TERMS AND CONDITIONS OF TERRITORIAL LICENSE AGREEMENT
1. License to Operate
For valuable consideration and in accordance with and subject to the terms of this agreement, Licensor hereby grants to Licensee a revocable license within the Exclusive Territory defined herein to:
a. Form and operate a 3 on 3 men’s, women’s and youth basketball teams as a Hoop It Up Pro Am Club.
b. Have the option to operate an esports team to compete in Hoop It Up online competitions subject to the terms set forth herein.
c. Have the option to operate a Hoop It Up Pro Am League (“League”) consisting of participating teams registered on the Licensor’s registration platform accessible at hoopitup.com playing in a multi-week competition of scheduled games to comprise the “League Season.”
2. Exclusive Territory
The grant of license shall be exclusive during the term of this agreement within the designated Exclusive Territory (Exclusive Territory) which shall consist of a primary postal code and any contiguous zip codes more fully described in the agreement. Licensee may not relocate or modify its exclusive territory without the express written consent of the Licensor.
a. Nothing in this agreement shall be deemed to limit Licensor’s ability to license to other third parties or operate other Hoop It Up related events such as Hoop It Up Tour events or any other rights not specifically granted in Section 1 above within the Exclusive Territory.
b. In the event Licensor elects to hold a Hoop It Up Tour Event within the territory during the term of this agreement, Licensee shall be retained as a marketing partner for $500 plus $20 referral fee for each local team that purchases a registration for the Event.
3. Licensee Operations
Licensee shall administer the operations under this agreement in accordance with the Operations Manual issued by the Licensor and as may be amended from time to time.
4. Team Rights
a. Basketball - Licensee’s 3 on 3 men’s and women’s basketball team shall automatically qualify for the annual Hoop It Up national tournament and any regional qualifiers.
b. Esports - Licensee will have the territorial rights to their own esports club representing their territory. The esports team will have free entry into esports online events as arranged for by the Licensor.
c Digital. .
Licensee may have their own team branded website and social media channels to promote their basketball and esports teams and local league as well as online team store.
Licensor shall maintain a team page on the Hoop It Up website which shall include the team logo, brand and contact information.
Licensee shall pay the annual royalty to the Licensor of which shall be due upon execution of this agreement and on the anniversary date of any subsequent renewal period.
6. Licensee Revenue
Licensee shall enjoy the revenue realized from the following:
a. League Participant Registration Fees less any platform service charges. Licensee shall exclusively use Licensor’s registration system. Licensor shall remit to Licensee registration fees collected net of processing fees (4.25% + .30 cents per team) and an administrative fee of $10 per team. Licensor shall remit fees to Licensee upon commencement of the League events.
b. Revenue generated from the sale of any territorial sponsorships related to Licensee’s 3 on basketball team(s), esports team and/or League including team uniforms, website advertising, social media posts, event signage.
c. Team Merchandise subject to the terms of this agreement.
d. League event revenue generated from concessions sale or spectator admissions fees.
7. Intellectual Property / Team Merchandise
a. Licensee shall select a team name, logo and colors (Team IP), subject to approval by Licensor and refrain from allowing the use of any unauthorized names, marks, logos, designs, symbols or colors. Licensee may not change or modify team name, logo or colors without the express written consent of the Licensor.
b. Licensee grants to Licensor a non-exclusive license the unrestricted right to use Team IP for promotional purposes and to issue sub-licenses for the production of any apparel or merchandise bearing the Team IP (Team Licensed Merchandise). Licensee shall receive a 6% royalty based on revenue from the sale of any Team Licensed merchandise based on wholesale pricing initiated by the Licensor under this License.
c. Licensee may license or cause the production of Team Licensed Merchandise and retain all revenue from the sale of such product. Licensor retains the right to require Licensee to exclusively use vendors approved by the Licensor for the production of Team Licensed Merchandise.
