EXHIBIT 10.12
LICENSE AND CONSULTING AGREEMENT
LICENSE AND CONSULTING AGREEMENT, dated the _____ day of August, 1994, by
and between PLANNED LICENSING, INC., a New York corporation and a wholly owned
subsidiary of Namanco Productions, Inc. having offices at c/o Xxxxx X. Xxxxx,
Esq., 0 Xxxxxxx Xxxxx, Xxx Xxxxxxx, Xxxxxxxxx 00000 ("Licensor") and SportsLine
USA, Inc., a Delaware corporation having offices at 000 Xxxxxxxxx Xxxxx, Xxxxx
000, Xxxx Xxxxxxxxxx, Xxxxxxx 00000 ("Licensee").
W I T N E S S E T H:
WHEREAS, Licensor owns the rights to the services of XXXXXX X. XXXXXX
(hereinafter referred to as "NAMATH") and the rights to the utilization of the
Name and Character, as hereinafter defined, and will continue to have such
rights during the period of this Agreement; and
WHEREAS, Licensee is a development stage company that plans to establish a
comprehensive, on-line computer service for sports enthusiasts and wagerers and
desires to retain Licensor (i) to consult in the development, funding, marketing
and promotional activities of Licensee and (ii) to provide the services of
NAMATH as a performer to advertise and promote its products, and as a spokesman
for its products; and
WHEREAS, Licensee further desires the right to exclusively utilize the Name
and Character upon and in connection with certain articles and services, as
hereinafter described, including the manufacture, advertising, promotion, sale
and distribution thereof.
NOW, THEREFORE, in consideration of the promises set forth
below, the parties hereto hereby agree as follows:
1. DEFINITIONS. As used in this Agreement, the following terms shall have
the following respective meanings:
a. "Name and Character" shall individually or collectively mean the
name of Xxxxxx X. Xxxxxx (hereinafter referred to as "NAMATH"), his initials,
character, likeness, visual and vocal representations, including television and
film representations generated hereunder, autographs, photographs, reproductions
thereof, biographical data, and in association with the marketing of products
licensed hereunder, any trademark used to convey to the public any of the
foregoing aspects of representations of NAMATH.
b. "Endorsed Products" shall mean the on-line sports information computer
service ("SportsLine") and other related products to be developed or marketed by
Licensee in connection with the operation of SportsLine.
c. A company shall be deemed a subsidiary of Licensee if at least
thirty-five percent (35%) of all the voting securities thereof are owned by
Licensee.
d. "Territory" shall mean worldwide.
e. "Contract Year" shall mean a consecutive 12 month period beginning July
1, 1994 and each July 1 thereafter during the term thereof.
2. SERVICES OF NAMATH AND LICENSOR.
a. On condition that Licensee shall comply with its
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obligations under this Agreement, NAMATH will, during the term of this
Agreement, render the following services:
(i) Make personal appearances on behalf of Licensee to promote the
marketing and sale of the Endorsed Products. All personal appearances shall be
at the reasonable discretion and subject to the availability of NAMATH, provided
that NAMATH shall use his best efforts to make himself available for functions
or appearances designated by Licensee as significant, such as attempting to
establish significant business relationships;
(ii) Make personal endorsements of Endorsed Products in advertisements
in all media, including without limitation, newspapers, magazines and
publications of every kind and nature;
(iii) Perform or appear, at Licensee's request, in television and radio
"infomercials," commercials and videos (including "openings", "closings",
"lead-ins", and "lead-outs") involving Endorsed Products and to make personal
endorsements therein of Endorsed Products;
(iv) Make recordings and tapes regarding Endorsed Products; and
(v) Sit for still photographs to be used for packaging, print and/or
point of sale advertising and consumer and trade publicity of Endorsed Products.
b. Each time that Licensee requires the personal appearance services of
NAMATH under subdivision (ii) through (v) of subparagraph 2(a) above, Licensee
(or its duly appointed
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agency) shall give to Licensor at least thirty (30) days written notice of such
performance requirements. Licensor shall then, within seven (7) days of
receiving notice, advise Licensee and its duly appointed agency as to NAMATH's
availability for such performance require ments. NAMATH shall use his reasonable
efforts to be available at the times requested by Licensee. In the event NAMATH
is unavail able for such performance requirements, the Licensee may supply
alternate dates and thereafter Licensee and Licensor shall agree upon
satisfactory performance dates. Once mutually agreeable date or dates are
established, NAMATH shall not enter into conflicting commitments, except in the
case of unanticipated circumstances beyond NAMATH's reasonable control. Such
services will be rendered in a competent manner, to the best of NAMATH's
ability, and all his services will be subject to Licensee's approval, direction
and control at all times. NAMATH promptly will comply with whatever reasonable
instructions Licensee may give him in connection with the rendition of such
services. In the event of an emergency or special promotional opportunity,
NAMATH shall use reasonable efforts to make himself available notwithstanding
Licensee's failure to give notice as aforesaid.
