7.1 Any claim, controversy or dispute, whether sounding in
contract, statue, tort, fraud, misrepresentation or other
legal theory, whenever brought and whether between the
parties to this Agreement or between one of the parties to
this Agreement and employees, agents or affiliated
businesses of another party, shall be resolved by
arbitration as prescribed in this Section 11.7. The Federal
Arbitration Act, 9 U.S.C. (S) 1-15, not state law, shall
govern the arbitrability of all claims.
11.7.2 A single arbitrator engaged in the practice of law shall
conduct the arbitration under the then current rules of the
American Arbitration Association (AAA), unless otherwise
provided herein. The arbitrator shall be selected in
accordance with AAA procedures from a list of qualified
people maintained by AAA. The arbitration shall be conducted
in Raleigh, N.C., and all expedited procedures prescribed by
the AAA rules shall apply.
11.7.3 The arbitrator shall only have authority to award
compensatory damages and shall not have authority to award
punitive damages, other non-compensatory damages or any
other form of relief; provided, however, any party may apply
to any court having jurisdiction thereof for the entry of
injunctive relief to maintain the status quo under such time
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as the arbitration award is rendered or the controversy is
otherwise resolved. Each party shall bear its own costs and
attorneys' fees and the parties shall share equally the fees
and expenses of the arbitration. The arbitrator's decision
and award shall be final and binding, and judgment upon the
award rendered by the arbitrator may be entered in any court
having jurisdiction thereof.
11.7.4 If any party files a judicial or administrative action
asserting claims subject to arbitration, as prescribed
herein, and another party successfully stays such action
and/or compels arbitration of said claims, the party filing
said action shall pay the other party's costs and expenses
incurred in seeking such stay and/or compelling arbitration,
including reasonable attorneys' fees.
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11.8 Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the
remaining provisions hereof or affecting the validity,
enforceability or legality of such provision in any other
jurisdiction.
11.9 Neither party shall be liable for failure to deliver or
perform due to causes beyond its reasonable control, acts of
God, acts of the other party, acts of civil or military
authorities, fires, strikes, floods, earthquakes, epidemics,
war, riots, delays in transportation or the unavailability
of information or material to be furnished by the other
party.
11.10 The parties agree that the execution and delivery of this
Agreement satisfies all obligations, if any, that GOLF might
have to negotiate with TOTAL pursuant to Section 6.2 of the
Services Agreement.
11.11 The terms and conditions of this Agreement are considered
"Confidential Information" for purposes of Article 13 of the
Services Agreement.
IN WITNESS WHEREOF, the undersigned have caused this
Agreement to be executed on the date first above written.
XXXX.XXX L.L.C. TOTAL SPORTS INC.
By:________________________ By:_________________________
Xxxx Xxxxxx Xxxxx Xxxxxxx III
President Chief Executive Officer
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Schedule A
The exclusivity granted to TOTAL hereunder nevertheless allows:
(1) NBC Sports, MediaOne Interactive Services and their respective affiliates
to sell advertising on the Web Site and any related publications or
materials, to advertisers on or sponsors of their respective broadcast,
cable or satellite (including DBS) coverage of golf events and other golf-
related programming.
(2) revenue sharing arrangements between GOLF and event sponsors or other
enterprises; and
(3) partnership selling arrangements between GOLF and event sponsors or other
enterprises.
