Exhibit 10.1
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Confidential Treatment has been requested with respect to portions of the
agreement indicated with an asterisk [*]. A complete copy of this agreement,
including the redacted terms, has been separately filed with the Securities and
Exchange Commission.
EXECUTION COPY
License and E-Commerce Agreement
This License and E-Commerce Agreement (the "Agreement"), is entered into as
of July 6, 2001 (the "Effective Date"), by and between The Sports Authority,
Inc., a Delaware corporation ("TSA"), The Sports Authority Michigan, Inc., a
Michigan corporation ("TSAMI"), and Global Sports Interactive, Inc., a
Pennsylvania corporation ("GSI" or "Licensee"), [*]. TSA and TSAMI are
sometimes collectively referred to as the "Licensor".
Recitals
WHEREAS, Licensee is in the business of developing and operating e-commerce
sporting goods businesses for specialty retailers, general merchandisers,
Internet companies and media companies and providing for those companies
Licensee's proprietary technology and product database, Web site design and
development capabilities, order processing capabilities, customer service
capabilities, fulfillment capabilities, centralized inventory management, and
on-line marketing to enable those companies to offer e-commerce to their
customers;
WHEREAS, Licensor and its retailing subsidiaries are in the business of
selling Sporting Goods (as hereinafter defined) and other related goods and
services through the TSA Stores (as hereinafter defined);
WHEREAS, through XxxXxxxxxXxxxxxxxx.xxx, Inc., a subsidiary of Licensee
owned in part by TSA (the "Joint Venture"), Licensee operated the XXX.xxx Site
(as defined below) on behalf of Licensor, including offering and selling
Sporting Goods, and providing inventory management, Web Site design and
development services, hosting, maintenance and operations services and support,
order processing, fulfillment and returns services and support, customer
service, on-line marketing and other related services and support;
WHEREAS, Licensor and Licensee recently restructured their relationship to
terminate the Joint Venture. Licensee shall continue to provide the services
and support necessary to operate the XXX.xxx Site but shall provide such
services and support directly on behalf of Licensor rather than through the
Joint Venture;
WHEREAS, Licensor desires to continue to extend certain of its lines of
retail distribution through the XXX.xxx Site;
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WHEREAS, Licensor has made a substantial investment to establish its trade
name, trademarks, service marks, trade dress and goodwill among consumers and
suppliers so as to create a retail identity connoting a specific manner in which
merchandise is presented and sold through the TSA Stores;
WHEREAS, both Licensor and Licensee recognize that the protection of
Licensor's trade name, trademarks, service marks, trade dress and goodwill, as
well as the overall success of the XXX.xxx Site, depends in part upon consumers
perceiving the XXX.xxx Site to continue to be an extension of the TSA Stores
that is as consistent as possible with those stores with respect to merchandise
quality, availability, pricing, terms of sale and other aspects of the retail
purchasing experience;
WHEREAS, Licensor and Licensee expect that the XXX.xxx Site will continue
to complement the TSA Stores, enhancing Licensor's competitive position relative
to other sellers of the same or similar merchandise by offering to Licensor's
customers an on-line shopping experience in addition to Licensor's in-store
shopping experience; and
WHEREAS, Licensor and Licensee desire to have Licensee continue to provide
to Licensor a full e-commerce solution that will be, except as otherwise
provided herein, the exclusive means by which Licensor will sell Sporting Goods
through the Internet (as defined below) during the Term (as defined below) of
this Agreement.
NOW, THEREFORE, in consideration of the promises contained herein, TSA,
TSAMI and GSI, intending to be legally bound, agree as follows:
Section 1. Definitions
Whenever used in this Agreement, the following capitalized terms shall have the
following specified meanings:
1.1 "Advertising and Marketing Partner(s) of Licensee" means members of
Licensee's affiliate programs, search engines, portals, community sites, content
sites, on-line retailers, shopping, regional and industry directories, push
sites, and any other Internet sites engaged by Licensee to attract Customers to
the XXX.xxx Site, with whom Licensee contracts for exchanges of advertising and
promotional services and/or any form of compensation.
1.2 "Affiliate(s)" means, as to any Person, any other Person that directly or
indirectly controls (through one or more intermediaries), is controlled by or is
under common control with such Person, but only as long as such control exists.
For purposes of this Section "control" means the ownership or control of fifty
percent (50%) or more of all of the voting power of the shares (or other
securities or rights) in question or the power to direct or cause the direction
of management or policies of such Person, whether through voting securities, by
contract or otherwise.
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1.3 "Business Day" means any day which is not a Saturday, Sunday or official
federal holiday in the United States.
1.4 "Confidential Information" means all nonpublic information relating to a
Party or its Affiliates that is designated as confidential or that, given the
nature of the information or the circumstances surrounding its disclosure,
reasonably should be considered as confidential. Confidential Information
includes (a) all nonpublic information relating to a Party's or its Affiliates'
product plans, designs, product costs, product prices, other costs, allowances,
rebates, assortment plans, advertising plans, strategies or buys, marketing
plans or strategies, technology, business plans, promotional and marketing
activities, finances, strategic business opportunities, personnel, research,
development, know-how and other business and financial affairs, (b) all third
party information that a Party or its Affiliates is obligated to keep
confidential, (c) all information obtained by a Party in connection with any
audit conducted hereunder, and (d) all information of the type specifically
designated as such in this Agreement. Confidential Information may be contained
in tangible materials, such as drawings, data, specifications, reports and
computer programs, or may be in the nature of unwritten knowledge. Confidential
Information does not include any information that (i) has become publicly
available without breach of this Agreement, (ii) can be shown by documentation
to have been known to the receiving Party at the time of its receipt from the
disclosing Party or its Affiliates, (iii) is received from a third party who did
not acquire or disclose such information by a wrongful or tortious act, or (iv)
can be shown by documentation to have been independently developed by the
receiving Party without reference to any Confidential Information.
1.5 "Customer" means a Person who accesses the XXX.xxx Site in any manner,
whether or not a purchase is made or other Services or Sporting Goods are
received from, by or through the XXX.xxx Site.
1.6 "Customer Information" means any and all identifying information collected
or possessed by Licensee and relating to Customers of the XXX.xxx Site,
including information relating to Customers referred by or through the
Advertising and Marketing Partners of Licensee to the XXX.xxx Site. Such data
may include names and other identifying information such as addresses, phone
numbers and e-mail addresses, credit card numbers and related data, preferences,
gift and shipping information, purchase, payment and connection histories,
correspondence, inquiries, and the skus and quantities of items purchased by any
such persons. "Customer Information" shall not include (i) Financial
Information, or (ii) any information obtained by Licensee from Customers
independent of the transactions contemplated pursuant to this Agreement or the
prior agreements referenced Section 19.12.
1.7 "Databases" means all data structures, data schema, database dictionaries,
attributes, validation tests for each element, table sizes and formats, access
requirements, data dependencies and other elements involving the management or
storage of data on or for the XXX.xxx Site, and all refinements, updates,
releases, improvements and enhancements thereto, all Intellectual Property
Rights embedded therein (except those owned by Licensor) and all software
applications created specifically for management and use of the GSI Furnished
Materials,
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Customer Information, Financial Information and Licensed Property, but excluding
the Customer Information, Financial Information and Licensed Property per se.
1.8 "Designated URL" means the URL xxxx://xxx.xxxxxxxxxxxxxxxxxx.xxx, or any
successor or replacement URL, as mutually designated by the Parties.
1.9 "Financial Information" means all information relating to the financial
performance and/or operations of the XXX.xxx Site which is not specific to a
Customer, does not refer to or identify any specific Customer, and cannot be
used, alone or in conjunction with other information, to identify any specific
Customer.
1.10 "Fiscal Year" means Licensee's fiscal year. Licensee shall give at least
ninety (90) days prior notice to Licensor of any change in designation of
Licensee's Fiscal Year.
1.11 "GSI Content" means any and all content or information owned or controlled
(e.g., by license other than this Agreement, or otherwise) by Licensee or any of
its Affiliates, including, text, graphics, photographs, video and audio,
together with all Intellectual Property Rights associated therewith, and
furnished by Licensee or any of its Affiliates in connection with the XXX.xxx
Site or otherwise in connection with the performance of its obligations under
this Agreement. "GSI Content" includes any adaptation, modification, improvement
and/or derivative work of any GSI Content that is developed by any Party or
jointly by the Parties. "GSI Content" shall not include any Licensed Property
or any derivative work of any Licensed Property whether developed by any Party
or jointly by the Parties.
1.12 "GSI Furnished Materials" means any and all GSI Content, Databases of GSI
and GSI Technology, together with all Intellectual Property Rights associated
therewith, that (a) is owned or controlled (e.g. by license other than this
Agreement, or otherwise) by Licensee or any of its Affiliates, and (b) is made
available by Licensee of any of its Affiliates in connection with the
transactions contemplated hereunder. "GSI Furnished Materials" includes any
adaptation, modification, improvement and/or derivative work of any GSI
Furnished Materials that is developed by any Party or jointly by the Parties.
"GSI Furnished Materials" shall not include any Licensed Property or any
derivative work of any Licensed Property whether developed by any Party or
jointly by the Parties.
1.13 "GSI Partners" means any third party, [*] with which Licensee or any its
Affiliates contracts to develop and operate all or a substantial portion of such
third party's Web Site for e-commerce businesses in the field of Sporting Goods.
By way of example, as of the Effective Date, such GSI Partners include [*]. The
specific GSI Partners shall be subject to change from time to time throughout
the Term.
1.14 "GSI Technology" means all HTML, Java and other language files (and/or all
derivatives thereof), graphics files, animation files, data files, Databases,
technology, method, user interface, process, software, functionality, features,
scripts and programs, both in object and source code form, and all documentation
and all other information and materials relating thereto, together with all
Intellectual Property Rights associated therewith, used by or on behalf of
Licensee in the
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design, development, hosting, maintenance and operation of the XXX.xxx Site or
otherwise made available to Licensor hereunder. "GSI Technology" includes any
adaptation, modification, improvement and/or derivative work of any GSI
Technology that is developed by any Party or jointly by the Parties. "GSI
Technology" shall not include any Licensed Property or any derivative work of
any Licensed Property, whether developed by any Party or jointly by the Parties.
1.15 "GSI Venture" or "GSI Ventures" means any Person engaged in the sale of
goods over the Internet, including (i) Licensee or any of its Affiliates, or
(ii) any Person in which Licensee or any of its Affiliates owns or controls
fifty percent (50%) or more of the voting power of the capital stock (or other
securities or rights) or the power to direct or cause the direction of
management or policies of such Person, whether through voting securities, by
contract or otherwise; provided such Person directly or indirectly generates in
excess of [*] of its revenues from the sale of Sporting Goods.
1.16 "Intellectual Property Rights" means any and all now or hereafter known
tangible and intangible (a) rights associated with works of authorship
throughout the universe, including copyrights or works of copyright, moral
rights, and mask-works, (b) trademark, trade dress, service xxxx and trade name
rights and similar rights, (c) trade secret rights, (d) patents, designs,
algorithms and other industrial property rights, (e) all other intellectual and
industrial property rights of every kind and nature throughout the universe and
however designated (including domain names, logos, "rental" rights and rights to
remuneration), whether arising by operation of law, contract, license, or
otherwise, and (f) all registrations, initial applications, renewals,
extensions, continuations, divisions or reissues thereof now or hereafter in
force (including any derivative rights in any of the foregoing).
1.17 "Internet" means the global network of interconnected computer networks,
each using the Transmission Control Protocol/Internet Protocol and/or such other
standard network interconnection protocols as may be adopted from time to time,
which is used to transmit content that is directly or indirectly delivered to a
computer or other digital electronic device for display to an end-user accessing
a URL, whether such content is delivered through on-line browsers, off-line
browsers, or through "push" technology, electronic mail, broadband distribution,
satellite, wireless or other successor technologies.
1.18 "Land Based Stores Gift Certificates" means gift certificates, pre-
programmed gift cards, and other successor forms of gift certificates or cards,
bearing the marks THE SPORTS AUTHORITY and/or THE SPORTS AUTHORITY & Design, in
fixed denominations, printed and distributed by Licensor and which are
redeemable only in the TSA Stores and not through the XXX.xxx Site.
1.19 "Licensed Property" means the Marks, Names, TSA Content and the Look and
Feel, together will all Intellectual Property Rights associated therewith, which
Licensor has licensed to Licensee hereunder. "Licensed Property" includes any
adaptation, modification, improvement and/or derivative work of any Licensed
Property that is developed by any Party or jointly by the
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Parties. "Licensed Property" does not include any GSI Furnished Materials or any
derivative work of any GSI Furnished Materials, whether developed by any Party
or jointly by the Parties.
1.20 "License Guidelines" means the clearance, form, format and use restrictions
and instructions set forth in Exhibit A attached hereto.
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1.21 "Look and Feel" means, either with respect to the XXX.xxx Site or the TSA
Stores, as the case may be, the appearance, coloring, graphics, fonts, and other
look and feel characteristics of the XXX.xxx Site or TSA Stores, as the case may
be, which are unique to the XXX.xxx Site or TSA Stores, as the case may be, and
are generally consistent across all media and applications, and which suggest a
common identity for the XXX.xxx Site or the TSA Stores, as the case may be.
1.22 "Marks" shall mean the xxxx THE SPORTS AUTHORITY in English in block
letters and any equivalent in foreign language characters, certain THE SPORTS
AUTHORITY logotypes, and such other trademarks and service marks of Licensor,
which are proprietary to Licensor, all as more specifically described in Exhibit
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B attached hereto and incorporated herein, as Exhibit B may be modified from
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time to time in writing by Licensor as set forth in Section 2.1(b), together
with all associated Intellectual Property Rights, including trademark and
service xxxx applications and registrations therefor.
1.23 "Materials" shall mean exterior and interior signs, billboards, flags,
banners, buttons, Web pages or portions of Web pages, frames, links, icons,
packaging, labels, print, electronic and broadcast advertising and promotional
media, indexes and pages on Websites (whether visible or not to the general
public), meta-tags, manuals, brochures, flyers, posters, sales literature,
business forms, gift certificates, credit cards, debit cards, membership or
consumer loyalty or gift program cards and related materials, stationery,
employee uniforms, badges, merchandise bags and boxes, baskets, trolleys and
carts, sales receipts and charge slips, tickets and tags, business forms and
stationery, and the like, to the extent that such materials bear any of the
Marks and to the extent such materials are developed, controlled or authorized
by Licensee (or with respect to the Core Marks, by the Advertising and Marketing
Partners of Licensee) for use on or in connection with furnishing the Services,
Sporting Goods, advertising or promoting the XXX.xxx Site, or otherwise in the
operation of the XXX.xxx Site.
1.24 "Names" means those Internet domain names registered in the name of either
TSAMI or TSA, or both, together with any additions as may be provided to
Licensee from time to time in writing by Licensor, or any deletions as mutually
agreed upon by the Parties, [*].
1.25 "Net Revenue(s)" means [*].
1.26 "Non-Shopping Features" means such content and information on the XXX.xxx
Site, provided by or through Licensor, that contain or make accessible as part
of the XXX.xxx Site such information as the following: TSA corporate information
(e.g., historic background, mission statement, names of officers and directors),
store locator, TSA public financial information (e.g., SEC filings, annual
reports, etc.), TSA's press releases (but not Licensee's press releases, unless
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Licensor has reviewed and approved the same), community programs, employment
opportunities in TSA Stores or corporate positions, frequently asked questions
(concerning the TSA Stores and not the XXX.xxx Site), a "contact us" section
relating to the TSA Stores, and any other information which serves to inform
Customers about the TSA Stores, all as set forth in greater detail in Exhibit D
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attached hereto.
