EXHIBIT 10.32
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.
LICENSE AGREEMENT
THIS LICENSE AGREEMENT ("Agreement") is made and entered into as of the
14th day of May, 1999 (the "Effective Date") by and between THE SPORTS
AUTHORITY, INC., a Delaware corporation with its principal place of business at
0000 Xxxxx Xxxxx Xxxx 0, Xxxx Xxxxxxxxxx, Xxxxxxx 00000, X.X.X. ("TSA"), and THE
SPORTS AUTHORITY MICHIGAN, INC. a Michigan corporation with its principal place
of business at 000 Xxxxx Xxxxxxxxxx, Xxxxx 000, Xxxxx Xxx, Xxxxxxxx 00000
("TSAMI"; or collectively, "Licensor"), and XXXXXXXXXXXXXXXXXX.XXX, INC., a
Delaware corporation with its principal office at 000 Xxxxx Xxxxxxxxx Xxxx, Xxxx
xx Xxxxxxx, Xxxxxxxxxxxx 00000 ("XXX.XXX" or "Licensee").
WHEREAS, TSAMI, its parent company TSA and TSA's other retailing
subsidiaries The Sports Authority Florida, Inc., Authority International Inc.
and The Sports Authority Canada, Inc. comprise the largest full-line sporting
goods retailer in the U.S. and Canada, each operating full line sporting goods
stores under the name and xxxx THE SPORTS AUTHORITY;
WHEREAS, TSAMI is the owner of certain Marks, Names and TSA Content (as
each is defined below) in the U.S., Canada and Japan; TSA is the owner of
certain Marks, Names and TSA Content throughout the world other than in the
U.S., Canada and Japan; and both TSAMI and TSA are the owners of certain TSA
Buying Power (as defined below);
WHEREAS, TSA and Global Sports Interactive, Inc. ("GSI") have agreed
under a certain E-COMMERCE VENTURE AGREEMENT dated May 7, 1999 (the "EVA") to
form XXX.XXX to develop and operate the "TSA Site" (as defined below) on the
"Internet" (as defined below);
WHEREAS, TSA and XXX.XXX have agreed under a certain E-COMMERCE
AGREEMENT dated May 14, 1999 (the "ECA") that XXX.XXX shall create, develop,
operate, maintain, advertise and promote the TSA Site;
WHEREAS, GSI and XXX.XXX have agreed under a certain E-COMMERCE
SERVICES AGREEMENT dated May 14, 1999 (the "ESA") that GSI shall perform many of
the services described in the ECA; and
WHEREAS, XXX.XXX desires to license from TSA and TSAMI certain of the
Marks, Names, TSA Buying Power and TSA Content owned or controlled by TSA and
TSAMI for use in creating, developing, operating, maintaining, advertising and
promoting the TSA Site;
NOW, THEREFORE, in consideration of the mutual promises, undertakings
and covenants herein, and for other valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties hereby respectively
grant, covenant and agree as follows:
ARTICLE I
DEFINITIONS
1.1 "Advertising and Marketing Partners of Licensee" shall mean operators or
proprietors of search engines, portals, community sites, content sites, on-line
retailers, shopping, regional and industry directories, push sites, and other
Internet sites capable of attracting Customers for the TSA Site, or desirous of
attracting Customers from the TSA Site to their sites, with whom Licensee
contracts for exchanges of advertising and promotional services and any form of
compensation. For purposes of this Agreement, Licensee shall not contract with
TSA Competitors (as defined below) and the same shall be excluded from the
definition of Advertising and Marketing Partners of Licensee.
1.2 "Affiliate(s)" shall mean an entity directly or indirectly controlling
(through one or more intermediaries), controlled by or under common control with
a given "Party" (as defined below), where control means the ownership or
control, directly or indirectly, of fifty percent (50%) or more of all of the
voting power of the shares (or other securities or rights) entitled to vote for
the election of directors or other governing authority; provided that such
entity shall be considered an Affiliate only for the time during which such
control exists.
1.3 "Business Day(s)" shall mean any day which is not a Saturday, Sunday or
official federal holiday in the U.S.
2
1.4 "Customer" shall mean a consumer who purchases or otherwise receives
Services, Materials, General Merchandise or Own Brand Merchandise furnished by
Licensee from the TSA Site as permitted hereunder.
1.5 "Fiscal Year" shall mean Licensee's fiscal year. Licensee shall give at
least ninety (90) days advance notice to Licensor of any change in designation
of Licensee's Fiscal Year.
1.6 "General Merchandise" shall mean any goods offered, sold or furnished by
Licensee from the TSA Site as permitted hereunder, other than Own Brand
Merchandise.
1.7 "Net Sales" shall mean as defined by GAAP in the United States.
1.8 "Internet" shall mean a 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, 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 or means. Internet shall also mean
on-line services such as AOL, CompuServe and Prodigy.
1.9 "Licensed Property" shall mean the Marks, Names, TSA Buying Power and TSA
Content which Licensor has agreed to license to Licensee under Articles 2.1-2.4.
1.10 "License Guidelines And Restrictions" shall mean the clearance, form,
format and use restrictions and procedures set forth in EXHIBIT A, attached,
which Licensee shall adhere to at all times in its use of the Licensed Property
on or in connection with the TSA Site and on or in connection with any site of
the Advertising and Marketing Partners of Licensee linked with or to the TSA
Site.
1.11 "Marks" shall mean:
(a) the xxxx THE SPORTS AUTHORITY in English in block letters and any
equivalent in foreign language characters, and certain THE SPORTS
AUTHORITY logotypes, and such other trademarks and service marks, which
are proprietary to Licensor, as shall be identified in writing by
Licensor from time to time, together with
3
associated trademark and service xxxx applications and registrations
therefor, all as more specifically described in EXHIBIT B attached
hereto and incorporated herein, as EXHIBIT B may be modified from time
to time in writing by Licensor as further set forth in Article 2.1(b);
(b) all related emblems, logos and symbols, and all combinations, forms
and derivations thereof as are currently or hereafter used by Licensor
in connection with Own Brand Merchandise (as defined below); and
(c) the Trade Dress (as defined below) inherent in the design, layout
and presentation of TSA Stores or in the TSA Content in the U.S.A. and
Canada, including, without limitation, such Trade Dress as may be
subject to protection under applicable intellectual property or
industrial property laws and regulations of countries within the
Territory.
1.12 "Materials" shall mean exterior and interior signs, flags, banners,
packaging, labels, print, electronic and broadcast advertising and promotional
media, indexes and pages on Internet sites (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 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, and the like, bearing
any of the Marks and used on or in connection with furnishing the Services,
General Merchandise, or Own Brand Merchandise or with the TSA Site.
1.13 "Names" shall mean the following Internet domain names or URLs registered
in the name of either TSAMI or TSA, or both, together with any additions as may
be notified to Licensee from time to time in writing by Licensor, or any
deletions as agreed by the Parties:
/bullet/ xxxx://xxx.xxxxxxxxxxxxxxx.xxx
/bullet/ xxxx://xxx.xxxxxxxxxxxxxxxxxx.xxx
/bullet/ xxxx://xxx.xxxxxxxxxxxxxxx.xxx
/bullet/ xxxx://xxx.xxxxxxxxxxxxxxxxxx.xxx
/bullet/ xxxx://xxx.xxxxxx-xxxxxxxxx.xxx
/bullet/ xxxx://xxx.xxxxxxxxxxxxxxx.xxx
/bullet/ xxxx://xxx.xxxxxxxxxxxxxxxxxx.xxx
/bullet/ xxxx://xxx.xxxxxx-xxxxxxxxx.xxx
/bullet/ xxxx://xxx.xxxxxxxxxxxx.xxx
4
/bullet/ xxxx://xxx.xxxxxxxxxxxxxxx.xxx
/bullet/ xxxx://xxx.xxxxxxxxxxxx.xxx
/bullet/ xxxx://xxx.xxxxxxxxxxxxxxx.xxx
/bullet/ xxxx://xxx.xxxxxxxxxxxx.xxx
/bullet/ xxxx://xxx.xxxxxxxxxxxxxxx.xxx
1.14 "Own Brand Merchandise" shall mean any and all goods bearing or otherwise
sold under or in connection with packaging or labels bearing the xxxx THE SPORTS
AUTHORITY, XXXXXXXXXXXXXXXXXX.XXX or the xxxx THE SPORTS AUTHORITY & Design, as
permitted hereunder and subject always to Licensor's prior written approval and
instructions.
1.15 "Party" shall mean the Licensor or Licensee; "Parties" shall mean both of
them.
1.16 "Related" company or companies shall mean any legal entity which holds
directly or indirectly more than fifty percent (50%) of the issued share capital
or capital stock of GSI or TSA, or of which GSI or TSA or their parent companies
hold directly or indirectly more than fifty (50%) of the issued share capital or
capital stock, in any event not to include Licensee. An entity shall be deemed
to hold shares indirectly if the shares are held by another entity that is
majority controlled, either directly or through other majority controlled
entities, by such first mentioned entity.
1.17 "Royalties" shall mean the following:
--------------------------------------------------------------
[*]of any and all Net Sales during any Fiscal Year (or portion
thereof) during the Term and any permitted extension.
--------------------------------------------------------------
The Royalties shall be paid by Licensee in consideration for use of the Marks,
TSA Content and TSA Buying Power hereunder, but not for use of the Names.
Licensor shall receive consideration for use of the Names as provided in Article
3.3 of the E-COMMERCE VENTURE AGREEMENT. Upon request of any Party, the
Royalties may be reviewed from time to time to insure that they are commensurate
with the income derived by Licensee from use of the Licensed Property and to
ensure the Parties' compliance with applicable transfer pricing rules. The
Royalties may be amended only by mutual written agreement of the Parties.
5
1.18 "Services" shall mean those services:
(a) offered by Licensee to Customers at or through the TSA Site,
including, without limitation, retail store services in the
fields of sporting goods, athletic footwear, athletic apparel
and related goods as furnished on the Internet at the URL
"xxxx://xxx.xxxxxxxxxxxxxxxxxx.xxx," as well as sporting goods
assembly, repair and maintenance, racquet stringing, layaway,
delivery, customer loyalty programs, and related services; and
(b) those advertising and promotional services offered by Licensee
to Advertising and Marketing Partners of Licensee, including,
without limitation, services intended to increase Customer
traffic at the TSA Site, and services intended to attract
Customers from the TSA Site to the sites of Advertising and
Marketing Partners of Licensee.
1.19 "Subsidiary" shall mean any company owned or controlled by Licensee, or by
Licensor.
1.20 "Term" shall mean the period commencing with the Effective Date and
continuing approximately fifteen (15) years through December 31, 2014 unless
this Agreement is otherwise earlier terminated as provided in Article 5.8 below.
1.21 "Territory" shall mean throughout the universe EXCLUDING Japan.
1.22 "TSA Buying Power" shall mean Licensor's volume purchasing power and
ability to obtain other favorable terms in procuring goods and services from
Licensor's vendors, including without limitation, favorable pricing, delivery,
exclusivity, makeup, display, advertising and promotion, defective allowance and
merchandise return terms and other consideration.
