WHEREAS Licensor operates Utah Warriors, a professional rugby club in MLR;
WHEREAS the Club has appointed Licensor to serve as its exclusive agent with authority to license local commercial affiliations including the right to license the use of the Club Marks, including, but not limited to content and copyrighted materials, and Player Likenesses in conjunction with such local commercial affiliations all subject to MLR approval;
WHEREAS Licensor and Sponsor desire to enter into an agreement whereby Licensor (1) grants to Sponsor certain Rights in connection with the Club, Games and (if applicable) Local Game Broadcasts and (2) (if applicable) licenses Sponsor to use the Club Marks and/or Player Likenesses in connection with the advertising and promotion of certain of Sponsor’s Products/Services/Retail Operations in accordance with the terms and conditions of this Agreement; and
WHEREAS Licensor and Sponsor desire to enter into this Agreement to mutually promote the success of Sponsor, Club, and MLR.
NOW THEREFORE, in consideration of the mutual promises set forth herein and for good and valuable consideration receipt of which is hereby acknowledged, Licensor and Sponsor agree as follows:
1. DEFINITIONS. Capitalized terms used herein shall have the following definitions:
“Advertising Materials” shall mean any and all (i) general promotional, advertising, packaging, collateral or other display materials, (ii) media, (iii) promotions, (iv) advertising, branding, and promotional concepts, (including but not limited to slogans, campaigns or programs) or (v) any other creative or product created or prepared by or on behalf of Sponsor or any authorized third-party that bear any of the Club Marks and are used in connection with Sponsor’s Products/Services/Retail Operations or in furtherance of any Pass-Through Rights. Without limiting the generality of the foregoing, such materials may include without limitation television, radio, print, outdoor, industrial and point-of-sale materials as well as any materials used in connection with the Digital Platforms.
“Affiliate” shall mean an entity that controls, is controlled by, or is under common control with a party to this Agreement now known or hereafter in the future during the Term.
“Agreement” shall have the meaning set forth on the first page hereof.
“Announcements” shall have the meaning set forth in Section 6.C. of this Agreement.
“Appearances” shall have the meaning set forth in Section 6.G. of this Agreement.
“Applicable Laws” shall mean laws, regulations, governmental rules and standards (including those guidelines, codes and standards of any applicable recognized self-regulatory body or industry association.
“Claim” or “Claims” shall have the meaning set forth in Section 8.A. of this Agreement.
“Club” shall mean the Utah Warriors, a rugby club in MLR.
“Club Marks” shall mean the official trade name, symbol and mascot (whether registered or not), if any, of Club, as may be developed by, or on behalf of, Club, and/or other trademarks or copyrights owned and/or used by MLR and Licensor, but specifically excluding the MLR Marks.
“Club Operator” or “Licensor” shall have the meaning set forth on the first page of this Agreement.
“Commercial Sponsors” shall mean all MLR sponsors, MLR suppliers, Club sponsors, Club suppliers or other entities granted a license to use the MLR Marks and/or Club Marks or other commercial identification rights in connection with (and approved by) the League.
“Commercial Spots” shall have the meaning set forth in Section 6.E. of this Agreement.
“Digital Platforms” shall mean any and all -owned, -operated and/or -branded digital platforms including, but not limited to official websites, social media platforms (e.g., Twitter, Instagram, Facebook, Vine, Pinterest, TikTok, SnapChat, and Tumblr) as well as pages or microsites on platforms such as Twitch and YouTube.
“Designation(s)” shall have the meaning set forth in Section 2.B. of this Agreement.
“Event of Force Majeure” shall have the meaning set forth in Section 12.I.i. of this Agreement.
“Games” shall mean regular season and MLR playoff games played by the first team of Club. Games, whether or not they include Club, shall explicitly exclude (i) the MLR All-Star Game and MLR playoffs (except as provided in this Agreement) , (ii) any tournaments or international games promoted by MLR or SUM, (iii) any “friendly” games played between Club and an international team promoted by Club, MLR or RUM, and (iv) any tournaments promoted or organized by the USA Rugby, Rugby Canada, Rugby Americas, or World Rugby.
“Home Games” shall mean Games played by the Club at the Stadium.
“Indemnified Party” shall have the meaning set forth in Section 8.C. of this Agreement.
“Indemnifying Party” shall have the meaning set forth in Section 8.C. of this Agreement.
“League Rules” means, collectively, (i) the MLR LLC Agreement, (ii) the MLR Operating Agreement and any other agreement between any club operator and any MLR entity
“Local Game Broadcasts” shall mean the local television and/or radio broadcast of the Games within the Territory, specifically excluding any National Game Broadcasts.
“Loss” or “Losses” shall have the meaning set forth in Section 8.A. of this Agreement.
“MLR” or “League” shall mean Major League Rugby, L.L.C., the top tier professional rugby league organized and promoted in the United States and Canada.
“MLR Canada” shall mean MLR Canada L.P.
“MLR Indemnified Parties” shall have the meaning set forth in Section 8.A. of this Agreement
“MLR Marks” shall mean the official trade names, symbols and mascots (whether registered or not), if any, of the League or any MLR club as may be developed by, or on behalf of, MLR or the applicable MLR club, and/or other trademarks or copyrights owned and/or used by MLR, excluding the Club Marks.
“MLR Work Stoppage” shall have the meaning set forth in Section 12.I.ii. of this Agreement.
“National Game Broadcasts” shall mean the national television and/or radio broadcast of the Games by any MLR U.S. or Canadian national broadcast partner.
“Official Premium Supplier” shall mean a company which has been granted a license by MLR to produce Premiums with the Club Marks.
“Pass-Through Rights” shall mean the inclusion of Third-Party Marks by Sponsor on or in connection with Advertising Materials (e.g., if such third-party is a retailer of Sponsor’s Products/Services/Retail Operations) as approved by Licensor in accordance with Section 2.C. of this Agreement.
“Player Likenesses” shall mean, collectively, the names, nicknames, numbers, pictures, or images (whether still, motion, video, digital, or television), voices, tattoos, piercings, or other visible body modification, signatures, facsimile signatures, caricatures, reputation, goodwill, persona, any aspect of the right of privacy, personality or publicity or other likenesses of MLR players.
