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    顾问合同(英文)

    ADVISORY AGREEMENT

     


    CONFIDENTIAL INFORMATION OMMITTED AND FILED SEPARATELY WITH THE
    SECURITIES AND EXCHANGE COMMISSION
    ASTERISKS DENOTE SUCH OMISSION

     

    This Agreement is entered into as of _________(M,D,Y) (the "EFFECTIVE DATE") by and among _________ ("_________(NAME)"), AAA ("AAA") and BBB, INC., a _________(STATE) CORPORATION ("BBB") and provides as follows:


    BBB desires to contract with _________(NAME) for certain services and to obtain from _________(NAME) certain content for distribution through its sports-oriented online service currently located at universal resource locator "http://_________" (the "BBB SERVICE"), and _________(NAME) is willing to render such services, on the terms and conditions set forth herein. For and in consideration of the mutual terms and conditions set forth in this Agreement, the receipt and adequacy of which is hereby acknowledged, the parties agree as follows:


    1. TERM. The term of this Agreement shall be as set forth in EXHIBIT "A" (the "TERM").


    2. SERVICES, RIGHTS & CONTENT. BBB end _________(NAME) agreeto create a designated area of the BBB Service as the exclusive _________(NAME)-authorized web site that features content to be provided by or on behalf of _________(NAME) (hereinafter, the "_________(NAME) WEB SITE"). The _________(NAME) Web Site will be hosted and operated by BBB on BBB's servers at a World Wide Web address (the "_________(NAME) URL") mutually agreed upon by the parties as may be adopted from time to time (tentatively, "_________(NAME).com"), and shall contain prominent links to the BBB Service. As more fully set forth herein, _________(NAME) agrees to fully provide the content and perform the services outlined herein including but not limited to the services and content set forth on EXHIBIT "B."


    3. EXCLUSIVITY. During the Term, and subject to any rights granted to the NBA pursuant to the NBA's Group Licensing Agreement (_________(NAME) and AAA hereby acknowledge that, as of the Effective Date, _________(NAME) has opted out of and is not currently subject to the NBA Group Licensing Agreement) or any other rights granted to the NBA pursuant to _________(NAME)'s contract with the Chicago Bulls, _________(NAME) shall not be employed by, act as a consultant to, provide any content, chat sessions, information, products (including but not limited to merchandise and memorabilia) or services to, or otherwise render services of any nature for or on behalf of, any internet or World Wide Web (including but not limited to ESPN SportsZone, CNN/Si, Sporting News, NBC Sports, FoxSports, etc.), commercial online (including but not limited to Microsoft Newtork, FFF, CompuServe, etc.), electronic or similar service (regardless of whether such service is accessible through the Internet or otherwise). In addition, as more fully set forth herein, _________(NAME) hereby grants BBB an exclusive, world-wide license both online and off- line, to create the official _________(NAME) Fan Clubs (as defined herein); however, that the foregoing shall not prohibit any of the sponsors listed on EXHIBIT "D" attached hereto (each, a "_________(NAME) ENDORSEMENT COMPANY") from distributing information, advertising, or product samples to _________(NAME) fans so long as such activities are not reasonably construed to be in the nature of Fan Club activities in order to avoid confusion in the marketplace and to avoid adversely affecting the effectiveness of the _________(NAME) Fan Clubs. _________(NAME) understands and agrees that BBB shall not be prevented nor barred from retaining other persons or entities to provide services of the same nature or similar nature as those described herein or of any nature whatsoever. BBB acknowledges that the _________(NAME) Endorsement Companies, WorldCom (in particular, with respect to Internet access services) and the NBA may have certain marketing rights that may extend to the Internet and which rights shall not be considered a breach of this Agreement; provided, however, under no circumstances may those rights include the creation of a Web site containing and content similar to the _________(NAME) Information or have the same look and feel of the _________(NAME) Web Site nor any interviews, chat sessions, or other services as provided herein.