1.23 "TSA Competitor" shall mean: (a) any person, firm or corporation or other
entity (other than TSA and its retailing Subsidiaries) which either directly or
indirectly derives twenty percent (20%) or more of its revenues from the sales
or distribution of sporting goods, athletic apparel, athletic footwear or
related goods and services, whether operating from stores located in the U.S.,
Canada or Japan or any other nation in which the predominant language is English
or any other nation in which TSA establishes TSA Stores during the Term of this
Agreement, whether by mail order, home shopping through audio or video
programming, over the Internet or otherwise; and (b) any retailing entity which
would clearly be regarded as a competitor of TSA by the U.S. Department of
Justice under federal antitrust and competition laws and regulations.
6
1.24 "TSA Content" shall mean:
(a) text, graphics, photographs, video, audio and/or other data or
information relating to any subject furnished by Licensor to
Licensee and intended solely for use in connection with the
TSA 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 possesses
and has the right to transfer and license to Licensee, and
which Licensor deems necessary to successful operation of the
TSA Site, including, without limitation, 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, rebates, sizes, colors, decoration, display,
pricing, 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.
1.25 "TSA Gift Certificates" shall mean gift certificates bearing the marks THE
SPORTS AUTHORITY and THE SPORTS AUTHORITY & Design, printed and distributed
under the auspices of Licensor, and redeemable at Licensor's TSA Stores.
1.26 "TSA Site" shall mean that certain Internet site currently accessible
through the URL "xxxx://xxx.xxxxxxxxxxxxxxxxxx.xxx," and any backup or mirror
Internet site operated by Licensee; it being understood that the TSA Site shall
be primarily targeted by Licensee at Customers, and NOT at persons, entities or
activities otherwise described in Article 2.6. Licensee agrees that the TSA Site
shall not be used by Licensee to furnish, sell, advertise or promote the goods
or services of any TSA Competitor.
7
1.27 "TSA Stores" shall mean any sporting goods retail store established and/or
operated by TSA or its retailing Subsidiaries under the name and xxxx THE SPORTS
AUTHORITY and related marks, and devoted to the sale of a broad assortment of
sporting goods, athletic footwear, athletic apparel and related goods, and to
provision of the related services.
1.28 "Trade Dress" shall mean the total appearance or look and feel of:
(a) Own Brand Merchandise and its packaging and labels;
(b) TSA Stores as operated by Licensor in the U.S.; and
(c) print and television advertisements, billboards, and interior
or exterior signage as used by Licensor in the U.S. to promote
or identify the TSA Stores or Licensor's goods and services.
ARTICLE II
LICENSES
2.1 GRANT OF LICENSE TO USE MARKS. (a) Subject to the terms and conditions set
forth in this Agreement, Licensor hereby grants to Licensee, for the Term only,
and Licensee accepts from Licensor, upon the terms and conditions specified
herein, the non-transferable, exclusive (as to third parties but not as to
Licensor) right and license in the Territory only, to use the Marks on and in
connection with the Services, Materials and Own Brand Merchandise furnished in
or in connection with the TSA Site if, and only if, such Services, Materials and
Own Brand Merchandise comply with the quality standards set forth herein and
those approved and issued by Licensor from time to time. Licensor may monitor
and control the nature and quality of the Services, Materials and Own Brand
Merchandise, and Licensor may appoint one or more representatives to monitor and
exercise such control on Licensor's behalf. Such monitoring shall in no way
lessen or limit Licensee's obligation to use the Marks 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, no license
is granted to sublicense or otherwise permit any third party to use the Marks.
Licensee may only use the Marks on or in connection with Services, Materials and
Own Brand Merchandise subject to Articles II and III and all other terms and
conditions hereof. Except for use of "XxxXxxxxxXxxxxxxxx.xxx, Inc." as its
registered corporate or business name (subject always to the applicable terms
and conditions of this Agreement), Licensee is prohibited from using the Marks
or any name or xxxx confusingly
8
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
Territory, or as part of any Internet domain name not otherwise registered in
Licensor's name.
(b) CHANGES TO EXHIBIT B: Certain records in EXHIBIT B may be included
for information purposes only and, as indicated in writing, shall be excluded
from the definition of Marks hereunder. Licensor and Licensee acknowledge that
the "core" Marks as set forth in EXHIBIT B are: AUTHORITY, THE SPORTS AUTHORITY,
XXXXXXXXXXXXXXXXXX.XXX, XXXXXXXXXXXXXXX.XXX and THE SPORTS AUTHORITY & Design as
registered (or subject to pending applications to register) in the U.S. and
Canada. Licensor may make changes to EXHIBIT B from time to time as it sees 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 change
EXHIBIT B to delete non-core Marks (or records for non-core Marks) by giving 30
days prior written notice (stating Licensor's reasons for the proposed
deletion(s) in reasonable detail) and an opportunity to object to Licensee. If,
at the end of 30 days, Licensee has failed to object in writing, the proposed
deletions may be made and Licensor shall deliver an updated EXHIBIT B to
Licensee. If Licensee objects within the 30-day period, it shall do so by
delivering a written notice to Licensor which explains in reasonable detail the
basis for the objection. Licensor may accept the objection and forego the
deletion(s), but if not, Licensor and Licensee shall negotiate in good faith and
use their best efforts to achieve a mutually acceptable resolution.
Notwithstanding the foregoing, if 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.
2.2 GRANT OF LICENSE TO USE NAMES. Subject to the terms and conditions set forth
in this Agreement, Licensor hereby grants to Licensee, for the Term only, and
Licensee accepts from Licensor, upon the terms and conditions specified herein,
the non-transferable, exclusive (as to third parties but not as to Licensor)
right and license in the Territory only, to use the Names on and in connection
with the TSA Site if, and only if, such use complies with the License Guidelines
And Restrictions set forth in EXHIBIT A. In particular, Licensee shall use the
Name "xxxx://xxx.xxxxxxxxxxxxxxxxxx.xxx" as its primary domain name, and use the
other Names, if at all, as pointers or immediate links to the primary domain
name. Licensor may monitor and control the nature and quality of Licensee's use
of the Names, and Licensor may appoint one or more representatives to monitor
and exercise such control on Licensor's behalf. Such monitoring
9
shall in no way lessen or limit Licensee's obligation to use the Names 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, no license is granted to sublicense or otherwise permit any third
party to use the Names. Licensee may only use the Names on or in connection with
TSA Site subject to Articles II and III and all other terms and conditions
hereof.
2.3 GRANT OF LICENSE TO USE TSA BUYING POWER. Subject to the terms and
conditions set forth in this Agreement, Licensor hereby grants to Licensee, for
the Term only, and Licensee accepts from Licensor, upon the terms and conditions
specified herein, the non-transferable, non-exclusive right and license in the
Territory only, to use the TSA Buying Power on and in connection with the TSA
Site if, and only if, such use complies with the restrictions set forth in this
Agreement. Licensor may monitor and control the nature and quality of Licensee's
use of the TSA Buying Power, and Licensor may appoint one or more
representatives to monitor and exercise such control on Licensor's behalf. Such
monitoring shall in no way lessen or limit Licensee's obligation to use the TSA
Buying Power 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, no license is granted to sublicense or otherwise
permit any third party to use the TSA Buying Power. Licensee may only use the
TSA Buying Power on or in connection with TSA Site subject to Articles II and
III and all other terms and conditions hereof.
2.4 GRANT OF LICENSE TO USE TSA CONTENT. Subject to the terms and conditions set
forth in this Agreement, Licensor hereby grants to Licensee, for the Term only,
and Licensee accepts from Licensor, upon the terms and conditions specified
herein, the non-transferable, non-exclusive right and license in the Territory
only, to use the TSA Content solely in connection with the TSA Site if, and only
if, such use complies with the restrictions set forth in herein. Licensor may
monitor and control the nature and quality of Licensee's use of the TSA Content,
and Licensor may appoint one or more representatives to monitor and exercise
such control on Licensor's behalf. Such monitoring shall in no way lessen or
limit Licensee's obligation to use the 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, no license is
granted to sublicense or otherwise permit any third party to use the TSA
Content. Licensee may only use the TSA Content on or in connection with TSA Site
subject to Articles II and III and all other terms and conditions hereof.
10
2.5 MARKING, SAMPLES, INSPECTION, QUALITY CONTROL
(a) MARKING OWN BRAND MERCHANDISE AND MATERIALS. Licensee agrees to
xxxx all Own Brand Merchandise and Materials in a manner complying with the
License Guidelines And Restrictions set forth in EXHIBIT A. Licensor reserves
the right to change the provisions of EXHIBIT A as it sees fit in order to
protect the Licensed Property, or Licensor's interests in the Licensed Property,
and such changes shall become binding upon Licensee upon receipt of written
notice of such changes. Licensee shall have a reasonable period, but no more
than ninety (90) days from first notice, to fully implement such changes.
Without limiting the foregoing, upon request from Licensor and with respect to
TSA Content which is created or owned by Licensor, Licensee shall place a notice
of copyright on each page of the TSA Site which displays TSA Content ("TSA
Content Page") in accordance with the License Guidelines and Restrictions. No
TSA Content Page, upon which a notice of copyright is placed pursuant to the
preceding sentence, shall contain any other copyright notice whatsoever except
as mutually agreed to and determined by the Parties. Licensee shall cooperate
fully with Licensor in connection with Licensor's obtaining appropriate
copyright protection in the name of Licensor for any TSA Content Page. Licensee
acknowledges and agrees that all copyrights and rights of copyright furnished by
Licensor as TSA Content, including any derivative works, shall be and remain the
sole and complete property of Licensor; that all such copyrights and rights of
copyright in the name of and/or owned by any copyright proprietor other than
Licensor or Licensee shall be and remain the sole and complete property of such
copyright proprietor; that Licensee shall not at any time acquire or claim any
right, title or interest of any nature whatsoever in any such copyright by
virtue of this Agreement or of Licensee's uses thereof in connection with TSA
Content, the Marks, Own Brand Merchandise, TSA Buying Power or any intellectual
or industrial property rights therein; and that any right, title or interest in
or relating to any such copyright which comes into existence as a result of, or
during the term of, the exercise by Licensee of any right granted to it
hereunder shall immediately vest in Licensor.
(b) SUBMISSION OF SAMPLES OF OWN BRAND MERCHANDISE AND MATERIALS;
APPROVAL PROCESS. At any time upon request of Licensor, prior to introducing any
Own Brand Merchandise for sale and prior to producing and publishing or
distributing any Materials for the first time, Licensee shall furnish at
Licensee's expense samples of such Own Brand Merchandise and Materials,
including the trademark, copyright and disclaimer notices thereon and any other
labels, tags or markings. Further, Licensor shall have the right to inspect the
TSA 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), and to inspect samples of General Merchandise
or Own Brand Merchandise, in order to assure compliance with the quality
standards established by Licensor. If so notified in writing by Licensor,
Licensee
11
shall not offer or furnish any Services, Materials, General Merchandise or Own
Brand Merchandise whose nature or quality does not comply with the quality
standards established by Licensor in accordance with this Agreement. Further, if
Licensee proposes to alter the Marks in any way or to deviate in any way from
the forms in which the Marks have been furnished to Licensee by TSAMI, Licensee
shall first submit a sample of the proposed altered Xxxx to Licensor for
Licensor's prior review and written approval.
