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EXHIBIT 10.7
AGREEMENT
This Agreement is made and entered into this 17th day of March, 1995,
by and between Gator Golf Enterprises, Inc. (hereinafter "Gator Golf") and
Level Best Golf, Inc. (hereinafter "Level Best").
The purpose of this Agreement is to set forth the terms and conditions
pursuant to which Gator Golf shall assign and license to Level Best all rights
of manufacturing, marketing, and distribution with regard to the Product
described below.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
as set forth below, the parties agree as follows:
1. PRODUCT.
The Product which is the subject of this Agreement is known as the
"MaxPack." The MaxPack is made up of various training aids and instructional
golf videotapes. It is understood and agreed by the parties to this Agreement
that Gator Golf is the owner of all training aids and videotapes which are made
a part of the MaxPack, as well as videotape raw footage which was taped by
American Telecast but not made a part of the MaxPack. A full itemization of
the Product is attached hereto as Exhibit A.
2. OWNERSHIP AND LICENSE.
A. Ownership of the Product design, content, and name
specifically developed hereunder shall remain
exclusively with Gator Golf.
B. Gator Golf hereby grants to Level Best, and Level
Best hereby accepts, for the term of this Agreement
only, the exclusive license, right and privilege to
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manufacture, market and sell the Product pursuant to
the terms and conditions set forth in this Agreement.
C. Upon termination of this Agreement, Level Best shall
deliver to Gator Golf all of the existing inventory,
molds, raw footage, photography, slides, and artwork
for packaging at no charge to Gator Golf or Xxxxx
Xxxxxxxxx.
3. TERM.
The term of this Agreement shall be for 18 months and shall continue
on a year-to-year basis assuming annual royalties or payments to Gator Golf are
at least $20,000. The Agreement shall commence as of March 15, 1995 and
continue for 18 months.
4. PRODUCT INVENTORY.
It is understood by the parties that all MaxPack inventory is
presently being warehoused by American Telecast in Pennsylvania and California.
Level Best has agreed to incur the expense of transferring all MaxPack
inventory from American Telecast (both California and Pennsylvania) and will
warehouse the Product at its expense. Level Best has agreed to make sure all
MaxPack inventory is delivered and will use best efforts in taking possession
of all molds with regard to MaxPack product, raw footage of video production,
and artwork related to packaging and artwork related to the instructional
booklet contained within the MaxPack.
5. FEES.
It is understood Gator Golf will enter into a termination agreement
with American Telecast which provides that Gator Golf
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shall pay American Telecast a fee of $25,000 which will entitle Gator Golf to
take possession of the existing MaxPack inventory. Level Best agrees to
deliver to Gator Golf a money order in the sum of $25,000 upon execution of
this Agreement which Gator Golf will use to consummate the termination
agreement with American Telecast. It is understood that Gator Golf does not
intend to enter into the termination agreement until Level Best has delivered a
money order in the amount of $25,000 made payable to Gator Golf.
Additionally, Level Best will pay a royalty to Gator Golf in the
amount of 10% of gross collected revenue. Level Best has the right to
automatically renew the Agreement on a year-to-year basis with the same royalty
of 10% of gross collected revenue assuming annual royalties or payments to
Gator Golf are at least $20,000.
Upon execution of this Agreement, Level Best shall deliver a check to
Gator Golf in the amount of $5,000 which will be a credit against royalty
payments. It is understood royalty payments will be made every three months.
Level Best understands time is of the essence with regard to payment of
royalties.
Gross collected revenue shall be defined as the total of all revenue
from sales of the MaxPack or any of its individual components without deduction
for any expenses for production, manufacturing, marketing, general overhead or
the like.
6. INDEMNITY/INSURANCE.
Level Best acknowledges that Xxx Xxxx and Xxxxxxx Xxxxx have pending
lawsuits against Xxxxx Xxxxxxxxx, Gator Golf, and American Telecast, but there
is no duty by Level Best to defend or indemnify
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Xxxxx Xxxxxxxxx, Gator Golf, or American Telecast with regard to those existing
lawsuits.