    4. PROMOTION. _________(NAME) shall use his best efforts to (i) secure from his corporate sponsors and endorsers promotion of the _________(NAME) Web Site in all print, direct mail, radio and television advertisements, infomercials, and other traditional, electronic and online marketing and promotional vehicles used by such sponsors and endorsers to promote _________(NAME), including arranging to have the _________(NAME) URL displayed on hanging tags on _________(NAME)'s endorsers' or licensees' signature line of apparel and/or equipment, and any books and documentaries; and (ii) mention the _________(NAME) Web Site and _________(NAME) URL in all appropriate interviews and appearances of _________(NAME) (the "PROMOTIONAL EFFORTS"). The Promotional Efforts shall prominently feature the lordan URL followed by the promotional statement "a BBB Powered Web Site" or other similar language designated by BBB, and display the _________(NAME) URL, as may be adopted from time to time. BBB will actively promote the _________(NAME) Web Site both within the BBB service and on other Web sites consistent with BBB's promotion of its other superstar Web Sites.


    5. SPONSORSHIP/ENDORSEMENT CONFLICTS.


    (a) BBB agrees and acknowledges that AAA and _________(NAME) shall have the right to approve, in their absolute discretion, any third- party corporate sponsorships for the _________(NAME) Web Site, and that any use of _________(NAME)'s name and likeness in connection with any third-party corporation or sponsor is subject to prior written approval by _________(NAME) and AAA, based upon _________(NAME)'s pre-existing Agreements with _________(NAME) Endorsement Companies. In the event AAA or _________(NAME) disapproves any third-party corporate sponsorship, AAA or _________(NAME), as applicable, shall provide BBB with AAA's and/or _________(NAME)'s reasons in writing. However, BBB acknowledges that there will be certain situations where, due to pre-existing third party agreements or in _________(NAME)'s sole discretion, _________(NAME) cannot or will not grant approval to certain products, sponsorships and/or advertising in connection with the _________(NAME) Web Site. Further, BBB agrees that it will not under any circumstances negotiate with, enter into any Agreement with or otherwise consult with any of the _________(NAME) Endorsement Company Major Direct Competitors listed on Exhibit "E" attached hereto to advertise, promote or market the _________(NAME) Web Site. BBB agrees to work with _________(NAME) and AAA to ensure that there shall be no ambush marketing by other than _________(NAME) Endorsement Company third-party corporate partners in connection with the _________(NAME) Web Site;


    (b) BBB acknowledges that _________(NAME) has entered into and will enter into certain third party agreements with _________(NAME) Endorsement Companies relating to the food and beverage, sporting goods, telecommunications and apparel industries (collectively the "_________(NAME) THIRD PARTY AGREEMENTS"). Notwithstanding any provision contained in this Agreement to the contrary, BBB agrees that it will not take any action nor fail to take any action, as applicable under the circumstances, in connection with marketing, promoting, advertising and operating the _________(NAME) Web Site and marketing, promoting, advertising and selling _________(NAME) Merchandise which would violate or otherwise interfere with the terms and conditions of any existing or any future _________(NAME) Third Party Agreement (a "MARKETING CONFLICT"), but only to the extent that BBB has been given prior written full disclosure of the material terms and conditions that create any such Marketing Conflict. _________(NAME) and BBB will mutually agree upon procedures for the disclosure by _________(NAME) to BBB of such information as is necessary, for BBB to comply with the foregoing. BBB will, as soon as technologically and commercially feasible following BBB's receipt of notice of a Marketing Conflict, take or refrain from taking such action, as applicable under the circumstances, so as to otherwise comply with the terms and conditions of the _________(NAME) Third Party Agreements; provided, however, that BBB shall have a reasonable period of time within which to deplete any existing inventory or inventory to which BBB is contractually obligated as of the date of receipt of notice of any Marketing Conflict. To the extent that BBB violates a restriction in a _________(STATE)(NAME) Third Party Agreement because BBB did not have written notice of such restriction, BBB shall not be deemed in breach of this Agreement to the extent that it promptly comes into compliance with such restriction, subject to BBB's right to deplete inventory as describe above, following written notice of such violation and such other disclosures as required by this section. BBB shall be solely responsible for contracting with the appropriate parties having rights under any _________(NAME) Third Party Agreement in the event that BBB desires to purchase _________(NAME) Merchandise from such third party, and _________(NAME) shall have no obligations in connection therewith except as otherwise expressly provided herein.


