EXHIBIT "A"
EXHIBIT 10.2
Confidential Treatment has been requested with respect to portions of the
agreement indicated with an asterisk [*]. A complete copy of this agreement,
including the redacted terms, has been separately filed with the Securities and
Exchange Commission.
EXECUTION COPY
License and E-Commerce Agreement
This License and E-Commerce Agreement (the "Agreement"), is entered into as
of July 6, 2001 (the "Effective Date"), by and between The Sports Authority,
Inc., a Delaware corporation ("TSA"), The Sports Authority Michigan, Inc., a
Michigan corporation ("TSAMI"), and Global Sports Interactive, Inc., a
Pennsylvania corporation ("GSI" or "Licensee"), and solely for purposes of
Section 2.6 [*], Global Sports, Inc. ("Global Sports"). TSA and TSAMI are
sometimes collectively referred to as the "Licensor".
Recitals
WHEREAS, Licensee is in the business of developing and operating e-commerce
sporting goods businesses for specialty retailers, general merchandisers,
Internet companies and media companies and providing for those companies
Licensee's proprietary technology and product database, Web site design and
development capabilities, order processing capabilities, customer service
capabilities, fulfillment capabilities, centralized inventory management, and
on-line marketing to enable those companies to offer e-commerce to their
customers;
WHEREAS, Licensor and its retailing subsidiaries are in the business of
selling Sporting Goods (as hereinafter defined) and other related goods and
services through the TSA Stores (as hereinafter defined);
WHEREAS, through XxxXxxxxxXxxxxxxxx.xxx, Inc., a subsidiary of Licensee
owned in part by TSA (the "Joint Venture"), Licensee operated the XXX.xxx Site
(as defined below) on behalf of Licensor, including offering and selling
Sporting Goods, and providing inventory management, Web Site design and
development services, hosting, maintenance and operations services and support,
order processing, fulfillment and returns services and support, customer
service, on-line marketing and other related services and support;
WHEREAS, Licensor and Licensee recently restructured their relationship to
terminate the Joint Venture. Licensee shall continue to provide the services and
support necessary to operate the XXX.xxx Site but shall provide such services
and support directly on behalf of Licensor rather than through the Joint
Venture;
1
WHEREAS, Licensor desires to continue to extend certain of its lines of
retail distribution through the XXX.xxx Site;
WHEREAS, Licensor has made a substantial investment to establish its trade
name, trademarks, service marks, trade dress and goodwill among consumers and
suppliers so as to create a retail identity connoting a specific manner in which
merchandise is presented and sold through the TSA Stores;
WHEREAS, both Licensor and Licensee recognize that the protection of
Licensor's trade name, trademarks, service marks, trade dress and goodwill, as
well as the overall success of the XXX.xxx Site, depends in part upon consumers
perceiving the XXX.xxx Site to continue to be an extension of the TSA Stores
that is as consistent as possible with those stores with respect to merchandise
quality, availability, pricing, terms of sale and other aspects of the retail
purchasing experience;
WHEREAS, Licensor and Licensee expect that the XXX.xxx Site will continue
to complement the TSA Stores, enhancing Licensor's competitive position relative
to other sellers of the same or similar merchandise by offering to Licensor's
customers an on-line shopping experience in addition to Licensor's in-store
shopping experience; and
WHEREAS, Licensor and Licensee desire to have Licensee continue to
provide to Licensor a full e-commerce solution that will be, except as otherwise
provided herein, the exclusive means by which Licensor will sell Sporting Goods
through the Internet (as defined below) during the Term (as defined below) of
this Agreement.
NOW, THEREFORE, in consideration of the promises contained herein, TSA,
TSAMI and GSI, intending to be legally bound, agree as follows:
Section 1. Definitions
Whenever used in this Agreement, the following capitalized terms shall have the
following specified meanings:
1.1 "Advertising and Marketing Partner(s) of Licensee" means members of
Licensee's affiliate programs, search engines, portals, community sites, content
sites, on-line retailers, shopping, regional and industry directories, push
sites, and any other Internet sites engaged by Licensee to attract Customers to
the XXX.xxx Site, with whom Licensee contracts for exchanges of advertising and
promotional services and/or any form of compensation.
1.2 "Affiliate(s)" means, as to any Person, any other Person that directly or
indirectly controls (through one or more intermediaries), is controlled by or is
under common control with such Person, but only as long as such control exists.
For purposes of this Section "control" means the ownership or control of fifty
percent (50%) or more of all of the voting power of the shares (or other
securities or rights) in question or the power to direct or cause the direction
of
2
management or policies of such Person, whether through voting securities, by
contract or otherwise.
1.3 "Business Day" means any day which is not a Saturday, Sunday or official
federal holiday in the United States.
1.4 "Confidential Information" means all nonpublic information relating to a
Party or its Affiliates that is designated as confidential or that, given the
nature of the information or the circumstances surrounding its disclosure,
reasonably should be considered as confidential. Confidential Information
includes (a) all nonpublic information relating to a Party's or its Affiliates'
product plans, designs, product costs, product prices, other costs, allowances,
rebates, assortment plans, advertising plans, strategies or buys, marketing
plans or strategies, technology, business plans, promotional and marketing
activities, finances, strategic business opportunities, personnel, research,
development, know-how and other business and financial affairs, (b) all third
party information that a Party or its Affiliates is obligated to keep
confidential, (c) all information obtained by a Party in connection with any
audit conducted hereunder, and (d) all information of the type specifically
designated as such in this Agreement. Confidential Information may be contained
in tangible materials, such as drawings, data, specifications, reports and
computer programs, or may be in the nature of unwritten knowledge. Confidential
Information does not include any information that (i) has become publicly
available without breach of this Agreement, (ii) can be shown by documentation
to have been known to the receiving Party at the time of its receipt from the
disclosing Party or its Affiliates, (iii) is received from a third party who did
not acquire or disclose such information by a wrongful or tortious act, or (iv)
can be shown by documentation to have been independently developed by the
receiving Party without reference to any Confidential Information.
1.5 "Customer" means a Person who accesses the XXX.xxx Site in any manner,
whether or not a purchase is made or other Services or Sporting Goods are
received from, by or through the XXX.xxx Site.
1.6 "Customer Information" means any and all identifying information collected
or possessed by Licensee and relating to Customers of the XXX.xxx Site ,
including information relating to Customers referred by or through the
Advertising and Marketing Partners of Licensee to the XXX.xxx Site. Such data
may include names and other identifying information such as addresses, phone
numbers and e-mail addresses, credit card numbers and related data, preferences,
gift and shipping information, purchase, payment and connection histories,
correspondence, inquiries, and the skus and quantities of items purchased by any
such persons. "Customer Information" shall not include (i) Financial
Information, or (ii) any information obtained by Licensee from Customers
independent of the transactions contemplated pursuant to this Agreement or the
prior agreements referenced Section 19.12.
1.7 "Databases" means all data structures, data schema, database dictionaries,
attributes, validation tests for each element, table sizes and formats, access
requirements, data dependencies and other elements involving the management or
storage of data on or for the XXX.xxx Site, and all refinements, updates,
releases, improvements and enhancements thereto, all Intellectual
3
Property Rights embedded therein (except those owned by Licensor) and all
software applications created specifically for management and use of the GSI
Furnished Materials, Customer Information, Financial Information and Licensed
Property, but excluding the Customer Information, Financial Information and
Licensed Property per se.
1.8 "Designated URL" means the URL xxxx://xxx.xxxxxxxxxxxxxxxxxx.xxx, or any
successor or replacement URL, as mutually designated by the Parties.
1.9 "Financial Information" means all information relating to the financial
performance and/or operations of the XXX.xxx Site which is not specific to a
Customer, does not refer to or identify any specific Customer, and cannot be
used, alone or in conjunction with other information, to identify any specific
Customer.
1.10 "Fiscal Year" means Licensee's fiscal year. Licensee shall give at least
ninety (90) days prior notice to Licensor of any change in designation of
Licensee's Fiscal Year.
1.11 "GSI Content" means any and all content or information owned or controlled
(e.g., by license other than this Agreement, or otherwise) by Licensee or any of
its Affiliates, including, text, graphics, photographs, video and audio,
together with all Intellectual Property Rights associated therewith, and
furnished by Licensee or any of its Affiliates in connection with the XXX.xxx
Site or otherwise in connection with the performance of its obligations under
this Agreement. "GSI Content" includes any adaptation, modification, improvement
and/or derivative work of any GSI Content that is developed by any Party or
jointly by the Parties. "GSI Content" shall not include any Licensed Property or
any derivative work of any Licensed Property whether developed by any Party or
jointly by the Parties.
1.12 "GSI Furnished Materials" means any and all GSI Content, Databases of GSI
and GSI Technology, together with all Intellectual Property Rights associated
therewith, that (a) is owned or controlled (e.g. by license other than this
Agreement, or otherwise) by Licensee or any of its Affiliates, and (b) is made
available by Licensee of any of its Affiliates in connection with the
transactions contemplated hereunder. "GSI Furnished Materials" includes any
adaptation, modification, improvement and/or derivative work of any GSI
Furnished Materials that is developed by any Party or jointly by the Parties.
"GSI Furnished Materials" shall not include any Licensed Property or any
derivative work of any Licensed Property whether developed by any Party or
jointly by the Parties.
1.13 "GSI Partners" means any third party, including any TSA Competitor, with
which Licensee or any its Affiliates contracts to develop and operate all or a
substantial portion of such third party's Web Site for e-commerce businesses in
the field of Sporting Goods. By way of example, as of the Effective Date, such
GSI Partners include [*] The specific GSI Partners shall be subject to change
from time to time throughout the Term.
1.14 "GSI Technology" means all HTML, Java and other language files (and/or all
derivatives thereof), graphics files, animation files, data files, Databases,
technology, method, user interface, process, software, functionality, features,
scripts and programs, both in object and source code
4
form, and all documentation and all other information and materials relating
thereto, together with all Intellectual Property Rights associated therewith,
used by or on behalf of Licensee in the design, development, hosting,
maintenance and operation of the XXX.xxx Site or otherwise made available to
Licensor hereunder. "GSI Technology" includes any adaptation, modification,
improvement and/or derivative work of any GSI Technology that is developed by
any Party or jointly by the Parties. "GSI Technology" shall not include any
Licensed Property or any derivative work of any Licensed Property, whether
developed by any Party or jointly by the Parties.
1.15 "GSI Venture" or "GSI Ventures" means any Person engaged in the sale of
goods over the Internet, including (i) Licensee or any of its Affiliates, or
(ii) any Person in which Licensee or any of its Affiliates owns or controls
fifty percent (50%) or more of the voting power of the capital stock (or other
securities or rights) or the power to direct or cause the direction of
management or policies of such Person, whether through voting securities, by
contract or otherwise; provided such Person directly or indirectly generates in
excess of twenty (20%) percent of its revenues from the sale of Sporting Goods.
1.16 "Intellectual Property Rights" means any and all now or hereafter known
tangible and intangible (a) rights associated with works of authorship
throughout the universe, including copyrights or works of copyright, moral
rights, and mask-works, (b) trademark, trade dress, service xxxx and trade name
rights and similar rights, (c) trade secret rights, (d) patents, designs,
algorithms and other industrial property rights, (e) all other intellectual and
industrial property rights of every kind and nature throughout the universe and
however designated (including domain names, logos, "rental" rights and rights to
remuneration), whether arising by operation of law, contract, license, or
otherwise, and (f) all registrations, initial applications, renewals,
extensions, continuations, divisions or reissues thereof now or hereafter in
force (including any derivative rights in any of the foregoing).
1.17 "Internet" means the global network of interconnected computer networks,
each using the Transmission Control Protocol/Internet Protocol and/or such other
standard network interconnection protocols as may be adopted from time to time,
which is used to transmit content that is directly or indirectly delivered to a
computer or other digital electronic device for display to an end-user accessing
a URL, whether such content is delivered through on-line browsers, off-line
browsers, or through "push" technology, electronic mail, broadband distribution,
satellite, wireless or other successor technologies.
1.18 "Land Based Stores Gift Certificates" means gift certificates,
pre-programmed gift cards, and other successor forms of gift certificates or
cards, bearing the marks THE SPORTS AUTHORITY and/or THE SPORTS AUTHORITY &
Design, in fixed denominations, printed and distributed by Licensor and which
are redeemable only in the TSA Stores and not through the XXX.xxx Site.
1.19 "Licensed Property" means the Marks, Names, TSA Content and the Look and
Feel, together will all Intellectual Property Rights associated therewith, which
Licensor has licensed to Licensee hereunder. "Licensed Property" includes any
adaptation, modification, improvement
5
and/or derivative work of any Licensed Property that is developed by any Party
or jointly by the Parties. "Licensed Property" does not include any GSI
Furnished Materials or any derivative work of any GSI Furnished Materials,
whether developed by any Party or jointly by the Parties.
1.20 "License Guidelines" means the clearance, form, format and use
restrictions and instructions set forth in Exhibit A attached hereto.
---------
1.21 "Look and Feel" means, either with respect to the XXX.xxx Site or the TSA
Stores, as the case may be, the appearance, coloring, graphics, fonts, and other
look and feel characteristics of the XXX.xxx Site or TSA Stores, as the case may
be, which are unique to the XXX.xxx Site or TSA Stores, as the case may be, and
are generally consistent across all media and applications, and which suggest a
common identity for the XXX.xxx Site or the TSA Stores, as the case may be.
1.22 "Marks" shall mean the xxxx THE SPORTS AUTHORITY in English in block
letters and any equivalent in foreign language characters, certain THE SPORTS
AUTHORITY logotypes, and such other trademarks and service marks of Licensor,
which are proprietary to Licensor, all as more specifically described in Exhibit
-------
B attached hereto and incorporated herein, as Exhibit B may be modified from
- ---------
time to time in writing by Licensor as set forth in Section 2.1(b), together
with all associated Intellectual Property Rights, including trademark and
service xxxx applications and registrations therefor.
1.23 "Materials" shall mean exterior and interior signs, billboards, flags,
banners, buttons, Web pages or portions of Web pages, frames, links, icons,
packaging, labels, print, electronic and broadcast advertising and promotional
media, indexes and pages on Websites (whether visible or not to the general
public), meta-tags, manuals, brochures, flyers, posters, sales literature,
business forms, gift certificates, credit cards, debit cards, membership or
consumer loyalty or gift program cards and related materials, stationery,
employee uniforms, badges, merchandise bags and boxes, baskets, trolleys and
carts, sales receipts and charge slips, tickets and tags, business forms and
stationery, and the like, to the extent that such materials bear any of the
Marks and to the extent such materials are developed, controlled or authorized
by Licensee (or with respect to the Core Marks, by the Advertising and Marketing
Partners of Licensee) for use on or in connection with furnishing the Services,
Sporting Goods, advertising or promoting the XXX.xxx Site, or otherwise in the
operation of the XXX.xxx Site.
1.24 "Names" means those Internet domain names registered in the name of either
TSAMI or TSA, or both, together with any additions as may be provided to
Licensee from time to time in writing by Licensor, or any deletions as mutually
agreed upon by the Parties, all as set forth in Exhibit C, attached hereto.
---------
1.25 "Net Revenue(s)" means the total sales revenues received for Sporting
Goods and Services sold or furnished by or through the XXX.xxx Site (including
Orders placed through the customer service telephone number applicable to the
XXX.xxx Site), and any proxy sites or sublicensed sites of the XXX.xxx Site
operated by any Advertising and Marketing Partners of Licensee, whether for cash
or credit, except that the following shall be excluded in calculating
6
Net Revenues: (i) sales of Sporting Goods or Services subsequently returned for
refund or credit; (ii) sales tax, value added tax, goods and services tax,
consumption tax and any other applicable taxes imposed by governments, excluding
any withholding taxes, which are required to be paid by Licensor with respect to
the Royalties, if any; (iii) sales of Land Based Stores Gift Certificates; (iv)
charges for any fulfillment-related services such as shipping, handling, gift
wrapping, delivery and assembly; (v) credit card chargebacks; (vi) credits for
coupons, discount codes or similar non-cash discounts; (vii) amounts received
from Advertising and Marketing Partners for Services pursuant to Section 1.33(b)
or otherwise; and (viii) any amounts received from any Person for the purpose of
advertising or marketing such Person or such Person's products. For the purposes
of calculating Net Revenue with respect to On-Line Gift Certificates, the
applicable royalty shall be payable upon the redemption of On-Line Gift
Certificates rather than upon the initial sale of such On-Line Gift Certificate.
1.26 "Non-Shopping Features" means such content and information on the XXX.xxx
Site, provided by or through Licensor, that contain or make accessible as part
of the XXX.xxx Site such information as the following: TSA corporate information
(e.g., historic background, mission statement, names of officers and directors),
store locator, TSA public financial information (e.g., SEC filings, annual
reports, etc.), TSA's press releases (but not Licensee's press releases, unless
Licensor has reviewed and approved the same), community programs, employment
opportunities in TSA Stores or corporate positions, frequently asked questions
(concerning the TSA Stores and not the XXX.xxx Site), a "contact us" section
relating to the TSA Stores, and any other information which serves to inform
Customers about the TSA Stores, all as set forth in greater detail in Exhibit D
---------
attached hereto.
1.27 "On-Line Gift Certificates" means gift certificates, pre-programmed cards,
and other successor forms of gift certificates or gift cards, bearing the marks
THE SPORTS AUTHORITY, THE SPORTS AUTHORITY & Design, XXXXXXXXXXXXXXXXXX.XXX,
and/or XXXXXXXXXXXXXXXXXX.XXX & Design, in fixed denominations, printed and
distributed by Licensee and which are redeemable only through the XXX.xxx Site
and not through the TSA Stores.
1.28 "Order" means an order to purchase Sporting Goods or Services.
1.29 "Party" means Licensor or Licensee; "Parties" shall mean both of them.
1.30 "Person" means, whether or not capitalized, any individual, corporation
(including any non-profit corporation), general or limited partnership, limited
liability company, joint venture, estate, trust, association, organization,
labor union, or other entity or governmental body.
1.31 "Private Label Merchandise" means any Sporting Goods offered and sold
under any trademarks owned by Licensor, whether or not such trademarks have been
registered in Licensor's name.
7
1.32 "Royalties" means the compensation for use of the Licensed Property due
and payable from Licensee to Licensor hereunder, as set forth in greater detail
in Exhibit E and pursuant to Section 11.2. Royalties shall accrue at the time
---------
when any Order is shipped to a Customer.
1.33 "Services" means those services: (a) offered by Licensee to Customers at
or through the XXX.xxx Site, including, without limitation, retail store
services in the field of Sporting Goods, as well as, to the extent Licensee
chooses to offer in its sole discretion, Sporting Goods assembly, warranty
programs, repair and maintenance, racquet stringing, layaway, customer loyalty
and gift card programs, and like services; and (b) those advertising and
promotional services furnished by Licensee directly or by or through Advertising
and Marketing Partners of Licensee, including, without limitation, services
intended to increase Customer traffic and purchases at the XXX.xxx Site, and
services intended to attract Customers to the XXX.xxx Site from the Advertising
and Marketing Partners of Licensee.
1.34 "Sporting Goods" means sports, recreational, athletic and/or
fitness-related (i) equipment (e.g., bats, balls, gloves, racquets, clubs,
helmets, skis, fishing equipment, exercise equipment, table games, memorabilia
and licensed products), (ii) apparel (e.g., jerseys and exercise clothing) and
(iii) footwear. "Sporting Goods" shall also include any other specific products
that are sold from time to time by Licensor in the TSA Stores.