Despite the above, Level Best will purchase general liability insurance
coverage with additional coverages for product liability and advertising
liability, and will name Xxxxx Xxxxxxxxx, Gator Golf Enterprises, Inc., and
American Telecast Corporation as additional named insureds on the policy during
the term of this Agreement. Additionally, Level Best will defend and indemnify
Xxxxx Xxxxxxxxx, Gator Golf Enterprises, Inc., and American Telecast Corporation
in the event of any claims, demands, suits or actions brought of any kind or
nature, including suits brought by Xxx Xxxx and Xxxxxxx Xxxxx which would be in
addition to the existing lawsuits or new lawsuits brought by those parties.
Further, Level Best understands that Xxxxx Xxxxxxxxx will enter into
an agreement with American Telecast with regard to its termination of the
agreement, and Level Best agrees to indemnify Xxxxx Xxxxxxxxx and Gator Golf
Enterprises, Inc. with regard to all of their obligations contained therein.
Level Best will provide Gator Golf with a copy of the declaration page on an
annual basis.
In addition to the above, Level Best agrees to defend, indemnify and
hold Gator Golf and Xxxxx Xxxxxxxxx harmless for any claims, damages,
liabilities, costs and expenses, including, but not limited to, reasonable
attorney's fees, resulting from any and all liability, claims, proceedings,
demands, damages or actions, whether or not adjudicated, arising out of:
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A. Level Best's breach of any terms or representations in this
Agreement, as well as any claims of breach of contract,
warranty claims, misrepresentation, strict liability, with
regard to Level Best's vendors, sales, customer claims and the
like.
B. Any injury to any person or damage to any property caused by
Level Best's performance of its obligations under this
Agreement.
C. Any injury to any person or damage to any property caused by
the Product or use of the Product by Level Best or any
customers of Level Best with regard to the purchase of the
MaxPack.
D. Any claim of misrepresentation or false advertising or the
like with regard to the marketing of the MaxPack.
E. Level Best shall discharge all obligations imposed by federal,
state or local law, including, but not limited to, the filing
of all returns and reports and the payments of assessments,
taxes, contributions and other sums required, and agreed to
indemnify and hold Gator Golf and Xxxxx Xxxxxxxxx harmless
against all claims and demands resulting from Level Best's
failure to comply with those lawful obligations.
7. PRIOR CONTRACT.
This Agreement will not in any way affect the agreement between Gator
Golf, Xxxxx Xxxxxxxxx, and Level Best already in place and dated January 7,
1994.
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8. CD-ROM.
Level Best understands that Gator Golf intends to utilize MaxPack
videotape footage, both used and unused, for purposes of producing a CD-Rom
package in the future. Level Best will not object to the use of such footage
in that fashion. Otherwise, the parties understand that all of the videotape
which is part of the MaxPack product is available exclusively for Level Best's
use and purposes during the term of this Agreement. However, Level Best
understands and agrees that all individual components and videotape cannot be
used by Level Best for any other purposes other than for sale as part of the
MaxPack unless Xxxxx Xxxxxxxxx agrees in writing and appropriate financial
arrangements have been reached between the parties.
9. TERMINATION.
Gator Golf may terminate this Agreement upon the following
occurrences:
A. Failure by Level Best to make timely payments to
Gator Golf.
B. In the event Level Best declares bankruptcy or is
insolvent.
Under those circumstances, Gator Golf may terminate the Agreement upon
written notice to Level Best. Thereafter, Level Best shall have 10 days to
cure any defect.
10. ARBITRATION AND ATTORNEY FEES.
Any controversy or claim arising out of this Agreement shall be
settled by an expedited arbitration in Florida in accordance
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with the Commercial Arbitration Rules of the American Arbitration Association
and judgment upon the award, which shall be prompt and timely, may be entered
in any court having jurisdiction thereof. The prevailing party in any legal
proceeding shall be entitled to an award of reasonable attorney fees and actual
costs incurred.
Upon termination of the Agreement, Level Best shall deliver at its
expense to Gator Golf all inventory, molds, raw footage, and other Product and
other component parts which are made a part of the MaxPack and identified on
Exhibit A.