Licensor's changes (if any) to the quality standards established by Licensor in
accordance with this Agreement shall be reasonably necessary or reasonably
calculated to protect the Licensed Property or Licensor's interests in the
Licensed Property.
Licensor shall review in a timely manner all such samples and requests and use
its best efforts to communicate in writing its approval or disapproval as soon
as practicable after receiving the same. Failure to communicate approval within
fifteen (15) Business Days of receipt of the same shall be deemed a disapproval.
In no event, however, shall Licensee distribute or offer for sale the subject
General Merchandise, Own Brand Merchandise or Materials or use any altered Marks
until approval of the applicable sample is granted in writing by Licensor. If
Licensee intends to proceed, Licensee specifically agrees to amend to the
satisfaction of Licensor any sample of General Merchandise or Own Brand
Merchandise (including packaging and labels), Materials or 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 General Merchandise, Own Brand
Merchandise or Materials or in the Marks. To the extent practicable, Licensor
and Licensee shall cooperate in good faith in developing standard manuals or
procedures setting forth approved formats for packaging and labels for Own Brand
Merchandise, and approved formats for Materials. Once established, Licensee
shall fully comply with such manuals or procedures and submit for Licensor's
review and approval any material deviation from such manual or procedures in the
manner provided herein.
(c) APPROVAL PROCESS FOR CHANGES IN QUALITY. In the event Licensee
wishes to materially reduce the quality of an existing Service or item of Own
Brand Merchandise, and such reductions may have a materially adverse impact upon
the Licensed Property, or upon Licensor's interests in the Licensed Property,
Licensee shall advise Licensor in writing of the description of such Service or
item of Own Brand Merchandise and the proposed revised quality standard well in
advance of any such proposed change. Licensor's failure to advise Licensee in
writing of Licensor's approval of such proposed change within thirty (30) days
of receipt of notice from Licensee, shall be deemed a disapproval.
12
(d) LINE REVIEWS. Licensee shall inform Licensor of, and Licensor shall
have the right to attend at its expense, Licensee's periodic line reviews of any
General Merchandise or Own Brand Merchandise offered or to be offered by
Licensee. Further, to ensure compliance with Licensor's standards and
instructions relating to the Licensed Property, Licensor, at its expense,
directly or through representatives, may inspect and test General Merchandise
and Own Brand Merchandise 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,
General Merchandise and Own Brand Merchandise and the nature and quality of
Licensee's use of the Marks and Names. Licensor may recommend and Licensee shall
adopt and comply with any reasonable procedures, tests, surveys or the like to
fulfill this delegation. Licensor may request reports, documentation, evidence
or other proof of Licensee's performance under this provision and Licensee shall
promptly furnish the same to Licensor.
2.6 LICENSE EXCLUSIONS: Licensee agrees and acknowledges that:
(a) RESERVATION OF RIGHTS. Taken together, Articles 2.1-2.4 grant to
Licensee the exclusive right to use the Marks, Names, TSA Content and TSA Buying
Power to conduct the "E-Commerce Business," which shall mean the business of
creating, developing, operating, maintaining, advertising and promoting the TSA
Site (as further described in the ECA). Notwithstanding the foregoing, Licensor
reserves to itself, its Affiliate, Subsidiary and Related companies, 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 Marks,
Names, TSA Buying Power and TSA Content for any and all purposes not
inconsistent with Licensee's rights as provided in Articles 2.1-2.4 hereof,
including without limitation, the right to use and exploit the Marks, Names, TSA
Buying Power and TSA Content throughout the universe, including in the
Territory:
(i) to manufacture, source, market, sell, furnish, advertise and
promote goods and services offered at or in connection with
the TSA Stores, including from kiosks or other externally
networked devices located within TSA Stores;
13
(ii) to manufacture, source, market, sell, furnish, advertise and
promote goods and services offered by means of mail order
catalogs furnished to consumers, vendors, employees and others
by mail, or distributed within TSA Stores;
(iii) to print, source, market, sell, furnish, advertise and promote
TSA Gift Certificates directly or indirectly, 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;
(iv) to create, develop, operate and/or maintain, directly or
indirectly through any third party, any Internet site
primarily devoted to business-to-business transactions, or
primarily devoted to the provision of information and not
otherwise directed at the purchase of sporting goods, athletic
apparel, athletic footwear or related goods and services;
(v) to advertise and promote the TSA Stores and Licensor's goods
and services, and to display the Marks, on the Internet on
sites other than the TSA Site, provided that such
advertisements, promotions or displays shall attempt to direct
all individual consumers (as opposed to businesses or
organizations) wishing to make purchases from Licensor on the
Internet to the TSA Site; and
(vi) 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) OWN BRAND MERCHANDISE. Nothing contained herein shall prevent or
restrict Licensor or any Affiliate, Related or Subsidiary companies or third
parties licensed by Licensor from manufacturing, marketing, advertising or
selling Own Brand Merchandise, whether from stores, by mail order, over the
Internet, an intranet or extranet (except from an Internet site directed at
consumers, as opposed to Licensor's employees or other businesses), or
otherwise, it being understood that the license granted with respect to Own
Brand Merchandise is wholly non-exclusive.
(c) PROHIBITED USE OF TSA CONTENT. Nothing contained herein shall
permit Licensee (or its Affiliate, Subsidiary or Related companies) to use or
permit others to use the TSA Content
14
in any manner on or in connection with any site of any TSA Competitor. Licensee
shall segregate and take all necessary measures to prevent the TSA Content from
being commingled with the content of any TSA Competitor, and to prevent the
unauthorized disclosure of such TSA Content as would be deemed "Confidential
Information" as defined in Article IV. Further, in possessing and using the TSA
Content, Licensee shall be responsible for compliance with all antitrust,
competition and similar laws and regulations applicable to the use or misuse of
the TSA Content by Licensee, its Affiliate, Subsidiary and Related companies,
and any third party (including any TSA Competitors) which may have gained access
to the TSA Content through any of them.
(d) PROHIBITED USE OF HEAD AND TYROLIA MARKS. Nothing contained herein
shall authorize or permit Licensee (or its Affiliate, Related or Subsidiary
companies) to use the trademarks HEAD or TYROLIA, or to offer for sale on the
TSA Site any goods, packaging or labels bearing the marks HEAD or TYROLIA.
(e) LICENSOR'S OTHER AUTHORIZED USERS. Licensor has entered into
license agreements, sponsorship agreements, settlement agreements and other
agreements regarding use of the Marks by others, as further described in EXHIBIT
C, attached. Licensor intends to renew such agreements where applicable, and to
continue entering into similar agreements during the Term which are not
otherwise inconsistent with Licensee's rights hereunder.
(f) NO EMBARRASSMENT. Licensee shall not offer or sell General
Merchandise, Own Brand Merchandise or render the Services, or advertise or
promote the TSA Site, in any way associated with, or thought to be associated
with any illegal, vulgar, obscene, immoral, unsavory or offensive activities,
nor cause material embarrassment to be suffered by Licensor by reason of acts or
omissions of Licensee which are illegal, immoral or scandalous.
(g) NO OTHER USES. Licensee shall not use any Marks, Names, TSA Buying
Power or TSA Content for any purpose other than the creation, development,
operation, maintenance, advertising and promotion of the TSA Site. All Marks,
Names, TSA Buying Power and TSA Content shall remain the sole and exclusive
property of Licensor, and neither Licensee nor any other person or entity shall
acquire any rights in the Marks, Names, TSA Buying Power or TSA Content except
those rights specifically granted to Licensee under this Agreement.
(h) NO EXPORTS TO JAPAN. While the TSA Site may be accessible within
Japan (such accessibility shall not, by itself, be considered a breach), except
for one time, individual quantity
15
(NOT bulk or volume) purchases for personal use by the subject Customer for
delivery within the Territory but possible export to Japan, Licensee shall not
knowingly export or furnish General Merchandise, Own Brand Merchandise or
Services from the Territory into Japan or knowingly sell General Merchandise,
Own Brand Merchandise to any person or entity which it knows or has reason to
believe intends to export Own Brand Merchandise from the Territory into Japan.
Licensee acknowledges and agrees that the sale or marketing of General
Merchandise, Own Brand Merchandise or Services by it or by persons authorized by
it outside of the Territory shall materially damage Licensor and its
relationships with other licensees, and that, accordingly, any such sales, if
done knowingly, shall be deemed a material breach of this Agreement.
(i) NO CO-BRANDING. Licensee shall not "co-brand" the TSA Site or use
the Marks immediately adjacent to other trademarks on the TSA Site in a manner
which, in comparison, places less emphasis or imposes smaller dimensions upon
the Marks, without obtaining Licensor's prior approval in the manner described
in Article 2.5(b).
(j) PROHIBITION OF GAMBLING ACTIVITIES. Licensee at no time shall
publicize, advertise, distribute, transmit, promote or otherwise make available
information about gambling or lotteries in violation of any federal, state,
local or foreign law, regulation, order or act of government or governmental
instrumentality to which either Licensor or Licensee is subject, nor shall
Licensee engage in, aid or abet, any such gambling or lottery activity in
violation of any federal, state, local or foreign law, regulation, order or act
of government or governmental instrumentality to which either Licensor or
Licensee is subject. Furthermore, Licensee shall not at any time permit or
authorize any links between the TSA Site and any Other Licensee Site or any
Third Party Site that publicizes, advertises, distributes, transmits, promotes
or otherwise makes available information about gambling or lotteries in
violation of any federal, state, local or foreign law, regulation, order or act
of government or governmental instrumentality to which either Licensor or
Licensee is subject.
ARTICLE III
STANDARD OF PERFORMANCE
3.1 COMMERCIALLY REASONABLE EFFORTS. Licensee shall use commercially reasonable
efforts appropriate to an experienced e-commerce retailer, on a continuous basis
during the Term:
16
(a) to advertise, promote, sell and furnish the TSA Site,
Services, General Merchandise and Own Brand Merchandise in the
Territory;
(b) to exercise all reasonable care and skill in the performance
of such duties;
(c) to review and progressively improve its Net Sales in the
Territory;
(d) to exploit the rights granted herein throughout the Territory
consistent with the high standards and prestige represented by
the Marks; and
(e) to observe, protect and enhance the distinctive THE SPORTS
AUTHORITY image as communicated by Licensor.
3.2 HIGH STANDARDS; TSA MISSION STATEMENT. Licensee acknowledges that Licensor
maintains high standards for Own Brand Merchandise and services sold by and
through the TSA Stores. Further, Licensee acknowledges that Licensor maintains
high standards for its Own Brand Merchandise and Licensor's services, as
expressed in Licensor's Mission Statement, attached hereto as EXHIBIT D and as
may be amended from time to time by Licensor (the "TSA Mission Statement").
