Exhibit 10.9
[LOGO OF STATS INC.]
October 7, 2002
VIA E-mail:
clive@silverstarholdings.com
Clive Kabatznik
Silverstar Holdings
dba Fantasy Sports Enterprises
6100 Glades Road
Suite 305
Boca Raton, FL 33434
Tel: 561-479-0040
Fax: 561-479-0757
RE: Agreement between SPORTS TEAM ANALYSIS AND TRACKING
SYSTEMS OF
MISSOURI,
INC. ("STATS")
and FANTASY SPORTS ENTERPRISES ("FSE")
Dear Mr. Kabatznik:
This letter sets forth the Agreement ("Agreement") between STATS and FSE,
whereby STATS shall host, maintain, manage, and operate sports fantasy games
(collectively, the "Games") in an online version on FSE' World Wide Web
site,
including the following URL addresses:
http://fantasycup.com;
http://fantasycup.org; http://fantasycup.net;
http://fantasystockcar.com;
http://fantasynhra.com; and
http://fantasynascar.com (collectively, the "Site").
The parties agree as follows:
1. Performance by STATS.
(a) STATS shall
provide all necessary
technical services required to host,
operate, and administer the Games,
including but not limited to,
administering all customer interfaces for
registrations, e-mail,
message board
and web reports. A description of the Games
and the relevant launch dates is set
forth on Exhibit A attached hereto. STATS agrees to use its best
efforts to
provide service to FSE error free.
STATS shall correct
any errors in accordance
with the Service Level Agreement ("SLA")
attached hereto as Exhibit C.
(b) STATS shall
license to FSE, on a non-exclusive basis, the use of STATS'
proprietary sports information and data
(the "Licensed Information") as required
for use in the Games.
(c) STATS shall
host FSE's company email.
(d) STATS shall provide to FSE with access to the production and
development software code for the Games and
an administrative tool to access all
user registration information including names, addresses, phone numbers and
e-mail addresses. FSE shall be responsible for all errors and/or damages
resulting from the acts of FSE
personnel.
(e) STATS shall
provide personnel to
interface with FSE'S customer service
staff to address technical/user experience
issues.
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2. Performance by FSE:
(a) FSE shall
timely provide to STATS any templates, graphics and other
materials required in the development of the pages on which the Games
shall
reside.
(b) FSE shall be
responsible for all customer contact, including, without
limitation, providing telephone and/or email customer service, billing and
collection matters, and credit card processing and all associated fees and
charges.
(c) FSE shall be
responsible for the promotion, marketing, and advertising
for the Games ("Marketing"), including, without limitation, all expenses, and
costs associated with Marketing.
(d) FSE shall
acquire any and all necessary permissions and licenses from
players, coaches, drivers, leagues, associations or their agents or
any other
party and pay any associated royalties required in connection with the
operation, marketing, advertising, sale, distribution, or publication of the
Games ("Professional Licenses").
(e) In the event
any of the Games shall award prizes, FSE shall be solely
responsible for: (i) obtaining prizes and satisfying any applicable bonding
requirements; (ii) satisfying any state, federal, or other governmental
regulations regarding registration of the Games; and
(iii) distributing prizes
to the winners. The Site shall contain
appropriate language regarding FSE'S sole
responsibility for paying prizes.
3. Rights and Licenses.
(a) Ownership by
STATS. FSE hereby
acknowledges
STATS' ownership of:
(i)
the Licensed Information and (ii) STATS'
trademarks,
trade names,
logos, etc
(collectively, "STATS Properties"). Nothing in this Agreement shall be
interpreted to provide for the assignment by STATS to FSE of any of
STATS'
Properties or any of STATS' intellectual property rights in such STATS
Properties. Nothing in this Agreement shall limit STATS' rights to use,
reproduce, enhance, modify, distribute and otherwise exploit the Licensed
Information. Nothing in this Agreement shall restrict STATS' rights to use
STATS' Properties.