d. Except to the extent expressly authorized in writing in advance by the Licensor in each instance and for any specific use, Licensee shall have no right, title or interest in or to any Hoop It Up or Hoop It Up-related name, trademark, trade name, service mark, slogan, logo, or other intellectual property or the intellectual property of its partners, parents or affiliated entities (collectively, the “Licensor Intellectual Property”). Licensee acknowledges and agrees that Licensor’s Intellectual Property now owned or hereafter acquired by the Licensor and any and all goodwill associated with such Intellectual Property, shall be and remain the property of the Licensor. Licensee is prohibited from authorizing the use of or cause the production of any product or merchandise, bearing any marks of Licensor Intellectual Property associated, or otherwise engage in any activity relating to the commercial exploitation of the of Licensor Intellectual Property without the express written consent of the Licensor.
e. Licensor grants to Licensee a non-exclusive license to use the Hoop It Up Pro Am logo and name in the promotion of any events licensed under this agreement in accordance with the Operations Manual and style guide which may be amended from time to time. Upon expiration or termination of this Agreement, Licensee shall immediately cease using any of the Licensor’s Intellectual Property. Nothing in this Agreement serves to assign, convey, or transfer any right in any Licensor’s Intellectual Property to the Licensee other than a limited, non-exclusive license to use the Company Intellectual Property in connection with the promotion of events licensed under this agreement.
8. Sale or Transfer of License
Licensee shall have the right to sell or transfer its license to operate upon approval by the Licensor. Said approval shall not be unreasonably withheld. The proposed transferee, upon application to the Licensor, must establish to the reasonable satisfaction of the Licensor the ability to operate the team in accordance with this agreement.
Licensee shall be in default of this agreement if Licensee commits any of the following acts:
a. Fails to timely pay the Royalty to Licensor;
b. Infringement and/or non-compliance with the Licensor's rules and/or Operations Manual;
c. Transfer of Team ownership without consent of Licensor;
e. Breach any condition of this agreement;
10. Termination of Agreement
A default by Licensee under this agreement shall be cause for termination of this agreement and Licensee's license to operate within the Exclusive Territory under the terms of this agreement. In the event of termination of this agreement:
a. Licensor shall notify Licensee of termination of this agreement and revocation of License to operate by regular mail at Licensee's last known business address.
b. Licensee agrees to pay to Licensor within fifteen (15) days after the effective date of termination such amounts owed to Licensor which are then unpaid under this agreement, if any.
c. Upon termination, Licensor shall have no further obligation to Licensee and Licensee forfeits any right to the License issued under this agreement. Licensee will not be permitted to transfer or sell the License.
11. Injunctive Relief
In the event of Licensee commits a default under this agreement which causes irreparable harm, Licensor may seek injunctive relief from any court of competent jurisdiction and/ or Licensor may assume operation of the 3 on 3 basketball team to compel performance under this contract.
12. Attorney Fees and Costs
The Licensor shall be entitled to recover from Licensee all attorneys' fees, costs and disbursements incurred by the Licensor in connection with the interpretation or enforcement of this agreement.
13. Media Rights
The Licensor shall have the exclusive authority to arrange for and sell all video or audio content, broadcast media rights, on all platforms, either known or unknown including television, digital, radio, broadband and internet rights, to all games organized by the Licensee under this License Agreement. Any and all broadcasts of League games, in any medium including but not limited to television, terrestrial, satellite and internet radio, broadband or internet, shall be property of the Licensor. Licensor shall own all worldwide copyright protections to any broadcast and any video or audio content of any League events conducted by the Licensee under this agreement.