1.27 "On-Line Gift Certificates" means gift certificates, pre-programmed cards,
and other successor forms of gift certificates or gift cards, bearing the marks
THE SPORTS AUTHORITY, THE SPORTS AUTHORITY & Design, XXXXXXXXXXXXXXXXXX.XXX,
and/or XXXXXXXXXXXXXXXXXX.XXX & Design, in fixed denominations, printed and
distributed by Licensee and which are redeemable only through the XXX.xxx Site
and not through the TSA Stores.
1.28 "Order" means an order to purchase Sporting Goods or Services.
1.29 "Party" means Licensor or Licensee; "Parties" shall mean both of them.
1.30 "Person" means, whether or not capitalized, any individual, corporation
(including any non-profit corporation), general or limited partnership, limited
liability company, joint venture, estate, trust, association, organization,
labor union, or other entity or governmental body.
1.31 "Private Label Merchandise" means any Sporting Goods offered and sold under
any trademarks owned by Licensor, whether or not such trademarks have been
registered in Licensor's name.
1.32 "Royalties" means the compensation for use of the Licensed Property due and
payable from Licensee to Licensor hereunder, as set forth in greater detail in
Exhibit E and pursuant to Section 11.2. Royalties shall accrue at the time when
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any Order is shipped to a Customer.
1.33 "Services" means those services: (a) offered by Licensee to Customers at
or through the XXX.xxx Site, including, without limitation, retail store
services in the field of Sporting Goods, as well as, to the extent Licensee
chooses to offer in its sole discretion, Sporting Goods assembly, warranty
programs, repair and maintenance, racquet stringing, layaway, customer loyalty
and gift card programs, and like services; and (b) those advertising and
promotional services furnished by Licensee directly or by or through Advertising
and Marketing Partners of Licensee, including, without limitation, services
intended to increase Customer traffic and purchases at the XXX.xxx Site, and
services intended to attract Customers to the XXX.xxx Site from the Advertising
and Marketing Partners of Licensee.
1.34 "Sporting Goods" means sports, recreational, athletic and/or fitness-
related (i) equipment (e.g., bats, balls, gloves, racquets, clubs, helmets,
skis, fishing equipment, exercise equipment, table games, memorabilia and
licensed products), (ii) apparel (e.g., jerseys and exercise clothing) and (iii)
footwear. "Sporting Goods" shall also include any other specific products that
are sold from time to time by Licensor in the TSA Stores.
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1.35 "Term" means the period set forth in Section 17.1 of this Agreement.
1.36 "Territory" means throughout the world, excluding Japan and excluding [*].
1.37 "TSA Competitor" means any Person (other than Licensor and each of its
Affiliates) which directly or indirectly derives [*] or more of its revenues
from the retail or wholesale sale or distribution of Sporting Goods, whether by
mail order, home shopping through audio or video programming, over the Internet,
or from land-based stores located in the Territory. However, a Sporting Goods
manufacturer or distributor that supplies Licensee on a wholesale basis that
also happens to operate Sporting Goods retail stores or a business-to-consumer
e-commerce Web Site of its own, shall not be considered a TSA Competitor for
purposes of this Agreement if the subject manufacturer or distributor derives
less than [*] of its revenues from such Sporting Goods retail stores and/or Web
Sites.
1.38 "TSA Content" means: (a) all Non-Shopping Features, text, graphics,
photographs, video, audio and/or other data or information (excluding Customer
Information) owned or controlled by Licensor and furnished by Licensor to
Licensee and intended solely for use in connection with the XXX.xxx Site; (b)
Licensor selected print advertisements for the TSA Stores or the goods and
services offered by Licensor in the TSA Stores, including run of press and
insert advertisements which appear in newspapers and magazines, as well as
printed in store signage, point of sale and display signage and information
promoting events and the goods and services offered in the TSA Stores; and (c)
such information concerning the goods and services offered by Licensor in the
TSA Stores in the U.S. as Licensor owns or controls, and which Licensor
furnishes to Licensee for use in connection with the XXX.xxx Site, including
information which is related to the sourcing, manufacturing, development,
design, fabrication, construction, test procedures, performance features,
quality control standards, merchandise specifications, reliability standards,
distribution, costs, allowances, pricing, rebates, sizes, colors, decoration,
display, margins, vendor economic information, and similar information and know-
how necessary to the procurement, merchandising, inventory management and sales
of such goods and services in the TSA Stores.
1.39 "TSA Stores" means any land-based retail store operated by TSA or any its
Affiliates under the principal name and xxxx THE SPORTS AUTHORITY and related
AUTHORITY marks, and devoted to the sale of Sporting Goods.
1.40 "XXX.xxx Site" means that Web Site, the primary Home Page for which is
identified by the Designated URL (and any successor or replacement Web Site),
and any backup or mirror Internet Web site operated by Licensee.
1.41 "URL" means the uniform resource locator of a Web Site.
1.42 "Web" means the Internet client-server hypertext distributed information
retrieval system known as the World Wide Web.
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1.43 "Web Site" means any point of presence maintained on the Internet. With
respect to any Web Site maintained on the World Wide Web, such Web Site includes
all HTML pages (or similar unit of information presented in any relevant data
protocol) that either (a) are identified by the same second-level domain (such
as xxxx://xxx.xxxxxxxxxxxxxxxxxx.xxx) or by the same equivalent level identifier
in any relevant address scheme, or (b) contain branding, graphics, navigation or
other characteristics such that a user reasonably would conclude that the pages
are part of an integrated information or service offering.
Section 2. Licenses.
2.1 Grant of License by Licensor.
(a) Grant. Subject to the terms and conditions set forth in this
Agreement, Licensor hereby grants to Licensee, for the Term and within the
Territory only, a non-transferable, exclusive (as to third parties but not as to
Licensor and its Affiliates other than as provided herein) right and license to
use the Licensed Property on and in connection with the Services and Materials
furnished at or in connection with the XXX.xxx Site if, and only if, such
Services and Materials comply with the quality standards set forth herein, and
such other mutually agreed upon standards. Licensor may monitor and control, in
accordance with the terms of this Agreement, the nature and quality of the
Services and Materials as set forth herein to determine whether such Services
and Materials are in compliance with such quality standards, and Licensor may
appoint one or more representatives to so monitor and to exercise such control
on Licensor's behalf. Such monitoring shall in no way lessen or limit
Licensee's obligation to use the Marks, Names and TSA Content only as set forth
herein. No other, further or different license is granted or implied and no
assignment of any right or interest is made or intended herein. In particular,
except as set forth in Section 2.3, no license is granted to sublicense or
otherwise permit any third party to use the Licensed Property. Licensee is
prohibited from using the Marks, or any name or xxxx incorporating the word
AUTHORITY or otherwise confusingly similar to the Marks, including any
abbreviations of the Marks, as part of Licensee's registered corporate or
business name in any jurisdiction in the world, or as part of any Internet
domain name or subdomain name not otherwise registered in Licensor's name.
Except as licensed hereunder, Licensee shall not use or apply to register the
Licensed Property or any identical or deceptively or confusingly similar
trademarks, service marks, corporate names, domain names, trade names, trade
dress, copyrights, industrial models or designs, or any derivations thereof,
during the Term and thereafter.
(b) Changes to Exhibit B. Licensor and Licensee acknowledge that the "Core
Marks" as set forth in Exhibit B are: THE SPORTS AUTHORITY,
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XXXXXXXXXXXXXXXXXX.XXX, XXXXXXXXXXXXXXXXXX.XXX & Design and THE SPORTS AUTHORITY
& Design. Licensor may make changes to Exhibit B from time to time as it sees
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fit to add Marks and to update information in records for existing Marks by
delivering an updated version of Exhibit B to Licensee. Licensor may only
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change Exhibit B to delete non-Core Marks (or records for non-Core Marks) by
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giving 30 days prior written notice to Licensee (stating Licensor's reasons for
the proposed deletion(s) in reasonable detail). During such 30-day period,
Licensee may object in writing to any proposed deletion of non-Core Marks by
Licensor. If, prior to the end of such 30-day period, Licensee does not object
in writing to any proposed
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deletion of Non-Core Marks by Licensor, the proposed deletion may be made and
Licensor shall deliver an updated Exhibit B to Licensee. If Licensee objects in
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writing within such 30-day period, Licensee will furnish in reasonable detail
the basis for its objection. Licensor may accept the objection and forego the
deletion(s), but if not, Licensor and Licensee will negotiate in good faith and
use commercially reasonable efforts to achieve a mutually acceptable resolution.
Notwithstanding the foregoing, if, with Licensor's prior knowledge, Licensee has
made a substantial and material investment in a non-Core Xxxx which Licensor
proposes to delete, and the reason for the proposed deletion is not a binding
court order, judgment or other injunction prohibiting Licensor's or Licensee's
continued use of the subject Xxxx, the Parties shall strive to preserve
Licensee's continued right to use the non-Core Xxxx and to retain the non-Core
Xxxx as part of Exhibit B.
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(c) Duty to Exploit License. Licensee shall use commercially reasonable
efforts appropriate to an experienced e-commerce retailer, during the Term: (i)
to furnish the XXX.xxx site throughout the Territory, and (ii) in the United
States, Canada and such other countries within the Territory which Licensor,
directly or indirectly through a third party, maintains TSA Stores (A) to
advertise, promote, sell and furnish the XXX.xxx Site and the Services and
Sporting Goods offered and sold through the XXX.xxx Site, and (B) to exploit the
rights granted herein in connection with the XXX.xxx Site, generally consistent
with the exploitation by Licensor in connection with the TSA Stores.
2.2 Marking, Samples, Inspection, Quality Control
(a) Marking Materials; Ownership. Licensee shall comply with the License
Guidelines set forth in Exhibit A. Licensor reserves the right to change the
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provisions of Exhibit A in order to protect and enhance the Licensed Property,
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or Licensor's interests in the Licensed Property, provided that such changes:
(a) may be imposed without Licensee's consent if such changes are necessary to
preserve consistency with Licensor's own use of the Licensed Property; or (b)
subject to the consent of Licensee, which shall not be unreasonably withheld, in
any other case. Licensee shall have a reasonable period, but no more than
ninety (90) days, to fully implement such changes.
(b) Submission of Samples of Materials; Approval Process. Upon the
reasonable request of Licensor, and prior to producing, publishing or
distributing any proposed Materials for the first time which bear any Xxxx which
has been altered by Licensee from the original form of such Xxxx as supplied by
Licensor, Licensee shall furnish at Licensee's expense samples of such
Materials, including the trademark, copyright and disclaimer notices thereon and
any other labels, tags or markings. Further, Licensor shall have the right to
reasonably inspect the XXX.xxx Site, including all underlying code and data
structures (solely for purposes of protecting its interests in the Licensed
Property and to ensure Licensee's compliance with the terms hereof), to review
upon request all Materials being furnished by Licensee to any of its Advertising
and Marketing Partners, and to know the identity and applicable URLs of such
Advertising and Marketing Partners of Licensee. Licensor shall review in a
timely manner all such samples, requests and uses which contain any altered Xxxx
and use commercially reasonable efforts to communicate in writing its approval
or disapproval as soon as practicable after receiving any request for the same
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from Licensee or after reviewing such samples or uses. Failure to communicate
approval within five (5) Business Days of receipt of such a specific request
from Licensee shall be deemed disapproval. Licensee shall amend to the
satisfaction of Licensor any sample of Materials containing any proposed
alterations of the Marks as may be directed by Licensor. A further sample shall
be provided to Licensor for its prior review and written approval if any
subsequent changes are made in approved Materials or in the Marks.
(c) Quality Control. As of the Effective Date, Licensor is familiar and
satisfied with the current standards of quality of the Services, Materials and
Sporting Goods of Licensee, of the uses of the Licensed Property by Licensee and
the Advertising or Marketing Partner of Licensee, and by Licensee's efforts to
maintain such standards and control such uses. Licensee agrees that the
Services, Materials and Sporting Goods shall meet or exceed such current
standards. Licensee shall not offer or furnish any Services, Materials or
Sporting Goods, or, subject to Section 2.3, knowingly permit any uses of the
Licensed Property by any Advertising or Marketing Partner of Licensee, if
Licensor reasonably deems that any such Services, Materials or Sporting Goods,
or any uses of the Licensed Property by any Advertising or Marketing Partner of
Licensee, are not of a nature or quality that complies with the quality
standards and License Guidelines in accordance with this Agreement.
(d) Inspections, Testing. To ensure compliance with the quality standards
set forth in this Agreement relating to the Licensed Property, Licensor, at its
expense, directly or through representatives reasonably acceptable to Licensee,
may inspect and test Sporting Goods (that is, those Sporting Goods not otherwise
sold by Licensor in the TSA Stores) and Materials from time to time. Licensee
shall reasonably cooperate and aid Licensor in making such inspections and
tests.
(e) Delegation. Without limiting or waiving Licensor's rights in any
manner, Licensor delegates in part to Licensee the continuing duty to exercise
quality control regarding the nature and quality of the Services, Materials and
Sporting Goods and the nature and quality of Licensee's (and the Advertising and
Marketing Partners of Licensee's) uses of the Licensed Property. Licensee shall
use commercially reasonable efforts to fulfill such delegated duties. Licensor
may recommend and Licensee shall use commercially reasonable efforts to adopt
and comply with any reasonable procedures, tests, surveys or the like to fulfill
this delegation. Licensor may reasonably request reports, documentation,
evidence or other proof of Licensee's performance under this provision and
Licensee shall promptly furnish the same to Licensor.
2.3 Sublicense Template. Subject to the terms of this Agreement and Sections
(a) through (g) below, and provided that Licensee strictly complies with the
requirements set forth in this Section 2.3, Licensee may grant temporary, non-
exclusive, non-transferable sublicenses to use the Core Marks to those
Advertising and Marketing Partners of Licensee approved by Licensor to the
extent required under Exhibit F attached hereto:
---------
(a) All agreements containing sublicenses must be dated, in writing and
executed by Licensee and the subject Advertising and Marketing Partner of
Licensee;
11
(b) The rights granted within any such agreements must be restricted to
use of the Core Marks solely to advertise and promote the XXX.xxx Site, on a
temporary, non-exclusive, non-transferable basis, during the Term and within the
Territory only (provided that the fact that a Web Site of an Advertising and
Marketing Partner of Licensee may be accessible by users in countries outside
the Territory does not, in itself, preclude such sublicense or violate this
Agreement subject to the prohibitions herein concerning shipment or delivery of
Sporting Goods to Customers in such countries);
(c) All sublicense provisions or agreements must expressly identify
Licensor as the owner of the Core Marks, and provide that all goodwill
associated with use of the Core Marks shall inure to Licensor;
(d) All sublicensees must agree to use the Core Marks only as instructed
by Licensee and only in the formats provided by Licensee (without alteration);
(e) All sublicenses must provide that if any sublicensee is misusing the
Core Marks, or if such sublicensee is using the Core Marks in violation of the
usage guidelines in this Agreement, upon notice from Licensee, the subject
sublicensee shall either immediately correct such misuse or defect, or
immediately cease using the Core Marks;
(f) The Parties shall work together in good faith to develop efficient
methods of tracking, reporting, documenting and auditing all such sublicenses
and sublicensees. Upon the reasonable request of Licensor, Licensee shall
furnish full and accurate copies of all agreements containing sublicenses to the
extent such agreements concern the XXX.xxx Site and/or Licensor, and furnish
samples of any uses of the Core Marks by any Advertising and Marketing Partner
of Licensee. Licensee's duty to furnish such agreements shall be subject to
any confidentiality provisions contained therein, provided that Licensee shall
use commercially reasonable efforts to (i) avoid such provisions as they relate
to Licensor when negotiating any such agreements, and, (ii) after the fact, to
secure a suitable waiver if necessary from any such sublicensee to disclose all
or as much of the subject agreement to Licensor as required hereunder; and
(g) If Licensee becomes aware of, or is notified in writing by Licensor,
that a given sublicensee has breached the above provisions, other provisions of
this Agreement, or the provisions of any sublicense, the subject sublicensee's
breach shall not be deemed a breach of this Agreement by Licensee until (i)
Licensee has been afforded a reasonable amount of time, not to exceed thirty
(30) days from receipt of such notice, to remedy the sublicensee's breach, and
(ii) Licensee fails to remedy such sublicensee's breach or fails to terminate
such sublicensee's use giving rise to such breach within such time.