“Premiums” shall mean those items of merchandise which: (a) bear Sponsor Marks together with any of the Club Marks; and (b) are given away free of charge or sold at a subsidized price for promotional purposes or advertising of Sponsor’s Products/Services/Retail Operations.
“Print Advertising” shall have the meaning set forth in Section 6.F. of this Agreement.
“Products/Services/Retail Operations” shall mean the products, services or retail operations sold, provided or operated by Sponsor that fall within the Sponsor Commercial Category.
“Promotions” shall have the meaning set forth in Section 6.H. of this Agreement.
“Rights” shall mean all rights and benefits granted to the Sponsor pursuant to this Agreement.
“Rule of Four” shall have the meaning set forth in Section 4.A. of this Agreement.
“Signs” shall have the meaning set forth in Section 6.C. of this Agreement.
“Sponsor” shall have the meaning set forth on the first page of this Agreement.
“Sponsor Commercial Category” shall have the meaning set forth on the first page of this Agreement.
“Sponsor Marks” shall mean any trade names, trademarks, service marks, logos, symbols, or other copyrighted or proprietary identifications (whether registered or not) of Sponsor or Sponsor’s Products/Services/Retail Operations.
“Sponsor Materials” shall have the meaning set forth in Section 6.A. of this Agreement.
“Sponsor Parties” shall have the meaning set forth in Section 9.A. of this Agreement.
“Sponsor Representative” shall have the meaning set forth on the first page of this Agreement.
“Stadium” shall mean the facility at which the Club plays its Home Games.
“Style Guide” shall mean the manual or digital asset management system which sets forth the graphic standards for the Club Marks, as may be amended from time to time by the League.
“Term” shall have the meaning set forth in Section 10.A. of this Agreement.
“Term Sheet” shall mean all material terms and conditions agreed to by and between Licensor and Sponsor as set forth in the attached Exhibit(s) and made a part hereof this Agreement.
“Territory” shall mean the geographic area that is within seventy-five (75) miles of the Stadium with the sole exception of the Internet, which is inherently worldwide; provided that any use of the Advertising Materials and/or exercise of any other Rights granted to Sponsor herein via the Internet must be targeted to consumers in the Territory.
“Third-Party Marks” shall mean the applicable trade names, trademarks, service marks, logos, symbols, or other copyrighted or proprietary identifiers of a third-party, as approved by Licensor in accordance with Section 2.C. of this Agreement.
“Tickets” shall have the meaning set forth in Section 6.D. of this Agreement.
“Unavailable Benefits” shall have the meaning set forth in Section 10.G. of this Agreement.
2. GRANT OF RIGHTS. Licensor hereby grants to Sponsor for the Term of this Agreement, and Sponsor hereby accepts, the non-exclusive (except as otherwise set forth herein), non-transferable, non-sublicensable limited right to exploit the Rights set forth in the Term Sheet in connection with the Club, Games and Local Game Broadcasts (if applicable).
A. Club Marks.
i. Subject to the terms of this Agreement, Licensor hereby grants to Sponsor for the Term of this Agreement and Sponsor hereby accepts, the non-exclusive (except as otherwise set forth herein), non-transferable, non-sublicensable and limited right to use the Club Marks in the Territory solely in Advertising Materials. Use of the Club Marks must at all times comply with the requirements set forth in Section 3 and the Style Guide.
ii. Section 2.A.i shall be limited as follows:
a. Sponsor shall not have the right to manufacture, distribute and/or sell any products or merchandise (or on the packaging of any products or merchandise) bearing the Club Marks. This prohibition does not apply to Premiums, but, rather, is intended to prohibit the creation of Club-branded licensed products or merchandise.
b. Sponsor shall not have the right to sublicense its right to use the Club Marks.
B. Designations. Sponsor shall have the right to describe itself using the designations, if any, set forth in the Term Sheet (collectively, the “Designations”). Sponsor acknowledges and agrees that, without the prior written approval of Licensor, Sponsor shall not use any other Designations in connection with Club, League or any other club in the League.
C. Pass-Through Rights to Third-Parties. If pre-approved in writing by Licensor, Sponsor may exercise Pass-Through Rights in accordance with the following terms:
i. Sponsor’s plan to exercise Pass-Through Rights must be submitted to Licensor for prior written approval. Such a plan must include all relevant terms and conditions, including, but not limited to, the timing, promotional offering, and proposed third-party.
ii. Licensor may approve or disapprove the exercise of Pass-Through Rights in its sole and absolute discretion and on a case-by-case basis.
iii. In any event, no exercise of Pass-Through Rights may include a third-party that is in competition with a current Commercial Sponsor and such Commercial Sponsor’s commercial category.
iv. Sponsor may not “pass-through” any other Rights, except for Tickets (if applicable).
v. Once Licensor approves the exercise of Pass-Through Rights, Sponsor shall submit any and all Advertising Materials for approval by Licensor in its sole discretion on a case-by-case basis.
vi. The use of Advertising Materials in connection with Pass-Through Rights shall adhere to the following:
a. The prominence of Third-Party Marks in type, logo and placement shall be no greater than the prominence of Sponsor Marks. In addition, the Third-Party Marks will not be used in a manner which implies a direct relationship between the third-party and Club.
b. Promotional significance of third-party incorporation must be valid and apparent. Third-Party Marks (including but not limited to distributors, suppliers, member institutions, and subsidiaries) must be justified and directly relevant to the promotion, distribution or sales of Sponsor’s Products/Services/Retail Operations.
c. All Advertising Materials that include any Third-Party Marks must also include Sponsor Marks and its Designation(s) (e.g., “Official Sponsor of Club”), if any.
vii. Licensor will not be held liable for any Claims or Losses as and when incurred arising out of, incident to or in relation to any third-party’s exercise of Pass-Through Rights as permitted hereunder.
D. Premiums. If granted in the Term Sheet, Sponsor shall have the right to use the Club Marks on Premiums in the Territory in accordance with Section 3 of this Agreement.
