Promotional Agreement, entered into as of October 15, 2020, by and between Malibu Crew, Inc. and ABG-Shark, LLC
THIS PROMOTIONAL AGREEMENT (Agreement) is entered into this October 15, 2020 (the Effective Date) by and between Malibu Crew LLC a Delaware limited liability company (Company) and ABG-Shark, LLC, a Delaware limited liability company with an address of c/o Authentic Brands Group, LLC, 1411 Broadway, 21st Floor, New York, NY 10018 (Provider) f/s/o Greg Norman (Norman). Company and Provider are referred to herein collectively as the Parties and each as a Party.
A. Norman is an internationally renowned athlete and entrepreneur and Provider is a brand development, marketing and entertainment company that owns and manages a portfolio of global brands, including, among others, the GREG NORMAN brand.
B. Company provides at-home fitness equipment and training programming.
C. Company wishes to engage Provider to require Norman to provide promotional and related services to the Company and provide the Company with the right to use Normans approved name and approved likeness to promote the Companys products and services, pursuant to the terms of this Agreement.
For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, subject to Section 28, the Parties agree as follows (any capitalized terms not otherwise defined herein shall have the meanings set forth in Section 7):
During the Term (as defined below), Provider shall require Norman to devote a reasonable amount of Normans time necessary to comply with the obligations under this Agreement to promote and participate in mutually approved marketing opportunities for the Company and its subsidiaries in connection with the Malibu Crew brand training equipment and programming owned by Company and Provider shall also require Norman to contribute his approved (in writing) name to the Companys Malibu Crew branded product lines (collectively, the Products), it being specifically understood that all rights in and to Normans name in connection with the Products hereunder shall specifically exclude any and all derivatives and/or variations thereof (including, without limitation, the SHARK design mark and/or logo), unless otherwise approved in writing by Provider in each instance. In addition to the aforementioned naming rights, Provider and Norman shall be expected to contribute to opportunities which shall consist of the following services (individually and collectively, the Services):
(a) During the Term, Provider shall require Norman to produce a mutually approved amount (in writing) of social media posts in any of the following manners: (i) in-feed Instagram posts (still, video or boomerang); (ii) Instagram stories; (iii) Facebook posts and live videos; and (iv) Twitter tweets, all of which shall be issued on Normans verified social media channels to the extent maintained by Provider and/or Norman (the Social Media Posts), it being
understood that each such social media channel counts as a separate post. For avoidance of doubt, the Instagram story frames shall include, if possible, the swipe-up feature with a link provided by Company. The Social Media Posts shall be posted on a date and time mutually agreed upon by both Parties during the Term. For the avoidance of doubt, Provider and Norman shall follow guidelines for content and creative for the Social Media Posts as provided by the Company and approved in writing by Provider.
(b) Provider shall share copy and any accompanying content (such as photos or video) for the Social Media Post with Company for approval at a reasonable time prior to posting unless otherwise directed by Company (and neither Provider nor Norman shall post any content for the Social Media Posts without Companys express prior written approval).
(c) Provider agrees to require Norman to leave Social Media Posts on Normans verified social channels during the Term, but may remove such Social Media Posts post-Term.
(d) In connection with the Social Media Posts, Provider and Norman shall reasonably comply with the Companys written instructions regarding FTC disclosure obligations as well as the corresponding program hashtag (if applicable, as directed by Company) and Company handles as directed by Company.
(e) Company may re-tweet and/or re-post Normans Social Media Posts (and tag Norman in such posts) and said postings shall not count against the total number of Social Media Posts required as outlined above; provided however any such re-tweet or re-post may only be made in connection with the Products; provided, further, no whitelisting or darklisting of such Social Media Posts shall be permitted.
(f) Company shall deliver to Provider and Norman written guidance regarding the Companys legal compliance policies, privacy and social media policies for Social Media Posts, and Provider and Norman shall reasonably comply with such guidance. All Social Media Posts must also include Company-approved disclosure language (#sponsored, #ad, #paid), and Company shall be solely responsible for ensuring that any and all such disclosures comply with all applicable laws, including, without limitation, the FTCs Guides Concerning the Use of Endorsements and Testimonials in Advertising. Company shall indemnify, defend, and hold harmless the Provider Indemnified Parties (as hereinafter defined) from any and all liability arising out of the same.
(g) Upon Companys request, Provider shall (or shall require Norman to) promptly remove or revise any messaging or content that Norman has previously posted or distributed that relates to the Products.
(h) Provider and Company shall mutually approve in writing any press release and any Q&A regarding Providers and/or Normans affiliation with the Products and/or Company. Nothing contained herein shall prevent Provider from issuing any press release that merely states, as a matter of fact, and as part of a listing of Normans other endorsements, that Norman is an endorser of the Products.
(i) Providers and Normans rendition of any additional services shall be subject to the mutual agreement of the Parties (including, without limitation, the negotiation of appropriate remuneration in connection therewith).
Rights to Promotion Materials.
Provider acknowledges and agrees that Company will own all right, title, and interest in and to any and all advertising, marketing, and promotional materials used in connection with Companys manufacturing, distribution, and sale of the Products, except to the extent that any such materials contain any intellectual property owned by Provider or any entity affiliated with Provider, including, without limitation, trademarks, copyrights, the name, image, likeness, voice, and persona of Norman and Normans personality rights. Notwithstanding the forgoing. Company acknowledges that it shall have no right, title or interest in or to any entertainment content into which Provider or Norman cleets to include Company promotional material. All rights which arc not specifically granted and licensed to Company in this Agreement arc hereby reserved by Provider, and Provider may exercise such rights at any time. For the avoidance of any doubt, this Agreement does not grant any right, title, or interest in or to the Brand Rights (as hereinafter defined) as a result hereof, except as expressly set forth herein.