2.4 Coining New Trademarks or Service Marks. Licensee acknowledges that
Licensor's retail identity focuses in principal part upon use of a family of
marks incorporating and featuring the word "Authority," many of which are listed
in Exhibit B, attached. However, Licensor also owns and uses other marks
---------
outside of its family of Authority marks, as detailed in part in Exhibit B.
---------
Licensee shall not coin, adopt, use or attempt to register on or in connection
with the XXX.xxx Site any new trademark or service xxxx featuring the word
Authority, or otherwise
12
similar to any of Licensor's Marks as detailed in Exhibit B, without the prior
---------
review, clearance and approval of Licensor, which may be withheld by Licensor as
it sees fit. Once a given new xxxx has been approved by Licensor, Licensee shall
furnish all reasonably necessary assistance to Licensor to register and maintain
such xxxx in Licensor's name, at Licensor's expense. Licensor shall update
Exhibit B from time to time to reflect such newly coined and adopted marks.
---------
2.5 License Exclusions. Licensee agrees and acknowledges that:
(a) Reservation of Rights. Notwithstanding Section 2.1, but subject to the
other provisions of this Agreement (including Sections 9, 10 and 16), Licensor
reserves to itself, its Affiliates, and their respective agents, distributors,
representatives licensees, franchisees, customers, successors and assigns (now
or hereafter existing), all rights to use (and the right to license or otherwise
authorize others to use) the Licensed Property for any and all purposes
including the right to use and exploit the Licensed Property throughout the
world, including in the Territory (i) to manufacture, source, market, sell,
furnish, advertise and promote and deliver goods and services offered at or
through the TSA Stores; (ii) to print, source, market, sell, furnish, advertise
and promote TSA Land Based Stores Gift Certificates, directly or indirectly
through any third party, whether from TSA Stores, by mail order, over the
Internet, an intranet or extranet (except from an Internet site owned or
operated by Licensor directed at consumers, as opposed to Licensor's employees
or other businesses), or otherwise; (iii) to create, develop, operate or
maintain any Web Site exclusively devoted to the provision of information or to
employee training and the sale of Sporting Goods and Services to employees of
Licensor, but which shall not, in either case, offer for sale any Sporting Goods
or services (other than for purchases by employees at a discount for their own
benefit) or link to any Web Site selling Sporting Goods or services other than
the XXX.xxx Site and (iv) to manufacture, source, market, sell, furnish,
advertise and promote goods and services offered by means of home shopping audio
or video programs or successor technologies (not on the Internet).
(b) Private Label Merchandise. Nothing contained herein will prevent or
restrict Licensor or any of its Affiliates, or any third parties licensed by
Licensor, from sourcing, manufacturing, marketing, advertising or selling
Private Label Merchandise other than, directly or indirectly, through the
Internet. Conversely, Licensee shall not source or manufacture Private Label
Merchandise, and may only offer, advertise and sell Private Label Merchandise on
the XXX.xxx Site that has been purchased from Licensor, as if Licensor were
Licensee's vendor. Licensee may only purchase Private Label Merchandise
directly from a vendor other than Licensor with Licensor's prior written
approval.
(c) Prohibited Use of TSA Content. Nothing contained herein shall permit
Licensee (or any of its Affiliates) to use or authorize others to use the TSA
Content in any manner on or in connection with any site of any TSA Competitor.
Licensee will segregate and take all necessary measures to prevent the TSA
Content, which is in the possession and control of Licensee, from being
commingled with the content of any TSA Competitor. The foregoing limitation
shall not be deemed to restrict Licensee from using content of any merchandise
vendor on the XXX.Xxx Site in connection with the sale of such vendor's products
through the XXX.Xxx Site. Such TSA
13
Content as would be deemed "Confidential Information" as defined herein shall be
governed by Section 19.3.
(d) No Use of HEAD and Other Licensed Marks. Nothing contained herein
shall authorize or permit Licensee (or any of its Affiliates) to source or
manufacture goods bearing the trademark HEAD or other marks like the HEAD marks
that are licensed by a third party to Licensor for use solely in connection with
the TSA Stores.
(e) Licensor's Other Authorized Users. Licensor has entered into, and may
renew or continue to enter into, certain license agreements, sponsorship
agreements, settlement agreements and other agreements regarding use of the
Marks by others that do not, and will not, abridge Licensee's rights hereunder
or otherwise conflict with this Agreement.
(f) No Embarrassment. Neither Licensee nor any of its Affiliates, and
subject to Section 2.3(g), none of the Advertising and Marketing Partners of
Licensee will: (i) offer or sell Sporting Goods or render Services, or otherwise
advertise or promote the XXX.xxx Site, in any way associated with, or reasonably
determined by Licensor, to be associated with any illegal, vulgar, obscene, or
offensive activities, nor cause material embarrassment to be suffered by
Licensor by reason of acts or omissions which are illegal, vulgar, obscene, or
offensive; (ii) disparage Licensor or any of its Affiliates, or their products
or services; (iii) portray Licensor or any of its Affiliates, or their products
or services, in a false, competitively adverse or poor light; or (iv) knowingly
take any action that materially and adversely diminishes the value of the
Licensed Property. Additionally, Licensee will require each of the Advertising
and Marketing Partners of Licensee to agree to restrictions with respect to the
XXX.xxx Site substantially similar to the restrictions set forth in this
subsection (f).
(g) No Other Uses. Licensee shall not use the Licensed Property for any
purpose other than the creation, development, operation, maintenance,
advertising and promotion of the XXX.xxx Site as specifically provided for
herein.
(h) No Exports to Outside the Territory. While the XXX.xxx Site may be
accessible by Persons outside the Territory (and such accessibility will not, by
itself, be considered a breach of this Agreement), Licensee will not ship to
addresses outside the Territory and will not knowingly sell Sporting Goods to
any Person which it knows or has reason to believe intends to export such
Sporting Goods to countries outside the Territory.
(i) No Co-Branding. Licensee shall not "co-brand" the XXX.xxx Site, or
use the Marks adjacent to other trademarks or service marks on the XXX.xxx Site
or on the site of any Advertising and Promotion Partner of Licensee in a manner
which, in comparison to any nearby marks of others, places less emphasis or
imposes smaller dimensions upon the Marks. Notwithstanding the foregoing,
Licensor acknowledges and agrees that as part of certain advertising and
marketing arrangements entered into with Advertising and Marketing Partners of
Licensee hereunder, (a) the XXX.xxx Site may be "framed" by certain of the
Advertising and Marketing Partners of Licensee which frame will include
trademarks or service marks of such Advertising and Marketing Partners of
Licensee, and (b) certain Web Sites of the Advertising
14
and Marketing Partners of Licensee may include logos, marks, trade names, trade
marks, offers, and related material of third parties, in either case which are
larger than the Marks or place more emphasis on such other logos, marks, trade
names, trade marks, offers, and related material over the Marks.
(j) Prohibition Of Gambling Activities. At no time shall Licensee: (i)
publicize, advertise, promote or otherwise make available on the XXX.xxx Site
any information about touting, gambling or lotteries (other than legal
sweepstakes sponsored by or in conjunction with the XXX.xxx Site); or (ii)
authorize or provide any links from the XXX.xxx Site to any third party site
that contiguously publicizes, advertises, promotes or provides any information
about touting, gambling or lotteries (other than scores and game lines for
sporting events or legal sweepstakes).
2.6 Protection of Licensed Property.
(a) Licensee shall use commercially reasonable efforts to inform Licensor
promptly of any possible infringement, or of any passing off or unfair
competition affecting any of the Licensed Property that comes to the attention
of Licensee's management. Further, Licensee agrees to fully cooperate and
assist Licensor as is reasonably necessary and at Licensor's expense, in the
protection and defense of any of Licensor's rights in the Licensed Property, in
the filing and prosecution of any trademark, trade dress, service xxxx, trade
name, copyright, domain name, industrial model or design application,
registration, renewal and the like, in the recording of this Agreement or any
other relevant agreements, including registered user agreements, and in the
doing of any other act with respect to the Licensed Property, including the
prevention of the use thereof by any unauthorized person.
(b) Licensor deems the Licensed Property to be extremely valuable.
Licensor shall have the sole right to determine whether or not any action shall
be taken on account of any infringement, passing off or unfair competition
activities or other enforcement of Licensor's rights in the Licensed Property.
If Licensor so desires it may prosecute any actions, claims, lawsuits or
proceedings in its own name or join Licensee as a party thereto, all at
Licensor's expense. Licensor shall be entitled to recover any and all sums of
money awarded and materials delivered up as a result of such actions, claims,
lawsuits or proceedings.
(c) Licensee shall not, and shall not be required, to institute any
lawsuit or take any action against any third party on account of any actual or
alleged infringement, passing off or unfair competition relating to the Licensed
Property, and Licensee shall not have any right or claim against Licensor for
Licensor's failure to enforce its rights in the Licensed Property or failure to
prosecute any actual or alleged infringement, passing off or unfair competition
by others in relation to the Licensed Property. Notwithstanding the foregoing,
if, after Licensor is advised and has a reasonable opportunity to investigate
and attempt to resolve an instance of actual or alleged infringement, passing
off or unfair competition, yet Licensor determines not to institute any lawsuit
or take any further action or because, in Licensor's reasonable opinion, the
same are unwarranted or of no avail, Licensee may institute a lawsuit or take
any action, solely in its own name, to remedy the actual or alleged
infringement, passing off or unfair competition.
15
As a prerequisite to instituting such a lawsuit and taking any such actions,
Licensee shall deliver to Licensor a duly executed guarantee from Global Sports
providing that Global Sports agrees to and shall pay any and all costs, expenses
and damages, including attorneys' fees, expert fees and all court costs incurred
by Licensee and by Licensor (including Licensor's internal costs) in the matter.
Licensee agrees to keep Licensor fully informed regarding all such lawsuits and
actions, and to obtain Licensor's prior written approval of any proposed
settlement that affects the Licensed Property or Licensor's interest in the
Licensed Property. Licensee shall apply any costs, fees, damages or other sums
recovered in any such action or lawsuit to reimburse the amounts Licensee or
Global has expended in the action or lawsuit. Once Licensee or Global has been
fully reimbursed, the balance shall be delivered as determined by the court.
Section 3. Creation and Operation of the XXX.xxx Site
3.1 Design and Development. Licensee, at its own expense, will continue to
design and develop the XXX.xxx Site in accordance with this Agreement. Except
for the Licensed Property, Non-Shopping Features and TSA Content to be provided
by Licensor hereunder, Licensee shall provide all content, creative, design,
programming and related services necessary to the design, development, operation
and updating of the XXX.xxx Site, including incorporating the functionality and
features provided for herein. Licensee shall update the content, offers,
promotions and Look and Feel characteristics of the XXX.xxx Site as is
reasonably necessary for the Site to compare favorably with [*]. The XXX.xxx
Site will continue to contain at a minimum the functionality and features
currently existing on the XXX.xxx Site and as set forth on Exhibit G attached
---------
hereto and such other functionality and features as may be agreed upon by the
Parties. The XXX.xxx Site will be comprised of a series of templates developed
by Licensee that will define the format and layout of a page on the XXX.xxx Site
and establish the placement and size of content type blocks (e.g. text,
graphics, promotions, advertising, navigation bar and images). Such templates
shall be developed to correspond closely with the merchandise category and
department structure in the TSA Stores. The Look and Feel characteristics of
the XXX.xxx Site will continue to be consistent with the TSA Stores and the
Marks, or as otherwise mutually upon by the Parties. Licensor will provide
Licensee with the Non-Shopping Features information, TSA Content and Licensed
Property necessary for the operation of the XXX.xxx Site and provision of the
Services in connection therewith. Licensor will provide such Non-Shopping
Features information, TSA Content and Licensed Property in such format as may be
agreed upon by the Parties. In the event of a change in the Marks of Licensor,
Licensee agrees that it shall update the XXX.xxx Site in a timely manner after
Licensor provides Licensee with such updated Marks. Notwithstanding anything
herein to the contrary, it shall be Licensee's sole responsibility to produce
and maintain all camera-ready product information and images for use on the
XXX.xxx Site. For purposes of this Agreement, such product information and
images shall be deemed GSI Content. Notwithstanding the foregoing, Licensee
shall, after giving reasonable advance notice, be permitted to reasonably use
merchandise in the TSA Stores to prepare product images, so long as such use (i)
is during normal business hours or other mutually agreed upon times, (ii) does
not disrupt customers' ability to purchase merchandise in such TSA Stores, and
(iii) does not damage such merchandise.
3.2 Web Site [*].
16
3.3 Hosting, Maintenance and Operations of XXX.xxx Site. Licensee, at its own
expense, will host, maintain and operate the XXX.xxx Site in accordance with
this Agreement. Licensee will furnish a data center and all other "back-end"
operations in order to fulfill its obligations hereunder. Licensee will be
responsible for hosting, or arranging for the hosting by a reputable third-party
hosting company, the XXX.xxx Site. Licensee agrees that, during the Term, it
will comply with [*]. The data center, equipment and software used by Licensee
to host and operate the XXX.xxx Site, and the security and monitoring provided
by Licensee with respect to the XXX.xxx Site and the data center, equipment and
software used by Licensee to host and operate the XXX.xxx Site, will be equal or
better in quality to that currently used or provided for the XXX.xxx Site;
provided, however, that the communications link to the public Internet for the
XXX.xxx Site shall compare favorably [*]. The XXX.xxx Site will be operated at
the Designated URL. At all times during the Term, Licensor will cause the Names
to be registered with Network Solutions Inc. (or other reputable registrars) in
such a way that the Names point to the domain name servers designated by
Licensee. Licensor will provide the information set forth on Exhibit "K"
attached hereto with respect to security for and registration of the URLs for
the XXX.xxx Site.
3.4 Non-Shopping Features.
(a) Licensee will program, upload, display and maintain the Non-Shopping
Features at its own expense, and shall promptly update all related aspects of
the XXX.xxx Site, as requested from time to time by Licensor. Notwithstanding
the foregoing, if and when Licensee provides access or technology to Licensor
that enables Licensor to control and update any Non-Shopping Features directly,
the updating burden as to the subject Non-Shopping Features shall shift to
Licensor.
(b) Upon request from Licensor, Licensee shall place a notice of copyright
ownership on each page of the XXX.xxx Site that displays Non-Shopping Features
in accordance with the License Guidelines. Further, Licensee shall cooperate
fully with Licensor at Licensor's expense in connection with Licensor's
obtaining appropriate copyright protection in the name of Licensor for any page
containing Non-Shopping Features.
Section 4. Merchandising the XXX.xxx Site.
4.1 General. Subject to the terms of this Agreement, (i) Licensee may continue
to offer for sale on the XXX.xxx Site any and all types of Sporting Goods and
Services offered in the TSA Stores, and (ii) to the extent reasonably
practicable, Licensee will continue to offer for sale on the XXX.xxx Site as
broad of a selection of Sporting Goods and Services as Licensor offers in the
TSA Stores; provided, however, that (A) Licensee will not be required to offer
for sale on the XXX.xxx Site any Sporting Goods or Services that Licensee is
prohibited from offering for sale on the XXX.xxx Site by the manufacturer,
licensor or licensee of such products, and (B) Licensee may continue to offer
for sale on the XXX.xxx Site Sporting Goods and Services not offered for sale in
the TSA Stores. Licensee shall merchandise the XXX.xxx Site so that (a) it
appears to Customers that Sporting Goods and Services available on the XXX.xxx
Site (i) are organized
17
into categories and departments closely corresponding to the categories and
departments found in Licensor's TSA Stores, and (ii) the assortment and
selection of such Sporting Goods and Services is similar to that found in the
TSA Stores and is no less broad in scope in comparison to that found on the Web
Sites of the GSI Ventures or GSI Partners; and (b) for those Sporting Goods or
Services offered by Licensee by or through the XXX.xxx Site and by Licensor in
the TSA Stores, [*]. The Parties will cooperate in good faith with each other
and will use commercially reasonable efforts to obtain all consents required to
permit the offer and sale of prohibited Sporting Goods or Services through the
XXX.xxx Site.