E. Limitations to Exclusivity. To the extent Sponsor is granted exclusivity in the Sponsor Commercial Category, Sponsor acknowledges and agrees that the following limitations to such exclusivity shall not constitute a violation of Sponsor’s exclusivity under this Agreement:
i. Advertising Inventory. Unless otherwise specifically set forth in the Term Sheet, Licensor’s or Club’s broadcast partners may sell television, radio, Digital Platform, and print advertising inventory to competitors in the Sponsor Commercial Category without violating applicable Sponsor’s exclusivity, if any, so long as Licensor does not grant any right to use the Club Marks to such competitor (except as set forth in Section 2.E.ii. below).
ii. MLR Commercial Sponsors. MLR has the right to enter into a League sponsor agreement with a third-party in the Sponsor Commercial Category. As part of such League sponsor agreement, MLR may grant rights to collective use of the marks of MLR clubs including the Club Marks as well as rights to Player Likenesses, including Club players. In addition, MLR may grant its MLR Commercial Sponsors the right to pass-through sponsorship rights to third-party retailers (e.g., mass merchant, grocery, convenience, drug stores, big box, soccer specialty stores, etc.), including a third-party in the Sponsor Commercial Category.
iii. National Game Broadcasts. If League has a MLR Commercial Sponsor in the Sponsor Commercial Category, then during National Game Broadcasts (a) Sponsor may not receive any rights in the field-of-play (e.g., those areas typically seen within television camera-view such as field boards, Stadium’s field-level retaining wall, sideline areas, etc.) and (b) MLR Commercial Sponsor in the Sponsor Commercial Category may receive exclusive rights in the field-of-play.
iv. Stadium Signage. Sponsor acknowledges and agrees that Licensor does not control all signage and other rights at the Stadium, and the existence of signage and other rights at the Stadium of a competitor in the Sponsor Commercial Category (so long as such rights shall have been granted by the entity that controls the signage and other rights at the Stadium and not by Licensor) shall not constitute a violation of Sponsor’s exclusivity under this Agreement.
F. All Other Rights Reserved. Any and all rights not specifically granted to Sponsor hereunder are reserved by Licensor. Without limiting the generality of the foregoing, any and all Advertising Materials in furtherance of or in connection with this Agreement, in any manner and in any medium, whether or not adopted or utilized by Sponsor in the exercise of its Rights, shall be the sole and exclusive property of Licensor, as the case may be.
3. SPONSOR’S USE OF CLUB MARKS. To the extent Sponsor is granted any right to utilize the Club Marks as set forth in Section 2.A. of this Agreement, such rights shall be subject to the following terms, conditions and procedures:
A. Conditions to Use of Club Marks.
i. Proprietary Symbols. All uses of the Club Marks by Sponsor shall contain appropriate legends, markings and/or notices (including appropriate copyright and/or trademark designation) as required by Licensor in the Style Guide or otherwise, to give appropriate notice to the consuming public of MLR’s right, title and interest in or to the Club Marks.
ii. Rights to Club Marks. Sponsor shall not acquire any proprietary or other right, title or interest in or to the Club Marks, any mark containing the Club Marks or any goodwill associated with the Club Marks. Any use of the Club Marks by Sponsor will inure to the benefit of Licensor and MLR and Sponsor is aware that the Club Marks have acquired a secondary meaning in the mind of the purchasing public.
B. Quality Control.
i. General. All materials bearing the Club Marks shall be high-quality (as reasonably determined by Licensor) and the nature, quality and manner of manufacture and distribution of all materials bearing the Club Marks, as well as all other uses of Club Marks by Sponsor permitted hereunder, shall be subject to the control and prior approval of Licensor, which, subject to Section 3.C.i., shall not be unreasonably withheld or delayed.
ii. Submission of Design/Samples. Prior to the production of any items bearing any of the Club Marks, Sponsor shall, at its own cost and expense, submit to Licensor for approval all final designs and specifications of any such items. All use of the Club Marks shall conform to the provisions of this Agreement and the Style Guide at all times.
iii. Approval. Licensor shall notify Sponsor of its approval or rejection of any submission for approval within thirty (30) business days following receipt of any such submission. In the event that any item submitted to Licensor shall not have been approved, disapproved or otherwise commented upon within ten (10) business days after receipt thereof by Licensor, then Sponsor shall have the right to so notify Licensor of such fact in writing. In the event that Licensor fails to then approve, disapprove or otherwise comment upon the submissions within five (5) business days after receipt by it of such notification, any items so submitted by Sponsor shall be deemed to have been approved.
iv. Withdrawal of Approval. Licensor shall have the right, in its sole and absolute discretion, to withdraw approval with respect to any item bearing the Club Marks which were previously approved if the quality of such item ceases to be acceptable to Licensor due to deviation from such previously approved samples or upon the happening of some event which compromises or reflects unfavorably upon the good name, goodwill, reputation and/or image of Club or League or any of their respective Affiliates or which might jeopardize or limit MLR’s right, title or interest in or to the Club Marks. At time of withdrawal of approval, Licensor and/or MLR shall inform Sponsor of the basis for withdrawn approval and allow Sponsor to cure within 15 daysthe defect of quality, source of damage to reputation, or cause of jeopardy to MLR's right, title or interest in Club Marks. If at any time approval with respect to an item is withdrawn, , Sponsor shall immediately cease all use of the Club Marks on or in connection with such item and shall remove such item from public sale and distribution, until and unless Sponsor can cure the defect causing withdrawal of approval.
v. Additional Samples. Upon request of Licensor or MLR, Sponsor shall provide, at no cost to Licensor or MLR, a reasonable number of specimens of such items for Licensor’s or MLR’s use or for the purpose of obtaining trademark or other property right protection of the Club Marks.
C. Premiums. Sponsor may distribute Premiums only in accordance with the provisions set forth below.
i. Approval by Licensor. The type of Premiums to be distributed by Sponsor must be approved in writing in advance by Licensor. Licensor shall have the right to withhold its approval of such Premiums, which approval shall not be unreasonably withheld.
ii. Premium Production. Any Premiums to be distributed by Sponsor must be produced by an Official Premium Supplier. To the extent that no Official Premium Supplier is able to meet Sponsor’s reasonable specifications (which shall be required of all other potential manufacturers) as to the type, quantity or delivery time of such Premium, then Sponsor may order such Premium from an outside manufacturer provided such outside manufacturer executes a one-time license agreement with MLR. With respect to any apparel Premiums, Sponsor shall have the obligation to consider a bid from adidas on such Premiums, but shall have no obligation to accept adidas’ bid. However, in no case may Sponsor grant the right to an adidas competitor to produce an apparel Premium.
iii. Limitations. In order to ensure that the promotion of the Sponsor’s Products/Services/Retail Operations is the exclusive purpose of Sponsor’s use of Premiums, the Premiums shall be given away or sold only in close connection with the sale or promotion of Sponsor’s Products/Services/Retail Operations, subject to Licensor’s approval on a case-by-case basis.