In consideration of the performance by Provider and Norman of the Services and the naming rights to the Products, Company shall provide to Provider the following consideration:
(a) Pursuant to mutually agreed to terms (in writing) between Company and the Provider, Company shall provide an equity stake to Provider pursuant to a separate grant agreement, equal to fifteen percent (15%) of the fair market value of the Company on the date of the grant, subject to dilution if additional membership interests are issued to new members.
(b) Notwithstanding anything in this Agreement to the contrary, in order for any equity stake in Company to vest, Provider and Norman must continue to provide the services described in Section 1 through the end of the Term. In the event Provider or Norman ceases to perform the services described in Section 1 due a breach of this Agreement by Provider or Norman before the end of the Term, any equity stake in Company will be forfeited for no consideration.
(c) Wiring Instructions. Company shall be solely responsible for any costs and/or fees associated with making any and all payments to Provider as required under this Agreement, including, without limitation, wire transfer fees. Company shall pay all sums due to Provider by wire transfer to the following account, unless otherwise instructed by Provider and memorialized in a written amendment to this Agreement, duly executed by authorized signatories of, and delivered by, each of the Parties hereto:
(d) No Deductions. Except as legally required, Company shall not deduct from, setoff or offset any amount payable to Provider hereunder for any reason. For purposes of illustration but without limitation, Company may not deduct: uncollectible accounts, wire transfer fees, bank fees or any other fees associated with making any and all payments to Provider, slotting fees, advertising or other expenses of any kind, the costs incurred in the operation of the business contemplated hereunder, or the conversion of any currency into United States Dollars.
Providers Representations and Warranties.
Provider represents and warrants to Company that, as of the date hereof:
(a) The execution and delivery of this Agreement by the Provider and the performance by Provider and Norman of the covenants and obligations contemplated hereunder arc not, to the best of Providers knowledge, in violation or breach of, do not and will not (with or without the passage of time or the giving of notice) conflict with or constitute a default under, and will not accelerate or permit the acceleration of the performance required by, any material agreement to which Provider is a party or by which Provider or any of its assets is bound or under any law applicable to Provider.
(b) Provider will, and will require Norman to, perform the services hereunder diligently and in a professional, first class manner consistent with general industry standards and practices and will comply with all applicable laws, rules, regulations and standards in completing such services.
(c) Subject to last paragraph of this Section 4, to the best of Providers knowledge, no materials delivered or otherwise furnished by Provider hereunder, including without limitation, all graphics, music, sound, images, files, photos, animation, artwork, text, data, information, messages, hypertext links, scripts, and all other dramatic, artistic, literary, and musical materials, ideas and other intellectual properties furnished or selected by Provider or any third party engaged by Provider, and contained in or used in connection with the transactions contemplated hereby or Providers social media posts or the distribution, advertising, publicizing or other use or exploitation thereof, will, when used in accordance with the terms and conditions of this Agreement, infringe the rights of any third party.
(d) To the best of Providers knowledge, Provider shall refrain from using any material in any content provided to Company that would cause Company to be required to pay any fee to a third party or to incur any cost without the Companys consent (including, without limitation, any union or guild payments (other than SAG payments, which shall be the Companys responsibility)).
Notwithstanding the foregoing, the Company shall be responsible for paying for and obtaining all third party rights, licenses, permissions and/or clearances required for the worldwide production, distribution, exhibition and exploitation of materials that the Company desires to use that Provider notifies the Company Provider docs not own.
Company Representations and Warranties.
Company represents and warrants to Provider and Norman that, as of the date hereof:
(a) Organization and Capitalization, The Company is a limited liability company, duly organized, validly existing and in good standing under the laws of the State of Delaware with the power and authority to own its assets and operate its business.
(b) Authority. The Company has full legal right, power and authority to enter into and perform its obligations under this Agreement This Agreement has been duly authorized by all necessary corporate action on the part of the Company and, assuming due authorization, execution and delivery hereof by Provider, constitutes the binding and enforceable obligation of the Company in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws (as defined below) affecting the enforcement of creditors rights generally and general principles of equity. The Products shall at all times be designed, developed, manufactured, distributed, advertised, labeled, tested, marketed, promoted, offered for sale, sold, and otherwise exploited in accordance with all applicable Laws.
(c) No Conflict. The execution and delivery of this Agreement by the Company, the performance by it of the covenants and obligations contemplated hereunder, and the consummation by it of the transactions described hereunder, are not in violation or breach of, do not and will not (with or without the passage of time or the giving of notice) conflict with or constitute a default under, and will not accelerate or permit the acceleration of the performance required by, any of the terms or provisions of the Companys organizational documents or any material contract to which the Company or any subsidiary is a party or by which the Company, any subsidiary or any of its or their assets is bound, or under any law or governmental order applicable to the Company or any subsidiary, and do not require consent or approval from any individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company joint stock company, government (or an agency or subdivision thereof) or other entity of any kind (each, a Person). There is no pending or threatened litigation which may affect Companys ability to fully perform its obligations herein.
(d) Compliance with Laws. Company and each of Companys parents, subsidiaries and affiliated companies (collectively, Company Parties) shall comply with and act in accordance with (i) any and all applicable laws and other legal obligations including, without limitation, local, state, federal and international directives, rules, assessments, regulations, filing requirements, ordinances, statutes, codes, guides, judgments and civil or common law; (ii) conventions and treaties to which any country, region and/or portion of the United States, and any legal subdivisions thereof, is a party; and (iii) industry and trade-association standards, rules or regulations (all of the foregoing in sub-sections (i), (ii) and (iii) are, individually and collectively, Laws).