Licensee agrees to maintain the quality of the Own Brand Merchandise, Services
and Materials sold or distributed by it pursuant to this Agreement, and the
nature and quality of Licensee's use of the Licensed Property, in conformity
with the TSA Mission Statement and as expressed in standards communicated by
Licensor to Licensee from time to time. Further, Licensee warrants that all Own
Brand Merchandise, Services and Materials shall continue to meet or exceed such
standards. Further, Licensee shall use its best efforts to ensure that: (a) all
Own Brand Merchandise, Services and Materials comply with the requirements of
Articles II and III and all applicable laws, rules and regulations; and (b)
neither the Own Brand Merchandise nor the manufacturing thereof shall violate or
infringe any right of any third party or the human rights of any person employed
to manufacture the same.
ARTICLE IV
CONFIDENTIALITY AND NON-DISCLOSURE
4.1 CONFIDENTIAL INFORMATION. For purposes of this Agreement, Confidential
Information means: (i) business or technical information of either Party,
including but not limited to any information relating to either Party's product
plans, designs, product costs, other costs, product prices, product names,
allowances, rebates, finances, advertising plans, strategies or buys,
17
marketing plans or strategies, business opportunities, personnel, research,
development or know-how; (ii) any written information designated by either Party
as confidential or proprietary or, if orally disclosed, reduced to writing by
the disclosing Party within thirty (30) days of such disclosure; (iii) all
materials furnished by one Party in connection with any audit conducted
hereunder; and (iv) the terms and conditions of this Agreement.
4.2 EXCLUSIONS. Confidential Information shall not include: (i) information that
is or becomes generally known or available by publication, commercial use or
otherwise through no fault or breach of this Agreement by the receiving Party;
(ii) information that is rightfully in the receiving Party's possession prior to
first receiving it from the disclosing Party; (iii) information that is lawfully
received by the receiving party from a third party, without restriction on
disclosure and without breach of a nondisclosure obligation; or (iv) information
that the receiving Party can prove with written evidence is independently
developed by the receiving Party, without use of or access to Confidential
Information of the disclosing Party.
4.3 OBLIGATIONS. Each Party shall not use the other Party's Confidential
Information, except as expressly permitted under this Agreement and shall not
disclose such Confidential Information to any third party, except to its
employees and consultants with a need to know for such party's performance of
this Agreement (and only subject to binding use and disclosure restrictions at
least as protective as those set forth herein executed in writing by such
employees or consultants). However, each Party may disclose Confidential
Information of the other Party: (i) pursuant to an order or requirement, to
which it is subject, of a court, administrative agency or other governmental
body, provided that such Party gives reasonable notice to the other Party to
contest such order or requirement; (ii) on a confidential basis to legal and
financial advisors; provided, however, that prior to such disclosure, the Party
disclosing the Confidential Information shall use its best efforts to secure an
agreement from the third party receiving the Confidential Information to keep
such information confidential; and (iii) as required by any law, rule, or
regulation, to which it is subject.
4.4 The Parties' respective confidentiality obligations as set forth in this
Article IV shall continue in full force and effect notwithstanding expiration or
termination of this Agreement for any reason.
18
ARTICLE V
GENERAL PROVISIONS
5.1 PAYMENTS. Beginning with the Effective Date, during the initial Term, and if
applicable, after termination of the Agreement to the extent any amounts are
accrued and unpaid, Licensee shall pay the Royalties to Licensor in the manner
and at the times specified below.
5.2 REPORTS; ROYALTIES.
(a) Within forty-five (45) days after the end of each quarter of
Licensee's Fiscal Year, Licensee shall:
(i) Deliver to Licensor a report, certified by one of its
corporate officers, giving the following particulars
concerning Net Sales during the preceding quarter of
Licensee's Fiscal Year, together with documentary proof of
payment of any applicable tax withheld and/or paid by Licensee
(including, without limitation, true copies of receipts or
certificates evidencing payment of such taxes):
(A) Net Sales of the TSA Site derived from sale of
General Merchandise, Own Brand Merchandise and
Services to Customers;
(B) Net Sales of the TSA Site derived from advertising
furnished by Licensee to any Advertising and
Marketing Partners of Licensee;
(C) Net Sales of the TSA Site derived from all other
sources;
(D) Amount of Royalties due to Licensor with respect to
the TSA Site attributable to items (A), (B) and (C)
above, and in the aggregate; and
(E) Amount of tax of any kind properly withheld and/or
paid to tax authorities by Licensee.
(ii) Pay to Licensor the Royalties due for the quarter covered by
such report, in U.S. Dollars, in immediately available funds,
by bank draft or other means as reasonably directed by
Licensor. Receipt or 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 or
payments, it shall be immediately rectified and, within
fifteen (15) Business Days, the appropriate report and payment
shall be made.
(b) Time is of the essence with respect to Licensee's duty to make all
payments when due and Licensee's obligations to make such payments are absolute,
unconditional and not subject to any right of reduction or set-off, except for
withholding taxes imposed on the
19
Royalties which Licensee is required by law to withhold. Licensee shall withhold
and pay in a timely manner such taxes to the proper tax authority at the rate
required by statute but reduced to the fullest extent as permitted by tax
treaty, and Licensee shall provide Licensor with official receipts of all
withholding tax payments sufficient to enable Licensor to claim appropriate
federal income tax credits. Without limiting the foregoing, Licensee shall pay
to Licensor interest at the rate of the lesser of (i) one and one half percent
(1.5%) per month, compounded monthly, or (ii) the maximum rate allowed by
applicable law, on so much of the Royalty as remains outstanding from time to
time beyond the period for payment set forth above. Written notice by Licensor
to Licensee as to any amount of the outstanding Royalty (including interest)
shall be PRIMA FACIE evidence that said amount is unpaid as of the date of such
notice.
(c) Licensee shall respond in writing to any written inquiry from
Licensor with respect to any report or payment within fifteen (15) Business Days
of receipt thereof.
(d) If, in the course of an audit or inspection by Licensor or its
representative(s), any discrepancy shall appear with respect to any amount due
and payable by Licensee and the amount paid, the amount owed (including interest
computed as set forth in Article 5.2(b) above) shall be paid within fifteen (15)
Business Days after Licensee's receipt of notice of any such discrepancy.
(e) Within ninety (90) days after the end of each Fiscal Year of
Licensee, Licensee shall furnish Licensor a certificate from an independent
certified public accountant as to the accuracy of Licensee's Royalty payments
and reports for each such Fiscal Year.
5.3 BOOKS AND AUDITS.
(a) Licensee shall keep full, true and accurate books of account in
conformance with generally accepted accounting principles ("GAAP") in effect in
the U.S. and containing all particulars which may be necessary for the purpose
of reviewing Net Sales and computing the Royalties due and payable to Licensor.
Said books of account shall be kept at Licensee's principal place of business
and maintained by Licensee for a period of at least two (2) years following the
end of each subject year during the Term and shall be available for inspection
by Licensor, upon reasonable notice and during normal business hours.
20
(b) Licensee shall maintain accurate records of all sales from the TSA
Site, of its annual advertising and promotional expenditures, and of contracts
and orders placed by Customers, and shall make such records available to
Licensor upon request for use in enforcing, registering or protecting the
Licensed Property throughout the world.
(c) During the Term and for a period of three (3) years after
expiration or termination of this Agreement, Licensor or an independent
certified public accountant retained by Licensor, may audit all statements of
account, records and reports provided for in this Agreement, at least once per
Fiscal Year of Licensee, but no more than once unless an audit discloses a
material discrepancy. In such cases, Licensor may audit every six (6) months
until the results of the audit show that a material discrepancy no longer
exists. Licensee shall make available to Licensor or said certified public
accountant for the purposes of this paragraph any and all records reasonably
necessary to the verification of such reports. Any error(s) discovered by such
audit shall be corrected by Licensee within fifteen (15) Business Days after
having been notified of such error. The expenses of any and all such audits and
inspections shall be borne by Licensor. However, if the error(s) discovered
represent an underpayment by Licensee of more than [*] Dollars ($[*]) due in the
Fiscal Year in question, Licensee shall promptly reimburse Licensor for the
reasonable costs of such audit.
5.4 REPRESENTATIONS, WARRANTIES AND DUTIES OF LICENSEE. Licensee represents and
warrants to Licensor and agrees that:
(a) Licensee is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation; and it
has the corporate power and is authorized under its Articles of Incorporation
and its Bylaws to carry on its business as now conducted and as contemplated
under this Agreement;
(b) Licensee has performed all corporate actions and received all
corporate authorizations necessary to execute and deliver this Agreement and to
perform its obligations hereunder;
(c) Licensee has and shall maintain the power and authority and all
material governmental licenses, authorizations, consents and approvals as
required in all jurisdictions within the Territory to own its assets, carry on
its business and to execute, deliver, and perform its obligations under this
Agreement;
21
(d) Licensee is in compliance, and shall remain in compliance with all
requirements of any U.S. and Canadian, or to the best of its knowledge, any
other law (statutory or common), treaty, rule or regulation or determination of
an arbitrator or of a governmental authority, in each case applicable to or
binding upon it or any of its property or to which the Services or any of its
business related to the TSA Site is subject, except where failure to be in
compliance could not reasonably be expected to have a material adverse change
in, or a material adverse affect upon, the operations, business, properties,
condition (financial or otherwise) or prospects of Licensee;
(e) There are no (A) nongovernmental third parties or (B) governmental
or regulatory entities in the U.S. or Canada who are entitled to any notice of
the transactions contemplated hereunder or whose consent is required to be
obtained by Licensee for the consummation of the transactions contemplated
hereunder;
(f) Licensee does not currently, and shall not during the term of this
Agreement, represent or promote any services or products that intentionally
divert business away from the TSA Site. Licensee shall continuously conduct its
business in a manner that reflects favorably on the Licensed Property;
(g) Licensee shall fully comply at its sole cost and expense with any
and all quality standards set forth herein and that Licensor may set forth from
time to time with respect to the Licensed Property and the Own Brand Merchandise
and Materials and Services bearing or embodying the Licensed Property;
(h) As between Licensor and Licensee, for purposes of this Agreement,
Licensee 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 parties against
Licensor. Licensor shall not for any reason be liable under this Agreement in
any way for Licensee's termination of employment or other relationships with
such parties or other legal entities, nor for any goods or services furnished to
Licensee by Licensor or any third party or by Licensee to Licensor or any third
party;
(i) As between Licensor and Licensee, for purposes of this Agreement,
Licensee shall be completely responsible for the computation, notification,
withholding, payment, filing and reporting of all applicable taxes of any kind
whatsoever which may be due at any time in connection with Licensee's
activities, assets or operations as permitted hereunder, including, without
limitation, all sales and use taxes, all value added taxes, and all withholding
taxes.