    6. CONSIDERATION. In full consideration for _________(NAME)'s services under this Agreement, BBB will pay _________(NAME) pursuant to the terms outlined in EXHIBIT "C."


    7. GRANT OF LICENSE. _________(NAME) hereby grants to BBB the following licenses:


    a) CONTENT. Subject to any rights granted to the NBA pursuant to the Group Licensing Agreement and any rights granted by _________(NAME) to _________(NAME) Endorsement Companies _________(NAME) grants to BBB an exclusive worldwide license:


    i) To the _________(NAME) URL;


    ii) To use, copy, display (publicly or privately), perform (publicly or privately), distribute or otherwise make available through the _________(NAME) Web Site and the BBB Service the name, initials, likeness, logos, approved photographs, statements of approval, preference and endorsement, biographical information of _________(NAME) (the "_________(NAME) ENDORSEMENT") and the _________(NAME) Information (as defined herein):


    A) In connection with the development, advertisement, promotion and distribution of the BBB Service and the _________(NAME) Web Site (including, without limitation, information and text-oriented services, chatrooms, interviews, contests, interactive games on the Internet only, statistics, and sports feature texts).


    B) In BBB's letterhead.


    C) In connection with any demonstration, promotion, or advertisement of or as otherwise reasonably necessary to promote the BBB Service or the _________(NAME) Web Site in any medium.


    iii) To enter _________(NAME) Information into BBB's computer database.


    iv) To store, process, retrieve and transmit the same on the BBB Service and the _________(NAME) Web Site.


    v) To reproduce any _________(NAME) Endorsement or _________(NAME) Information or any part of it for advertising, promotion and publicity of BBB. BBB's rights hereunder shall include, but not be limited to, BBB's right, in its sole discretion, to offer subscribers the option of printing and downloading _________(NAME) Information or any portion thereof as a function of the BBB Service generally.


    b) MERCHANDISE. In addition, subject to any rights granted to any third parties by _________(NAME), _________(NAME) grants to BBB the world- wide license to sell _________(NAME) memorabilia such as autographed uniforms, basketballs, apparel, equipment, posters and any other sports memorabilia online ("_________(NAME) MERCHANDISE") through the _________(NAME) Web Site; provided that, to the extent that _________(NAME) has a pre-existing contractual obligation with The Upper Deck Company which conflicts with the rights and license granted pursuant to the foregoing provision, _________(NAME) agrees to use his best efforts to facilitate a relationship bewteen BBB and The Upper Deck Company. BBB agrees that any _________(NAME)-autographed sports apparel, shoes, or sports equipment that BBB desires to sell in connection with The Upper Deck Company must be manufactured by Nike, Inc., and Wilson Sporting Goods, Inc., respectively, or any other third party with which _________(NAME) has a contract.


    c) RESERVATION OF RIGHTS. All right, title and interest in all _________(NAME) Information are and shall remain _________(NAME)'s, subject to the rights and licenses granted to BBB herein.


    d) ADDITIONAL RESTRICTIONS. BBB shall not use the _________(NAME) Endorsement in a manner which implies an endorsement of any Web site and/or BBB sponsor or any other non-_________(NAME) Corporate Partner, or an endorsement of any computer hardware and software, video games, cellular phones and accessories, telephone debit and travel cards, or any telephone and telecommunications services without _________(NAME)'s prior written approval.


    8. APPROVALS.


    (a) BBB agrees to submit to _________(NAME) and AAA for their approval, a copy of ail advertising and/or promotional materials utilizing _________(NAME)'s likeness at least fourteen (14) calendar days prior to their release to the general public. BBB further agrees that such advertising and promotional materials shall not be released without prior written approval of _________(NAME) and AAA. _________(NAME) and AAA agree, however, that they shall not unreasonably withhold or delay their approval of such materials and that in absence of disapproval, within ten (10) calendar days of receipt thereof, such advertising and promotional materials shall be deemed approved. Notwithstanding the foregoing, BBB shall have the right to use screen shots and captions from the _________(NAME) Web Site and any previously approved content from the _________(NAME) Web Site for any uses otherwise permitted hereunder; provided that there are no material changes to such screen shots, captions and content as approved.


