Exhibit
10.3
RESALE
AGREEMENT
This Resale
Agreement (“Agreement”) is made and entered into as of
the date of the first signature affixed hereto (the
“Effective Date”) by and between Limelight Media Group,
Inc., a Nevada corporation, with offices at 8000 Centerview
Parkway, Suite 115, Cordova, Tennessee 38018 (“Limelight
Media Group”), and the entity identified in the table above
(“Champ Car”).
Recitals
WHEREAS,
Limelight Media Group, Inc. develops, installs, produces and
maintains captive audience networks including the integration of
necessary technical components involving the manufacture,
production, and/or supply of display screens, location servers, LAN
equipment whether wireless or terrestrial, computer monitors,
related peripherals and other ancillary products hereinafter
“Peripherals”); and
WHEREAS,
Limelight Media Group, Inc. is specifically installing a series of
Themed Soft Zones with Embedded Captive Audience Network Components
including Wi-Fi and Interactive Components in malls across North
America; and
WHEREAS, Champ
Car grants to Limelight Media Group a License (Addendum H) to use
the images, logo and name of Champ Car and its sponsors only in the
development and promotion of the Champ Car Themed Soft Zones;
and
WHEREAS, the
Champ Car Themed Soft Zones provide media space which may be sold
to third parties; and
WHEREAS, Champ
Car desires to sell Title Sponsorship, on behalf of Limelight Media
Group, that is displayed on the Champ Car Themed Soft Zones to
third parties and end users under the terms and conditions set
forth in this Agreement.
Agreement
In
consideration of the foregoing and the mutual covenants and
conditions herein contained, the parties hereto agree as
follows:
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1.
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Rights and
Obligations of Champ Car
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1.1
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Limelight Media
Group hereby authorizes Champ Car to market and promote sales of
those certain Limelight Media Group Captive Audience Network
Products and Services in the territory (the
“Territory”) set forth in the table beginning this
agreement. Champ Car may sell anywhere within the Territory, and is
granted the exclusive right to sell Title Sponsor Positions
(“Products”) on Champ Car Themed Soft Zones as laid out
in Addendum A. Should Champ Car be unable to sell all Title Sponsor
Positions for any Champ Car Themed Soft Zone, Limelight Media Group
shall be entitled to sell such Products to a sponsor of their
choosing, with Champ Car’s approval, which will not be
unreasonably withheld. Limelight Media shall be provided a 60 day
advance notice of any Positions not sold at any location on any
given month.
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Page 1
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1.2
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Champ Car
hereby accepts this appointment by Limelight Media Group as
exclusive Reseller of the Products in the Territory under the terms
of this Agreement and agrees to abide by the provisions of the
Agreement and to all sales, service, advertising and promotional
policies of Limelight Media Group. Champ Car acknowledges,
understands and agrees that Limelight Media Group reserves the
right to require Champ Car to strictly comply with the terms of
this Agreement and this provision in particular and that in order
to ensure strict compliance, Limelight Media Group may elect from
any of all of the following remedies: (a) suspension of Product
availability by Champ Car or (b) termination of this
Agreement.
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1.3
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Limelight Media
Group agrees that all media displayed within the Champ Car Themed
Soft Zones must be approved by Champ Car, and Champ Car will not
unreasonably withhold such approval.
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1.4
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Limelight Media
Group grants Champ Car, at Champ Car’s expense, the right to
examine or have its auditors examine the work papers, schedule, and
other documents prepared by Limelight Media Group in connection
with this Agreement on an annual basis. If Champ Car objects to the
accounting, the parties shall consult with each other with respect
to the accounting. If the parties are unable to reach an agreement
within thirty (30) days of the objection, any unresolved items are
to be promptly referred to an independent accounting firm
designated by the parties. The resolution of the dispute by the
independent accounting firm shall be final and binding on the
parties. The fees and expenses of the independent accounting firm
shall be borne by Champ Car unless the audit reveals an
underpayment by ten (10%) percent or more, in which case Limelight
Media Group shall bear the burden of all independent accounting
fees and expenses.
