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Title: SPONSORSHIP AGREEMENT
Governing Law: New York Date: 1/3/2007
Industry: Computer Services Law Firm: Sichenzia Ross Friedman Ference LLP
THIS SPONSORSHIP AGREEMENT (“Agreement”), consisting of these Standard Terms (“Standard Terms”) and the Term Sheet attached hereto and incorporated by reference herein as Exhibit A (“Exhibit A”) is effective as of December 27, 2006 (the “Effective Date”), by and between ALPHATRADE.COM, a Nevada corporation, whose address is 1111 West Georgia Street, Vancouver, BC Canada V6E 4M3 ("Sponsor"), and PROFESSIONAL BULL RIDERS, INC., whose address is 6 South Tejon Street, Suite 700, Colorado Springs, CO 80903 ("PBR") (collectively the “Parties”).
Unless otherwise defined in these Standard Terms, all capitalized terms used in these Standard Terms shall have the meanings ascribed to such terms in Exhibit A.
PBR is the organizer and promoter of a number of top-level professional bull riding events, including the Built Ford Tough Series (“BFTS”), which includes a number of top level, professional bull riding events (“BFTS Events”), culminating in an annual championship event (“World Finals”). Each competitive event of the BFTS leading to the World Finals, and the concluding four competitive performances during each World Finals will sometimes be referred to herein as an “Event” or “Events”; and
AlphaTrade.com has a mission, "To organize the world's financial information and make it universally accessible and useful." Sponsor has determined that its sponsorship support for PBR and the Events will result in favorable and valuable product exposure for Sponsor’s products and services, and PBR has determined that Sponsor’s sponsorship support will be beneficial to PBR, the BFTS Events and PBR members.
RIGHT OF FIRST REFUSAL to continue as the “Official Financial Information Sponsor of the PBR” : Sponsor shall have the RIGHT OF FIRST REFUSAL to purchase additional seasons to continue as the “Official Financial Information Sponsor of the PBR” for additional fees and on terms to be determined by mutual agreement of the Parties. If another company shall propose to PBR to sponsor this category in contemplation of the expiration of this Agreement, or if PBR shall propose in writing to another potential sponsor for this category to be effective after the expiration of this Agreement, such terms, fees, and costs therefore (“Sponsorship Proposal”) shall be presented promptly to Sponsor after PBR receives such proposal from, or delivers such proposal to, another entity for the product category covered by this Agreement. Sponsor shall have five (5) business days after receipt of the Sponsorship Proposal from PBR within which to accept it on the terms presented. If Sponsor does not accept such proposal on such terms within such time, PBR shall be free to contract with any third party with respect to any such rights, or category (the “Refused Category”). Notwithstanding the Right of First Refusal above, PBR will work with Sponsor in good faith to attempt to renew this Agreement for up to 3 years, subject to agreeing on terms and fees that would be mutually acceptable to both parties.
THEREFORE, in consideration of the mutual covenants contained in this Agreement and other good and valuable consideration, the receipt and legal sufficiency of which are hereby expressly acknowledged, the Parties agree as follows:
I. Term of Agreement
1.1 Term . Unless otherwise specified in Exhibit A, the term of this Agreement will commence on the Effective Date and end upon conclusion of the 2007 World Finals, unless sooner terminated in accordance with the provisions of this Agreement (the “Term”). If applicable, each PBR competition season (beginning with the first BFTS Event of that competition season and ending with completion of that competition season’s World Finals) throughout the Term of this Agreement will be referred to as a “Contract Year.”
1.2 First Right of Renewal . Sponsor may, by written notice given to PBR on or before April 1, 2007 for the 2008 Contract Year, extend the Term for three (3) additional Contract Years, subject to mutual agreement regarding fees to be charged.
II. Rights and Obligations of the Parties
2.1 Grant of License . PBR grants to Sponsor a non-exclusive, non-transferable, limited license to use, throughout the Term but not thereafter, in the United States and its territories and possessions and subject to PBR’s pre-approval, PBR’s name and certain of its logos, trademarks and service marks, together with related artwork, composite works and derivative works (collectively, the “PBR Trademarks”), for the limited purpose of advertising and marketing Sponsor and Sponsor’s products and services in direct association with PBR, Sponsor’s sponsorship of PBR, the BFTS, and the Events. PBR agrees that, during the Term, Sponsor shall have the right within the United States and its territories and possessions, to refer to itself as an “Official Sponsor of The Professional Bull Riders,” or the “Official other (TBD) Company of the PBR,” using those words or words of comparable meaning. PBR reserves the right to grant rights and/or licenses of any kind or nature whatsoever relating to the PBR Trademarks to any sponsor, advertiser or other third party.