4.2 Cooperation. Although Licensee shall be primarily responsible for
selecting, ordering and displaying Sporting Goods and Services for the XXX.xxx
Site, the Parties will continue to coordinate the merchandising of the XXX.xxx
Site. Each Party will, if the other Party so requests, use commercially
reasonable efforts to assist the other Party in obtaining the best prices from
vendors for Sporting Goods or Services desired to be acquired by such other
Party and/or overcoming any vendor's or other applicable third party's
reluctance to sell to the other Party.
4.3 Merchandising Plans. Licensor shall share its merchandise assortment
plans, pricing and advertising plans with Licensee in a timely manner, in
advance, as is reasonably necessary for Licensee to merchandise the XXX.xxx Site
as described herein. Such merchandise assortment plans, pricing and advertising
plans are and shall be treated as Confidential Information of Licensor. Upon
request, Licensor shall use commercially reasonable efforts to work with
Licensee and/or vendors so that Licensee is able to purchase and maintain
adequate inventories of Sporting Goods featured in Licensor's advertising
inserts in order to support the demand for such Sporting Goods through the
XXX.xxx Site.
4.4 Sales or Transfers of Sporting Goods from Licensor to Licensee. Upon
request from Licensee, or as offered from time to time by Licensor, Licensee may
agree to buy and Licensor may agree to sell, certain name brand and Private
Label Merchandise owned by Licensor (including merchandise ordered but not yet
received by Licensor). Licensee shall pay all of Licensor's invoices for any
shipments of Sporting Goods or Private Label Merchandise (including freight)
within 30 days of receipt of such invoices. Licensee agrees that any Private
Label Merchandise purchased by Licensee shall be offered and sold only on the
XXX.xxx Site, except as provided in Section 17.7(e). All other terms of such
purchases shall be as mutually agreed upon by the Parties.
4.5 Restrictions and Exceptions. Notwithstanding anything contained herein to
the contrary, Licensee will not offer, sell, advertise or promote on the XXX.xxx
Site, or display any links to any Web page that offers, sells, advertises or
promotes, either directly or indirectly, any of the following: (i) any firearm,
ammunition, explosive, explosive material, or weapon or any related items,
equipment and accessories which are subject to licensing, permitting and or
other governmental restrictions on sales, distribution and/or exports of the
same; (ii) any Sporting Goods which Licensee knows or is informed by Licensor is
counterfeit, or the offer or sale of which Licensee knows or is informed by
Licensor infringes the valid Intellectual Property Rights of third parties;
(iii) any Sporting Goods or Service that the sellers of which are charged with
in-person verification of identity or age or other qualification to own or
purchase such merchandise;
18
(iv) any Sporting Goods that is subject to any export prohibition from the U.S.,
or which are barred or otherwise prohibited from use in any export destination
country outside the U.S, unless such merchandise is only sold and delivered to a
customer within the United States; (v) subject to the last sentence of this
Section 4.5, any Sporting Goods or Service that is illegal, vulgar, obscene, or
offense; (vi) any Sporting Goods or Service that Licensee knows or is informed
by Licensor would, which if offered or sold on the XXX.xxx Site, violate a
prohibition against the same imposed by the subject vendor upon Licensor,
including, without limitation, any provision restricting distribution to the
territories served by Licensor's TSA Stores; and (vii) subject to the last
sentence of this Section 4.5, any Sporting Goods which Licensor requests in
writing be removed from the XXX.xxx Site for legitimate business purposes set
forth in Licensor's notice to Licensee, which if not removed, would have a
materially adverse impact on Licensor. Such notice shall specify in reasonable
detail the Sporting Goods item or items that Licensor desires Licensee to remove
from the XXX.xxx Site and the reasons for its objection to the sale of the same.
The Parties will in good faith attempt to resolve any disagreement they may have
concerning the removal of such products from the XXX.xxx Site pursuant to (v)
and (vii) above; provided, however, if, notwithstanding the use of good faith,
the Parties are unable to agree as to whether a particular product can be
offered on the XXX.xxx Site, the following resolution shall govern: (i) if the
disputed product is a type of product then offered for sale in the TSA Stores,
then Licensee may continue to offer such product on the XXX.xxx Site, and (ii)
if the disputed product is not a type of product then offered for sale in the
TSA Stores, then Licensee shall remove such product from the XXX.xxx Site.
4.6 No Diversion. Licensee shall not knowingly divert or permit diversion of
any Order made by, for, through or in the name of the XXX.xxx Site so that it
results instead in a sale on the Web Site or other outlet of any GSI Partner,
GSI Venture or any third party.
4.7 Land Based Stores Gift Certificates. In the event that Licensor is willing
to provide Land Based Stores Gift Certificates to Licensee on a consignment
basis, then Licensee shall sell Land Based Stores Gift Certificates through the
XXX.xxx Site in accordance with this Section 4.8, provided that such sales by
Licensee do not subject it to nexus with any state for sales tax purposes.
Subject to the foregoing, Licensor will furnish Land Based Stores Gift
Certificates to Licensee on consignment in quantities and denominations as
reasonably requested by Licensee. Licensee will remit to Licensor [*] of all
proceeds received from the sale of Land Based Stores Gift Certificates, the
balance being retained by Licensee as its fee and to cover all costs, including
credit card fees. By the [*] day of each [*], Licensee shall report and make
full payments to Licensor for all sales of Land Based Stores Gift Certificates
made during the previous month, and provide all reasonable cooperation to
Licensor to permit the latter to fulfill its escheat duties.
4.8 On-Line Gift Certificates. Unless otherwise agreed to in writing by
Licensor, in no event shall Licensee authorize, create, offer, advertise, market
or sell any form of gift certificate, gift card, rebate, voucher or the like
(other than Land Based Stores Gift Certificates as set forth above) that is
intended to be redeemed at the TSA Stores. However, subject to the License
Guidelines, Licensee may develop, publish and offer for sale On-Line Gift
Certificates on the XXX.xxx Site. Licensee shall clearly and conspicuously
state in connection with any offer to sell
19
such On-Line Gift Certificates, and state on the On-Line Gift Certificates
themselves, that On-Line Gift Certificates are redeemable only on the XXX.xxx
Site and not at TSA Stores, unless otherwise agreed to in writing by Licensor.
Licensee shall bear all escheat duties with respect to On-Line Gift
Certificates.
4.9 Tax Obligations. For all Sporting Goods and Services sold by or through
the XXX.xxx Site, as between Licensor and Licensee, Licensee shall be
responsible for the computation, notification, withholding, payment, and
reporting of all applicable taxes of any kind that may be imposed on Licensee in
connection with Licensee's activities, assets or operations as permitted
hereunder, including, without limitation, all sales and use taxes and all value
added taxes. As between the Parties, Licensor shall be responsible for any
taxes imposed by law on Licensor, including sales and use taxes as provided
pursuant to Section 10.14. Licensee shall be responsible for the timely
notification, withholding, remittance, filing and reporting of all applicable
withholding taxes with respect to the Royalties payable to Licensor hereunder to
the proper tax authority at the rate required by statute (but reduced to the
fullest extent permitted by any tax treaty), and Licensee shall provide Licensor
with reports and official receipts of all such withholding remittances
sufficient to enable Licensor to claim appropriate federal income tax credits,
if any.
Section 5. Order Processing; Fulfillment and Customer Service.
5.1 Order Processing and Fulfillment. Licensee will continue to be responsible
for all aspects of order processing, fulfillment and returns for the XXX.xxx
Site, including those functions set forth on Exhibit I attached to this
---------
Agreement. The order processing and fulfillment services provided by Licensee
with respect to the XXX.xxx Site will comply with [*]. Without limiting the
generality of the foregoing, Licensee will: (i) enter into merchant agreements
in its own name and on its own account with [*]; (ii) provide secure systems for
submitting and processing such credit cards; (iii) provide timely order and
shipping confirmations to Customers; (iv) promptly process all Orders received
from Customers of the XXX.xxx Site, (v) process all transactions through the
XXX.xxx Site under the name of "XxxXxxxxxXxxxxxxxx.xxx", and (vi) make
appropriate arrangements for the delivery of Sporting Goods and Services
purchased through the XXX.xxx Site.
5.2 Returns. The returns policy for the XXX.xxx Site will continue to be as
consistent as practicable with the returns policy of the TSA Stores; provided
that GSI will accept returns of Sporting Goods or Services made through the
XXX.xxx Site, so long as such returned Sporting Goods or Services are (a)
defective or damaged during shipment, or (b) returned to Licensee, within a
mutually agreed upon time, unused and in a condition suitable for resale as new
goods. Licensor will not be required to accept in the TSA Stores any returns of
Sporting Goods or Services purchased through the XXX.xxx Site, and if Licensor
determines to accept any such returns, Licensor will not return any such
Sporting Goods or Services to Licensee, and Licensee will not have any
obligation to accept such returns from Licensor. Licensee will from time to
time at Licensee's expense provide Licensor with sufficient quantities of return
labels to enable Licensor to provide such labels to customers seeking to return
to Licensor Sporting Goods and Services purchased through the XXX.xxx Site. The
Parties agree that they will review the
20
returns policy for the XXX.xxx Site annually upon request of either Party, and
work in good faith to develop mutually agreeable procedures and policies
regarding returns. The Parties acknowledge that Licensee has paid Licensor in
full and complete satisfaction of any and all liabilities Licensee may have to
Licensor relating to returns made prior to the Effective Date and accepted in
the TSA Stores for products sold through the XXX.xxx Site.
5.3 Customer Service. Licensee will continue to be responsible for providing
customer service to Customers of the XXX.xxx Site, including on-line and toll-
free telephone support 24 hours per day, seven days per week. The customer
service provided to Customers of the XXX.xxx Site will be provided in the name
of the XXX.xxx Site. Throughout the Term, Licensee will comply with [*].
Without limiting the generality of the foregoing, Licensee will (i) provide
customer service in a courteous and professional manner, (ii) provide for
Customer feedback through appropriate features (e.g. "contact us" and "how are
we doing?" sections of the XXX.xxx Site), and (iii) provide a toll-free
telephone number for customer service which shall be available 24 hours a day /
7 days a week (other than Christmas Day) to receive and process inquiries,
requests and complaints from Customers. In the event that Licensee receives
inquiries or complaints from customers relating to the TSA Stores (e.g.,
customers attempting to contact Licensor), Licensee shall promptly refer all
such customers to the email reply service and/or toll-free telephone number for
customer service furnished to Licensee by Licensor. Conversely, in the event
that Licensor receives inquiries or complaints from Customers relating to the
XXX.xxx Site, Licensor shall promptly refer all such Customers to the email
reply service and/or toll-free telephone number of Licensee posted on the
XXX.xxx Site.
5.4 Customer Loyalty Programs. Licensee shall use commercially reasonable
efforts to adopt customer loyalty programs integrated with Licensor's customer
loyalty programs for the TSA Stores. Licensee may also establish customer
loyalty programs, provided that: (a) any such program shall be used only to
attract Customers to and generate Orders through the XXX.xxx Site or the TSA
Stores, and not other Web Sites operated in connection with any of the GSI
Partners or GSI Ventures; and (b) Licensee must obtain Licensor's review and
approval prior to extending any Customer loyalty program to Licensor's TSA
Stores.
5.5 Parts and Service. If and to the extent that, during the Term, Licensee
offers after sales service and spare parts to Customers on the XXX.xxx Site,
which shall be at Licensee's sole discretion, Licensee shall, for [*] following
expiration or termination of this Agreement, provide comparable after sales
service and spare parts to Customers as provided by Licensee immediately prior
to such expiration or termination. In no event shall Licensor be responsible
for providing after sales service or spare parts to Customers of the XXX.xxx
Site.
Section 6. Promotion and Advertising
6.1 Licensor's Activities and Obligations
(a) [*]
(b) Licensor shall provide to Licensee the e-mail addresses which it
collects from customers in the TSA Stores [*]. Licensee agrees that such email
addresses shall be used solely
21
for the purpose of sending emails to such customers to promote the XXX.xxx Site,
and that such information shall be Confidential Information of Licensor. Except
with respect to Licensor's obligation to coordinate emails with Licensee
pursuant to Section 12, nothing in this Agreement shall prohibit Licensor from
sending emails to its customers.
6.2 Promotional and Advertising Agreements. During the Term and throughout
that portion of the Territory in which Licensee is so required by Section
2.1(c), Licensee will use commercially reasonable efforts to enter into
promotional and advertising agreements and arrangements for the XXX.xxx Site.
However, Licensee shall not contract with any TSA Competitor in connection with
the marketing or promotion of the XXX.xxx Site, and for purposes of this
Agreement, TSA Competitors shall not qualify as and shall be excluded from the
definition of Advertising and Marketing Partners of Licensee. The review and
approval processes applicable to such promotional and advertising agreements and
arrangements are set forth on Exhibit F attached hereto. Notwithstanding the
---------
preceding sentence, the review and approval process set forth on Exhibit F shall
---------
not apply to any promotional or advertising agreement or arrangement which (i)
grants a sublicense to a third party other than in accordance with Section 2.3
hereof, (ii) relates to a newly coined trademark or service xxxx which is
subject to Licensor's approval pursuant to Section 2.4, or (iii) proposes to
alter the Marks which shall be subject to Section 2.3.
6.4 Advertising and Marketing.
[*]
6.5 Maximization. Without negating the specific rights and obligations of
each Party under this Agreement, each Party agrees to operate in a manner that
has the intended effect of maximizing the customers and revenues from or through
the XXX.xxx Site.
7. Ownership.
7.1 Licensor. As between the Parties, Licensor owns and reserves all right,
title and interest in and to the Licensed Property, along with all Intellectual
Property Rights associated therewith, and no right, title or interest to or in
any of the foregoing is transferred or, except as expressly set forth in Section
2, licensed to Licensee or any other Person. Licensee hereby assigns to
Licensor all right, title and interest that it may have or acquire in and to
such items and all associated Intellectual Property Rights, and Licensee will
take, at Licensor's expense, any actions (including execution and delivery of
affidavits and other documents) reasonably requested by Licensor to effect,
perfect or confirm Licensor's or its designee's right, title and interest
therein. Further, Licensee agrees and acknowledges that all goodwill associated
with or created by use of the Licensed Property by Licensee shall inure to the
benefit of Licensor. Upon termination of this Agreement all rights in and to
the Licensed Property, including all right to the use thereof, and all goodwill
associated with use of the Licensed Property, shall automatically revert back to
Licensor. At the termination of the Agreement, Licensee will return all Licensed
Property to Licensor, and Licensee shall have no further rights thereto. If, by
operation of law or otherwise, any goodwill associated with Licensee's use of
the Licensed Property shall be deemed to accrue
22
or have accrued to Licensee, Licensee agrees to assign such goodwill to
Licensor. Licensor shall not be required to compensate Licensee for any
reversion or assignment of such goodwill. Licensee shall not contest Licensor's
rights in the Licensed Property, or any of Licensor's applications or
registrations therefor, nor assist anyone else in doing so.