(e) Products. The Products and all advertising and promotional efforts by Company (including, as applicable, its designees) shall be of high quality in design, material, workmanship, and execution. No injurious, deleterious or defamatory material, writing or images shall be used in connection with the Products, Normans endorsement of the Products or the results
and proceeds of Normans Services. The Products shall be merchantable and fit for the intended use herein, shall in all respects be safe to consumers and shall be manufactured and distributed in accordance with all applicable Laws. Company shall undertake a level of customer service and provide warranties to consumers at least as favorable as is standard in its industry. Company shall comply with any and all product recalls issued by the Consumer Product Safety Commission (CPSC) or any other local, federal or state agency or Laws. Company owns all rights in and to the Products, including by way of example and not limitation, any and all trademarks and service marks used for or in connection therewith (e.g., F45, etc.), and none of the design, development, manufacture, distribution, advertising and promotion, marketing, exploitation offering for sale, sale, or other exploitation of the Products infringe any intellectual property right or otherwise violate any right of any third party.
(f) No Expenses. Company shall not create, incur or permit any encumbrance, lien, security interest, mortgage, pledge, assignment or other hypothecation upon this Agreement or permit the commencement of any proceeding or foreclosure action on this Agreement or to obtain any assignment thereof, whether or not involving any judicial or nonjudicial foreclosure sales. Company has not and will not, during the Term or at any time after expiration of the Term, create any expenses chargeable to Provider without Providers prior written approval of the same in each instance.
Term and Termination; Effect of Expiration or Termination.
(a) Term. This Agreement shall become effective on the Effective Date and continue for a period of five (5) years, unless sooner terminated pursuant to the terms hereof (the Term). Notwithstanding the foregoing, the Term shall end prior to the expiration of such period, upon the occurrence of a Cause Event (as defined below).
(b) Providers Right to Terminate.
(i) Provider shall have the right, but not the obligation, to suspend its performance hereunder and/or terminate this Agreement in its entirety, upon the occurrence of any one (1) or more of the following events: (A) the failure of Company to make any payment required to be made under this Agreement, which failure is not cured within thirty (30) days of Companys receipt of written notice from Provider of the same; and/or (B) the breach by Company of any of its representations or warranties herein, or the failure of Company to comply with any of the other terms of this Agreement or otherwise discharge its duties hereunder (it being understood that any such failure related to non-payment shall be governed by Section 6(b)(i)(A) above), and such breach or failure, to the extent curable, is not cured within thirty (30) days of Companys receipt of written notice from Provider of the same; and/or (C) the breach by Company of any provision of this Agreement, or the failure of Company to comply with any of the terms of this Agreement or otherwise discharge Companys duties hereunder, more than one (1) time during the Term; and/or (D) the failure by Company to procure or maintain insurance pursuant to the terms of this Agreement; and/or (E) any act of gross negligence or wanton misconduct by Company, and such action is not corrected within ten (10) days of Companys receipt of written notice from Provider of the same; and/or (F) the cessation of operations by Company, including, without limitation, Companys failure to continuously and diligently offer the Products, for
a continuous period of ninety (90) days); and/or (G) the making by Company of an assignment for the benefit of creditors, or the filing by or against Company of any petition under any federal, national, state or local bankruptcy, insolvency or similar Laws, if such filing shall not have been dismissed or stayed within sixty (60) days after the date thereof.
(ii) Company hereby acknowledges that Company shall not have an opportunity to cure any breach which, by its terms, cannot be cured.
(c) Expiration or Termination of Agreement.
(i) Effect or Termination. Upon expiration or termination of this Agreement, all rights granted hereunder shall revert to Provider, and Company shall have no further rights whatsoever. Any Sections and any other obligations under the provisions of this Agreement which, by their term or implication, have a continuing effect, shall survive any expiration or termination of this Agreement. Any and all unpaid amounts under this Agreement for the balance of the Term shall be immediately due as of the effective date of expiration or termination, and shall be paid to Provider no later than: (A) fifteen (15) days from the expiration of this Agreement, or (B) five (5) days from the termination of this Agreement. In no event shall any expiration or termination of this Agreement, or any payment to Provider pursuant to the preceding sentence, excuse Company from any breach or violation of this Agreement, and Provider shall have and hereby reserves all rights and remedies that Provider has, or are granted to Provider by operation of law.
(ii) Return & Destruction. (A) Within six (6) months of any expiration of this Agreement, or termination of this Agreement by Company in accordance with the terms and conditions hereof, and (B) as soon as possible after any termination of this Agreement by Provider in accordance with the terms and conditions hereof, but in no event later than thirty (30) days thereafter, Company shall, as directed by Provider, destroy or return to Provider, at Companys sole cost, any and all materials bearing Providers and/or Normans intellectual property, as well as all materials used for the Products or any of Companys advertising and promotional efforts hereunder.
(a) Anti-Prestige Activity means (i) performance in any pornographic media (including without limitation, pornographic films), or (ii) consumption of illegal drugs (provided this clause (ii) shall not apply to activities in connection with Providers movie/TV roles).
(b) Cause Event shall mean the occurrence of any of the following, whether such event occurs or is first made public during the Term:
(i) any material breach by Provider of this Agreement which is not cured within thirty (30) days following written notice by Company to Provider of such breach;
(ii) conviction of a felony under the laws of any jurisdiction, if such felony involves moral turpitude and materially impairs Providers ability to perform the services hereunder, provided that (A) termination of this Agreement shall be Companys sole remedy for the same, and (B) in the event Company wishes to exercise such termination right, it must do so within thirty (30) days following the date of such arrest; or
(iii) Provider or Norman engaging in any Anti-Prestige Activities.