1.35 "Term" means the period set forth in Section 17.1 of this Agreement.
1.36 "Territory" means throughout the world, excluding Japan and excluding
other countries from time to time pursuant to Sections 16.4, if any.
1.37 "TSA Competitor" means any Person (other than Licensor and each of its
Affiliates) which directly or indirectly derives [*] or more of its revenues
from the retail or wholesale sale or distribution of Sporting Goods, whether by
mail order, home shopping through audio or video programming, over the Internet,
or from land-based stores located in the Territory. However, a Sporting Goods
manufacturer or distributor that supplies Licensee on a wholesale basis that
also happens to operate Sporting Goods retail stores or a business-to-consumer
e-commerce Web Site of its own, shall not be considered a TSA Competitor for
purposes of this Agreement if the subject manufacturer or distributor derives
less than [*] of its revenues from such Sporting Goods retail stores and/or Web
Sites.
1.38 "TSA Content" means: (a) all Non-Shopping Features, text, graphics,
photographs, video, audio and/or other data or information (excluding Customer
Information) owned or controlled by Licensor and furnished by Licensor to
Licensee and intended solely for use in connection with the XXX.xxx Site; (b)
Licensor selected print advertisements for the TSA Stores or the goods and
services offered by Licensor in the TSA Stores, including run of press and
insert advertisements which appear in newspapers and magazines, as well as
printed in store signage, point of sale and display signage and information
promoting events and the goods and services offered in the TSA Stores; and (c)
such information concerning the goods and services offered by Licensor in the
TSA Stores in the U.S. as Licensor owns or controls, and which Licensor
furnishes to Licensee for use in connection with the XXX.xxx Site, including
information which
8
is related to the sourcing, manufacturing, development, design, fabrication,
construction, test procedures, performance features, quality control standards,
merchandise specifications, reliability standards, distribution, costs,
allowances, pricing, rebates, sizes, colors, decoration, display, margins,
vendor economic information, and similar information and know-how necessary to
the procurement, merchandising, inventory management and sales of such goods and
services in the TSA Stores.
1.39 "TSA Stores" means any land-based retail store operated by TSA or any its
Affiliates under the principal name and xxxx THE SPORTS AUTHORITY and related
AUTHORITY marks, and devoted to the sale of Sporting Goods.
1.40 "XXX.xxx Site" means that Web Site, the primary Home Page for which is
identified by the Designated URL (and any successor or replacement Web Site),
and any backup or mirror Internet Web site operated by Licensee.
1.41 "URL" means the uniform resource locator of a Web Site.
1.42 "Web" means the Internet client-server hypertext distributed information
retrieval system known as the World Wide Web.
1.43 "Web Site" means any point of presence maintained on the Internet. With
respect to any Web Site maintained on the World Wide Web, such Web Site includes
all HTML pages (or similar unit of information presented in any relevant data
protocol) that either (a) are identified by the same second-level domain (such
as xxxx://xxx.xxxxxxxxxxxxxxxxxx.xxx) or by the same equivalent level identifier
in any relevant address scheme, or (b) contain branding, graphics, navigation or
other characteristics such that a user reasonably would conclude that the pages
are part of an integrated information or service offering.
Section 2. Licenses.
2.1 Grant of License by Licensor.
(a) Grant. Subject to the terms and conditions set forth in this
Agreement, Licensor hereby grants to Licensee, for the Term and within the
Territory only, a non-transferable, exclusive (as to third parties but not as to
Licensor and its Affiliates other than as provided herein) right and license to
use the Licensed Property on and in connection with the Services and Materials
furnished at or in connection with the XXX.xxx Site if, and only if, such
Services and Materials comply with the quality standards set forth herein, and
such other mutually agreed upon standards. Licensor may monitor and control, in
accordance with the terms of this Agreement, the nature and quality of the
Services and Materials as set forth herein to determine whether such Services
and Materials are in compliance with such quality standards, and Licensor may
appoint one or more representatives to so monitor and to exercise such control
on Licensor's behalf. Such monitoring shall in no way lessen or limit Licensee's
obligation to use the Marks, Names and TSA Content only as set forth herein. No
other, further or different license is granted or implied and no assignment of
any right or interest is made or intended herein. In particular,
9
except as set forth in Section 2.3, no license is granted to sublicense or
otherwise permit any third party to use the Licensed Property. Licensee is
prohibited from using the Marks, or any name or xxxx incorporating the word
AUTHORITY or otherwise confusingly similar to the Marks, including any
abbreviations of the Marks, as part of Licensee's registered corporate or
business name in any jurisdiction in the world, or as part of any Internet
domain name or subdomain name not otherwise registered in Licensor's name.
Except as licensed hereunder, Licensee shall not use or apply to register the
Licensed Property or any identical or deceptively or confusingly similar
trademarks, service marks, corporate names, domain names, trade names, trade
dress, copyrights, industrial models or designs, or any derivations thereof,
during the Term and thereafter.
(b) Changes to Exhibit B. Licensor and Licensee acknowledge that the "Core
Marks" as set forth in Exhibit B are: THE SPORTS AUTHORITY,
---------
XXXXXXXXXXXXXXXXXX.XXX, XXXXXXXXXXXXXXXXXX.XXX & Design and THE SPORTS AUTHORITY
& Design. 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 to Licensee (stating Licensor's reasons for the
proposed deletion(s) in reasonable detail). During such 30-day period, Licensee
may object in writing to any proposed deletion of non-Core Marks by Licensor.
If, prior to the end of such 30-day period, Licensee does not object in writing
to any proposed deletion of Non-Core Marks by Licensor, the proposed deletion
may be made and Licensor shall deliver an updated Exhibit B to Licensee. If
---------
Licensee objects in writing within such 30-day period, Licensee will furnish in
reasonable detail the basis for its objection. Licensor may accept the objection
and forego the deletion(s), but if not, Licensor and Licensee will negotiate in
good faith and use commercially reasonable efforts to achieve a mutually
acceptable resolution. Notwithstanding the foregoing, if, with Licensor's prior
knowledge, Licensee has made a substantial and material investment in a non-Core
Xxxx which Licensor proposes to delete, and the reason for the proposed deletion
is not a binding court order, judgment or other injunction prohibiting
Licensor's or Licensee's continued use of the subject Xxxx, the Parties shall
strive to preserve Licensee's continued right to use the non-Core Xxxx and to
retain the non-Core Xxxx as part of Exhibit B.
---------
(c) Duty to Exploit License. Licensee shall use commercially reasonable
efforts appropriate to an experienced e-commerce retailer, during the Term: (i)
to furnish the XXX.xxx site throughout the Territory, and (ii) in the United
States, Canada and such other countries within the Territory which Licensor,
directly or indirectly through a third party, maintains TSA Stores (A) to
advertise, promote, sell and furnish the XXX.xxx Site and the Services and
Sporting Goods offered and sold through the XXX.xxx Site, and (B) to exploit the
rights granted herein in connection with the XXX.xxx Site, generally consistent
with the exploitation by Licensor in connection with the TSA Stores.
2.2 Marking, Samples, Inspection, Quality Control
(a) Marking Materials; Ownership. Licensee shall comply with the License
Guidelines set forth in Exhibit A. Licensor reserves the right to change the
---------
provisions of Exhibit
-------
10
A in order to protect and enhance the Licensed Property, or Licensor's interests
-
in the Licensed Property, provided that such changes: (a) may be imposed without
Licensee's consent if such changes are necessary to preserve consistency with
Licensor's own use of the Licensed Property; or (b) subject to the consent of
Licensee, which shall not be unreasonably withheld, in any other case. Licensee
shall have a reasonable period, but no more than ninety (90) days, to fully
implement such changes.
(b) Submission of Samples of Materials; Approval Process. Upon the
reasonable request of Licensor, and prior to producing, publishing or
distributing any proposed Materials for the first time which bear any Xxxx which
has been altered by Licensee from the original form of such Xxxx as supplied by
Licensor, Licensee shall furnish at Licensee's expense samples of such
Materials, including the trademark, copyright and disclaimer notices thereon and
any other labels, tags or markings. Further, Licensor shall have the right to
reasonably inspect the XXX.xxx Site, including all underlying code and data
structures (solely for purposes of protecting its interests in the Licensed
Property and to ensure Licensee's compliance with the terms hereof), to review
upon request all Materials being furnished by Licensee to any of its Advertising
and Marketing Partners, and to know the identity and applicable URLs of such
Advertising and Marketing Partners of Licensee. Licensor shall review in a
timely manner all such samples, requests and uses which contain any altered Xxxx
and use commercially reasonable efforts to communicate in writing its approval
or disapproval as soon as practicable after receiving any request for the same
from Licensee or after reviewing such samples or uses. Failure to communicate
approval within five (5) Business Days of receipt of such a specific request
from Licensee shall be deemed disapproval. Licensee shall amend to the
satisfaction of Licensor any sample of Materials containing any proposed
alterations of the Marks as may be directed by Licensor. A further sample shall
be provided to Licensor for its prior review and written approval if any
subsequent changes are made in approved Materials or in the Marks.
(c) Quality Control. As of the Effective Date, Licensor is familiar and
satisfied with the current standards of quality of the Services, Materials and
Sporting Goods of Licensee, of the uses of the Licensed Property by Licensee and
the Advertising or Marketing Partner of Licensee, and by Licensee's efforts to
maintain such standards and control such uses. Licensee agrees that the
Services, Materials and Sporting Goods shall meet or exceed such current
standards. Licensee shall not offer or furnish any Services, Materials or
Sporting Goods, or, subject to Section 2.3, knowingly permit any uses of the
Licensed Property by any Advertising or Marketing Partner of Licensee, if
Licensor reasonably deems that any such Services, Materials or Sporting Goods,
or any uses of the Licensed Property by any Advertising or Marketing Partner of
Licensee, are not of a nature or quality that complies with the quality
standards and License Guidelines in accordance with this Agreement.
(d) Inspections, Testing. To ensure compliance with the quality standards
set forth in this Agreement relating to the Licensed Property, Licensor, at its
expense, directly or through representatives reasonably acceptable to Licensee,
may inspect and test Sporting Goods (that is, those Sporting Goods not otherwise
sold by Licensor in the TSA Stores) and Materials from time to time. Licensee
shall reasonably cooperate and aid Licensor in making such inspections and
tests.
11
(e) Delegation. Without limiting or waiving Licensor's rights in any
manner, Licensor delegates in part to Licensee the continuing duty to exercise
quality control regarding the nature and quality of the Services, Materials and
Sporting Goods and the nature and quality of Licensee's (and the Advertising and
Marketing Partners of Licensee's) uses of the Licensed Property. Licensee shall
use commercially reasonable efforts to fulfill such delegated duties. Licensor
may recommend and Licensee shall use commercially reasonable efforts to adopt
and comply with any reasonable procedures, tests, surveys or the like to fulfill
this delegation. Licensor may reasonably request reports, documentation,
evidence or other proof of Licensee's performance under this provision and
Licensee shall promptly furnish the same to Licensor.
2.3 Sublicense Template. Subject to the terms of this Agreement and Sections
(a) through (g) below, and provided that Licensee strictly complies with the
requirements set forth in this Section 2.3, Licensee may grant temporary,
non-exclusive, non-transferable sublicenses to use the Core Marks to those
Advertising and Marketing Partners of Licensee approved by Licensor to the
extent required under Exhibit F attached hereto:
---------
(a) All agreements containing sublicenses must be dated, in writing and
executed by Licensee and the subject Advertising and Marketing Partner of
Licensee;
(b) The rights granted within any such agreements must be restricted to
use of the Core Marks solely to advertise and promote the XXX.xxx Site, on a
temporary, non-exclusive, non-transferable basis, during the Term and within the
Territory only (provided that the fact that a Web Site of an Advertising and
Marketing Partner of Licensee may be accessible by users in countries outside
the Territory does not, in itself, preclude such sublicense or violate this
Agreement subject to the prohibitions herein concerning shipment or delivery of
Sporting Goods to Customers in such countries);
(c) All sublicense provisions or agreements must expressly identify
Licensor as the owner of the Core Marks, and provide that all goodwill
associated with use of the Core Marks shall inure to Licensor;
(d) All sublicensees must agree to use the Core Marks only as instructed
by Licensee and only in the formats provided by Licensee (without alteration);
(e) All sublicenses must provide that if any sublicensee is misusing the
Core Marks, or if such sublicensee is using the Core Marks in violation of the
usage guidelines in this Agreement, upon notice from Licensee, the subject
sublicensee shall either immediately correct such misuse or defect, or
immediately cease using the Core Marks;
(f) The Parties shall work together in good faith to develop efficient
methods of tracking, reporting, documenting and auditing all such sublicenses
and sublicensees. Upon the reasonable request of Licensor, Licensee shall
furnish full and accurate copies of all agreements containing sublicenses to the
extent such agreements concern the XXX.xxx Site and/or Licensor, and furnish
samples of any uses of the Core Marks by any Advertising and Marketing Partner
of
12
Licensee. Licensee's duty to furnish such agreements shall be subject to any
confidentiality provisions contained therein, provided that Licensee shall use
commercially reasonable efforts to (i) avoid such provisions as they relate to
Licensor when negotiating any such agreements, and, (ii) after the fact, to
secure a suitable waiver if necessary from any such sublicensee to disclose all
or as much of the subject agreement to Licensor as required hereunder; and
(g) If Licensee becomes aware of, or is notified in writing by Licensor,
that a given sublicensee has breached the above provisions, other provisions of
this Agreement, or the provisions of any sublicense, the subject sublicensee's
breach shall not be deemed a breach of this Agreement by Licensee until (i)
Licensee has been afforded a reasonable amount of time, not to exceed thirty
(30) days from receipt of such notice, to remedy the sublicensee's breach, and
(ii) Licensee fails to remedy such sublicensee's breach or fails to terminate
such sublicensee's use giving rise to such breach within such time.
2.4 Coining New Trademarks or Service Marks. Licensee acknowledges that
Licensor's retail identity focuses in principal part upon use of a family of
marks incorporating and featuring the word "Authority," many of which are listed
in Exhibit B, attached. However, Licensor also owns and uses other marks outside
---------
of its family of Authority marks, as detailed in part in Exhibit B. Licensee
---------
shall not coin, adopt, use or attempt to register on or in connection with the
XXX.xxx Site any new trademark or service xxxx featuring the word Authority, or
otherwise similar to any of Licensor's Marks as detailed in Exhibit B, without
---------
the prior review, clearance and approval of Licensor, which may be withheld by
Licensor as it sees fit. Once a given new xxxx has been approved by Licensor,
Licensee shall furnish all reasonably necessary assistance to Licensor to
register and maintain such xxxx in Licensor's name, at Licensor's expense.
Licensor shall update Exhibit B from time to time to reflect such newly coined
---------
and adopted marks.
2.5 License Exclusions. Licensee agrees and acknowledges that:
(a) Reservation of Rights. Notwithstanding Section 2.1, but subject to the
other provisions of this Agreement (including Sections 9, 10 and 16), Licensor
reserves to itself, its Affiliates, and their respective agents, distributors,
representatives licensees, franchisees, customers, successors and assigns (now
or hereafter existing), all rights to use (and the right to license or otherwise
authorize others to use) the Licensed Property for any and all purposes
including the right to use and exploit the Licensed Property throughout the
world, including in the Territory (i) to manufacture, source, market, sell,
furnish, advertise and promote and deliver goods and services offered at or
through the TSA Stores; (ii) to print, source, market, sell, furnish, advertise
and promote TSA Land Based Stores Gift Certificates, directly or indirectly
through any third party, whether from TSA Stores, by mail order, over the
Internet, an intranet or extranet (except from an Internet site owned or
operated by Licensor directed at consumers, as opposed to Licensor's employees
or other businesses), or otherwise; (iii) to create, develop, operate or
maintain any Web Site exclusively devoted to the provision of information or to
employee training and the sale of Sporting Goods and Services to employees of
Licensor, but which shall not, in either case, offer for sale any Sporting Goods
or services (other than for purchases by employees at a discount for their own
benefit) or link to any Web Site selling
13
Sporting Goods or services other than the XXX.xxx Site and (iv) to manufacture,
source, market, sell, furnish, advertise and promote goods and services offered
by means of home shopping audio or video programs or successor technologies (not
on the Internet).
(b) Private Label Merchandise. Nothing contained herein will prevent or
restrict Licensor or any of its Affiliates, or any third parties licensed by
Licensor, from sourcing, manufacturing, marketing, advertising or selling
Private Label Merchandise other than, directly or indirectly, through the
Internet. Conversely, Licensee shall not source or manufacture Private Label
Merchandise, and may only offer, advertise and sell Private Label Merchandise on
the XXX.xxx Site that has been purchased from Licensor, as if Licensor were
Licensee's vendor. Licensee may only purchase Private Label Merchandise directly
from a vendor other than Licensor with Licensor's prior written approval.
(c) Prohibited Use of TSA Content. Nothing contained herein shall permit
Licensee (or any of its Affiliates) to use or authorize others to use the TSA
Content in any manner on or in connection with any site of any TSA Competitor.
Licensee will segregate and take all necessary measures to prevent the TSA
Content, which is in the possession and control of Licensee, from being
commingled with the content of any TSA Competitor. The foregoing limitation
shall not be deemed to restrict Licensee from using content of any merchandise
vendor on the XXX.Xxx Site in connection with the sale of such vendor's products
through the XXX.Xxx Site. Such TSA Content as would be deemed "Confidential
Information" as defined herein shall be governed by Section 19.3.
(d) No Use of HEAD and Other Licensed Marks. Nothing contained herein
shall authorize or permit Licensee (or any of its Affiliates) to source or
manufacture goods bearing the trademark HEAD or other marks like the HEAD marks
that are licensed by a third party to Licensor for use solely in connection with
the TSA Stores.
(e) Licensor's Other Authorized Users. Licensor has entered into, and may
renew or continue to enter into, certain license agreements, sponsorship
agreements, settlement agreements and other agreements regarding use of the
Marks by others that do not, and will not, abridge Licensee's rights hereunder
or otherwise conflict with this Agreement.
(f) No Embarrassment. Neither Licensee nor any of its Affiliates, and
subject to Section 2.3(g), none of the Advertising and Marketing Partners of
Licensee will: (i) offer or sell Sporting Goods or render Services, or otherwise
advertise or promote the XXX.xxx Site, in any way associated with, or reasonably
determined by Licensor, to be associated with any illegal, vulgar, obscene, or
offensive activities, nor cause material embarrassment to be suffered by
Licensor by reason of acts or omissions which are illegal, vulgar, obscene, or
offensive; (ii) disparage Licensor or any of its Affiliates, or their products
or services; (iii) portray Licensor or any of its Affiliates, or their products
or services, in a false, competitively adverse or poor light; or (iv) knowingly
take any action that materially and adversely diminishes the value of the
Licensed Property. Additionally, Licensee will require each of the Advertising
and Marketing Partners of Licensee to agree to restrictions with respect to the
XXX.xxx Site substantially similar to the restrictions set forth in this
subsection (f).
14
(g) No Other Uses. Licensee shall not use the Licensed Property for any
purpose other than the creation, development, operation, maintenance,
advertising and promotion of the XXX.xxx Site as specifically provided for
herein.