c. Licensor will make NAMATH available to Licensee for not fewer than six
1-day sessions each Contract Year for the purpose of making television
commercials. Subject to paragraph 8, Approvals, Licensee may use adaptations,
variations and lifts from
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such commercials when and as it sees fit.
d. If Licensee requires NAMATH's services at a location other than that at
which NAMATH is then located, Licensee shall provide Licensor with first-class
air and ground transportation and accommodations for NAMATH and up to two
associates to and from the location at which NAMATH's services are required,
plus reimbursement of their reasonable out-of-pocket expenses.
e. Licensor reserves the right to approve, which approval will not be
unreasonably withheld, the photographer to be used during any photography
sessions using NAMATH, and the director to be used in television commercials
using NAMATH.
f. If Licensee uses the services of NAMATH hereunder for television
broadcast commercials, its agency or producer shall either be signatories to or
submit to the jurisdiction of the Screen Actors Guild (SAG) or the American
Federation of Television and Radio Artists (AFTRA). Licensee shall make all
required applicable pension and welfare payments to SAG or AFTRA to the extent
applicable on account of such services as are furnished by the Licensor
hereunder. All applicable residual fees on account of services shall be computed
at the applicable union minimum scales; provided, however, that Licensee shall
not be obligated to make any such residual payments to NAMATH unless and to the
extent that such residual payments payable hereunder in any Contract Year exceed
the consideration payable hereunder for that year. Any such required excess
payments shall be made to NAMATH on the
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thirtieth day of the Contract Year following the year in which the obligation to
make such payment accrues (and shall be refunded in any future years hereunder
in which consideration payable hereunder exceeds the minimum residual payments
payable). NAMATH shall be paid at minimum union scale for all performances, and
allocations shall be as set forth in paragraph 31 hereof.
g. All statements, testimonials and endorsements made by NAMATH in
connection with his services hereunder will be true representations and to the
extent that said services purport to reflect NAMATH's opinion and experience,
they will reflect his true opinion and experience. Licensee agrees that NAMATH
will not be required to make any statement, testimonial or endorsement, in
connection with his services hereunder, unless said statement, testimonial or
endorsement is true. It is expressly understood between the parties that NAMATH
is familiar with Endorsed Products now intended to be marketed, sold or
distributed. Licensor represents to Licensee that NAMATH has considered the
products and services to be provided by Licensee and has concluded that said
products and services appear to be of the highest quality of which he is aware
and that he has used or is prepared to use those products and has recommended
and/or is prepared to recommend the use of all said products to others.
h. Licensor will assist Licensee in developing an advertising, marketing
and promotional strategy, in order to make optimum use of the Name and
Character.
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i. Licensor will advise and consult with Licensee from time to time at
Licensor's reasonable convenience with respect to corporate, business and
marketing strategy.
j. Licensor and NAMATH will use their best efforts, at the request of
Licensee, to arrange meetings with appropriate representatives of XXX Xxxxx, NFL
Properties and other similar sports governing bodies and marketing
organizations, as well as with potential strategic partners such as casinos,
retailers, infomercial marketing companies, television networks and other
organizations.
k. Whenever Licensor is requested to provide services hereunder pursuant to
subparagraphs h, i and j, Licensor will provide the services of Xxxxx Xxxxx.
3. GRANT OF LICENSE. During the term of this Agreement, Licensor hereby
grants to Licensee, and Licensee hereby accepts, a non-transferable,
non-assignable, and non-sublicensable right to use the Name and Character solely
within the Territory and solely on and in connection with the manufacture,
advertising, promotion, sale and distribution of Endorsed Products. Licensee
shall make no use of the Name and Character in association with goods other than
Endorsed Products.