(a) Provider shall indemnify, defend and hold Company (Company Indemnified Parties) harmless from any third-party claim, damage, loss, liability, cost or expense (including reasonable third party counsel fees and disbursements of counsel) (collectively, Claims) resulting or arising solely from any material breach by Provider of any of its express representations, warranties or covenants set forth in this Agreement. The Company Indemnified Parties shall promptly notify Provider of any Claim, and reasonably cooperate with Provider in the defense or settlement of such Claim; provided that, no delay in notification shall affect Providers indemnification obligations except to the extent such delay prejudices Providers ability to defend such Claim. Provider shall have the right to select counsel and to defend any/or settle such Claim, provided that any such settlement includes a full release for the Company Indemnified Parties. Provider shall not be liable to Company or any third party under this Section 8(a) to the extent that Company is required to indemnify Provider pursuant to Section 8(b) below.
(b) Company shall indemnify, and defend and hold Provider and Norman, and Providers current and future parents, subsidiaries, and affiliates, and each of their respective current and future successors, assigns, representatives, employees, officers, and other agents (Provider Indemnified Parties) harmless from any and all Claims resulting or arising from any one (1) or more of the following: (i) the distribution or licensing of the Products, (ii) any alleged defect in the Products or its implementation, (iii) any material breach by Company of the provisions of any of its representations, warranties or covenants set forth in this Agreement, (iv) the provision of services pursuant to this Agreement except to the extent that Company is entitled to be indemnified in respect thereof pursuant to Section 8(a) above, (v) the failure by Company to perform any of its obligations under this Agreement, and (vi) any acts, whether by omission or commission by Company, which may arise out of, in connection with, or is any way related to, the Products, or this Agreement. The Provider Indemnified Parties shall promptly notify Company of such Claim, and reasonably cooperate with Company in the defense or settlement of such Claim; provided that, no delay in notification shall affect Companys indemnification obligations except to the extent such delay prejudices Companys ability to defend such Claim. Company shall have the right to select counsel and to defend any/or settle such Claim, provided that any such settlement includes a full release for the Provider Indemnified Parties. Company hereby agrees that Providers approval shall not waive, diminish or negate Companys indemnification obligations to the Provider Indemnified Parties herein.
(c) Indemnification Process. The Party to be indemnified hereunder (the Indemnitee) must give the indemnifying Party hereunder (the Indemnitor) prompt written notice of any Claim, and the Indemnitor, in its sole discretion, may then take such action as it deems advisable to defend such Claim on behalf of the Indemnitee. In the event that appropriate action is not taken by the Indemnitor within thirty (30) days after the Indemnitors receipt of written notice from the Indemnitee, the Indemnitee shall have the right to defend such Claim with counsel reasonably acceptable to the Indemnitor, and no settlement of any such Claim may be
made without the prior written approval of the Indemnitor, which approval shall not be unreasonably withheld, conditioned or delayed. Even if appropriate action is taken by the Indemnitor, the Indemnitee may, at its own cost and expense, be represented by its own counsel in such Claim. In any event, the Indemnitee and the Indemnitor shall keep each other fully advised of all developments and shall cooperate fully with each other in all respects with respect to any such Claim.
Company shall maintain in full force and effect during the Term, with a reputable insurance carrier, a general liability insurance policy with a limit of liability of not less than Two Million United States Dollars (USD $2,000,000) and an umbrella policy with a limit of liability of not less than Five Million United States Dollars (USD $5,000,000). Provider, Norman and Authentic Brands Group, LLC (ABG) will each be named as an additional insured under these policies. Nothing in this Section 9 is intended to limit or affect the indemnification provisions of Section 8 above.
Benefit and Assignment.
(a) Except as otherwise provided in this Section 10, this Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns. This Agreement is of a personal nature with respect to Company, and therefore Company shall not assign, sub-license, encumber or transfer this Agreement or any of its rights or obligations hereunder, directly or indirectly, whether pursuant to any change of ownership, control or otherwise, without Providers prior written approval of the same in each instance. Any attempted assignment sub-license, encumbrance or transfer by Company in violation of the foregoing shall be void and of no force or effect. Provider shall have the right to assign, encumber and/or transfer any or all of its rights and/or obligations under this Agreement, in any form or manner, without the knowledge, consent or approval of Company.
(b) Notwithstanding anything to the contrary contained herein, the Parties hereby acknowledge and agree that (i) the Agreement is a personal services contract under which Provider is relying on performance by Company, in which Provider has placed its trust and confidence, (ii) Company provides unique goods and services under this Agreement that are personal in nature to the Company, and (iii) Provider is relying on Companys performance in particular under this Agreement and would be irreparably harmed by the assignment of this Agreement by Company without Providers prior written consent. The Parties further hereby acknowledge and agree that (A) this Agreement is subject to applicable law governing trademarks, including 15 U.S.C. § 1051 et seq. (the Lanham Act), (B) under applicable law, this Agreement shall not be assignable by Company without Providers prior written consent, and (C) Provider is relying on the restrictions on assignability under applicable law, including the Lanham Act, and under this Agreement, to allow Provider to satisfy its duty to control the quality of goods sold under Normans intellectual property. The Parties further hereby acknowledge and agree that as a result of the foregoing, in the event that Company becomes a debtor in a bankruptcy case under 11 U.S.C. § 101 et seq. (the Bankruptcy Code), (x) this Agreement shall not be assignable by Company without Providers consent, pursuant to section 365(c)(1) of the Bankruptcy Code, and (y) Provider shall be permitted to exercise its right to terminate this Agreement, pursuant to section 365(e)(2) of the Bankruptcy Code.
