Contract
EXHIBIT 10.38
THIS
AGREEMENT, made and entered into as of February 12, 2009, by and between
Location Based Technologies, Inc., a Nevada corporation and the principal place
of business at 0000 X. Xx Xxxxx Xxx. Xxxxxxx, XX 00000 (hereinafter referred to
as “Company”), and Xxxx Xxxxxxx (hereinafter referred to as “Xxxxxxx”), having
an address of: 00000 X. Xxxxxxxxxx Xxxx., Xxxxx #000 Xxxxxxxxxx,
XX 00000.
WITNESSETH:
WHEREAS,
Xxxxxxx is recognized and widely known throughout the world as a professional
golfer; and
WHEREAS,
Company wishes to retain the services of Xxxxxxx as a spokesperson for Company,
and Xxxxxxx wishes to provide such services to Company pursuant to the terms and
conditions herein;
NOW,
THEREFORE, in consideration of the mutual covenants contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Definitions. As
used herein, the following terms shall be defined as set forth
below:
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(a)
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“Contract
Period” shall mean that period of time commencing on March
1, 2009 and concluding December 31, 2009, unless terminated
sooner as provided herein.
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(b)
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“Contract
Year” shall mean the consecutive twelve-month period commencing on any
January 1 during the Contract
Period.
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(c)
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“Contract
Territory” shall mean the entire
world.
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(d)
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“Xxxxxxx
Identification” means the right to use, subject to the provisions hereof,
the Xxxxxxx name, nickname, autograph, facsimile signature, photograph,
likeness and image or facsimile image, and any other means of endorsement
by Xxxxxxx used in connection with the advertisement and promotion of
Company.
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2. Services of
Xxxxxxx. (a) Xxxxxxx will endorse Company in part
through the PocketFinder Trademark/Logo identified on Xxxxxxx’x golf bag and
front of golf hat while participating in all athletic or athletic related
activities, including all Nationwide Tour related events, practices, games,
skill competitions, camps posing for photographs, clinics, and in autograph
sessions and promotional appearances on behalf of Company, and serve as a
spokesperson for Company, and render consulting and other personal services in
accordance with this Section 2;
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Notwithstanding
the foregoing, it is understood that if Xxxxxxx participates in a special team
event where there is an official uniform, then Xxxxxxx is permitted to wear such
official team uniform during such event.
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(b)
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The
logo or name of Company (the “Company Logo”) will be affixed to the staff
bag and front of all golf hats worn or used by Xxxxxxx during the events
listed in Section 2(a). The placement of such logo will be
approved by Xxxxxxx in advance and said logos shall be subject to the
non-competing company logos Xxxxxxx is required to endorse. It
is agreed that the size and style of the Company Logo will be mutually
agreed upon in advance. Company agrees that it is entirely
responsible for, and the cost of, affixing the Company Logo on such golf
hats and golf bag.
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3. Approval of
Advertising. Company agrees that no use of Xxxxxxx
Identification nor any item used in connection with Xxxxxxx Identification will
be made hereunder unless and until the same has been approved by Xxxxxxx, such
approval not to be unreasonably withheld. If any material is
disapproved, Company will be advised of the specific grounds thereof. Xxxxxxx
agrees that any material, advertising or otherwise, submitted for approval as
provided herein shall be deemed by Company to have been approved hereunder if
the same is not disapproved in writing within seven (7) business days after
receipt thereof. Company agrees to protect, indemnify and save
harmless Xxxxxxx and Xxxxxxx’x authorized representative, or either of them,
from and against any and all expenses, damages, claims, suits, actions,
judgments and costs whatsoever, arising out of, or in any way connected with,
any advertising material disseminated by, or on behalf of, Company.
4. Compensation.
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(a)
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In
consideration for the rights granted herein, Company agrees to provide
Xxxxxxx with the following:
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i.
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10,000
Shares of LBAS restricted stock upon signing of the
Agreement. These shares shall be issued within 10 (ten)
business days of signing.
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(b)
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Xxxxxxx
agrees to participate in sixteen (16) Nationwide Tour events (recognized
by the PGA Tour) during each Contract Year. If, however, due to
illness or injury, Xxxxxxx is not able to participate in the required
sixteen (16) Nationwide Tour events during the Contract Year, the
compensation for the Contract Year shall be prorated
accordingly. Prorated compensation will be based on the number
of events not played. For example: eight (8) of sixteen (16)
events are played, the Remuneration will be reduced in
half.