14. Sponsorship Rights
a. The Licensor shall have the exclusive authority to market and sell all national sponsorship rights, designations and categories.
b. Licensee shall retain the right to local sponsorship rights. Local sponsorship rights shall be deemed to mean any sponsorship of the Hoop It Pro Am teams or League operated by Licensee within the Exclusive Territory. Licensee is not authorized to use the Hoop It Up logo or trademark in conjunction with any local sponsorship without the express written consent of the Licensor. Licensee may designate sponsors with “official category” status. Licensee is prohibited from granting any exclusive category sponsorship rights or enter into any agreement which could potentially conflict with execution of a national sponsorship.
c. Licensee agrees to execute and fulfill national sponsorship commitments at events held within the territory including but not limited to executing the display of sponsor signage and couponing, permitting on site product sampling, data capture and content capture.
Licensee shall exclusively use the participant registration platform approved by the Licensor during the term of this agreement and any subsequent renewal. The system shall be subject to a user service charge fee which may be changed from time to time.
16. Equipment, Uniform and Apparel
Licensor reserves the right to the right to require Licensee to exclusively purchase any and all equipment and uniforms to be used for the Hoop It Up Pro Am teams or league (including all league participants) by Licensor’s approved vendors.
The Licensee must carry insurance as for provided herein and in the Operations Manual which may be amended from time to time. Licensee must show proof that insurance is continuously in force, with a Carrier acceptable to the Licensor, and name the Licensor, it’s owners, members and employees as Additional Insured on the policies. The coverages and specific policy limits shall be determined as adequate by Licensor and may be modified from time to time as deemed appropriate by the Licensor. Coverages to be carried by the Licensee include, but are not limited to:
General Liability Insurance covering Bodily Injury and Property Damage.
Legal Liability to Participants
Sexual Abuse and Molestation
Accident Insurance covering participants injuries while enrolled in the event.
CYBER Liability Insurance covering breach of any protected information(financial, medical, personal).
Event Cancellation Insurance covering Licensor and/or event sponsors for the cancellation for the event for causes to be agreed upon.
Employment Practices Liability
Other Employment Related Insurance covering any required Workers Compensation, Disability Benefits, Paid Family Leave or other statutory requirements by any federal, state or local jurisdiction.
Commercial Umbrella/Excess Liability coverage.
Licensee shall indemnify and hold harmless Licensor for any loss, damage, liability, claim, demand, or penalty that may arise from this agreement. .
18. Operations Manual
a. The Licensor agrees to loan to the Licensee one or more manuals, bulletins, rules and updates (collectively referred to as “Operations Manual”). The Licensee agrees that it shall comply with the Operations Manual as an essential aspect of its obligations under this Agreement, that the Operations Manual and failure by the Licensee to substantially comply with the Operations Manual may be considered by the Licensor to be a breach of this Agreement.
b. The Operations Manual is the sole property of the Licensor and shall be used by the Licensee only during the term of this Agreement and in strict accordance with the terms and conditions hereof. The Licensee shall not duplicate the Operations Manual nor disclose its contents to any other parties. The Licensee shall return the Operations Manual to the Licensor upon the expiration, termination or transfer of this Agreement.
c. The Licensor reserves the right to revise the Operations Manual from time to time as it deems necessary to update or change operating standards. The Licensee shall in turn update its copy of the Operations Manual as instructed by the Licensor and shall conform its operations with the updated provisions within a reasonable time after receipt of such updated information. The Licensee acknowledges that a master copy of the Operations Manual maintained by the Licensor at its principal office shall be controlling in the event of a dispute relative to the content of any Operations Manual.
19. Term & Renewal
The term of this agreement shall be effective from the date of this agreement. This agreement shall automatically renew for successive and continuous one year terms without further act of the parties unless this agreement has been previously terminated by Licensor under the provisions of this agreement for default. If Licensee desires not to renew this agreement for an additional term, Licensee must provide Licensor written notice of Licensee's intention not to renew 90 days prior to the expiration of the term. Licensor reserves the right to terminate this agreement upon ninety days notice for any reason and upon refunding the annual royalty payment to the Licensee.