D. MLR Warranty. MLR agrees that it will not introduce into the Style Guide any Club Mark against which MLR knows of a bona fide infringement claim. Other than as set forth in Section 11, neither MLR nor Licensor makes any agreements, covenants, representations or warranties relating to the Club Marks.
E. Approval of Items Not Bearing Club Marks. Licensor shall also have the right to approve all items distributed or displayed at Home Games that do not bear the Club Marks. A sample or rendering of each such item shall be submitted to Licensor at Sponsor’s cost or expense. Such approval shall be granted or denied as set forth in Section 3.B.
4. SPONSOR’S USE OF PLAYER LIKENESSES. If Sponsor is granted the right to use any Player Likenesses, and with prior written approval, each such use shall be subject to the following terms and conditions:
A. Rule of Four. Any use of Player Likenesses must include a minimum of four (4) athletes used both equally and collectively (the “Rule of Four”). Under the Rule of Four, Sponsor shall have the right to use Player Likenesses of approved Club players in the Territory provided that the photograph(s), rendering, or video footage includes either (i) a group of four (4) or more Club players, in uniform, appearing together, or (ii) a Club player’s Player Likeness appearing with three (3) or more other Club Player Likenesses, all in uniform, as part of a series, set, collectible or as part of a sequential product (e.g., trading cards, posters, pins, etc.) all with equal representation, in any given application.
If fewer than four (4) Club players are used, Sponsor will be responsible for securing the rights to use each individual Player Likeness. Sponsor must provide documentation to League that it has secured such rights.
However, if a Club player has an endorsement agreement with a conflicting sponsor, Sponsor may only use such Club player’s Player Likeness in groups of ten (10) or more Club players, in uniform, or with nine (9) or more other players, in uniform, if used as part of a sequential product.
B. Player Likeness Rule Exceptions. Certain Club players may have additional limitations on the use of their Player Likenesses. When such a Club player’s Player Likeness is proposed to be used under the Agreement, such additional limitations will be discussed and applied as required in the League’s absolute and sole discretion.
C. General Rules on Player Likeness Use. When utilizing Player Likenesses, Sponsor must show all players in the current Club uniform, unaltered. All uses of Player Likenesses must be approved in advance by Club.
5. CLUB’S USE OF SPONSOR MARKS.
A. Sponsor hereby grants to Licensor, during the Term, at no charge, the right and license to use the Sponsor Marks in conjunction with advertising, marketing, promotion, and exploitation of Club in any and all forms of media whether now or hereafter developed. Sponsor shall have the right to approve in advance any materials to be used by Licensor displaying Sponsor Marks, such approval not to be unreasonably withheld. Notwithstanding the above, in the event that Licensor uses Sponsor Marks for the sole purpose of acknowledging Sponsor’s status as an official sponsor/partner of Club, Licensor shall not have to submit such materials to Sponsor for prior written approval, provided that Licensor adheres to the guidelines regarding use of the Sponsor Marks provided to Licensor by Sponsor. Licensor shall not acquire any proprietary or other right, title or interest in or to the Sponsor Marks or any goodwill associated with Sponsor Marks.
B. Nothing in this Agreement shall preclude the appearance of Sponsor Marks in connection with any Sponsor Material in photographs and video footage (including, without limitation, Local Game Broadcasts and/or National Game Broadcasts) in perpetuity when used for any reason in any and all forms of media whether now or hereafter developed.
6. OTHER RIGHTS OF SPONSOR. Sponsor shall receive the Rights and assume the obligations set forth in the Term Sheet in the Territory with respect to Club. Such Rights are subject to the provisions of this Agreement and, to the extent not specifically addressed in the Term Sheet, the following:
A. Activation Approvals. The form, content, presentation and exercise of all Rights (including, without limitation, Signs, Announcements, Commercial Spots, Print Advertising, Appearances, Promotions, Digital Platforms, Premiums, or any other Advertising Materials (collectively, “Sponsor Materials”)) shall be subject to: (i) the approval of Licensor; (ii) the League Rules (as applicable); (iii) the rules, regulations and policies governing the operation of or applicable to the Stadium; and (iv) all Applicable Laws having jurisdiction over or applicable to the exercise of any Rights or Sponsor Materials related thereto, in each of (ii), (iii) and (vi) above, as they exist at the time any such Right is exercised. In the event that the approval of Licensor is required pursuant to this Agreement, Licensor agrees to provide notice to the Sponsor of its approval or disapproval in a timely manner pursuant to Section 3. Notwithstanding the foregoing, it shall be the Sponsor’s sole responsibility to ensure that all Sponsor Materials prepared by or on behalf of Sponsor in connection with the exercise of the Rights comply with all Applicable Laws. Licensor’s review of any Sponsor Material is undertaken on the basis that Sponsor has cleared such Sponsor Materials for compliance with Applicable Laws and, as such, Licensor’s review and subsequent approval of any Sponsor Material shall not imply a representation or belief on behalf of Licensor that such Sponsor Material complies with Applicable Laws.
B. Activation Costs. Unless expressly provided to the contrary in the Term Sheet, the Sponsor shall be responsible for all costs associated with the activation of its Rights. Such costs include, but are not limited to, creative and production costs of all Sponsor Materials, labor costs incurred in executing any Rights (including labor costs associated with the installation, removal and maintenance of any Sponsor Material), cleaning or debris removal costs associated with any Premium giveaway, extraordinary utility charges, the cost of food and beverages ordered by the Sponsor at the Stadium in conjunction with the exercise of any Rights (including costs of any in-suite catering) and customary event day operating costs incurred by the Stadium as part of any Stadium use by the Sponsor.