During the Term, PBR will not enter into any sponsorship agreement with any person or entity, other than Sponsor, whereby such entity or person is granted the right to refer to itself or its products or services as the “Official “Financial Information Sponsor” of The Professional Bull Riders,” or the “Official Financial Information Company of the PBR,” whether using those words or words of comparable meaning.
In return for the rights and benefits provided to Sponsor hereunder, Sponsor hereby grants to PBR and its affiliate, PBR-TV, Inc., the right and license, throughout the Term hereof, to use, display, publish, reproduce, copy, make derivatives of, distribute and exploit Sponsor's name and certain of its logos, trademarks and service marks, together with related artwork designated in Exhibit “B” (collectively, the “Sponsor Trademarks”) in the advertisement, marketing, or promotion of PBR, the BFTS Events, and the Events, and on PBR branded or produced merchandise, as well as a license to use, exploit, display, publish and distribute the Sponsor Trademarks in signs, banners, logo presentations, public announcements, promotional materials, posters, and other materials and communications produced, displayed or otherwise used at or in connection with PBR and the BFTS Events, and the Events.
Sponsor acknowledges that the Sponsor Trademarks may be captured and/or incorporated (“Captured Sponsor Trademarks”) in audio/visual works and recordings created, captured and/or recorded at or in connection with the Events and associated activities (“Event Recordings”). Sponsor grants to PBR and its affiliate, PBR-TV, Inc., a world-wide, perpetual license and right to use, exploit, copy, reproduce, display, publish, perform, transmit, televise and distribute any and all Event Recordings that include Captured Sponsor Trademarks in television and radio broadcasts, pictures, photographs, films, video recordings and/or any other audio/visual works. Sponsor further acknowledges and agrees that PBR is the exclusive owner of all right, title and interest in and to all Event Recordings, including all copyright and other intellectual property rights and goodwill therein. Accordingly, PBR may exercise its exclusive copyright rights to use, publish, display, perform, reproduce, distribute, license, transmit, and create derivative works from, the Event Recordings in any form or through any medium.
2.4 Promotional Products and Materials . Sponsor may use the PBR Trademarks only on Promotional Products and Promotional Materials, as defined below, and not on any products or materials offered or intended for sale by Sponsor, or on any Sponsor products, product packaging, hang tags, or other collateral materials directly associated with the sale of AlphaTrade.com products or services, without the express prior written approval of PBR.
Before Sponsor uses, displays, publishes, reproduces, distributes or exploits, in any manner or medium, any products using, displaying, bearing, or incorporating the PBR Trademarks, or any portion thereof, for promotional purposes ("Promotional Products") and before Sponsor uses, displays, publishes, reproduces, distributes or exploits the PBR Trademarks, or any portion thereof, in or on any advertising, promotional, publicity or display materials (collectively, "Promotional Materials"), Sponsor will submit such Promotional Products or Promotional Materials to PBR for its approval, which shall not be unreasonably withheld. For purposes of this Agreement, Promotional Products include only products distributed by Sponsor without charge to persons attending the Events, Sponsor employees, and Sponsor customers and do not include any products offered or intended for sale.
For Promotional Products, Sponsor will submit to PBR for approval, for each item or product to be used, displayed, published, reproduced, distributed or otherwise exploited displaying, bearing or incorporating any PBR Trademarks, either: (i) finished artwork or final proofs; (ii) pre-production samples or strike-offs; or (iii) a sample of each such item or product. Sponsor will also advise PBR, in writing, how and to whom such Promotional Products will be used, displayed, published, reproduced distributed or exploited. For Promotional Materials, Sponsor will submit to PBR for approval, as appropriate to the medium used, either: (i) pre-production art or rough cuts; (ii) layout, storyboard and script; or (iii) finished materials or samples of advertisements. Sponsor will also advise PBR, in writing, where such Promotional Materials will appear, i.e. , in which publications, on the Internet, etc . Within ten (10) business days after receiving a submittal and request for approval from Sponsor, PBR will provide Sponsor with written notice approving or disapproving the Promotional Product or Promotional Materials submitted. If written approval from PBR is not received within ten (10) business days, the submittal will be deemed disapproved.
In addition, if at any time during the Term hereof, Sponsor desires to use, display or distribute any products or materials at or in association with one or more of the Events, whether or not bearing or displaying the PBR Trademarks, Sponsor shall prior to any such use, display or distribution submit representative samples of the products or materials to be used, displayed or distributed to PBR for its approval, including, but not limited to, approval as to the use of all PBR Trademarks, the design and creative elements of the products and/or materials, and the quantity, method and location of use, display or distribution, which approval shall not be unreasonably withheld.
2.5 Acknowledgement . Sponsor acknowledges and agrees that this Agreement does not limit or restrict PBR’s rights or the rights of any of PBR’s other sponsors, advertisers or business partners to grant licenses to third parties for the use of their own respective trademarks and logos.