20. Limitation of Liability
Notwithstanding anything written herein to the contrary, the Licensee and the Licensor acknowledge and agree that the Licensor will not be liable for any losses or damages, whether indirect, incidental, special or consequential, in profits, goods or services, irrespective of whether or not the Licensee has been advised or otherwise might have anticipated the possibility of such loss or damage. The Licensee agrees to limit the Licensor’s liability arising from any claims such that the total liability of the Licensor shall not exceed the amount of the annual royalty fee paid under this agreement by Licensee.
During the term of this agreement and for one year after its termination or expiration, Licensee and/or its principals agree not to compete directly or indirectly with the Licensor by serving as an owner, partner, director, officer, employee, consultant, representative or agent, on in any other capacity in an entity which operates an 3 on 3 basketball team or league within the exclusive territory that operates a league in a format similar to the Hoop It Up Pro Am League.
21. Representations & Warranties
Licensee represents and warrants to the Licensor, as of execution of this agreement, as follows:
a. Formation, Standing and Authority. Licensee has the legal authority, power and right to own its assets and properties, to carry on the business of operating a professional 3 on 3 basketball team and league, and to execute, deliver and perform the transactions contemplated by this Agreement. Licensee is duly qualified to do business and is in good standing in each jurisdiction in which the failure to so qualify would reasonably be expected to have a material adverse effect on Licensee.
b. Due Authorization; No Conflict with Agreements, etc. This Agreement has been executed and delivered by a duly authorized officer of Licensee who has all requisite authority to bind Licensee under the Governing Documents and all applicable Laws.
c. Compliance with Law. Licensee is in compliance with all applicable Law, except where any failure to comply with such Law, either individually or in the aggregate, would not reasonably be expected to have a material adverse effect on the financial condition, business, operations, or prospects of Licensee.
d. No Reliance; No Other Representations and Warranties. Licensee has such knowledge and experience in financial, tax and business matters so as to enable Licensee to utilize the information made available to it in connection with the transactions contemplated by this Agreement and the Governing Instruments to evaluate the merits and risks of such transactions and to make informed decisions with respect thereto. In entering into this Agreement, neither Licensee nor any person or entity acting as representative of Licensee has relied upon any representation or statement by, or the work product of, any person or entity purporting to represent or advise the Licensor except as expressly contained in this Licensing Agreement. Without limiting the generality of the preceding sentence, neither the Licensor nor any of their affiliates, representatives or advisors, has made any representations or warranties assuring Licensee that it will be able to earn a profit or that the Licensor or any of their affiliates will repurchase the License or otherwise provide any financial assistance to Licensee nor have they made any representations or warranties or provided any advice with respect to the tax-treatment or future operations of the Licensor or Licensee in any jurisdiction.
22. Interpretative Matters
a. References. All references to “articles”, “sections”, “schedules” or “exhibits” shall be references to the articles, sections, schedules and exhibits to this Agreement, as amended, modified, supplemented or restated from time to time.
b. General Interpretative Provisions. Terms for which meanings are defined in this Agreement shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine and feminine forms. The term “including”, whenever used in any provision of this Agreement, means including but without limiting the generality of any description preceding or succeeding such term. Each reference to a person or entity shall include a reference to the successors and assigns of such person or entity.
c. Neutral Interpretation. This Agreement shall be interpreted neutrally and without regard to the Party that drafted it and, in particular, no rule of construction shall be applied as against any Party that would result in the resolution of an ambiguity contained herein against the drafting Party.
d. Headings. The section headings of this Agreement are for reference purposes only and are to be given no effect in the construction or interpretation of this Agreement.
a. Further Assurances. Each of the Parties shall take such other and further action and execute and deliver such additional writings as shall be reasonably necessary to implement the transactions contemplated by this Agreement in an expeditious manner, and shall act in good faith in implementing the transactions contemplated hereby. The Licensor and Licensee shall reasonably cooperate in connection with the transactions contemplated by this Agreement.