4. TERM. The term of this Agreement shall commence on July 1, 1994 and
continue for five years (the "Initial Term"). Thereafter, Licensee shall have
the right, at its option, to renew this Agreement for up to three (3) additional
five-year terms
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(each, a "Renewal Term"). Licensee shall notify Licensor of its intention to
renew the Agreement not later than sixty (60) days prior to the expiration of
the Initial Term or the then current Renewal Term, as the case may be.
5. CONSIDERATION. In full consideration for the rights, licenses and
privileges herein granted to Licensee, and the mutual promises set forth herein,
Licensee shall pay to Licensor royalty payments from paid subscriptions to the
SportsLine service, as follows:
a. For the Initial Term, Licensee shall pay Licensor fifteen cents ($0.15)
per month from the subscription fee of each paid subscriber to SportsLine;
b. For each Renewal Term, Licensee shall pay Licensor fifteen cents ($0.15)
per month from the paid subscription fee of each new paid subscriber to
SportsLine who enrolls during such Renewal Term during the period of the
subscriber's enrollment, or, if Licensor has received not less than Five Hundred
Thousand Dollars in payments from Licensee during the Calendar Year prior to the
then current Renewal Term, five cents ($0.05) per month for each such
subscriber;
c. If the Agreement is not renewed, Licensor shall nevertheless be entitled
to receive payment in respect of monthly subscription fees for subscribers who
enrolled during the Initial Term or any Renewal Term (during the period of their
continued enrollment) at the applicable royalty rate in effect during the
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applicable period, i.e., fifteen cents ($0.15) per month per paid subscriber in
respect of subscribers initially enrolled during the Initial Term and fifteen
cent ($0.15) or five cents ($0.05) (as the case may be) per month per paid
subscriber in respect of subscribers initially enrolled during a Renewal Term.
Such payments shall continue in respect of subscription fees received from
active enrollments of such subscribers prior to the twentieth anniversary
hereof. Notwithstanding anything to the contrary set forth above, Licensor shall
not be entitled to any payment in respect of subscription payments from
subscribers who enroll during any period that the Agreement is no longer in
effect.
d. Royalties earned hereunder shall be paid quarterly, concurrently with
the delivery of the periodic statements required by subparagraph (e) hereof
e. Licensee shall keep complete and accurate separate records of all paid
subscriptions, in sufficient detail to disclose the initial enrollment date and
current status of subscribers. The said records, and all underlying documents
and other documents relating to the Endorsed Products, shall be open to
inspection by Licensor or its designated representative at all reasonable times
during business hours up to four (4) times per Contract Year and shall be
maintained and preserved by Licensee until two (2) years after the expiration or
termination of this Agreement. Licensee agrees not to cause or permit any
interference with Licensor or Licensor's representative in the
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reasonable performance of their duties of inspection and audit. The exercise by
Licensor in whole or in part, or at any time or times of the right to audit
records and accounts or of any other right herein granted, the acceptance by
Licensor of any statement or statements or the receipt and deposit by Licensor
of any payment tendered by or on behalf of Licensee shall be without prejudice
to any rights or remedies of Licensor and shall not stop or prevent Licensor
from thereafter disputing the accuracy of any such statement or payment.
f. No later than the thirtieth day after each calendar quarter, Licensee
shall transmit to Licensor a complete and accurate statement certified to be
accurate by an officer of Licensee, covering the immediately preceding calendar
quarter. Such report shall set forth the number of paid subscriptions in effect
during the preceding quarter, and the applicable royalty pertaining thereto. In
the event that any inconsistencies or mistakes are discovered in such statements
or payments, they shall immediately be rectified and the appropriate payment or
deduction from future payments shall be made. Upon demand by Licensor, Licensee
shall at Licensor's expense (such expense to be deducted from royalties payable
to Licensor hereunder), but no more than once in any twelve (12) month period,
furnish to Licensor a detailed statement by an independent certified public
accountant computing amounts due to Licensor hereunder as of the date of
Licensor's demand. If the certified audit discloses that
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royalties were understated by more than ten percent (10%) per Contract Year,
then Licensee shall pay for such audit.
g. If Licensee shall fail to make any payment or deliver any of the
required statements referred to above, or to give access to the premises and/or
records pursuant to the provisions hereof to Licensor's authorized
representatives for the purposes permitted hereunder, same shall be an Event of
Default hereunder.