22
(j) Except with respect to trademark and service xxxx applications and
registrations, domain name registrations, recording of this Agreement and
related registered user agreements, all of which are reserved exclusively to
Licensor, Licensee shall, at its own expense, secure any and all approvals,
licenses, registrations and/or permits required under the laws or regulations of
any governmental or similar entity having jurisdiction over Licensee or the TSA
Site, or over the shipment, export, import, sale or other distribution of goods
(including General Merchandise and Own Brand Merchandise) or provision of
Services within the Territory as these relate to operation of the TSA Site,
including, without limitation, compliance with all export and import control
regulations and applicable consumer product, content labeling, country of
origin, and health and safety laws and the like;
(k) Licensee shall, during the Term and for one (1) year following
expiration or termination of this Agreement, ensure the adequate provision of
after sales service and spare parts to Customers in the Territory, subject to
reasonable cooperation of Licensor to assist Licensee in obtaining access to
spare parts;
(l) As between Licensor and Licensee, in the Territory and in Japan,
all right, title, interest and ownership in and to the Licensed Property, and
present and future registrations thereof, as trademarks, service marks, trade
names, trade dress, copyrights or works or copyright (including derivative
works), industrial models, designs, and the like, are and shall remain in
Licensor and Licensee agrees to render all reasonable assistance in maintenance
of these rights. Further, Licensee agrees and acknowledges that all goodwill
associated with or created by use of the Licensed Property by Licensee has
inured and shall continue forever to 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 thereupon revert back to Licensor and Licensor
shall thereafter enjoy those rights as if this Agreement had never been
executed. If, by operation of law or otherwise, any goodwill associated with
Licensee's use of the Licensed Property shall be deemed to accrue or have
accrued to Licensee, Licensee agrees to immediately and irrevocably assign
without condition such goodwill to Licensor. Licensor shall not be required to
compensate Licensee for reversion or assignment of the goodwill;
(m) Except with respect to authorized advertising and marketing
programs conducted by Licensee with the Advertising and Marketing Partners of
Licensee and any non-Internet advertising and marketing programs otherwise
permitted under this Agreement, Licensee shall
23
not sell, distribute or otherwise make available or permit any use of the
Licensed Property on or in connection with Own Brand Merchandise, Materials or
Services, outside of the TSA Site, whether inside or outside the Territory, and
Licensee shall cooperate with Licensor in preventing all such sales and
distribution by others. Before permitting any vendor or supplier to sell off or
otherwise dispose of surplus, defective or returned Own Brand Merchandise to
parties other than Licensee, Licensee shall require the vendor or supplier to
remove all of the Licensed Property from such Own Brand Merchandise; and
(n) Licensee shall not attack or impair or put at issue Licensor's
rights in the Licensed Property, or any of Licensor's applications or
registrations therefor, nor assist anyone else in doing so. Except as licensed
hereunder, Licensee shall not use or apply to register the Licensed Property or
any identical or deceptively or confusingly similar service marks, trademarks,
corporate names, trade names, domain names, trade dress, copyrights, industrial
models or designs, or any derivations thereof, during the Term and forever
hereafter. Further, Licensee shall not use the Licensed Property in any manner
likely to jeopardize the exclusiveness or distinctiveness of the Licensed
Property or Licensor's proprietorship thereof, and Licensee shall not register
or attempt to register its rights in the Licensed Property as granted hereunder.
Without limiting the foregoing, during and after the expiration or termination
of this Agreement, Licensee, upon Licensor's written request, shall execute all
such documents as may be necessary to further confirm or perfect Licensor's
rights in the Licensed Property. 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 for the purpose of executing such documents.
5.5 REPRESENTATIONS, WARRANTIES AND DUTIES OF LICENSOR. TSA and TSAMI each
represents, warrants and agrees that:
(a) it is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation and it has the
corporate power and is authorized under its Certificate of Incorporation and its
Bylaws to carry on its business as now conducted;
(b) it has performed all corporate actions and received all corporate
authorizations necessary to execute and deliver this Agreement and to perform
its obligations hereunder;
24
(c) it has and shall maintain the power and authority and all material
governmental licenses, authorizations, consents and approvals to be obtained
within the U.S to own its assets, carry on its business and to execute, deliver,
and perform its obligations under this Agreement;
(d) there are no (A) nongovernmental third parties and (B) governmental
or regulatory entities in the U.S. who are entitled to any notice of the
transaction, licenses and services contemplated hereunder or whose consent is
required to be obtained by Licensor for the consummation of the transaction
contemplated hereunder;
(e) to the best of its knowledge as of the Effective Date it and its
licensors are the sole and rightful owners of all right, title and interest in
and to the Marks and Names and it has the unrestricted right to market, license
and exploit the Marks and Names;
(f) as of the Effective Date, either TSA or TSAMI has obtained or
applied for trademark and service xxxx registrations for certain of the Marks
throughout much of the Territory, as further described in EXHIBIT B;
(g) it shall not engage directly or indirectly in the "E-Commerce
Business" except as otherwise provided in Article 2.6 of this Agreement and as
otherwise provided in Article 13.1 of the E-COMMERCE AGREEMENT;
(h) Other than as disclosed in EXHIBIT C, attached, as of the Effective
Date, there are no material outstanding assignments, grants, licenses,
encumbrances, obligations or agreements of Licensor inconsistent with this
Agreement; and
(i) OTHER THAN THOSE SET FORTH ABOVE, LICENSOR MAKES NO WARRANTIES TO
ANY PERSON OR ENTITY WITH RESPECT TO ANY TSA CONTENT, TSA BUYING POWER, NAMES,
MARKS, GOODS, SERVICES, OR OTHER SUBJECT MATTER OF THIS AGREEMENT ALL OF WHICH
ARE PROVIDED "AS IS," AND LICENSOR HEREBY DISCLAIMS ALL IMPLIED WARRANTIES,
INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR
A PARTICULAR PURPOSE AND NONINFRINGEMENT.
25
5.6 PROTECTION OF RIGHTS.
(a) In the ordinary course of business, Licensee or its counsel may
review periodically the use and/or registration by others of any trademark,
service xxxx, trade name, domain name, trade dress, industrial model or design
or copyright in the Territory which is a copy of, identical or confusingly or
deceptively similar to the Licensed Property or any aspect thereof. Licensee
agrees to inform Licensor promptly of any possible infringement, or of any
passing off or unfair competition affecting said Licensed Property which comes
to the attention of Licensee. Further, Licensee agrees to fully cooperate and
assist Licensor in the protection and defense of any of Licensor's rights in the
Licensed Property, in the filing and prosecution (at Licensor's expense) 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,
without limitation, 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, that in the sole discretion and judgment of
Licensor may be necessary or desirable.
(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 institute any lawsuit or take any action 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. As
a prerequisite to instituting such a lawsuit
26
and taking any such actions, Licensee shall deliver to Licensor a duly executed
guarantee from Global Sports, Inc. ("GSI") providing that GSI 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 which 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 GSI has expended in the action or lawsuit. Once Licensee
or GSI has been fully reimbursed, the balance shall be delivered as determined
by the court.
5.7 INDEMNIFICATION.
(a) LICENSEE'S INDEMNIFICATION. Except as provided in Article 5.7(b)
below, Licensee agrees to defend, indemnify and hold harmless Licensor and its
Affiliate, Subsidiary and Related companies and each of their respective
directors, officers, employees, representatives and agents, at Licensee's
expense, from and against any and all actions, claims, proceedings or lawsuits
to the extent arising from or related in any way to Licensee's acts or
omissions. This indemnification shall include, without limitation, claims of
premises or product liability, claims of patent, copyright, trade name,
trademark, trade dress, service xxxx, right of personality or persona, or
industrial model or design infringement, negligence, defamation,
misrepresentation, false advertising, unfair competition, trade secret
misappropriation and failure to file, pay or report any applicable tax. Licensor
agrees to give Licensee timely notice of such actions, claims, proceedings or
lawsuits and Licensee has the right and obligation, at its sole expense, to
defend the same and shall be solely responsible for satisfying any monetary
judgments awarded or any settlements entered into as a result of such actions,
claims, proceedings or lawsuits. Licensor may at its sole election participate
in any such defense at its own expense. In any event, Licensee agrees to keep
Licensor fully informed regarding all actions, claims, proceedings or lawsuits
which affect or involve Licensor under this paragraph.
(b) LICENSOR'S INDEMNIFICATION. Licensor agrees to defend, indemnify
and hold harmless Licensee and its Affiliate, Subsidiary and Related companies
and each of their respective directors, officers, employees, representatives and
agents, at Licensor's expense, from and against any and all actions, claims,
proceedings or lawsuits to the extent arising from or related in any way to,
claims that Licensee's use of the Marks and/or Names hereunder infringes the
trademark, service xxxx, trade dress or trade name rights of third parties in
the U.S., its
27
territories and possessions, Puerto Rico, or Canada, provided, HOWEVER, that
Licensor shall not bear any duty, obligation or liability pursuant to this
Article 5.7(b) to the extent that and with respect to any use by Licensee of any
of the Marks and/or Names is in a manner not authorized by this Agreement.
Licensee agrees to give Licensor timely notice of such actions, claims,
proceedings or lawsuits and Licensor has the right and obligation, at its sole
expense, to defend the same and shall be solely responsible for satisfying any
monetary judgments awarded or any settlements entered into as a result of such
actions, claims, proceedings or lawsuits. Licensee may at its election
participate in any such defense at its own expense, provided, however, that
Licensee shall comply with any reasonable request of Licensor to cooperate in
the defense of any such actions, claims, proceedings or lawsuits. In any event,
Licensor agrees to keep Licensee fully informed of any material information
regarding all actions, claims, proceedings or lawsuits which affect or involve
Licensee under this paragraph.
5.8 TERM AND TERMINATION.
(a) INITIAL TERM. This Agreement shall begin on the Effective Date and
continue in full force and effect for approximately fifteen (15) years through
and including December 31, 2014. This Agreement shall terminate of the first to
occur of 90 days prior notice given by one Party to the other Party on or after
December 31, 2014, or termination pursuant to any of Articles 5.8(b)-(f) below.
(b) Without prejudice to any other rights either Party may have, a
Party may terminate this Agreement for cause premised upon any one or more of
the reasons set forth in (i) through (iv) below by giving notice to the other
Party in accordance with (c), (d) or (e) below, as the case may be:
(i) if Licensee shall fail to make any payments when due or to
deliver any reports as required hereunder or if Licensee or
Licensor otherwise materially breaches in any manner the terms
of this Agreement;
(ii) if Licensee shall be generally unable to pay its obligations
as they become due, or if either Party shall make any
assignment for the benefit of creditors, or shall file, or
have filed against it, any petition for protection or relief
from creditors or any petition in bankruptcy, or be
adjudicated bankrupt or insolvent, or if any receiver is
appointed for its business or property or a substantial
portion thereof, or if any trustee in bankruptcy or insolvency
shall be appointed for a Party, or if a Party
28
shall be in default upon any material debt obligation and such
default shall be continuing beyond any applicable cure period;
(iii) if Licensee shall fail in any material respect to follow
Licensor's instructions regarding quality control and
protection of the Licensed Property as required under this
Agreement; or
(iv) if Licensee has ceased to carry on and diligently pursue its
day to day business activities of operating and promoting the
TSA Site utilizing the Licensed Property.
(c) In the event of breach by a Party of any provision of this
Agreement as provided in (b)(i), (b)(iii) or (b)(iv) above, the non-breaching
Party shall give the breaching Party notice in writing to cure the breach within
sixty (60) days (the "Notice Period") or such longer period as may be agreed
upon by the Parties, 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, including, without limitation, its right to terminate this Agreement
effective upon expiration of the Notice Period, provided 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, in its discretion, delay
taking action so long as the breaching Party shall have begun in good faith to
cure such breach within the Notice Period and thereafter proceeds diligently to
complete the cure of the breach and such breach is cured within a reasonable
period thereafter.