No Third Party Rights.
This Agreement is entered into among the Parties for the exclusive benefit of the Parties and their successors and permitted assignees. Except as provided herein, this Agreement is expressly not intended for the benefit of any creditor of the Parties or any other Person.
Company shall not, during the Term or at any time thereafter, attack or challenge, or lend assistance to any third party in connection with an attack or challenge, of any right, title or interest of Provider in and to any and all intellectual property rights (including, without limitation, copyright, patent and trademark rights), whether now known or hereafter devised, in and to any and all materials of any sort utilizing, or any rights arising out of, Normans name, image, likeness, voice, persona, signature, biographic information, and rights of publicity, including all such materials as may be developed by Company and all goodwill that is attached or may become attached to the foregoing, whether by way of (individually and collectively, the Brand Rights): (a) an application for and/or an opposition against any intellectual property rights relating to the Brand Rights, (b) adoption of any intellectual property rights confusingly similar to, or that infringes, any of the Brand Rights, or (c) any lawsuit, cancellation proceeding or action, or otherwise. Company shall not represent in any filing, presentation, document or other statement, whether written or verbal, that Company or any third party is the owner of the Brand Rights or any other endorsement rights hereunder, and Company shall not use or display any of the foregoing except as expressly permitted herein
(a) Company shall not enter into any license agreement or acquire any rights in or to any photographs or other assets of Norman from any party other than Provider for use during the Term, whether for use in connection with the Products or otherwise, without Providers prior written approval of the same in each instance, which approval may be granted or withheld in Providers sole and absolute discretion. Company shall not, during the Term or at any time thereafter: (i) defame or disparage the Brand Rights (or any portion thereof) or Provider, or Norman, nor shall Company place the Brand Rights (or any portion thereof), Provider or Norman in a negative light, whether in connection with this Agreement or otherwise, or (ii) utilize the Brand Rights (or any portion thereof) in association with, nor shall Company associate Norman with any of the following: (A) any tobacco or products/paraphernalia related thereto (e.g., cigarettes, etc., but specifically excluding cigars); (B) any narcotics or products/paraphernalia related thereto; (C) mortuaries, cemeteries and/or other products or services relating to death; (D) pornography or other adult only or sexually explicit activities or services (including video tapes, books, magazines, tapes, pornography, sex toys, condoms, software and online and telephone services and other mediums now in existence or hereafter devised); (E) massage parlors or prostitution, dating or escort agencies or services; (F) weapons; or (G) any products and/or services that denigrate or discriminate against individuals based on race, national origin, gender, religion, disability, ethnicity, sexual orientation, gender identity or age.
(b) Company acknowledges and agrees that: (i) any and all use of the Brand Rights and/or any intellectual property rights related to Norman (e.g. exploitation of a copyrighted photograph of Norman), whether in connection with the Products or otherwise, requires the consent and authorization of Provider in each instance, (ii) Provider is the only person or entity that can authorize the use of Brand Rights on or in connection with any products or services throughout the world, and (iii) should Company or any third party desire to manufacture, advertise, sell, offer or otherwise exploit any products or services related to Norman, any and all such acts would be a use of the Brand Rights and would therefore require the prior written consent of Provider in each instance.
(c) Provider shall own all right, title and interest (including, without limitation, all intellectual property rights) in and to any: (i) domain names that are similar to, use and/or incorporate the Brand Rights, or any variation thereof (Domain Names), (ii) corporate, trade or business names that are similar to, use and/or incorporate the Brand Rights, or any variation thereof (Business Names), and (iii) the Normans verified social media accounts and other social media accounts (e.g., on Twitter, Facebook, Instagram, etc.) that are branded with any Brand Rights, or any variation thereof (together with the Domain Names and Business Names, the Brand Names/Accounts). During the Term and at all times thereafter, Company shall have no right to, and hereby agrees not to, register any Brand Name/Account incorporating, in whole or in part, Brand Rights or any variation(s) or derivative(s) thereof. Should Company register any Brand Name/Account incorporating any Brand Rights or any variation(s) or derivative(s) thereof, Company shall transfer the same to Provider, immediately upon Providers request.
(a) All incidents of force majeure, being circumstances beyond the reasonable control of any Party and which have, or may have, a material effect on the ability to perform under this Agreement, including, but not limited to, failure of power or other utility supplies; fire; flood; earthquake; other natural disaster; explosion; riot, strike or lockout of that partys work force; civil insurrection or unrest; terrorist activity; war (whether war be declared or not); and laws, regulations and acts of any governmental, transnational or local authority (Force Majeure), shall for the duration and to the extent of the effects caused thereby release the Parties from the performance of their contractual obligations hereunder, except with respect to Companys payment obligations to Provider hereunder, which shall remain in full force and effect. A Party who has suffered a Force Majeure event shall notify the other Party without delay of any such incident(s).
(b) Each Party shall take all reasonable steps to avoid or restrict Force Majeure events and to mitigate any loss therefrom.
(c) In the event of an incident or incidents of Force Majeure, the Parties shall as soon as reasonably possible resume performance of their obligations hereunder (if at all possible).