C. On-Site Recognition. If Sponsor is granted any on-site recognition on or within the Stadium, as part of its Rights, such as signs, banners, kiosks, media backdrop, booths, tables or field boards (collectively, “Signs”) or public address, matrix board or other game day announcements (collectively, “Announcements”), (i) subject to the limitations set forth in Section 2.E.iii., such Signs shall be displayed and such Announcements shall be broadcast, published, distributed, displayed and/or communicated only during Home Games, (ii) the size and location of such Signs and the duration of such Announcements shall be reasonably determined by Licensor in accordance with League Rules, (iii) such Signs shall be furnished at the sole cost and expense of Sponsor and (iv) the design and content of such Signs and Announcements shall require the prior approval of Licensor.
D. Tickets and Other Items. If Sponsor is entitled to receive any tickets (VIP, premium, season, group, block, reserve or other), hospitality, coupons, merchandise or other items; or suite or parking passes (collectively, “Tickets”) as part of its Rights, such Tickets (i) may not be resold, (ii) shall be valid only for Home Games during the Term and (iii) shall be subject to availability (except “season” Tickets or Tickets for specifically designated Home Game dates). The Sponsor agrees to comply with the terms and conditions printed on any Tickets. To the extent Sponsor is entitled to receive any other items from Licensor, (e.g., balls, jerseys or t-shirts, etc.) such items may not be resold. Discount coupons may only be redeemed at Stadium’s box office or by mail properly addressed to Licensor. In addition, all costs and expenses attributable to in-suite catering shall be borne by Sponsor.
E. Commercial Spots. If Sponsor is granted broadcast commercial spots as part of its Rights, including, without limitation, scoreboard and other in-stadium video board spots (collectively, “Commercial Spots”), written copy for such Commercial Spots shall be delivered at least five (5) business days prior to the date of air and shall require the prior approval of Licensor. Unless otherwise specified in the Term Sheet, the duration of each such Commercial Spots shall be limited to thirty seconds (:30). Sponsor shall pay, and be responsible for, all costs and expenses attributable to the production of such Commercial Spots.
F. Print Advertising. If Sponsor is entitled to any print advertising, as part of its Rights, including, without limitation, in flyers, posters, newsletters, Game programs or Club media guides (collectively, “Print Advertising”), on or prior to the date specified by Licensor, Sponsor shall furnish, and pay all costs associated therewith, to Licensor camera ready, black and white (or color, if applicable) artwork for such Print Advertising for Licensor’s prior approval.
G. Appearances. If Sponsor is entitled to Club player/mascot appearances or participation in events or clinics (collectively, “Appearances”) as part of its Rights, such Appearances shall be subject to player/mascot availability, shall not exceed ninety minutes (90:00) in duration and shall be conducted in accordance with the policies and procedures established by Licensor. Licensor shall determine which player(s) shall participate in the Appearances. The payment of all costs and expenses attributable to any Appearance (including, without limitation, reasonable travel expenses) shall be borne by Sponsor unless otherwise set forth in the Term Sheet.
H. Sponsor Activities. If Sponsor is entitled to conduct campaigns, promotions, tournaments, contests, sweepstakes, giveaways or any other activities in conjunction with or related to the Club (collectively, “Promotions”) as part of its Rights, such Promotions shall require the prior written approval of the Licensor and all costs and expenses attributable thereto shall be borne by Sponsor. For contests and sweepstakes conducted by Sponsor, such costs and expenses may include legal fees to review contest or sweepstakes rules and regulations as well as third-party management of such contest or sweepstakes.
I. Digital Platforms. If Sponsor is granted any Rights (i) on or related to the Club’s Digital Platforms or (ii) to use Club Marks on Sponsor’s Digital Platforms, the activation of any such Rights shall require the prior approval of Licensor and all costs and expenses attributable thereto shall be borne by Sponsor. The exercise of the Rights in connection with Club’s and/or Sponsor’s Digital Platforms must be promotional in nature and may not include any rights for Sponsor to use any Club content (e.g., Game footage).
J. Miscellaneous. To the extent that Licensor or Sponsor are granted any Rights in the Term Sheet, the date, time, location or other specifics of which are not specified in the Term Sheet, such Rights shall be subject to the provisions of this Agreement and, if not fully addressed in this Agreement, such Rights shall be subject to the mutual agreement of Licensor and Sponsor.
7. CONSIDERATION. Subject to the provisions in Section 10, as consideration for the Rights granted to Sponsor in this Agreement, Sponsor agrees to pay the amounts under the payment terms and to provide the in-kind consideration, if any, to Licensor as set forth on the first page of this Agreement and/or in the Term Sheet. All payments shall be net of all applicable taxes or other deductions. Late payments shall be a material breach of this Agreement and may result in termination of this Agreement, in addition to all other rights and remedies available to Licensor. In the event goods, merchandise or other items are to be provided by Sponsor, Licensor reserves the right to return any or all defective items within thirty (30) days of receipt thereof for a refund of the full value thereof or for replacement items, at Licensor’s option.
8. INDEMNIFICATION.
A. Indemnification by Sponsor. Sponsor shall indemnify, defend and hold harmless Club, Licensor, MLR, MLR Canada, SUM, the Stadium owner, the Stadium operator, and each of their respective operators, owners, officers, directors, elected officials, Affiliates, members, shareholders, agents, representatives and employees (“MLR Indemnified Parties”) from any and all threatened or actual third-party claims of any kind based upon any theory of law or liability whatsoever (each a “Claim” and collectively, “Claims”), and all losses, damages, settlements, judgments, investigations, liabilities, charges, costs and expenses (including, without limitation, reasonable legal fees and expenses) (each a “Loss” and collectively, “Losses”) as and when incurred arising out of, incident to or in relation to:
i. the breach of any representation, warranty, term or condition of this Agreement by Sponsor;
ii. the unauthorized use, or allegation of such use, of the Club Marks by Sponsor;
iii. any infringing use, or allegation of such use, by Licensor of Sponsor Marks (provided that Licensor’s use of Sponsor Marks is in accordance with and as permitted under the terms of this Agreement);
iv. any Sponsor Materials (including any Claims of unfair or fraudulent advertising);
v. any alleged defects (design, manufacturing, handling or other) or inherent dangers in Sponsor's Products/Services/Retail Operations or Premiums or the use thereof; or
vi. any negligent act or omission,the willful misconduct, bad faith, or criminal wrongdoing of Sponsor, or any of its officers, owners, directors, members, agents, representatives, shareholders, subsidiaries and employees with respect to the subject matter of this Agreement.