b. Notices. All notices, requests, consents and other communications provided for or required to be given hereunder shall be in writing and shall be deemed to be duly given if delivered in person, mailed by electronic mail, mailed by certified mail, return receipt requested, or sent by nationally-recognized overnight courier or first class registered or certified United States Postal Service mail, return receipt requested, postage prepaid (with proof of receipt maintained), addressed to such Party at the address set forth below or at such other address as may hereafter be designated in writing by such Party to the other Party at the last known address. All such notices, requests, consents and other communications shall be deemed to have been delivered and received (i) in the case of personal delivery, on the date of such delivery (and, if such date is not a business day, then on the next business day), (ii) in the case of electronic mail by 5:00 pm Eastern time on a business day, then on such business day, otherwise on the next succeeding business day, (iii) in the case of mail, upon the earlier of actual receipt thereof and the fifth (5th) business day after the posting thereof.
c. Entire Agreement. This Agreement is the product of substantial and extensive negotiations among the Parties and, together with all exhibits and schedules hereto and thereto, constitutes the final and complete agreement among the Parties with respect to its subject matter. All prior memoranda, understandings, conversations and communications, oral or written, relating to the subject matter of this Agreement are hereby merged into and superseded by this document.
d. Amendment and Waiver. This Agreement may not be amended, supplemented or changed, and any provision hereof cannot be waived, other than by a writing duly signed by Licensee and the Licensor (or, with respect to a waiver, the Party against whom such waiver is asserted). No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party or consummation of the transactions contemplated by this Agreement, shall be deemed to constitute a waiver by the Party taking such action of compliance with any representation, warrant, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement shall not operate or be construed as a further or continuing waiver of such breach or as a waiver of any other or subsequent breach. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy.
e, U.S. Dollars. All amounts to be paid hereunder shall United States Dollars.
f. Time of Essence. Time shall be of the essence with respect to the performance by Licensee of its obligations under this Agreement.
g. Governing Law. This Agreement shall be governed by and construed in accordance with the Law of the State of Colorado applicable to agreements made and to be performed entirely in Colorado.
h. Cumulative Rights. Except as expressly set forth in this Agreement, the rights and remedies provided by this Agreement are cumulative and are in addition to any other rights the Parties may have under applicable Law or otherwise, and the use of any one right or remedy by any Party shall not preclude or waive its right to use any or all other remedies.
i. Severability. If any provision of this Agreement shall be deemed invalid, illegal or unenforceable by any court having jurisdiction, all other provisions of this Agreement shall remain in full force and effect and shall be enforced to the maximum extent permitted by Law.
j. Counterparts. This Agreement may be signed in two or more counterparts, each of which shall be deemed an original copy of this Agreement and all of which, together, shall constitute one and the same instrument. Delivery of a copy of this Agreement by facsimile transmission, by electronic mail in "portable document format" ("PDF") form or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, shall have the same effect as physical delivery of the paper document bearing the original signature.
k. Fees and Expenses. Each Party will be responsible for and bear all of its own fees and expenses (including the fees and expenses of its attorneys and other advisors) incurred at any time in connection with pursuing or consummating the transactions contemplated by this Agreement.
l. Moral Turpitude. Licensee hereby warrants and represents that none of its principals, shareholders, owners or representatives have been convicted of a crime of moral turpitude.
m. Independent Contractor Relationship. The persons provided by each Party shall be solely that Party's employees and shall be under the sole and exclusive direction and control of that Party. The Licensee shall not be considered employees of the Licensor for any purpose. The Licensee shall remain an independent contractor and shall be responsible for compliance with all laws, rules and regulations involving, but not limited to, employment of labor, hours of labor, health and safety, working conditions and payment of wages. Licensee shall also be responsible for payment of taxes, including federal, state and municipal taxes, chargeable or assessed with respect to its employees, such as Social Security, unemployment, workers' compensation, disability insurance, and federal and state withholding.
n. Compliance with Law. Licensee shall comply, at all times, with applicable local, state, federal, foreign and international laws, ordinances, and regulations