Sponsor further acknowledges that use, display, publication, reproduction, copying, distribution, alteration, creation of derivatives, licensing or other exploitation of the names, trademarks, trade names, service marks, logos or other intellectual property, including composite or derivative marks such as the BFTS Series and World Finals logos, of PBR’s other sponsors, advertisers, affiliates, agents, vendors and contractors including, but not limited to, Ford Motor Company (“Ford”), V.F. Jeanswear (“Wrangler”), and Amp’d Mobile, Inc. (“Amp’d”) are not licensed or granted hereby and require the consent of the owner or holder of such intellectual property. Except to the limited extent as may be provided in Exhibit A during the Term, this Agreement also does not grant nor purport to grant to Sponsor the right to use, display, publish, reproduce, copy, distribute, alter, create derivatives of, license or otherwise exploit, in any way, the name, signature, image, likeness, photograph, persona, or other distinctive personal elements or publicity rights of any PBR member, bull rider, bullfighter, judge, official or Event participant or attendee. If desired, Sponsor must obtain any such rights from the PBR member, participant or attendee him/herself. Upon request of Sponsor, PBR will devote commercially reasonable and diligent efforts to assist Sponsor in obtaining any such rights.
2.6 PBR’s Obligations . Please see Exhibit A .
2.7 Additional Promotions and Exposure . Please see Exhibit A .
2.8 Commercial Material . All logo presentations and other Sponsor brand exposure to be provided as part of the Agreement will be of a design and content selected by Sponsor, subject to the reasonable approval of PBR, which approval will not be unreasonably withheld, conditioned or delayed. Sponsor shall furnish, at its sole expense, each of Sponsor’s (i) logo presentations to be displayed as provided in the Agreement; and/or (ii) as applicable, commercial messages to be broadcast (“Commercial Material”) in accordance with the technical and delivery requirements of PBR and, in the case of commercial messages, PBR-TV, Inc. and the applicable broadcast network (“Network”), including, but not limited to, all commercial format, commercial message time, musical composition, commercial approval submission, and integration requirements applicable to the Commercial Material(s). Sponsor shall be solely responsible for all content of any Sponsor logo presentations and/or commercial messages delivered to PBR or displayed and/or aired pursuant to this Agreement, as well as all applicable intellectual property rights used, and releases needed, in connection with such logo presentations and/or commercial messages including also, but not limited to any necessary musical clearance rights. All salary, commissions, social security taxes, union fees, employer taxes, fees, licenses, permits, residuals, royalties, and all other obligations and liabilities (whether as to talent employed by Sponsor on Commercial Material furnished by Sponsor hereunder or otherwise) shall be borne and assumed by Sponsor. Sponsor shall bear all costs and expenses incurred in connection with the design, production, use and delivery of the Commercial Material, including, but not limited to, all graphic materials expenses; recording, video tape, or film expenses; shipping and insurance expenses; customs and clearance charges. If applicable, Sponsor is responsible for any integration charges or other technical charges charged by the Network for insertion or integration of Sponsor's Commercial Material. Neither PBR nor PBR-TV, Inc. shall be liable for loss of, damage to, or other impairment of the value of any property or materials furnished or delivered by Sponsor.
Please see Exhibit A for additional details.
III. Sponsorship/Investment Fees .
3.1 Sponsorship Fees . Please see Exhibit A .
3.2 Additional Consideration. Please see Exhibit A .
4.1 Sponsor Trademarks . Notwithstanding the limited rights granted to PBR in Section 2.1 of this Agreement, the Sponsor Trademarks will remain the property of Sponsor. Any and all rights and interests in and to the Sponsor Trademarks under trademark or copyright law, as well as all other intellectual property rights and goodwill therein, will inure to the benefit of and be the exclusive property of Sponsor.
4.2 PBR Trademarks . Notwithstanding the limited rights granted to Sponsor in Sections 2.1 and 2.2 of this Agreement, the PBR Trademarks will remain the property of PBR. Any and all rights and interests in and to the PBR Trademarks under trademark or copyright law, as well as all other intellectual property rights and goodwill therein, will inure to the benefit of and be the exclusive property of PBR. Sponsor’s right to use the PBR Trademarks under this Agreement is non-assignable and nontransferable and will be only for the Term.
5.1 Sponsor Indemnification . Sponsor hereby indemnifies, defends and holds harmless PBR, its parents, subsidiaries and affiliates, and their respective officers, directors, agents, employees and contractors, from and against any and all claims, actions, liabilities, damages, costs, expenses or losses of any kind whatsoever (including reasonable attorneys’ fees and disbursements) arising out of or resulting from: (i) any negligent acts or omissions or willful misconduct of Sponsor and/or its agents or employees; (ii) any material breach by Sponsor of any of its obligations, covenants, agreements, warranties or representations under this Agreement; (iii) any material, product or information provided by Sponsor or any advertising, marketing, promotional or informational materials, Commercial Materials, products or information created, produced, published, displayed or distributed by Sponsor hereunder; or (iv) any bodily injury, death or property damage proximately caused by Sponsor and/or its agents or employees.