(b) Ownership by
FSE. STATS hereby acknowledges FSE'S ownership of: (i) the
Games (but excluding any STATS' Properties)
and that STATS development work with
respect to the Games shall constitute "works made for hire" for FSE
within the
meaning of the copyright laws of the United States and (ii) FSE'S trademarks,
trade names, logos, etc (collectively, "FSE Properties"). Nothing in this
Agreement shall be interpreted to provide for the assignment by
FSE of any of
FSE'S Properties or any of FSE'S intellectual property rights in such FSE
Properties. Nothing in this Agreement shall restrict FSE'S rights to use
FSE
Properties.
(c) Non-Exclusive License. During the Term, STATS hereby
grants to FSE a
non-exclusive, worldwide license to reproduce, market, and distribute the
Licensed Information solely for use with
the Games.
4. Consideration: In
consideration for the services performed by STATS for FSE
in connection with this Agreement, the parties agree to pay the sums
set forth
on Exhibit B attached hereto.
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5. Term. The term of this Agreement shall commence upon its execution
(the
"Effective Date") and shall terminate on
October 31, 2003 (the "Term"), unless
sooner terminated as provided in this Agreement. The Agreement shall
automatically renew for a period of one (1) year upon the same terms and
conditions unless either party notifies the
other party in writing of its desire
not to renew the Agreement no less than
sixty (60) days prior to the expiration
of the Term.
6. Trademarks, Trade Names and
Related Matters.
(a) STATS Name
and Trademarks.
Subject to
approval of such use
by STATS,
STATS hereby grants to FSE a non-exclusive
license to use STATS' name, logo, and
any other applicable trademarks in
connection with Marketing.
(b) FSE's Name
and Trademarks.
Subject to approval of such use by FSE, FSE
hereby grants to STATS a non-exclusive
license to use FSE's
name, logo, and any
other applicable trademarks in connection
with the Games on the Site.
(c) STATS Logo.
The STATS logo shall
be displayed on all pages of the Site
that introduce the Games and/or
Licensed Information. On pages that introduce
the Games, the logo shall be preceded by language crediting STATS and
acknowledging that the Games are "Powered
by STATS, Inc." The size and placement
of the STATS logo on the Site shall be
mutually agreed upon by the parties but
in no event shall the size of the logo be
less than 102 x 27 pixels.
(d) STATS
Copyright.
The following
copyright notice shall appear on all
pages of the Site that display the Licensed Information: "Statistical Data
Copyright xxxx (where xxxx denotes the
current year) by STATS, Inc. All rights
reserved. Any commercial use or distribution without the express written
permission of STATS, Inc. is strictly
prohibited."
7. Confidential Information.
The parties agree that
during and after the Term
they shall not, except for purposes of this
Agreement, use for their own benefit
or for the benefit of any person, firm,
corporation or other
entity, any secret
or confidential information, solicitation methods, confidential pricing
information or any other data pertaining to
their respective businesses, or any
affiliates thereof, their respective financial affairs
or any other information
obtained hereunder regarding each other not generally known within their
respective trades, or as a matter of public
knowledge or patent, trademark,
trade name, service mark, copyright or
other intellectual
property of the other
except as authorized by this Agreement.
8. Termination. Notwithstanding anything in this Agreement to the contrary,
this Agreement shall immediately terminate
(i) upon the insolvency or bankruptcy
of either party, if either party makes an assignment for the benefit of
creditors or a receiver, trustee or liquidator is appointed for all or a
substantial portion of either party's properties or (ii) upon the breach by
either party of any of their obligations under this Agreement which breach is
not cured within thirty (30) days after
written notice thereof
to the breaching
party.
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9. Obligations Upon
Termination.
(a)
Post-Termination
Payments. The termination of this Agreement shall not
relieve either party of its obligations to account for and pay
sums due to the
other party hereunder relating to any period prior to
the termination of
this
Agreement. In addition, if this Agreement is
terminated as a result of a breach
hereof by FSE, the fees set forth on Exhibit B shall accelerate and become
immediately due and payable in full to
STATS.
(b) Additional
Post-Termination
Obligations.