(h) No Exports to Outside the Territory. While the XXX.xxx Site may be
accessible by Persons outside the Territory (and such accessibility will not, by
itself, be considered a breach of this Agreement), Licensee will not ship to
addresses outside the Territory and will not knowingly sell Sporting Goods to
any Person which it knows or has reason to believe intends to export such
Sporting Goods to countries outside the Territory.
(i) No Co-Branding. Licensee shall not "co-brand" the XXX.xxx Site, or use
the Marks adjacent to other trademarks or service marks on the XXX.xxx Site or
on the site of any Advertising and Promotion Partner of Licensee in a manner
which, in comparison to any nearby marks of others, places less emphasis or
imposes smaller dimensions upon the Marks. Notwithstanding the foregoing,
Licensor acknowledges and agrees that as part of certain advertising and
marketing arrangements entered into with Advertising and Marketing Partners of
Licensee hereunder, (a) the XXX.xxx Site may be "framed" by certain of the
Advertising and Marketing Partners of Licensee which frame will include
trademarks or service marks of such Advertising and Marketing Partners of
Licensee, and (b) certain Web Sites of the Advertising and Marketing Partners of
Licensee may include logos, marks, trade names, trade marks, offers, and related
material of third parties, in either case which are larger than the Marks or
place more emphasis on such other logos, marks, trade names, trade marks,
offers, and related material over the Marks.
(j) Prohibition Of Gambling Activities. At no time shall Licensee: (i)
publicize, advertise, promote or otherwise make available on the XXX.xxx Site
any information about touting, gambling or lotteries (other than legal
sweepstakes sponsored by or in conjunction with the XXX.xxx Site); or (ii)
authorize or provide any links from the XXX.xxx Site to any third party site
that contiguously publicizes, advertises, promotes or provides any information
about touting, gambling or lotteries (other than scores and game lines for
sporting events or legal sweepstakes).
2.6 Protection of Licensed Property.
(a) Licensee shall use commercially reasonable efforts to inform Licensor
promptly of any possible infringement, or of any passing off or unfair
competition affecting any of the Licensed Property that comes to the attention
of Licensee's management. Further, Licensee agrees to fully cooperate and assist
Licensor as is reasonably necessary and at Licensor's expense, in the protection
and defense of any of Licensor's rights in the Licensed Property, in the filing
and prosecution of any trademark, trade dress, service xxxx, trade name,
copyright, domain name, industrial model or design application, registration,
renewal and the like, in the recording of this Agreement or any other relevant
agreements, including registered user agreements, and in the doing of any other
act with respect to the Licensed Property, including the prevention of the use
thereof by any unauthorized person.
15
(b) Licensor deems the Licensed Property to be extremely valuable.
Licensor shall have the sole right to determine whether or not any action shall
be taken on account of any infringement, passing off or unfair competition
activities or other enforcement of Licensor's rights in the Licensed Property.
If Licensor so desires it may prosecute any actions, claims, lawsuits or
proceedings in its own name or join Licensee as a party thereto, all at
Licensor's expense. Licensor shall be entitled to recover any and all sums of
money awarded and materials delivered up as a result of such actions, claims,
lawsuits or proceedings.
(c) Licensee shall not, and shall not be required, to institute any
lawsuit or take any action against any third party on account of any actual or
alleged infringement, passing off or unfair competition relating to the Licensed
Property, and Licensee shall not have any right or claim against Licensor for
Licensor's failure to enforce its rights in the Licensed Property or failure to
prosecute any actual or alleged infringement, passing off or unfair competition
by others in relation to the Licensed Property. Notwithstanding the foregoing,
if, after Licensor is advised and has a reasonable opportunity to investigate
and attempt to resolve an instance of actual or alleged infringement, passing
off or unfair competition, yet Licensor determines not to institute any lawsuit
or take any further action or because, in Licensor's reasonable opinion, the
same are unwarranted or of no avail, Licensee may institute a lawsuit or take
any action, solely in its own name, to remedy the actual or alleged
infringement, passing off or unfair competition. As a prerequisite to
instituting such a lawsuit and taking any such actions, Licensee shall deliver
to Licensor a duly executed guarantee from Global Sports providing that Global
Sports agrees to and shall pay any and all costs, expenses and damages,
including attorneys' fees, expert fees and all court costs incurred by Licensee
and by Licensor (including Licensor's internal costs) in the matter. Licensee
agrees to keep Licensor fully informed regarding all such lawsuits and actions,
and to obtain Licensor's prior written approval of any proposed settlement that
affects the Licensed Property or Licensor's interest in the Licensed Property.
Licensee shall apply any costs, fees, damages or other sums recovered in any
such action or lawsuit to reimburse the amounts Licensee or Global has expended
in the action or lawsuit. Once Licensee or Global has been fully reimbursed, the
balance shall be delivered as determined by the court.
Section 3. Creation and Operation of the XXX.xxx Site
3.1 Design and Development. Licensee, at its own expense, will continue to
design and develop the XXX.xxx Site in accordance with this Agreement. Except
for the Licensed Property, Non-Shopping Features and TSA Content to be provided
by Licensor hereunder, Licensee shall provide all content, creative, design,
programming and related services necessary to the design, development, operation
and updating of the XXX.xxx Site, including incorporating the functionality and
features provided for herein. Licensee shall update the content, offers,
promotions and Look and Feel characteristics of the XXX.xxx Site as is
reasonably necessary for the Site to compare favorably with then current
industry standards for leading e-commerce businesses[*] The XXX.xxx Site will
continue to contain at a minimum the functionality and features currently
existing on the XXX.xxx Site and as set forth on Exhibit G attached hereto and
---------
such other functionality and features as may be agreed upon by the Parties. The
XXX.xxx Site will be comprised of a series of templates developed by Licensee
that will define the format and
16
layout of a page on the XXX.xxx Site and establish the placement and size of
content type blocks (e.g. text, graphics, promotions, advertising, navigation
bar and images). Such templates shall be developed to correspond closely with
the merchandise category and department structure in the TSA Stores. The Look
and Feel characteristics of the XXX.xxx Site will continue to be consistent with
the TSA Stores and the Marks, or as otherwise mutually upon by the Parties.
Licensor will provide Licensee with the Non-Shopping Features information, TSA
Content and Licensed Property necessary for the operation of the XXX.xxx Site
and provision of the Services in connection therewith. Licensor will provide
such Non-Shopping Features information, TSA Content and Licensed Property in
such format as may be agreed upon by the Parties. In the event of a change in
the Marks of Licensor, Licensee agrees that it shall update the XXX.xxx Site in
a timely manner after Licensor provides Licensee with such updated Marks.
Notwithstanding anything herein to the contrary, it shall be Licensee's sole
responsibility to produce and maintain all camera-ready product information and
images for use on the XXX.xxx Site. For purposes of this Agreement, such product
information and images shall be deemed GSI Content. Notwithstanding the
foregoing, Licensee shall, after giving reasonable advance notice, be permitted
to reasonably use merchandise in the TSA Stores to prepare product images, so
long as such use (i) is during normal business hours or other mutually agreed
upon times, (ii) does not disrupt customers' ability to purchase merchandise in
such TSA Stores, and (iii) does not damage such merchandise.
3.2 Web Site Enhancements and Updates.
(a) Subject to the terms and conditions of this Section 3.2, in the event
that [*] provided, however, that Licensee shall not have the obligation to [*]
(b) Subject to the terms and conditions of this Section 3.2, in the event
that [*] provided, however, that Licensee shall not have the obligation to [*]
(c) Notwithstanding Section 3.2(a) and Section 3.2(b), Licensee shall not
be obligated to [*] provided, however, if [*] The Parties will cooperate in good
faith with each other and will use commercially reasonable efforts to [*]
(d) Licensee's obligations under this Section 3.2 shall terminate [*]
3.3 Hosting, Maintenance and Operations of XXX.xxx Site. Licensee, at its own
expense, will host, maintain and operate the XXX.xxx Site in accordance with
this Agreement. Licensee will furnish a data center and all other "back-end"
operations in order to fulfill its obligations hereunder. Licensee will be
responsible for hosting, or arranging for the hosting by a reputable third-party
hosting company, the XXX.xxx Site. Licensee agrees that, during the Term, it
will comply with [*] The data center, equipment and software used by Licensee to
host and operate the XXX.xxx Site, and the security and monitoring provided by
Licensee with respect to the XXX.xxx Site and the data center, equipment and
software used by Licensee to host and operate the XXX.xxx Site, will be equal or
better in quality to that currently used or provided for the XXX.xxx Site;
provided, however, that the communications link to the public Internet for the
17
XXX.xxx Site shall compare favorably to the communications link of the Web Sites
of other leading e-commerce businesses having a similar amount of usage and
which sell comparable products and services, [*] The XXX.xxx Site will be
operated at the Designated URL. At all times during the Term, Licensor will
cause the Names to be registered with Network Solutions Inc. (or other reputable
registrars) in such a way that the Names point to the domain name servers
designated by Licensee. Licensor will provide the information set forth on
Exhibit "K" attached hereto with respect to security for and registration of the
URLs for the XXX.xxx Site.
3.4 Non-Shopping Features.
(a) Licensee will program, upload, display and maintain the Non-Shopping
Features at its own expense, and shall promptly update all related aspects of
the XXX.xxx Site, as requested from time to time by Licensor. Notwithstanding
the foregoing, if and when Licensee provides access or technology to Licensor
that enables Licensor to control and update any Non-Shopping Features directly,
the updating burden as to the subject Non-Shopping Features shall shift to
Licensor.
(b) Upon request from Licensor, Licensee shall place a notice of copyright
ownership on each page of the XXX.xxx Site that displays Non-Shopping Features
in accordance with the License Guidelines. Further, Licensee shall cooperate
fully with Licensor at Licensor's expense in connection with Licensor's
obtaining appropriate copyright protection in the name of Licensor for any page
containing Non-Shopping Features.
Section 4. Merchandising the XXX.xxx Site.
4.1 General. Subject to the terms of this Agreement, (i) Licensee may continue
to offer for sale on the XXX.xxx Site any and all types of Sporting Goods and
Services offered in the TSA Stores, and (ii) to the extent reasonably
practicable, Licensee will continue to offer for sale on the XXX.xxx Site as
broad of a selection of Sporting Goods and Services as Licensor offers in the
TSA Stores; provided, however, that (A) Licensee will not be required to offer
for sale on the XXX.xxx Site any Sporting Goods or Services that Licensee is
prohibited from offering for sale on the XXX.xxx Site by the manufacturer,
licensor or licensee of such products, and (B) Licensee may continue to offer
for sale on the XXX.xxx Site Sporting Goods and Services not offered for sale in
the TSA Stores. Licensee shall merchandise the XXX.xxx Site so that (a) it
appears to Customers that Sporting Goods and Services available on the XXX.xxx
Site (i) are organized into categories and departments closely corresponding to
the categories and departments found in Licensor's TSA Stores, and (ii) the
assortment and selection of such Sporting Goods and Services is similar to that
found in the TSA Stores and is no less broad in scope in comparison to that
found on the Web Sites of the GSI Ventures or GSI Partners; and (b) for those
Sporting Goods or Services offered by Licensee by or through the XXX.xxx Site
and by Licensor in the TSA Stores, [*] In contrast to the foregoing, Licensee
shall have no [*] The Parties will cooperate in good faith with each other and
will use commercially reasonable efforts to obtain all consents required to
permit the offer and sale of prohibited Sporting Goods or Services through the
XXX.xxx Site.
18
4.2 Cooperation. Although Licensee shall be primarily responsible for
selecting, ordering and displaying Sporting Goods and Services for the XXX.xxx
Site, the Parties will continue to coordinate the merchandising of the XXX.xxx
Site. Each Party will, if the other Party so requests, use commercially
reasonable efforts to assist the other Party in obtaining the best prices from
vendors for Sporting Goods or Services desired to be acquired by such other
Party and/or overcoming any vendor's or other applicable third party's
reluctance to sell to the other Party.
4.3 Merchandising Plans. Licensor shall share its merchandise assortment plans,
pricing and advertising plans with Licensee in a timely manner, in advance, as
is reasonably necessary for Licensee to merchandise the XXX.xxx Site as
described herein. Such merchandise assortment plans, pricing and advertising
plans are and shall be treated as Confidential Information of Licensor. Upon
request, Licensor shall use commercially reasonable efforts to work with
Licensee and/or vendors so that Licensee is able to purchase and maintain
adequate inventories of Sporting Goods featured in Licensor's advertising
inserts in order to support the demand for such Sporting Goods through the
XXX.xxx Site.
4.4 Sales or Transfers of Sporting Goods from Licensor to Licensee. Upon
request from Licensee, or as offered from time to time by Licensor, Licensee may
agree to buy and Licensor may agree to sell, certain name brand and Private
Label Merchandise owned by Licensor (including merchandise ordered but not yet
received by Licensor). Licensee shall pay all of Licensor's invoices for any
shipments of Sporting Goods or Private Label Merchandise (including freight)
within 30 days of receipt of such invoices. Licensee agrees that any Private
Label Merchandise purchased by Licensee shall be offered and sold only on the
XXX.xxx Site, except as provided in Section 17.7(e). All other terms of such
purchases shall be as mutually agreed upon by the Parties.
4.5 Restrictions and Exceptions. Notwithstanding anything contained herein to
the contrary, Licensee will not offer, sell, advertise or promote on the XXX.xxx
Site, or display any links to any Web page that offers, sells, advertises or
promotes, either directly or indirectly, any of the following: (i) any firearm,
ammunition, explosive, explosive material, or weapon or any related items,
equipment and accessories which are subject to licensing, permitting and or
other governmental restrictions on sales, distribution and/or exports of the
same; (ii) any Sporting Goods which Licensee knows or is informed by Licensor is
counterfeit, or the offer or sale of which Licensee knows or is informed by
Licensor infringes the valid Intellectual Property Rights of third parties;
(iii) any Sporting Goods or Service that the sellers of which are charged with
in-person verification of identity or age or other qualification to own or
purchase such merchandise; (iv) any Sporting Goods that is subject to any export
prohibition from the U.S., or which are barred or otherwise prohibited from use
in any export destination country outside the U.S, unless such merchandise is
only sold and delivered to a customer within the United States; (v) subject to
the last sentence of this Section 4.5, any Sporting Goods or Service that is
illegal, vulgar, obscene, or offense; (vi) any Sporting Goods or Service that
Licensee knows or is informed by Licensor would, which if offered or sold on the
XXX.xxx Site, violate a prohibition against the same imposed by the subject
vendor upon Licensor, including, without limitation, any provision restricting
distribution to the territories served by Licensor's TSA Stores; and (vii)
subject to the last sentence of this Section 4.5, any Sporting Goods which
Licensor requests in writing be
19
removed from the XXX.xxx Site for legitimate business purposes set forth in
Licensor's notice to Licensee, which if not removed, would have a materially
adverse impact on Licensor. Such notice shall specify in reasonable detail the
Sporting Goods item or items that Licensor desires Licensee to remove from the
XXX.xxx Site and the reasons for its objection to the sale of the same. The
Parties will in good faith attempt to resolve any disagreement they may have
concerning the removal of such products from the XXX.xxx Site pursuant to (v)
and (vii) above; provided, however, if, notwithstanding the use of good faith,
the Parties are unable to agree as to whether a particular product can be
offered on the XXX.xxx Site, the following resolution shall govern: (i) if the
disputed product is a type of product then offered for sale in the TSA Stores,
then Licensee may continue to offer such product on the XXX.xxx Site, and (ii)
if the disputed product is not a type of product then offered for sale in the
TSA Stores, then Licensee shall remove such product from the XXX.xxx Site.
4.6 No Diversion. Licensee shall not knowingly divert or permit diversion of
any Order made by, for, through or in the name of the XXX.xxx Site so that it
results instead in a sale on the Web Site or other outlet of any GSI Partner,
GSI Venture or any third party.
4.7 Land Based Stores Gift Certificates. In the event that Licensor is willing
to provide Land Based Stores Gift Certificates to Licensee on a consignment
basis, then Licensee shall sell Land Based Stores Gift Certificates through the
XXX.xxx Site in accordance with this Section 4.8, provided that such sales by
Licensee do not subject it to nexus with any state for sales tax purposes.
Subject to the foregoing, Licensor will furnish Land Based Stores Gift
Certificates to Licensee on consignment in quantities and denominations as
reasonably requested by Licensee. Licensee will remit to Licensor [*] of all
proceeds received from the sale of Land Based Stores Gift Certificates, the
balance being retained by Licensee as its fee and to cover all costs, including
credit card fees. By the [*] day of each [*], Licensee shall report and make
full payments to Licensor for all sales of Land Based Stores Gift Certificates
made during the previous month, and provide all reasonable cooperation to
Licensor to permit the latter to fulfill its escheat duties.
4.8 On-Line Gift Certificates. Unless otherwise agreed to in writing by
Licensor, in no event shall Licensee authorize, create, offer, advertise, market
or sell any form of gift certificate, gift card, rebate, voucher or the like
(other than Land Based Stores Gift Certificates as set forth above) that is
intended to be redeemed at the TSA Stores. However, subject to the License
Guidelines, Licensee may develop, publish and offer for sale On-Line Gift
Certificates on the XXX.xxx Site. Licensee shall clearly and conspicuously state
in connection with any offer to sell such On-Line Gift Certificates, and state
on the On-Line Gift Certificates themselves, that On-Line Gift Certificates are
redeemable only on the XXX.xxx Site and not at TSA Stores, unless otherwise
agreed to in writing by Licensor. Licensee shall bear all escheat duties with
respect to On-Line Gift Certificates.
4.9 Tax Obligations. For all Sporting Goods and Services sold by or through the
XXX.xxx Site, as between Licensor and Licensee, Licensee shall be responsible
for the computation, notification, withholding, payment, and reporting of all
applicable taxes of any kind that may be imposed on Licensee in connection with
Licensee's activities, assets or operations as permitted
20
hereunder, including, without limitation, all sales and use taxes and all value
added taxes. As between the Parties, Licensor shall be responsible for any taxes
imposed by law on Licensor, including sales and use taxes as provided pursuant
to Section 10.14. Licensee shall be responsible for the timely notification,
withholding, remittance, filing and reporting of all applicable withholding
taxes with respect to the Royalties payable to Licensor hereunder to the proper
tax authority at the rate required by statute (but reduced to the fullest extent
permitted by any tax treaty), and Licensee shall provide Licensor with reports
and official receipts of all such withholding remittances sufficient to enable
Licensor to claim appropriate federal income tax credits, if any.
Section 5. Order Processing; Fulfillment and Customer Service.
5.1 Order Processing and Fulfillment. Licensee will continue to be responsible
for all aspects of order processing, fulfillment and returns for the XXX.xxx
Site, including those functions set forth on Exhibit I attached to this
---------
Agreement. The order processing and fulfillment services provided by Licensee
with respect to the XXX.xxx Site will comply with [*] Without limiting the
generality of the foregoing, Licensee will: (i) enter into merchant agreements
in its own name and on its own account with [*]; (ii) provide secure systems for
submitting and processing such credit cards; (iii) provide timely order and
shipping confirmations to Customers; (iv) promptly process all Orders received
from Customers of the XXX.xxx Site, (v) process all transactions through the
XXX.xxx Site under the name of "XxxXxxxxxXxxxxxxxx.xxx", and (vi) make
appropriate arrangements for the delivery of Sporting Goods and Services
purchased through the XXX.xxx Site.