7.2 Licensee. As between the Parties, Licensee owns and reserves all right,
title and interest in and to the GSI Furnished Materials and the XXX.xxx Site
(other than the Licensed Property and all Intellectual Property Rights
associated therewith), along with all Intellectual Property Rights associated
therewith, and no right, title, interest to or ownership of any of the foregoing
is transferred or licensed to Licensor or any other Person. Licensor hereby
assigns to Licensee all right, title and interest that it may have or acquire in
and to such items and all associated Intellectual Property Rights, and Licensor
will take, at Licensee's expense, any actions (including execution and delivery
of affidavits and other documents) reasonably requested by Licensee to effect,
perfect or confirm Licensee's or its designee's right, title and interest
therein. Further, Licensor agrees and acknowledges that all goodwill associated
with or created by use of the GSI Furnished Materials or XXX.xxx Site (other
than the Licensed Property) shall inure to the benefit of Licensee. Upon
termination of this Agreement all rights in and to the GSI Furnished Materials
and the XXX.xxx Site (other than the Licensed Property), including all right to
the use thereof, and all goodwill associated with use of the GSI Furnished
Materials and XXX.xxx Site (other than the Licensed Property), shall
automatically revert back to Licensee. At the termination of the Agreement,
Licensor will return all GSI Furnished Materials to Licensee, and Licensor shall
have no further rights thereto. If, by operation of law or otherwise, any
goodwill associated with Licensor's use of the GSI Furnished Materials or
XXX.xxx Site (other than the Licensed Property) shall be deemed to accrue or
have accrued to Licensor, Licensor agrees to assign such goodwill to Licensee.
Licensee shall not be required to compensate Licensor for any reversion or
assignment of such goodwill. Licensor shall not contest Licensee's rights in
the GSI Furnished Materials or the XXX.xxx Site (other than the Licensed
Property), or any of Licensee's applications or registrations therefor, nor
assist anyone else in doing so.
7.3 Ownership and Use of Databases. As between the Parties, Licensee
shall own all right, title and interest in and to all Databases. During the
Term, Licensor may use the Databases as specifically provided hereunder, without
payment to Licensee, but to the extent Licensor's use requires access to a third
party's technology, Licensor shall be required to obtain and pay for such
access.
Section 8. Account Managers
8.1 Account Managers.
(a) Each Party will assign one (1) dedicated account manager with the
experience and status equivalent to an on-line business manager, as well as one
(1) dedicated merchandising manager. The work time and energies of Licensor's
managers shall be devoted entirely to the XXX.xxx Site. All managers shall be
subject to change from time to time by the assigning Party upon written notice
to the other Party. Such managers shall oversee the performance of the Party's
respective obligations under this Agreement. It is anticipated that the account
managers
23
shall meet at least once every month (or with such other frequency as may be
mutually agreed upon) during the Term to review the implementation of this
Agreement and to explore methods for improving performance.
(b) Notwithstanding subsection (a), until December 31, 2001, Licensor
shall furnish at least two (2) account managers. Licensor's obligation to
provide two (2) managers shall cease as of December 31, 2001. [*].
Section 9. Kiosks. Licensor may, on its own or through a third party, elect to
install, or permit the installation of, kiosks in any or all of the TSA Stores
at any time or from time to time. All such kiosks shall be configured to enable
customers at such TSA Stores to purchase Sporting Goods and Services through
such kiosks only through the XXX.xxx Site. It is understood by the Parties
that Licensee has the exclusive right, in the Territory, to provide all customer
service, order processing and fulfillment services with respect to the sale of
Sporting Goods and Services through such kiosks. Sales resulting from orders
entered through kiosks on the XXX.xxx Site will be sales of Licensee included in
Net Revenues and, for purposes of Exhibit E, Licensor-Generated Net Revenues.
---------
Section 10. Group and Team Sales.
During the Term and in the Territory, Licensee has the exclusive right to
make group and team sales on behalf of Licensor through the Internet. Nothing
in the preceding sentence shall limit Licensor's ability to make group and team
sales on its own behalf other than through the Internet. [*].
Section 11. Compensation and Expenses
11.1 General. Except as expressly provided for elsewhere in this Agreement,
each Party will be responsible for all costs and expenses incurred by such Party
in performing its obligations under this Agreement.
11.2 Royalty Payments, Reports.
(a) Within [*] days after the end of each [*] of Licensee's Fiscal Year,
Licensee shall:
(i) Deliver to Licensor a report, certified by its chief financial
officer, giving the following particulars [*]:
[*]
(ii) Pay: (A) the Royalties to TSAMI; and (B) all other payments due
hereunder to TSA. Payments made in respect of the fourth quarter of
each of Licensee's Fiscal Years shall be subject to subsequent
adjustment, as necessary, to reflect the results of the independent
auditor's report required by subsection (c) below. Subject to the
limitations set forth in Section 11.3(b), receipt or
24
acceptance of any report or payment shall not preclude Licensor from
questioning the correctness thereof at any time. In the event that
any inconsistency or mistake is discovered by either Licensor or
Licensee in such reports, it shall be promptly rectified and, within
fifteen (15) Business Days, the appropriate report shall be delivered
by the Party with the duty to report.
(b) Disputes. Time is of the essence with respect to Licensee's duty to
pay all Royalties which are not subject to a good faith dispute when due and
such payments are not subject to set-off. If either Party shall dispute the
correctness of any payment due hereunder, it shall give written notice of the
dispute and claimed amount to the other Party. The Party receiving such notice
shall have ten (10) Business Days to investigate and respond (the "Payment
Notice Period"). At the end of the Payment Notice Period, if no dispute
remains, or if part of the claimed amount is no longer in dispute, all, or that
part that is undisputed, shall be promptly paid. However, if all or part of the
claimed amount remains in dispute at the end of the Payment Notice Period the
Parties shall confer and attempt in good faith to resolve the dispute. When
the disputed amount is ultimately paid, the Party which owes the claimed amount
shall promptly pay all or that part of the claimed amount which remains unpaid
and is due to the complaining Party, together with interest at the annual rate
of [*], and computed from the date when the underlying payment was first due.
(c) Within ninety (90) days after the end of each Fiscal Year of
Licensee, Licensee shall furnish to Licensor a report certified by its chief
financial officer as to the accuracy of Licensee's Royalty payments and reports
for each such Fiscal Year.
11.3 Records and Audit.
(a) During the Term of this Agreement, and for a period of three (3)
years thereafter, each party will keep true, complete and accurate books and
records (and in the case of Licensee, Databases, subject to Section 7.3)
sufficient to verify Licensee's compliance or non-compliance with the provisions
of this Agreement. All financial records shall be maintained in conformance with
generally accepted accounting principles in effect in the United States.
Licensee's books and records shall be sufficient to accurately reflect the
business of the XXX.xxx Site, the Net Revenues as provided for hereunder and the
transactions contemplated hereunder. The books and records required to be
maintained hereunder shall be kept at the applicable Party's principal place of
business and shall be available for inspection by the other Party, upon
reasonable prior notice and during normal business hours.
(b) Upon reasonable notice to Licensee, during the Term and for a period
of three (3) years after expiration or termination of this Agreement, Licensor,
and/or its independent certified public accountants, may audit all books,
records and Databases (subject to Section 7.3) related to the XXX.xxx Site
provided for in this Agreement to verify Licensee's compliance or non-compliance
with the provisions of this Agreement. Any such audit: (a) shall be conducted
during normal business hours and in a manner designed to not unreasonably
interfere with Licensee's ordinary business operations; and (b) may not occur
more frequently than once every twelve (12) months, unless an audit shows a
material discrepancy, then no more frequently than once every
25
six (6) months until such time as the results of an audit no longer show a
material discrepancy and (c) may only cover the period commencing after the
period covered by the last audit conducted pursuant to this Section 11.3;
provided, however, such limitation shall not prevent the review of information
related to a prior audit to the extent such information is necessary to conduct
a subsequent period audit hereunder. Licensee will cooperate with Licensor in
the conduct of such audit. Any error(s) discovered in an audit shall be
corrected by Licensee within fifteen (15) Business Days after having been
notified of any such error by such auditor. If an audit of Licensee's books and
records reveals that Licensee has failed properly to account for and pay any
monies owing to Licensor and the amount of any monies which Licensee has failed
properly to account for and pay for any quarter exceeds, by [*] percent [*] or
more, the monies actually accounted for and paid to Licensor for such period,
Licensee shall, in addition to paying Licensor such past due monies (which shall
be payable by Licensee without reference to the [*] threshold), reimburse
Licensor for its reasonable out-of-pocket expenses incurred in conducting such
audit, together with interest on the overdue monies owed as computed under
Section 11.2(b) (and subject to the dispute resolution process set forth in the
same section).
Section 12. Customer Information and Privacy Policy
12.1 Customer Information. Licensor and Licensee shall each have an equal and
undivided ownership interest in and to all Customer Information. Licensor may
use, subject to Section 12.2 and Section 16.1, the Customer Information to
advertise, promote and operate the TSA Stores and for any other lawful purpose.
Licensor will provide Licensee with information reasonably requested by Licensee
relating to customers of the TSA Stores so that Licensee may provide marketing
and promotions to such customers with respect to the XXX.xxx Site. Each party
will coordinate with the other party all email and other electronic
communications to Licensor's customers. Subject to Section 17.9(b), Licensee
may use such Customer Information only to design, develop, operate, maintain,
and promote the XXX.xxx Site and as may be necessary to perform its obligations
under this Agreement. Subject to Section 17.9(b), each Party will treat such
Customer Information as Confidential Information of Licensor. Subject to
Section 17.9(b), Licensee shall not furnish, rent, sell or otherwise disclose
Customer Information to any Person whatsoever without the prior written consent
of Licensor, which Licensor may withhold as it sees fit, except that Licensee
may temporarily furnish, subject to the Privacy Policy for the XXX.xxx Site,
such Customer Information as is necessary for Licensee or any Person with which
Licensee contracts to perform fulfillment, credit card or check transactions,
email broadcasts and similar Customer activities required of Licensee hereunder.
For those Customers directed to the XXX.xxx Site by or through the Advertising
and Marketing Partners of Licensee, the Parties' ownership of the resulting
Customer Information as provided for hereunder shall apply to all Customer
Information collected from Customers of the XXX.xxx Site, but shall not preclude
the Advertising and Marketing Partners of Licensee from owning the same
information to the extent it is generated independently of the XXX.xxx Site.
12.2 Privacy Policy. With respect to Customer Information collected in
connection with the XXX.xxx Site, each Party will abide by the privacy policy
currently posted on the XXX.xxx Site, as it may be amended from time to time.
Except as provided pursuant to Section 17.9(b), any amendments to such privacy
policy must be agreed upon by the Parties; provided, however, that
26
if any amendment to the privacy policy is required by applicable law, the
privacy policy will be amended to comply with such requirements. Unless the
Parties otherwise agree, the privacy policy shall provide that neither party may
furnish, rent, sell or otherwise disclose Customer Information to any third
party other than those permitted pursuant to such privacy policy, provided that
such privacy policy shall also provide that Licensor may use such Customer
Information to advertise and promote the TSA Stores, Licensor's goods and
services, and the direct sales or mail order catalog, team/group sales and kiosk
businesses of Licensor. With respect to any customer information collected by
Licensor in the TSA Stores and furnished to Licensee, Licensee agrees to abide
by the terms of Licensor's privacy policy for the TSA Stores; provided that such
privacy policy for the TSA Stores shall permit Licensee to use such data to send
e-mail promotions to such customers for the exclusive benefit of the XXX.xxx
Site.
12.3 Financial Information. Each Party will have an equal and undivided
ownership interest in Financial Information except that all use of the Financial
Information by any of them shall always be subject to the restrictions set forth
herein. Each Party will treat such Financial Information as Confidential
Information of the other Party hereunder, except that each Party may incorporate
such Financial Information as is reasonably necessary to prepare and report
aggregate financial results or to comply with any applicable reporting
requirement imposed by governmental agencies.
12.4 Delivery of Customer Information and Financial Information to Licensor.
From time to time, upon Licensor's reasonable request, Licensee shall provide to
Licensor any or all of the Customer Information or the Financial Information, as
Licensor shall specify, including the following information: [*].
Section 13. Representations and Indemnification
13.1 Representations. Each Party represents and warrants to the other that:
(a) it is a corporation, validly existing and in good standing under the laws of
the jurisdiction of its incorporation; (b) it has the full corporate right,
power and authority (pursuant to its Articles of Incorporation, Bylaws and
applicable laws) to enter into this Agreement and perform its obligations
hereunder; (c) its execution, delivery and performance of this Agreement, and
the other Party's exercise of such other party's rights under this Agreement,
will not conflict with or result in a breach or violation of any of the terms or
provisions or constitute a default under any material agreement by which it is
bound; and (d) when executed and delivered, this Agreement will constitute its
legal, valid and binding obligation enforceable against it in accordance with
its terms.
13.2 Indemnity.
(a) Licensee will defend, indemnify and hold harmless Licensor and its
Affiliates (and their respective employees, officers, directors and
representatives) from and against any and all claims, costs, losses, damages,
judgments and expenses (including reasonable attorneys' fees) arising out of any
action, claim, proceeding or lawsuit (a "Claim" or "Claims") asserted by any
Person other than Licensor or an Affiliate of Licensor to the extent that it is
based upon: (i) any
27
actual or alleged breach of representations, warranties or obligations of
Licensee set forth in this Agreement; (ii) any actual or alleged infringement or
misappropriation of Intellectual Property Rights of any Person other than
Licensor, including, without limitation, Claims of misrepresentation, false
advertising or unfair competition or violation of rights of privacy; (iii)
subject to the last sentence of this Section 13.2(a), any Claims of product
liability, property damage, personal injury or death relating to any Sporting
Goods or Services sold by Licensee hereunder, except with respect to products
manufactured by or on behalf of Licensor; (iv) Claims of violation of any
applicable law, treaty, rule or regulation relating to the Sporting Goods or
Services offered by Licensee, the XXX.xxx site, or the Web Sites of any
Advertising and Marketing Partner of Licensee, including, without limitation,
any failure to file, report or pay any applicable tax; and (v) Claims based upon
the offer, advertising, marketing, distribution or sale of Sporting Goods or
Services by Licensee or any Advertising or Marketing Partner of Licensee, except
for product liability Claims. Notwithstanding the foregoing, aside from
negligent implementation of its own related activities, Licensee shall not bear
any indemnification duty hereunder with respect to (i) any advertising or
promotional program or project initiated by Licensor and directed at the TSA
Stores, or (ii) TSA Content provided by Licensor. Subject to Section 13.3,
Licensee will pay any award against Licensor and its Affiliates (and their
respective employees, officers, directors or representatives) and any costs and
attorneys' fees reasonably incurred by them resulting from any such Claim.
Notwithstanding the foregoing, to the extent Licensee defends, indemnifies and
holds harmless Licensor with respect to product liability Claims as provided
herein, Licensor hereby transfers and assigns to Licensee all claims and rights
Licensor may have against any Person related to any such product liability
Claims.
(b) Licensor will defend, indemnify and hold harmless Licensee and its
Affiliates (and their respective employees, officers, directors and
representatives) from and against any and all Claims asserted by any Person
other than Licensee or an Affiliate of Licensee to the extent that it is based
upon: (i) any actual or alleged breach of representations, warranties or
obligations of Licensor set forth in this Agreement; (ii) any actual or alleged
infringement or misappropriation concerning the Licensed Property in the United
States, Japan or Canada and other countries within the Territory in which (a)
the Licensee has a duty pursuant to Section 2.1(c)(ii) of this Agreement, or (b)
the Licensor has requested Licensee to provide services and in which Licensee
has agreed to do so, provided, however, that Licensor shall not bear any duty,
obligation or liability pursuant to this Section 13.2(b) to the extent that
Licensee uses the Licensed Property beyond the scope of any rights granted to
Licensee under this Agreement or otherwise agreed to by Licensor, and such
extended use is the primary cause of such actual or alleged infringement or
misappropriation; (iii) Claims based upon Licensor's advertising and promotional
activities as performed hereunder or otherwise in connection with the TSA
Stores, and (iv) Claims of violation of any applicable law, treaty, rule or
regulation relating to the TSA Stores or the products and services offered by
Licensor,. Notwithstanding the foregoing, Licensor shall not bear any
indemnification duty with respect to Licensee's negligent implementation of its
activities hereunder. Subject to Section 13.3, Licensor will pay any award
against Licensee and its Affiliates (and their respective employees, officers,
directors or representatives) and any costs and attorneys' fees reasonably
incurred by them resulting from any such Claims.