    (b) From time to time during the term of this Agreement, BBB will submit merchandise to _________(NAME) and AAA, for their approval, which BBB proposes to market, promote, advertise and sell through the _________(NAME) Web Site. _________(NAME) and AAA may, in their sole discretion, approve or disapprove any or all such submitted merchandise to be sold by BBB on the _________(NAME) Web Site.


    (c) To the extent known by _________(NAME) and AAA, _________(NAME) and AAA shall disclose to BBB appropriate contacts with third party sources of _________(NAME) Merchandise for purchase by or sourcing to or on behalf of BBB for BBB's use of the _________(NAME) Endorsement as permitted under this Agreement; provided, however, that _________(NAME) and AAA shall have no obligation to coordinate or facilitate the sale of any such approved merchandise from a third party vendor to BBB as it shall be BBB's sole responsibility to obtain such approved _________(NAME) Merchandise from a third party vendor. _________(NAME) and AAA shall assist BBB in good faith in obtaining favorable terms with respect to the sale of such _________(NAME) Merchandise.


    (d) To the extent BBB creates unique _________(NAME) Merchandise, BBB agrees to provide to _________(NAME) and AAA a combined total of two (2) representative copies or samples (i.e., one each to _________(NAME) and AAA) of all such proposed _________(NAME) Merchandise together with a description of the intended use of the merchandise to _________(NAME) and AAA without cost to _________(NAME) and AAA for written approval prior to BBB using the same. _________(NAME) and AAA shall approve or disapprove any merchandise submitted by BBB for approval within ten (10) business days of their receipt by _________(NAME) and AAA. If _________(NAME) or AAA do not approve or disapprove BBB's submission within such ten (10) day period, BBB will provide written notice to _________(NAME) and AAA of such delay and _________(NAME) and AAA agrees that any such proposed merchandise will be deemed approved if BBB's submission is not responded to within five (5) business days following receipt of such written notice. The copies and samples submitted by BBB to _________(NAME) and AAA under this Section 8(d) may be retained by _________(NAME) and AAA at their option. BBB will thereafter submit to _________(NAME)-and AAA, without cost to _________(NAME) or AAA, one (1) unit of such finished _________(NAME) Merchandise, as approved, upon commencement of production of such _________(NAME) Merchandise.


    9. RESPONSIBILITIES OF _________(NAME) AS TO CONTENT.


    a) _________(NAME) INFORMATION. For purposes of this Agreement, the term "_________(NAME) INFORMATION" means all information created and/or delivered by _________(NAME) to BBB for inclusion in the BBB Service or the _________(NAME) Web Site including but not limited to (i) any trademark, service mark, trade name or logo, whether or not registered, included in such information, provided that any such trademark, service mark, trade name or logo must be approved in advance by _________(NAME) and AAA (ii) the content to be provided as set forth on EXHIBIT "B," and (iii) any statement made by any member of _________(NAME)'s organization during any interview or chat session broadcast or distributed over the BBB Service or the _________(NAME) Web Site.


    b) REPRESENTATIONS AND WARRANTIES. _________(NAME) shall be solely responsible for the content of all _________(NAME) Information, and represents and warrants to BBB that:


    i) All _________(NAME) Information (A) shall be accurate and _________(NAME)'s own and original creation, except for information validly Iicensed for use by _________(NAME) or in the public domain; (B) will consist only of information that _________(NAME) is authorized to use and to authorize BBB to use as contemplated in this Agreement; (C) will not constitute a libel or defamation or conflict with any copyright, right of privacy or other rights of, and will not cause injury to, any third party; and (D) will conform to all applicable federal, state and local laws and regulations and any other governmental or quasi- governmental laws or regulations of the United States or any other country.


    ii) _________(NAME) has the full right and authority to grant the rights and consents set forth herein.