Following the
expiration of
the Term of this Agreement or the earlier
termination of the
Agreement for any
reason, each party shall return to the other or shall
destroy all
documents,
material and information with respect to any confidential or proprietary
information of the other. Immediately upon destruction of any confidential
or
proprietary information, FSE/STATS shall provide STATS/FSE with an affidavit
signed by an officer or legal representative of FSE denoting the items
destroyed, the manner of destruction, and
the date of the destruction. Upon such
expiration or termination, each party shall
cease any and all use, reproduction,
marketing, and distribution of the trademarks, trade names, service marks,
patents or other intellectual and personal
property of the other.
In the event
of termination of this agreement for any reason,
STATS shall download
all game
code and user database files and other data on the hosted
site to a DAT Tape or
CD and deliver such materials to FSE within 5 business
days. STATS shall keep
the site publicly accessible for a period of 14 days following the date of
termination of this agreement. If the transfer requires a change in the
domain
name, immediately upon the date that the
hosted site is no longer publicly
accessible, and for a period of one month
thereafter maintain
the hosted sites
URL, provide one page that FSE may use to
direct its users to
its new hosted
site or some other URL of FSE's choosing;
and if the transfer does not require a
change in the domain name, cooperate with FSE in assigning a new IP
address to
the domain name as FSE may request and
transferring all operations of the hosted
site to new provider. On FSE's written demand within five days
following the
termination of this agreement, STATS shall maintain one complete electronic
version of FSE's hosted site and shall delete all other versions., Upon
notification by FSE to STATS in writing
that the transferred
files appear to be
complete, STATS shall delete its final copy of FSE's
hosted site from
STATS'
computers.
10. Representations and Warranties. Each party represents and warrants
to the
other that it is authorized to enter into this Agreement and perform its
obligations hereunder. FSE represents that
it shall be responsible for obtaining
any and all Professional Licenses in connection with the
operation of the Site
and FSE's use of the Games and Licensed
Information.
11. Disclaimer of Implied Warranties. EXCEPT AS PROVIDED HEREIN, STATS
DISCLAIMS ALL WARRANTIES WITH RESPECT TO ITS WORK UNDER THIS AGREEMENT,
INCLUDING WITHOUT LIMITATION, THE
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
12. Indemnification. Notwithstanding anything contained in this Agreement to
the contrary, the parties hereby agree to
defend, indemnify and
hold each other
harmless from and against any and all claims, demands, lawsuits, damages,
injuries, losses, expenses (including reasonable attorney's fees), and
liabilities to the extent resulting from or related to any
third-party
claims
arising out of or relating to any breach by
either party of any
representation,
warranty, duty or obligation contained
herein.
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13. Relationship Created. The relationship of the
parties created hereby shall
be that of independent contractors and not
as partners or joint venturers.
14. Limitation of Liability.
Notwithstanding
anything herein to the
contrary,
under no circumstances shall STATS be liable for any
special, consequential
or
incidental damages in connection with its
obligations under this Agreement, and
in any event, the liability of STATS for
any act of negligence or breach of this
Agreement shall not exceed the amount paid
by FSE to STATS in
connection with
this Agreement during the twelve (12) month
period immediately
preceding the
date of any claim.
15. Equitable Remedies. In the event
of any breach of the provisions of Section
7 hereof, the parties hereto agree that
remedies at law will not be adequate and
each shall be entitled, in addition to damages,
to preliminary and permanent
injunctive relief (without the necessity of posting
of bond) to prevent a then
occurring or an about to occur breach, as
well as an equitable accounting of all
profits or benefits arising out of such
breach, which rights
and remedies shall
be cumulative and in addition to any other rights or remedies to which the
parties may be entitled.
16. Notices. All notices and other
communications
required hereunder
shall be
in writing and deemed to have been given
when personally
delivered,
three (3)
days after being mailed by certified mail, return receipt request, postage
prepaid, one (1) day after being sent by Federal Express or other nationally
recognized overnight courier with
guaranteed next day delivery, or upon delivery
by facsimile with confirmed receipt and confirmation via regular mail, to the
address or fax number, as the case, may be set forth below, or such other
address or fax number as either
party may direct by
notice given to the
other
party as provided below:
If to STATS:
Sports Team Analysis and Tracking Systems,
Inc.
8130 Lehigh Avenue
Morton Grove, IL 60053
Attn: Alan Leib
Fax: (847) 470-9183
with a copy to:
Sports Team Analysis and Trackin