6. PAYMENT. All payments due under this Agreement shall be made by check,
drawn upon a United States bank, payable to the order of Licensor. Interest on
any overdue payment under this Agreement shall be at the rate of two percentage
(2%) points over the prime rate, as announced from time to time by Citibank,
N.A., from ten (10) days after notification of non-payment by Licensor to the
date of their payment, irrespective of whether payment be made before or after
judgment. Payment of interest as described hereunder shall cure and excuse
Licensee's default in making payments when due.
7. RESERVATION OF RIGHTS. Licensor retains all rights not expressly or
exclusively conveyed to Licensee hereunder, and Licensor may grant licenses to
others to use the Name and Character in connection with products other than (and
not competitive) Endorsed Products.
8. APPROVALS. Licensor has previously approved the concept of SportsLine,
as set forth in the Business Plan provided to Licensor. Licensor understands and
acknowledges that
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SportsLine intends to carry gaming information, including odds, point spreads,
over/under and other similar information and agrees that, so long as the
provision of such information and other related services complies with
applicable laws and regulations, such activities are acceptable to NAMATH and
Licensor. Subject to the foregoing, Licensor shall have the right to approve the
nature and quality of all Endorsed Products, which approval shall not be
unreasonably withheld. Licensor shall not be required to approve any Endorsed
Product which in Licensor's reasonable judgment would, due to the nature of the
product, reflect adversely on the image or reputation of NAMATH. For each
service to be provided or item to be manu factured for and sold by Licensee that
is outside the general categories of services contemplated by the Business Plan,
the following procedures shall apply:
a. Licensee shall submit to Licensor for approval, which shall not be
unreasonably withheld, fair and representative description of services or
reproduction samples of all items together with a written request for approval;
b. In the event Licensor does not disapprove of the use of the Name and
Character within seven (7) business days from its receipt of such description or
samples, the description or samples shall be deemed to have been approved. In
the event Licensor disapproves, it shall specify the basis for such disapproval.
After removing the basis for objection, Licensee shall resubmit that item for
approval in accordance with the terms of this
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section 8;
c. In the event of changes being made at any time in the use of the Name
and Character, such changed products shall be considered new items and shall be
submitted for approval as specified above; and
d. Licensee shall not use the Name and Character, or any colorable
imitation of it in connection with any services or product that had not been
approved by or which had been disapproved by Licensor.
9. GOOD WILL. Licensee recognizes the value of the publicity and good will
associated with the Name and Character and, in such connection, acknowledges
that such good will belongs exclusively to Licensor and that the Name and
Character have acquired a secondary meaning in the mind of the purchasing
public. Licensee further recognizes and acknowledges that a material breach by
it of any of its covenants, agreements or undertakings hereunder will cause
Licensor irreparable damage, which cannot be readily remedied in damages in an
action at law, and may, in addition thereto, constitute an infringement of
Licensor's rights in the Name and Character, thereby entitling Licensor to
equitable remedies, costs and reasonable attorney's fees. Similarly, Licensor
recognizes that a material breach by it of any of its covenants, agreements or
undertakings hereunder will cause Licensee irreparable damage, which can not be
readily remedied in damages in an action at law, and Licensor therefore agrees
that
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Licensee will be entitled to equitable remedies, costs and reasonable attorneys'
fees.
10. LICENSOR'S WARRANTIES, REPRESENTATIONS AND COVENANTS. Licensor
warrants, represents and agrees that:
a. It has, and will have throughout the term of this Agreement, the right
to license the Name and Character in accordance with the terms and provisions of
this Agreement;
b. The making of this Agreement by Licensor does not violate any
agreements, rights or obligations existing between the Licensor and any other
person, firm or corporation;
c. During the Initial Term, any Renewal Term and any period during which
Licensor is entitled to receive payment hereunder, Licensor and NAMATH will not
own, assist, be employed by, or render services to, any competitive enterprise,
including without limitation, any business providing sports-related information
to subscribers; and,
x. XXXXXX is, and shall remain, at his sole cost and expense, a member in
good standing of SAG and/or AFTRA.
The foregoing subparagraphs shall not be construed to limit the right of
NAMATH to appear in any of the entertainment fields and to grant customary
advertising and exploitation rights in connection with such appearances, except
that he may not appear in commercials for or endorse for other products similar
to the Endorsed Products or other articles or services which are competitive
with or substantially similar to Endorsed Products.