5.2 Returns. The returns policy for the XXX.xxx Site will continue to be as
consistent as practicable with the returns policy of the TSA Stores; provided
that GSI will accept returns of Sporting Goods or Services made through the
XXX.xxx Site, so long as such returned Sporting Goods or Services are (a)
defective or damaged during shipment, or (b) returned to Licensee, within a
mutually agreed upon time, unused and in a condition suitable for resale as new
goods. Licensor will not be required to accept in the TSA Stores any returns of
Sporting Goods or Services purchased through the XXX.xxx Site, and if Licensor
determines to accept any such returns, Licensor will not return any such
Sporting Goods or Services to Licensee, and Licensee will not have any
obligation to accept such returns from Licensor. Licensee will from time to time
at Licensee's expense provide Licensor with sufficient quantities of return
labels to enable Licensor to provide such labels to customers seeking to return
to Licensor Sporting Goods and Services purchased through the XXX.xxx Site. The
Parties agree that they will review the returns policy for the XXX.xxx Site
annually upon request of either Party, and work in good faith to develop
mutually agreeable procedures and policies regarding returns. The Parties
acknowledge that Licensee has paid Licensor in full and complete satisfaction of
any and all liabilities Licensee may have to Licensor relating to returns made
prior to the Effective Date and accepted in the TSA Stores for products sold
through the XXX.xxx Site.
5.3 Customer Service. Licensee will continue to be responsible for providing
customer service to Customers of the XXX.xxx Site, including on-line and
toll-free telephone support 24 hours per day, seven days per week. The customer
service provided to Customers of the
21
XXX.xxx Site will be provided in the name of the XXX.xxx Site. Throughout the
Term, Licensee will comply with [*] Without limiting the generality of the
foregoing, Licensee will (i) provide customer service in a courteous and
professional manner, (ii) provide for Customer feedback through appropriate
features (e.g. "contact us" and "how are we doing?" sections of the XXX.xxx
Site), and (iii) provide a toll-free telephone number for customer service which
shall be available 24 hours a day / 7 days a week (other than Christmas Day) to
receive and process inquiries, requests and complaints from Customers. In the
event that Licensee receives inquiries or complaints from customers relating to
the TSA Stores (e.g., customers attempting to contact Licensor), Licensee shall
promptly refer all such customers to the email reply service and/or toll-free
telephone number for customer service furnished to Licensee by Licensor.
Conversely, in the event that Licensor receives inquiries or complaints from
Customers relating to the XXX.xxx Site, Licensor shall promptly refer all such
Customers to the email reply service and/or toll-free telephone number of
Licensee posted on the XXX.xxx Site.
5.4 Customer Loyalty Programs. Licensee shall use commercially reasonable
efforts to adopt customer loyalty programs integrated with Licensor's customer
loyalty programs for the TSA Stores. Licensee may also establish customer
loyalty programs, provided that: (a) any such program shall be used only to
attract Customers to and generate Orders through the XXX.xxx Site or the TSA
Stores, and not other Web Sites operated in connection with any of the GSI
Partners or GSI Ventures; and (b) Licensee must obtain Licensor's review and
approval prior to extending any Customer loyalty program to Licensor's TSA
Stores.
5.5 Parts and Service. If and to the extent that, during the Term, Licensee
offers after sales service and spare parts to Customers on the XXX.xxx Site,
which shall be at Licensee's sole discretion, Licensee shall, for [*] following
expiration or termination of this Agreement, provide comparable after sales
service and spare parts to Customers as provided by Licensee immediately prior
to such expiration or termination. In no event shall Licensor be responsible for
providing after sales service or spare parts to Customers of the XXX.xxx Site.
Section 6. Promotion and Advertising
6.1 Licensor's Activities and Obligations
(a) Commencing no later than the Effective Date and on a rolling basis as
it orders or prepares new printed materials or advertisements or other
communications materials, and continuing throughout the Term, Licensor shall
promote and advertise the XXX.xxx Site in compliance with Exhibit J, attached.
---------
Licensor may use the following disclaimer (or similar message) if appropriate
and necessary: "On-line merchandise offerings may vary from products offered in
The Sports Authority stores."
(b) Licensor shall provide to Licensee the e-mail addresses which it
collects from customers in the TSA Stores as required pursuant to Exhibit J,
---------
attached. Licensee agrees that such email addresses shall be used solely for the
purpose of sending emails to such customers to promote the XXX.xxx Site, and
that such information shall be Confidential Information of
22
Licensor. Except with respect to Licensor's obligation to coordinate emails with
Licensee pursuant to Section 12, nothing in this Agreement shall prohibit
Licensor from sending emails to its customers.
6.2 Promotional and Advertising Agreements. During the Term and throughout that
portion of the Territory in which Licensee is so required by Section 2.1(c),
Licensee will use commercially reasonable efforts to enter into promotional and
advertising agreements and arrangements for the XXX.xxx Site. However, Licensee
shall not contract with any TSA Competitor in connection with the marketing or
promotion of the XXX.xxx Site, and for purposes of this Agreement, TSA
Competitors shall not qualify as and shall be excluded from the definition of
Advertising and Marketing Partners of Licensee. The review and approval
processes applicable to such promotional and advertising agreements and
arrangements are set forth on Exhibit F attached hereto. Notwithstanding the
---------
preceding sentence, the review and approval process set forth on Exhibit F shall
---------
not apply to any promotional or advertising agreement or arrangement which (i)
grants a sublicense to a third party other than in accordance with Section 2.3
hereof, (ii) relates to a newly coined trademark or service xxxx which is
subject to Licensor's approval pursuant to Section 2.4, or (iii) proposes to
alter the Marks which shall be subject to Section 2.3.
6.4 Advertising and Marketing.
(a) Commencing January 1, 2002, [*] (i) the [*] provided, that [*] which
are provided pursuant to an agreement with [*] if (A) [*] (B) [*] and (C) the
terms and conditions of the agreement [*] and (ii) subject to Section 6.4(c)
below, [*] so long as [*]
(b) If [*] Licensee shall not be deemed to have breached this Agreement [*]
(c) If [*] then Licensee shall so inform Licensor, provide Licensor with
all information it reasonably requests [*] and give Licensor [*] If Licensor [*]
then Licensee shall [*]
(d) Notwithstanding the foregoing, this Section 6.4 shall no longer be
effective [*]
6.5 Maximization. Without negating the specific rights and obligations of each
Party under this Agreement, each Party agrees to operate in a manner that has
the intended effect of maximizing the customers and revenues from or through the
XXX.xxx Site.
7. Ownership.
7.1 Licensor. As between the Parties, Licensor owns and reserves all right,
title and interest in and to the Licensed Property, along with all Intellectual
Property Rights associated therewith, and no right, title or interest to or in
any of the foregoing is transferred or, except as expressly set forth in Section
2, licensed to Licensee or any other Person. Licensee hereby assigns to Licensor
all right, title and interest that it may have or acquire in and to such items
and all associated Intellectual Property Rights, and Licensee will take, at
Licensor's expense, any actions (including
23
execution and delivery of affidavits and other documents) reasonably requested
by Licensor to effect, perfect or confirm Licensor's or its designee's right,
title and interest therein. Further, Licensee agrees and acknowledges that all
goodwill associated with or created by use of the Licensed Property by Licensee
shall inure to the benefit of Licensor. Upon termination of this Agreement all
rights in and to the Licensed Property, including all right to the use thereof,
and all goodwill associated with use of the Licensed Property, shall
automatically revert back to Licensor. At the termination of the Agreement,
Licensee will return all Licensed Property to Licensor, and Licensee shall have
no further rights thereto. If, by operation of law or otherwise, any goodwill
associated with Licensee's use of the Licensed Property shall be deemed to
accrue or have accrued to Licensee, Licensee agrees to assign such goodwill to
Licensor. Licensor shall not be required to compensate Licensee for any
reversion or assignment of such goodwill. Licensee shall not contest Licensor's
rights in the Licensed Property, or any of Licensor's applications or
registrations therefor, nor assist anyone else in doing so.
7.2 Licensee. As between the Parties, Licensee owns and reserves all right,
title and interest in and to the GSI Furnished Materials and the XXX.xxx Site
(other than the Licensed Property and all Intellectual Property Rights
associated therewith), along with all Intellectual Property Rights associated
therewith, and no right, title, interest to or ownership of any of the foregoing
is transferred or licensed to Licensor or any other Person. Licensor hereby
assigns to Licensee all right, title and interest that it may have or acquire in
and to such items and all associated Intellectual Property Rights, and Licensor
will take, at Licensee's expense, any actions (including execution and delivery
of affidavits and other documents) reasonably requested by Licensee to effect,
perfect or confirm Licensee's or its designee's right, title and interest
therein. Further, Licensor agrees and acknowledges that all goodwill associated
with or created by use of the GSI Furnished Materials or XXX.xxx Site (other
than the Licensed Property) shall inure to the benefit of Licensee. Upon
termination of this Agreement all rights in and to the GSI Furnished Materials
and the XXX.xxx Site (other than the Licensed Property), including all right to
the use thereof, and all goodwill associated with use of the GSI Furnished
Materials and XXX.xxx Site (other than the Licensed Property), shall
automatically revert back to Licensee. At the termination of the Agreement,
Licensor will return all GSI Furnished Materials to Licensee, and Licensor shall
have no further rights thereto. If, by operation of law or otherwise, any
goodwill associated with Licensor's use of the GSI Furnished Materials or
XXX.xxx Site (other than the Licensed Property) shall be deemed to accrue or
have accrued to Licensor, Licensor agrees to assign such goodwill to Licensee.
Licensee shall not be required to compensate Licensor for any reversion or
assignment of such goodwill. Licensor shall not contest Licensee's rights in the
GSI Furnished Materials or the XXX.xxx Site (other than the Licensed Property),
or any of Licensee's applications or registrations therefor, nor assist anyone
else in doing so.
7.3 Ownership and Use of Databases. As between the Parties, Licensee shall
own all right, title and interest in and to all Databases. During the Term,
Licensor may use the Databases as specifically provided hereunder, without
payment to Licensee, but to the extent Licensor's use requires access to a third
party's technology, Licensor shall be required to obtain and pay for such
access.
24
Section 8. Account Managers
8.1 Account Managers.
(a) Each Party will assign one (1) dedicated account manager with the
experience and status equivalent to an on-line business manager, as well as one
(1) dedicated merchandising manager. The work time and energies of Licensor's
managers shall be devoted entirely to the XXX.xxx Site. All managers shall be
subject to change from time to time by the assigning Party upon written notice
to the other Party. Such managers shall oversee the performance of the Party's
respective obligations under this Agreement. It is anticipated that the account
managers shall meet at least once every month (or with such other frequency as
may be mutually agreed upon) during the Term to review the implementation of
this Agreement and to explore methods for improving performance.
(b) Notwithstanding subsection (a), until December 31, 2001, Licensor shall
furnish at least two (2) account managers. Licensor's obligation to provide two
(2) managers shall cease as of December 31, 2001. Licensee shall [*] Licensee
agrees to [*] In no event shall Licensee [*]
Section 9. Kiosks. Licensor may, on its own or through a third party, elect to
install, or permit the installation of, kiosks in any or all of the TSA Stores
at any time or from time to time. All such kiosks shall be configured to enable
customers at such TSA Stores to purchase Sporting Goods and Services through
such kiosks only through the XXX.xxx Site. It is understood by the Parties that
Licensee has the exclusive right, in the Territory, to provide all customer
service, order processing and fulfillment services with respect to the sale of
Sporting Goods and Services through such kiosks. Sales resulting from orders
entered through kiosks on the XXX.xxx Site will be sales of Licensee included in
Net Revenues and, for purposes of Exhibit E, Licensor-Generated Net Revenues.
---------
Section 10. Group and Team Sales.
During the Term and in the Territory, Licensee has the exclusive right
to make group and team sales on behalf of Licensor through the Internet. Nothing
in the preceding sentence shall limit Licensor's ability to make group and team
sales on its own behalf other than through the Internet. Licensor agrees that it
will integrate the URL and shop-on-line message for group and team sales through
the XXX.xxx Site into its TSA Stores group and team sales efforts, consistent
with its obligations set forth on Exhibit "J" attached hereto.
Section 11. Compensation and Expenses
11.1 General. Except as expressly provided for elsewhere in this Agreement, each
Party will be responsible for all costs and expenses incurred by such Party in
performing its obligations under this Agreement.
11.2 Royalty Payments, Reports.
25
(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 its chief financial
officer, giving the following particulars concerning Net Revenues and
corresponding Royalties that accrued during the preceding quarter of
Licensee's Fiscal Year, together with [*]
(A) Net Revenues derived from sale of Sporting Goods and
Services other than for which Licensee is required to pay a
revenue share, impressions fee, cost-per-click fee, or other
promotional or advertising fee;
(B) Net Revenues derived from sale of Sporting Goods and
Services for which Licensee is required to pay a revenue
share, impressions fee, cost-per-click fee, or other
promotional or advertising fee;
(C) Net Revenues derived from the sale of Sporting Goods and
Services to Customers who access the XXX.xxx Site from
kiosks in TSA Stores, and the Operating Profit from such
Kiosk sales;
(D) Net Revenues of the TSA Site derived from all other sources;
(E) Amount of Royalties due to Licensor with respect to the TSA
Site itemized with respect to items (A) through (D) above;
and
(F) Amount of tax of any kind properly withheld and/or paid to
tax authorities by Licensee.
(ii) Pay: (A) the Royalties to TSAMI; and (B) all other payments due
hereunder to TSA. Payments made in respect of the fourth quarter of
each of Licensee's Fiscal Years shall be subject to subsequent
adjustment, as necessary, to reflect the results of the independent
auditor's report required by subsection (c) below. Subject to the
limitations set forth in Section 11.3(b), receipt or acceptance of any
report or payment shall not preclude Licensor from questioning the
correctness thereof at any time. In the event that any inconsistency or
mistake is discovered by either Licensor or Licensee in such reports,
it shall be promptly rectified and, within fifteen (15) Business Days,
the appropriate report shall be delivered by the Party with the duty to
report.
(b) Disputes. Time is of the essence with respect to Licensee's duty to
pay all Royalties which are not subject to a good faith dispute when due and
such payments are not subject to set-off. If either Party shall dispute the
correctness of any payment due hereunder, it shall give written notice of the
dispute and claimed amount to the other Party. The Party receiving such notice
shall have ten (10) Business Days to investigate and respond (the "Payment
Notice Period"). At the end of the Payment Notice Period, if no dispute remains,
or if part of the
26
claimed amount is no longer in dispute, all, or that part that is undisputed,
shall be promptly paid. However, if all or part of the claimed amount remains in
dispute at the end of the Payment Notice Period the Parties shall confer and
attempt in good faith to resolve the dispute. When the disputed amount is
ultimately paid, the Party which owes the claimed amount shall promptly pay all
or that part of the claimed amount which remains unpaid and is due to the
complaining Party, together with interest at the annual rate of prime plus two
percent (2%), and computed from the date when the underlying payment was first
due.
(c) Within ninety (90) days after the end of each Fiscal Year of Licensee,
Licensee shall furnish to Licensor a report certified by its chief financial
officer as to the accuracy of Licensee's Royalty payments and reports for each
such Fiscal Year.
11.3 Records and Audit.
(a) During the Term of this Agreement, and for a period of three (3) years
thereafter, each party will keep true, complete and accurate books and records
(and in the case of Licensee, Databases, subject to Section 7.3) sufficient to
verify Licensee's compliance or non-compliance with the provisions of this
Agreement. All financial records shall be maintained in conformance with
generally accepted accounting principles in effect in the United States.
Licensee's books and records shall be sufficient to accurately reflect the
business of the XXX.xxx Site, the Net Revenues as provided for hereunder and the
transactions contemplated hereunder. The books and records required to be
maintained hereunder shall be kept at the applicable Party's principal place of
business and shall be available for inspection by the other Party, upon
reasonable prior notice and during normal business hours.
(b) Upon reasonable notice to Licensee, during the Term and for a period of
three (3) years after expiration or termination of this Agreement, Licensor,
and/or its independent certified public accountants, may audit all books,
records and Databases (subject to Section 7.3) related to the XXX.xxx Site
provided for in this Agreement to verify Licensee's compliance or non-compliance
with the provisions of this Agreement. Any such audit: (a) shall be conducted
during normal business hours and in a manner designed to not unreasonably
interfere with Licensee's ordinary business operations; and (b) may not occur
more frequently than once every twelve (12) months, unless an audit shows a
material discrepancy, then no more frequently than once every six (6) months
until such time as the results of an audit no longer show a material discrepancy
and (c) may only cover the period commencing after the period covered by the
last audit conducted pursuant to this Section 11.3; provided, however, such
limitation shall not prevent the review of information related to a prior audit
to the extent such information is necessary to conduct a subsequent period audit
hereunder. Licensee will cooperate with Licensor in the conduct of such audit.
Any error(s) discovered in an audit shall be corrected by Licensee within
fifteen (15) Business Days after having been notified of any such error by such
auditor. If an audit of Licensee's books and records reveals that Licensee has
failed properly to account for and pay any monies owing to Licensor and the
amount of any monies which Licensee has failed properly to account for and pay
for any quarter exceeds, by [*] percent [*] or more, the monies actually
accounted for and paid to Licensor for such period, Licensee shall, in addition
to paying Licensor such past due monies (which shall be payable by Licensee
without reference to the [*]
27
threshold), reimburse Licensor for its reasonable out-of-pocket expenses
incurred in conducting such audit, together with interest on the overdue monies
owed as computed under Section 11.2(b) (and subject to the dispute resolution
process set forth in the same section).
Section 12. Customer Information and Privacy Policy
12.1 Customer Information. Licensor and Licensee shall each have an equal and
undivided ownership interest in and to all Customer Information. Licensor may
use, subject to Section 12.2 and Section 16.1, the Customer Information to
advertise, promote and operate the TSA Stores and for any other lawful purpose.
Licensor will provide Licensee with information reasonably requested by Licensee
relating to customers of the TSA Stores so that Licensee may provide marketing
and promotions to such customers with respect to the XXX.xxx Site. Each party
will coordinate with the other party all email and other electronic
communications to Licensor's customers. Subject to Section 17.9(b), Licensee may
use such Customer Information only to design, develop, operate, maintain, and
promote the XXX.xxx Site and as may be necessary to perform its obligations
under this Agreement. Subject to Section 17.9(b), each Party will treat such
Customer Information as Confidential Information of Licensor. Subject to Section
17.9(b), Licensee shall not furnish, rent, sell or otherwise disclose Customer
Information to any Person whatsoever without the prior written consent of
Licensor, which Licensor may withhold as it sees fit, except that Licensee may
temporarily furnish, subject to the Privacy Policy for the XXX.xxx Site, such
Customer Information as is necessary for Licensee or any Person with which
Licensee contracts to perform fulfillment, credit card or check transactions,
email broadcasts and similar Customer activities required of Licensee hereunder.
For those Customers directed to the XXX.xxx Site by or through the Advertising
and Marketing Partners of Licensee, the Parties' ownership of the resulting
Customer Information as provided for hereunder shall apply to all Customer
Information collected from Customers of the XXX.xxx Site, but shall not preclude
the Advertising and Marketing Partners of Licensee from owning the same
information to the extent it is generated independently of the XXX.xxx Site.