B. Indemnification by Licensor. Licensor shall indemnify, defend and hold harmless Sponsor and its officers, directors, members, partners, employees and agents, from and against and in respect of any and all Claims and Losses, as and when incurred arising out, incident to or in relation to:
i. the breach of any representation, warranty, term or condition of this Agreement by Licensor;
ii. the unauthorized use, or allegation of such use, of Sponsor Marks by Licensor or Club;
iii. any infringing use, or allegation of such use, by Sponsor of Club Marks (provided that Sponsor’s use of Club Marks is in accordance with and as permitted under the terms of this Agreement); or
iv. any negligent act or omission, the willful misconduct bad faith, or criminal wrongdoing of Licensor and any of its officers, owners, directors, agents, representatives, members, shareholders, subsidiaries and employees with respect to the subject matter of this Agreement.
C. Procedures for Indemnification. The party seeking indemnification under this Agreement (“Indemnified Party”) shall give prompt notice to the other party (“Indemnifying Party”) of any Claim or Loss for which it intends to seek indemnification. The Indemnifying Party shall have the right to participate in and, at Indemnifying Party’s option, to control any defense, compromise, litigation, settlement or other resolution or disposition of such Claim or Loss. In no event shall the Indemnifying Party enter into any settlement of any Claim or Loss that imposes financial obligations or restrictions on the Indemnified Party or constituting an admission of guilt or wrongdoing by the Indemnified Party without the prior written approval of the Indemnified Party.
D. LIMITATION OF LIABILITY. EXCEPT FOR THE INDEMNITY OBLIGATIONS SET FORTH IN THIS AGREEMENT, ANY CONFIDENTIALITY OBLIGATIONS OR ANY CLAIMS OF INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS UNDER THIS AGREEMENT, NEITHER PARTY WILL BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, OR FOR LOSS OF REVENUE OR PROFIT IN CONNECTION WITH THE PERFORMANCE OR FAILURE TO PERFORM THIS AGREEMENT REGARDLESS OF WHETHER SUCH LIABILITY ARISES FROM BREACH OF CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY.
9. INSURANCE.
A. General Requirements of Sponsor’s Insurance.
Sponsor shall maintain the following insurance throughout the Term, and Sponsor shall cause its Affiliates, subcontractors, vendors, agents and other hired parties (“Sponsor Parties”) to comply with these insurance requirements. Sponsor shall provide Acord certificate(s) of insurance verifying the existence of such insurance at least ten (10) days prior to commencement of the operations contemplated in this Agreement and within three (3) business days following to policy renewal. Sponsor waives, and Sponsor shall cause its Sponsor Parties to waive, all subrogation and recovery rights in favor of MLR Indemnified Parties. Additionally, Sponsor’s insurance policies shall waive, or be endorsed to waive, rights of recovery by subrogation, in favor of the MLR Indemnified Parties and such waivers shall survive the termination and/or expiration of this Agreement. Such policies shall (i) be primary as respects MLR Indemnified Parties’ insurance, and not call for contribution from MLR Indemnified Parties’ insurance; (ii) be provided by insurers authorized to do business in the jurisdiction in which this Agreement will be performed, with AM Best ratings, at policy inception, of not less than A-:VIII; and (iii) provide limits no less than as indicated, which may be provided through any combination of primary and umbrella liability or excess liability policies.
B. Insurance Required of All Sponsors.
i. General Liability. Sponsor shall purchase and maintain commercial general liability written on an occurrence basis, and such coverage shall be no less broad than the most recent version of ISO CG 00 01. Any amending or exclusionary endorsements material to Sponsor’s obligations in this Agreement shall be disclosed to MLR at least ten (10) days prior to commencement of the operations contemplated in this Agreement. If Premiums, products or merchandise will be provided to third-parties, products / completed operations coverage shall be maintained for three (3) years after the expiration or termination of this Agreement. The MLR Indemnified Parties shall be named or included as additional insureds for ongoing operations on forms no less broad than and, if applicable: for completed operations, CG 20 37 04 13; for products (CG 20 15 04 13 and/or CG 20 35 04 13; nd/or manuscript endorsements suitable to Sponsor’s exposures under this Agreement). Based on the sponsors normal promotional level of liability insurance limits.
ii. Workers Compensation & Employers Liability. Sponsor shall purchase and maintain statutory workers’ compensation coverage compliant with the laws of the jurisdiction in which this Agreement will be performed, and with the laws of any jurisdictions in which the Sponsor’s workers are residents, or through which the Sponsor’s workers may travel in the course of this Agreement. Based on the sponsors normal promotional level of liability insurance limits.
C. Insurance Required of Certain Sponsors. Any other applicable insurance requirements are set forth in Exhibit B (attached if applicable)
D. Certificates of Insurance. In addition to the coverages required through this section, Sponsor’s insurance policies required under this Agreement shall provide that the insurance is primary and noncontributory to any insurance of the MLR Indemnified Parties, shall name or include MLR Indemnified Parties as additional insured and provide thirty (30) days’ notice of cancellation to the Licensor for other than non-payment of premium. The certificate of insurance provided by the Sponsor to the Licensor shall have attached endorsements or policy language verifying the terms required under this Paragraph E.
10. TERM, TERMINATION, BREACH.
A. Term. This Agreement shall become effective as of the date and year first written above and shall remain in effect through the end date as set forth on the first page of this Agreement (“Term”), unless sooner terminated pursuant to the provisions of this Agreement.