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1.5
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Champ Car
reserves the right, on behalf of its promoters, to display and
distribute promotional materials at Champ Car Themed Soft Zones for
events to be held within the relevant market. Such reservation
shall also include at least (2), thirty (30) second spots of media
space per Champ Car Themed Soft Zone per hour.
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Page 2
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2.
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Rights and
Obligations of Limelight Media Group
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2.1
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Limelight Media
Group agrees to bear all of the costs associated with the
construction, development and upkeep of all Champ Car Themed Soft
Zones and related Peripherals. This is to include, but is not
limited to, changes or additions made to Champ Car Themed Soft
Zones due to the modification, addition or removal of Title
Sponsors.
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2.2
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Limelight Media
Group agrees to display all Champ Car races live on Champ Car
Themed Soft Zones so long as it is within Limelight Media
Group’s technical capacity and a suitable feed is provided by
Champ Car.
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2.3
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Limelight Media
Group agrees to provide Champ Car on an annual basis with any
consumer data, including traffic counts, which is generated from
Champ Car Themed Soft Zones.
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2.4
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Limelight Media
Group warrants and ensures that no agreement between Limelight
Media Group, or any parent or subsidiary, and any competing
motorsport entity will be entered into during the term of this
agreement or within one (1) year of the termination of this
agreement. This paragraph shall survive termination of this
agreement.
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2.5
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Limelight Media
Group agrees to maintain the Champ Car Themed Soft Zones in a
manner which shall meet or exceed any standards of presentation and
organization set forth by Champ Car from time to time. Under no
circumstances shall a Champ Car Themed Soft Zone be placed in a
smoking area. In the event Limelight Media Group fails to comply
with such reasonable upkeep and maintenance of its facilities which
are the subject of this agreement, Champ Car may give twenty (20)
days written notice of its intent to terminate this agreement, and
Limelight Media Group shall have such period to cure any default or
this agreement shall be terminated.
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2.6
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Limelight Media
Group warrants and ensures that no agreement between Limelight
Media Group, or any parent or subsidiary, and any competing
motorsport entity will be entered into during the term of this
agreement or within one (1) year of the termination of this
agreement. This paragraph shall survive termination of this
agreement.
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2.7
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Upon the
termination of this agreement for any reason, Limelight Media Group
shall cease and desist any and all use of the names, logos or
trademarks of Champ Car or any colorable imitation, variation or
adaptation thereof.
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2.8
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Limelight Media
Group agrees to maintain the Champ Car Themed Soft Zones in a
manner which shall meet or exceed any standards of presentation and
organization set forth by Champ Car from time to time. Under no
circumstances shall a Champ Car Themed Soft Zone be placed in a
smoking area. In the event Limelight Media Group fails to comply
with such reasonable upkeep and maintenance of its facilities which
are the subject of this agreement, Champ Car may give twenty (20)
days written notice of its intent to terminate this agreement, and
Limelight Media Group shall have such period to cure any default or
this agreement shall be terminated.
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Page 3
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2.9
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Upon the
termination of this agreement for any reason, Limelight Media Group
shall cease and desist any and all use of the names, logos or
trademarks of Champ Car or any colorable imitation, variation or
adaptation thereof.
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The term of this Agreement shall commence on the
Effective Date and shall continue for a period of thirty-six (36)
months (the “Initial Term”). This agreement will
automatically renew for additional one year terms if written notice
is not provided by either party to the other party 30 days prior to
the expiration of this agreement.
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4.
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Products:
Subject to Modification
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Limelight Media Group reserves the right to
modify, add or delete products from the list of Products (Addendum
“A”) at any time upon written notice to Champ Car, so
long as said modifications, additions, or deletions do not
materially alter the reasonable expectations of Champ Car. Champ
Car will have no claim against Limelight Media Group for failure to
furnish Products of the models, designs or types previously
supplied.
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5.1
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Prices may be
revised at any time upon written notice to Champ Car.