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5. Right of First
Refusal. If, after September 30, 2009, Xxxxxxx receives an
offer with regards to any subject matter of this Agreement for the year 2010
(“Outside Offer”), then Xxxxxxx shall provide written notice to Company
(“Negotiation Notice”) and shall include a description of the product to be
endorsed, the party making the Outside Offer or on whose behalf the Outside
Offer is made, and all the consideration and material terms and conditions of
the proposed Outside Offer. Company shall have an option for five (5)
business days after receipt of a Negotiation Notice to elect to enter into a
contract with Xxxxxxx on such terms (“Company Exercise Notice”). If
Company makes a Company Exercise notice, Professional shall enter into a
contract with Company on such terms within thirty (30) days
thereafter. If Company does not make a Company Exercise Notice,
Xxxxxxx shall have the right to enter into an agreement with the party making
the Outside Offer on the terms specified in the Negotiation Notice.
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6. Ownership of PocketFinder
Marks & Creative. Xxxxxxx acknowledges that Company
exclusively owns all right, title and interest in and to the Company marks and
that Company shall exclusively own all right, title and interest in and to any
logos, designs, trademarks, service marks, characters, personas, copyrights,
patents, trade secrets or other forms of intellectual property created by
Company (and/or its agents) in connection with this
contract. Xxxxxxx shall completely cooperate with Company in
Company’s efforts to obtain and maintain protection for such right, title and
interest including promptly executing any documents as may be required by
Company in connection therewith.
7. Termination.
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(a)
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Xxxxxxx
shall have the right to terminate this Contract immediately upon written
notice to Company if: (i) A petition in bankruptcy or for reorganization
is filed by or against it or if any insolvency proceedings are instituted
by or against Company under State or Federal laws; or (ii) Company fails
to make payment to Xxxxxxx of any sums due under Contract which default is
not cured within thirty (30) days of following Company’s receipt of
written notice from Xxxxxxx of such default; or (iii) Company breaches any
other material term of this Contract and fails to cure such breach within
(30) days following Company’s receipt of written notice from Xxxxxxx of
such breach.
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(b)
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Company
shall have the right to terminate this Contract immediately upon written
notice to Xxxxxxx is (i) the commercial value of the Xxxxxxx Endorsement
is substantially impaired by Xxxxxxx’x commission of any act which shocks
or offends the community (including indictment of any crime) or manifests
contempt or disregard for diversity, public morals or decency; (ii)
Xxxxxxx takes any action inconsistent with his recommendation and
endorsement of Company and/or disparages the Company brand in any manner
whatsoever; (iii) Xxxxxxx retires from the Nationwide Tour, voluntarily
declines to play (other than as a result of injury, a personal commitment
or personal leave for rest or practice) during the Nationwide Tour Season,
or ceases (for any reason) to be a professional golfer; (iv) Missing
Appearance, or breaches any other material term of this Contract and fails
to cure such breach within (30) days following receipt of written notice
from Company of such breath.
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(c)
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Upon
termination of this Contract, Xxxxxxx shall not be entitled to any further
compensation under this Contract except any unpaid annual Compensation to
which the Xxxxxxx was entitled for services actually completed as of the
effective date of termination. Xxxxxxx shall reimburse Company
for Compensation, if any, paid prospectively in excess of the amount which
Xxxxxxx would be entitled to receive if the annual Compensation were
prorated over the entire Contract Period, calculated to the effective date
of termination. Any such reimbursement of payment shall be due
within thirty (30) days of the effective date of
termination.
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(d)
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Notwithstanding
such termination, Xxxxxxx’x rights arising out of this Agreement or in
connection therewith or existing prior thereto, shall nevertheless
continue in full force and effect, including Xxxxxxx’x right to xxx for
damages caused to it by Company’s breach and Xxxxxxx’x right to receive
all unpaid compensation hereunder.
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8. Authorized
Agent. Xxxxxxx hereby designates Xxxxxxx Sports Management.,
00000 X. Xxxxxxxxxx Xxxx., Xxx #000 Xxxxxxxxxx, XX 00000,
Attention: Xxxxx Xxxx as his authorized agent for all purposes
hereunder.
9. Reservation of
Rights. All rights not herein specifically granted to Company
shall remain the property of Xxxxxxx to be used in any manner Xxxxxxx deems
appropriate. Company understands that Xxxxxxx has reserved the right
to authorize others to use Xxxxxxx Identification during the Contract Period in
connection with all tangible and intangible items and services.