B. Termination.
i. Breach. If either party or any officer, employee, agent, representative, sublicensee or manufacturer of either party materially breaches any of its obligations under this Agreement or under any other agreement with the other party, and if such breach is not cured by the breaching party before the earlier of (x) fifteen (15) days after the non-breaching party sends written notice of such breach to the breaching party and (y) with respect to the breach of an agreement other than this Agreement, the applicable grace period under such other agreement, then the non-breaching party shall have the right to terminate this Agreement effective immediately.
ii. Bankruptcy. Either party may terminate this Agreement effective immediately upon the occurrence of one or more of the following events with respect to the other: (x) there is a cessation of operations or the institution against such party of a bankruptcy proceeding, dissolution, liquidation or the appointment of a trustee or a receiver or (y) such party makes an assignment for the benefit of creditors or admits in writing that it is unable to pay its debts as they become due.
iii. Termination by Licensor. Notwithstanding anything to the contrary in Section 10.B.i., in the event that Licensor enters into a (i) Stadium naming rights agreement or (ii) Club jersey sponsorship agreement with any entity other than Sponsor in the Sponsor Commercial Category then Licensor and/or Sponsor shall have the right to terminate this Agreement by giving thirty (30) days written notice to the other party. In the event of such termination, Licensor shall reimburse Sponsor the consideration paid in advance by Sponsor, if any, for the value of Sponsor’s undelivered Rights. This reimbursement of consideration shall be Sponsor’s sole and exclusive remedy for such termination.
C. Termination by League. In the event that League (i) enters into an exclusive global or national sponsorship agreement (including exclusive League and Club rights) at any time before the end of the Term of this Agreement with any entity other than Sponsor in the Sponsor Commercial Category or (ii) League does not release the Sponsor Commercial Category for Club sponsorship sale then MLR and/or Licensor and/or Sponsor shall have the right to terminate this Agreement either (x) upon expiration of the current League season, or (y) immediately if prior to the start of the League season. In the event of such termination, Licensor shall reimburse Sponsor the consideration paid in advance by Sponsor, if any, for the value of Sponsor’s undelivered Rights. This reimbursement of consideration shall be Sponsor’s sole and exclusive remedy for such termination.
D. Effect of Termination. Termination of this Agreement as provided herein shall be without prejudice to any other rights or remedies which the terminating party may have. In the event that any party terminates this Agreement, all Rights granted to hereunder shall immediately revert to the respective parties and both parties shall immediately and permanently cease all use of the other party's Marks.
E. Equitable Relief. Each party acknowledges and agrees that in the event of a breach or threatened breach by the other party of any provision in this Agreement relating to the Club Marks or Sponsor Marks, as applicable, the damage to the non-breaching party may be irreparable and extremely difficult to estimate, making any remedy at law or in damages inadequate and, accordingly, the non-breaching party shall be entitled to seek injunctive relief against the breaching party in such event in addition to any other relief (including damages) available to the non-breaching party.
F. Make-Goods. Except as set forth in Section 12.I., in the event that Licensor’s compliance with any provision or provisions of this Agreement is prohibited, limited or otherwise restricted under the terms of any other agreement, including without limitation, any broadcast agreement or any agreement in respect of the Stadium or to the extent that it may become impossible, undesirable or impracticable for Licensor to provide one or more benefits hereunder in accordance herewith (“Unavailable Benefits”), Licensor shall not be required to comply with such provision or provisions of this Agreement or otherwise provide such Unavailable Benefits and such noncompliance/failure shall not be deemed to be a breach of this Agreement by Licensor. However, with respect to any such Unavailable Benefit, the parties will consult in good faith regarding a substitute benefit having promotional value not materially less than that of the Unavailable Benefit (such value to be determined by good faith negotiation and agreement by the parties). Should no suitable substitute be agreed upon, Sponsor may terminate this Agreement. The value of consideration to be reimbursed shall be dated as of the date that benefits become unavailable to Sponsor.
11. REPRESENTATIONS AND WARRANTIES. Each party hereto represents and warrants to the other as follows:
A. It has the full power and authority to enter into this Agreement and to perform its obligations hereunder.
B. Its execution and delivery of and its performance under this Agreement have been duly authorized by all necessary corporate, limited liability company or other action (as applicable), and, to its knowledge, have not, do not and will not materially conflict with, violate, result in a breach or default of or otherwise materially adversely affect any rights of any third person or entity, whether now existing or hereafter arising or occurring. Licensor warrants that, except as may be provided under the terms of this Agreement, there are currently no Club or MLR sponsorship, advertising or partnership agreements which would conflict or compete with the rights granted in this Agreement, and Sponsor's exercise of any rights granted in this Agreement will not infringe upon any current agreements between MLR and other sponsors.
C. This Agreement is a legal, valid and binding obligation of it, enforceable against it in accordance with its terms.
D. No litigation or pending or, to its knowledge, threatened claims or litigation exist which do or would reasonably be expected to materially adversely affect its ability to fully perform its obligations hereunder.
E. The exercise of the Rights pursuant to this Agreement shall be subject to all Applicable Laws, regulations and decrees in the countries within which such Rights are to be exercised (including, without limitation, all applicable local, state, regional and national laws). All uses of the Club Marks by Sponsor and all of Club's use of Sponsor Marks shall comply with all Applicable Laws.
F. It has or shall obtain all licenses, agreements, permits, waivers, releases, registrations, approvals and/or authorizations required in connection with this Agreement and that such licenses, agreements, permits, waivers, releases, registrations, approvals and/or authorizations will be valid and sufficient for the performance of its obligations hereunder.
G. The non-owning party’s use of the Club Marks or Sponsor Marks, as applicable, as approved by the granting party, will not infringe or violate the rights of any third-party and will not give rise to any payment obligation on the part of the using party to any third-party.
12. MISCELLANEOUS.
A. League Rules. This Agreement and all Rights granted to Sponsor under this Agreement are subject and subordinate to and limited by the League Rules as they may exist and be modified from time to time. In the event of any conflict or inconsistency between the terms and conditions of this Agreement and the provisions of any League Rule, such League Rule shall govern. Should any modification of League Rules occur that would affect the terms and rights granted in this Agreement, Licensor shall provide notice to Sponsor and shall negotiate in good faith to reach a mutually satisfactory arrangement to substitute rights of comparable value. If Licensor and the Sponsor, negotiating in good faith, are unable to reach a mutually satisfactory arrangement of rights of comparable value, Licensor and the Sponsor shall negotiate, in good faith, an equitable adjustment in the fees payable pursuant to Section 7, or where such fees are prepaid, an equitable reimbursement by Licensor.