(d) In the event of the occurrence of any event described in (b)(ii)
above, the complaining Party may terminate this Agreement effective upon
expiration of the Notice Period; provided, however, that the non- complaining
Party may avoid such termination if any adverse filing described in (b)(ii) is
stayed, dismissed or reversed within the Notice Period and Licensee provides
satisfactory evidence of same to Licensor within such period.
(e) This Agreement shall automatically terminate on the date that
Licensor ceases to have a direct or indirect ownership interest in Licensee or
on the date that any of the EVA, ESA or ECA agreements is terminated, whichever
is earlier.
(f) This Agreement may be terminated at any time by mutual written
agreement of the Parties.
29
(g) 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.
(h) 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:
(i) Return to Licensor all TSA Content and Materials, and 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;
(ii) As directed by Licensor, return to Licensor, destroy or
obliterate all Own Brand Merchandise (including packaging and
labels) and Materials bearing the Licensed Property and
furnish sworn affidavits attesting thereto as requested by
Licensor;
(iii) Cease holding itself out as a licensee of Licensor or as an
entity otherwise authorized or permitted to use the Licensed
Property; and
(iv) Cooperate with Licensor in obtaining the cancellation of any
registration of this Agreement and amendment or cancellation
of any registered user agreements and corporate, domain name
or business name registrations. Licensee, upon Licensor's
written request, 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
for the purpose of executing such documents.
(i) Notwithstanding the foregoing, upon termination or expiration of
this Agreement for any reason other than pursuant to Article 5.8(b)(i) or
(b)(iii), Licensee shall have, for a period of 180 days thereafter, the right to
sell off, on a nonexclusive basis, all of the unsold Own Brand Merchandise in
Licensee's inventory which was on hand prior to such termination or expiration;
PROVIDED, HOWEVER, that Licensee shall, prior to disposing of such unsold Own
Brand
30
Merchandise, furnish to Licensor an itemized and sworn statement setting forth
accurate descriptions and unit volumes of all such unsold Own Brand Merchandise.
Further, Licensee shall be entitled to phase out use of the Licensed Property
over the same 180 day period. Royalties shall accrue at the then current rate
and be paid by Licensee according to the quarterly schedule set forth in Article
5.2 and within thirty (30) days of the end of such 180 day period. All
dispositions of inventory and use of Licensed Property pursuant to this
paragraph shall strictly comply with all provisions of this Agreement. On the
181st day, Licensee:
(i) shall immediately transfer to Licensor, or destroy, at
Licensor's option, all remaining inventory of Own Brand
Merchandise;
(ii) shall immediately transfer to Licensor all TSA Content; and
(iii) shall have completely and permanently ceased using the
Licensed Property.
(j) Should Licensee fail to cease using any Licensed Property upon
termination of this Agreement, or in any other manner fail to comply with
Articles 5.8(h) and (i) above, Licensee agrees and hereby specifically consents
to each and all of the following remedies and provisions, which shall be
cumulative and not mutually exclusive:
(i) Licensor may obtain a decree of any court of competent
jurisdiction ordering Licensee to immediately cease the use of
the Licensed Property and to otherwise comply with Articles
5.8(h) and (i) 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;
(ii) Licensor shall have the right to collect actual direct damages
suffered by Licensor by reason of Licensee's failure to comply
with Articles 5.8(h) and (i) above;
(iii) Licensor may file an action asking the appropriate
governmental agency to impound any infringing Own Brand
Merchandise and Materials and to close or put on hold the TSA
Site;
31
(iv) Licensor shall be entitled to any other relief which may be
deemed proper, whether at law or equity;
(v) No assignee for the benefit of creditors, custodian, receiver,
trustee in bankruptcy, sheriff or any other officer of the
court or official charged with marshalling or taking over
custody of Licensee's assets or business shall have any right
to continue this Agreement or to exploit in any way or use the
Licensed Property; and
(vi) Licensee's performance under this Agreement is personal in
nature and Licensor is excused from accepting the performance
of an entity other than Licensee. The Parties agree that this
Agreement is a nonassignable contract of Licensee under
section 365(c) of the Bankruptcy Code of the U.S.A., or any
amendment or successor thereto (the "Bankruptcy Code").
Further, in the event that Licensee is a debtor under the
Bankruptcy Code, or any equivalent in any foreign
jurisdiction, and this Agreement has not been terminated, the
Parties agree that the adequate protection of Licensor's
interest in this Agreement and in the Licensed Property
requires that Licensee fully comply with all of the terms and
conditions of this Agreement, including, without limitation,
timely making all Royalty payments when due and maintaining
the quality of Own Brand Merchandise and Services sold by
Licensee pursuant to this Agreement, and the nature and
quality of Licensee's use of the Licensed Property as required
hereunder.
5.9 CHOICE OF LAW AND FORUM. This Agreement shall be governed and construed
under federal laws of the U.S.A. and laws of the State of Michigan and for any
controversy, the Parties expressly submit to the exclusive jurisdiction of the
state and federal courts of the State of Michigan, U.S.A., and hereby waive any
claim of inconvenient forum. Without limiting the foregoing, Licensee also
submits to the jurisdiction of any court in Licensee's home state with authority
to hear and decide proceedings in relation to Licensor's specific or provisional
enforcement of this Agreement.
5.10 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 Affiliate, Subsidiary and
Related companies in respect of any matter arising out of or in connection with
this Agreement (including, without limitation, any action to cancel or rescind
32
this Agreement, and any claims or defenses asserting that this Agreement was
fraudulently induced or otherwise void or voidable).
5.11 NOTICES.
(a) Any notice or request with respect to this Agreement shall be made
personally, by registered mail, by airborne express courier, or by confirmed
facsimile, and shall be directed by each Party to the other at its respective
address as follows:
If to Licensee, to:
XxxXxxxxxXxxxxxxxx.xxx, Inc.
000 Xxxxx Xxxxxxxxx Xxxx
Xxxx xx Xxxxxxx, Xxxxxxxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: President
WITH A COPY TO:
Global Sports Interactive, Inc.
000 Xxxxx Xxxxxxxxx Xxxx
Xxxx xx Xxxxxxx, Xxxxxxxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: President
and if to Licensor, to:
The Sports Authority Michigan, Inc.
000 X. Xxxxxxxxxx, Xxxxx 000
Xxxxx Xxx, Xxxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Senior Vice President and General Counsel
AND
The Sports Authority, Inc.
0000 Xxxxx Xxxxx Xxxx 0
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Chief Executive Officer and General Counsel
33
(b) Any notice or request shall be deemed to be given when actually
received. Either Party, by written notice to the other Party, may change the
address to which notices or requests shall be directed.
5.12 NO IMPLIED WARRANTIES; LIMITATION ON LIABILITY. Neither party shall be
liable to the other Party for incidental, consequential, punitive or exemplary
damages arising in connection with this Agreement or the performance, omission
of performance or termination hereof, even if the said Party has been advised of
the possibility of such damages and without regard to the nature of the claim or
the underlying theory or cause of action (whether in contract, tort or
otherwise). Neither Party makes any representation or warranty to the other
except as specifically set forth herein.
5.13 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. This Agreement may be executed in counterparts and all such
counterparts taken together shall be deemed to constitute one and the same
instrument.
5.14 BINDING EFFECT. All covenants, agreements, representations, warranties and
indemnifications in this Agreement by and on behalf of either of the Parties
shall bind and inure to the benefit of the successors and permitted assigns of
Licensor and Licensee (if any). Upon termination of this Agreement, all
obligations and covenants of Licensee under this Agreement shall survive and be
enforceable.
5.15 NO PARTNERSHIP, NO JOINT VENTURE. This Agreement shall not be construed as
creating a joint venture, partnership or agency between Licensor and Licensee.
5.16 SUBLICENSING; PROHIBITION ON ASSIGNMENT BY LICENSEE. The licenses granted
herein are personal to Licensee and neither this Agreement nor any rights or
duties hereunder may be sublicensed, assigned, mortgaged or pledged by Licensee
without the prior written consent of an authorized officer of Licensor, which
consent may be withheld at Licensor's sole discretion. For purposes of this
Article 5.16, an assignment shall include any attempt to sublicense, assign,
mortgage or pledge by Licensee without the prior written consent of an
authorized officer of Licensor, and shall be null and void AB INITIO.
Notwithstanding the foregoing, Licensor may freely assign this Agreement and/or
its rights and duties hereunder to any Affiliate, Related or
34
Subsidiary company, provided Licensor gives timely notice of the same to
Licensee. Licensee's change in status from a privately held to a publicly held
company after an initial public offering shall not, in and of itself, be
considered a prohibited assignment, mortgage or pledge.
5.17 WAIVER. Silence, acquiescence or inaction shall not be deemed a waiver of
any right. A waiver shall only be effective if it is in writing and signed by
the Party to be charged. Any such waiver shall not be construed as a continuing
waiver or as a waiver of any other breach of a same or similar nature.
5.18 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.
5.19 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between
the Parties with respect to use and licensing of the Licensed Property, and
supersedes all prior negotiations, understandings and agreements, if any,
between the Parties, whether oral or written. This Agreement replaces in its
entirety the License Agreement, and the latter is hereby terminated. Except as
otherwise provided with respect to EXHIBITS A-D, this Agreement may only be
amended or modified by written instrument signed by authorized officers of both
Parties. Because both Parties are sophisticated and knowledgeable business
enterprises with ready access to legal counsel, the principle of construing an
ambiguous provision or provisions against the drafter shall be disregarded when
construing this Agreement.
5.20 TITLES AND HEADINGS. Titles and headings herein are for convenience only
and are not part of this Agreement.
5.21 TAX ON AGREEMENT. Any stamp duty or other tax or duty imposed on this
Agreement or on any related registered user agreement shall be the sole
responsibility of and shall be paid by Licensee.
5.22 CONFIDENTIAL AGREEMENT. The terms of this Agreement are confidential and
shall not be disclosed except for the purpose of enforcement or registration or
recording or as may be required by law.
35
5.23 COUNTERPARTS; FACSIMILES. The Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original, and such counterparts together shall constitute one and the same
instrument. Each Party shall receive a duplicate original of the counterpart
copy or copies executed by it. For purposes hereof, a facsimile copy of this
Agreement, including the signature pages and EXHIBITS hereto, shall be deemed an
original. Notwithstanding the foregoing, the Parties shall each deliver
original, execution copies of this Agreement to one another as soon as
practicable following execution thereof.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by
their duly authorized representatives as of the Effective Date.
THE SPORTS AUTHORITY, INC. XXXXXXXXXXXXXXXXXX.XXX, INC
By: /S/ XXXXXX X. XXXXXX By: /S/ XXXXXXX XXXXX
---------------------------- ---------------------------
Title: Title:
------------------------- ------------------------
THE SPORTS AUTHORITY MICHIGAN, INC.