    iii) BBB shall be entitled at any time to bring any concerns it has regarding the _________(NAME) Information to the attention of _________(NAME), whereupon the parties will cooperate in good faith to address BBB's concerns. If BBB, in its reasonable judgment, believes that immediate action is required with regard to any of the _________(NAME) Information, BBB may delete, modify or revise such information, provided that BBB shall notify _________(NAME) of such action prior thereto, if reasonably possible (or, if not, as soon thereafter as commercially practicable). In the event _________(NAME) ceases to maintain his high-profile as a pre-eminent spokesperson and/or entertainer, and becomes completely inactive as an endorser, _________(NAME) agrees to discuss in good faith with BBB some protection to the rights and obligations hereunder.


    c) DELIVERY; EDITORIAL STANDARDS. All _________(NAME) Information and updates shall be transmitted by land-line telephone or electronically in the format specified by BBB. All content supplied by _________(NAME) shall be consistent with the editorial standards used by BBB for content displayed on the BBB Service (which standards BBB reserves the right to amend from time to time).


    10. NBA/BULLS TRADEMARKS. BBB acknowledges that _________(NAME) has no right to grant, nor does he purport to grant, the use of the Chicago Bulls' name, uniform and/or insignias or any other trademarks associated with the National Basketball Association. However, _________(NAME) shall instruct his agent(s), attorney(s) and/or business manager(s) to use their best efforts to assist SportsLina to obtain clearances for such uses.


    11. BBB SERVICE. BBB shall have sole discretion to determine all aspects of the operation of the BBB Service and all matters relating to the content, structure and sequence of material appearing on the BBB Service. Without limiting the generality of the foregoing, BBB shall have sole discretion to determine the amount and basis of any fee charged to subscribers for use of the BBB Service, and BBB exclusively will bill for and collect all fees charged to subscribers to use the BBB Service. Nothing in this Agreement shall limit BBB's rights regarding charges for any aspect of the BBB Service (including any product or service offered by BBB, whether alone or in conjunction with others, through means of the BBB Service). All right, title and interest in . BBB's name, trade name(s), trademark(s) and service mark(s), copyrights, and all other intellectual property (collectively, "BBB'S INTELLECTUAL PROPERTY") are and shall remain. BBB's. Nothing herein shall be deemed to grant _________(NAME) any proprietary rights to any of BBB's Intellectual Property.


    12. PREMIUM FEATURES/FAN CLUBS. BBB shall ba responsible for the concept design and creation of all Premium Features, including the official exclusive online and off-line _________(NAME) fan clubs (collectively, the "FAN CLUBS") that allow _________(NAME) to communicate with _________(NAME)'s fans through regular e-mail messages, columns and newsletters, to record audio clips that allow fans to listen to live and previously recorded interviews and insights, and to play video clips and highlights from previously- recorded interviews and games and events (collectively, "ELECTRONIC MEANS"). _________(NAME) will answer five (5) electronic mail questions per week received from members of _________(NAME) online Fan Club, if and to the extent such questions are timely forwarded by BBB, given _________(NAME)'s schedule; and will use best efforts to introduce BBB to _________(NAME)'s endorsers and licensees to promote the _________(NAME) Fan Clubs and to facilitate the acquisition of merchandise and/or memorabilia for sale through and. In addition, BBB will create, operate and maintain the exclusive official _________(NAME) off-line Fan Club that allows _________(NAME) to communicate with his fans through means other than Electronic Means.


    a) With respect to both the official online and off-line Fan Club, BBB shall be responsible for the following services (the "FAN CLUB SERVICES"):


    i) Creating and marketing a Fan Club membership package which shall be subject to _________(NAME)'s and AAA's prior approval.


    ii) Creating a mailing list consisting of Members (as defined below). BBB agrees, at the request of _________(NAME) given at any time or times during the Term, to deliver to _________(NAME), at BBB's cost, a copy of the then-current mailing list for the Fan Clubs. BBB acknowledges and agrees that _________(NAME) shall have the right to make use of the Fan Clubs' membership list for any purpose permitted by law which _________(NAME) may designate (including, without limitation, licensing or selling such !ist) without the obligation to pay any fee or compensation to BBB.