B. Collective Bargaining Agreement/Group License Agreement. The Rights granted to Sponsor in this Agreement including the Term Sheet are subject to the terms and conditions of a possible Collective Bargaining Agreement.
C. Survival. The provisions of Sections 3.A.ii., 5.B., 8, 9, 10.E., 12.C., 12.F., 12.K and 12.L. of this Agreement shall survive expiration or earlier termination of this Agreement.
D. Conflict. In the event that any provisions of this Agreement contradict, modify, supplement or are otherwise different from any provisions in the Term Sheet, the provisions of this Agreement shall govern and shall modify, supplement and supersede such provisions in the Term Sheet in every such instance unless this Agreement specifically provides otherwise. Should this Agreement completely vitiate the terms of the Term Sheet, this Agreement shall be void.
E. Assignment; Successors and Assigns; Amendment. Except to an Affiliate that conducts Sponsor’s Products/Services/Retail Operations, is at least as creditworthy as Sponsor and agrees in writing to be bound by the terms hereof, Sponsor shall not assign, sell, transfer, delegate or otherwise dispose of, whether voluntarily, involuntarily by change of control or by operation of law, any rights or obligations under this Agreement, without the prior written consent of Licensor. Licensor may assign, including without limitation to MLR or RUM, any rights or obligations under this Agreement without the prior written consent of Sponsor. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, legal representatives, successors and permitted assigns. This Agreement may not be amended, modified or supplemented except by a written instrument duly executed by each of Licensor, Sponsor and MLR.
F. Confidentiality. Except as required by law or upon mutual agreement of the parties, neither party shall publicly disclose or publicize in any manner any of the specific terms of this Agreement at any time.
G. No Joint Venture or Partnership. This Agreement shall not create a joint venture, partnership, principal-agent, employer-employee or similar relationship between Licensor and Sponsor or between League and Sponsor.
H. Severability; Waiver. If any provisions of this Agreement or any portions thereof are invalid, illegal or unenforceable, the other provisions of this Agreement or portions thereof shall remain in full force and effect. Any failure of Licensor or Sponsor to comply with any provision of this Agreement may only be waived expressly in a written instrument duly executed by each of Licensor and Sponsor.
i. None of the parties shall be in breach of this Agreement if the performance by that party of any of its obligations hereunder is prevented or preempted because of acts of God, civil or military authority, acts of public enemy, war, accidents, fires, explosions, earthquakes, floods, the elements, strikes or labor disputes (other than MLR Work Stoppages except as contemplated in Section 12.I.ii below) or any cause beyond the party’s reasonable control (each, an “Event of Force Majeure”), for such period of time as such event continues, provided that the party prevented from performing uses all reasonable efforts to perform such obligation once such event has ceased. However, in no event shall any act or omission by or on the part of any party, or any inability on the part of any party hereunder to pay any amount owing hereunder, constitute or be deemed to be considered any event beyond the reasonable control of such party.
ii. In the event of a strike by the Major League Rugby Players Union or a lockout of the MLR players by MLR (in either case an “MLR Work Stoppage”), that causes the pre-emption of one (1) or more Games, all obligations of the parties hereunder shall continue; when the MLR Work Stoppage has ceased, in order to make up for any of the Sponsor’s Rights related to the Club under the Agreement that could not be exercised by the Sponsor as a result of the cancellation of Games due to the MLR Work Stoppage, the Sponsor and Licensor shall negotiate in good faith to reach a mutually satisfactory arrangement of comparable value by means of rescheduling, substitution, alternative performance, or similar means. If Licensor and the Sponsor, negotiating in good faith, are unable to reach a mutually satisfactory arrangement of comparable value by means of rescheduling, substitution, alternative performance or similar means, Licensor and the Sponsor shall negotiate, in good faith, an equitable adjustment in the fees payable pursuant to Section 7, or where such fees are prepaid, an equitable reimbursement by Licensor.
J. Selection Process. Sponsor acknowledges that its selection to enter into a relationship with Licensor is not based on the results of any quality comparison between Sponsor’s Products/Services/Retail Operations and other competitive products/services/retail operations. Sponsor agrees that it shall not represent otherwise.
K. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Utah, without regard to its conflicts of laws principles.
L. Jurisdiction. Any action or proceeding seeking to enforce any provision of, or based on any rights arising out of, this Agreement may be brought against either of the parties in the exclusive jurisdiction of the state and federal courts located in Salt Lake, Utah,, and each of the parties consents to the jurisdiction of such courts (and of the appropriate appellate courts) in any such action or proceeding and waives any objection to venue laid therein. Process in any action or proceeding referred to in the preceding sentence may be served on either party anywhere in the world.
M. Notices. All notices, approvals, consents and/or payments to the Licensor shall be in writing and given by (i) personal service (which, for the purposes hereof, shall include courier/overnight delivery) or (ii) by certified mail to:
Utah Warriors
PO Box 307
Draper, UT 84020
Attention: CEO/General Manager
With a copy to:
Major League Rugby, L.L.C.
125 West Burton Ave, No. 2
Salt Lake City, UT 84115
Attention: Legal Department
Email: pmoore@rwolaw.com
All notices, approvals, and/or consents to be given to Sponsor shall be in writing and be given by (i) personal service (which, for the purposes hereof, shall include courier/overnight delivery) or (ii) by certified mail to the Sponsor Representative set forth on the first page of this Agreement.
N. Counterparts. This Agreement may be executed in any number of counterparts; each of which when executed and delivered shall be an original, but all such counterparts shall constitute one and the same agreement. Any signature page of this Agreement may be detached from any counterpart without impairing the legal effect of any signatures thereon and may be attached to another counterpart, identical in form thereto, but having attached to it one or more additional signature pages. PDF or facsimile signatures shall have the same effect as original signatures.
O. Entire Agreement. This Agreement constitutes the entire agreement of the parties hereto and the provisions hereof supersede, and may not be contradicted, modified or supplemented by, evidence of any prior or contemporaneous agreements or understandings relating to the same subject matter, whether written or oral.
P. Headings. The headings of the sections of this Agreement are for reference purposes only and shall not constitute a part hereof or affect the meaning or interpretation of this Agreement.
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