12.2 Privacy Policy. With respect to Customer Information collected in
connection with the XXX.xxx Site, each Party will abide by the privacy policy
currently posted on the XXX.xxx Site, as it may be amended from time to time.
Except as provided pursuant to Section 17.9(b), any amendments to such privacy
policy must be agreed upon by the Parties; provided, however, that if any
amendment to the privacy policy is required by applicable law, the privacy
policy will be amended to comply with such requirements. Unless the Parties
otherwise agree, the privacy policy shall provide that neither party may
furnish, rent, sell or otherwise disclose Customer Information to any third
party other than those permitted pursuant to such privacy policy, provided that
such privacy policy shall also provide that Licensor may use such Customer
Information to advertise and promote the TSA Stores, Licensor's goods and
services, and the direct sales or mail order catalog, team/group sales and kiosk
businesses of Licensor. With respect to any customer information collected by
Licensor in the TSA Stores and furnished to Licensee, Licensee agrees to abide
by the terms of Licensor's privacy policy for the TSA Stores; provided that such
privacy policy for the TSA Stores shall permit Licensee to use such data to send
e-mail promotions to such customers for the exclusive benefit of the XXX.xxx
Site.
28
12.3 Financial Information. Each Party will have an equal and undivided
ownership interest in Financial Information except that all use of the Financial
Information by any of them shall always be subject to the restrictions set forth
herein. Each Party will treat such Financial Information as Confidential
Information of the other Party hereunder, except that each Party may incorporate
such Financial Information as is reasonably necessary to prepare and report
aggregate financial results or to comply with any applicable reporting
requirement imposed by governmental agencies.
12.4 Delivery of Customer Information and Financial Information to Licensor.
From time to time, upon Licensor's reasonable request, Licensee shall provide to
Licensor any or all of the Customer Information or the Financial Information, as
Licensor shall specify, including the following information:
(a) Customers' names;
(b) Customers' addresses;
(c) Customers' phone numbers;
(d) Customers' e-mail addresses;
[*]
Licensee shall use commercially reasonable efforts to make the information in
items [*] Licensee shall furnish the information described in items [*] Licensee
shall provide the Customer Information and/or Financial Information to Licensor
in a commercially standard format, either via diskette, CD-ROM, electronically,
or via another mutually agreeable method. Licensee shall use commercially
reasonable efforts so that the Customer Information and Financial Information
provided to Licensor accurately and completely reflects the Customer Information
and Financial Information from the XXX.xxx Site (except that Licensee shall not
be responsible for the truth or accuracy of any data supplied directly by any
Customers).
Section 13. Representations and Indemnification
13.1 Representations. Each Party represents and warrants to the other that: (a)
it is a corporation, validly existing and in good standing under the laws of the
jurisdiction of its incorporation; (b) it has the full corporate right, power
and authority (pursuant to its Articles of Incorporation, Bylaws and applicable
laws) to enter into this Agreement and perform its obligations hereunder; (c)
its execution, delivery and performance of this Agreement, and the other Party's
exercise of such other party's rights under this Agreement, will not conflict
with or result in a breach or violation of any of the terms or provisions or
constitute a default under any material agreement by which it is bound; and (d)
when executed and delivered, this Agreement will constitute its legal, valid and
binding obligation enforceable against it in accordance with its terms.
13.2 Indemnity.
(a) Licensee will defend, indemnify and hold harmless Licensor and its
Affiliates (and their respective employees, officers, directors and
representatives) from and against any and all claims, costs, losses, damages,
judgments and expenses (including reasonable attorneys' fees)
29
arising out of any action, claim, proceeding or lawsuit (a "Claim" or "Claims")
asserted by any Person other than Licensor or an Affiliate of Licensor to the
extent that it is based upon: (i) any actual or alleged breach of
representations, warranties or obligations of Licensee set forth in this
Agreement; (ii) any actual or alleged infringement or misappropriation of
Intellectual Property Rights of any Person other than Licensor, including,
without limitation, Claims of misrepresentation, false advertising or unfair
competition or violation of rights of privacy; (iii) subject to the last
sentence of this Section 13.2(a), any Claims of product liability, property
damage, personal injury or death relating to any Sporting Goods or Services sold
by Licensee hereunder, except with respect to products manufactured by or on
behalf of Licensor; (iv) Claims of violation of any applicable law, treaty, rule
or regulation relating to the Sporting Goods or Services offered by Licensee,
the XXX.xxx site, or the Web Sites of any Advertising and Marketing Partner of
Licensee, including, without limitation, any failure to file, report or pay any
applicable tax; and (v) Claims based upon the offer, advertising, marketing,
distribution or sale of Sporting Goods or Services by Licensee or any
Advertising or Marketing Partner of Licensee, except for product liability
Claims. Notwithstanding the foregoing, aside from negligent implementation of
its own related activities, Licensee shall not bear any indemnification duty
hereunder with respect to (i) any advertising or promotional program or project
initiated by Licensor and directed at the TSA Stores, or (ii) TSA Content
provided by Licensor. Subject to Section 13.3, Licensee will pay any award
against Licensor and its Affiliates (and their respective employees, officers,
directors or representatives) and any costs and attorneys' fees reasonably
incurred by them resulting from any such Claim. Notwithstanding the foregoing,
to the extent Licensee defends, indemnifies and holds harmless Licensor with
respect to product liability Claims as provided herein, Licensor hereby
transfers and assigns to Licensee all claims and rights Licensor may have
against any Person related to any such product liability Claims.
(b) Licensor will defend, indemnify and hold harmless Licensee and its
Affiliates (and their respective employees, officers, directors and
representatives) from and against any and all Claims asserted by any Person
other than Licensee or an Affiliate of Licensee to the extent that it is based
upon: (i) any actual or alleged breach of representations, warranties or
obligations of Licensor set forth in this Agreement; (ii) any actual or alleged
infringement or misappropriation concerning the Licensed Property in the United
States, Japan or Canada and other countries within the Territory in which (a)
the Licensee has a duty pursuant to Section 2.1(c)(ii) of this Agreement, or (b)
the Licensor has requested Licensee to provide services and in which Licensee
has agreed to do so, provided, however, that Licensor shall not bear any duty,
obligation or liability pursuant to this Section 13.2(b) to the extent that
Licensee uses the Licensed Property beyond the scope of any rights granted to
Licensee under this Agreement or otherwise agreed to by Licensor, and such
extended use is the primary cause of such actual or alleged infringement or
misappropriation; (iii) Claims based upon Licensor's advertising and promotional
activities as performed hereunder or otherwise in connection with the TSA
Stores, and (iv) Claims of violation of any applicable law, treaty, rule or
regulation relating to the TSA Stores or the products and services offered by
Licensor,. Notwithstanding the foregoing, Licensor shall not bear any
indemnification duty with respect to Licensee's negligent implementation of its
activities hereunder. Subject to Section 13.3, Licensor will pay any award
against Licensee and its Affiliates (and their respective employees, officers,
directors or
30
representatives) and any costs and attorneys' fees reasonably incurred by them
resulting from any such Claims.
13.3 Procedure. In case any Claim is at any time brought against a Party or its
Affiliates (or any of their respective employees, officers, directors or
representatives) (an "Indemnified Party") and such Indemnified Party is entitled
to indemnification pursuant to Section 13.2, the party obligated to provide such
indemnification (the "Indemnifying Party") will defend such Claim, at the sole
expense of the Indemnifying Party, using counsel selected by the Indemnifying
Party but subject to the Indemnified Party's reasonable approval. If the
Indemnifying Party fails to take timely action to defend such a Claim after
having received written notice from the Indemnified Party of such failure, the
Indemnified Party may defend such a Claim at the Indemnifying Party's expense.
The Indemnifying Party will keep the Indemnified Party fully advised with
respect to such Claims and the progress of any suits, and the Indemnified Party
shall have the right to participate, at the Indemnified Party's expense, in any
suit instituted against it and to select attorneys to defend it, which attorneys
will be independent of any attorneys chosen by the Indemnifying Party relating
to such Claim or related claim. The Indemnifying Party will not settle,
compromise or otherwise enter into any agreement regarding the disposition of
any Claim against the Indemnified Party without the prior written consent and
approval of the Indemnified Party. The obligations of the Indemnifying Party
pursuant to this Section 13 shall survive expiration or earlier termination of
this Agreement.
Section 14. Reporting
14.1 Reports Concerning Royalties and Financial Performance. In addition to the
reports required by Section 11.2, Licensee shall provide to Licensor [*]
business review reports ("Business Review Reports") which shall include with
respect to the XXX.xxx Site: [*]
14.2 Reports Concerning [*] of Licensee. The Parties will work in good faith to
develop methods for Licensee to track, [*] Notwithstanding the foregoing,
Licensee shall, to the extent in Licensee's reasonable control, provide Licensor
with [*]
14.3 Reports Concerning the XXX.xxx Site [*]. As part of the Business Review
Reports required pursuant to Section 14.1, Licensee shall [*] Upon the request
of Licensor, Licensee shall provide Licensor with [*]
14.4 Additional Reports. From time to time during the Term, Licensee shall
provide to Licensor such additional reports as may be reasonably requested by
Licensee, bearing in mind the information which is readily available to
Licensee, the reports which Licensee may have formatted already, the frequency
of such requests, and the burden that designing and furnishing new reports would
place upon Licensee.
Section 15. Disclaimers and Limitations
15.1 DISCLAIMER OF WARRANTIES. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT,
NEITHER PARTY MAKES, AND EACH PARTY HEREBY WAIVES
31
AND DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES REGARDING THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OR IMPLIED
WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF
TRADE.
15.2 LIMITATION OF DAMAGES. EXCEPT TO THE EXTENT AWARDED TO A THIRD PARTY
IN A JUDGMENT AGAINST WHICH A PARTY IS ENTITLED TO INDEMNIFICATION PURSUANT TO
SECTION 13 OR TO THE EXTENT ARISING OUT OF AN INTENTIONAL MATERIAL BREACH OF
THIS AGREEMENT, NEITHER PARTY WILL BE LIABLE (WHETHER IN CONTRACT, WARRANTY,
TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHER THEORY), TO THE OTHER
PARTY OR ANY OTHER PERSON OR ENTITY FOR COST OF COVER OR FOR ANY INDIRECT,
INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR
LOSS OF PROFIT, BUSINESS OR DATA) ARISING OUT OF THIS AGREEMENT. IN NO EVENT
SHALL ANY PARTY BE LIABLE TO THE OTHER FOR ANY PUNITIVE DAMAGES, EVEN IN CASES
OF INTENTIONAL MATERIAL BREACH, EXCEPT TO THE EXTENT AWARDED TO A THIRD PARTY.
Section 16. Exclusivity.
16.1 Licensor. Subject to Sections 2.5(a)(ii) and 16.4, during the Term and
throughout the Territory, Licensee will be the exclusive provider of all
services necessary to create and operate the Sporting Goods Internet businesses
of Licensor and/or its Affiliates and neither Licensor nor its Affiliates shall,
directly or indirectly through one or more third parties, offer, market or sell
Sporting Goods and/or related services on or through the Internet and neither
Licensor nor its Affiliates shall assist any third party in the offering,
marketing and/or selling of Sporting Goods and/or related services on or through
the Internet (the "Restricted Business"). If Licensor or any of its Affiliates
desires to engage in any Restricted Business during the term of this Agreement,
it shall only do so through Licensee and such business shall be conducted by
Licensee on the terms and conditions set forth in this Agreement.
Notwithstanding the foregoing, [*] Nothing in this provision shall prevent
Licensor, or any entity that acquires all or substantially all of the
outstanding stock or assets of Licensor, from engaging in any activities other
than the Restricted Business.
16.2 Licensee. Licensee agrees that the XXX.xxx Site shall not be used directly
or indirectly by Licensee to advertise or promote any TSA Competitor, GSI
Partner or GSI Venture, or to click-through to the Web Site of any TSA
Competitor, GSI Partner or GSI Venture. The foregoing limitation shall not be
deemed to restrict Licensee from advertising or promoting any merchandise vendor
on the XXX.Xxx Site in connection with the sale of such vendor's products
through the XXX.Xxx Site.
16.3 Hiring. During the Term, neither Party will, directly or indirectly,
solicit or hire or attempt to solicit or hire: (i) any existing employees, or
(ii) former employees who have worked for the other Party at any time during the
preceding 12 months, without the prior written approval
32
of such other Party. Nothing herein shall prevent a Party from hiring an
employee or former employee of the other Party who responds to a public
advertisement for employment.
16.4 Territory Regarding Internet.
(a) Orders from the XXX.xxx Site may be delivered to Customers only within
the Territory.
(b) If, at any time after the Effective Date, Licensor decides to establish
TSA Stores in a country within the Territory other than the United States,
Canada or a country in which Licensee is "then operating an e-commerce Sporting
Goods business on behalf of Licensor" (as defined below) (a "New Country"),
either on its own or through a third party, then the following procedures will
apply. Licensor shall notify Licensee of its intention within a reasonable time
after its decision, but in no event less than 180 days before the date Licensor
plans to open TSA Stores for business in such country, and shall provide
Licensee with all information on its business plans (including the projected
date for opening the first TSA Store in the New Country and projected product
assortments) relating thereto, both initially and on an updated basis until 30
days before the deadline for Licensee's notice to Licensor provided for in the
next sentence, and Licensor shall deliver to Licensee a written term sheet (the
"Term Sheet") setting forth the terms and conditions on which Licensor proposes
that Licensee operate the e-commerce Sporting Goods business on behalf of
Licensor in such New Country. Licensee shall have the right (the "New Country
Right"), exercisable by written notice to Licensor within 90 days ("Licensee's
Notice Period") after such notice from Licensor, to operate the e-commerce
Sporting Goods business on behalf of Licensor in such New Country in accordance
with this following.
(c) If, prior to the end of Licensee' Notice Period, Licensee does not
exercise its New Country Right or Licensee and Licensor cannot agree upon the
terms and conditions on which Licensee will operate the e-commerce Sporting
Goods business on behalf of Licensor in such New Country, then Licensor shall
have the right to offer to a third party the opportunity to operate the
e-commerce Sporting Goods business on behalf of Licensor in such New Country;
provided that the terms and conditions that Licensor offers to such third party
shall not be materially more favorable to such third party than the terms and
conditions offered by Licensor to Licensee in the latest Term Sheet delivered by
Licensor to Licensee; and provided further that if (i) within 180 days after the
end of Licensee's Notice Period, Licensor is unable to enter into a legally
binding agreement with a third party in accordance with such terms and
conditions, (ii) within 360 days after the end of Licensee's Notice Period, such
third party is not "then operating an e-commerce Sporting Goods business on
behalf of Licensor" in such New Country or Licensor has not opened for business
in such New Country a TSA Store, or (iii) Licensor and such third party
subsequently modify the terms and conditions of their agreement to make them
materially more favorable to such third party than the terms and conditions
offered by Licensor to Licensee in the latest Term Sheet or after "then
operating an e-commerce Sporting Goods business on behalf of Licensor" in such
New Country, such third party ceases to do so for a period exceeding 30 days,
then in the case of any of (i), (ii) or (iii), Licensor shall not establish an
e-commerce Sporting Goods business in such New Country without again complying
with the procedures set forth in this Section 16.4. If Licensee does not
exercise its New Country Right in
33
accordance with this Section 16.4, then the Territory of this Agreement will be
deemed to exclude the New Country commencing with the first day that the third
party is "then operating an e-commerce Sporting Goods business on behalf of
Licensee" in such New Country and continuing for so long as Licensor is not
required to again comply with the procedures set forth in this Section 16.4.
(d) If, prior to the end of Licensee's Notice Period, Licensee notifies
Licensor that it is exercising its New Country Right, then (i) within 180 days
after the end of Licensee's Notice Period, Licensee will establish a Web Site in
the principal language and currency of such New Country that is accessible to
customers in such New Country and the capability to ship Sporting Goods to
customers in such New Country with competitive fulfillment charges to the
customers, and (ii) within 360 days after the end of Licensee's Notice Period,
Licensee will offer on such Web Site an assortment and selection of Sporting
Goods similar to that found in the TSA Stores in such New Country or, if no TSA
Stores are open for business in such New Country, similar to that offered on the
XXX.xxx Site; provided, however, that Licensee will not be required to offer on
such Web Site any Sporting Goods that Licensee is prohibited from offering by
the manufacturer, licensor or licensee of such products.
(e) If Licensor decides to establish TSA Stores in a country in the
Territory in which Licensee is "then operating an e-commerce Sporting Goods
business on behalf of Licensor", then the Territory of this Agreement will
continue to include such country; provided that within 360 days after the first
TSA Store opens for business in such country, Licensee shall offer on the Web
Site for such country an assortment and selection of Sporting Goods similar to
that found in the TSA Stores in such country; provided, however, that Licensee
will not be required to offer on such Web Site any Sporting Goods that Licensee
is prohibited from offering by the manufacturer, licensor or licensee of such
products. If Licensee, within thirty (30) days after written notice from
Licensor, does not offer the assortment and selection of Sporting Goods as
required in the preceding sentence, then the Territory of this Agreement will be
deemed to exclude such country.
(f) For the purposes of this Section 16.4, a Person will be considered to
be "then operating an e-commerce Sporting Goods business on behalf of Licensor"
in a country if such Person (i) has established a Web Site in the principal
language and currency of such country that is accessible to customers in such
country and that uses Licensor's or its Affiliate's trademarks or trade names,
(ii) offers on such Web Site an assortment and selection of Sporting Goods
similar to that found in the TSA Stores in such country or, if there are no TSA
Stores in such country, the TSA Stores in the United States, and (iii) has
shipped more than a de minimis amount of Sporting Goods to customers in such
country.
Section 17. Term and Termination
17.1 Term. The Term of this Agreement will commence on the Effective Date and,
unless earlier terminated as provided herein, will automatically terminate on
November 8, 2019.
17.2 Licensor Termination. Subject to Section 17.4, Licensor shall be entitled
to terminate this Agreement immediately upon written notice to Licensee: (a) if
Licensee or Global Sports
34
becomes insolvent, admits in writing its inability to pay debts as they mature,
institutes or has instituted against it any bankruptcy, reorganization, debt
arrangement, assignment for the benefit of creditors, or other proceeding under
any bankruptcy or insolvency law or dissolution, receivership, or liquidation
proceeding (and, if such proceeding is instituted against it, such proceeding is
not dismissed within sixty (60) days); (b) if Licensee shall fail to make any
payments, which are not subject to a good faith dispute, promptly when due or to
deliver any reports as required hereunder; (c) if Licensee otherwise breaches in
any manner the terms of this Agreement; or (d) if Global Sports breaches its
obligations under Section 2.6 [*] of this Agreement.
17.3 Licensee Termination. Subject to Section 17.4, Licensee shall be entitled
to terminate this Agreement immediately upon written notice to Licensor: (a) if
Licensor becomes insolvent, admits in writing its inability to pay debts as they
mature, institutes or has instituted against it any bankruptcy, reorganization,
debt arrangement, assignment for the benefit of creditors, or other proceeding
under any bankruptcy or insolvency law or dissolution, receivership, or
liquidation proceeding (and, if such proceeding is instituted against it, such
proceeding is not dismissed within sixty (60) days); or (b) if Licensor
otherwise breaches in any manner the terms of this Agreement.