28
13.3 Procedure. In case any Claim is at any time brought against a Party or
its Affiliates (or any of their respective employees, officers, directors or
representatives) (an "Indemnified Party") and such Indemnified Party is entitled
to indemnification pursuant to Section 13.2, the party obligated to provide such
indemnification (the "Indemnifying Party") will defend such Claim, at the sole
expense of the Indemnifying Party, using counsel selected by the Indemnifying
Party but subject to the Indemnified Party's reasonable approval. If the
Indemnifying Party fails to take timely action to defend such a Claim after
having received written notice from the Indemnified Party of such failure, the
Indemnified Party may defend such a Claim at the Indemnifying Party's expense.
The Indemnifying Party will keep the Indemnified Party fully advised with
respect to such Claims and the progress of any suits, and the Indemnified Party
shall have the right to participate, at the Indemnified Party's expense, in any
suit instituted against it and to select attorneys to defend it, which attorneys
will be independent of any attorneys chosen by the Indemnifying Party relating
to such Claim or related claim. The Indemnifying Party will not settle,
compromise or otherwise enter into any agreement regarding the disposition of
any Claim against the Indemnified Party without the prior written consent and
approval of the Indemnified Party. The obligations of the Indemnifying Party
pursuant to this Section 13 shall survive expiration or earlier termination of
this Agreement.
Section 14. Reporting
14.1 Reports Concerning Royalties and Financial Performance. In addition to the
reports required by Section 11.2, Licensee shall provide to Licensor [*].
14.2 Reports Concerning [*] of Licensee. The Parties will work in good faith to
develop methods for [*].
14.3 Reports Concerning the XXX.xxx Site [*]. As part of the [*] Reports
required pursuant to Section 14.1, Licensee shall [*].
14.4 Additional Reports. From time to time during the Term, Licensee shall
provide to Licensor such additional reports as may be reasonably requested by
Licensee, bearing in mind the information which is readily available to
Licensee, the reports which Licensee may have formatted already, the frequency
of such requests, and the burden that designing and furnishing new reports would
place upon Licensee.
Section 15. Disclaimers and Limitations
15.1 DISCLAIMER OF WARRANTIES. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT,
NEITHER PARTY MAKES, AND EACH PARTY HEREBY WAIVES AND DISCLAIMS, ANY
REPRESENTATIONS OR WARRANTIES REGARDING THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OR IMPLIED WARRANTIES
ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
29
15.2 LIMITATION OF DAMAGES. EXCEPT TO THE EXTENT AWARDED TO A THIRD PARTY IN A
JUDGMENT AGAINST WHICH A PARTY IS ENTITLED TO INDEMNIFICATION PURSUANT TO
SECTION 13 OR TO THE EXTENT ARISING OUT OF AN INTENTIONAL MATERIAL BREACH OF
THIS AGREEMENT, NEITHER PARTY WILL BE LIABLE (WHETHER IN CONTRACT, WARRANTY,
TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHER THEORY), TO THE OTHER
PARTY OR ANY OTHER PERSON OR ENTITY FOR COST OF COVER OR FOR ANY INDIRECT,
INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR
LOSS OF PROFIT, BUSINESS OR DATA) ARISING OUT OF THIS AGREEMENT. IN NO EVENT
SHALL ANY PARTY BE LIABLE TO THE OTHER FOR ANY PUNITIVE DAMAGES, EVEN IN CASES
OF INTENTIONAL MATERIAL BREACH, EXCEPT TO THE EXTENT AWARDED TO A THIRD PARTY.
Section 16. Exclusivity.
16.1 Licensor. [*].
16.2 Licensee. Licensee agrees that the XXX.xxx Site shall not be used
directly or indirectly by Licensee to advertise or promote any TSA Competitor,
GSI Partner or GSI Venture, or to click-through to the Web Site of any TSA
Competitor, GSI Partner or GSI Venture. The foregoing limitation shall not be
deemed to restrict Licensee from advertising or promoting any merchandise vendor
on the XXX.Xxx Site in connection with the sale of such vendor's products
through the XXX.Xxx Site.
16.3 Hiring. During the Term, neither Party will, directly or indirectly,
solicit or hire or attempt to solicit or hire: (i) any existing employees, or
(ii) former employees who have worked for the other Party at any time during the
preceding 12 months, without the prior written approval of such other Party.
Nothing herein shall prevent a Party from hiring an employee or former employee
of the other Party who responds to a public advertisement for employment.
16.4 [*].
Section 17. Term and Termination
17.1 Term. The Term of this Agreement will commence on the Effective Date and,
unless earlier terminated as provided herein, will automatically terminate on
November 8, 2019.
17.2 Licensor Termination. Subject to Section 17.4, Licensor shall be entitled
to terminate this Agreement immediately upon written notice to Licensee: (a) if
Licensee [*] becomes insolvent, admits in writing its inability to pay debts as
they mature, institutes or has instituted against it any bankruptcy,
reorganization, debt arrangement, assignment for the benefit of creditors, or
other proceeding under any bankruptcy or insolvency law or dissolution,
receivership, or liquidation proceeding (and, if such proceeding is instituted
against it, such proceeding is not dismissed within sixty (60) days); (b) if
Licensee shall fail to make any payments, which are not subject to a good faith
dispute, promptly when due or to deliver any
30
reports as required hereunder; (c) if Licensee otherwise breaches in any manner
the terms of this Agreement; or (d) [*].
17.3 Licensee Termination. Subject to Section 17.4, Licensee shall be entitled
to terminate this Agreement immediately upon written notice to Licensor: (a) if
Licensor becomes insolvent, admits in writing its inability to pay debts as they
mature, institutes or has instituted against it any bankruptcy, reorganization,
debt arrangement, assignment for the benefit of creditors, or other proceeding
under any bankruptcy or insolvency law or dissolution, receivership, or
liquidation proceeding (and, if such proceeding is instituted against it, such
proceeding is not dismissed within sixty (60) days); or (b) if Licensor
otherwise breaches in any manner the terms of this Agreement.
17.4 Notice, Cure. Except as provided below, in the event of breach by
Licensee or Global Sports (as applicable) of any provision of this Agreement as
provided in 17.2(b), (c) or (d), or by Licensor of any provision of this
Agreement as provided in 17.3(b), the non-breaching Party shall give the
breaching Party notice in writing to cure the breach within sixty (60) days (the
"Notice Period"), and if the breach is not cured within such period, the non-
breaching Party shall be entitled to exercise any remedies it may have
hereunder, in law or equity, including, without limitation, its right to
terminate this Agreement effective upon expiration of the Notice Period,
provided however, that if such breach is capable of being cured but incapable,
by reason of its nature, of being cured within the Notice Period, the non-
breaching Party may not terminate this Agreement so long as the breaching Party
continues diligently to attempt to cure such breach and such breach is cured
within an additional sixty (60) day period. Notwithstanding the foregoing,
Licensor shall be deemed to have cured a breach premised upon failure [*] and
Licensee shall be deemed to have cured a breach premised upon failure [*].
17.5 Termination by Mutual Agreement. This Agreement may be terminated at any
time by mutual written agreement of the Parties.
17.6 Survival of Obligations. Expiration or termination of this Agreement for
any reason shall not affect obligations which (i) have accrued as of the date of
expiration or termination, (ii) arise out of occurrences prior to the
termination date, (iii) become effective upon termination or (iv) by their terms
continue after termination.
17.7 Post-Termination Process. Upon termination of this Agreement, the Parties
shall mutually cooperate to effect an orderly termination of their relationship
as Licensor and Licensee, and Licensee shall within thirty (30) days:
(a) Return to Licensor (or destroy) all TSA Content and Materials, to the
extent that such Materials contain Licensed Property, in its possession and
control, cease using and cause all Advertising and Marketing Partners of
Licensee to cease using the Licensed Property in any manner and for any purpose,
and take all steps necessary to delete any and all references to any Licensed
Property from its business licenses, permits, business forms, packaging, labels,
advertisements, promotions and other Materials;
31
(b) Upon reasonable request of Licensor, furnish sworn affidavits
attesting to compliance with subsection (a);
(c) Cease holding itself out as a licensee of Licensor or as an entity
otherwise authorized or permitted to use (or to sublicense others to use) the
Licensed Property; and
(d) Cooperate with Licensor at Licensor's expense in obtaining the
cancellation of any registration of this Agreement and amendment or cancellation
of any registered user agreements and corporate, domain name, business name or
like registrations relating to the Licensed Property. Licensee, upon Licensor's
written request and at Licensor's expense, shall execute all such documents as
may be necessary to fulfill this provision. If Licensee shall fail to execute
any such documents within thirty (30) days after Licensor's request, Licensee
hereby confirms that Licensor shall automatically be considered Licensee's
attorney-in-fact solely for the purpose of executing such documents pursuant to
this Section 17.7(d).
(e) Notwithstanding the foregoing, upon termination or expiration of this
Agreement for any reason, Licensee shall have, for a period of 180 days
thereafter, the right to sell off, on a nonexclusive basis, all of the unsold
Private Label Merchandise in Licensee's inventory that was on hand prior to such
termination or expiration.
17.8 Injunctive Relief. Subject to section 17.7(e) above, should Licensee fail
to cease using any Licensed Property upon termination of this Agreement,
Licensor may obtain, and Licensee hereby consents to a decree of any court of
competent jurisdiction ordering Licensee to immediately cease the use of the
Licensed Property and to otherwise comply with Section 17.7 above, to amend or
cancel any registration of this Agreement and any registered user agreements and
to amend or cancel any corporate or business name registrations and to change
its business name accordingly. Licensee's consent to this remedy is based upon
express recognition by Licensee that Licensor would otherwise suffer irreparable
harm and that monetary damages would therefore be an inadequate remedy for
Licensor.
17.9 [*].
Section 18. [*].
Section 19. Miscellaneous
19.1 Press Releases. All voluntary public announcements concerning the
transactions contemplated by this Agreement will be mutually acceptable to both
Licensor and Licensee. Unless required by law, neither Party will make any
public announcement or issue any press release concerning the transactions
contemplated by this Agreement without the prior consent of the other Party.
With respect to any announcement that any of the Parties is required by law to
issue, such Party shall, to the extent possible under the circumstances, review
the necessity for and the contents of the announcement with the other Party
before issuing the announcement; provided, however, if either Party cannot
obtain the consent of the other Party in a timely manner after submission of a
request for consent, the Party required to comply with law may issue the
32
press release or public announcement without obtaining the consent of the other
Party. Notwithstanding the preceding sentences in this Section 19.1, after the
initial public announcement of a particular matter or transaction contemplated
by this Agreement has been approved by the Parties, either Party's subsequent
reference to that particular matter or transaction will not require another
approval from the other Party.
19.2 No Partnership, Joint Venture or Agency. The Parties are entering this
Agreement as independent contractors, and this Agreement will not be construed
to create a partnership, joint venture, agency or employment relationship
between them. Neither Party will represent itself to be an employee or agent of
the other or enter into any agreement or legally binding commitment or statement
on the other's behalf of or in the other's name. Further, each Party shall be
completely responsible for the payment of all sums of money which may be due at
any time to its own employees, contractors, vendors, agents and representatives,
and for all other claims made by such Persons against another Party. No Party
shall for any reason be liable under this Agreement in any way for another
Party's termination of employment or other relationships with such Persons.
19.3 Confidentiality. (a) Each Party will protect the Confidential Information
of the other Party from misappropriation and unauthorized use or disclosure, and
at a minimum, will take precautions at least as great as those taken to protect
its own Confidential Information of a similar nature. Without limiting the
foregoing, the receiving Party will (i) use such Confidential Information solely
for the purposes for which it has been disclosed; and (ii) disclose such
Confidential Information only to those of its employees, agents, attorneys,
auditors, consultants, and others who have a need to know the same for the
purpose of performing this Agreement and who are informed of and agree to a duty
of nondisclosure (it being understood that each Party will remain liable with
respect to disclosure by its employees, agents, attorneys, auditors,
consultants, and others who have been provided by Confidential Information by
such Party). Further, the receiving Party will use, and cause its employees,
agents, attorneys, auditors, consultants, and others who have a need to know the
same for the purpose of performing this Agreement to use such Confidential
Information solely for the purposes for which it has been disclosed. Further,
the receiving Party may also disclose Confidential Information of the disclosing
Party to the extent necessary to comply with applicable law or legal process,
provided that the receiving Party uses reasonable efforts to give the disclosing
Party prompt advance notice thereof. Upon request of the other Party, or in any
event upon any termination or expiration of the Term, each Party will return to
the other all materials, in any medium, which contain, embody, reflect or
reference all or any part of any Confidential Information of the other Party.
(b) Neither Party will disclose this Agreement or the transactions
contemplated herein, or make any filing of this Agreement or other agreements
relating to the transactions contemplated herein, without the consent of the
other. If either Party reasonably determines that such disclosure is required
by applicable law, such Party shall be entitled to make such disclosure but will
first use all reasonable efforts to coordinate the disclosure with the other
Party, including the submission to the Securities and Commission (and any other
applicable regulatory or judicial authority) of an application for confidential
treatment of certain terms (which terms will be
33
agreed upon by the Parties) of this Agreement. Each Party will provide to the
other for review a copy of any proposed disclosure of this Agreement or its
terms and any application for confidential treatment prior to the time any such
disclosure or application is made, and the parties shall work together to
mutually approve such disclosure or application.
(c) If either Party is required to disclose Confidential Information
hereunder, but such disclosure is prohibited by confidentiality and non-
disclosure provisions contained in any agreement between a Party and any third
party such Party shall not be obligated to disclose such Confidential
Information; provided, however, that Party shall use commercially reasonable
efforts to secure a waiver from such third party and to make the disclosure
required hereunder.
19.4 Force Majeure. If either Party is unable to perform any of its
obligations under this Agreement due to an event wholly beyond the control of
that Party, including natural disaster, acts of God, actions or decrees of
governmental bodies, act of war, failure or discontinuance of the Internet or
failure of third party communications lines or networks, that Party will give
written notice to the other Party and will use commercially reasonable efforts
to resume performance of its obligations but will have no liability to the other
Party for failure to perform its obligations under this Agreement for so long as
it is unable to do so as a result of such event.
19.5 Compliance with Laws. In its performance of this Agreement, each Party
will comply in all material respects with all applicable laws, rules,
regulations, orders and other requirements, now or hereafter in effect, of
governmental authorities having jurisdiction over this Agreement, the XXX.xxx
Site, or the transactions contemplated herein, including compliance with export
and import control laws, applicable consumer protection, content labeling,
country of origin, health and safety laws, and privacy laws, and obtaining, at
the applicable Party's own expense, any and all approvals, licenses, business
registrations and/or permits required under the laws or regulations of such
governmental authority.
19.6 Insurance. Each Party will at its own expense obtain and maintain such
policy or policies of insurance as are required by law or as are commercially
reasonable for the transactions and business contemplated by this Agreement. In
addition, Licensee will obtain and maintain, with an insurer in good standing
and authorized to do business under the laws of the states where performance
shall occur, a comprehensive general liability policy, naming Licensor as an
additional insured, including contractual liability and products liability, with
broad form property damage and bodily injury (including personal injury)
coverage. The minimum limits for each shall be [*] per occurrence and [*]
annual aggregate. Such limits shall be adjusted by mutual agreement of the
Parties from time to time to reflect inflation and loss experience. Upon request
from Licensor, Licensee will furnish a certificate of insurance and such other
documentation relating to such policy as reasonably requested. Such
certificate of insurance shall provide that no change that would adversely
affect Licensor or cancellation of insurance shall be made without thirty (30)
days prior notice to Licensor.