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11. DISTRIBUTION, SUB-LICENSE MANUFACTURE. Licensee shall not be entitled
to sub-license any of its rights under this Agreement except that Licensee
shall, subject to the prior written approval of Licensor (which approval shall
not be unreasonably withheld), be entitled to utilize third parties in
connection with the manufacture, production and dissemination of SportsLine. In
no event shall any such sub-license agreement include the right to grant any
further sub-licenses.
12. SPECIFIC UNDERTAKINGS OF LICENSEE. During the term, Licensee agrees
that:
a. It will not attack the title of Licensor in and to the Name and
Character or any copyright or trademark pertaining thereto, nor will it attack
the validity of the License granted hereunder;
b. It will not harm, misuse or bring into disrepute the Name and Character.
c. It will sell and distribute the Endorsed Products in an ethical manner
and in accordance with the terms and intent of this Agreement;
d. It will not create any expenses chargeable to Licensor without the prior
written approval of Licensor;
e. It will protect to the best of its ability its right to sell and
distribute the Endorsed Products; and
f. It will comply with all laws and regulations relating or pertaining to
the operation of the Endorsed Products, shall
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maintain the highest quality and standards, and shall comply with regulations of
any governmental or regulatory agencies which shall have jurisdiction over the
Endorsed Products.
13. INDEMNIFICATIONS.
a. Licensor and NAMATH hereby indemnify Licensee and shall hold it harmless
from any loss, liability, damage, cost or expense (including reasonable counsel
fees), arising out of any claims or suits, whether groundless or not, which may
be brought or made against it by reason of the breach by Licensor or NAMATH of
their warranties, representations or covenants herein, provided that Licensee
shall give prompt written notice, cooperation and assistance to Licensor and
NAMATH relative to any such claim or suit, and provided, further, that Licensor
and NAMATH shall have the option to undertake and conduct the defense of any
suit so brought with counsel reasonably satisfactory to Licensee.
b. Licensee hereby indemnifies and agrees to hold Licensor and NAMATH
harmless from any loss, liability, damage, cost or expense (including reasonable
counsel fees), arising out of any claim or suits, whether groundless or not,
which may be brought or made against Licensor or NAMATH by reason of any
unauthorized use by Licensee in connection with the Endorsed Products of the
Name and Character covered by this Agreement.
c. Licensee hereby indemnifies and agrees to hold Licensor and NAMATH
harmless from and against any loss, liability, damage, cost or expense
(including reasonable counsel fees), arising out
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of any claims or suits (whether groundless or not), which may be brought or made
against Licensor or NAMATH arising out of the offer, sale, advertising or
promotion of the Endorsed Products (other than that arising from Licensor's or
NAMATH's negligence or willful misconduct), as well as any alleged defects or
inherent damage in the Endorsed Products, provided that the Licensor and NAMATH
give prompt written notice, cooperation and assistance to it relative to any
such suit or claim, and provided further that Licensee shall have the option to
undertake and conduct the defense of any suit so brought with counsel reasonably
satisfactory to Licensor.
14. EVENTS OF DEFAULT. The following conditions and occurrences all
constitute "Events of Default" by Licensee:
a. If Licensee materially defaults in the performance of any of its
obligations provided for in this Agreement; or
b. If Licensee shall fail to make any payment due hereunder on the date
due; or
c. If Licensee shall be unable to pay its debts when due, or shall make any
assignment for the benefit of creditors, or shall file any petition under the
bankruptcy or insolvency laws of any jurisdiction, or shall have or suffer a
receiver or trustee to be appointed for its business or property, or be
adjudicated a bankrupt or an insolvent.
15. TERMINATION. Without limiting Licensor's rights, upon the occurrence of
any Event of Default under paragraph 14,
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Licensor shall have the option to terminate this Agreement at its will by
sending written notice to Licensee. If the default set forth in such notice is
not cured within thirty (30) days of receipt of such notice (or within such
further period as Licensor may allow), then at the end of such period
termination shall automatically occur without further notice and without
prejudice to any other rights of Licensor, including the right to damages and/or
equitable relief. In the event that after the date of automatic termination
Licensor allows a further period to cure the default, termination will
automatically occur without further notice if the default is not cured within
such further period.
16. FINAL STATEMENT UPON TERMINATION OR EXPIRATION. Licensee shall deliver
to Licensor, as soon as practicable following expiration or termination pursuant
to Section 15, a statement indicating the number of subscribers then enrolled in
SportsLine. Following expiration or termination, Licensee may not utilize the
Name and Character except in connection with previously printed or committed
advertising, and then only for a period not to exceed six (6) months following
such termination or expiration.