    iii) Soliciting individuals to become "Fan Club members" (the "MEMBERS").


    iv) If mutually agreed upon, writing and sending and/or distributing to the Members periodic newsletters, press releases and touring schedule updates, all of which shall be subject to _________(NAME)'s and AAA's prior approval.


    v) Providing Members with an "official" membership card, information packet and other promotional materials relating to the Fan Clubs, all of which shall be subject to _________(NAME)'s and AAA's prior approval.


    vi) If mutually agreed upon, creating a merchandising presence within the _________(NAME) Web Site to provide Members with opportunities to purchase officially-licensed Fan Club merchandise, all of which shall be subject to further agreement bewteen _________(NAME) and BBB.


    vii) Collecting all income generated from the Fan Clubs' activities accounting for and distributing the income as set forth herein.


    viii) Such other services and activities as the parties may hereafter agree.


    If at any time during the Term, BBB or _________(NAME) desires to add additional Fan Club Services, then BBB may submit such request in writing to _________(NAME), or _________(NAME) may submit such request in writing to BBB, and upon receipt thereof, the parties shall discuss in good faith the possibility of adding such additional services.


    b) BBB shall operate the Fan Clubs in accordance with the following guidelines:


    i) Fan club dues shall be established upon mutual agreement of the parties.


    ii) _________(NAME) shall have final approval of all information, including photographs, video clips, etc., to be sent, broadcast or made accessible to Members and/or used in connection with the Fan Clubs, and of the parameters or rules of any Fan Club conventions and/or contests ("FAN CLUB ACTIVITIES"). BBB shall submit each of these Fan Club Activities to _________(NAME) in writing for _________(NAME)'s and AAA's approval.


    13. CONTESTS. _________(NAME) and AAA agree and acknowledge that their respective employees, consultants and/or advisors and members of their respective immediate families (immediate family is defined as parent, sibling or any person residing in the same household as employee or consultant) shall not eligible to play BBB contests for prizes.


    14. PRESS RELEASES. It is the intent of the parties to issue a joint press release announcing the formation of the relationship created hereby. However, it is agreed that no party will issue any such press release without the prior written consent of the other parties.


    15. ENFORCEMENT ACTION. If either party obtains information that the rights granted by _________(NAME) to BBB have been breached by a third party, such information shall be promptly transmitted to the other party. BBB shall have the right, but not the obligation, to commence an action against the breaching third party; provided, however, BBB agrees to commence appropriate action if requested to do so by _________(NAME) and/or AAA, but only to the extent approved by BBB's outside counsel and further subject to mutual agreement among BBB, AAA and _________(NAME) regarding division of the expense of retaining outside counsel. If requested by BBB, _________(NAME) shall enter such action against such third party as an additional party plaintiff.


    16. ARBITRATION. The parties are desirous of reducing the time and costs of resolving disputes. Accordingly, any claim or controversy arising out of or in connection with the construction or application of any term, provision or condition of this Agreement and shall be settled by final and binding arbitration in the State of Illinois under the Rules of the American Arbitration Association;-provided, however, that any such matter submitted to arbitration shall be presided over by a panel of at least three (3) arbitrators who each shall have experience in the area of intellectual property law. The decision of the arbitrators shall- be binding upon the parties. The reasonable cost of arbitration shall be borne by the losing party or in such proportion as the arbitrator shall decide. Judgment on the award rendered by the arbitrator may be entered in any court in the world having jurisdiction. The provisions of this paragraph shall survive any expiration or earlier termination of this Agreement.


    17. INDEMNIFICATION BY BBB. BBB shall indemnify, defend and hold _________(NAME) harmless from and against all claims, costs, liabilities, judgments, expenses or damages (including reasonable attorneys' fees and court costs) arising from or related to any cause of action brought against _________(NAME) by any person or entity that is not a party to this Agreement arising from or related to this Agreement. This paragraph shall survive any expiration or earlier termination of this Agreement.