By: /S/ XXXXXXX XXXX
----------------------------
Title: SVP, GENERAL COUNSEL & SECRETARY
---------------------------------
Acknowledged and Agreed to by: Acknowledged and Agreed to
with respect to Article 5.6(c) by:
GLOBAL SPORTS INTERACTIVE, INC. GLOBAL SPORTS, INC.
By: /S/ XXXXXXX XXXXX By: /S/ XXXXXXX XXXXX
---------------------------- ---------------------------
Title: Title:
------------------------- ------------------------
36
EXHIBIT A
LICENSE GUIDELINES AND RESTRICTIONS
A. GENERAL
The following guidelines and restrictions apply to Licensee and each company or
other entity which may be authorized under the LICENSE AGREEMENT dated May 7,
1999 between TSA Interactive, Inc. ("Licensee") on the one hand, and The Sports
Authority, Inc. and The Sports Authority Michigan, Inc. (collectively,
"Licensor") to use certain of the "Marks" and "Names" as described in the
LICENSE AGREEMENT. All use of the Marks and Names by Licensee shall inure to the
benefit of and be on behalf of Licensor, and Licensee's utilization of the Marks
and Names shall not create any right, title or interest in or to such Marks or
Names in Licensee.
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 LICENSE AGREEMENT) and Licensor's goods and services.
The purpose of this guide is to ensure a clear and consistent presentation to
Licensor's and Licensee's customers. In addition, this document covers elements
of the corporate visual vocabulary: color, typography, and staging, and gives
Licensee guidelines for positioning visual elements. This document also offers
some examples of unacceptable usage and defines certain restrictions, so
Licensee will know what to avoid. All proposed usage by Licensee of the Marks
with Own Brand Merchandise must be approved in writing in advance by Licensor as
set forth in the LICENSE AGREEMENT.
Do not alter the Marks. Use them in a consistent manner, as depicted in these
guidelines. The addition of hyphens or spaces to a word Xxxx, creation of
unauthorized acronyms, or alteration of any design Marks or logos, for example,
could weaken public recognition of the Marks and damage their strength as a
brand designation. Any icons or hypertext links using Marks should only appear
in the forms authorized by Licensor.
B. THE MARKS
1. The word marks are:
a) primary marks:
AUTHORITY
XXXXXXXXXXXXXXX.XXX
THE SKI AUTHORITY
THE SPORTS AUTHORITY
THE SPORTS AUTHORITY LTD.
THE AUTHORITY ON SPORTING GOODS
XXXXXXXXXXXXXXXXXX.XXX
b) secondary marks:
BASKETBALL AUTHORITY
EXERCISE AUTHORITY
FOOTWEAR AUTHORITY
GOLF AUTHORITY
HOCKEY AUTHORITY
HUNTING AUTHORITY
IN-LINE SKATE AUTHORITY
FISHING AUTHORITY
FITNESS AUTHORITY
MARINE AUTHORITY
OUTDOOR AUTHORITY
OUTERWEAR AUTHORITY
RUNNING AUTHORITY
37
SHOE & APPAREL AUTHORITY
TEAM SPORTS AUTHORITY
TENNIS AUTHORITY
THE BICYCLE AUTHORITY
THE BAG AUTHORITY
THE CLUB AUTHORITY
THE KNIFE AUTHORITY
THE LOW PRICE AUTHORITY
2. The design or logo marks are:
THE SPORTS AUTHORITY & Design (as depicted in the
attached sheet)
C. USE.
1) UNACCEPTABLE USES OF THE MARKS.
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 the design Marks 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.
2) CLEAR SPACE. A minimum clear space on all sides of any Xxxx is
to be kept free of other visual elements. The minimum clear
space is equal to 1/2 of the Xxxx height.
3) STAGING. Staging involves proper placement, scale, and
proportion of any Xxxx and how it aligns with typography and
other elements. Licensee shall avoid staging any Xxxx at the
edges of a page. Licensee shall always surround the subject
Xxxx by the preferred clear space. Licensee shall not place
any Xxxx so that it "bleeds" off the edge of materials.
4) PRESENTATION WITH THIRD-PARTY TRADEMARKS. When printed with a
third party's trademark, the Marks must be of at least equal
size as such third party's trademark. Licensee shall not print
any Xxxx in black if the third party's trademark appears in
color.
5) DESIGN MARKS OR LOGOS. Licensee shall always reproduce each
logo exactly as specified by Licensor using approved original
reproduction art or digital files available from Licensor's
Advertising and Marketing Department. The design Marks or
logos as provided by Licensor are unique. Licensee may not
attempt to recreate the design Marks or logos.
D. CORPORATE NAMES VERSUS MARKS. Licensor's proper corporate names are:
The Sports Authority, Inc.,
OR
The Sports Authority Michigan, Inc.
38
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, when referring to an item of Own Brand Merchandise, 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 other key markets as determined by Licensor,
Licensor may inform Licensee and Licensee shall commence marking all packaging,
labels and "Materials") (as defined in the LICENSE AGREEMENT) for the Own Brand
Merchandise and Services 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:
"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 registration notices should be placed 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 for identical or similar goods.
F. CONTENT OF TSA SITE
1. The TSA Site shall not include advertising from casinos,
sports books or other gambling enterprises, nor shall it
"courtesy" any enterprise or individual for having supplied
information to the TSA Site.
2. The TSA Site shall not include any content that: (a) is
sexually explicit, (b) contains profanity, (c) is slanderous
or libelous or (d) that denigrates a particular group based on
gender, race, creed, religion, sexual preference or handicap.
The parties acknowledge that Licensee may not be able to
prevent such content from appearing on the TSA Site due to the
actions of non-employees, although Licensee shall take such
reasonable steps to prevent such action by non-employees as
may be prudent under the circumstances.
3. Each page of the TSA Site containing any TSA Content, Marks or
Own Brand Merchandise shall have the same look and feel of the
TSA Stores in the U.S. as Licensor shall from time to time
adopt.
4. Each party shall notify the other of all errors, omissions,
and/or inaccuracies in the TSA Content within forty-eight (48)
hours after it becomes aware thereof.
5. 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.
39
6. If Licensor provides such a notice, or receives such notice,
it may specify the action to be taken by Licensee to correct
the error, omission and/or inaccuracy or resubmit such
content.
7. All TSA Content shall be subject to restrictions and
instructions disclosed by Licensor at any time.
G. COPYRIGHT NOTICES
1. Licensee shall place an appropriate copyright notice to be
furnished by Licensor on all TSA Content Pages on the TSA
Site.
2. Licensee and Licensor shall mutually develop the procedures
for placing any third party copyright notice on any TSA
Content Page.
40
Exhibit B
========================================================================================================================
XXXX GOODS/SERVICES CL SER. NO. REG. NO.
AQUARIUM AUTHORITY retail store services featuring 42 74-699,118 2,141,699
pet fish and aquatic supplies
AUCTION AUTHORITY online auction services, namely, 42 75-809,485
providing access to information with
respect to price, availability, sales
volume and other characteristics of
goods and services, posting listings
of goods and services available for
sale or requested for purchase, and
facilitating auction purchase and
sale transactions, all by means of a
global computer information network
AUTHORITY retail store services in the field 42 74-695,504 2,074,354
of sporting goods and equipment,
apparel, footwear, headgear and
related goods and services
AUTHORITY apparel, namely, rainwear, 25 366,111 1,245,417
jackets, coats, suits, slacks and
vests
AUTOGRAPH AUTHORITY computerized on-line retail store 35 75-711,996 2,335,979
services featuring collectibles, 42
trading cards and autographed
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 42 74-695,510 2,074,358
of sporting goods and equipment,
apparel, footwear, headgear and
related goods and services
EXERCISE AUTHORITY retail store services in the field 42 74-695,506 2,082,095
of sporting goods and equipment,
apparel, footwear, headgear and
related goods and services
FISHING AUTHORITY retail store services in the field 42 74-695,507 2,074,356
of sporting goods and equipment,
apparel, footwear, headgear and
related goods and services
FITNESS AUTHORITY retail store services in the field 42 74-695-513 2,079,864
of sporting goods and equipment,
apparel, footwear, headgear and
related goods and services
FOOTWEAR AUTHORITY retail store services in the field 42 74-695,653 2,082,096
of sporting goods and equipment,
apparel, footwear, headgear and
related goods and services
GOLF AUTHORITY retail store services in the field 42 74-695,512 2,074,359
of sporting goods and equipment,
apparel, footwear, headgear and
related goods and services
HOCKEY AUTHORITY retail store services in the field 42 74-695,651 2,079,866
of sporting goods and equipment,
apparel, footwear, headgear and
related goods and services
========================================================================================================================
41
========================================================================================================================
XXXX GOODS/SERVICES CL SER. NO. REG. NO.
HOT NEW NOW retail store services featuring 35
apparel, footwear, headgear,
sporting goods and equipment,
gifts and related goods and
services; computerized retial
store services featuring apparel,
footwear, headgear, sporting goods
and equipment, gifts and related
goods and services; cooperative
advertising services
HOUSEWARES AUTHORITY retail housewares store services 35 75-600,729
HUNTING AUTHORITY retail store services in the field 42 74-695,508 2,074,357
of sporting goods and equipment,
apparel, footwear, headgear and
related goods and services
IN-LINE SKATE AUTHORITY retail store services in the field 42 74-695,502 2,074,353
of sporting goods and equipment,
apparel, footwear, headgear and
related goods and services
ISPORT retail store services featuring 35 75-808,312
consumer electronic products,
games, pre-recorded audio and
video tapes and discs, books and
magazines
MAIL AUTHORITY telephone answering, photocopying 35 75-167,549 2,284,347
and business management services 42
(35); postal services, namely 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 42 74-695,655 2,079,867
of sporting goods and equipment,
apparel, footwear, headgear and
related goods and services
MUSCLE AUTHORITY magazines and newsletters 16 75-618,602 2,335,185
pertaining to exercise and fitness
OUTDOOR AUTHORITY retail store services in the field 35 74-695,514
of sporting goods and equipment,
apparel, footwear, headgear and
related goods
OUTERWEAR AUTHORITY retail store services in the field 42 74-695,509 2,076,213
of sporting goods and equipment,
apparel, footwear, headgear and
related goods and services
PANTS AUTHORITY retail outlets featuring 35 75-509,313
clothing, footwear, outerwear and
headgear
PARTS AUTHORITY retail outlets featuring sporting 42 75-076,697
goods and equipment 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 35 75-277,570 2,176,490
fields of fitness, sporting goods 42
and equipment, apparel, footwear,
headgear and related goods and
services; cooperative advertising
(35); computer services, namely
========================================================================================================================
42
========================================================================================================================
XXXX GOODS/SERVICES CL SER. NO. REG. NO.