It is further agreed and understood that neither Sponsor nor any of its officers, directors, employees, contractors or agents will seek, receive or in any way be entitled to any of the benefits or insurances provided by PBR to its employees, (including, but not limited to medical, workers compensation, unemployment, or other insurance coverage or benefits). Sponsor shall be solely responsible for obtaining, maintaining and complying with any such benefits and/or insurances as may be required or desired. Sponsor hereby waives, releases, indemnifies and holds harmless PBR, its parents, subsidiaries and affiliates, and their respective officers, directors, employees, agents, contractors, representatives and insurers, from and against any claim, suit, action, cost, damage, loss or liability arising out of or relating to any failure on behalf of Sponsor or any of its officers, directors, employees, contractors or agents to comply with the requirements of this paragraph.
5.2 PBR Indemnification . PBR, hereby indemnifies, defends and holds harmless Sponsor, its parents, subsidiaries and affiliates, and their respective officers, directors, agents, employees and contractors, from and against any and all claims, actions, liabilities, damages, costs, expenses or losses of any kind whatsoever (including reasonable attorneys’ fee and disbursements) relating to or resulting from: (i) any negligent acts or omissions or willful misconduct of PBR and/or its agents or employees; (ii) any material breach by PBR of any of its obligations, covenants, agreements, warranties or representations under this Agreement; (iii) any material, product or information provided by PBR or any advertising, marketing, promotional or informational materials, products or information created, produced, published, displayed or distributed by PBR hereunder; or (iv) any bodily injury, death or property damage proximately caused by PBR and/or its agents or employees. ÈTµ
It is further agreed and understood that neither PBR nor any of its officers, directors, employees, contractors or agents will seek, receive or in any way be entitled to any of the benefits or insurances provided by Sponsor to its employees, (including, but not limited to medical, workers compensation, unemployment, or other insurance coverage or benefits). PBR shall be solely responsible for obtaining, maintaining and complying with any such benefits and/or insurances as may be required or desired. PBR hereby waives, releases, indemnifies and holds harmless Sponsor, its parents, subsidiaries and affiliates, and their respective officers, directors, employees, agents, contractors, representatives and insurers, from and against any claim, suit, action, cost, damage, loss or liability arising out of or relating to any failure on behalf of PBR or any of its officers, directors, employees, contractors or agents to comply with the requirements of this paragraph.
5.3 Survival . The obligations to indemnify, defend and hold harmless contained in this Section 5 will remain in full force and effect notwithstanding the termination or cancellation of this Agreement, whether by expiration of time, by operation of law, or otherwise.
VI. Insurance .
6.1 PBR Insurance . On an occurrence basis for the complete Events including set up and tear down, and throughout the Term, PBR will provide, at its own expense, the following types and amounts of insurance. The insurance required shall include a “Separation of Insureds” clause, and the insurer will agree to waive all rights of subrogation against Sponsor, its officers, directors, employees, representatives, agents, volunteers and assigns for claims or losses arising from PBR’s actions, performance or obligations under this Agreement. PBR’s insurance will contain an endorsement adding Sponsor and its affiliates, subsidiaries, officers, directors, employees and agents as Additional Insureds in all policies except Workers Compensation.
The insurance coverage required shall be as follows:
(i) Workers Compensation: Statutory limits as required by state law for all of its employees, including Employer’s Liability with limits of not less than $500,000/$500,000/$500,000.
(ii) Commercial General Liability Insurance: Coverage to be on an occurrence basis with limits of not less than $1,000,000/$1,000,000 Bodily Injury, Personal Injury and Property Damage including: Contractual Liability insuring the obligations assumed by PBR in this Agreement, Products/Completed Operations, Independent Contractors Protective Liability, and Broad Form Property Damage including Completed Operations.
(iii) Excess Liability Insurance: Coverage with limits of not less than $3,000,000, excess of all of the above insurance.
All such required insurance shall be in a form reasonably acceptable to Sponsor and shall require the insurer to provide at least 30 days prior written notice of any major reduction, change, or cancellation in coverage. PBR shall provide Sponsor with evidence of coverage upon reasonable request following execution of this Agreement. Failure to provide such certificate within a reasonable time or to maintain the insurance coverage specified herein will be deemed a material breach of this Agreement. In the event of any lapse in insurance coverage required hereby, Sponsor will have the right (but not the obligation, and not as an election of remedies) to obtain replacement insurance and to deduct the cost of t