17.4 Notice, Cure. Except as provided below, in the event of breach by Licensee
or Global Sports (as applicable) of any provision of this Agreement as provided
in 17.2(b), (c) or (d), or by Licensor of any provision of this Agreement as
provided in 17.3(b), the non-breaching Party shall give the breaching Party
notice in writing to cure the breach within sixty (60) days (the "Notice
Period"), and if the breach is not cured within such period, the non-breaching
Party shall be entitled to exercise any remedies it may have hereunder, in law
or equity, including, without limitation, its right to terminate this Agreement
effective upon expiration of the Notice Period, provided however, that if such
breach is capable of being cured but incapable, by reason of its nature, of
being cured within the Notice Period, the non-breaching Party may not terminate
this Agreement so long as the breaching Party continues diligently to attempt to
cure such breach and such breach is cured within an additional sixty (60) day
period. Notwithstanding the foregoing, Licensor shall be deemed to have cured a
breach premised upon failure to comply with any of its obligations set forth in
Exhibit J in an applicable measurement period by fully complying with such
---------
obligation in the first full measurement period after notice of default is
received, and Licensee shall be deemed to have cured a breach premised upon
failure to achieve any standard set forth in [*]in an applicable measurement
period by achieving the standard in the first full measurement period after
notice of default is received.
17.5 Termination by Mutual Agreement. This Agreement may be terminated at any
time by mutual written agreement of the Parties.
17.6 Survival of Obligations. Expiration or termination of this Agreement for
any reason shall not affect obligations which (i) have accrued as of the date of
expiration or termination, (ii) arise out of occurrences prior to the
termination date, (iii) become effective upon termination or (iv) by their terms
continue after termination.
35
17.7 Post-Termination Process. Upon termination of this Agreement, the Parties
shall mutually cooperate to effect an orderly termination of their relationship
as Licensor and Licensee, and Licensee shall within thirty (30) days:
(a) Return to Licensor (or destroy) all TSA Content and Materials, to the
extent that such Materials contain Licensed Property, in its possession and
control, cease using and cause all Advertising and Marketing Partners of
Licensee to cease using the Licensed Property in any manner and for any purpose,
and take all steps necessary to delete any and all references to any Licensed
Property from its business licenses, permits, business forms, packaging, labels,
advertisements, promotions and other Materials;
(b) Upon reasonable request of Licensor, furnish sworn affidavits attesting
to compliance with subsection (a);
(c) Cease holding itself out as a licensee of Licensor or as an entity
otherwise authorized or permitted to use (or to sublicense others to use) the
Licensed Property; and
(d) Cooperate with Licensor at Licensor's expense in obtaining the
cancellation of any registration of this Agreement and amendment or cancellation
of any registered user agreements and corporate, domain name, business name or
like registrations relating to the Licensed Property. Licensee, upon Licensor's
written request and at Licensor's expense, shall execute all such documents as
may be necessary to fulfill this provision. If Licensee shall fail to execute
any such documents within thirty (30) days after Licensor's request, Licensee
hereby confirms that Licensor shall automatically be considered Licensee's
attorney-in-fact solely for the purpose of executing such documents pursuant to
this Section 17.7(d).
(e) Notwithstanding the foregoing, upon termination or expiration of this
Agreement for any reason, Licensee shall have, for a period of 180 days
thereafter, the right to sell off, on a nonexclusive basis, all of the unsold
Private Label Merchandise in Licensee's inventory that was on hand prior to such
termination or expiration.
17.8 Injunctive Relief. Subject to section 17.7(e) above, should Licensee fail
to cease using any Licensed Property upon termination of this Agreement,
Licensor may obtain, and Licensee hereby consents to a decree of any court of
competent jurisdiction ordering Licensee to immediately cease the use of the
Licensed Property and to otherwise comply with Section 17.7 above, to amend or
cancel any registration of this Agreement and any registered user agreements and
to amend or cancel any corporate or business name registrations and to change
its business name accordingly. Licensee's consent to this remedy is based upon
express recognition by Licensee that Licensor would otherwise suffer irreparable
harm and that monetary damages would therefore be an inadequate remedy for
Licensor.
17.9 Effect of Bankruptcy or Failure to Perform.
(a) Within forty-five (45) days from the Effective Date and throughout the
remaining Term of this Agreement, [*]
36
[*]
Section 18. [*]
Section 19. Miscellaneous
19.1 Press Releases. All voluntary public announcements concerning the
transactions contemplated by this Agreement will be mutually acceptable to both
Licensor and Licensee. Unless required by law, neither Party will make any
public announcement or issue any press release concerning the transactions
contemplated by this Agreement without the prior consent of the other Party.
With respect to any announcement that any of the Parties is required by law to
issue, such Party shall, to the extent possible under the circumstances, review
the necessity for and the contents of the announcement with the other Party
before issuing the announcement; provided, however, if either Party cannot
obtain the consent of the other Party in a timely manner after submission of a
request for consent, the Party required to comply with law may issue the press
release or public announcement without obtaining the consent of the other Party.
Notwithstanding the preceding sentences in this Section 19.1, after the initial
public announcement of a particular matter or transaction contemplated by this
Agreement has been approved by the Parties, either Party's subsequent reference
to that particular matter or transaction will not require another approval from
the other Party.
19.2 No Partnership, Joint Venture or Agency. The Parties are entering this
Agreement as independent contractors, and this Agreement will not be construed
to create a partnership, joint venture, agency or employment relationship
between them. Neither Party will represent itself to be an employee or agent of
the other or enter into any agreement or legally binding commitment or statement
on the other's behalf of or in the other's name. Further, each Party shall be
completely responsible for the payment of all sums of money which may be due at
any time to its own employees, contractors, vendors, agents and representatives,
and for all other claims made by such Persons against another Party. No Party
shall for any reason be liable under this Agreement in any way for another
Party's termination of employment or other relationships with such Persons.
19.3 Confidentiality. (a) Each Party will protect the Confidential Information
of the other Party from misappropriation and unauthorized use or disclosure, and
at a minimum, will take precautions at least as great as those taken to protect
its own Confidential Information of a similar nature. Without limiting the
foregoing, the receiving Party will (i) use such Confidential Information solely
for the purposes for which it has been disclosed; and (ii) disclose such
Confidential Information only to those of its employees, agents, attorneys,
auditors, consultants, and others who have a need to know the same for the
purpose of performing this Agreement and who are informed of and agree to a duty
of nondisclosure (it being understood that each Party will remain liable with
respect to disclosure by its employees, agents, attorneys, auditors,
consultants, and others who have been provided by Confidential Information by
such Party). Further, the receiving Party will use, and cause its employees,
agents, attorneys, auditors, consultants, and others who have a need to know the
same for the purpose of performing this
37
Agreement to use such Confidential Information solely for the purposes for which
it has been disclosed. Further, the receiving Party may also disclose
Confidential Information of the disclosing Party to the extent necessary to
comply with applicable law or legal process, provided that the receiving Party
uses reasonable efforts to give the disclosing Party prompt advance notice
thereof. Upon request of the other Party, or in any event upon any termination
or expiration of the Term, each Party will return to the other all materials, in
any medium, which contain, embody, reflect or reference all or any part of any
Confidential Information of the other Party.
(b) Neither Party will disclose this Agreement or the transactions
contemplated herein, or make any filing of this Agreement or other agreements
relating to the transactions contemplated herein, without the consent of the
other. If either Party reasonably determines that such disclosure is required by
applicable law, such Party shall be entitled to make such disclosure but will
first use all reasonable efforts to coordinate the disclosure with the other
Party, including the submission to the Securities and Commission (and any other
applicable regulatory or judicial authority) of an application for confidential
treatment of certain terms (which terms will be agreed upon by the Parties) of
this Agreement. Each Party will provide to the other for review a copy of any
proposed disclosure of this Agreement or its terms and any application for
confidential treatment prior to the time any such disclosure or application is
made, and the parties shall work together to mutually approve such disclosure or
application.
(c) If either Party is required to disclose Confidential Information
hereunder, but such disclosure is prohibited by confidentiality and
non-disclosure provisions contained in any agreement between a Party and any
third party such Party shall not be obligated to disclose such Confidential
Information; provided, however, that Party shall use commercially reasonable
efforts to secure a waiver from such third party and to make the disclosure
required hereunder.
19.4 Force Majeure. If either Party is unable to perform any of its obligations
under this Agreement due to an event wholly beyond the control of that Party,
including natural disaster, acts of God, actions or decrees of governmental
bodies, act of war, failure or discontinuance of the Internet or failure of
third party communications lines or networks, that Party will give written
notice to the other Party and will use commercially reasonable efforts to resume
performance of its obligations but will have no liability to the other Party for
failure to perform its obligations under this Agreement for so long as it is
unable to do so as a result of such event.
19.5 Compliance with Laws. In its performance of this Agreement, each Party will
comply in all material respects with all applicable laws, rules, regulations,
orders and other requirements, now or hereafter in effect, of governmental
authorities having jurisdiction over this Agreement, the XXX.xxx Site, or the
transactions contemplated herein, including compliance with export and import
control laws, applicable consumer protection, content labeling, country of
origin, health and safety laws, and privacy laws, and obtaining, at the
applicable Party's own expense, any and all approvals, licenses, business
registrations and/or permits required under the laws or regulations of such
governmental authority.
38
19.6 Insurance. Each Party will at its own expense obtain and maintain such
policy or policies of insurance as are required by law or as are commercially
reasonable for the transactions and business contemplated by this Agreement. In
addition, Licensee will obtain and maintain, with an insurer in good standing
and authorized to do business under the laws of the states where performance
shall occur, a comprehensive general liability policy, naming Licensor as an
additional insured, including contractual liability and products liability, with
broad form property damage and bodily injury (including personal injury)
coverage. The minimum limits for each shall be [*] per occurrence and [*] annual
aggregate. Such limits shall be adjusted by mutual agreement of the Parties from
time to time to reflect inflation and loss experience. Upon request from
Licensor, Licensee will furnish a certificate of insurance and such other
documentation relating to such policy as reasonably requested. Such certificate
of insurance shall provide that no change that would adversely affect Licensor
or cancellation of insurance shall be made without thirty (30) days prior notice
to Licensor.
19.7 Notices. Unless otherwise provided, all notices, consents or other
communications required or permitted to be given under this Agreement must be in
writing and shall be deemed to have been duly given (a) when delivered
personally, (b) three business days after being mailed by first class mail,
postage prepaid, or (c) one business day after being sent by a reputable
overnight delivery service, postage or delivery charges prepaid, to the Parties
at their respective addresses stated on the signature page of this Agreement.
Notices may also be given by electronic mail or facsimile and shall be effective
on the date transmitted if confirmed within 24 hours thereafter by a signed
original sent in the manner provided in the preceding sentence. Notices to
Licensee shall be sent to its address stated on the signature page of this
Agreement to the attention of the General Counsel, with a copy sent
simultaneously to the same address to the attention of its Chief Financial
Officer. Notices to TSA shall be sent to its address stated on the signature
page of this Agreement to the attention of the Chief Executive Officer, with a
copy sent simultaneously to the General Counsel. Notices to TSAMI shall be sent
to its address stated on the signature page of this Agreement to the attention
of the General Counsel. All notices to Licensor hereunder shall be sent to both
TSA and TSAMI. Any party may change its address for notice and the address to
which copies must be sent by giving notice of the new addresses to the other
parties in accordance with this Section 19.7, except that any such change of
address notice shall not be effective unless and until received.
19.8 Prohibition on Assignment. Neither party may assign any of its rights or
obligations under this Agreement without the prior written consent of the other
party, which consent may be withheld if, in the judgment of the other party,
such assignment would have an adverse effect on it. The licenses granted herein
may not be mortgaged or pledged by the applicable licensee without the prior
written consent of the applicable licensor.
19.9 Amendment. Except as otherwise provided herein, this Agreement may only be
amended, modified or supplemented by the Parties in writing and signed by
authorized officers of the Parties.
19.10 Waiver. Silence, acquiescence or inaction shall not be deemed a waiver of
any right. No waiver by a Party with respect to this Agreement will be effective
or enforceable against the other
39
Party unless in writing and signed by the other Party. Except as otherwise
expressly provided herein, no failure to exercise, delay in exercising, or
single or partial exercise of any right, power or remedy by a Party, and no
course of dealing between or among any of the Parties, will constitute a waiver
of, or shall preclude any other or further exercise of the same or any other
right, power or remedy.
19.11 Counterparts and Transmitted Copies. This Agreement may be executed in any
number of counterparts, each of which when executed and delivered will be deemed
an original, but all of which taken together will constitute but one and the
same instrument, and it will not be necessary in making proof of this Agreement
to produce or account for more than one original counterpart hereof. The Parties
acknowledge that Transmitted Copies of this Agreement will be equivalent to
original documents until such time (if any) as original documents are completely
executed and delivered. "Transmitted Copies" means copies that are reproduced or
transmitted via facsimile, or another process of complete and accurate
reproduction and transmission.
19.12 Entire Agreement. This Agreement, together with the Exhibits to this
Agreement, represents the entire understanding between the Parties with respect
to the subject matter hereof and supersedes all previous oral or written
communications or agreements, and all contemporaneous oral communications and
agreements, between the Parties and their respective Affiliates regarding such
subject matter, including the following agreements which are hereby terminated:
(a) E-Commerce Venture Agreement, dated May 7, 1999, by and between GSI and TSA,
(b) Amendment No. 1 to the E-Commerce Venture Agreement, dated May 14, 1999, by
and between GSI and TSA, (c) License Agreement, dated May 14, 1999, by and among
TSA, TSAMI and XXX.xxx, (d) E-Commerce Services Agreement, dated May 14, 1999,
by and between GSI and XXX.xxx, (e) E-Commerce Agreement, dated May 14, 1999, by
and between TSA and XXX.xxx, and (f) Agreement, dated May 14, 1999, by and
between TSA and GSI. Notwithstanding the foregoing, the indemnification rights
and obligations of the Parties pursuant to the foregoing agreements with respect
to events occurring on or before the Effective Date shall survive the execution
and delivery of this Agreement.
19.13 Severability. In the event that any part or portion of this Agreement
shall be deemed to be invalid or illegal, then such invalid or illegal portion
shall, so far as possible, not affect the validity or legality of the remainder
of this Agreement. Further, the Parties agree that they shall attempt to arrive
at a modification of any illegal or invalid part so as to render the same legal
and valid and within the keeping of the original tenor and spirit of the
Agreement.
19.14 CHOICE OF LAW. THIS AGREEMENT WILL BE INTERPRETED, CONSTRUED AND ENFORCED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CHOICE OF LAW RULES.
19.15 Headings. The headings of sections and subsections of this Agreement are
for convenience of reference only and are not intended to restrict, affect or
otherwise influence the interpretation or construction of any provision of this
Agreement.
40
19.16 References. All words used in this Agreement shall be construed to be of
such number and gender as the context requires or permits. Unless a particular
context clearly provides otherwise (i) the words "hereof" and "hereunder" and
similar references refer to this Agreement in its entirety and not to any
specific section or subsection hereof, and (ii) the word "including" shall mean
including but not limited to.
19.17 Construction. The Parties agree that any rule of construction to the
effect that ambiguities are to be resolved against the drafting party shall not
be applied in the construction or interpretation of this Agreement or any other
agreements or documents delivered in connection with the transactions
contemplated by this Agreement.
19.18 Waiver of Jury Trial. Each Party hereby knowingly, voluntarily,
intentionally and irrevocably waives such right as any Party may have to a jury
trial in every jurisdiction in any action, proceeding or counterclaim brought by
either of the Parties hereto and/or their respective Affiliates in respect of
any matter arising out of or in connection with this Agreement (including any
action to cancel or rescind this Agreement, and any claims or defenses asserting
that this Agreement was fraudulently induced or otherwise void or voidable).
19.19 Further Documents. Each Party shall, upon request, make, execute and
deliver such documents as shall be reasonably necessary to take such action as
may be reasonably requested to fully implement and carry out the purposes of
this Agreement.
19.20 Binding Effect. Subject to Section 19.8, this Agreement, including all
covenants, agreements, representations, warranties and indemnifications set
forth herein, will be binding on and enforceable by the Parties and their
respective Affiliates and permitted assigns, including any trustee appointed
pursuant to Chapters 7 or 11 of the Bankruptcy Code.
19.21 Taxes on Agreement. Each Party shall pay any stamp duty or other tax or
duty applicable to such Party which is imposed on such Party in connection with
this Agreement.
19.22 Evolution. The Parties acknowledge that e-commerce, the Internet and
associated technologies and ways of doing business are evolving rapidly, and as
a result, that the form and content of this Agreement as of the Effective Date,
may not be optimally suited to either the relationship of the Parties or
prevailing conditions throughout the entire Term of the Agreement. Accordingly,
the Parties agree to confer and discuss in good faith either Party's reasonably
perceived need to modify this Agreement in order: (a) to adjust to prevailing or
anticipated conditions, (b) to provide a more positive customer experience on
the XXX.xxx Site; (c) to maximize customers and revenues from or through the
XXX.xxx Site; or (d) to maximize return on investment to all Parties.
Notwithstanding the foregoing, no modification to this Agreement shall be
effective except pursuant to Section 19.9 hereof.
(***************)
SIGNATURES APPEAR FOLLOWING PAGE
41
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
by their duly authorized representatives as of the Effective Date.
Global Sports Interactive, Inc. The Sports Authority, Inc.
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxx Xxxxxx
--------------------- ----------------------------
Name: Xxxxxxx X. Xxxxx Name:
Title: President Title:
Address: 0000 Xxxxx Xxxxxx Address: 0000 Xxxxx Xxxxx Xxxx 0
Xxxx xx Xxxxxxx, XX 00000 Xxxx Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
The Sports Authority Michigan, Inc.
By: /s/ Xxxxxx Xxxxxx
--------------------------
Name:
Title:
Address: 0000 Xxxxx Xxxxx Xxxx 0
Xxxx Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Acknowledged and Agreed to With
Respect to Sections 2.6 [*]:
Global Sports, Inc.
By: /s/ Xxxxxxx X. Xxxxx
---------------------
Name: Xxxxxxx X. Xxxxx
Title: President and Chief Executive Officer
Address: 0000 Xxxxx Xxxxxx
Xxxx xx Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
42
FINAL
EXHIBIT A
LICENSE GUIDELINES AND RESTRICTIONS
-----------------------------------
A. General
-------
Unless a Vice President of Licensor agrees in advance, the following guidelines
and restrictions apply to Licensee and each company or other entity that may be
authorized under the License and E-Commerce Agreement dated July 6, 2001 (the
"LECA") to use certain of the "Marks" and "Names" as described in the LECA.
A consistent corporate image or identity is one of Licensor's strongest assets.
It provides immediate recognition and creates goodwill for Licensor, the "TSA
Stores" (as defined in the LECA) and Licensor's goods and services. The purpose
of this guide is to ensure a clear and consistent presentation of the Marks and
Names to Licensor's and Licensee's customers.
Licensee shall not alter the Marks from the form or formats used by Licensor or
received from Licensor, unless such alterations are approved in advance by
Licensor as set forth in Article 2.2(b) of the LECA. For example, the addition
of hyphens or spaces to a word Xxxx, creation of unauthorized acronyms, or
alteration of any design Marks or logos could weaken public recognition of the
Marks and damage their strength as a brand designation.
B. The Design xxxx THE SPORTS AUTHORITY & Design
---------------------------------------------
[Insert examples, with width to height ratios, labels for PMS colors, etc.]