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 42 74-695,654 2,082,097
of sporting goods and equipment,
apparel, footwear, headgear and
related goods and services
SHOE & APPAREL AUTHORITY retail store services in the field 42 74-695,501 2,074,352
of sporting goods and equipment,
apparel, footwear, headgear and
related goods and services
XXXXXX-XXXXXX-XXX.XXX computerized on-line retail store 35 75-636,136
services featuring clothing, 42
footwear, outerwear and headgear;
retail 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)
SPORTS AUTHORITY FOOD, restaurant services 42 74-256,187 2,074,782
SPIRITS AND SPORTS and
design
TEAM SPORTS AUTHORITY retail store services in the field 42 74-695,505 2,074,355
of sporting goods and equipment,
apparel, footwear, headgear and
related goods and services in
Class 42
TENNIS AUTHORITY retail store services in the field 42 74-695,511 2,076,214
of sporting goods and equipment,
apparel, footwear, headgear and
related goods and services
THE AUTHORITY ON SPORTING rental of sporting goods, 41 75-136,153 2,101,178
GOODS including protective clothing and 42
equipment; retail store services in
the fields of fitness, sporting goods
and equipment, apparel, footwear,
headgear and related goods.
THE BAG AUTHORITY athletic bags, utility bags, stuff 18 74-595,323 1,938,392
bags, duffle bags and soft luggage
THE BICYCLE AUTHORITY repairs and maintenance of 37 74-471,949 2,003,381
bicycles in International Class 42
37; retail store services in the
field of bicycles and related
accessories in International Class
42
THE CLUB AUTHORITY management of recreation and 35 74-708,805 1,999,520
fitness clubs of others; and
========================================================================================================================
43
========================================================================================================================
XXXX GOODS/SERVICES CL SER. NO. REG. NO.
business consulting services
relating to health, recreation and
fitness clubs
THE FITNESS AUTHORITY THE services rendered by health clubs 41 74-713,191 2,096,403
LAST WORD IN FITNESS &
Design
THE FITNESS AUTHORITY THE fitness apparel, namely 25 74-713,059 2,098,608
LAST WORD IN FITNESS & sweatshirts, t-shirts and tank tops
Design
THE KNIFE AUTHORITY retail store services featuring 42 74-596,250 1,963,911
sale of sporting goods and
equipment, footwear and clothing
THE LOW PRICE AUTHORITY retail store services comprising 42 74-595,324 1,937,000
sale of sporting goods and
equipment, footwear and clothing
THE MATTRESS AUTHORITY retail bedding store services 35 75-371,148 2,275400
featuring furniture and bedding
THE SHOE AUTHORITY retail store services in the field 42 74-622,104
of sporting goods and equipment,
apparel, footwear and related
products and accessories
THE SKI AUTHORITY retail store services featuring 42 74-116,271 1,688,221
ski equipment and clothing
THE SPORTS AUTHORITY retail store services featuring 42 73-736,556 1,527,526
sporting equipment and clothing
THE SPORTS AUTHORITY ladies apparel, namely shirts, and 25 74-362,909 1,821,430
mens apparel, namely hats, visors,
pants, shirts, shorts and swim
trunks
THE SPORTS AUTHORITY & retail store services featuring 42 73-736,555 1,529,035
Design sporting equipment and clothing
THE SPORTS AUTHORITY athletic tape and pre-wrap; balls, 28 75-076,695
bats and gloves for 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 rtennis,
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 42 75-076,694 2,102,208
interactive on-line publications
in the fields of sporting goods
and equipment, apparel , footwear,
headgear and related goods and
services
THE SPORTS AUTHORITY 16: scorebooks, instruction guides 16 75-076,675 2,071,449
and books in the fields of sports, 18
exercise, fitness and recreation; 24
clip boards; printed forms; 25
printed matter, namely art 26
pictures, art prints, bags for 35
merchandise packaging, calendars, 36
gift certificates, illustrations,
price tags, and magazines in the
fields of sports, exercise,
fitness and recreation; score
cards; stationery.
=======================================================================================================================
44
========================================================================================================================
XXXX GOODS/SERVICES CL SER. NO. REG. NO.
18: 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 retail store services in the 42 75-132,507
LIMITED fields of fitness, sporting goods
and equipment, apparel, footwear,
headgear and related goods and
services; rental of sporting
goods and protective clothing and
equipment
THE SPORTS AUTHORITY LTD. rental of sporting goods, 41 75-136,804 2,108,004
including protective clothing and 35
equipment; retail store services
in the fields of fitness, sporting
goods and equipment, apparel,
footwear, headgear and related
goods.
THE SPORTS AUTHORITY stringing and re-gripping 37 75-501,083 2,274,172
racquetball, squash and tennis 39
racquets, sizing and drilling 40
bowling balls, line winding for
fishing reels, customizing arrows
for 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
XXXXXXXXXXXXXXX-XXX.XXX computerized on-line retail store 35 75-636,870
services featuring clothing, 42
footwear, outerwear and headgear;
retail 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 25 75-925,065
shorts, pants, shirts, hats, caps, 28
visors, hosiery and outerwear (25); 35
=========================================================================================================================
45
========================================================================================================================
XXXX GOODS/SERVICES CL SER. NO. REG. NO.
balls, bats and gloves for 41
games, protective guards and 42
paddings for sports, toy figures,
inflatable ride on 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 SPORTING GOODS retail store services in the field 42 74-695,652 2,056,425
MEGASTORE of sporting goods and equipment,
apparel, footwear, headgear and
related goods and services
YOU'VE NEVER SEEN ANYTHING retail store services in the field 35 74-695,503 2,034,485
QUITE LIKE IT of sporting goods and equipment,
apparel, footwear, headgear and
related goods and services in
Class 42
================================ ======================================== =========== ================= ================
46
EXHIBIT C
OTHER LICENSED OR AUTHORIZED USERS OF THE MARKS
A. COMPREHENSIVE, LONG TERM LICENSE AGREEMENTS
1. FIRST AMENDMENT TO LICENSE AGREEMENT between The Sports Authority
Michigan, Inc. (formerly Intelligent Sports Inc.) as licensor and The
Sports Authority, Inc., The Sports Authority Florida, Inc. and
Authority International, Inc. as licensees, for use of certain Marks in
connection with full line sporting goods stores and related goods and
services in the U.S., its territories and possessions and Puerto Rico.
2. LICENSE AGREEMENT between The Sports Authority Michigan, Inc. (formerly
Intelligent Sports Inc.) and The Sports Authority, Inc. as licensor and
The Sports Authority Canada, Inc. as licensee, for use of certain Marks
and certain technology and know-how in connection with full line
sporting goods stores and related goods and services in Canada.
3. AMENDED AND RESTATED LICENSE AGREEMENT between The Sports Authority
Michigan, Inc. and The Sports Authority, Inc. as licensor and Mega
Sports Co., Ltd. as licensee for use of certain Marks and certain
technology and know-how in connection with full line sporting goods
stores and related goods and services in Japan.
4. LICENSE AGREEMENT between The Sports Authority Michigan, Inc. as
licensor and Fancy Publications, Inc. as licensee for use of certain
Marks and certain domain names (XXXXXXXXXXXXXXX.XXX, XXXXXXXXXXXX.XXX,
XXXXXXXXXXXXXXXXXXXX.XXX and XXXXXXXXXXXXXXXXX.XXX) in connection with
titles of print or electronic media publications relating to animals,
reptiles, fish and birds, throughout the world.
5. LICENSE AGREEMENT between The Sports Authority Michigan, Inc. as
licensor and Drayton Plains Veterinary Clinic, Inc. as licensee for use
of the names and marks THE PET AUTHORITY, PET AUTHORITY ANIMAL HOSPITAL
and THE PET AUTHORITY ANIMAL HOSPITAL on and in connection with
veterinary services, namely, animal care and animal health services,
including medical, grooming and training, and operation of a retail
department within Licensee's hospital featuring sales of pet related
merchandise, in Oakland County, Michigan.
6. LICENSE AGREEMENT between The Sports Authority Michigan, Inc. as
licensor and Yogurt Ventures U.S.A., Inc. as licensee for use of the
marks THE SMOOTHIE AUTHORITY and THE SMOOTHIE AUTHORITY & Design for
use on and in connection with non-alcoholic frozen beverages (i.e.,
smoothies) and as service marks on and in connection with operation of
businesses serving smoothies, ice cream and/or frozen yogurt, within
the U.S. and Australia.
7. LICENSE AGREEMENT between The Sports Authority Michigan, Inc. as
licensor and Nike Xxxxx, Inc. as licensee for use of the trademark
POWER & AUTHORITY and related logotypes on and in connection with
certain sporting goods in the fields of ice and street hockey,
worldwide.
B. SHORT TERM, PHASE-OUT LICENSES FOR SETTLEMENT PURPOSES
1. AGREEMENT between The Sports Authority Michigan, Inc. as licensor and
Luggage Authority, Inc. as licensee for use of the trademark LUGGAGE
AUTHORITY on and in connection with a retail luggage, leather goods and
accessories business operating in Virginia.
2. AGREEMENT between The Sports Authority Michigan, Inc. and The Sports
Authority, Inc. as licensor and The Fish Authority, Inc. as licensee
for use of the xxxx THE FISH AUTHORITY and related logotypes as a
corporate name and service xxxx on and in connection with operation of
a wholesale seafood business based in Miami, FL.
47
3. AGREEMENT between The Sports Authority Michigan, Inc. as licensor and
Carondelet Trading, Inc. as licensee for use of the names and marks
MAIL AUTHORITY, XXXXXXX MAIL AUTHORITY, XXXXXXXXXXXXX.XXX and MAIL
AUTHORITY & Design on and in connection with a postal service,
packaging, courier, photocopying and retail mail and shipping supplies
business operating in the U.S.
4. AGREEMENT between The Sports Authority Michigan, Inc. as licensor, and
RDL Holdings I Corp., RDL Holdings II Corp., RDL Holdings III Corp.,
The Storage Authority-Third Avenue, L.P., The Storage Authority-Xxxxxxx
Avenue, L.P., and The Storage Authority-Australian Avenue, L.P.
collectively as licensee for use of the name and xxxx THE STORAGE
AUTHORITY and related logotypes on and in connection with a self
storage and retail storage supplies business operating in Florida.
C. OTHER AGREEMENTS, PERMISSIVE USES, ETC.
1. Such other and further long term license agreements which are not
materially in conflict with any grant of rights to Licensee under the
LICENSE AGREEMENT, and such other and further short term, phase-out
licenses entered into for settlement purposes, as Licensor may enter
into from time to time.
2. Current and future permissive uses for Licensor's benefit by Licensor's
agents, representatives and providers of goods or services to Licensor,
including, without limitation, Licensor's law firms, advertising or
marketing firms, public relations firms, and persons or entities which
receive charitable contributions or sponsorships from Licensor.
3. Current and future no-royalty (or nominal royalty) permissions granted
for single uses of one or more Marks for educational purposes,
including, without limitation, permissions to use one or more Marks in
annual reports, books, articles, stories or the like.
48
EXHIBIT D
LICENSOR'S MISSION STATEMENT
The Sports Authority, Inc. and its retailing subsidiaries and licensees
(collectively, "TSA") shall offer high quality, high performance and innovative
products, in fashion and on trend as to style, color, materials and makeup.
TSA stands for superior performance products through superior technology.
TSA shall become the leading sporting goods reseller, and a premier retailer, in
each market that it serves.
TSA is a mass merchant, focused on serving mainstream urban and suburban
families and individuals who participate in almost any type of sport, leisure or
recreational activity. TSA's "offer" will support beginner, intermediate and
enthusiast participants through superior value and service.
49