All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be deemed effectively given: (a) upon personal delivery to the Party to be
notified, (b) when sent by confirmed facsimile if sent during normal business hours of the recipient, (c) seven (7) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one (1) day after deposit with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt. All communications shall be sent to the respective Parties at their address as set forth below, or to such e-mail address, facsimile number or address as subsequently modified by written notice given in accordance with this Section 15. Notices shall be sent as follows:
If to Provider:
c/o Authentic Brands Group, LLC
1411 Broadway, 21st Floor
New York, NY 10018
Attention: Legal Department
If to Company:
Malibu Crew LLC
236 California Street
El Segundo, California 90245
United States of America
Attention: Chief Legal Officer
with a copy to:
Seyfarth Shaw LLP
560 Mission Street
San Francisco, CA 94105-2930
Attention: Darren Gardner
No modification of or amendment to this Agreement shall be valid unless in a document signed by both Parties hereto and referring specifically to this Agreement and stating the Parties intention to modify or amend the same. Any waiver of any term or condition of this Agreement must be in a document signed by the Parties sought to be charged with such waiver referring specifically to the term or condition to be waived, and no such waiver shall be deemed to constitute the waiver of any other breach of the same or of any other term or condition of this Agreement.
Severability and Modification.
Each provisions and term of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision or term of this Agreement shall be held to be prohibited by or invalid under such applicable law, then, such provision or term shall be
ineffective only to the extent of such prohibition or invalidity, without invalidating or affecting in any manner whatsoever the remainder of such provisions or term or the remaining provisions or terms of this Agreement.
Governing Law and Dispute Resolution.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA APPLICABLE TO AGREEMENTS MADE AND TO BE WHOLLY PERFORMED WITHIN THAT STATE, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW THEREUNDER. EACH PARTY AGREES THAT, IN CONNECTION WITH ANY LEGAL SUIT OR PROCEEDING ARISING OUT OF OR WITH RESPECT TO THIS AGREEMENT, IT SHALL SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE FEDERAL AND STATE COURTS LOCATED IN LOS ANGELES COUNTY, CALIFORNIA AND BY EXECUTING THIS AGREEMENT AGREES TO VENUE IN SUCH COURTS AND CONSENTS TO SUCH COURTS JURISDICTION. PROCESS IN ANY SUIT OR PROCEEDING REFERRED TO IN THE PRECEDING SENTENCE MAY BE SERVED ON ANY PARTY ANYWHERE IN THE WORLD. EACH OF THE PARTIES HEREBY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY AND ALL ACTIONS OR PROCEEDINGS IN ANY COURT, WHETHER THE SAME IS BETWEEN THEM OR TO WHICH THEY MAY BE PARTIES, AND WHETHER ARISING OUT OF, UNDER, OR BY REASON OF THIS AGREEMENT, OR ANY ACTS OR TRANSACTIONS HEREUNDER OR THE INTERPRETATION OR VALIDITY THEREOF, OR OUT OF, UNDER OR BY REASON OF ANY OTHER CONTRACT, AGREEMENT OR TRANSACTION OF ANY KIND, NATURE OR DESCRIPTION WHATSOEVER, WHETHER BETWEEN THEM OR TO WHICH THEY MAY BE PARTIES.
Limitation of Liability.
IN NO EVENT SHALL PROVIDERS TOTAL LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY RECEIVED BY PROVIDER (EXCLUSIVE OF REIMBURSEMENT OF EXPENSES) HEREUNDER, REGARDLESS OF THE NUMBER OR TYPE OF CLAIMS.
All Rights Cumulative; Equitable Relief.
(a) All Rights Cumulative. All rights and remedies conferred upon or reserved by the Parties in this Agreement shall be cumulative and concurrent and shall be in addition to all other rights and remedies available to such Parties at law or in equity or otherwise, including, without limitation, requests for temporary and/or permanent injunctive relief. Such rights and remedies are not intended to be exclusive of any other rights or remedies and the exercise by either Party of any right or remedy herein provided shall be without prejudice to the exercise of any other right or remedy by such Party provided herein or available at law or in equity.
(b) Equitable Relief. The Parties hereby acknowledge and agree that any breach by a Party hereunder shall cause the non-breaching Party irreparable harm for which there is no adequate remedy at law, and in the event of such breach, the non-breaching Party shall be entitled to, in addition to other available remedies, seek injunctive or other equitable relief, including,
without limitation, interim or emergency relief, including, without limitation, a temporary restraining order or injunction, before any court with applicable jurisdiction, to protect or enforce its rights.
In rendering the services to be rendered by Provider and/or Norman hereunder, Provider and Norman shall each be an independent contractor. Nothing contained herein shall be deemed to constitute either Provider or Norman as the partner or agent of Company or Company as the partner or agent of Provider or Norman. Neither Company, Norman nor Provider shall have the power or authority to bind the other with respect to third parties or to represent to third parties that they have such authority. The Parties acknowledge that nothing in this Agreement constitutes Provider or Norman as an employee of Company.
Entire Agreement; Further Assurances.
This Agreement together with Exhibit A attached hereto, constitutes the entire agreement and understanding between and among the Parties with respect to the subject matter hereof, and supersedes any other prior written or oral agreement or understandings between and among the Parties with respect to the subject matter hereof. Each Party shall, at the other Partys request, execute and deliver such instruments or take such other actions as may be reasonably requested to effectively carry out the terms and provisions of this Agreement.
This Agreement may be executed in two (2) or more counterparts (and may be executed and delivered via facsimile in two (2) or more counterparts), each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Each of the Parties agrees that an electronic or digital signature evidencing a Partys execution of this Agreement shall be effective as an original signature and may be used in lieu of the original for any purpose.
Titles and Subtitles; Construction.