19.7 Notices. Unless otherwise provided, all notices, consents or other
communications required or permitted to be given under this Agreement must be in
writing and shall be deemed to have been duly given (a) when delivered
personally, (b) three business days after being mailed by
34
first class mail, postage prepaid, or (c) one business day after being sent by a
reputable overnight delivery service, postage or delivery charges prepaid, to
the Parties at their respective addresses stated on the signature page of this
Agreement. Notices may also be given by electronic mail or facsimile and shall
be effective on the date transmitted if confirmed within 24 hours thereafter by
a signed original sent in the manner provided in the preceding sentence. Notices
to Licensee shall be sent to its address stated on the signature page of this
Agreement to the attention of the General Counsel, with a copy sent
simultaneously to the same address to the attention of its Chief Financial
Officer. Notices to TSA shall be sent to its address stated on the signature
page of this Agreement to the attention of the Chief Executive Officer, with a
copy sent simultaneously to the General Counsel. Notices to TSAMI shall be sent
to its address stated on the signature page of this Agreement to the attention
of the General Counsel. All notices to Licensor hereunder shall be sent to both
TSA and TSAMI. Any party may change its address for notice and the address to
which copies must be sent by giving notice of the new addresses to the other
parties in accordance with this Section 19.7, except that any such change of
address notice shall not be effective unless and until received.
19.8 Prohibition on Assignment. Neither party may assign any of its rights or
obligations under this Agreement without the prior written consent of the other
party, which consent may be withheld if, in the judgment of the other party,
such assignment would have an adverse effect on it. The licenses granted herein
may not be mortgaged or pledged by the applicable licensee without the prior
written consent of the applicable licensor.
19.9 Amendment. Except as otherwise provided herein, this Agreement may only
be amended, modified or supplemented by the Parties in writing and signed by
authorized officers of the Parties.
19.10 Waiver. Silence, acquiescence or inaction shall not be deemed a waiver
of any right. No waiver by a Party with respect to this Agreement will be
effective or enforceable against the other Party unless in writing and signed by
the other Party. Except as otherwise expressly provided herein, no failure to
exercise, delay in exercising, or single or partial exercise of any right, power
or remedy by a Party, and no course of dealing between or among any of the
Parties, will constitute a waiver of, or shall preclude any other or further
exercise of the same or any other right, power or remedy.
19.11 Counterparts and Transmitted Copies. This Agreement may be executed in
any number of counterparts, each of which when executed and delivered will be
deemed an original, but all of which taken together will constitute but one and
the same instrument, and it will not be necessary in making proof of this
Agreement to produce or account for more than one original counterpart hereof.
The Parties acknowledge that Transmitted Copies of this Agreement will be
equivalent to original documents until such time (if any) as original documents
are completely executed and delivered. "Transmitted Copies" means copies that
are reproduced or transmitted via facsimile, or another process of complete and
accurate reproduction and transmission.
19.12 Entire Agreement. This Agreement, together with the Exhibits to this
Agreement, represents the entire understanding between the Parties with respect
to the subject matter hereof
35
and supersedes all previous oral or written communications or agreements, and
all contemporaneous oral communications and agreements, between the Parties and
their respective Affiliates regarding such subject matter, including the
following agreements which are hereby terminated: (a) E-Commerce Venture
Agreement, dated May 7, 1999, by and between GSI and TSA, (b) Amendment No. 1 to
the E-Commerce Venture Agreement, dated May 14, 1999, by and between GSI and
TSA, (c) License Agreement, dated May 14, 1999, by and among TSA, TSAMI and
XXX.xxx, (d) E-Commerce Services Agreement, dated May 14, 1999, by and between
GSI and XXX.xxx, (e) E-Commerce Agreement, dated May 14, 1999, by and between
TSA and XXX.xxx, and (f) Agreement, dated May 14, 1999, by and between TSA and
GSI. Notwithstanding the foregoing, the indemnification rights and obligations
of the Parties pursuant to the foregoing agreements with respect to events
occurring on or before the Effective Date shall survive the execution and
delivery of this Agreement.
19.13 Severability. In the event that any part or portion of this Agreement
shall be deemed to be invalid or illegal, then such invalid or illegal portion
shall, so far as possible, not affect the validity or legality of the remainder
of this Agreement. Further, the Parties agree that they shall attempt to arrive
at a modification of any illegal or invalid part so as to render the same legal
and valid and within the keeping of the original tenor and spirit of the
Agreement.
19.14 CHOICE OF LAW. THIS AGREEMENT WILL BE INTERPRETED, CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE
TO ITS CHOICE OF LAW RULES.
19.15 Headings. The headings of sections and subsections of this Agreement are
for convenience of reference only and are not intended to restrict, affect or
otherwise influence the interpretation or construction of any provision of this
Agreement.
19.16 References. All words used in this Agreement shall be construed to be of
such number and gender as the context requires or permits. Unless a particular
context clearly provides otherwise (i) the words "hereof" and "hereunder" and
similar references refer to this Agreement in its entirety and not to any
specific section or subsection hereof, and (ii) the word "including" shall mean
including but not limited to.
19.17 Construction. The Parties agree that any rule of construction to the
effect that ambiguities are to be resolved against the drafting party shall not
be applied in the construction or interpretation of this Agreement or any other
agreements or documents delivered in connection with the transactions
contemplated by this Agreement.
19.18 Waiver of Jury Trial. Each Party hereby knowingly, voluntarily,
intentionally and irrevocably waives such right as any Party may have to a jury
trial in every jurisdiction in any action, proceeding or counterclaim brought by
either of the Parties hereto and/or their respective Affiliates in respect of
any matter arising out of or in connection with this Agreement (including any
action to cancel or rescind this Agreement, and any claims or defenses asserting
that this Agreement was fraudulently induced or otherwise void or voidable).
36
19.19 Further Documents. Each Party shall, upon request, make, execute and
deliver such documents as shall be reasonably necessary to take such action as
may be reasonably requested to fully implement and carry out the purposes of
this Agreement.
19.20 Binding Effect. Subject to Section 19.8, this Agreement, including all
covenants, agreements, representations, warranties and indemnifications set
forth herein, will be binding on and enforceable by the Parties and their
respective Affiliates and permitted assigns, including any trustee appointed
pursuant to Chapters 7 or 11 of the Bankruptcy Code.
19.21 Taxes on Agreement. Each Party shall pay any stamp duty or other tax or
duty applicable to such Party which is imposed on such Party in connection with
this Agreement.
19.22 [*].
(***************)
SIGNATURES APPEAR FOLLOWING PAGE
37
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
by their duly authorized representatives as of the Effective Date.
Global Sports Interactive, Inc. The Sports Authority, Inc.
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxx Xxxxxx
--------------------------- --------------------------------
Name: Xxxxxxx X. Xxxxx Name:
Title: President Title:
Address: 0000 Xxxxx Xxxxxx Address: 0000 Xxxxx Xxxxx Xxxx 0
Xxxx xx Xxxxxxx, XX 00000 Xxxx Xxxxxxxxxx, XX 00000
Telephone: [*] Telephone: [*]
Facsimile: [*] Facsimile: [*]
The Sports Authority Michigan, Inc.
By: /s/ Xxxxxx Xxxxxx
---------------------------
Name:
Title:
Address: 0000 Xxxxx Xxxxx Xxxx 0
Xxxx Xxxxxxxxxx, XX 00000
Telephone: [*]
Facsimile: [*]
[*]
38
FINAL
EXHIBIT A
LICENSE GUIDELINES AND RESTRICTIONS
-----------------------------------
A. General
-------
Unless a Vice President of Licensor agrees in advance, the following guidelines
and restrictions apply to Licensee and each company or other entity that may be
authorized under the License and E-Commerce Agreement dated July 6, 2001 (the
"LECA") to use certain of the "Marks" and "Names" as described in the LECA.
A consistent corporate image or identity is one of Licensor's strongest assets.
It provides immediate recognition and creates goodwill for Licensor, the "TSA
Stores" (as defined in the LECA) and Licensor's goods and services. The purpose
of this guide is to ensure a clear and consistent presentation of the Marks and
Names to Licensor's and Licensee's customers.
Licensee shall not alter the Marks from the form or formats used by Licensor or
received from Licensor, unless such alterations are approved in advance by
Licensor as set forth in Article 2.2(b) of the LECA. For example, the addition
of hyphens or spaces to a word Xxxx, creation of unauthorized acronyms, or
alteration of any design Marks or logos could weaken public recognition of the
Marks and damage their strength as a brand designation.
B. The Design xxxx THE SPORTS AUTHORITY & Design
---------------------------------------------
[Insert examples, with width to height ratios, labels for PMS colors, etc.]
C. The Design xxxx THE SPORTS XXXXXXXXX.XXX & Design
-------------------------------------------------
[Insert examples, with width to height ratios, labels for PMS colors, etc.]
D. Use.
---
1) Unacceptable Uses of the Marks.
------------------------------
Do not extend the top, bottom or center bars of the THE SPORTS
AUTHORITY & Design xxxx to extend beyond the ratios set forth above.
Do not substitute designs or objects for letters in any Xxxx.
Do not use old design versions of the Marks.
Do not combine any Xxxx with any other xxxx or element.
Do not use any other xxxx confusingly similar to the Marks.
Do not rotate or tilt any Xxxx at an angle.
Do not pluralize any Xxxx.
Do not use any design Xxxx in a sentence.
Do not add graphic elements to any design Xxxx.
Do not create repeating patterns of the Marks.
Do not place the Marks in a containing shape.
Do not change the horizontal or vertical scale of any design Xxxx.
Do not use any Xxxx in the possessive.
Do not print the design Marks or logos in any color other than as
specified by Licensor.
Do not reverse the design Marks or logos out of a background with
insufficient contrast.
Do not reverse the design Marks or logos out of a photograph.
Do not reverse the design Marks or logos out of patterned backgrounds.
1
2) Clear Space. A minimum clear space on all sides of any Xxxx shall be
-----------
kept free of other visual elements. The minimum clear space shall be
appropriate under the circumstances under which such Xxxx is being
used.
3) Staging. Staging involves proper placement, scale, and proportion of
-------
any Xxxx and how it aligns with typography and other elements.
Licensee shall always surround the subject Xxxx by the minimum
preferred clear space as provided in Section 2 above. Licensee shall
avoid staging any Xxxx at the edge of a page. Licensee shall not place
any Xxxx so that it "bleeds" off the edge of materials.
4) Presentation with Third-Party Trademarks. When presented with any
----------------------------------------
third party trademark, the Marks must be of at least equal size in
comparison to such third party trademark. Licensee shall not print any
Xxxx in black if the third party trademark appears in color.
Notwithstanding the foregoing, Licensor acknowledges and agrees that
certain advertising and marketing arrangements entered into with
Advertising and Marketing Partners of Licensee hereunder, (a) the
XXX.xxx Site may be "framed" by certain of the Advertising and
Marketing Partners of Licensee which frame will include trademarks or
service marks of such Advertising and Marketing Partners of Licensee,
and (b) certain Web Sites of the Advertising and Marketing Partners of
Licensee may include logos, marks, trade names, trade marks, offers,
and related material of third parties, in either case which are larger
than the Marks or place more emphasis on such other logos, marks,
trade names, trade marks, offers, and related material over the Marks.
5) Design Marks or Logos. Except as provided in Article 2.2(b) of the
---------------------
LECA, Licensee shall always reproduce each logo or design exactly as
specified by Licensor using approved original reproduction art or
digital files available from Licensor's Advertising and Marketing
Department.
The above usage rules are "best practices." When circumstances beyond
Licensee's control prevent full compliance with any given rule, Licensee shall
submit the proposed deviation to Licensor for prior review and approval as set
forth in Section 2.2(b).
E. Corporate Names versus Marks. Licensor's proper corporate names are:
----------------------------
The Sports Authority, Inc.,
and
The Sports Authority Michigan, Inc.
When referring to either company in any format be sure to use the full corporate
name, without dropping the article "The" or the comma (and be sure to place the
comma in the proper place). Both names are proper nouns, like "Xxxxx" or
"Lincoln." In contrast, the Marks are adjectives and should not be used as
nouns. For example, one would refer to THE SPORTS AUTHORITY brand athletic bags.
The Xxxx should be used as an adjective and not as a noun, and it should appear
in all capital letters to set it off from other printed matter. Finally,
although either corporate name can be used in the possessive form (e.g., "The
Sports Authority, Inc.'s"), the Marks should not be used in the possessive form.
X. Xxxxx - Notices
---------------
As soon as a given Xxxx is registered with respect to certain goods or certain
services in the U.S., Canada and/or other key markets as determined by Licensor,
Licensor may inform Licensee and Licensee shall commence marking all "Materials"
(as defined in the LECA) subject to such registration(s) with one or more of the
following phrases, as determined by the application and available space, taking
care to use the second phrase whenever possible:
2
"Registered Trademark"
[In English or such other languages as instructed by Licensor]
or
"(R) Registered Trademark of The Sports Authority, Inc. and/or The Sports
Authority Michigan, Inc., used under license."
[In English or such other languages as instructed by Licensor]
or
"(R) The Sports Authority Michigan, Inc."
or
"(R)"
The registration notices should be placed immediately adjacent to any Xxxx,
logo, slogan or other Materials incorporating registered trademarks or service
marks wherever possible. Such notices advise third parties of the existence of
the subject registration(s), and warn them to refrain from adopting or using an
identical or confusingly similar xxxx.
G. Content of XXX.xxx Site
-----------------------
1. Each party shall notify the other of all errors, omissions, and/or
inaccuracies in the TSA Content, as developed, used or authorized by
Licensee, within forty-eight (48) hours after it becomes aware
thereof.
2. If Licensee provides such notice, it shall specify to Licensor what
action, if any, it has taken to correct the error, omission and/or
inaccuracy.
3. If Licensor provides such a notice, or receives such notice, it may
specify reasonable actions to be taken by Licensee to correct the
error, omission and/or inaccuracy or resubmit such content.
H. Copyright Notices
-----------------
1. Upon request from Licensor, Licensee shall place an appropriate
copyright notice to be furnished by Licensor on all pages containing
Non-Shopping Content.
2. Licensee and Licensor shall mutually develop the procedures for
placing any third party copyright notice on any page containing Non-
Shopping Content.
3
Exhibit B - The Xxxxx
XXXX GOODS/SERVICES CL SER. NO. REG. NO.
AUTHORITY retail store services in the field of sporting goods 42 74-695,504 2,074,354
and equipment, apparel, footwear, headgear and related
goods and services
AUTHORITY apparel, namely, rainwear, jackets, coats, suits, 25 366,111 1,245,417
slacks and vests
AUTOGRAPH AUTHORITY computerized on-line retail store services featuring 35 75-711,996 2,335,979
collectibles, trading cards and autographed 42
memorabilia (35); computer services, namely providing
information on collectibles, trading cards and
autographed memorabilia, by means of a global
computer information network (42).