    18. INDEMNIFICATION BY _________(NAME). _________(NAME) shall indemnify, defend and hold BBB harmless from and against all claims, costs, liabilities, judgments, expenses or damages (including reasonable attorneys' fees and court costs) arising from or related to any cause of action brought against BBB by any person or entity that is not a party to this Agreement arising from or related to (i) any _________(NAME) Information displayed through the _________(NAME) Web Site or the BBB Service, (ii) the content of any _________(NAME) Information, and (iii) any breach of this Agreement, provided BBB promptly notifies _________(NAME) of any such claim and provides _________(NAME) the opportunity to control the defense of the action and all negotiations for settlement or compromise. This paragraph shall survive any expiration or earlier termination of this Agreement


    19. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING STATED OR IMPLIED TO THE CONTRARY HEREIN, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR EXEMPLARY, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, IN ANY MANNER ARISING OUT OF THIS AGREEMENT OR THE BREACH OF ANY TERM, COVENANT, REPRESENTATION, WARRANTY OR OBLIGATION CONTAINED HEREIN. THIS PARAGRAPH SHALL SURVIVE ANY EXPIRATION OR EARLIER TERMINATION OF THIS AGREEMENT


    20. CONFIDENTIALITY. All information disclosed by either party to the other party, including but not limited to the terms and conditions of this Agreement or any other agreement bewteen the parties, trade secrets of the parties, any nonpublic information relating to a party's product plans, designs, ideas, concepts, costs, prices, finances, marketing plans, business opportunities, personnel, research, development or know-how and any other nonpublic technical or business information of a party, that is marked "CONFIDENTIAL" or identified by the disclosing party in writing as confidential before or within thirty (30) calendar days after disclosure to the receiving party, shall be treated as confidential by the receiving party and not disclosed to any third party, including, but not limited to the NBA, NBA Properties, the National Basketball Players Association and any other entity of the NBA or the Chicago Bulls, without the disclosing party's consent or unless required by law. Confidential Information shall not include information that: (a) is now or subsequently becomes generally available to the public through no fault or breach on the part of the receiving party; (b) the receiving party can demonstrate to have had lawfully in its possession without an obligation of confidentiality prior to disclosure hereunder; (c) is independently developed by the receiving party without the use of any Confidential Information of the disclosing party as evidenced by written documentation; or (d) the receiving party lawfully obtains from a third party who has the right to transfer or disclose it and who provides it without any obligation to maintain the confidentiality of such information. This paragraph shall survive any expiration or earlier expiration of this Agreement.


    21. TERMINATION. In the event of a material breach of this Agreement by either party, the other party may terminate this Agreement on thirty (30) calendar days' written notice to the breaching party unless the breach is corrected within the thirty (30) day period. Termination under this paragraph shall not affect the right of the non-breaching party to recover damages from the breaching party. No expiration or termination of this Agreement shall affect or impair either party's rights or remedies under this Agreement that have accrued or arisen as of or prior to such termination. Following the effective date of termination, no further obligations of either party to the other shall accrue under this Agreement, provided that termination shall not relieve either party of any obligations arising prior to the effective date of termination.


    22. RELATIONSHIP OF THE PARTIES. The parties to this Agreement are independent contractors, and this Agreement shall not be construed to create a partnership, joint venture, employment or principal agent relationship bewteen the parties. Each party shall be solely responsible to compensate any employees! agents or representatives employed or engaged by it to perform duties under this Agreement and for all taxes, imposts, duties and all charges of any governmental authority arising from its or his activities under this Agreement. Neither BBB, AAA nor _________(NAME), nor any person or entity employed by any of them, are authorized to make any representation or warranty concerning the other parties or incur or assume any obligation or liability for the other parties.


    23. AMENDMENT: WAIVER. No amendment to this Agreement shall be valid unless such amendment is in writing and is signed by the party against whom enforcement is sought. Any of the terms and conditions of this Agreement may be waived at any time in writing by the party entitled to the benefit thereof, but a waiver in one instance shall not be deemed to constitute a waiver in any other instance. A failure to enforce any provision of this Agreement shall not operate as a waiver of the provision or of any other provision hereof.