C. The Design xxxx THE SPORTS XXXXXXXXX.XXX & Design
-------------------------------------------------
[Insert examples, with width to height ratios, labels for PMS colors, etc.]
D. Use.
---
1) Unacceptable Uses of the Marks.
------------------------------
Do not extend the top, bottom or center bars of the THE SPORTS
AUTHORITY & Design xxxx to extend beyond the ratios set forth above.
Do not substitute designs or objects for letters in any Xxxx.
Do not use old design versions of the Marks.
Do not combine any Xxxx with any other xxxx or element.
Do not use any other xxxx confusingly similar to the Marks.
Do not rotate or tilt any Xxxx at an angle.
Do not pluralize any Xxxx. Do not use any design Xxxx in a sentence.
Do not add graphic elements to any design Xxxx.
Do not create repeating patterns of the Marks.
Do not place the Marks in a containing shape.
Do not change the horizontal or vertical scale of any design Xxxx.
Do not use any Xxxx in the possessive.
Do not print the design Marks or logos in any color other than as
specified by Licensor.
Do not reverse the design Marks or logos out of a background with
insufficient contrast.
Do not reverse the design Marks or logos out of a photograph.
Do not reverse the design Marks or logos out of patterned backgrounds.
1
2) Clear Space. A minimum clear space on all sides of any Xxxx shall be
-----------
kept free of other visual elements. The minimum clear space shall be
appropriate under the circumstances under which such Xxxx is being
used.
3) Staging. Staging involves proper placement, scale, and proportion of
-------
any Xxxx and how it aligns with typography and other elements.
Licensee shall always surround the subject Xxxx by the minimum
preferred clear space as provided in Section 2 above. Licensee shall
avoid staging any Xxxx at the edge of a page. Licensee shall not place
any Xxxx so that it "bleeds" off the edge of materials.
4) Presentation with Third-Party Trademarks. When presented with any
----------------------------------------
third party trademark, the Marks must be of at least equal size in
comparison to such third party trademark. Licensee shall not print any
Xxxx in black if the third party trademark appears in color.
Notwithstanding the foregoing, Licensor acknowledges and agrees that
certain advertising and marketing arrangements entered into with
Advertising and Marketing Partners of Licensee hereunder, (a) the
XXX.xxx Site may be "framed" by certain of the Advertising and
Marketing Partners of Licensee which frame will include trademarks or
service marks of such Advertising and Marketing Partners of Licensee,
and (b) certain Web Sites of the Advertising and Marketing Partners of
Licensee may include logos, marks, trade names, trade marks, offers,
and related material of third parties, in either case which are larger
than the Marks or place more emphasis on such other logos, marks,
trade names, trade marks, offers, and related material over the Marks.
5) Design Marks or Logos. Except as provided in Article 2.2(b) of the
---------------------
LECA, Licensee shall always reproduce each logo or design exactly as
specified by Licensor using approved original reproduction art or
digital files available from Licensor's Advertising and Marketing
Department.
The above usage rules are "best practices." When circumstances beyond Licensee's
control prevent full compliance with any given rule, Licensee shall submit the
proposed deviation to Licensor for prior review and approval as set forth in
Section 2.2(b).
E. Corporate Names versus Marks. Licensor's proper corporate names are:
----------------------------
The Sports Authority, Inc.,
and
The Sports Authority Michigan, Inc.
When referring to either company in any format be sure to use the full corporate
name, without dropping the article "The" or the comma (and be sure to place the
comma in the proper place). Both names are proper nouns, like "Xxxxx" or
"Lincoln." In contrast, the Marks are adjectives and should not be used as
nouns. For example, one would refer to THE SPORTS AUTHORITY brand athletic bags.
The Xxxx should be used as an adjective and not as a noun, and it should appear
in all capital letters to set it off from other printed matter. Finally,
although either corporate name can be used in the possessive form (e.g., "The
Sports Authority, Inc.'s"), the Marks should not be used in the possessive form.
X. Xxxxx - Notices
---------------
As soon as a given Xxxx is registered with respect to certain goods or certain
services in the U.S., Canada and/or other key markets as determined by Licensor,
Licensor may inform Licensee and Licensee shall commence marking all "Materials"
(as defined in the LECA) subject to such registration(s) with one or more of the
following phrases, as determined by the application and available space, taking
care to use the second phrase whenever possible:
2
"Registered Trademark"
[In English or such other languages as instructed by Licensor]
or
"(R) Registered Trademark of The Sports Authority, Inc. and/or The Sports
Authority Michigan, Inc., used under license."
[In English or such other languages as instructed by Licensor]
or
"(R) The Sports Authority Michigan, Inc."
or
"(R)"
The registration notices should be placed immediately adjacent to any Xxxx,
logo, slogan or other Materials incorporating registered trademarks or service
marks wherever possible. Such notices advise third parties of the existence of
the subject registration(s), and warn them to refrain from adopting or using an
identical or confusingly similar xxxx.
G. Content of XXX.xxx Site
-----------------------
1. Each party shall notify the other of all errors, omissions, and/or
inaccuracies in the TSA Content, as developed, used or authorized by
Licensee, within forty-eight (48) hours after it becomes aware
thereof.
2. If Licensee provides such notice, it shall specify to Licensor what
action, if any, it has taken to correct the error, omission and/or
inaccuracy.
3. If Licensor provides such a notice, or receives such notice, it may
specify reasonable actions to be taken by Licensee to correct the
error, omission and/or inaccuracy or resubmit such content.
H. Copyright Notices
-----------------
1. Upon request from Licensor, Licensee shall place an appropriate
copyright notice to be furnished by Licensor on all pages containing
Non-Shopping Content.
2. Licensee and Licensor shall mutually develop the procedures for
placing any third party copyright notice on any page containing
Non-Shopping Content.
3
Exhibit B - The Xxxxx
XXXX GOODS/SERVICES CL SER. NO. REG. NO.
AUTHORITY retail store services in the field of sporting 42 74-695,504 2,074,354
goods and equipment, apparel, footwear, headgear
and related goods and services
AUTHORITY apparel, namely, rainwear, jackets, coats, 25 366,111 1,245,417
suits, slacks and vests
AUTOGRAPH AUTHORITY computerized on-line retail store services 35 75-711,996 2,335,979
featuring collectibles, trading cards and 42
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 of sporting 42 74-695,510 2,074,358
goods and equipment, apparel, footwear, headgear
and related goods and services
EXERCISE AUTHORITY retail store services in the field of sporting 42 74-695,506 2,082,095
goods and equipment, apparel, footwear, headgear
and related goods and services
FISHING AUTHORITY retail store services in the field of sporting 42 74-695,507 2,074,356
goods and equipment, apparel, footwear, headgear
and related goods and services
FITNESS AUTHORITY retail store services in the field of sporting 00 00-000-000 2,079,864
goods and equipment, apparel, footwear, headgear
and related goods and services
FOOTWEAR AUTHORITY retail store services in the field of sporting 42 74-695,653 2,082,096
goods and equipment, apparel, footwear, headgear
and related goods and services
GET OUT AND PLAY retail outlets featuring clothing, footwear, 35 76-124,181
outerwear and headgear; advertising for others;
sales promotion for others
GOLF AUTHORITY retail store services in the field of sporting 42 74-695,512 2,074,359
goods and equipment, apparel, footwear, headgear
and related goods and services
HOCKEY AUTHORITY retail store services in the field of sporting 42 74-695,651 2,079,866
goods and equipment, apparel, footwear, headgear
and related goods and services
HOT NEW NOW retail store services featuring apparel, 35 76-010,291
footwear, headgear, sporting goods and
equipment, gifts and related goods and services;
computerized retail store services featuring
apparel, footwear, headgear, sporting goods and
equipment, gifts and related goods and services;
cooperative advertising services
HUNTING AUTHORITY retail store services in the field of sporting 42 74-695,508 2,074,357
goods and equipment, apparel, footwear, headgear
and related goods and services
IN-LINE SKATE AUTHORITY retail store services in the field of sporting 42 74-695,502 2,074,353
goods and equipment, apparel, footwear, headgear
and related goods and services
1
Exhibit B - The Xxxxx
XXXX GOODS/SERVICES CL SER. NO. REG. NO.
MAIL AUTHORITY telephone answering, photocopying and business 35 75-167,549 2,284,347
management services (35); postal services, 42
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 of sporting 42 74-695,655 2,079,867
goods and equipment, apparel, footwear, headgear
and related goods and services
MUSCLE AUTHORITY magazines and newsletters pertaining to exercise 16 75-618,602 2,335,185
and fitness
OUTDOOR AUTHORITY retail store services in the field of sporting 35 74-695,514
goods and equipment, apparel, footwear, headgear
and related goods
OUTERWEAR AUTHORITY retail store services in the field of sporting 42 74-695,509 2,076,213
goods and equipment, apparel, footwear, headgear
and related goods and services
PANTS AUTHORITY retail outlets featuring clothing, footwear, 35 75-509,313
outerwear and headgear
PARTS AUTHORITY retail outlets featuring sporting goods and 42 75-076,697
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 fields of fitness, 35 75-277,570 2,176,490
sporting goods and equipment, apparel, footwear, 42
headgear and related goods and services;
cooperative advertising (35); computer services,
namely providing information on fitness,
sporting goods and equipment, apparel, footwear,
headgear and related goods and services by means
of a global computer information network in
class 42
RUNNING AUTHORITY retail store services in the field of sporting 42 74-695,654 2,082,097
goods and equipment, apparel, footwear, headgear
and related goods and services
SHOE & APPAREL AUTHORITY retail store services in the field of sporting 42 74-695,501 2,074,352
goods and equipment, apparel, footwear, headgear
and related goods and services
SPORTS AUTHORITY FOOD, restaurant services 42 74-256,187 2,074,782
SPIRITS AND SPORTS and
Design
2
Exhibit B - The Xxxxx
XXXX GOODS/SERVICES CL SER. NO. REG. NO.
XXXXXXXXXXXXXXX.XXX computerized on-line retail store services 35 75-636,136
featuring clothing, footwear, outerwear and 42
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)
TEAM SPORTS AUTHORITY retail store services in the field of sporting 42 74-695,505 2,074,355
goods and equipment, apparel, footwear, headgear
and related goods and services in Class 42
TENNIS AUTHORITY retail store services in the field of sporting 42 74-695,511 2,076,214
goods and equipment, apparel, footwear, headgear
and related goods and services
THE SPORTS AUTHORITY retail store services featuring sporting 42 73-736,556 1,527,526
equipment and clothing
THE AFFILIATE AUTHORITY promoting the goods and services of others 35 76-176,168
through partnership marketing programs,
providing access to a partnership marketing
network of merchants and other businesses; and
computerized on line retail store services
featuring clothing, footwear, outerwear and
headgear.
THE AUTHORITY ON rental of sporting goods, including protective 41 75-136,153 2,101,178
SPORTING GOODS clothing and equipment; retail store services in 42
the fields of fitness, sporting goods and equipment,
apparel, footwear, headgear and related goods.
THE BICYCLE AUTHORITY repairs and maintenance of bicycles in 37 74-471,949 2,003,381
International Class 37; retail store services in 42
the field of bicycles and related accessories in
International Class 42
THE CLUB AUTHORITY management of recreation and fitness clubs of 35 74-708,805 1,999,520
others; and business consulting services
relating to health, recreation and fitness clubs
THE KNIFE AUTHORITY retail store services featuring sale of sporting 42 74-596,250 1,963,911
goods and equipment, footwear and clothing
THE LEAGUE AUTHORITY retail outlets featuring clothing, footwear, 35 76-054,340
outerwear and headgear; advertising for others;
sales promotion for others.
THE LOW PRICE AUTHORITY retail store services comprising sale of 42 74-595,324 1,937,000
sporting goods and equipment, footwear and
clothing
THE OUTLET AUTHORITY retail outlets featuring clothing, footwear, 35 76-176,169
outerwear and headgear; advertising for others;
sales promotion for others.
THE SHOE AUTHORITY retail store services in the field of sporting 42 74-622,104
goods and equipment, apparel, footwear and
related products and accessories
3
Exhibit B - The Xxxxx
XXXX GOODS/SERVICES CL SER. NO. REG. NO.
THE SKI AUTHORITY retail store services featuring ski equipment 42 74-116,271 1,688,221
and clothing
THE SPORTS AUTHORITY ladies apparel, namely shirts, and mens apparel, 25 74-362,909 1,821,430
namely hats, visors, pants, shirts, shorts and
swim trunks
THE SPORTS AUTHORITY athletic tape and pre-wrap; balls, bats and 28 75-076,695
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 tennis, badminton, squash and racquetball;
toy figures, inflatable ride-on toys, plush
toys, and water-squirting toys; wax for skis.
THE SPORTS AUTHORITY for computer services, namely interactive 42 75-076,694 2,102,208
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 and books in 16 75-076,675 2,071,449
the fields of sports, exercise, fitness and 18
recreation; clip boards; printed forms; printed 24
matter, namely art pictures, art prints, bags 25
for merchandise packaging, calendars, gift 26
certificates, illustrations, price tags, and 35
magazines in the fields of sports, exercise, 36
fitness and recreation; score cards; stationery.
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 stringing and re-gripping racquetball, squash 37 75-501,083 2,274,172
and tennis racquets, sizing and drilling bowling 39
balls, line winding for fishing reels, 40
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
THE SPORTS AUTHORITY & retail store services featuring sporting 42 73-736,555 1,529,035
Design equipment and clothing
THE SPORTS AUTHORITY DIRECT electronic retailing services via a global 35 76-133,396
computer network, direct mail advertising and
mail order services, all in the fields of
sporting goods and equipment, apparel, footwear,
headgear and related goods and services
4
Exhibit B - The Xxxxx
XXXX GOODS/SERVICES CL SER. NO. REG. NO.
THE SPORTS AUTHORITY electronic retailing services via a global 35 76-133,997
DIRECT YOUR 24/7 SPORTS computer network, direct mail advertising and
STORE mail order services, all in the fields of
sporting goods and equipment, apparel, footwear,
headgear and related goods and services
XXXXXXXXXXXXXXXXXX.XXX computerized on-line retail store services 35 75-636,870
featuring clothing, footwear, outerwear and 42
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 shorts, pants, 25 75-925,065
shirts, hats, caps, visors, hosiery and 28
outerwear (25); balls, bats and gloves for 35
games, protective guards and paddings for 42
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 ONLINE AUTHORITY retail store services featuring apparel, 35 76-083,584
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
YOUR SUMMER AUTHORITY retail store services featuring apparel, 35 76-083,583
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
5
Exhibit C - The Names
Domain Name Reg. Date Registrar Pointed At
XXX-XXXXXXXXXXXXXXX.XXX 11/1/99 Network Solutions
XXXX-XXXXXXXXXXXXXXX.XXX 11/1/99 Network Solutions
XXXXXX-XXXXXXXXXXXXXXX.XXX 11/1/99 Network Solutions
XXXXXXXXXXXX.XXX 8/17/98 Network Solutions
XXXXXXXXXXXX.XXX 12/4/98 Network Solutions
XXXXXXXXXXXX.XXX 12/4/98 Network Solutions
XXXXXXXXXXXXXXX.XXX 7/27/95 Network Solutions
XXXXXX-XXXXXXXXX.XXX 5/15/00 Network Solutions
XXXXXXXXXXXXXXX.XXX 12/4/98 Network Solutions
XXXXXX-XXXXXXXXX.XXX 12/4/98 Network Solutions
XXXXXXXXXXXXXXX.XXX 12/4/98 Network Solutions
XXXXXX-XXXXXXXXX.XXX 12/4/98 Network Solutions
XXXXXXXXXXXXXXX.XXX 8/17/98 Network Solutions
XXXXXXXXXXXXXXX.XXX 12/4/98 Network Solutions
XXXXXXXXXXXXXXX.XXX 12/4/98 Network Solutions
XXXXXXXXXXXXXXXXXX.XXX 9/29/97 Network Solutions
XXXXXXXXXXXXXXXXXX.XXX 12/4/98 Network Solutions
XXXXXXXXXXXXXXXXXX.XXX 9/29/97 Network Solutions
XXXXXXXXXXXXXXXXXX.XXX Network Solutions
XXXXXXXXXXXXXXXX.XXX Network Solutions
XXXXXXXXXXXXXXXXXX.XXX Network Solutions
EXHIBIT D
---------
Non-Shopping Features
(a) Employment Opportunities - At the TSA Stores or at Licensor's offices.
Licensee shall furnish technology to allow Licensor to update as frequently
as Licensor desires.
(b) Public Financial Information SEC Filings and Annual Reports - SEC filings
shall be provided by a link so long as the government (or Licensor)
makes such filings available at no cost. Both SEC filings and annual
reports shall be provided only if available in portable document
format; in the alternative, Licensee shall provide such information to
Customers as received from Licensor's investor relations or legal
departments, in a form and format in as agreed upon by the Parties.
(c) TSA Store Locator - to be updated as such information changes and is
received from Licensor.
(d) Licensor's Corporate Information - to be updated as such information
changes and is received from Licensor.
(e) Licensor's Community Programs - to be updated as such information changes
and is received from Licensor.
(f) Press Releases - Licensee shall furnish technology to allow Licensor to
update and post Licensor's Press Releases on the XXX.xxx Site directly.
Licensor shall be able to post its press releases on the XXX.xxx Site as it
desires. Unless the Parties otherwise agree to the contrary, this feature
and such press releases shall deal with Licensor and the TSA Stores, and
not with Licensee or the XXX.xxx Site.
(g) "Contact Us" Section for TSA Stores (rather than XXX.xxx Site) to be
updated as such information changes and is received from Licensor.
EXHIBIT E
Royalties
1. Definitions.
------------
A. "Net Revenues" means Net Revenues, as defined in the License and
E-Commerce Agreement (the "LECA").
B. "Licensee-Generated Net Revenues" means Net Revenues described in
Section 11.2(a)(i)(B) of the LECA.
C. "Licensor-Generated Net Revenues" means all Net Revenues other than
Licensee-Generated Net Revenues.
D. "Deemed Licensee-Generated Net Revenues" means [*]
E. "Deemed Licensor-Generated Net Revenues" means Net Revenues, less
Deemed Licensee-Generated Net Revenues.
[*]
G. "Year" means calendar year unless otherwise indicated.
2. Royalty on Deemed Licensee-Generated Net Revenues. The royalty on Deemed
-------------------------------------------------
Licensee-Generated Net Revenues shall be [*] for each year during the term of
the LECA.
3. Royalty Rates for 2001 and 2002.
-------------------------------
A. Royalty for 2001. The royalty on Deemed Licensor-Generated Net Revenues
----------------
shall be at the rate of [*] thereof for 2001 [*] provided that if [*] the
royalty on Deemed Licensor-Generated Net Revenues for 2001 [*] shall be at the
rate of [*] unless [*] in which case such royalty shall be adjusted to the
fractional percentage between [*]
B. Royalty for 2002. The royalty on Deemed Licensor-Generated Net Revenues
----------------
shall be at the rate of [*] thereof for 2002.
4. Minimum and Maximum Royalties on Deemed Licensor-Generated Net Revenues for
---------------------------------------------------------------------------
years after 2002. The royalty on Deemed Licensor-Generated Net Revenues for each
----------------
year shall never be lower than the minimum royalty set forth below and shall
never be higher than the maximum royalty set forth below.