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5.2
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In the event of
a price increase, the higher price will apply when Champ Car is
given written notice of the price increase, with the exception of
existing executed contracts and orders. .
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5.3
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In the event of
a price reduction, Champ Car and/ or its clients will be given
written notice of the price reduction and shall be credited for the
difference between the prices paid by Champ Car and/or its clients
for services or products not being fulfilled in the affected fiscal
quarter. Champ Car will generate a report on the effective date of
the price reduction indicating the Products in Champ Car’s
inventory that are affected by the price reduction. Limelight Media
Group reserves the right to deny granting price protection credit
if Champ Car does not submit this report to Limelight Media Group
within thirty (30) days after the effective date of the price
decrease. Orders that are not identified in the report will not be
credited at the new price.
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Page 4
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6.1
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Title Sponsor
Positions obtained by Champ Car may be placed by facsimile or mail,
and must be on an approved booking contract (Addendum F) which
contains the following information:
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6.1.1
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Identification
of the Products by the quantity, and description;
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6.1.2
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The Product
prices; and
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6.1.3
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Placement
instructions including the location, timing, other unique
conditions are required. Only the terms and conditions of this
Agreement will apply, regardless of the terms and conditions
contained in any order.
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6.2
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No order will
be effective unless and until it is accepted by Limelight Media
Group. Acceptance of the order will be confirmed in writing to both
Champ Car and Title Sponsor Position purchasers. Limelight Media
Group may refuse to accept any order, cancel any accepted order, or
delay placement of any Product if Champ Car fails to meet any
credit, financial or other obligations under the Agreement. Refusal
to accept any order, cancellation of an order, or delay of
placement of a Product shall not be construed as a termination or
breach of this Agreement by Limelight Media Group and shall in no
event cause any liability to Limelight Media Group with the
exception of placement of Title Sponsors media in the Champ Car
Themed Soft Zones under Champ Car license.
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6.3
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Champ Car may
change or cancel an order provided Champ Car gives Limelight Media
Group written notice at least five (5) business days prior to the
next schedule placement date under such order.
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6.4
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If Agreements
with five (5) Title Sponsors have not been entered into within 60
days after deployment at a specific mall location, the Champ Car
Themed Soft Zone may be removed and any consideration given, less
reasonable expenses, shall be returned to the existing Title
Sponsors.
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7.1
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Placement of
products shall occur at Limelight Media Group’s central
offices after the submission of stock material in the quality and
format required by Limelight Media Group according to the Product
List specifications.
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Page 5
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7.2
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If any
conditions arise which prevent compliance with placement schedules,
Limelight Media Group will be liable for any delay in delivery only
to the extent of like kind exchange or refund of payments at
Limelight Media Group’s sole discretion. Limelight Media
Group will use all reasonable efforts to notify Champ Car of any
anticipated delay in placement. Limelight Media Group shall in no
event be liable for any damages, whether direct, collateral,
incidental, or consequential, of any kind, suffered by Champ Car as
a result of Limelight Media Group’s failure to place on a
timely basis.
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8.
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Product
Discontinuance
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Within thirty (30) days prior to the date of
Product discontinuance, Limelight Media Group shall notify Champ
Car in writing and will refund for credit at the originally sold
price, any unused Product placements that will not be placed due to
the discontinuance of the Product.
The parties which purchase the Products from
Champ Car, as reseller for Limelight Media Group, shall pay as
stated on invoices. The Party executing the Placement Order shall
be the responsible party to the terms of the Placement Order. Under
no circumstances shall Champ Car be liable for any payment to
Limelight Media Group with the exception of any funds received by
Champ Car from the Sponsors for the purchase of
Products.
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10.1
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Limelight Media
Group provides an End-user warranty (Addendum “B”) for
the Products.