The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement. All words used in this Agreement will be construed to be of such gender or number as the circumstances require. Unless otherwise expressly provided, the word including does not limit the preceding words or terms.
The Parties have participated jointly in the drafting of this Agreement. If an ambiguity or question of intent or interpretation should arise, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or burdening any Party by virtue of the authorship of any of the provisions of this Agreement.
The Parties intend that this Agreement and the benefits provided hereunder be interpreted and construed to be exempt from or to otherwise comply with Internal Revenue Code (the Code) Section 409A to the extent applicable thereto. Notwithstanding any provision of this Agreement to the contrary, this Agreement shall be interpreted and construed consistent with this intent, provided that the Company shall not be required to assume any increased economic burden in connection therewith. Although the Company intends to administer this Agreement so that it will be exempt from or otherwise comply with the requirements of Code Section 409A, the Company does not represent or warrant that this Agreement will be exempt from or otherwise comply with Code Section 409A or any other provision of federal, state, local, or non-United States law. Neither the Company, its affiliates, nor their respective directors, officers, employees or advisers shall be liable to Provider (or any other individual claiming a benefit through Provider) for any tax, interest, or penalties Provider may owe as a result of compensation or benefits paid under this Agreement, and the Company and its affiliates shall have no obligation to indemnify or otherwise protect Provider from the obligation to pay any taxes pursuant to Code Section 409A or otherwise.
Effectiveness of this Agreement
The entry by the Company into this Agreement and the performance by the Company of its obligations hereunder has not been duly authorized by all requisite corporate action on the part of the Company. Specifically, this Agreement docs not, and shall not be deemed to, constitute a binding or enforceable obligation of the Company or Provider unless and until the execution and delivery hereof, and the performance by the Company of its obligations hereunder, is expressly approved by the Board of Manager and requisite manager of the Company in accordance with the applicable constituent documents of the Company. In the event all corporate action necessary to duly authorize the execution and delivery of this Agreement by the Company, and the performance by the Company of its obligations hereunder, is undertaken and obtained in accordance with the applicable constituent documents of the Company, the Company shall deliver to Provider written notice thereof, at which point, assuming due authorization, execution and delivery hereof by Provider, this Agreement will constitute the binding and enforceable obligation of the Company in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors rights generally and general principles of equity.
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[SIGNATURE PAGE TO PROMOTIONAL AGREEMENT]
IN WITNESS WHEREOF, the Parties have executed this Agreement to be effective as of the date first above written.
|Provider f/s/o Norman|
|ABG-SHARK, LLC F/S/O GREG NORMAN|
The following standard terms are hereby incorporated into the Agreement:
Subject to clause A.c. of the Standard Terms below, during the Term, Provider shall not, directly or indirectly, authorize (nor has Provider authorized, prior to the Term, which authority is still in effect) the use of Normans name, picture, image, voice, likeness, signature and/or biographical information, nor will Norman render any services, post about, sponsor, promote, give any testimonials or endorsements in any advertising in any medium, nor engage in any promotional, marketing, endorsement or activities, in connection with any product/service directly competitive with the Products (collectively, Competitive Products), defined as follows: fitness training business (home or traditional); class- focused fitness centers; group fitness classes; personal fitness training franchises; gym services; resistance training; yoga; pilates; cycling; dance fitness classes; martial or mixed martial arts-based fitness training; boxing-based fitness training; fitness bootcamps. By way of example only, the following gym or fitness service providers are considered Competitive Products: CrossFit, Orange Theory, Barrys Bootcamp, Soul Cycle, Fly Wheel, Planet Fitness, Anytime Fitness, Equinox, Training Mate, Mirror, Jazzercise and Les Mills.
Subject to clause A.c. of the Standard Terms below, during the Term, Provider shall not, directly or indirectly, do the following:
Divert, or attempt to divert, any business or customer of the Company or its affiliates to any competitor; or
Unless released in writing by the employer, employ or seek to employ any person who is at that time employed by the Company or its affiliates, or otherwise directly or indirectly induce such person to leave his or her employment.
Notwithstanding anything to the contrary in these Standard Terms or in the Agreement:
Nothing shall limit Providers or Normans right to appear (i) in any of the entertainment fields or in the entertainment, news or informational portion of any program, film, publication or other production or live event, regardless of the media through which such program, film, publication or other production or live event is exhibited, and/or (ii) in connection with the advertising, promotion, merchandising and/or publicity materials therefor, regardless of sponsorship or products or services used therein.
For the avoidance of doubt, (i) Norman may appear as a participant or guest at events, regardless of sponsorship or products used therein (e.g., Norman may participate in charity events and appear on a guest line or red carpet containing a backdrop with names of Competitive Products); (ii) Norman may appear in purely editorial material (e.g., a magazine spread) which uses and/or credits Competitive Products; (iii) Norman may appear in advertising and/or promotional materials for other products, which materials contain the incidental appearance of Competitive Products; and (iv) nothing herein or in the Agreement shall prevent Providers or Normans passive investment in any enterprise, product or service whatsoever.
For the further avoidance of doubt, paparazzi and other press footage and photographs containing Competitive Products shall not be deemed a breach hereunder.
Grant of Rights.