10. Trademarks. Company
understands that it does not have the right to file, during the Contract Period
or thereafter, any application for trademark registration or otherwise obtain or
attempt to obtain ownership of any trademark or trade name in any country of the
world which consists of the Xxxxxxx Identification or any xxxx, design or logo
intended to make reference to Xxxxxxx. In the event that, prior to
the commencement of the Contract Period, Company has filed one or more
applications for registration of any such trademark, or otherwise has obtained
any rights to such trademark, Company agrees to cause such applications and/or
trademarks to be assigned and transferred to Xxxxxxx.
11. Independent
Contractor. Xxxxxxx shall furnish services pursuant to this
Agreement as an independent contractor and not as an employee of Company, and
nothing herein shall be construed to constitute Xxxxxxx as an employee of
Company, it being intended that each party shall be responsible for its or his
own actions. Xxxxxxx has no power or authority to act for, represent,
or bind Company in any manner and shall not hold himself out as an employee of
Company. Xxxxxxx shall not be entitled to any benefits provided by
Company to its employees, including, for example, workers’ compensation
insurance, vacation or sick pay. Xxxxxxx shall pay (when and as due)
any and all taxes incurred as a result of his compensation under this
Agreement. Xxxxxxx shall indemnify Company for any claims, losses,
costs, fees, liabilities, damages or injuries suffered by Company which arise
out of Xxxxxxx’x breach of this Section 11.
12. Indemnity.
(a) Company will indemnify Xxxxxxx and his authorized representatives
and hold them harmless with respect to any claims, damages, liabilities, costs
and expenses, including attorneys’ fees (collectively, “Damages”), with respect
to: (i) all materials prepared by or on behalf of Company hereunder
or concerning the advertising, distribution, exploitation or usage of Company’s
services; (ii) the production and broadcast of all television and radio
commercials in which Xxxxxxx may appear or participate; (iii) claims arising
from or relating to Company’s services; (iv) any breach or threatened breach by
Company of any warranty or other obligation to be performed or any other
agreement or representation made by Company herein; (v) any actions or omissions
of Company; or (vi) any services of Xxxxxxx under this Agreement except to the
extent such Damages arise from the negligence or misconduct of
Xxxxxxx.
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(b)
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Xxxxxxx
will defend, indemnify and hold Company and its directors, officers,
employees, licensees, agents and assigns harmless from and against any
liability, loss, damage or expense (including reasonable attorney fees) to
third parties arising out of any breach by Xxxxxxx of any of his
representations or warranties hereunder or from Xxxxxxx negligent or
intentional tortuous acts.
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13. Limited
Liability. Notwithstanding anything to the contrary contained
herein, in the event Company incurs any expenses, damages or other liabilities
(including, without limitation, reasonable attorneys’ fees) in connection
herewith, Xxxxxxx’x liability shall be limited to proven, direct, actual damages
incurred by Company, and Xxxxxxx’x maximum liability to Company hereunder will
not exceed the remuneration, excluding reimbursement of expenses, actually paid
to Xxxxxxx by Company hereunder. In no event will Xxxxxxx be
responsible for any special, consequential, lost profits, punitive, reliance or
other indirect damages, whether or not Xxxxxxx has been advised of the
possibility of such damages.
14. Waiver. The
failure of either party at any time or times to demand strict performance by the
other of any of the terms, covenants or conditions set forth herein shall not be
construed as a continuing waiver or relinquishment thereof and each may at any
time demand strict and complete performance by the other of said terms,
covenants and conditions.
15. Severability. If
any provision of this Agreement shall be declared illegal, invalid, void or
unenforceable by any judicial or administrative authority, the validity of any
other provision and of the entire Agreement shall not be affected
thereby.
16. Assignment. This
Agreement shall bind and inure to the benefit of Xxxxxxx, and the successors and
assigns of Xxxxxxx. The rights granted Company hereunder are personal
to it, shall be used only by it and shall not without the prior written consent
of Xxxxxxx be transferred or assigned to any other party. In the
event of the merger or consolidation of Company with any other entity, Xxxxxxx
shall have the right to terminate the Contract Period by so notifying Company in
writing on or before sixty (60) days after Xxxxxxx has received notice of such
merger or consolidation. Xxxxxxx shall have the right to assign the
benefits of this Agreement to a corporation in which Xxxxxxx controls a majority
of the equity interest provided that no such assignment shall operate to
diminish any of Company’s rights hereunder.