A. Minimum Royalty. The minimum royalty on Deemed Licensor-Generated Net
---------------
Revenues shall be at the rate of [*] thereof for 2003 and each year thereafter
during the Term of the LECA.
B. Maximum Royalty. The maximum royalty on Deemed Licensor-Generated Net
---------------
Revenues shall be at the rate of [*] thereof for each year during the Term of
the LECA.
5. Calculation of Royalties on Deemed Licensor-Generated Net Revenues for
----------------------------------------------------------------------
years after 2002.
----------------
1
A. Calculation of Royalty on Deemed Licensor Generated Net Revenue for
-------------------------------------------------------------------
2003. Subject to the minimum royalties and maximum royalties set forth in
----
Section 4 of this Exhibit E, the royalty on Deemed Licensor-Generated Net
Revenues for 2003 shall be equal the lesser of (i) the amount obtained by
multiplying (a) [*] times (b) the percentage obtained by multiplying (1) [*]
times (2) a fraction, the numerator of which is [*] and the denominator of which
is [*] and (ii) the amount obtained by adding (a) the amount obtained by
multiplying (1) [*] times (2) [*] plus (b) [*]
B. Calculation of Royalty on Deemed Licensor-Generated Net Revenue for
-------------------------------------------------------------------
years after 2003. Subject to the minimum royalties and maximum royalties set
----------------
forth in Section 4 of this Exhibit E, the royalty on Deemed Licensor-Generated
Net Revenues for each year beginning with 2004 shall be at the rate equal to [*]
multiplied by a fraction, the numerator of which is [*] and the denominator of
which is [*] provided, that if the [*]
6. Additional Royalties on Kiosk Sales. For each period, with respect to that
-----------------------------------
portion of Net Revenues which result from orders placed from kiosks in TSA
Stores ("Kiosk Net Revenues"), in lieu of the royalties provided for above,
Licensee shall pay a royalty as calculated below. The royalty attributed to the
Kiosk Net Revenues shall be [*]
7. Interim Royalty Payments; Year-End Adjustments. Royalty payments made in
----------------------------------------------
respect of each of the first three quarters during each year shall be at the
higher of the royalty rate paid for the prior year or the minimum rate in effect
for the year for which they are being paid. Royalty payments made in respect of
the fourth quarter of each year shall be adjusted as necessary (including a
payment from Licensor to Licensee, if necessary) such that the total royalty
paid for the year equals the amount as calculated above.
8. Fractional Years. The royalty rate for the partial year at the end of the
----------------
term of the LECA will be based on a proration of all dollar amounts.
2
Exhibit F
Three Tier Approval Process for Advertising
-------------------------------------------
and Promoting the XXX.xxx Site
------------------------------
Except with respect to any proposed sublicense, newly coined trademark or
service xxxx, or proposed alterations of the Marks, all of which shall be
governed first by Article 2 of the License and E-Commerce Agreement, there shall
be three tiers of online and/or offline promotional or advertising agreements or
arrangements that Licensee may enter into with Advertising and Marketing
Partners of Licensee for the XXX.xxx Site, and corresponding three tier approval
process.
A) Tier 1. Licensee may enter into these types of agreements or
------
arrangements without the prior review and approval of Licensor, provided that,
[*] This tier applies primarily to [*] Tier 1 agreements or arrangements:
(1) [*]
(2) [*]
(3) [*]; and
(4) [*]
B) Tier 2. Licensee may enter into these types of agreements or
------
arrangements only with the prior review and approval of Licensor's [*] or other
authorized officer of Licensor. Tier 2 agreements or arrangements:
(1) [*]
(2) [*]
(3) [*]and
(4) [*]
C. Tier 3. Licensee may enter into these types of agreements or
------
arrangements only with the prior review and approval of [*] Tier 3 agreements or
arrangements:
(1) [*]
(2) [*] or
(3) [*]
[*]
1
Exhibit G
Functionality and Features
--------------------------
Shop by Brand
Search by Keyword or Online Item Number
Browse Category/Family/Item
The Outlet Authority
Gift Shop
Professional and Collegiate Licensed Goods Shops
Group Sales
Product Presentation
Related Products
"Info Zone" Tips & Guides
Product Comparison
Shopping Cart
Online Checkout with Secure Ordering
Email Notification of Orders
Order Tracking
User Login/Registration
User Profile Management Reporting Tools for Site Performance, Sales and Traffic
24 /7 Real Time Customer Service Via Toll-Free Telephone
Affiliate Program
Gift Giving Functionality (including Gift Certificates)
Order Processing (including tax and shipping costs configurators)
Discount entry
Shipping Information
Non-shopping Content (as described in Exhibit D)
"About Us"
Privacy Policy
1
EXHIBIT H
[*]
[*]
1
EXHIBIT I
Order Processing and Fulfillment
--------------------------------
. Order Receipt, Confirmation and Processing
. Establishment of Terms and Conditions of Sale of Merchandise
. Credit Card Authorization and Processing
. Inventory, Receipt, Control and Management
. Pick, Pack and Ship Orders
. Shipping Management and Tracking
. Returns Processing
1
Exhibit J
Web Site Integration and Promotional and Advertising Requirements
-----------------------------------------------------------------
Licensor shall comply with the following requirements at a rate of no less than
[*] The foregoing compliance shall be measured quarterly during the Term.
Notwithstanding the foregoing compliance requirements, no quantitative
requirements shall apply to (i) individual store-specific promotional events and
advertising, such as grand openings, promotional appearances and exhibitions,
(ii) Licensor's collection of customer e-mail addresses, (iii) Licensor's
efforts to stuff shopping bag inserts, (iv) directional billboards, and (v)
vendor advertisements.
I. Print and Email Integration
---------------------------
1. The 800 number of the XXX.xxx Site shall be promoted in all Licensor
circulars in conjunction with the URL integration, unless Licensee requests
otherwise. The Parties agree that the 800 number of direct mail catalogs
distributed by or on behalf of Licensor (each a "Catalog") may be promoted
in all Licensor circulars in addition to the 800 number for the XXX.xxx
Site; so long as (i) the promotion of the Catalog 800# would not cause
confusion for a reasonable customer viewing such circular, and (ii) the
promotion of the Catalog 800# is not done in conjunction with the URL
integration required hereunder.
2. Subject to acceptance of the TSA credit card by Licensee at the XXX.xxx
Site: (a) at Licensee's expense and at Licensee's option, Licensor shall
provide exclusive (except as to Licensor) credit card inserts promoting the
XXX.xxx Site no less than one time each calendar quarter; and (b) each TSA
credit card invoice and any other inserts where the subject merchandise or
service is available at the XXX.xxx Site shall prominently include the shop
online message. Nothing herein shall require Licensor to make the TSA
credit card available for purchases on the XXX.xxx Site.
3. In all circulars containing products available both on the XXX.xxx Site and
in TSA Stores, Licensor shall place an "Online Item" icon and product
identification number adjacent to each applicable product, which shall be
no less proportionate in size to the applicable products as compared to the
size of the icons and product numbers relative to the products as depicted
in Example J1, attached.
----------
4. With the exception of clearance ads, and single market run of press ("ROP")
ads that Licensor runs in non-major (as Licensor reasonably determines)
markets, all circulars and ROP ads shall
2
include the shop online message. The shop online message in circulars shall
appear: (a) in a 1-inch high band that runs across the entire length of the
front cover of the circular; (b) a 1/2-inch band that runs across the
entire length of the back cover of the circular, unless such circular
provides additional placements for the promotion of the XXX.xxx Site; and
(c) a 1/2-inch high band in certain footers within the circular. See
Example J2. Blank figures are specified on Exhibit J1, attached. Clearance
---------- ----------
ads shall include the shop online message to the extent that Licensee is
able to, and does, (i) accommodate general department discounts that vary
by department, (ii) show high-low pricing with the proper sale terminology,
(iii) react with a turnaround time quick enough that it does not delay
Licensor's schedule, and (iv) handle "buy this, get that" situations.
Single-market ROP ads shall include the shop online message at Licensee's
option, upon notification to Licensor within 24 hours of Licensor's notice
of such ad to Licensee. See Example J3.
----------
5. The shop online message in ROP ads shall be proportionate in size to the
shop online message in the circulars and, unless Licensee elects otherwise,
shall include the 800 number for the XXX.xxx Site, as depicted in Example
-------
J3.
--
6. All circulars shall include, in addition to the shop online message and
"Online Item" icons, at least one 2x7-inch inside editorial placement (or
equivalent, based upon page size and layout, location to be determined by
Licensor) for the promotion of the XXX.xxx Site. Subject to Licensor's
approval under Exhibit F, this placement may promote Advertising and
---------
Marketing Partners of Licensee who are contemporaneously promoting the
XXX.xxx Site. If the placement occurs on the back cover then the 1/2-inch
band discussed above shall not be included on the back cover. See Example
-------
J1.
--
7. Subject to the "Note" which follows and Exhibit J1, each direct mail post
----------
card or booklet distributed by Licensor shall include: (a) a 3/4-inch high
shop online message band that runs across the entire length of the front
page; (b) a 1x 3-inch space on the back page of a booklet which includes a
corresponding coupon/promotion; (c)1/4-inch inside footers as specified in
Exhibit J1; and (d) "Online Item" icons in the same manner as the
----------
circulars. In the event the size of Licensor's direct mail post cards or
booklets change from that depicted in the attached examples, Licensor shall
promote the XXX.xxx Site in a proportionate manner as provided for herein.
Note: Licensee's advertising herein may be omitted if Licensee is not
participating in the subject direct
3
mail campaign, post card or booklet, provided Licensee receives prior
notice and agrees to the exclusion.
8. Licensor's interactive online and email advertisements shall each provide
for direct links to the applicable portion(s) of the XXX.xxx Site. For
example, Licensor's logo or name shall provide a hot link directly to the
XXX.xxx Site homepage, product images shall provide a hot link directly to
corresponding products on the XXX.xxx Site, and product category titles
shall provide a hot link directly to the corresponding product category on
the XXX.xxx Site. Such interactive advertising shall not include a link to
any other web site that is an e-commerce business selling Sporting Goods,
but with notice to Licensee, may include links to any web site that is not
an e-commerce business selling Sporting Goods.
9. No more than once each quarter, upon Licensee's request and at its expense,
Licensor shall use commercially reasonable efforts for a period of at least
four weeks to collect and deliver to Licensee email addresses from
customers of the TSA Stores. Licensor shall standardize the quarterly email
collection requirement within the TSA Stores and provide incentives to
Licensor's employees for acquiring email addresses (incentives at
Licensee's expense and subject to Licensee's prior written approval).
II. Integration Within TSA Stores
-----------------------------
1. Specific signs shall be located within each TSA Store for the promotion of
the XXX.xxx Site, and/or for the approved promotion of the Advertising and
Marketing Partners of Licensee, including no less than: (a) a single
4x20-foot permanent banner in each TSA Store (at Licensee's expense); (b)
two event signs (per Licensor's campaigns) in each TSA Store (at Licensor's
expense); (c) four 22x28-inch signs positioned throughout each TSA Store
(at Licensor's expense); and (d) two window decals as depicted in Example
-------
J4 (at Licensor's expense). Licensee shall develop the creative content of
--
item (a). Licensor shall develop the creative content of items (b), (c) and
(d). All creative content shall be subject to the mutual approval of the
Parties.
2. Employee uniforms in the TSA Stores shall include the URL (at Licensor's
expense).
3. Shopping bags in the TSA Stores shall include the URL (at Licensor's
expense). The size of the URL on such shopping bags shall be no less
proportionate in size relative to the size of the TSA logo as is currently
provided in Example J4 item 8. The URL for the shopping bags may include
either, at Licensee's option (i) "shop on-
4
line at xxx.xxxxxxxxxxxxxxxxxx.xxx" or (ii) "xxx.xxxxxxxxxxxxxxxxxx.xxx".
4. At Licensee's request and expense, with creative content developed by
Licensee but subject to Licensor's approval, Licensor shall use
commercially reasonable efforts to stuff shopping bag inserts at checkouts
in the TSA Stores.
5. When Licensor's in-store audio broadcast message system is in use within a
given TSA Store, Licensor, shall, at its expense, prepare and insert two 15
second messages promoting the XXX.xxx Site per program rotation (creative
messages shall be subject to mutual approval).
III. Radio, Television, Billboards, Sponsorships
-------------------------------------------
1. Licensor's billboards and sports sponsorship signs shall integrate the URL
and/or the shop online message, unless inappropriate under the
circumstances. Directional billboards may exclude the online reference, at
Licensor's option.
2. Each of Licensor's out of store 60 second radio advertisements shall
include a five (5) second tag at the end containing the shop online
message, except that Licensor may exclude store-specific promotion events,
such as grand opening and promotional appearances.
3. Each of Licensor's out of store 30 second television advertisements shall
include a three (3) second (or a five (5) second message within each 60
second ad) visual message at the end containing the shop online message.
IV. Vendors
-------
1. In any vendor print advertisement that "tags" Licensor or directs customers
to the TSA Stores, and provided that the applicable brands and products are
available through the XXX.xxx Site, Licensor shall use commercially
reasonable efforts to persuade vendors to include the shop online message.
V. Group and Team Sales
1. Licensor shall integrate the URL and shop on-line message with respect to
its group and team sales efforts generally consistent with its obligations
under this Exhibit J.
VI. Licensee
--------
5
1. Upon request, Licensee shall include Licensor's mail order catalogs and/or
direct mail booklets (prepared and delivered to Licensee by Licensor at
Licensor's expense) within each package delivered to a Customer of the
XXX.xxx Site, unless a given package is not of sufficient size to
accommodate such catalogs or booklets or the inclusion of such catalog or
booklets increases Licensee's postage costs for such package (unless
Licensor reimburses Licensee for such additional postage costs). Licensee's
obligation under this Section V shall not apply to packages delivered to a
Customer of the XXX.xxx Site directly through a manufacturer, distributor
or vendor.
VII. Phase-In, Future Enhancements, Developments
-------------------------------------------
1. The Parties acknowledge that as of the Effective Date, (i) Licensor has an
existing inventory of signs, shopping bags, employee uniforms and the like
which Licensor may use up in the ordinary course of business, and that
Licensor's integration duties hereunder may be phased in as Licensor
replenishes or replaces its supply of such materials, and (ii) Licensor's
name is shown on billboards and sports sponsorship signs, and that
Licensor's integration duties hereunder may be phased in as such billboards
and signs are replaced or otherwise updated.
2. As new signs, banners, posters and advertising formats are developed by
Licensor to replace or supplement the corresponding items reflected herein,
it is the intent of the Parties that the URL and the shop online message
shall be integrated in such items in a manner that is equal to or greater
than that which has been established through Exhibits J, and J1, and the
attached examples.
6
Exhibit J1
Circulars: Integration Space Requirements
Circular 1 inch 2 inches x 7 inches 1/2 inch 1/4 inch
Page Count Front Cover Footer Inside Editorial Back Cover Footer Inside Footers
4 YES NO YES 1
8 YES YES YES 2
12 YES YES YES 4
16 YES YES YES 6
24 YES YES YES 10
Direct Mail Post Cards & Booklets -- Integration Space Requirements*
Size 3/4 inch Front Coupon Back 1/4 inch
Cover Footer Cover Offer Inside Footers
Postcard NO YES * NO
12 Page Booklet YES YES 3
24 Page Booklet YES YES 5
* If Licensee is participating
EXAMPLE J1
----------
[Sample Sports Authority advertising circular containing product images,
descriptions and pricing information]
EXAMPLE J2
----------
[Sample Sports Authority advertising circular containing product images,
descriptions and pricing information]
EXAMPLE J3
----------
[Sample Sports Authority advertising circular containing product images,
descriptions and pricing information]
Example J4
----------
XXX.xxx integration into The Sports Authority Stores
----------------------------------------------------
Below are the components, which will be used to integrate the web address
in-store:
1. Window Decals
[Sample Sports Authority window decal here]
2. Online Window Banners (Shop on line anytime tagline)
[Sample Sports Authority Window banner here]
3. Store Hours Signs (Shop online anytime tagline)
[Sample Sports Authority store hour sign here]
4. Interior Banner (4 feet x 20 feet)
[Sample Sports Authority interior banner here]
5. Aisle Directories (web address on the bottom of The Sports Authority logo
slat)
[sample Sports Authority store Aisle directory here]
6. Theme/Seasonal Toppers, Shelf Talkers and Banners
Topper (#4, #5)
[3 samples of Sports Authority store banners here]
Shelf Talker
[sample of Sports Authority shelf talker here]
In-Store Banner with tagline
[sample of Sports Authority store banners here]
7. 4 - 22 inches x 28 inches locations In-Store
8. Shopping Bags - All sizes (XXX.xxx logo is placed below the TSA logo)
[SPORTS AUTHORITY LOGO HERE]
EXHIBIT "K"
Site Security and URL Registration
. SSL Certificates. These certificates are used for secure e-commerce
----------------
transactions. The certificates certify that the customer is giving their
personal information to a site which indeed is an authorized representative of
the store where they are shopping. Verisign is the certification body and will
need to contact an officer within the company regarding our request for these
SSL certificates as a third party.
Main store url (domain): xxx.xxxxxxxxxxxxxxxxxx.xxx
Internic registrant company name for this domain: The Sports Authority, Inc.
Company address: 0000 Xxxxx Xxxxx Xxxx 0
Xx. Xxxxxxxxxx, XX 00000
(Corporate contact must be an officer in the company named above who has
sufficient authority to approve the validity of GSI's request to represent the
said company in e-commerce transactions)
Corporate contact: Xxxxx Xxxxxxxxx
Title: Vice President of E-Commerce
Phone: (000) 000-0000
Fax: (000) 000-0000
Dun and Bradstreet number for above company: 00-000-0000
. DNS. DNS is the Internet address system which allows a customer to reach the
---
new store via the desired URL such as xxx.xxxxx.xxx. This needs to be changed at
-------------
least one week prior to the expected store launch so that the changes have been
propagated to all DNS servers on the Internet. Our policy is to support your
existing store ip address on our servers, so that even after the DNS has been
updated to point to our servers, your existing site will still be reachable
until we have launched the new store.
DNS Technical contact for main URL listed above: Engineer on duty
Contact phone: (000) 000-0000
Contact email address: [email protected]
------------------------------
. Email aliases. These are the email aliases which customers will use associated
-------------
with the e-commerce store such as [email protected]. If your company
--------------------------
uses this domain for mail, you need to add forwarding for the listed email
aliases below that will point to the corresponding mailbox on our servers.
Email aliases which need to be created on your mail server:
Your mail server points to our mail server
[email protected] [email protected]
----------------------------------------
[email protected] [email protected]
----------------------------------
[email protected] [email protected]
---------------------------------------
[email protected] [email protected]
----------------------------------------
[email protected] [email protected]
--------------------------------------
[email protected] [email protected]
-------------------------------------
[email protected] [email protected]
-----------------------------------
[email protected] corporate email address for jobs at your company
[email protected] [email protected]
-------------------------- ------------------------------------
[email protected] [email protected]
------------------------
[email protected] [email protected]
For example, if the main domain is xxxxxxxxxxxxxxxxxx.xxx, then the first email
alias mapping would be:
[email protected] forwards to
--------------------------------
[email protected]
Who to contact for updating company email server with new aliases: Engineer on
duty
Phone: (000) 000-0000
Email:
[email protected]
------------------------------