11. TERRITORY.
The exclusive right of manufacturing, promotion and sale shall relate
only to North America.
12. ADVERTISING.
Gator Golf understands that Level Best will use Xxxxx Xxxxxxxxx'x
name, picture, signature, likeness, voice, and the like with regard to
packaging, production of video, commercials, infomercials and other means in
order to promote and sell the Product during the term of this Agreement. The
right to use Xxxxx Xxxxxxxxx'x name, picture, signature, likeness, voice, and
the like ceases upon termination of this Agreement.
Level Best agrees to provide Gator Golf, through its designated
manager, with copies of all advertising and packaging at least 14 days before
release. Gator Golf has the right to reject all proposed advertising, but
Level Best's rights may not be unreasonably withheld.
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13. APPEARANCES.
Xxxxx Xxxxxxxxx agrees to make two one-day appearances on behalf of
Level Best for production of commercials, photography, or the like during the
term of this Agreement. Level Best will pay all reasonable expenses related
thereto. All other appearances will be negotiated on a case-by-case basis.
14. ACCOUNTING.
Level Best agrees to keep up-to-date records and books consistent with
well-recognized principles of accounting,and will provide Gator Golf with a
quarterly report regarding sales, expenses, and gross receipts. Level Best
will allow Gator Golf to review the books and records as it relates to sales of
the MaxPack at Gator Golf's expense.
15. NOTICES.
All notices, payments, and other correspondence shall be sent to the
parties at the following designated addresses:
For Gator Golf Enterprises, Inc.:
Gator Golf Enterprises, Inc.
c/o SIGNATURE SPORTS GROUP, LTD.
000 Xxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
For Level Best Golf, Inc.:
Level Best Golf, Inc.
00000 Xxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
16. RETENTION OF RIGHTS TO ENDORSE OTHER PRODUCTS.
Subject to the terms and conditions contained herein, Gator Golf and
Xxxxx Xxxxxxxxx shall retain all other rights to the use
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of his name, likeness, voice, signature, initials and photograph and shall not
be prevented by this Agreement from endorsing any products other than the
Product contained herein.
17. PARTIES ARE INDEPENDENT CONTRACTORS.
In their performance under this Agreement, the parties shall be acting
solely as independent contractors and nothing in this Agreement or in the
parties' performance of their obligations under this Agreement shall be
construed to make Gator Golf or Xxxxx Xxxxxxxxx or Level Best an employee,
partner, joint venturer, or agent of the other. The parties agree that they
will not make any representations to other parties that are not consistent with
this provision.
18. NON-ASSIGNMENT.
Except as otherwise provided in this Agreement, neither Xxxxx
Xxxxxxxxx nor Level Best shall assign, sell, transfer, give away, alienate,
encumber, or otherwise transfer any rights or obligations arising under this
Agreement without the express written consent of the other party to this
Agreement.
19. ENTIRE AGREEMENT OF PARTIES.
This Agreement, plus any exhibits attached hereto, constitutes the
entire agreement between the parties and cannot be altered or modified except
by an agreement in writing signed by both parties or their representatives.
This Agreement, upon its execution, supersedes all prior negotiations,
understandings, and agreements, whether oral or written, and such prior
agreements shall be null
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and void, except the original contract between the parties entered into on or
about January 1, 1994.
GATOR GOLF ENTERPRISES, INC.
DATED: 3-17-95 By: /s/ Xxxxx Xxxxxxxxx
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Xxxxx Xxxxxxxxx
Its: President
LEVEL BEST GOLF, INC.
DATED: 3-17-95 By: /s/ Xxxx Xxxxxxx
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Its: President
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EXHIBIT A
MaxPack "The Product"
1. Ruler
2. Hanger
3. Sponge
4. Stickers
5. Tempo ball
6. Shaft bar
7. All raw footage, including the three tape series, the re-edited series
of tapes and all other raw footage
8. Booklet on training aid usage
9. Index cards which are included within each tape
10. All artwork for packaging, booklet, and index cards, including the
sleeve for the videos; all transparencies of photos; all raw footage,
edited footage, and re-edited six tape footage
11. All molds and patents.