    24. SEVERABILITY. In the event that any provision of this Agreement shall be held to be invalid, illegal or unenforceable in any circumstances, the remaining provisions shall nevertheless remain in full force and effect and shall be construed as if the unenforceable portion or portions were deleted.


    25. GOVERNING LAW. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Illinois without regard to its conflict of law principles.


    26. NOTICES. All notices or other communications hereunder shall be in writing and shall be deemed to be given or made when delivered by overnight courier or first-class, postage prepaid, registered or certified mail to the following address or addresses or such other address or addresses as either party may designate in writing to the other in accordance with this paragraph:

     


    If to BBB:

    BBB, Inc.
    Address: _________
    Attn: _________

    If to _________(NAME) or AAA:

    HHH Enterprises
    Address: _________
    Attention: _________

     

    27. ASSIGNMENT.


    Neither _________(NAME) nor BBB shall have the right to grant sublicenses hereunder or to otherwise assign, alienate, transfer, encumber, or hypothecate (all of the foregoing hereinafter "transfer") any of their rights or obligations hereunder without the prior written consent of the other. BBB may, without the approval of _________(NAME) or AAA, transfer its rights and/or obligations hereunder in connection with a consolidation, merger or sale of all or substantially all of BBB's assets with any other entity. However, in the event:


    (i) BBB proposes to effect a merger or consolidation with any entity (a "MERGING ENTITY") *****, and


    (ii) _________(NAME) has advised BBB specifically and in writing, at least thirty (30) days before _________(NAME) receives such notice of such merger or consolidation or such merger or consolidation is publicly announced, that such Merging Entity is a ***** within the meaning of this paragraph,


    then _________(NAME) shall have the right to terminate this Agreement by so notifying BBB in writing on or before thirty (30) days after _________(NAME) has received notice of such proposed merger or consolidation (provided that such termination shall not be effective if the merger or consolidation is not consummated or if those elements of the Merging Entity which make it a ***** are "spun off" and not included in the resulting company of which BBB is a part); provided, however, that, at BBB's option and in BBB's sole and absolute discretion, _________(NAME) shall continue to receive all such Deficiency Payments in accordance with the amounts and schedule provided in Exhibit C and paragraph 3 hereof shall remain in full force and effect during the remainder of the Term as if this Agreement had not been terminated.


    28. COMPLIANCE WITH LAWS. Each party shall comply with applicable law in connection with the development and publication of the _________(NAME) Web Site. _________(NAME) and AAA and BBB agree, in particular, to comply with all laws concerning obscenity, defamation, infringement, rights of privacy, harassment and export controls, among others, and to ensure that the use, reproduction and distribution of the content contained in _________(NAME) Web Site in and of itself, does not violate such laws or related legal rights of third parties.


    29. ACKNOWLEDGMENT AND PROTECTION OF THE LICENSED RIGHTS.


    (a) BBB recognizes and acknowledges the exclusive rights of _________(NAME) in and to the _________(NAME) Endorsement. Nothing contained in or contemplated under this Agreement will be construed to confer upon BBB any right to have the _________(NAME) Endorsement registered in the name of BBB or to vest in BBB any right of ownership to the _________(NAME) Endorsement, and BBB will not, directly or indirectly, use, register or cause to be used or registered, any word, symbol, character or set of words, symbols or characters, trademark, trade name, service mark or copyright consisting of, related to, similar to and/or confusingly similar to any part of the _________(NAME) Endorsement.


    (b) During the term of this Agreement and following the expiration or termination of this Agreement for any reason, BBB will not


    (i) challenge the validity of ownership in or right to license, the _________(NAME) Endorsement, (ii) contest the fact that BBB's rights under this Agreement are solely those of BBB and terminate upon expiration or termination of this Agreement, (iii) represent in any manner that BBB has any title or right to the ownership, registration or use of any of the _________(NAME) Endorsement in any manner except as set forth in this Agreement, or (iv) challenge the right of _________(NAME) to grant a license for the _________(NAME) Endorsement (unless in conflict with the rights granted to BBB under this Agreement). Any and all goodwill associated with or identified by the _________(NAME) Endorsement will inure directly or exclusively to the benefit and is the property of _________(NAME).

     
     

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