17. DEFAULT BY LICENSOR AND NAMATH.
a. In the event NAMATH neglects or refuses to perform the services and
obligations hereunder at times and in the manner specified, or if NAMATH or
Licensor in any manner breaches this Agreement (hereinafter "a breach"), the
Licensee shall have the
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right to cancel and terminate this Agreement. Prior to terminating this
Agreement, it must give written notice to Licensor of the breach. If the breach
set forth in such notice is not cured within ten (10) days after such notice or
a reasonable time under the circumstances (or within such further period as
Licensee may allow), then at the end of such period, termination shall
automatically occur without further notice to Licensor.
b. The Licensee shall also have the right to terminate this Agreement: (i)
in the event of the conviction of a felony committed by NAMATH; or (ii) in the
event the Licensee reasonably concludes that NAMATH's conduct or reputation
reflected so seriously on NAMATH's public perception as to prejudice
substantially Licensee's business interests if this Agreement were to continue.
As a condition to such termination, the Licensee must give written notice to
Licensor at any time prior to the thirtieth (30th) day following the date on
which the commission of such act or such conduct shall have become known to it.
Licensor shall then have the right to discuss said conduct with the Licensee
prior to its decision, which decision shall not be made until fifteen (15) days
after it gives Licensor notice of its intention to act pursuant to this
provision. Any action by it shall be taken only after due consideration.
c. In the event any express representation, warranty or undertaking by
Licensor or NAMATH is at any time during the term of this Agreement found to be
untrue or is breached, the Licensee
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shall have the right to cancel and terminate this Agreement and to pursue all
other legal remedies. Prior to terminating this Agreement, it must give written
notice to Licensor of the express representation, warranty or undertaking
claimed to be untrue or breached. If the untrue express representation, warranty
or undertaking or breach thereof set forth in such notice is not cured within
ten (10) days of its mailing or a reasonable time under the circumstances (or
within such further period as it may allow), then at the end of such period,
termination shall automatically occur without further notice to Licensor.
d. The services to be rendered by NAMATH hereunder are of a special,
unique, extraordinary and intellectual character, which gives them a peculiar
value impossible of replacement and for the loss of which the Licensee may not
be reasonable or adequately compensated in damages, and a breach by Licensor or
NAMATH of the provisions of this Agreement may cause it irreparable injury and
damage and Licensor and NAMATH therefore expressly agree that Licensee shall be
entitled to injunctive and other equitable relief to prevent a breach of this
Agreement, or any part thereof, and to secure its enforcement.
e. In the event that the Licensee terminates this Agreement pursuant to
this paragraph 17, Licensor will not be entitled to any compensation accruing
after the date of termination.
18. SURVIVOR. The provisions of paragraph 13, Licensee's
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obligation to make payment under paragraphs 5 and 6 and paragraph 16 shall
survive the expiration or termination of this Agreement.
19. TRADEMARK. After termination of this Agreement, Licensee shall give up
all rights to the use of the Name and Character.
20. ACCEPTANCE BY LICENSOR. This instrument, when signed by Licensee shall
be deemed an application for a license, and not a binding agreement, unless and
until accepted by Licensor, by signature of a duly authorized officer, and
delivery of such signed xxx to the other parties.
21. ASSIGNMENT. This Agreement shall bind and inure to the benefit of
Licensor, its successors and assigns. This Agreement is personal to Licensee and
it shall not sub-license or franchise (except as set forth in paragraph 11
hereof), and neither this Agreement nor any of the rights hereunder shall be
sold, transferred or assigned by Licensee and no rights hereunder shall devolve
by operation of law or otherwise upon any receiver, liquidator, trustee or other
party.
22. NO JOINT VENTURE. Nothing herein contained shall be construed to place
the parties in the relationship of employer- employees, partners or joint
venturers and neither party shall have the power to obligate or bind the other
in any manner whatsoever.
23. NO WAIVER. No waiver or modification of any of the terms of this
Agreement shall be valid unless in writing. No
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waiver by either party of a breach hereof or a default hereunder shall be deemed
a waiver by such party of a subsequent breach or default of like or similar
nature.