BASKETBALL AUTHORITY retail store services in the field of sporting goods 42 74-695,510 2,074,358
and equipment, apparel, footwear, headgear and related
goods and services
EXERCISE AUTHORITY retail store services in the field of sporting goods 42 74-695,506 2,082,095
and equipment, apparel, footwear, headgear and related
goods and services
FISHING AUTHORITY retail store services in the field of sporting goods 42 74-695,507 2,074,356
and equipment, apparel, footwear, headgear and related
goods and services
FITNESS AUTHORITY retail store services in the field of sporting goods 42 74-695-513 2,079,864
and equipment, apparel, footwear, headgear and related
goods and services
FOOTWEAR AUTHORITY retail store services in the field of sporting goods 42 74-695,653 2,082,096
and equipment, apparel, footwear, headgear and related
goods and services
GET OUT AND PLAY retail outlets featuring clothing, footwear, outerwear 35 76-124,181
and headgear; advertising for others; sales promotion
for others
GOLF AUTHORITY retail store services in the field of sporting goods 42 74-695,512 2,074,359
and equipment, apparel, footwear, headgear and related
goods and services
HOCKEY AUTHORITY retail store services in the field of sporting goods 42 74-695,651 2,079,866
and equipment, apparel, footwear, headgear and related
goods and services
HOT NEW NOW retail store services featuring apparel, footwear, 35 76-010,291
headgear, sporting goods and equipment, gifts and
related goods and services; computerized retail store
services featuring apparel, footwear, headgear,
sporting goods and equipment, gifts and related goods
and services; cooperative advertising services
HUNTING AUTHORITY retail store services in the field of sporting goods 42 74-695,508 2,074,357
and equipment, apparel, footwear, headgear and related
goods and services
IN-LINE SKATE AUTHORITY retail store services in the field of sporting goods 42 74-695,502 2,074,353
and equipment, apparel, footwear, headgear and related
goods and services
1
Exhibit B - The Xxxxx
XXXX GOODS/SERVICES CL SER. NO. REG. NO.
MAIL AUTHORITY telephone answering, photocopying and business 35 75-167,549 2,284,347
management services (35); postal services, namely 42
rental of mail boxes, mail forwarding, packaging
articles for transportation, and receipt and delivery
of mail and parcels for others (42)
MARINE AUTHORITY retail store services in the field of sporting goods 42 74-695,655 2,079,867
and equipment, apparel, footwear, headgear and related
goods and services
MUSCLE AUTHORITY magazines and newsletters pertaining to exercise and 16 75-618,602 2,335,185
fitness
OUTDOOR AUTHORITY retail store services in the field of sporting goods 35 74-695,514
and equipment, apparel, footwear, headgear and related
goods
OUTERWEAR AUTHORITY retail store services in the field of sporting goods 42 74-695,509 2,076,213
and equipment, apparel, footwear, headgear and related
goods and services
PANTS AUTHORITY retail outlets featuring clothing, footwear, 35 75-509,313
outerwear and headgear
PARTS AUTHORITY retail outlets featuring sporting goods and equipment 42 75-076,697
and parts, components and materials for use with the
same; rental of sporting goods and protective
clothing and equipment
PREPARE YOURSELF retail store services in the fields of fitness, 35 75-277,570 2,176,490
sporting goods and equipment, apparel, footwear, 42
headgear and related goods and services; cooperative
advertising (35); computer services, namely providing
information on fitness, sporting goods and equipment,
apparel, footwear, headgear and related goods and
services by means of a global computer information
network in class 42
RUNNING AUTHORITY retail store services in the field of sporting goods 42 74-695,654 2,082,097
and equipment, apparel, footwear, headgear and related
goods and services
SHOE & APPAREL AUTHORITY retail store services in the field of sporting goods 42 74-695,501 2,074,352
and equipment, apparel, footwear, headgear and related
goods and services
SPORTS AUTHORITY FOOD, restaurant services 42 74-256,187 2,074,782
SPIRITS AND SPORTS and
Design
2
Exhibit B - The Xxxxx
XXXX GOODS/SERVICES CL SER. NO. REG. NO.
XXXXXXXXXXXXXXX.XXX computerized on-line retail store services featuring 35 75-636,136
clothing, footwear, outerwear and headgear; retail 42
outlets featuring clothing, footwear, outerwear and
headgear; dissemination of advertising for others via
an on-line electronic communication network; promoting
the goods and services of others by preparing and
placing advertisements on a web site accessed through
a global computer network; promoting sports teams,
competitions and events for others (35); computer
services, namely providing information on clothing,
footwear, outerwear and headgear by means of a global
computer information network (42)
TEAM SPORTS AUTHORITY retail store services in the field of sporting goods 42 74-695,505 2,074,355
and equipment, apparel, footwear, headgear and related
goods and services in Class 42
TENNIS AUTHORITY retail store services in the field of sporting goods 42 74-695,511 2,076,214
and equipment, apparel, footwear, headgear and related
goods and services
THE SPORTS AUTHORITY retail store services featuring sporting equipment 42 73-736,556 1,527,526
and clothing
THE AFFILIATE AUTHORITY promoting the goods and services of others through 35 76-176,168
partnership marketing programs, providing access to a
partnership marketing network of merchants and other
businesses; and computerized on line retail store
services featuring clothing, footwear, outerwear and
headgear.
THE AUTHORITY ON SPORTING rental of sporting goods, including protective 41 75-136,153 2,101,178
GOODS clothing and equipment; retail store services in the 42
fields of fitness, sporting goods and equipment,
apparel, footwear, headgear and related goods.
THE BICYCLE AUTHORITY repairs and maintenance of bicycles in International 37 74-471,949 2,003,381
Class 37; retail store services in the field of 42
bicycles and related accessories in International
Class 42
THE CLUB AUTHORITY management of recreation and fitness clubs of others; 35 74-708,805 1,999,520
and business consulting services relating to health,
recreation and fitness clubs
THE KNIFE AUTHORITY retail store services featuring sale of sporting goods 42 74-596,250 1,963,911
and equipment, footwear and clothing
THE LEAGUE AUTHORITY retail outlets featuring clothing, footwear, outerwear 35 76-054,340
and headgear; advertising for others; sales promotion
for others.
THE LOW PRICE AUTHORITY retail store services comprising sale of sporting 42 74-595,324 1,937,000
goods and equipment, footwear and clothing
THE OUTLET AUTHORITY retail outlets featuring clothing, footwear, outerwear 35 76-176,169
and headgear; advertising for others; sales promotion
for others.
THE SHOE AUTHORITY retail store services in the field of sporting goods 42 74-622,104
and equipment, apparel, footwear and related products
and accessories
3
Exhibit B - The Xxxxx
XXXX GOODS/SERVICES CL SER. NO. REG. NO.
THE SKI AUTHORITY retail store services featuring ski equipment and 42 74-116,271 1,688,221
clothing
THE SPORTS AUTHORITY ladies apparel, namely shirts, and mens apparel, 25 74-362,909 1,821,430
namely hats, visors, pants, shirts, shorts and swim
trunks
THE SPORTS AUTHORITY athletic tape and pre-wrap; balls, bats and gloves for 28 75-076,695
games; body-building machines; fishing hooks and
tackle; hand, knee and elbow guards for sports use;
nets for sports; protective paddings for sports;
racket strings for tennis, badminton, squash and
racquetball; toy figures, inflatable ride-on toys,
plush toys, and water-squirting toys; wax for skis.
THE SPORTS AUTHORITY for computer services, namely interactive on-line 42 75-076,694 2,102,208
publications in the fields of sporting goods and
equipment, apparel , footwear, headgear and related
goods and services
THE SPORTS AUTHORITY 16: scorebooks, instruction guides and books in the 16 75-076,675 2,071,449
fields of sports, exercise, fitness and recreation; 18
clip boards; printed forms; printed matter, namely art 24
pictures, art prints, bags for merchandise packaging, 25
calendars, gift certificates, illustrations, price 26
tags, and magazines in the fields of sports, exercise, 35
fitness and recreation; score cards; stationery. 18: 36
bags for travel and sports. 24: towels. 25: clothing,
namely shirts, tops, pants and shorts; head wear;
hosiery; sweat bands. 26: shoe laces. 35: advertising
for others; import-export agency; marketing research;
purchasing agents; sales promotion for others;
promoting sports teams, competitions and events for
others; 36: sponsoring sports teams, competitions and
events for others
THE SPORTS AUTHORITY stringing and re-gripping racquetball, squash and 37 75-501,083 2,274,172
tennis racquets, sizing and drilling bowling balls, 39
line winding for fishing reels, customizing arrows for 40
archery, sighting of firearms (37); parcel delivery;
delivery of goods by truck and van (39); and assembly
of goods for others (40).
THE SPORTS AUTHORITY telephone calling card services 36 75-521,226 2,249,780
THE SPORTS AUTHORITY credit card services 36 75-539,949 2,333,857
THE SPORTS AUTHORITY & retail store services featuring sporting equipment 42 73-736,555 1,529,035
Design and clothing
THE SPORTS AUTHORITY DIRECT electronic retailing services via a global computer 35 76-133,396
network, direct mail advertising and mail order
services, all in the fields of sporting goods and
equipment, apparel, footwear, headgear and related
goods and services
4
Exhibit B - The Xxxxx
XXXX GOODS/SERVICES CL SER. NO. REG. NO.
THE SPORTS AUTHORITY electronic retailing services via a global computer 35 76-133,997
DIRECT YOUR 24/7 SPORTS network, direct mail advertising and mail order
STORE services, all in the fields of sporting goods and
equipment, apparel, footwear, headgear and related
goods and services
XXXXXXXXXXXXXXXXXX.XXX computerized on-line retail store services featuring 35 75-636,870
clothing, footwear, outerwear and headgear; retail 42
outlets featuring clothing, footwear, outerwear and
headgear; dissemination of advertising for others via
an on-line electronic communication network; promoting
the goods and services of others by preparing and
placing advertisements on a web site accessed through
a global computer network; promoting sports teams,
competitions and events for others (35); computer
services, namely providing information on clothing,
footwear, outerwear and headgear by means of a global
computer information network (42)
XXX.XXX mens and ladies apparel, namely shorts, pants, shirts, 25 75-925,065
hats, caps, visors, hosiery and outerwear (25); balls, 28
bats and gloves for games, protective guards and 35
paddings for sports, toy figures, inflatable ride on 42
toys, plush toys, and water-squirting toys (28);
retail store services featuring apparel, footwear,
headgear, sporting goods and equipment, collectibles,
gifts and related goods and services, computerized
on-line retail store services featuring apparel,
footwear, headgear, sporting goods and equipment,
collectibles, gifts and related goods and services,
cooperative advertising (35); rental of sporting
goods, bicycles and protective clothing and equipment
(41); computer services, namely providing information
on apparel, footwear, headgear, sporting goods and
equipment, collectibles, gifts and related goods and
services by means of a global computer information
network (42).
YOUR ONLINE AUTHORITY retail store services featuring apparel, footwear, 35 76-083,584
headgear, sporting goods and equipment, collectibles,
gifts and related goods and services, computerized
on-line retail store services featuring apparel,
footwear, headgear, sporting goods and equipment,
collectibles, gifts and related goods and services,
cooperative advertising
YOUR SUMMER AUTHORITY retail store services featuring apparel, footwear, 35 76-083,583
headgear, sporting goods and equipment, collectibles,
gifts and related goods and services, computerized
on-line retail store services featuring apparel,
footwear, headgear, sporting goods and equipment,
collectibles, gifts and related goods and services,
cooperative advertising
5
Exhibit C - The Names
Domain Name Reg. Date Registrar Pointed At
[*] [*] [*] [*]
EXHIBIT D
---------
Non-Shopping Features
(a) Employment Opportunities - At the TSA Stores or at Licensor's offices.
Licensee shall furnish technology to allow Licensor to update as frequently
as Licensor desires.
(b) Public Financial Information SEC Filings and Annual Reports - SEC filings
shall be provided by a link so long as the government (or Licensor)
makes such filings available at no cost. Both SEC filings and annual
reports shall be provided only if available in portable document
format; in the alternative, Licensee shall provide such information to
Customers as received from Licensor's investor relations or legal
departments, in a form and format in as agreed upon by the Parties.
(c) TSA Store Locator - to be updated as such information changes and is
received from Licensor.
(d) Licensor's Corporate Information - to be updated as such information
changes and is received from Licensor.
(e) Licensor's Community Programs - to be updated as such information changes
and is received from Licensor.
(f) Press Releases - Licensee shall furnish technology to allow Licensor to
update and post Licensor's Press Releases on the XXX.xxx Site directly.
Licensor shall be able to post its press releases on the XXX.xxx Site as it
desires. Unless the Parties otherwise agree to the contrary, this feature
and such press releases shall deal with Licensor and the TSA Stores, and
not with Licensee or the XXX.xxx Site.
(g) "Contact Us" Section for TSA Stores (rather than XXX.xxx Site) to be
updated as such information changes and is received from Licensor.
EXHIBIT E
[*]
1
Exhibit F
Three Tier Approval Process for Advertising
-------------------------------------------
and Promoting the XXX.xxx Site
------------------------------
Except with respect to any proposed sublicense, newly coined trademark or
service xxxx, or proposed alterations of the Marks, all of which shall be
governed first by Article 2 of the License and E-Commerce Agreement, there shall
be three tiers of online and/or offline promotional or advertising agreements or
arrangements that Licensee may enter into with Advertising and Marketing
Partners of Licensee for the XXX.xxx Site, and corresponding three tier approval
process.
[*]
1
Exhibit G
Functionality and Features
--------------------------
Shop by Brand
Search by Keyword or Online Item Number
Browse Category/Family/Item
The Outlet Authority
Gift Shop
Professional and Collegiate Licensed Goods Shops
Group Sales
Product Presentation
Related Products
"Info Zone" Tips & Guides
Product Comparison
Shopping Cart
Online Checkout with Secure Ordering
Email Notification of Orders
Order Tracking
User Login/Registration
User Profile Management Reporting Tools for Site Performance, Sales and Traffic
24 /7 Real Time Customer Service Via Toll-Free Telephone
Affiliate Program
Gift Giving Functionality (including Gift Certificates)
Order Processing (including tax and shipping costs configurators)
Discount entry
Shipping Information
Non-shopping Content (as described in Exhibit D)
"About Us"
Privacy Policy
1
EXHIBIT H
[*]
1
EXHIBIT I
Order Processing and Fulfillment
--------------------------------
. Order Receipt, Confirmation and Processing
. Establishment of Terms and Conditions of Sale of Merchandise
. Credit Card Authorization and Processing
. Inventory, Receipt, Control and Management
. Pick, Pack and Ship Orders
. Shipping Management and Tracking
. Returns Processing
1
Exhibit J
[*]
Exhibit J1
[*]
EXAMPLE "J-1"
[*]
EXAMPLE "J-2"
[*]
EXAMPLE "J-3"
[*]
EXAMPLE "J-4"
[*]
EXHIBIT "K"
Site Security and URL Registration
. SSL Certificates. These certificates are used for secure e-commerce
----------------
transactions. The certificates certify that the customer is giving their
personal information to a site which indeed is an authorized representative of
the store where they are shopping. Verisign is the certification body and will
need to contact an officer within the company regarding our request for these
SSL certificates as a third party.
Main store url (domain): xxx.xxxxxxxxxxxxxxxxxx.xxx
Internic registrant company name for this domain: The Sports Authority, Inc.
Company address: 0000 Xxxxx Xxxxx Xxxx 0
Xx. Xxxxxxxxxx, XX 00000
(Corporate contact must be an officer in the company named above who has
sufficient authority to approve the validity of GSI's request to represent the
said company in e-commerce transactions)
Corporate contact: [*]
Title: [*]
Phone: [*]
Fax: [*]
Dun and Bradstreet number for above company: [*]
. DNS. DNS is the Internet address system which allows a customer to reach
---
the the new store via the desired URL such as xxx.xxxxx.xxx. This needs to be
-------------
hanged at least one week prior to the expected store launch so that the changes
have been propagated to all DNS servers on the Internet. Our policy is to
support your existing store ip address on our servers, so that even after the
DNS has been updated to point to our servers, your existing site will still be
reachable until we have launched the new store.
DNS Technical contact for main URL listed above: [*]
Contact phone: [*]
Contact email address: [*]
. Email aliases. These are the email aliases which customers will use
-------------
associated with the e-commerce store such as xxxxxxxxxxxxxxx@xxxxxx.xxx. If your
--------------------------
company uses this domain for mail, you need to add forwarding for the listed
email aliases below that will point to the corresponding mailbox on our servers.
Email aliases which need to be created on your mail server:
Your mail server points to our mail server
[*]
Who to contact for updating company email server with new aliases: Engineer on
duty
Phone: [*]
Email: [*]