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10.2
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Champ Car
acknowledges and agrees that no agent or representative of
Limelight Media Group has made any warranty, promise or guarantee
regarding the Product nor its suitability for any particular use
except as expressly set forth in this Section. Limelight Media
Group’s warranty shall not be enlarged, diminished, or
affected by, and no obligation or liability shall arise or grow out
of, Limelight Media Group’s rendering of technical advice or
service in connection with any of the Product(s) furnished
hereunder.
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10.3
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Limelight Media
Group makes no representation or warranty whatsoever to Champ Car
with respect to the performance, appropriate use, safety or other
characteristics of the Products except expressly provided
herein.
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Page 6
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11.
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Limitation
of Liability
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THE FOREGOING EXPRESS WRITTEN WARRANTIES AND
REMEDIES ARE EXCLUSIVE AND ARE IN LIEU OF ANY OTHER WARRANTIES OR
REMEDIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
LIMELIGHT MEDIA GROUP SHALL IN NO EVENT BE LIABLE TO CHAMP CAR OR
ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT OR INCIDENTAL
DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF
BUSINESS OPPORTUNITY, LOSS OF BUSINESS INVESTMENT, LOSS OF GOOD
WILL, AND/OR INTERFERENCE WITH BUSINESS RELATIONSHIPS, EVEN OF
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LIMELIGHT MEDIA GROUP
SHALL NOT BE LIABLE BECAUSE THE PRODUCTS OR ANY DEFECT THEREIN
CAUSED ANY DAMAGE TO OR FAILURE OF OTHER EQUIPMENT TO WHICH THE
PRODUCTS ARE CONNECTED. THE FOREGOING LIMITATION OF LIABILITY SHALL
NOT APPLY TO THE EXTENT THAT IT IS ILLEGAL OR UNENFORCABLE UNDER
APPLICABLE LAW.
Each party agrees to indemnify and hold the
other harmless from any damages, judgments or settlements
(including cost and reasonable attorneys’ fees) caused in
whole or in part by the party’s own negligence, omissions or
other acts.
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13.1
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Either party
may terminate this Agreement only with cause upon ninety (90) days
prior written notice to the non-terminating party. Limelight Media
Group or Champ Car may immediately terminate this Agreement without
liability in the event that either party is in default of any
obligation, duty or responsibility under this Agreement, or in the
event of any of the following:
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13.1.1
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A receiver is
appointed for Limelight Media Group, Champ Car or their
property;
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13.1.2
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Limelight Media
Group or Champ Car becomes insolvent or unable to pay its debts or
makes an assignment for the benefit of its creditors;
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13.1.3
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Any proceedings
are commenced by or for and/or against Limelight Media Group or
Champ Car under any bankruptcy, insolvency or debtors relief law;
or
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Page 7
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13.1.4
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Limelight Media
Group or Champ Car is liquidated or dissolved.
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13.2
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Limelight Media
Group and Champ Car agree to notify each other within twenty-four
(24) hours of any change in ownership and nature of the change,
including the name of the new owner. If there is any such change in
ownership, that materially alters this agreement, Limelight Media
Group or Champ Car may terminate this Agreement.
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13.3
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Champ Car and
Limelight Media Group acknowledge that, upon termination of this
Agreement, neither party will have any continuing rights in or to
the relationship between Limelight Media Group and Champ Car which
is the subject of this Agreement, nor will they have any right to
any compensation of any kind from the other party arising out of or
by reason of any such termination (whether or not such termination
be effected for cause and regardless of which party initiates the
termination).
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Neither Limelight Media Group or Champ Car may
assign any rights under this Agreement without prior written
consent of the other party. Such consent shall not be unreasonably
withheld.
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15.
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Relationship
of the Parties
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The parties hereto are independent contractors
and nothing contained in this Agreement shall be deemed or
construed to create the relationship of partnership or joint
venture or principal and agent or of any association or
relationship between the parties other than that of buyer and
seller. Champ Car acknowledges that it does not have, and Champ Car
shall not make any representation to any third party either
directly or indirectly indicating that Champ Car has, in any way,
authority to act for or on behalf of Limelight Media Group or to
obligate Limelight Media G
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