Creative Ownership. Subject to clause B.c. of the Standard Terms below:
The ownership of all designs, products, intellectual property, promotional and digital materials, and all any and all rights whether now known or hereafter devised in and to the results and proceeds of Providers and Normans services hereunder, including, without limitation, any contributions Provider or Norman makes in connection with any of the foregoing are the sole property of the Company, including but not limited to the naming rights to the Products and services. All results and proceeds of every kind of services heretofore and hereafter to be rendered by Provider or Norman in connection with the Products, including without limitation, all ideas, suggestions, themes, titles and other material, whether in writing or not in writing, at any time heretofore or hereafter created or contributed by Provider or Norman which in any way relate to the Products (collectively referred to as the Work) was or will be created as a work-for-hire for Company. The Work was specifically commissioned by Company and, as such, is a work-made-for-hire as such term is used in the United States Copyright Act, and Company is and shall be deemed the author thereof. Provider acknowledges that Company, as the author of the work, is the sole and exclusive owner of all rights in and to the Work and is entitled to the copyrights (and all extensions and renewals of copyrights) therein and thereto, with the right to make such changes therein and such uses thereof as Company may determine. To the extent the foregoing may, for any reason, not vest in Company, all rights of every kind, in all media whether now or hereafter known, in perpetuity
throughout the universe, Provider hereby assigns the same to Company. Provider hereby waives all rights of droit moral or moral rights of the author or any similar rights or principles at law which Provider may now or later have in the Work.
Use of Providers Name and Likeness. Subject to the Companys compliance in each case with the restrictions and requirements set forth in the Agreement (including Providers approval and consent rights), Provider grants to Company the worldwide, non-exclusive, right and license to use, publicly display, publicly perform, reproduce, broadcast, amplify, whitelist, transmit, exhibit, disseminate and distribute Normans name, image, and likeness solely for and in connection with the promotion of the Products during the Term, including but not limited to such rights with respect to the Products and Services.
Provider Retention of Rights. Notwithstanding anything to the contrary set forth in this Agreement, except for the limited license expressly provided in the Agreement and in these Standard Terms, Provider retains all worldwide rights in the Brand Rights, including, without limitation, Normans name, likeness, voice, persona, and image.
Reverse License. Company hereby grants to Provider and Norman, a royalty-free, perpetual, fully-paid, right and license to utilize the results and proceeds of the Services hereunder, in its entirety or any portions thereof, in all media now known or hereafter developed, throughout the universe, as follows: (i) on any one (1) or more of Providers and/or Normans websites, social media accounts and all successor medias thereto, whether now known or hereinafter developed; and (ii) in connection with historical and archival purposes (e.g., documentary, commentary, corporate retrospective, historical files on websites of Provider).
Company shall approve all Social Media Posts prior to upload by Provider or Norman. Provider will submit all promotional Social Media Posts to Company for approval a reasonable time before posting, and Company shall review such Social Media Posts and provide feedback to Provider. Provider shall use reasonable efforts to incorporate such feedback into the Social Media Posts. Provider shall resubmit the content to Company for review, and Company shall be entitled to additional rounds of feedback until the content is approved by Company for posting. For the avoidance of doubt, Provider nor Norman shall post any content in connection with this Agreement without the prior written approval of Company. Company shall not use Normans name, image, voice, persona, likeness, or any other Brand Rights, on any assets or marketing materials related to the Products and/or Normans affiliation with the Products (including use of previously
|approved items in connection with a new use or context) without Providers prior written approval of the same in each instance. Provider shall respond to each request for approval from Company within five (5) days of Providers receipt of such request (Approval Window); provided, however that Providers silence or failure to respond to any such request prior to the expiration of the Approval Window shall be deemed Providers disapproval of the materials and/or content contained in such request for approval. Company hereby acknowledges that Providers approval of any particular materials or content for a specific purpose shall only be deemed an approval for said purpose. Company shall be required to re-submit any previously approved materials and/or content to the extent Company wishes to use the same for other purposes. Company hereby acknowledges that, in the event Company fails to obtain Providers consent or approval for any act or omission requiring such consent or approval (e.g., use of Normans name, image, likeness, voice, or persona, etc.), the same shall be deemed a non-curable breach of this Agreement entitling, but not requiring, Provider to immediately terminate this Agreement.|
Company acknowledges that, if any materials produced hereunder are of inferior quality in material and/or workmanship or not in accordance with applicable Laws, then the substantial goodwill which Provider has built up and now possesses in the Brand Rights will be impaired. As such, Company shall use Companys best efforts to operate the business contemplated hereunder in a manner consistent with the high prestige and quality associated with Provider, Norman, the Brand Rights and the Norman Rights.
Provider nor Norman will disclose any trade secrets or confidential information of Company or its affiliates obtained by Provider or Norman hereunder to any third parties, Providers or Normans relationship with the Company (until publicly disclosed by the Company), and any of the terms of this Agreement. Nothing contained in this paragraph shall prevent Provider or Norman from disclosing (i) any information, on a need-to- know and confidential basis, to Providers or Normans business and legal representatives or (ii) any information required to be disclosed by law or legal process.
The Company will not disclose (and shall cause its directors, officers, employees, contractors and affiliates not to disclose) any Provider Confidential Information (as defined below). Nothing contained in this paragraph shall prevent Company from disclosing (i) any information, on a need-to-know and confidential basis, to Companys business and legal representatives or (ii) any information required to be disclosed by law or legal process. Provider Confidential Information shall mean
|information, which is confidential in nature and/or of great value to Provider and/or Norman and shall include, without limitation, (A) personal information or matters about Provider, Norman, or Normans family, friends, representatives and employees; (B) business, financial, medical, legal or contractual matters of or pertaining to Provider or Norman and/or Providers or Normans business entities and their respective officers, directors, shareholders and employees (hereinafter, the foregoing referenced persons and entities are all collectively referred to as Provider Related Parties); (C) any other private and confidential matters concerning Provider, Norman or any of the Provider Related Parties; and (D) information pertaining to the terms of this Agreement.|