17. Arbitration. (a) Except
as provided in Paragraph (d) below, the parties to this Agreement agree that any
dispute or controversy arising out of or relating to this Agreement, or the
interpretation, validity, construction, performance, breach, or termination
thereof, shall be settled by binding neutral arbitration in accordance with the
Commercial Dispute Resolution Rules and the Optional Rules for Emergency
Measures of Protection then in effect of the American Arbitration Association
(the “Rules”). The arbitrator may grant injunctions or other relief
in such dispute or controversy. The decision of the arbitrator shall
be in writing, and shall be final, conclusive, and binding on the parties of the
arbitration. Judgment may be entered on the arbitrator’s decision in
any court of competent jurisdiction.
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(b)
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The
parties understand and agree that by consenting to the arbitration
provisions of this Agreement, they are waiving their right to a jury
trial.
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(b)
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The
arbitrator(s) shall apply Arizona law to the merits of any dispute or
claim, without reference to rules of conflict of law. The
arbitration proceedings shall be governed by the Rules, as modified
herein, without reference to state arbitration law. Each party
shall also be entitled to pursue all remedies, damages or claims that
would be available if the case had been litigated in the judicial forum
having jurisdiction over it.
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(c)
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The
arbitration and all related proceedings shall take place in Maricopa
County, Arizona and the parties consent to the exclusive jurisdiction
venue of the state and federal courts located in Maricopa County, Arizona
for any action or proceeding arising from or relating to this Agreement or
relating to any arbitration in which the parties are
participants.
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(d)
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Any
arbitration proceedings conducted under the terms of this Section will be
confidential. All documents, testimony and records shall be
received, heard and maintained by the arbitrator(s) in confidence and
under seal, and shall be available for inspection only by the
arbitrator(s), the parties and their respective attorneys and their
respective experts, who shall agree in advance and in writing to receive
and maintain all such information in confidence. The arbitrator
may award the prevailing party his or her expenses and fees of
arbitration, including reasonable attorneys fees and witness fees, as
permitted by law.
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18. No Post-Termination
Usage. From and after the termination of this Agreement all of
the rights of Company to use the Xxxxxxx Identification shall cease absolutely
and Company shall not thereafter use or refer to Xxxxxxx Identification in
advertising or promotion in any manner whatsoever, it being understood by
Company that Xxxxxxx Identification may be used at any time by others in
connection with the advertisement and promotion of competitive Products after
the termination of this Agreement. It is further agreed that
following termination of this Agreement, Company shall not advertise, promote,
distribute or sell any item whatsoever in connection with the use of any name,
figure, design, logo, trademark or trade name similar to or suggestive of
Xxxxxxx Identification. Notwithstanding the language contained in
this Section, Company shall have the right to leave on its website and/or
marketing materials, any press releases and/or articles regarding the
endorsement with Xxxxxxx, any pictures or likenesses with Xxxxxxx that
originated during the Contract Period or any other matter concerning Xxxxxxx
that originated during the Contract Period.
19. Notices. Any
notice of breach or default shall be in writing and deemed given if sent postage
prepaid via register or certified mail, by verifiable facsimile transmission or
hand delivery, or by express courier with confirmed delivery, to the address set
forth below (unless written notice of a change of address has been provided) and
shall be deemed to have been given at the time it is sent properly addressed and
posted.
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TO XXXXXXX:
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Xxxx
Xxxxxxx
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C/x
Xxxxxxx Sports Management
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Attn:
Xxxxx Xxxx
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00000
X. Xxxxxxxxxx Xxxx.
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Xxxxx
#000
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Xxxxxxxxxx,
XX 00000
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TO COMPANY:
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Attn:
Xxxxxx Xxxxxxx
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0000
X. Xx Xxxxx Xxx.
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Xxxxxxx,
XX 00000
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20. Significance of
Headings. Section headings contained herein are solely for the
purpose of aiding in speedy location of subject matter and are not in any sense
to be given weight in the construction of this
Agreement. Accordingly, in case of any question with respect to the
construction of this Agreement, it is to be construed as though such section
headings had been omitted.
21. Governing
Law. This Agreement shall be governed and construed according
to the laws of the State of Arizona, without giving effect to the principles of
conflicts of laws thereof.
22. Entire
Agreement. This writing constitutes the entire agreement
between the parties hereto and may not be changed or modified except by a
writing signed by the party or parties to be charged thereby.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as
of the date first above written.
| Location Based Tech, Inc | XXXXXXX | |||
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/s/
Xxxxxx Xxxxxxx
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/s/
Xxxx
Xxxxxxx
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Xxxxxx
Xxxxxxx
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Xxxx
Xxxxxxx
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