24. NOTICES. Any notice required or permitted to be given under the
Agreement by either of the parties hereto shall be given by over-night courier,
registered or certified mail, return receipt requested, postage prepaid,
addressed to the parties to be notified at the following addresses:
IF TO LICENSOR: PLANNED LICENSING, INC.
c/o Xxxxx X. Xxxxx, Esq.
0 Xxxxxxx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
WITH A COPY TO: XXXX X. XXXXX, ESQ.
Penzer and Xxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
IF TO LICENSEE: SPORTSLINE USA, Inc.
000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxx
WITH A COPY TO: XXXXXXX X. XXXXXXX, ESQ.
Greenberg, Traurig, Hoffman,
Lipoff, Xxxxx & Quentel, P.A.
0000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
1. CONSTRUCTION. This Agreement shall be construed in accordance with the
laws of the State of New York.
2. ENTIRE AGREEMENT. This Agreement contains the entire understanding of
the parties. There are no representations, warranties, promises, covenants or
undertakings other than those hereinabove contained.
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3. RESOLUTIONS OF CONTROVERSIES. Any controversy arising out of this
Agreement or because of any duty created thereby, shall be resolved without a
jury in a court located in Broward County, Florida. The parties consent to
jurisdiction in such courts, waive objection to such venue, waive trial by jury,
and agree that service of the summons to such proceeding (and of any papers
which accompany it), shall be deemed sufficient if made by certified or
registered mail, postage prepaid, addressed to the parties' addresses as
designated in or hereafter changed under paragraph 24. The parties stipulate and
agree that any judgment relating to this Agreement, which is entered in a court
located within Broward County, Florida, shall be binding throughout the world
and may be sued upon, docketed, entered and/or enforced, without challenge or
opposition on their part and without re-trial of any of the issues which give
rise to such judgment in any state, county, province, commonwealth, or territory
having jurisdiction over their respective persons or properties. The parties
recognize that the above agreement to submit all controversies to
forever-binding adjudication by a court located within the City of New York does
not constitute a confession of judgment on anybody's part, but is simply an
agreement, similar to an arbitration agreement, to have particular controversies
resolved, once and for all, by a specified tribunal. All parties agree that
equitable relief, including injunctive and specific performance, may be
necessary and proper to enforce their
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obligations and commitments under this paragraph and under paragraphs 2, 5, 8,
11, 13, 14, and 16 of this Agreement.
4. PROVISIONS UNENFORCEABLE. In the event any provision of this Agreement
shall be held invalid or unenforceable, it shall be deemed modified only to the
extent necessary to make it lawful. To effect such modification, the said
provision shall be deemed deleted, added to and/or rewritten, whichever shall
most fully preserve the intention of the parties as originally expressed herein.
5. LEGAL FEES. The prevailing party in any litigation between the parties
shall recover from the other party its reasonable legal fees and expenses.
6. INSURANCE. Licensee is hereby granted the right to obtain a life
insurance policy and/or disability insurance policy on NAMATH at its own cost
and expense in an amount up to $5,000,000 and to designate itself as owner of
the policy and beneficiary for all purposes. It is the intention of the parties
that in the event of the death, disability or disfigurement of NAMATH, the
consider ation due hereunder shall continue to be paid throughout the term of
this Agreement, provided that NAMATH is insurable and cooperates with the
procurement of said insurance and further provided that said policy cost does
not exceed $25,000.
7. ALLOCATION OF CONSIDERATION. The parties hereto agree that for the
purposes of any pension and welfare payments required
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to be made pursuant to paragraph 2(f), the value of the services rendered by
NAMATH for the television commercials during each year of the contract shall be
$5,000 in the aggregate. The balance of the consideration paid to Licensor
during each Contract Year shall be for other services rendered by Licensor
and/or NAMATH pursuant to this Agreement.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of the
day and year first above written.
PLANNED LICENSING, INC.
(LICENSOR)
By: /s/ XXXXX XXXXX
-----------------------
SPORTSLINE USA, INC.
(LICENSEE)
By: /s/ XXXXXXX XXXX
-----------------------
Each of the undersigned hereby acknowledges and agrees that as and when
Licensor is required to provide his services under the foregoing License and
Consulting Agreement he will make such services available in accordance with the
provisions of such Agreement.
/s/ XXXXX XXXXX
-------------------------
Xxxxx Xxxxx
/s/ XXXXXX X. XXXXXX
-------------------------
Xxxxxx X. Xxxxxx
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